author: VILLANTI, Judge.

text:
    SERVICE EXPERTS, LLC, d/b/a Service Experts of Tampa/St. Pete, Appellant, v. NORTHSIDE AIR CONDITIONING & ELECTRICAL SERVICE, INC.; John Brightwell; Anthony White; and Eric Zinkann, Appellees.
    No. 2D09-5416.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.

      Marie A. Borland; Benjamin H. Hill, III; and William C. Guerrant of Hill, Ward & Henderson, P.A., Tampa, for Appellant.
    G. Donovan Conwell, Jr., and Dineen Pashoukos Wasylik of Conwell Kirkpatrick, P.A., Tampa, for Appellees.
   VILLANTI, Judge.

This appeal arises from the trial court’s order striking the notice of voluntary dismissal filed by Service Experts, LLC, and reinstating the action based on the common law exception to a plaintiffs right to voluntarily dismiss the complaint, as set forth in Ormond Beach Associates, Ltd. v. Citation Mortgage, Ltd., 835 So.2d 292 (Fla. 5th DCA 2002). Because the common law exception did not apply in this case and because, as explained below, we have converted this appeal to a writ of prohibition, we quash the trial court’s order of reinstatement.

Service Experts is in the business of selling, installing, servicing, and repairing heat, ventilation, and air cooling systems throughout Florida. In June 2007, it filed a lawsuit against three of its former employees and their new employer, Northside Air Conditioning & Electrical Service, Inc. (the Northside defendants). In a nutshell, the complaint alleged torts committed when the former employees left Service Experts to work for Northside Air Conditioning and asserted claims for breach of fiduciary duty, aiding and abetting the breach of fiduciary duty, tortious interference with contractual and business relationships, trade secret misappropriation, conversion, and conspiracy.

In March 2009, after almost two years of litigation, after the Northside defendants served offers of judgment, after the close of discovery, and after the Northside defendants moved for summary judgment, Service Experts filed a one-sentence notice of voluntary dismissal of their complaint without prejudice. The Northside defendants responded by filing a motion to strike Service Experts’ notice of dismissal or for entry of a dismissal with prejudice. The Northside defendants argued that the notice of voluntary dismissal should be stricken because Service Experts had perpetrated fraud on the court by filing two fraudulent affidavits in 2008. They also argued that Service Experts should not be allowed to dismiss the case after nearly two years of expensive litigation based on the common law exception to a plaintiffs right to dismiss a case as set forth in Ormond Beach.

In ruling on the Northside defendants’ motion to strike the voluntary dismissal, the trial court noted that it could not decide, on the record before it, whether fraud had been perpetrated upon the court. However, it concluded that the defendants had “acquired substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment, by making offers of judgment and by setting forth convincing allegations of fraud, all of which would be lost if the dismissal without prejudice were allowed to stand.” The court then gave the parties the option of either proceeding to trial on the merits or scheduling an evidentiary hearing to determine whether fraud had actually been perpetrated on the court. It was at this juncture that Service Experts filed its notice of appeal contending that this “option” improperly compelled it to continue litigating after it had filed a notice of voluntary dismissal.

We briefly address this court’s jurisdiction to consider this appeal. Service Experts’ notice of appeal was filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). The Northside defendants have argued that this court does not have jurisdiction under rule 9.130(a)(5) because that rule applies to orders entered on motions for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540. They state that their motion to strike the notice of voluntary dismissal was not made pursuant to rule 1.540 because that rule applies to final judgments, decrees, orders, or proceedings, and the voluntary dismissal they sought to set aside was not a final judgment, decree, or order. We agree with their procedural assessment.

However, this case involves the circumstance of a plaintiffs notice of voluntary dismissal of an action before a summary judgment hearing and a trial court’s order reinstating the lawsuit in contravention of Florida Rule of Civil Procedure 1.420(a). Generally, a notice of voluntary dismissal deprives the trial court of jurisdiction over the case, see Ambory v. Ambony, 442 So.2d 1087, 1088 (Fla. 2d DCA 1983); Dunkin’ Donuts Franchised Rests., LLC v. 330515 Donuts, Inc., 27 So.3d 711, 713 (Fla. 4th DCA 2010); Freeman v. Mintz, 523 So.2d 606, 608 (Fla. 3d DCA 1988), but a trial court retains jurisdiction under rule 1.540 to relieve a party “ ‘from the act of finality in a narrow range of circumstances,’ ” none of which are applicable in this case, see Dunkin’ Donuts Franchised Rests., LLC, 27 So.3d at 713 (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986)). Based on the facts of this case, appellate jurisdiction does not neatly fall within the confines of rule 9.130(a)(5). Nevertheless, Florida Rule of Appellate Procedure 9.040(c) provides that when a party seeks an improper remedy, “the cause shall be treated as if the proper remedy had been sought.” Here, a writ of prohibition is appropriate “to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow.” City of Ocala v. Gard, 988 So.2d 1281, 1283 (Fla. 5th DCA 2008). It is “the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction” where there is no right to remedy the wrong at issue by direct appeal. Id. at 1283. Because we conclude that the trial court’s order was in excess of its jurisdiction, we have appellate jurisdiction to “forestall an impending injury”— forced litigation after the plaintiffs notice of voluntary dismissal was filed. As there is no other adequate remedy, we convert this appeal to a writ of prohibition.

We now analyze the merits of this case. In Patterson v. Allstate Insurance Co., 884 So.2d 178, 180 (Fla. 2d DCA 2004), this court summarized a party’s right to voluntarily dismiss an action:

Florida Rule of Civil Procedure 1.420(a) ... gives plaintiffs the right to voluntarily dismiss their action at any time “before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court.” Until the line drawn by this rule is crossed, the plaintiffs right to a voluntary dismissal is “absolute.” Fears v. Lunsford, 314 So.2d 578 (Fla. 1975)[.]

(Emphasis added.) There are limited exceptions to a plaintiffs “absolute” right to take a voluntary dismissal as a matter of right: (1) if there is fraud on the court, (2) if the defendant can establish the common law exception to the right of voluntary dismissal, or (3) if the plaintiff dismisses the case at a stage which is deemed the equivalent of a summary judgment. Id. The Northside defendants asserted only that either the first or second exception applied in this case. However, because the trial court relied solely on the common law exception when it reinstated the complaint and did not amend its order after finding no fraud in fact had been committed, we begin our discussion with whether the common law exception applied in this case.

The common law exception to a voluntary dismissal was articulated by the Fifth District in Ormond Beach. In that case, the parties were embroiled in litigation for ten years. 835 So.2d at 294. Defendant Ormond Beach filed a summary judgment motion and the matter was set for hearing. Id. Three days before the scheduled summary judgment hearing, the plaintiff served a notice of voluntary dismissal without prejudice. Id. The trial court recognized the voluntary dismissal and found the pending summary judgment motion moot. Id. The Fifth District affirmed the trial court’s ruling, explaining:

[A]t any time before a hearing on a motion for summary judgment, a party seeking affirmative relief has nearly an absolute right to dismiss his entire action once, without a court order, by serving a notice of dismissal. The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable.

835 So.2d at 295 (citations omitted). As in this case, the defendant in Ormond Beach argued that it had acquired a substantial right in the litigation and that the voluntary dismissal deprived it of the right to recover attorney’s fees pursuant to its offer of judgment. Id. at 296. The district court rejected that argument, concluding that the defendant had not acquired a right to recover fees simply based on the offer of judgment. Id. The court also concluded that the defendant had not acquired a substantial right in the litigation because there was no “conclusive evidence that, absent the voluntary dismissal, a judgment would have been entered in Ormond Beach’s favor on any or all of Citation Mortgage’s pending claims.” Id. Thus, Ormond Beach in fact illustrates why, in this case, the trial court should not have stricken Service Experts’ notice of voluntary dismissal.

This court’s decision in Patterson, 884 So.2d at 178, also illustrates the proper application of the common law exception to a voluntary dismissal. In that case, a lawsuit was referred to nonbinding arbitration pursuant to statute and the arbitrator issued a decision in favor of the defendant. Id. at 179. Under the applicable statute, the arbitration results became final if no party asked for trial de novo. Id. at 180. Neither party timely requested a trial de novo. Id. at 179. Patterson then filed a notice of voluntary dismissal without prejudice, and the defendant responded by filing a motion for entry of a final judgment. Id. The trial court entered a judgment in favor of the defendant and Patterson appealed, arguing that the trial court did not have jurisdiction to enter the judgment because he had filed a notice of voluntary dismissal. Id. This court rejected Patterson’s argument. Id.

We explained in Patterson that under the statute applicable in that case, once the arbitrator had issued a decision, the trial court was required to enforce that decision unless a motion for trial de novo was filed. Id. at 180-81. Because a motion for trial de novo had not been filed, but for the plaintiffs notice of voluntary dismissal, the defendant would have been entitled to a judgment in its favor that would have precluded further litigation of the same subject matter. Id. at 180. Thus we concluded that the case fell within the Ormond Beach common law exception to a plaintiffs right to voluntarily dismiss its case because, by the time the plaintiff filed the notice of voluntary dismissal, the defendant had already acquired substantial rights in the case by virtue of the final arbitration decision and was entitled to disposition of the case on the merits. Id. at 181.

