author: GERBER, J.

text:
    Riley James SHELTON, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4813.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Rehearing Denied May 18, 2011.

      Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

A jury convicted the defendant of home invasion with a firearm and attempted sexual battery with threat of force. The circuit court sentenced the defendant to life in prison on the home invasion charge and to a concurrent fifteen years in prison on the attempted sexual battery charge. In this appeal, the defendant argues that the circuit court used his lack of remorse against him in imposing the life sentence on the home invasion charge and thereby committed error. We find that the court did not use the defendant’s lack of remorse against him in imposing the life sentence. Therefore, we affirm.

We provide the court’s entire statement from the sentencing hearing to put in context the court’s discussion regarding the defendant’s lack of remorse:

Okay sir, based on the jury verdict in this case, on Count 1 home invasion robbery with a firearm as charged, I’ll adjudicate you guilty of that offense. Count 2 attempted sexual battery ... on a ... person of 12 years of age or older with threat of force as charged, I’ll adjudicate you guilty of that offense. You know ... it’s interesting, I’ve .... read through the PSI, I’ve listened to all the comments here today, and I certainly feel very badly for your mother. No ... parent should ever have to be in a position of standing in a courtroom watching one of their children enduring something like this, but, you know, the interesting thing is [the victim] regardless of ... her age, she’s somebody else’s child as well, and she did not have to go through all of this. I think the testimony left no question that this crime occurred and it occurred the way that she ... described it.... I tend to agree with [the prosecutor], I think those masks came off because ... Í don’t think [the victim] was supposed to survive this incident. I’m not sentencing on that basis ... I think it’s an appropriate ... conclusion to reach ... but I’m not sentencing on that basis. I am, however, considering the testimony as it was presented and this lady, quite frankly, for lack of a better way to characterize it, was terrorized in that household and these men ran after her when she tried to escape and brought her back at gunpoint to the house to terrorize her some more. I’m looking at a prior record here and at the ripe old age of 19, let’s see, I have one, two, three, four, five, six prior convictions, three of them are felonies. Most of these convictions are either for weapons offense[s] or crimes of violence. I’ve heard absolutely no recognition whatsoever on [the defendant’s] behalf that he’s done anything wrong, that he feels any remorse in the least for what was done to this lady. I remember her testimony, I have notes of it, in which she broke down what each of the individuals did and quite frankly I do think that she’s lucky to be alive and to have lived ... through this. And based on that sir, I ... think based on your record and based on this conduct, you have forfeited your right to remain out with us and I will sentence you on Count 1 to life imprisonment with a ten-year mandatory minimum, on Count 2 to 15 years in the Department of Corrections, both counts concurrent,

(emphasis added).

The defendant concedes that he did not object to the court’s comments regarding his lack of remorse. Thus, he did not preserve the argument for review. German v. State, 27 So.3d 130, 132 (Fla. 4th DCA 2010). The defendant argues, however, that the court committed fundamental error by using his lack of remorse against him in imposing the life sentence. See Hayward v. State, 24 So.3d 17, 41 (Fla.2009) (fundamental error is “an error that ‘goes to the foundation of the case ... and is equivalent to a denial of due process’ ”) (citations omitted).

We reject the defendant’s argument. We recognize that “[a] trial court violates due process by using a protestation of innocence against a defendant.” Holton v. State, 573 So.2d 284, 292 (Fla.1990). However, “remorse and an admission of guilt may be grounds for mitigation of a sentence or a disposition.” K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001).

Here, the court expressly stated that it was basing the life sentence on the defendant’s record and his conduct in this case. We perceive the court’s comments regarding the defendant’s lack of remorse as the court’s recognition that it lacked any grounds to mitigate his sentence. We see no evidence that the court used the defendant’s lack of remorse against him. Thus, we find no error. See German, 27 So.3d at 133 (“[I]n pronouncing sentence, there is no suggestion that the trial court used the defendant’s silence, lack of remorse, or failure to admit guilt against him; quite the contrary. The court’s comments were directed to the heinous nature of the crime.”).

On all of the other grounds which the defendant raises in this appeal, we affirm without further comment.

Affirmed.

GROSS, C.J., and TAYLOR, J., concur.

      . German was the co-defendant in this case. As we noted in German, "[c]ourts should, however, be vigilant to avoid any suggestion of improper considerations when making remarks during sentencing.” 27 So.3d at 133 n. 2.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Victor BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-510.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing Denied May 6, 2011.
    Victor Butler, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   PER CURIAM.

Affirmed. See Licata v. State, 788 So.2d 1063 (Fla. 4th DCA 2001); Fernandez v. State, 627 So.2d 1 (Fla. 3d DCA 1993).


text:
    Robert CLEMONS, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, State of Florida, et al., Respondents.
    No. 1D10-4447.
    District Court of Appeal of Florida, First District.
    March 30, 2011.
    Robert Clemons, pro se, Petitioner.
    Jerry Curington, General Counsel, Department of Children and Families, and Gregory D. Venz, Assistant General Counsel, Tallahassee, for Respondent Department of Children and Family Services; Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent State of Florida.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commn., 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    James Fredrick BERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0623.
    District Court of Appeal of Florida, First District.
    March 30, 2011.
    James Fredrick Berry, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    Jacob I. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6224.
    District Court of Appeal of Florida, First District.
    March 30, 2011.
    Jacob I. Smith, Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commn., 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    Alton McQUAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1049.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Alton McQuay, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and ROWE, JJ., concur.


text:
    Terrance D. WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1051.
    District Court of Appeal of Florida, First District.
    March 31, 2011.

      Terrance D. Washington, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and ROWE, JJ., concur.


text:
    Greg MATTOX, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6426.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s revocation of his community control and subsequent sentence of 15 years’ imprisonment. For the reasons explained below, we reverse and remand to the trial court for additional findings.

The State filed an affidavit alleging Appellant violated five conditions of his community control, three of which were directly related to Appellant’s conviction of armed robbery. This court reversed that conviction, however, after determining that the State’s confession of error was supported by the record and law. See Mattox v. State, 56 So.3d 895 (Fla. 1st DCA 2011). Consequently, there was no basis for revoking Appellant’s community control for those alleged violations.

One of the remaining probation violations concerned Appellant’s failure to comply with certain financial obligations. The State concedes error because it did not present any competent, substantial evidence to support the allegation and the trial court did not make the requisite find-mgs that Appellant had the ability to pay. We therefore reverse the trial court’s revocation of community control on this ground. See McPherson v. State, 530 So.2d 1095, 1098 (Fla. 1st DCA 1988) (holding “[a]bsent a finding that a defendant has the ability to pay, probation cannot be revoked based on the failure to pay court costs.”).

The remaining basis for revocation of community control concerned Appellant’s failure to remain confined to his residence during the required hours, specifically,, at the time the armed robbery took place. Based upon the parties’ agreement, evidence and testimony from the trial was made a part of the record for purposes of the evidentiary hearing on the community control. Appellant’s trial testimony confirms that he was not at his residence during the time the robbery occurred, and he acknowledged this was a violation of his community control. It is not clear from the record, however, whether the trial court would have revoked Appellant’s community control based on this violation alone and, if so, would have imposed the same sentence. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009) (stating the general rule requires remand when it is unclear from the record whether the trial court would have revoked the appellant’s probation and imposed the same sentence based solely on the condition of which the appellate court found appellant in violation); see also Stevens v. State, 823 So.2d 319, 322 (Fla. 2d DCA 2002) (holding that although there was sufficient evidence defendant did not complete. the required monthly hours of community service, case remanded to determine whether the court would have revoked probation solely on this violation).

Consequently, we REVERSE and REMAND for a determination by the trial court as to whether it would revoke Appellant’s probation based on this violation alone.

VAN NORTWICK, THOMAS, and MARSTILLER, JJ., concur.


author: LaROSE, Judge.

text:
    Paul Arthur BERNARDI, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-960.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Paul Bernardi appeals the revocation of his community control and resulting sentence. He admitted violating community control, which was imposed for the underlying conviction of grand theft from a person sixty-five years of age or older. See §§ 812.014(2)(c), .0145, Fla. Stat. (2008). Mr. Bernardi argues that the trial court lacked jurisdiction to enter a written restitution order after he filed a notice of appeal. He also argues that the trial court ordered restitution in an amount different from that orally pronounced and payable to a person other than the victim. We reverse.