The plain language of rule 1.420 and the decisions in Patterson and Or-mond Beach lead us to the conclusion that the trial court in this case misapplied the common law exception when it found that the mere filing of a motion for summary judgment, offers of judgment, and “convincing” but, nevertheless, bare allegations of fraud created a substantial right that precluded Service Experts from dismissing the case. The Northside defendants could not have acquired a substantial right in the case simply by filing a motion for summary judgment that was never argued because rule 1.420(a) clearly allows a plaintiff to file a notice of voluntary dismissal at any time before a hearing on a motion for summary judgment. Also, the Northside defendants’ request for sanctions under section 57.105, Florida Statutes (2009), filed in response to Service Experts’ complaint, did not vest upon them a right to have sanctions determined or awarded against Service Experts.

Likewise, the Northside defendants’ mere filing of offers of judgment did not confer upon them a substantial right to recover fees or to have the case decided on its merits. See Ormond Beach, 835 So.2d at 296 (“[T]he instant record fails to demonstrate that Ormond Beach had acquired any ‘substantial right’ to recover any offer of judgment attorney’s fees.”). Unlike in Patterson, there is no evidence in this case that, absent Service Expert’s voluntary dismissal, a judgment would have been entered in the Northside defendants’ favor on any or all of Service Experts’ claims.

We also reject the trial court’s preliminary conclusion that the Northside defendants acquired rights in the outcome of this case by their allegations of fraud. Fraud is a ground for striking a notice of voluntary dismissal separate and apart from the common law exception set forth in Ormond Beach. Thus, setting forth bare allegations of fraud is not a basis for striking a notice of voluntary dismissal based on the Ormond Beach common law exception to rule 1.420(a). Notably, the trial court here did not strike the notice of voluntary dismissal based on a determination of fraud. Rather, the court struck the voluntary dismissal based only on the common law exception to a voluntary dismissal, which it found applicable because of the Northside defendants’ filings, together with their allegations of fraud. Therefore, the portion of the trial court’s order stating that the Northside defendants acquired substantial rights in the outcome of the case by alleging fraud erroneously mixed concepts from two separate grounds available to strike a voluntary dismissal on the basis of fraud.

The Northside defendants also argue that they made a sufficient showing of fraud on the court to warrant an evidentia-ry hearing to resolve the fraud allegations.

Only under the right circumstances can fraud allegations support a trial court’s decision to strike a plaintiffs notice of voluntary dismissal. For example, in Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089, 1090 (Fla. 3d DCA 1979), plaintiff Select Builders filed an action to expunge an injunction from the public record and quiet title to a piece of real estate. The trial court granted Select Builders affirmative relief by issuing an order expunging the document from the public record and quieting title. Id. It was later alleged that Select Builders had perpetrated a fraud upon the court in obtaining the order expunging the document. Id. The trial court then vacated its previous order and ordered the parties to preserve the status quo until the fraud allegations were decided. Id. In response to the court’s order, Select Builders filed a notice of voluntary dismissal to prevent the trial court from correcting any error in expunging the document. Id. The trial court struck the notice of voluntary dismissal. Id. The district court approved the decision, explaining: “The plaintiff had obtained the affimiative relief it sought, its actions in the cause in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity.” Id. at 1091 (emphasis added).

Other courts have interpreted the fraud exception to apply where the notice of dismissal itself is considered an attempt to commit fraud on the court. See, e.g., Fitzgerald v. Fitzgerald, 790 So.2d 1216, 1217 (Fla. 2d DCA 2001) (concluding that trial court was required to accept notice of voluntary dismissal where “the trial court made no finding of fraud, and there is no basis in the record to find that the notice constituted a fraud on the court”) (emphasis added); Romar Int’l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346, 347 (Fla. 5th DCA 1982) (“A narrow exception [to the plaintiffs right to voluntarily dismiss his lawsuit] exists where a fraud on the court is attempted by the filing of the voluntary dismissal ....”) (emphasis added).

This case is distinguishable from Select Builders and the other cases cited above. The Northside defendants’ allegations of fraud were only related to Service Experts’ filing of two affidavits in response to the Northside defendants’ section 57.105 motion for sanctions. The Northside defendants contend that the two affidavits contained false statements and were filed “to convince the court that [Service Experts] had a good faith basis to file” the lawsuit. Yet, the trial court never ruled on the merits of the Northside defendants’ section 57.105 motion for sanctions, and there is no record evidence that the trial court relied on the two affidavits to confer upon Service Experts any affirmative relief or benefit. The Northside defendants rightfully argued at that time in them reply to Service Experts’ opposition to the section 57.105 motion that “the court should not decide this motion until it has determined which party has prevailed;” Thus, unlike Select Builders, this is not a case where the plaintiff engaged in fraud which resulted in affirmative relief from the court and, upon obtaining that relief, voluntary dismissed the case to prevent the court from taking away the ill-gotten relief. Without evidence of ill-gotten relief connected to the fraud allegations, the Northside defendants’ allegations were insufficient to support striking the notice of voluntary dismissal on the basis of fraud.

The Northside defendants specifically assert that without the two allegedly fraudulent affidavits there were no disputed issues of fact in the case. That statement understates the parties’ dispute and overstates the substance of the affidavits. While the court denied the Northside defendants’ motion for summary judgment without discussion the same day that it struck Service Experts’ notice of voluntary dismissal, it never stated that it had relied on the two affidavits to deny the motion for summary judgment. Further, the limited record before us reflects a heavily contested case in many respects. The two affidavits at issue touched on only some aspects of the parties’ dispute. Without making any determination on the merits, we note that while some of the statements contained in the affidavits apparently contradict other statements in the litigation, they did not impact all of the plaintiffs claims. For example, the Northside defendants alleged that paragraph 8 of witness Patrick Lindsay’s affidavit falsely asserted that defendant Eric Zinkann had solicited him to work for Northside Air Conditioning. In deposition, Mr. Lindsay testified that paragraph 8 of the affidavit was inaccurate because it was defendant Anthony “Tony” White, not Zinkann, who had solicited him. This inaccuracy does not change Service Experts’ allegation that the defendants improperly solicited its employees prior to and subsequent to leaving Service Experts’ employment; it only changes the players allegedly involved. We have also examined the trial court’s subsequent order rejecting the Northside defendants’ fraud allegations after an evi-dentiary hearing and that order is consistent with our conclusions.

Finally, the Northside defendants argue that it would be inequitable to allow Service Experts to dismiss the action without prejudice because allowing a voluntary dismissal would unfairly prevent the Northside defendants from clearing their names in the business community, preclude them from obtaining attorney’s fees pursuant to their previously filed offers of judgment, and “muddy the waters” in their malicious prosecution action against Service Experts. Unfortunately, these are common consequences of litigation which are encountered by many defendants, and rule 1.420 does not provide relief for such grievances. For better or for worse, unless the line drawn by rule 1.420(a) is crossed, its plain language allows a plaintiff to dismiss its action virtually at will. As we have noted, this line is very narrow and none of the exceptions preventing dismissal existed in this case. Needless to say, any attempts to broaden the line set forth by the rule allowing voluntary dismissal must come from the supreme court, which is exclusively empowered to make rule changes.

While we sympathize with the Northside defendants’ frustration and dissatisfaction with the current remedy of dismissal without prejudice and with their apparent decision to prosecute a separate malicious prosecution action against Service Experts, the fact that the court and the defendants have devoted substantial resources to the case is, by itself, insufficient inequity to strike a notice of voluntary dismissal. See, e.g., Perez v. Winn-Diode, 639 So.2d 109, 112 (Fla. 1st DCA 1994) (“[W]e reject E/C’s request that we recognize and engraft an exception to the general voluntary dismissal rule, i.e., one that recognizes the inconvenience to the trier of fact and opposing counsel which is posed by a late notice of dismissal.”). In conclusion, under the circumstances of this case, the trial court on remand must vacate its reinstatement order.

Petition granted, order quashed, and case remanded with directions to dismiss.

NORTHCUTT and MORRIS, JJ., Concur.

      . Subsequent to the filing of this appeal, apparently based on the language in the court’s order, the trial court held an evidentiary hearing on the fraud allegations. The court concluded that the Northside defendants had not established that Service Experts committed a fraud on the court. The parties have not stipulated to whether the trial court's ruling should render moot the fraud aspect of this appeal; neither have they raised any objection to the postappeal proceedings conducted by the trial court. Thus, we address the fraud issue raised on appeal only as it relates to the preappeal unruled-upon allegations of fraud.

      . Service Experts cited Miller v. Fortune Insurance Co., 484 So.2d 1221 (Fla.1986), as authority for this court to consider this matter on direct appeal. In Miller, the supreme court stated, in relevant part: "The respondent here argues that a notice of voluntary dismissal does not fall within rule 1.540.... Surely, a voluntary notice of dismissal is something, it doesn't exist in limbo. We conclude that it is indeed a 'proceeding.' " Id. at 1224. Because of the marked factual differences between this case and Miller, we are concerned that the supreme court's pronouncement in that case is not applicable to the facts of this case. Considering this appeal as a prohibition avoids the necessity of extending Miller's holding and, in any event, prohibition provides efficacious review without engaging in a case-by-case analysis.

      . While the trial court referred to the allegations as "convincing,” based on the record we interpret this only to mean that the court viewed the allegations as sufficient to merit an evidentiary hearing, but they remained bare allegations.

      . Service Experts filed a copy of that order with this court, without objection, as supplemental authority.

      . We note that the Northside defendants did not file a counterclaim in this action and that it appears that no malicious prosecution action has yet been filed.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Karen CAPONE, individually, and as Personal Representative of the Estate of Frank Capone, Appellants, v. PHILIP MORRIS U.S.A. INC., Appellee.
    No. 3D09-3331.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Rehearing and Rehearing En Banc Denied March 23, 2011.
    J. Michael Fitzgerald, Virginia, for appellants.

      Carlton Fields, Gary L. Sasso and Joseph Hagedorn Lang, Jr., Tampa, and Geoffrey Michael, Arnold & Porter LLP, Washington, D.C., for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SUAREZ, J.

Karen Capone appeals from an order denying her motion for relief from judgment, motion to correct a scrivener’s error, and verified motion to vacate and/or reconsider. We affirm, as Karen Capone is precluded from filing a wrongful death action because the appropriate statute of limitations has run.

In 2005, Karen Capone and her husband Frank filed a complaint against Philip Morris and other cigarette manufacturers, alleging that Frank had sustained certain personal injuries as a result of smoking the Defendants’ cigarettes. Specifically, the complaint contained counts for negligence, strict liability, conspiracy to commit fraudulent misrepresentation and conspiracy to commit fraudulent concealment. Frank died in July 2006. On January 14, 2008, Karen Capone moved to amend the complaint to assert what she claimed was a new cause of action for injured smokers created by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), and moved to substitute herself as the estate’s personal representative. On February 19, 2008, Philip Morris Co. filed a motion to dismiss claiming that the personal injury action was abated when Mr. Capone died and that any action for wrongful death had to be filed as a new lawsuit pursuant to Section 768.20, Florida Statutes (2008). On June 10, 2008, Capone noticed her motions for a September 2, 2008 hearing. On September 2, 2008, nine months after Capone had filed her Motion to Amend and eight months after Philip Morris filed its Motion to Dismiss and two months after the two-year anniversary of Mr. Capone’s death, Plaintiffs motions were brought for hearing. On September 16, 2008, the trial court denied the Motion to Amend and Motion to Substitute and dismissed the case as “barred by the Wrongful Death Act.” Capone then filed her Motion for Reconsideration of Final Dismissal Order.

The problem that now arose was that the motion’s certificate of service to opposing counsel was not dated or signed but was, in fact, in blank. Additionally, Capone could not point to anything to show that the motion was served within the ten-day time period specified by Florida Rule of Civil Procedure 1.530(b). At the hearing, this problem was raised and discussed but the trial court did not rule on it. The trial court subsequently vacated the dismissal and allowed the amended complaint to proceed, and Philip Morris timely filed its Motion to Vacate. A successor judge heard the motion and correctly determined that, in fact, the record did not show that Capone’s Motion to Reconsider was timely filed. The trial court vacated the prior order and dismissed the complaint.

The statute of limitations for a wrongful death action is two years from the date of death. § 95.11(4)(d), Fla. Stat. (2008). Frank Capone died on July 19, 2006. On January 9, 2008, within two years of Mr. Capone’s death, Karen Capone filed a motion to amend the personal injury complaint to include a new cause of action for wrongful death rather than filing a separate suit as required under the Wrongful Death Act, section 768.19, Florida Statutes (2008). By the time the September 2008 hearing on Capone’s Motion to Amend took place, however, the statute of limitations for filing a separate statutory wrongful death action had run.

The original complaint for personal injury could not be amended, on Frank’s death, to include a new wrongful death claim because Florida law establishes that a personal injury claim is extinguished upon the death of the plaintiff, and any surviving claim must be brought as a new and separate wrongful death action— it cannot be brought as an amendment to a personal injury action. See § 768.20 (“[W]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate”); Martin v. United Security Servs., Inc. 314 So.2d 765, 770 (Fla.1975) (upholding section 768.20, and explaining that, “a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action”); ACandS, Inc. v. Redd, 703 So.2d 492, 494 (Fla. 3d DCA 1997) (plaintiffs personal injury action is extinguished and abated even when the plaintiffs death occurs during the trial of his/her case); Niemi, 862 So.2d at 31 (holding that, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021).

Karen Capone argues that her wrongful death claim was not barred by the wrongful death statute of limitations in section 95.11(4)(d), as the Engle opinion allowed her a year from the date of the mandate in that case to bring her suit. This argument does not need to be addressed because Capone’s amended complaint was filed on January 14, 2008, more than one year from the January 11, 2007, Engle mandate. The August 28, 2009 order was correct as the trial court could do nothing else but vacate the prior court’s order allowing the amended complaint.

The trial court correctly dismissed the amended complaint because Frank Capone’s personal injury claim had abated upon his death and Karen Capone was required to file a separate Wrongful Death claim, which she did not do prior to the expiration of the two-year statute of limitation for that cause of action. The trial court also correctly vacated the prior order as Capone’s Motion for Reconsideration was not timely filed.

Affirmed.

      . From this point on the litigation becomes a needless procedural labyrinth when, in fact, all that was needed was for the plaintiff to timely file a wrongful death action.

      . Ordinarily, common law claims for personal injury 'abate' or expire when the person bringing the claim dies. That is, if there is a claim for personal injuries that caused the decedent’s death, there is no survival of the decedent’s personal injury claim. His or her survivor or personal representative must assert a separate, statutory cause of action under section 768.19, the Wrongful Death Act. That statute allows the survivors to bring a claim for their own pain and suffering resulting from the wrongful death of the decedent. See Niemi v. Brown & Williamson, 862 So.2d 31, 33 (Fla. 2d DCA 2003) ("When death is the result of a personal injuiy, the law of Florida essentially substitutes a statutoiy wrongful death action for the personal injuiy action that would otherwise survive under § 46.021” and "a personal injury action only 'abates' [under the Wrongful Death Act] if it is first determined that the personal injury resulted in the plaintiff’s death.”).

      . The order on appeal effectively reinstates the September 16, 2008 Order dismissing the Plaintiffs complaint.

      . The Engle class is described as those “who have suffered, presently suffer, or have died from diseases and medical conditions ... The class consists of all Florida residents fitting the class description as of the trial court's order dated November 21, 1996.... Individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above [insert long list of medical problems and diseases related to smoking] given res judicata effect in any subsequent trial between individual class members and the defendant, provided such action is filed within one year of the mandate in this case.” Engle, 945 So.2d at 1276-77.


author: WOLF, J.

text:
    Cynthia Lynn McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5819.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges her conviction and sentence for trafficking in hydrocodone, raising three issues regarding the “prescription defense.” We affirm the trial court’s denial of the motion for judgment of acquittal but reverse the conviction because the failure to instruct the jury on the “prescription defense” constituted fundamental error under the circumstances of this case.

Appellant was arrested and charged with trafficking in hydrocodone based on her actual possession of a pill bottle, labeled as belonging to her husband, which contained Lorcet tablets. Appellant proceeded on the sole defense theory that she was holding the pills for her husband.

While the State argued appellant’s possession of the pills alone required her conviction, the State introduced evidence which contradicted appellant’s defense. Specifically, the officer testified the pill bottle contained two different colors of Lorcet tablets and the bottle, which apparently had been filled the day before for 60 pills, contained only 13 pills. In addition, the arresting officer testified he asked appellant if she used the pills, and she responded she had used some of the pills in the past.

To explain these relevant inconsistencies, appellant and appellant’s husband testified at trial the husband took Lorcet pills daily for his back problems and collected the monthly Lorcet prescriptions together in one jar, which remained locked in a safe in their home. The husband explained he would take a small number of those pills and put them in a prescription bottle that his wife would carry for him during the day because his work clothing lacked pockets. In addition, appellant testified she told the officer she had taken the pills in the past because she had previously been prescribed Lorcet by the same physician.

I. Motion for Judgment of Acquittal

Appellant first asserts the trial court erred in denying her motion for judgment of acquittal, arguing the State had not rebutted her affirmative defense. The “prescription defense” is codified in section 893.13(6), Florida Statutes (2008), and provides in pertinent part:

(6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice....

As reason dictates, the prescription defense is clearly available to those who have a valid prescription written directly on their behalf for the pills in their possession. O’Hara v. State, 964 So.2d 839 (Fla. 2d DCA 2007) (extending the prescription defense to prosecutions involving trafficking charges); Smith v. State, 965 So.2d 176 (Fla. 2d DCA 2007). However, both appellant and the State concede there is no case in Florida interpreting the validity of the prescription defense in situations in which the prescription is found on another individual who may have an innocent explanation for the possession.

In determining whether the defense is available in these situations, the language of the statute combined with existing state pharmaceutical laws are instructive. Specifically, the use of the term “lawfully obtained” in the statute can be read as authorizing possession to only those individuals who have a legally recognized reason for the possession. Pursuant to section 465.003(6), Florida Statutes (2008), pharmacies may lawfully dispense medications to a consumer or his or her agent. Further, a pharmacist may dispense a schedule III controlled substance “when the pharmacist or pharmacist’s agent has obtained satisfactory patient information from the patient or the patient’s agent.” § 893.04(2)(a), Fla. Stat. (2008). Thus, schedule III controlled substances may be “lawfully obtained” by an agent of the prescription holder who can provide “satisfactory patient information.” An agent is “[o]ne who is authorized to act for or in place of another.” Black’s Law Dictionary 68 (8th ed. 2004).