Mr. Bernardi’s grand theft conviction stemmed from cashing nine checks, which he wrote to himself from the victim’s checkbook, and pawning the victim’s personal property. The trial court originally ordered Mr. Bernardi to pay the victim $3000 in restitution as a special condition of community control. At the plea hearing on the community control violation, the trial court orally pronounced that it would assess the $3000 restitution amount as a lien against Mr. Bernardi. Mr. Bernardi timely filed a notice of appeal. A few weeks later, the trial court issued a written restitution order in the amount of $1180 payable to Amscot. Our record contains no other mention of Amscot as a victim or of an $1180 restitution amount.

The State urges us to affirm on the basis of Henry v. State, 42 So.3d 317 (Fla. 2d DCA 2010). In Henry, the trial court revoked probation and orally announced that the restitution Mr. Henry previously agreed to pay as a probation condition would be converted to a lien. Id. at 318. Between the revocation hearing and issuance of a written order, Mr. Henry filed his notice of appeal. Id. He argued that the restitution order was void for. lack of jurisdiction because the trial court issued it after he filed his appeal. Id. We agreed that a trial court may not impose restitution after filing of a notice of appeal. Id. (citing L’Heureux v. State, 968 So.2d 628, 630 (Fla. 2d DCA 2007); Pearson v. State, 686 So.2d 721, 721 (Fla. 2d DCA 1997)). However, we affirmed, holding that the filing of the notice of appeal did not divest the trial court of jurisdiction when issuance of the written order was simply a ministerial act memorializing the oral imposition of a judgment lien for restitution in a specific amount. Id. at 318-19.

In contrast, the written order here, entered after the notice of appeal, does not conform to the oral pronouncement either in amount or as to the payee. Therefore, we must reverse the written order of restitution and remand for the trial court to conduct another hearing and, if appropriate, reimpose restitution. See Renfroe v. State, 20 So.3d 1027, 1027 (Fla. 2d DCA 2009).

Reversed and remanded.

CASANUEVA, C.J., and VILLANTI, J., Concur.


text:
    David LANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3215.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Rehearing Denied May 18, 2011.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Dallas v. State, 898 So.2d 163 (Fla. 4th DCA 2005).

WARNER, LEVINE and CONNER, JJ., concur.


author: GERSTEN, J.

text:
    JN AUTO COLLECTION, CORP., Appellant, v. U.S. SECURITY INSURANCE COMPANY, Appellee.
    No. 3D09-3093.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.

      Lopez and Best, and Virginia M. Best, for appellant.
    David B. Pakula, Pembroke Pines, for appellee.
    Before GERSTEN, CORTIÑAS, and LAGOA, JJ.
   GERSTEN, J.

JN Auto Collection, Corp. (“JN”) appeals a directed verdict in favor of U.S. Security Insurance Company (“U.S.”). We reverse.

JN is a used car dealer in the business of buying and selling repaired vehicles, some of which have state-issued certificates of destruction. For several years, U.S. sold general liability garage keepers insurance to JN. In May 2006, U.S. added an endorsement to its garage keepers insurance policies, which excluded coverage for vehicles with state-issued certificates of destruction. None of the policies previously issued to JN included this exclusion. Therefore, JN was unaware of the new endorsement.

On January 16, 2007, JN renewed its insurance policy with U.S. over the phone, thereby creating a temporary insurance binder, pursuant to section 627.420, Florida Statutes (2006). The next day, an automobile with a certificate of destruction was stolen from JN’s lot. Thereafter, JN made a claim under its policy for the theft, and U.S. began to investigate the claim.

In April 2007, U.S. issued the telephoni-eally bound policy. The policy included the exclusion for vehicles with certificates of destruction. Subsequently, when U.S. failed to pay under the policy, JN sued for declaration of coverage and breach of contract, and the case proceeded to a jury trial.

At trial, the jury requested that the trial court ask the U.S. adjuster: “Was the policyholder ... advised formally of the endorsement to his policy on or before the effective date of the endorsement ... ?” The trial court posed the question, and the adjuster answered that she did not know.

In contrast, JN’s president testified that he was not told about the endorsement. He further stated that, because of the nature of his business, he would not have purchased an insurance policy with such an endorsement.

The jury returned a verdict finding that U.S. breached its contract and awarded JN damages for the stolen vehicle. Thereafter, the trial court granted U.S.’ motion for directed verdict, reasoning that the endorsement applied and excluded coverage for the theft. This appeal followed.

On appeal, JN asserts that the trial court erred in granting U.S.’ motion for directed verdict because U.S. should be promissorily estopped from enforcing the endorsement exclusion. U.S., on the other hand, contends that the trial court properly directed the verdict on coverage because JN failed to prove promissory estoppel. We agree with JN and reverse.