Here, appellant asserted she was holding her husband’s pills on his behalf, and this allegation, if taken as true, established an agency relationship authorizing her possession of the pills pursuant to Florida law. However, an inquiry into the correctness of a trial court’s ruling on a motion for judgment of acquittal does not end there. Specifically, “[i]n passing on a motion for judgment of acquittal where a defendant has asserted an affirmative defense, 'the proper test is to determine, first, whether the defendant produced competent evidence of an affirmative defense and, second, whether the state has carried its burden of contradicting that evidence to the extent that a jury issue is made.’ ” B.D.K. v. State, 743 So.2d 1155, 1157 (Fla. 2d DCA 1999) (quoting Williams v. State, 468 So.2d 447, 449 (Fla. 1st DCA 1985)); see also Stinson v. State, — So.3d-(Fla. 1st DCA 2009) (noting appellant retains the burden of proving an affirmative defense and once pi’oved, a motion for judgment of acquittal should be granted if the State cannot overcome the defense through rebuttal or inference in its case in chief).

Appellant and her husband’s testimony provided competent, substantial evidence supporting the prescription defense. However, the State presented evidence (including appellant’s statement to the officer that she took the pills and the questionable nature in which the pills were bottled) which contradicted that innocent explanation, creating a jury question as to appellant’s guilt. Accordingly, the trial court did not err in denying the motion for judgment of acquittal.

II. Jury Instructions and Fundamental Error

In her second issue, appellant asserts fundamental error occurred when the jury was not instructed on the prescription defense. Appellant asserts this error was compounded by the prosecutor’s repeated statements in closing argument informing the jury there was no defense to appellant’s possession of the pills.

In Martinez v. State, 981 So.2d 449, 455 (Fla.2008), the supreme court held the failure to give a jury instruction on an affirmative defense would not constitute per se fundamental error. Instead, “[wjhere the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)). A defendant is deprived of a fair trial if the error divests the defendant of his or her “sole, or ... primary, defense strategy” and that defense is supported by evidence adduced at trial that could not be characterized as “weak.” Id. at 455-57. See also Richards v. State, 39 So.3d 431, (Fla. 2d DCA 2010).

In the underlying case, appellant and appellant’s husband presented the prescription defense for her possession. While the State introduced contradictory evidence refuting the defense, the jury was never instructed they had a choice to accept appellant’s defense. In fact, not only was the jury not told of the defense, but the prosecutor informed the jury:

They want you to say, so what, they’re her husband’s pills, of course she can have them, but you know what you won’t hear, when the Judge reads you the law, you won’t hear that she had a right to have them because, after all, Hydroco-done is a controlled substance.
You will not hear from the judge that it is a defense for this defendant to have the pills because her husband has a prescription. You will not hear that. If you do not hear that, then there is no defense in the law for this defendant to have the pills.

Further compounding the error, the prosecutor explained to the jury “anyone can be charged with trafficking for having pills in them possession.” Based on the foregoing, there is no way of knowing if the jury would have acquitted appellant had it known there existed a prescription defense and it had the option to accept her affirmative defense.

We recognize that where the challenged error involves jury instructions dealing with an affirmative defense, the fundamental error doctrine “‘should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ” Martinez, 981 So.2d at 455 (quoting Smith, 521 So.2d at 108). However, because the defense constituted appellant’s only defense to the charge and there was substantial, albeit conflicting, evidence concerning the defense along with the egregiously incorrect argument from the prosecutor regarding the defense, this is one of those rare cases in which fundamental error has occurred. Accordingly, we reverse and find no need to reach appellant’s third issue asserting ineffective assistance of counsel based on defense counsel’s failure to request the prescription defense instruction.

REVERSED.

ROBERTS and ROWE, JJ., concur.

       Several states with statutory language similar to Florida have held the prescription defense is applicable to those other than the prescription holder. See State v. Waters, 2009-Ohio-6151, 2009 WL 4021193 (Ohio App. 11 th Dist. Nov. 20, 2009) (recognizing the prescription defense could include possessing pills for another but finding facts of the case did not warrant the defense); State v. Miller, 193 P.3d 92 (Utah 2008) (finding temporary possession of pills belonging to another can constitute innocent possession); State v. Blocker, 133 S.W.3d 502, 505-06 (Mo.2004) (finding Missouri statute authorized possession of pills by a family member).


author: RAMIREZ, C.J.

text:
    COMPREHENSIVE HEALTH CENTER, INC., etc., Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D09-3370.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Rehearing Denied March 8, 2011.

      Marlene S. Reiss, Miami, for petitioner.
    Thomas L. Hunker, Miami, for respondent.
    Before, RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.
   RAMIREZ, C.J.

Comprehensive Health Center, Inc. petitions this Court for a Writ of Certiorari. We deny the petition, in part because the appellate division of the circuit court did not depart from the essential requirements of the law when it held it to be unreasonable that claimant Erla Telusnor failed to attend Independent Medical Exam appointments because her lawyer did not tell her about the appointments. We likewise deny certiorari on the appellate division’s ruling regarding the law governing payment of expert witness fees.

Factual Background

On November 14, 2007, Comprehensive filed a complaint on Telusnor’s behalf seeking personal injury protection (PIP) benefits from United. United moved for summary judgment arguing that because Telusnor failed to appear for the required medical exam appointments, she could not receive benefits. Comprehensive filed a cross summary judgment motion, arguing that the insured did not “unreasonably refuse” to attend the examinations because she had no notice of the appointments, as her attorney never told her about them. The trial court agreed with Comprehensive and granted summary judgment in its favor.

United sought to take the depositions of two physicians, Dr. Rudolph Moise, D.O., and Dr. Daryl Schliefer, D.C. United objected to Comprehensive’s protective order asking the trial court to require payment of expert witness fees to these doctors. United argued that as treating doctors, Moise and Schleifer were fact witnesses entitled to no expert witness fees. The trial court disagreed and ordered United to pay $350 up front to each doctor before the depositions.

The appellate division of the circuit court found in favor of United, holding that Telusnor did not have a valid excuse for her non-attendance at the medical exams, when she was represented by counsel and counsel received valid notice.

The appellate division of the circuit court further found that treating physicians may not charge expert witness fees because they do not obtain their information for the purpose of litigation but rather in the course of treating their patients. The court thus declined to award expert witness fees.

Analysis

This petition falls under second-tier certiorari review. The scope of review is thus whether the circuit court denied the petitioner procedural due process or departed from the essential requirements of law to cause a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003).

a. Non-attendance at appointments

Both sides agree that Telusnor did not appear for the medical exam appointments because she said that she never received notice of them, and/or her attorney did not tell her about them. We conclude that Telusnor’s reason for her nonappearance at the medical exam appointments constituted an unreasonable basis to excuse her non-appearance.

First, notice of the medical exam was sent to Telusnor’s attorney through certified mail and to Telusnor through regular mail. Telusnor claims that she would have gone to the exams had she known about them.

Next we turn to the reasonableness of Telusnor’s excuse for her failure to appear. Reasonable versus unreasonable is at issue because of the language of section 627.736(7), Florida Statutes (2009), which states that if a person unreasonably refuses to submit to a medical exam, the PIP carrier is no longer liable for subsequent personal injury protection benefits. By using the term “unreasonably refuses to submit” in subsection 627.736(7)(b), it is logical to deduce there are scenarios where the insured “reasonably refuses to submit” to the examination. U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697 (Fla.2000). Our recent decision in United Automobile Insurance Co. v. Gaitan, 41 So.3d 268 (Fla. 3d DCA 2010), presents one of those scenarios.

In Gaitan, unlike here, there was a reasonable basis that excused non-attendance at a medical exam. This Court held in Gaitan that the circuit appellate court did not misapply the law when it remanded the issue of reasonableness of claimant’s refusal to attend the medical exam on the basis that the claimant had never been treated by a chiropractor. Id. at 268. Te-lusnor’s basis for her non-attendance is entirely different.

Second, Telusnors lack of a valid basis for non-attendance entitled United to the entry of summary judgment in its favor. We have stated that the circuit appellate court does not depart from the essential requirements of law in finding that a medical exam is a condition precedent to a suit for PIP benefits. See Custer Med. Ctr. v. United Auto. Ins. Co., — So.3d-,-(Fla.2010). Furthermore, when the claimant fails to comply without a reasonable excuse, the insurer is entitled to summary judgment if there is no genuine issue of material fact as to the reasons for non-attendance. Tindall v. Allstate Ins. Co., 472 So.2d 1291, 1293 (Fla. 2d DCA 1985). In addition, notice to the attorney constitutes notice to the client. See Fla. R. Civ. P. 1.080(b). When a claimant is represented by counsel and counsel received valid notice via certified mail, it is not a reasonable excuse for nonattendance if counsel did not tell the claimant, just the same as would be an unexplained failure to attend.

b. Expert Witness Fee

The issue before the circuit court was whether Dr. Moise and Dr. Schliefer were fact or expert witnesses. The circuit court relied on Frantz v. Golebiewski, 407 So.2d 288, 285 (Fla. 3d DCA 1981), and reversed the county court’s order which ordered United to pay $350 to each doctor, in advance, because the witnesses had acquired their knowledge “in anticipation of litigation or for trial.” The circuit court correctly decided to apply Frantz. Under the recent Supreme Court decision in Custer, we should only grant second tier review when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice. Even if we believed that the circuit court was erroneous in its conclusion as applied to the facts, we should decline to exercise jurisdiction. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995) (“A decision made according to the form of law and the rules prescribed for rendering it, although it may be erroneous in its' conclusion as to what the law is as applied to facts, is not an illegal or irregular act or proceeding remediable by certiorari.”) (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 526-27 (1882)).