Generally, insurance coverage cannot be extended by estoppel. Crown Life Ins. Co. v. McBride, 517 So.2d 660, 661 (Fla.1987); Lloyds Underwriters at London v. Keystone Equip. Fin. Corp., 25 So.3d 89, 92 (Fla. 4th DCA 2009), rev. dismissed, 34 So.3d 2 (Fla.2010). However, an exception to this general rule is promissory estoppel. Crown, 517 So.2d at 661. Promissory estoppel should be applied where to refuse to enforce the promise “would be virtually to sanction the perpetration of fraud or would result in other injustice.” 517 So.2d at 662 (citing Se. Sales & Serv. Co. v. T.T. Watson, Inc., 172 So.2d 239, 241 (Fla. 2d DCA 1965)).

Promissory estoppel requires proof that: (1) the promisor made a representation as to a material fact that is contrary to. a later-asserted position; (2) the promisee reasonably relied on the representation; and (3) the promisee changed his or her position to his or her detriment based on the representation. See, e.g., Romo v. Amedex Ins. Co., 930 So.2d 643, 650 (Fla. 3d DCA 2006) (citing FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla. 2d DCA 2005)).

Silence, under circumstances in which there is a duty to speak, may constitute a misrepresentation. Lloyds, 25 So.3d at 93. If an insurer includes a new or unusual term when orally binding a renewal policy, it has the duty to advise its insured of the change. See § 627.420 (stating that an oral binder includes the usual terms of the policy).

In light of these legal principles, we find that U.S., as the promisor here, made a representation as to a material fact contrary to a later-asserted position. U.S. issued three prior garage keepers insurance policies to JN, none of which included the endorsement excluding coverage for vehicles with state-issued certificates of destruction. Therefore, the endorsement was not a “usual term” of the policy. Under these circumstances, U.S.’ failure to inform JN that the new policy would include the exclusionary endorsement constituted a misrepresentation of a material fact. Accordingly, the record establishes that JN proved the first element of promissory estoppel.

JN also proved the second and third element, reasonable and detrimental reliance on U.S.’ misrepresentation. JN was in the business of selling used vehicles, some of which had certificates of destruc-tions. All its prior insurance policies had coverage for these types of used vehicles. Moreover, JN’s president testified that he would not have bought an insurance policy without this coverage.. Therefore, given the nature of its business, JN proved that to its detriment it was induced into buying an insurance policy which did not have the required coverage.

In this case, enforcing the policy endorsement to exclude coverage for the theft of JN’s property would result in injustice. Accordingly, we reverse the directed verdict in U.S.’ favor, and remand for entry of judgment in accordance with the jury verdict.

Reversed and remanded with instructions.


author: HAZOURI, J.

text:
    Patricia SWAIN and Donald Swain, Appellants, v. The MEADOWS AT MARTIN DOWNS HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D09-3607.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Rehearing Denied May 12, 2011.

      Patrick Dervishi and Guy M. Shir of Kahan, Shir, P.L., Boca Raton, for appellants.
    John S. Penton, Jr., of Cole,- Scott & Kissane, P.A., West Palm Beach, for appel-lee.
   HAZOURI, J.

Appellants, Patricia and Donald Swain (“Owners”), appeal the trial court’s grant of summary judgment to Appellee, The Meadows at Martin Downs Homeowners Association, Inc. (“the Association”), and denial of their cross-motion for summary judgment. Owners contend that summary judgment was improper because there was a genuine issue of material fact. We agree and reverse the trial court’s grant of summary judgment in favor of the Association.

Owners filed suit against the Association seeking declaratory and injunctive relief after the Association constructed a 1,920 square foot maintenance facility on the common area adjacent to the recreational grounds. Owners alleged that the Association did not have the authority to build the structure, without a vote of the unit owners. Conversely, the Association argued that it did, and a dispute arose regarding the parties’ rights under the Association’s Declaration of Covenants and Restrictions (“Declaration”).

The-Board of Directors of the Association is composed of six voting members, each elected by a majority of the unit owners in each of the six villages that make up the Meadows. The Board of Directors met on July 5, 2006, to vote on approval of the construction of a maintenance facility. The Association proposed constructing a permanent maintenance facility to replace a fenced-in portion of the parking lot known as the “green corral,” which was used to store building materials. The Board of Directors voted five to one to approve the construction!