We therefore deny certiorari from the decision of the appellate division of the circuit court.

Petition for Writ of Certiorari denied.


text:
    Melvina Fouad Abou WAKED, Appellant, v. Jean Ibrahim FEGHALI, Appellee.
    No. 3D10-1937.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Rehearing and Rehearing En Banc Denied March 21, 2011.
    Rex E. Russo, Coral Gables, for appellant.
    Eliot R. Weitzman; Orshan, Lithman, Seiden, Ramos, Hatton, Huesmann & Fa-jardo, and Robert P. Lithman, Coral Gables, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

The Appellant, Melvina Fouad Abou Waked, defendant below, seeks to reverse a non-final order denying her motion for summary judgment against her husband, Jean Ibrahim Feghali. We dismiss the appeal because the order from which this appeal is taken is not an appealable non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(c). See, e.g., Vaneo Constr. v. Nucor, 378 So.2d 116 (Fla. 5th DCA 1980) (holding that an order denying a motion for summary judgment is not an appealable non-final order pursuant to rule 9.130).

Dismissed.

      . We recommend that the lower court address the issue of subject matter jurisdiction before proceeding further in this case to determine interest in real property allegedly acquired during the marriage between two foreign nationals.


author: PER CURIAM.

text:
    Domingo RODRIGUEZ, Jr., Petitioner, v. PALM BEACH COUNTY DIVISION OF ANIMAL CARE AND CONTROL, Respondent.
    No. 4D10-3970.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Glenn H. Mitchell, West Palm Beach, for petitioner.
    Shannon Fox, Palm Beach County Attorney’s Office, West Palm Beach, for respondent.
   PER CURIAM.

Domingo Rodriguez seeks certiorari review of the circuit court’s affirmance of a county court’s forfeiture judgment. We grant the petition, holding that the circuit court, in its appellate capacity, failed to apply the correct law when it affirmed the county court’s denial of Rodriguez’s motion to suppress filed in the forfeiture proceedings. The same motion was also the subject of this court’s published decision reversing Rodriguez’s related criminal conviction.

The Palm Beach County Division of Animal Care and Control filed a petition in the county court seeking forfeiture of Rodriguez’s animals pursuant to section 828.073, Florida Statutes (2007). The seizure of the animals was based on a search warrant that was executed on Rodriguez’s home and property.

In addition to the forfeiture proceedings, the State charged Rodriguez with animal fighting. Rodriguez was convicted and sought appellate review of his conviction and sentence in this court. One of the appellate issues in the criminal case concerned the trial court’s refusal to suppress evidence because the search warrant was invalid. Rodriguez v. State, 29 So.3d 357, 357-58 (Fla. 4th DCA 2010).

Meanwhile, in the forfeiture proceedings, the county court similarly denied Rodriguez’s motion to suppress, and after a hearing, entered a final judgment of forfeiture against Rodriguez. Rodriguez sought appellate review in the circuit court.

While that appeal was pending, this court issued the decision in Rodriguez’s criminal case. This court reversed the conviction, agreeing with Rodriguez that the search warrant was invalid and that the trial court should have granted the motion for judgment of acquittal because the evidence was legally insufficient to support the conviction. Id. at 357, 360-61. Ultimately, this court directed that Rodriguez be acquitted and discharged. Id. at 358, 361.

Rodriguez filed a notice in the circuit court of his intent to rely on that decision to support a challenge to the denial of the motion to suppress. However, the circuit court affirmed the county court’s judgment.

We reject the County’s position that our comments in Rodriguez are dicta and note that Rodnguez is dispositive of the instant case. Jeopardy attached in the criminal proceedings, and because this court addressed the validity of the exact search warrant at issue in Rodriguez and determined that it was invalid, the circuit court was required to apply this court’s law. See In re Forfeiture of a 1981 Ford Auto., 432 So.2d 732, 733 (Fla. 4th DCA 1983). Therefore, the circuit court departed from the essential requirements of law and applied the wrong law when it failed to abide by this court’s precedent. See Custer Med. Ctr. v. United Auto. Ins. Co., — So.3d-(2010); see also Powell v. City of Sarasota, 857 So.2d 326, 327-28 (Fla. 2d DCA 2003) (granting petition for writ of certiorari where circuit court sitting in its appellate capacity failed to follow binding precedent of the second district).

Accordingly, we grant the petition for writ of certiorari.

Petition granted.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.

      . The circuit court granted relief, in part, with respect to the county court’s jurisdiction limit of $15,000.00.


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Derrick M. ODOM, Appellee.
    No. 5D09-3997.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.

      Pamela Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellee.
   EVANDER, J.

The State appeals from an order granting Derrick Odom’s post-verdict motion for judgment of acquittal on the charge of trafficking in methamphetamine. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(l)(E)(State may appeal order granting motion for judgment of acquittal after jury verdict). Because the State presented sufficient evidence to support the jury verdict, we reverse.

Odom was charged with, inter alia, manufacturing of methamphetamine, possession of drug paraphernalia, and trafficking in methamphetamine. Three co-defendants were also charged with manufacturing of methamphetamine and trafficking in methamphetamine. However, they entered into plea agreements with the State and subsequently testified at Odom’s trial.

The evidence, taken in the light most favorable to the State, reflects that at approximately 5:30 p.m. on September 12, 2008, detectives began conducting surveillance of Odom’s residence, a single-wide trailer. Two of the co-defendants were observed entering the trailer at approximately 10:00 p.m. About an hour later, Odom arrived in a pick-up truck and entered the residence. Odom was later observed carrying large boards out to the truck, backing the truck over the boards, and then re-entering the trailer.

Around midnight, a marked deputy’s vehicle was brought to the scene because the detectives decided to conduct a “knock and talk.” The smell of acetone (a chemical used in the manufacture of methamphetamine) could be detected seven to ten feet from the trailer. When an officer knocked on the front door, Odom exited the back door. After being stopped, Odom advised a deputy that three children were in the residence. Deputies went into the residence and observed the three co-defendants-one of whom was attempting to pour a liquid from a Mason jar down the kitchen sink. The deputies directed the co-defendant to cease from any effort to dispose the liquid, and then located the three children. All of the individuals were then removed from the trailer so they could be decontaminated by a hazardous response unit. After obtaining a search warrant, the detectives re-entered the trailer to conduct a search.

Inside the trailer, the detectives found what was described as an “active meth lab.” The substance which a co-defendant had attempted to pom- down the sink was identified as pseudoephedrine. Fifty-four and one-tenth (54.1) grams of the pseu-doephedrine was recovered. The detectives also found numerous chemicals, products, and equipment commonly used for the manufacture of methamphetamine.

In the pick-up truck that had been driven by Odom, a two-liter Mountain Dew bottle was found beneath a tool box. The bottle contained 434.7 grams of a liquid containing methamphetamine. The large boards that detectives had witnessed Odom carry outside and back-over with the truck had newspaper present between them. Inside the newspaper were iodine crystals — a necessary ingredient for the production of methamphetamine. The truck was found to be registered to Odom’s stepmother.

At trial, two of the co-defendants testified that on the day in question, Odom was actively engaged in the manufacturing of methamphetamine. They detailed Odom’s specific activities in furthering the manufacturing process. The final methamphetamine product had not been generated pri- or to law enforcement intervention.

At the conclusion of the State’s case, Odom moved for a judgment of acquittal on all counts. On the trafficking count, Odom’s argument was that the State failed to prove that he had knowledge of the presence of the pseudoephedrine found in the house or the methamphetamine found in the truck, or that he was ever in possession of same. The trial court reserved ruling on this count.

The jury ultimately returned a verdict, finding Odom guilty of 1) the lesser included offense of attempted manufacture of methamphetamine; 2) possession of drug paraphernalia; and 3) trafficking as charged with a special finding that the quantity involved was twenty-eight (28) grams or more but less than two hundred (200) grams.

Odom subsequently renewed his motion for judgment of acquittal as to the trafficking count. He argued that the jury verdict must have been based on the methamphetamine found in Odom’s stepmother’s truck and the State had not produced sufficient evidence to establish that Odom had actual or constructive knowledge of the illegal drugs found in the truck. The State argued that the trafficking amount found by the jury (between 28 and 200 grams) was consistent with the 54.1 grams of pseudoephedrine found in Odom’s residence and which a co-defendant was attempting to pour in the sink when deputies entered the trailer. The State further correctly observed that while the manufacturing count referenced methamphetamine only, the trafficking count brought against Odom alleged that he had unlawfully and knowingly manufactured or possessed methamphetamine and/or pseudoephed-rine. The trial court granted Odom’s motion without explanation.

A motion for judgment of acquittal challenges the legal sufficiency of the evidence. Bufford v. State, 844 So.2d 812, 813 (Fla. 5th DCA 2003). The motion should be denied if the State presents competent evidence to establish each element of the offense. Id. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact-finder might fairly infer from the evidence. Id. The record is reviewed de novo to determine whether sufficient evidence supports the verdict. Id.