Following approval, Owners filed an action for declaratory and injunctive relief and “to enjoin [the] Association from proceeding with the proposed construction of a maintenance building on designated common area at the community.” Next, Owners filed an emergency motion for a temporary injunction which the trial court denied, determining it did not constitute an emergency. The Association then moved for summary judgment, asserting that “the Association’s authority to act is established in its governing documents.” In response, Owners filed an opposition to the summary judgment and a cross-motion for summary judgment.

Ultimately, the trial court granted the Association’s motion for summary judgment, determining that “[t]he Boards [sic] action was permitted, pursuant to Article Vd); VI(l)(a); XIV(l); and, F.S. § 720.306, and the Defendant is entitled to Judgment on the two counts as a matter of law.” The trial court then entered final judgment for the Association.

“The standard of review of an order granting summary judgment is de novo.” Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). “When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action.” Bender, 42 So.3d at 894 (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004)). Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, the nonexistence of a genuine issue of a material fact. Id. (citation omitted). If the record reflects the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party. Id. (citation omitted).

Owners present a genuine issue of material fact as to whether the Association had the authority to construct the maintenance facility. Neither the identified articles of the Declaration cited by the trial court nor section 720.306(l)(a), Florida Statutes, explicitly permit the Board of Directors to authorize the construction • of the maintenance facility. Article V(l) states that “[t]he Association shall be responsible for the management, maintenance, and operation of the Common Areas.” However, Owners do not dispute that the Association is responsible for maintenance of the Common Areas; rather, they maintain that “the Association does not have any authority to take away portions of the common areas” without the consent of the entire membership.

In support of their position, Owners cite Article V(3) of the Declaration, which states that “[t]he Association may not convey, encumber, abandon, partition, or subdivide any of the Common Areas without the approval of all Institutional Mortgagees.” Owners contend that the “Association’s alteration and conversion of common area, including parking spaces close to recreational facilities, by constructing a permanent ... maintenance facility, is an encumbrance and partition.” An encumbrance is “[a] claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage.” Black’s Law Dictionary 568 (8th ed. 2004). Owners argue that the maintenance facility is a liability attached to and binding real property: they must now pay an increased assessment to insure and maintain the facility.

Additionally, Black’s Law Dictionary defines partition as “[sjomething that separates one part of a space from another” or “[t]he act of dividing; esp., the division of real property held jointly or in common by two or more persons.” Black’s Law Dictionary 1151 (8th ed. 2004). Accordingly, as the court is not called upon to determine whether Owners can prove their cause of action, but rather if different inferences can reasonably be drawn from the facts, summary judgment was improper. See Bender, 42 So.3d at 894.

The next provision cited by the trial court was article VI(l)(a), which states that “[t]he Association shall maintain and keep in good repair the Common Areas. The maintenance of the Common Areas shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect, of all ... recreational, maintenance, and office facilities.” (emphasis added). Owners argue that the maintenance facility is not a replacement of the “green corral” because it is a much larger, permanent structure. Further, Owners maintain that this provision does not allow for new construction or the alteration of common areas.

Finally, Article XIV(1) states that “[t]he Properties shall be used only for residential, recreational, and related purposes (which may include, without limitation, offices for any Property Manager retained by the Association or business offices or storage facilities for the Association) as may more particularly be set forth in this Declaration.” This provision does not address whether the Declaration permits the Board of Directors to authorize construction of a permanent maintenance facility without the vote of unit owners.

In their motion in opposition to summary judgment, Owners contend that the Declaration required that “all the members exercise and cast their votes personally when the issue relates to partitioning of common area or the proposals affect members’ property rights or appurtenances to such property rights.” In support of this proposition, Owners cite Article 1(31), which they claim limits the voting authority of the Village Directors. The article states that “Member Votes are used for the rejection of a budget, any change in the Covenants or Bylaws, or the annexation of additional property or the removal of a Director from office for any reason.” Noticeably absent is the authority to vote on construction of new facilities, or alterations in common areas. Conversely, Article V(3) requires the approval of all Institutional Mortgagees before the Association may “convey, encumber, abandon, partition or subdivide any of the Common Areas.” Article IV(3)(c) also declares that “[t]he chairman of the Village Committee shall serve as the Voting Member for such Village, and shall cast all votes attributable to Units in the Village on all Association matters requiring membership vote, unless otherwise specified in this Declaration or the Bylaws.” (emphasis added.)

Furthermore, Owners contend that if the Association had proposed an amendment to build the maintenance facility, it would have required a vote of all members. The Declaration' states that following á vote of the Village Directors, an amendment should “thereafter be put to a vote of the Unit Owners for confirmation or rejection. A negative vote by fifty-one percent (51%) of all Unit Owners will reject the amendment.”

Thus, summary judgment was improper because the record reflects a material issue of fact in dispute; different inferences can reasonably be drawn from the application of the Declaration’s provisions to the Association’s activities. See Bender, 42 So.3d at 894. Accordingly, we reverse the trial court’s grant of summary judgment.

Reversed.

MAY and CIKLIN, JJ., concur.

      . Article V(1) states "[t]he Association shall be responsible for the management, maintenance, and operation of the Common Areas, and for the payment of all real estate taxes and other assessments which are liens against the Common Area.”

      . Article VI(1)(a) states ‘‘[t]he Association shall maintain and keep in good repair the Common Areas. The maintenance of the Common Areas shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect, of all ... recreational, maintenance, .and office facilities.”

      . Article XIV(1) states "[t]he Properties shall . be used only for residential, recreational, and related purposes (which may include, without limitation, offices for any Property Manager retained by the Association or business offices or storage facilities for the Association) as may more particularly be set forth in this Declaration.”

      .Section 720.306(l)(a), Florida Statutes (2009), states in pertinent part:
      Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.


text:
    Ismenia ACUÑA, a/k/a Niurka Batista, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2419.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Rehearing Denied May 4, 2011.
    Ismenia Acuña, a/k/a Niurka Batista, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Clines v. State, 912 So.2d 550 (Fla.2005); Cala v. State, 854 So.2d 840 (Fla. 3d DCA 2003).


text:
    Angelika AGUIAR and Justin Corey Drew, Petitioners, v. LEOR EXPLORATION & PRODUCTION, LLC and Leor Energy, L.P., Respondents.
    No. 4D10-5094.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Rehearing Denied May 12, 2011.
    Sigrid S. McCawley of Boies, Schiller & Flexner, LLP, Fort Lauderdale, for petitioners.
    Harley S. Tropin and Thomas A. Tucker Ronzetti of Kozyak Tropin & Throckmor-ton, P.A., Coral Gables, and Jesse H. Diner and David B. Mankuta of Atkinson, Diner, Stone, Mankuta & Ploucha, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The trial court’s ruling that the deposition transcripts at issue are confidential departs from the essential requirements of law causing material harm that cannot adequately be remedied on appeal. Pursuant to the terms of the Agreed Protective Order, petitioners were not required to have the court declare the transcripts non-confidential. The Agreed Protective Order did not contemplate that entire transcripts would remain confidential. Petitioners were not required to return or destroy the deposition transcripts. Petitioners submitted written objections to respondent’s designation of the entire transcripts as confidential. Pursuant to paragraph 10 of the Agreed Protective Order, respondents were required to move the court within fourteen (14) days in order to maintain the confidential designation. Respondents failed to do so, and this results in “termination of the restricted status” of the deposition transcripts. The failure to apply the plain terms of the Agreed Protective Order departs from the essential requirements of law. The petition is granted, and the order requiring return or destruction of the transcripts is quashed.

Petition for writ of certiorari granted.

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


text:
    STATE of Florida, Appellant, v. Jessica WRIGHT, Appellee.
    No. 4D09-4462.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Rehearing Denied May 20, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Jessica Wright was charged with withholding information from a medical practitioner in violation of subsections 893.13(7)(a)8. and 9., Florida Statutes (2009). Wright moved to suppress evidence secured by a deputy who had received an anonymous tip that Wright was doctor shopping. The deputy went to several pharmacies and obtained records that allowed him to determine that Wright had obtained the same controlled substances from two doctors within 30 days. Based on this information, the deputy contacted the two doctors and learned that Wright had not disclosed to either doctor that she had received a prescription from the other. The trial court granted Wright’s motion to suppress.