Here, the State produced sufficient evidence on the trafficking count to support the jury’s verdict. The second amended information filed against Odom alleged that he did “unlawfully and knowingly ... manufacture ... or have in his possession a controlled substance, to wit: Methamphetamine and/or Pseudoephed-rine, or a mixture containing Methamphetamine or Pseudoephedrine ...” Even assuming, without so holding, that the State’s evidence was insufficient to prove Odom manufactured or possessed the methamphetamine found in the pick-up truck, the evidence was sufficient as to the 54.1 grams of pseudoephedrine located in plain view in Odom’s residence.

First, the evidence was sufficient to establish that Odom had participated in the manufacturing of the pseudoephedrine. One co-defendant specifically testified that Odom had applied chemicals to Sudafed pills to extract the ephedrine, and another co-defendant testified that Odom had given instructions to further the manufacturing process.

Alternatively, the evidence was more than sufficient to permit the jury to determine that Odom had been in constructive possession of the pseudoephed-rine. Constructive possession exists where a defendant does not have actual, physical possession of the controlled substance, but knows of its presence on or about the premises, and has the ability to exercise and maintain control over the contraband. Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007). Possession of illegal drugs may be by joint constructive possession. Armbruster v. State, 453 So.2d 833, 834 (Fla. 4th DCA 1984). Thus, the State may prove joint possession by two or more defendants without proving actual physical possession by any one defendant. Id. at 834-35.

If the possession is non-exclusive, knowledge of the presence of the contraband and the ability to control it cannot be inferred, but must be established by independent proof. J.A.C. v. State, 816 So.2d 1228, 1229 (Fla. 5th DCA 2002). Proof of the knowledge element may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises. Ball v. State, 758 So.2d 1239, 1241 (Fla. 5th DCA 2000). Where a defendant does not have exclusive possession of the premises, proof of the control element can still be met where the contraband is located in plain view in a common area. Brown v. State, 428 So.2d 250, 252 (Fla. 1983). The Brown case is particularly instructive. There, law enforcement officers found several pounds of marijuana and lesser quantities of hashish and PCP scattered, in plain view, throughout Brown’s residence. The issue raised on appeal by Brown was whether those facts created a prima facie case of constructive possession. The Florida Supreme Court affirmed Brown’s conviction, stating:

In the instant case the knowledge element is met because the contraband was in plain view in common areas throughout the house. The dominion and control element is met because Brown, as resident owner of his home, had control over the common areas. Therefore, the elements of knowledge and control have been satisfied, and, as the district court found, the facts presented at trial were sufficient to create a jury question as to constructive possession.

Brown, 428 So.2d at 252 (footnote omitted).

Here, as in Brown, there was evidence that Odom was the occupant of the mobile home where the pseudoephedrine was seized, that the pseudoephedrine was in plain view and in a common area, and further, that Odom had been involved in its manufacture. It was error for the trial court to have granted Odom’s motion for judgment of acquittal.

REVERSED and REMANDED for reinstatement of the jury’s verdict and sentencing on that charge.

COHEN and JACOBUS, JJ., concur.

      . §§ 893.13(l)(a) and 893.03(2)(c)4„ Fla. Stat (2008).

      . §§ 893.145 and 893.147, Fla. Stat. (2008).

      . §§ 893.135(l)(f) and 893.03(2)(c), Fla. Stat. (2008).

      . Ephedrine and pseudoephedrine are products commonly used in the illegal manufacture of methamphetamine.


text:
    Ernest Elvert LYONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3548.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Rehearing Denied March 8, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
   PER CURIAM.

Appellant pled no contest to driving while his license was canceled, suspended, or revoked (DWLSR) — third conviction. He had no agreement with or offer from the State on a sentence. He normally would have faced a maximum sentence of five years in prison for the third-degree felony. See §§ 322.34(2)(c), 775.082(3)(d), Fla. Stat. (2009). But because his score-sheet reflected only 10.7 sentence points, the presumptive maximum sentence pursuant to section 775.082(10), Florida Statutes, was a nonstate prison sanction. As permitted by the statute, the trial court found that Appellant could pose a danger to the public if a nonstate prison sanction were imposed, and sentenced Appellant to 30 months in prison with 32 days’ credit for time served. Appellant argues on appeal that the court’s written findings are insufficient to satisfy section 775.082(10), and that the court improperly used his prior DWLSR convictions to justify the prison sentence.

“A sentencing error may not be raised on appeal unless the alleged error has been first brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” Fla. R. App. P. 9.140(e). See Fla. R. Crim. P. 3.800(b) (permitting a motion to correct any sentencing error to be filed before or pending appeal). Appellant concedes he did not argue at sentencing that the trial court could not consider his prior record in determining whether a nonstate prison sanction is appropriate. And the record does not reflect that Appellant raised either the trial court’s reliance on his prior record or the adequacy of the court’s written findings in a rule 3.800(b) motion. Thus Appellant preserved neither issue for appeal. Accordingly, we affirm the sentence.

AFFIRMED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: WARNER, J.

text:
    Paul A. SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-844.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Rehearing Denied April 6, 2011.
    Paul A. Small, Fort Pierce, pro se.
    No appearance required for appellee.
   WARNER, J.

In this appeal of the trial court’s denial of appellant’s motion for postconviction relief from his convictions for three counts of grand theft, appellant claims that the convictions are void for lack of jurisdiction of the Office of Statewide Prosecutor. Specifically, he claims that because the information did not allege facts showing that the crimes were committed in two different judicial circuits, the convictions were void. We affirm, holding that the information alleged the necessary allegations of two-circuit involvement.

In 2004 appellant was charged with multiple crimes, all being prosecuted by the OSP. With respect to this case, the OSP charged him with 19 counts alleging various crimes. The information made general allegations that the offenses “occurred in two or more judicial circuits as part of a related transaction or in connection with an organized criminal conspiracy affecting two or more judicial circuits.” It did not allege the specific counties or circuits in which the transactions occurred. He filed a motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190, but before it was heard, he pled to three charges of grand theft for an agreed concurrent sentence of 38.5 months, which he had already served, and the state agreed to file a nolle prosequi on the remaining charges. As part of the plea agreement, he agreed to waive his right to file any appeals or postconviction motions in this case. If he violated his agreement, the state could prosecute him for all 19 charges. At the plea colloquy the defense admitted that the state could prove the facts of the case, including that the offenses occurred in Palm Beach, Broward, and Duval Counties. The trial court accepted the plea and sentenced him accordingly in 2007.

In 2009, appellant filed a motion for postconviction relief claiming that his convictions were void because the information did not contain any facts setting forth the places within two or more judicial circuits where the criminal conduct occurred, and therefore it did not invoke the OSP jurisdiction. The state responded that it had alleged general allegations that the offenses were committed within two or more judicial circuits, which language was sufficient to invoke the OSP jurisdiction. See Winter v. State, 781 So.2d 1111, 1116 (Fla. 1st DCA 2001); State v. Nuckolls, 677 So.2d 12, 15 (Fla. 5th DCA 1996); Zanger v. State, 548 So.2d 746, 748 (Fla. 4th DCA 1989). The trial court denied the motion, prompting this appeal.

Where an information fails to allege the necessary jurisdictional allegations to support OSP jurisdiction, the information is fatally defective, and a resulting conviction is void. See Zanger, 548 So.2d at 748. The information in this case did not contain the exact judicial circuits involved but stated that the crimes occurred in two or more judicial circuits and were part of a related conspiracy. In Nuckolls the court considered a similar argument that the information failed to invoke the jurisdiction of the court because it did not properly allege facts to show the jurisdiction of the OSP to file the charges. The court rejected the challenge, finding that the information contained the general statutory language which was sufficient to fulfill the jurisdictional requirements. That language is identical to the language in the information in this case. See Nuckolls, 677 So.2d at 15; see also Winter v. State, 781 So.2d at 1116-17 (Fla. 1st DCA 2001) (holding that similar language provided a sufficient general jurisdiction allegation). Although in 2009 the Legislature amended section 16.56(l)(a), Florida Statutes, to require that the information state the judicial circuits and counties in which the crimes allegedly occurred, that provision was not in effect at the time the information in this case was filed.

The information filed in this case tracked the general language approved in Nuckolls and Winter to invoke the jurisdiction of the OSP. Even though the court in Winter found that the allegations in the information were adequate, it nevertheless allowed for the defense to challenge the factual basis of OSP jurisdiction by a properly filed motion to dismiss. The Winter court clarified that in such a case, the trial court should hold an evidentiary hearing to allow the court to determine whether the facts actually supported the jurisdictional allegations. Here, in contrast, during the plea colloquy the defense admitted that the state could prove the allegations of the complaint, including that the crimes occurred in several counties comprising at least two judicial circuits. Having admitted facts sufficient to support OSP jurisdiction, the appellant has failed to show that his conviction was void for lack of jurisdiction.

We distinguish Luger v. State, 983 So.2d 49 (Fla. 4th DCA 2008). In Luger we misconstrued Winter to hold that the general allegations of OSP jurisdiction were insufficient, where in fact Winter stated that such allegations were sufficient. Nevertheless, we appropriately remanded for an evidentiary hearing to determine the facts supporting OSP jurisdiction, as permitted in Winter, because in Luger there had been no concession as to the jurisdiction of the OSP. Here, at the plea hearing the State specifically stated as part of the factual predicate, to which the defendant agreed, that the crimes affected two different judicial circuits. Therefore, a sufficient factual predicate to OSP jurisdiction was present.

Affirmed.

CIKLIN and LEVINE, JJ„ concur.


text:
    Sylvester L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1353.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Sylvester L. Brown, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009); Logan v. State, 21 So.3d 917 (Fla. 4th DCA 2009).

STEVENSON, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Guillermo FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1356.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Rehearing Denied April 6, 2011.
    Guillermo Foster, Mayo, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Roker v. State, 25 So.3d 647 (Fla. 4th DCA 2010); Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009). Because appellant’s filings have become successive, repetitive and frivolous, we also affirm the trial court’s entry of a Spencer order. See State v. Spencer, 751 So.2d 47 (Fla.1999).

GROSS, C.J., WARNER and GERBER, JJ., concur.


text:
    LA MIRAGE OF HARBOR VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellant, v. NEEDHAM ROOFING, INC., Appellee.
    No. 3D10-674.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Hyman, Spector, & Mars, Jeffrey S. Respler, and Michael L. Hyman, Miami, for appellant.
    The Soto Law Group, Oscar E. Soto, and Felena Talbott, Fort Lauderdale, for ap-pellee.
    Before GERSTEN, WELLS and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.540(b).


text:
    Shamond BYRD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1691.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Rehearing and Rehearing En Banc Denied March 29, 2011.
    Shamond Byrd, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS and SALTER, JJ., SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Cúbelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010); Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010).


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. H REHAB, INC. a/a/o Martha Alava, Respondent.
    No. 3D10-3234.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Rehearing and Rehearing En Banc Denied March 28, 2011.

      Seipp & Flick, and Douglas H. Stein, Miami, for petitioner.
    Stuart Yanofsky, for respondent.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Petitioner State Farm Fire & Casualty Company seeks review of the decision of the circuit court, sitting in its appellate capacity, in which the court affirmed an order granting respondent H Rehab, Inc., etc.’s motion to compel production of a surveillance video prior to having the opportunity to depose the subjects of the video. We grant the petition because the circuit court violated a clearly established principle of law.

This Court ordered the respondent to file a response to the petition and address the case of Dodson v. Persell, 390 So.2d 704 (Fla.1980). The respondent did not do so. In Dodson, the Florida Supreme Court held that a party is not required to produce surveillance video unless the party is going to introduce the video as evidence, and if so, not until the surveilling party has had the opportunity to depose the subject of the video. Id. at 708.

Here, the circuit court did not permit State Farm the opportunity to depose the plaintiff and insured, the subjects of the video, prior to the production of the video. This is contrary to the principles outlined in Dodson.

We therefore grant the petition, quash the order under review, and remand this case with instructions that State Farm is not required to produce the surveillance video prior to State Farm having taken the deposition of the plaintiff and insured.


text:
    SOUTHERN DEVELOPERS & EARTHMOVING, INC., a Florida corporation; and R. Anthony Gill, a/k/a Ronald A. Gill, Appellants, v. CATERPILLAR FINANCIAL SERVICES CORPORATION, Appellee.
    Nos. 2D09-6011, 2D10-5669.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2011.

      Joseph R. Fritz, Tampa, for Appellants.
    Nicolette C. Vilmos of Broad & Cassel, Orlando, for Appellee.
   VILLANTI, Judge.

Southern Developers & Earthmoving, Inc., and R. Anthony Gill, a/k/a Ronald A. Gill, appeal the final summary judgment entered in favor of Caterpillar Financial Services Corporation (CAT) in its action for a deficiency judgment under a promissory note and security agreement covering industrial earthmoving equipment that CAT sold to Southern and subsequently repossessed. Because CAT failed to prove the amount of the deficiency judgment to which it was entitled, summary judgment was improperly granted in its favor. Therefore, we reverse the final summary judgment and remand for further proceedings. This ruling requires us also to reverse the subsequent final judgment for attorney’s fees entered in favor of CAT.

In 2003, Southern purchased five pieces of industrial earthmoving equipment from CAT. Southern executed a promissory note and security agreement as part of the purchase, and Gill signed a personal guaranty of the note. The following year, Southern allegedly breached the terms of the note by failing to make the payments as required. Based on the terms of the security agreement, CAT retook possession of the equipment. CAT subsequently sold four pieces of the equipment through a private sale and the remaining piece of equipment through an Internet auction. When those sales did not produce funds sufficient to cover the amount due under the note, CAT sued Southern for its alleged breach of the note, and it sued Gill for his alleged breach of the personal guaranty.

CAT’s amended complaint alleged that it had sold the repossessed equipment in a commercially reasonable manner but had recovered less than the amount of the debt owed by Southern. CAT therefore sought a deficiency judgment from Southern. In its answer, Southern specifically denied that the sale of the repossessed equipment had been done in a commercially reasonable manner, and it also raised this claim as an affirmative defense.

CAT subsequently filed a motion for summary judgment, in which it again asserted that it had sold the repossessed equipment in a commercially reasonable manner. In support of its motion, CAT filed the affidavit of a “Special Accounts Representative,” who alleged that proper notice was given to Southern and Gill of both of the intended private sales and the subsequent Internet auction. The affidavit also authenticated the various sale notices that were sent to both Southern and Gill and alleged again that the sales were all commercially reasonable. However, neither the affidavit nor the motion provided any details of the sales transactions themselves. CAT did not file any of the contracts or purchase orders relating to the sales, and it submitted nothing to establish what amount it obtained for each piece of repossessed equipment. Further, neither CAT’s motion nor its affidavit included any facts concerning the general practices and methodology of selling used equipment in the industrial earthmoving equipment industry.

In response to CAT’s motion for summary judgment, Southern filed Gill’s affidavit in which he alleged that, based on his experience in owning and using industrial earthmoving equipment, sale of the repossessed equipment through private sales or Internet auctions was not a commercially reasonable practice in the industrial earth-moving equipment industry. Gill alleged that this type of equipment was more usually sold through public auctions specifically held for this purpose. Attached to Gill’s affidavit was a letter from Richie Brothers Auctioneers, which indicated that Richie Brothers would have purchased the equipment for $730,000 — an amount $22,589.40 more than what CAT had obtained through its private sale and Internet auction. This unsigned letter from Richie Brothers was not sworn or certified, nor was it otherwise authenticated in Gill’s affidavit. Further, Gill alleged in his affidavit that the $730,000 figure from Richie Brothers was not a firm price for the equipment but rather was a “floor” below which the auction price for the equipment would not go.

Despite this apparent factual dispute concerning whether the sale of the repossessed equipment was commercially reasonable and despite the lack of any documentation from CAT concerning the details of the sales it conducted, the tidal court granted final summary judgment in favor of CAT in the amount of $140,812. This figure is the amount of the debt less the amount recovered by CAT through its private sale and Internet auction less the $22,589.40 difference between CAT’s recovery and the amount listed in the Richie Brothers’ letter. Notably, the judgment contains no finding of fact as to whether either sale of the repossessed equipment was conducted in a commercially reasonable manner. Southern and Gill now seek review of this final judgment.

Under Article 9 of the Uniform Commercial Code, as codified in section 679.609(1), Florida Statutes (2006), a secured party, such as CAT, may take possession of collateral after a default by the debtor. The secured party then “may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.” § 679.610(1). However, if the secured party wishes to preserve its right to seek a deficiency judgment, the secured party is not at liberty to dispose of the repossessed collateral in any manner it wants. Instead, “[ejvery aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable.” § 679.610(2). This rule is in place “ ‘to protect the debtor, because [it] help[s] prevent the creditor from acquiring the collateral at less than its true value or unfairly understating its value so as to obtain an excessive deficiency judgment.’ ” Burley v. Gelco Corp., 976 So.2d 97, 100 (Fla. 5th DCA 2008) (quoting Allen v. Coates, 661 So.2d 879, 884 (Fla. 1st DCA 1995)).

If a secured party elects to repossess and resell its collateral, the debtor is liable for any deficiency remaining after the sale as a matter of law. See § 679.608(l)(d); see also Weiner v. Am. Petrofina Mktg., Inc., 482 So.2d 1362, 1364 (Fla.1986). However, the amount of the deficiency judgment to which the secured party is entitled is a matter of fact, not law. To establish entitlement to a deficiency judgment in a certain amount, the secured party must show that its disposition of the collateral was commercially reasonable but nevertheless resulted in the recovery of an amount less than the amount of the secured debt. Burley, 976 So.2d at 101. Accordingly, if the debtor places the commercial reasonableness of the disposition of collateral “in issue,” the secured party has the burden to establish that every aspect of that disposition was commercially reasonable. See § 679.626(2); see also Weiner, 482 So.2d at 1364-65; Burley, 976 So.2d at 100. Alternatively, the secured party may concede that its disposition of the collateral was commercially unreasonable, introduce evidence to prove the fair market value of the collateral at the time of repossession, and allow the debtor an additional credit for the difference between the fair market value and the amount obtained by the secured party at the commercially unreasonable sale. See Weiner, 482 So.2d at 1364. As applicable to this case, “commercial reasonableness” is defined as a disposition “in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.” § 679.627(2)(e).

Here, CAT’s pleadings and its affidavit in support of its motion for summary judgment specifically alleged that its sales of the repossessed equipment were commercially reasonable. Southern disputed the commercial reasonableness of the sales in its pleadings. Thus at the summary judgment hearing, the commercial reasonableness of the sales was in issue and, to be entitled to summary judgment in its favor, CAT was required to establish that it sold the repossessed equipment “in conformity with reasonable commercial practices among dealers” of industrial earthmoving equipment. However, CAT submitted absolutely no evidence to satisfy its burden on this issue.