We agree with the analysis of our sister courts that the deputy’s obtaining of the pharmacy records was authorized by section 893.07(4), Florida Statutes (2009), and that the statute does not violate Article I, Section 23 of the Florida Constitution. See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009); State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010); State v. Yutzy, 43 So.3d 910 (Fla. 2d DCA 2010); Hendley v. State, 58 So.3d 296 (Fla. 2d DCA 2011). We therefore reverse the order as it applies to the pharmacy records. On remand the circuit court may hold further hearings and consider whether or not the information obtained from the physicians violated section 456.057, Florida Statutes (2009). See State v. Herc, — So.3d -, 2011 WL 116001 (Fla. 2d DCA 2011); State v. Shukitis, 60 So.3d 406, 2010 WL 4365761 (Fla. 2d DCA 2010).

Reversed and remanded.

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


text:
    Adrian COULTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-121.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Adrian Coulter, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. We reverse because Coulter has raised facially sufficient claims for rule 3.850 relief that the trial court, in its order summarily denying the motion, has failed to conclusively refute.

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Adrian Coulter filed a thirty-one page Motion for Post Conviction Relief under rule 3.850 raising eleven grounds. The trial court entered a one-word order: “DENIED.” Most notably, the trial court failed to address the issue raised in ground nine of Coulter’s motion. Coulter argued, and the State conceded in its response, that he should not have been sentenced to 7.5 years as to count 2, but rather, should have been sentenced to credit for time served. Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings, such as an evidentiary hearing. On remand, if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.


text:
    Keith J. POWELL, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections and David Ellis, Warden, Santa Rosa Correctional Institution, et al., Respondents.
    No. 1D11-0475.
    District Court of Appeal of Florida, First District.
    April 8, 2011.
    Keith J. Powell, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

LEWIS, HAWKES, and ROWE, JJ., concur.


text:
    David Allan TITSCH, Appellant, v. Daniel BUZIN, Appellee.
    No. 2D10-354.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.

      William McGrew of the Law Firm of Sam R. Assini, LLC, Cape Coral, for Appellant.
    No appearance for Appellee.
   LaROSE, Judge.

David Allan Titsch appeals a final judgment of injunction against repeat violence entered against him and in favor of Daniel Buzin. The record does not support a finding of two incidents of violence as required by the applicable statute. Consequently, we reverse.

Section 784.046(2), Florida Statutes (2009), allows a victim of repeat violence to seek a protective injunction. The statute defines violence as “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a). The statute defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family.” § 784.046(l)(b). Each incident must be proven by competent, substantial evidence. Smith v. Melcher, 975 So.2d 500, 501 (Fla. 2d DCA 2007),

Mr. Buzin’s petition for injunctive relief alleged two incidents of violence. The first involved a confrontation that occurred in Mr. Buzin’s driveway. Mr. Titsch allegedly threatened to kill Mr. Buzin and “tried to force his way past [Mr. Buzin] in his SUV by running [Mr. Buzin] down.” In the second alleged incident, Mr. Titsch drove by Mr. Buzin’s home. He stopped his car, exited the vehicle, and made a hand gesture imitating a gun and said, “Bang your [sic] dead — I’m going to Fu[ — ing] kill you.”

Even if the first alleged incident is one of violence, the second falls outside the statutory scope. See Santiago v. Towle, 917 So.2d 909, 910-11 (Fla. 5th DCA 2005) (“The sparse evidence adduced, even if believed, indicates that Mr. Santiago did not make any overt act that would have placed Ms. Towle in imminent danger, but rather only shouted and made hand gestures.”). Mr. Titsch’s alleged behavior in the second incident fell short of the legal requirements of section 784.046. See Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004). Hand gestures and obscenities alone are insufficient. See Santiago, 917 So.2d at 910-11.

Assault is the only possible statutorily prohibited act upon which Mr. Buzin can rely. “Assault” is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1). However, mere shouting and obscene hand gestures, without an overt act that places the victim in fear, do not constitute the type of violence required for an injunction. Gagnard, 886 So.2d at 322 (holding one man’s threat to “F” up another man and kill him insufficient to support an injunction because there was no evidence of an overt act indicating an ability to carry out the threat or justifying a belief in the victim that violence was imminent); Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.”); Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (“A person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear”).