The only evidence offered by CAT in support of its motion for summary judgment was the affidavit of its “Special Accounts Representative” with the attached notices of sale. While this evidence shows that CAT complied with the procedural requirements of section 679.611, it does not bear on the question of whether the sales themselves were conducted in conformity with the reasonable commercial practices among dealers in the industrial earthmoving equipment industry. On the issue of commercial reasonableness, CAT failed to submit the purchase contracts for any of the pieces of repossessed equipment or any information to establish the sale price it obtained for any single piece of the repossessed equipment. Nor did CAT submit any evidence to support its implied assertion that the prices it obtained through the private sale and Internet auction were higher than those it could have obtained by selling the repossessed equipment through other means. CAT also presented no evidence concerning how contracts for the sale of used industrial earthmoving equipment are customarily reached within the industry and whether private sales and Internet auctions are commonly used. Thus, there was simply no evidentiary basis upon which the trial court could have found that CAT’s sale of the repossessed equipment was commercially reasonable, and because CAT failed to carry its evidentiary burden to establish commercial reasonableness, it was not entitled to final summary judgment in its favor.

In this appeal, CAT contends that the issue of damages is moot because it established the amount of the deficiency judgment through the alternative method of proving that the amount it recovered through its sales was less than the fair market value of the repossessed equipment. We first note that CAT never alleged or asserted this alternative measure of damages in any pleading. Instead, CAT’s position until the very start of the hearing on the motion for summary judgment was that its sales were commercially reasonable and that it was entitled to a deficiency judgment measured by the difference between the amount of the debt and the amount obtained through its sales of the equipment. Southern had no notice that CAT would concede commercial unreasonableness at the hearing and then attempt to obtain a deficiency judgment based on an alternative measure of damages. Thus, we question whether the trial court properly granted CAT’s motion based on a measure of damages raised for the first time at the hearing on the motion for summary judgment.

However, even if this measure of damages was properly considered by the court, CAT failed to meet its burden of proof. When a sale of collateral is commercially unreasonable, a presumption arises that “the fair market value of the collateral at the time of repossession was equal to the amount of the total debt that it secured.” Weiner, 482 So.2d at 1365. To overcome this presumption, the secured party must offer evidence to prove that the fair market value of the collateral was less than the amount of the debt. Id. Until CAT offered such evidence, it was not entitled to a deficiency judgment at all.

Here, CAT offered no evidence to establish the fair market value of the equipment at the time of repossession. Instead, it “conceded” to the amount included in the Richie Brothers’ letter. But when Southern attempted to use the Richie Brothers’ letter to prove commercial unreasonableness, the trial court specifically declined to accept the letter as evidence. The court properly noted that the letter was not sworn to or otherwise authenticated so as to make it admissible into evidence. Having rejected the letter as inadmissible when offered by Southern, the court could not then allow CAT to rely on the same inadmissible letter as proof of fair market value because a summary judgment may not be predicated on inadmissible evidence. See Fla. R. Civ. P. 1.510(c), (e) (providing that a motion for summary judgment must be based on the “affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence” and that “[sjworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto”). Thus, CAT failed to rebut the presumption that the fair market value was equal to the amount of the debt and so was not entitled to a deficiency judgment in its favor.

Because we are reversing the final summary judgment in favor of CAT, we must address two other issues. First, we must reverse the final judgment for attorney’s fees entered in favor of CAT based on the prevailing party attorney’s fee provision in the security agreement. Paragraph 11 of the security agreement provides for an award of attorney’s fees if CAT is required to take any action to enforce the agreement or its accompanying promissory note. The record shows that the fee judgment at issue was entered based solely on a finding that CAT had prevailed in its action on the promissory note by having summary judgment entered in its favor. Hence, because we are reversing the final summary judgment on the note, we must also reverse the final judgment for attorney’s fees and remand for reconsideration of the fee motion at the conclusion of the trial court proceedings on remand.

Second, we must reverse the trial court’s earlier ruling denying Southern’s motion for leave to amend its answer. Two months after CAT filed its motion for summary judgment but while discovery was still ongoing, Southern filed a motion seeking leave to amend its answer to add a counterclaim for damages based on the alleged loss of a surplus over the amount of the outstanding debt that would have been received had CAT sold the repossessed equipment in a commercially reasonable manner. Despite the fact that discovery was ongoing and no hearing had yet been set on CAT’s motion for summary judgment, the trial court denied this motion.

“Public policy favors the liberal amendment of pleadings so that cases may be decided on their merits.” EAC USA, Inc. v. Kawa, 805 So.2d 1, 5 (Fla. 2d DCA 2001) (citing Craig v. E. Pasco Med. Ctr., Inc., 650 So.2d 179 (Fla. 2d DCA 1995)); see also Fla. R. Civ. P. 1.190 (providing that “leave of court [to amend pleadings] shall be given freely when justice so requires”). All doubts must be resolved in favor of allowing the amendment of pleadings. See EAC USA, Inc., 805 So.2d at 5. Because of this policy favoring the liberal amendment of pleadings, refusal to permit an amendment constitutes an abuse of discretion unless (1) the privilege to amend has been abused, (2) the amendment would be futile, or (3) the amendment would prejudice the opposing party. See id.; Carter v. Ferrell, 666 So.2d 556, 557 (Fla. 2d DCA 1995).

Here, the record does not show that CAT established that any of these three exceptions to the liberal policy of permitting amendments existed. First, Southern had not abused its privilege to amend because it had not sought leave to amend its answer at any time prior to the filing of the motion at issue. Second, Southern’s proposed amendment would not have been futile because section 679.625(4) specifically provides that “[a] debtor whose deficiency is eliminated under s. 679.626 may recover damages for the loss of any surplus.” Third, there is nothing in the record to show that CAT would have been prejudiced by Southern’s amendment, particularly since the proposed counterclaim arose from the same transaction as CAT’s claim, discovery was still ongoing, and CAT’s motion for summary judgment had not been set for hearing when Southern sought leave to amend.

Given these facts, the trial court abused its discretion by denying Southern’s motion for leave to amend its answer to add a counterclaim. Therefore, on remand, the trial court should give Southern the opportunity to amend its answer to add this counterclaim should Southern still wish to do so.

Reversed and remanded for further proceedings.

DAVIS and SILBERMAN, JJ., Concur.

      . CAT originally noticed the sale of all five pieces of equipment through private sales. The first notice, dated September 30, 2004, scheduled a private sale of four pieces of the equipment for October 11, 2004. The second notice, dated December 8, 2004, scheduled the private sale of the remaining piece of equipment, a "Caterpillar D6MLGP track-type tractor,” for December 20, 2004. For reasons undisclosed by the record, the December 20 private sale was not completed. Instead, on March 28, 2005, CAT sent a new “notice of public sale” for that tractor, indicating that the new notice "took precedence over the previous notice” and indicating that the tractor would be sold at an Internet auction on April 7, 2005. Apparently this tractor was sold at this Internet auction.


text:
    Emilio NOGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3246.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Rehearing Denied March 22, 2011.
    Emilio Noguez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Scott v. State, 629 So.2d 888 (Fla. 4th DCA 1993).


author: POLEN, J.

text:
    MERGENET SOLUTIONS, INC., Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D09-4449.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Michael F. Huber and R. Hugh Lump-kin of Ver Ploeg & Lumpkin, P.A., Miami, and Leonard S. Surdyk of Surdyk & Baker, Chicago, IL, for appellant.
    David W. Grossman of Vernis & Bowling of Miami, P.A., North Miami, and Scott L. Carey of Bates & Carey LLP, Chicago, IL, for appellee.
   POLEN, J.

Appellant, Mergenet Solutions, Inc., appeals the trial court’s order granting Ap-pellee, Carolina Casualty Insurance Company’s, motion for judgment on the pleadings. We affirm.

This case involves two underlying actions: one against Mergenet and one third-party counterclaim against Mergen-et’s wholly owned subsidiary, Innomed Technologies, Inc. In each case, the plaintiff essentially claims that Mergenet and Innomed obtained an ownership interest in a patent held, at least in pai’t, by the plaintiff, without fairly compensating the plaintiff. Carolina Casualty issued a Management Liability Policy to Mergenet from December 2002 to December 2003 and again from December 2003 to December 2004. After Carolina Casualty denied coverage of the claims, Mergenet filed an action for declaratory relief seeking a determination of Carolina Casualty’s duty to defend and indemnify Mergenet against the lawsuits. Carolina Casualty ultimately filed a motion for judgment on the pleadings, which the trial court granted after finding that Carolina Casualty owed a duty neither to defend nor indemnify either underlying claim because the claims came within the policy’s Intellectual Property Rights Exclusion.

The policy’s Intellectual Property Rights Exclusion provides, in part, that Carolina Casualty shall not be liable for loss in connection with a claim “based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving any actual or alleged ... intellectual property rights.” Such a broad exclusion certainly applies to the claims involved in the instant case which arise out of plaintiffs alleged ownership of the patents acquired by Mergenet and Innomed. See Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1448 (11th Cir.1998) (stating that there are three principal forms of intellectual property rights which include copyright, patent, and trademark). The trial court correctly granted the motion for judgment on the pleadings.

Affirmed.

WARNER and STEVENSON, JJ., concur.