Our record reflects a lack of competent, substantial evidence to support the final judgment of injunction for protection against repeat violence. There was no evidence that Mr. Titsch, in the second alleged incident, made an overt act indicating an ability to carry out the threat or that would otherwise justify a reasonable belief by Mr. Buzin that violence was imminent. See Morrell v. Chadick, 965 So.2d 1277, 1280 (Fla. 2d DCA 2007) (holding that appellant presented no objective basis to support her subjective belief that she was the victim of sexual violence (citing Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007))). The law requires two acts of violence to justify the requested injunction. Sorin, 929 So.2d at 1095. Because the alleged second incident is not an act of violence under the statute, we reverse the final judgment of injunction.

Reversed.

CASANUEVA, C.J., and VILLANTI, J., Concur.


author: WARNER, J.

text:
    GE LIN, Appellant, v. ECCLESTONE SIGNATURE HOMES OF PALM BEACH, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D09-4940.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.
    Rehearing Denied May 16, 2011.

      Jeffrey Begens of Law Office of Jeffrey Begens, P.A., Palm Beach Gardens, for appellant.
    Brian B. Joslyn, Ronald E. Crescenzo and Jessica M. Callow of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee.
   WARNER, J.

Ge Lin appeals from an amended final judgment granting Ecclestone Signature Homes of Palm Beach specific performance and requiring Lin to close on a residential property. Lin contends that the contract violated the statute of frauds because the contract did not include the exact quantity of furniture in its terms. We conclude that the contract is enforceable and affirm.

Ge Lin, the Buyer, executed a purchase agreement with Ecclestone, the Seller, to buy a pre-construction home in Port St. Lucie. The contract provided that the home was to be completed and available for occupancy within two years. The home was to be a fully furnished and decorated home, to be built based on a floor plan attached to the agreement. The form agreement addendum referred to an attached Schedule “1” to the agreement as a list of furniture and furnishing; however, it is undisputed that schedule 1 was not actually attached. The total purchase price was $3,350,000 ($2,990,000 and $360,000 for the furniture/furnishing package). The Buyer paid $335,000 as a down payment. The agreement provided that after closing occurred, the Seller would lease the house back from the Buyer to use it as a model home for a period of 18 months at a rent of $22,000 per month. Subsequent to the signing of the contract, the Seller contracted with a decorator and selected the furniture for the home.

By February 2007, the house was substantially completed, though not yet furnished. The Seller sent the Buyer a certified letter scheduling the closing for March 30, 2007. At a walk-through that March, the Buyer indicated he wanted certain things changed or added and those items were included in a letter sent by the Buyer. In the - letter, the Buyer complained that he had not received sufficient information about- the furniture and its quality. The next day, he met with the Seller’s representative at the interior decorator’s warehouse. The decorator made a presentation of most of the furniture and furnishings that she had ordered for the home. While the Buyer may have had some reservations about the quality of some of the items, he never objected to the quantity of items ordered for the home.

The Seller thereafter scheduled three closings for the home on March 30, 2007, May 2, 2007, and May 25, 2007, prior to the expiration of the two-year deadline on June 18, 2007. The first closing on March 30, 2007, was postponed because the Buyer wanted a privacy wall constructed around a front window. The second closing on May 2 was postponed because although the Buyer showed up he was not prepared to close, as he was still working on obtaining financing. The third closing was noticed for May 25 and also did not occur. The house was still unfurnished at this time. Final date of performance of the contract on June 18, 2007, passed without a closing. At the time the furniture had not been installed in the home, although it was available in a warehouse. The Seller finally moved it into the home in November 2007.

In July 2007, the Seller filed suit for specific performance of the contract, breach of contract, and declaratory judgment. The Buyer answered, filed affirmative defenses, and raised a counterclaim for declaratory relief, asserting that the agreement was unenforceable and that the Seller had breached the agreement. He sought return of his deposit. At trial on February 5, 2009, the Buyer took the position that because the furniture was not in the house on the date set for closing, the Seller had breached.

The Buyer also contended that there was no enforceable contract because the parties had not put the furniture and furnishing package in writing, violating the statute of frauds, section 672.201, Florida Statutes, which required that the sale of property above $500 be in writing to be enforceable. The Seller claimed that because the furniture was ordered and in a warehouse, the Seller was ready, willing and able to install it, thus the Seller did not breach. Further, the Seller contended that because it was going to lease back the home as a model the fact that the furniture was not yet installed would not have materially affected the Buyer.

The trial court entered Final Judgment granting specific performance to the Seller finding' that the Buyer had breached the contract. The court specifically rejected the Buyer’s contention that the Seller was not in a position to furnish the residence by the two-year deadline, finding that the Seller had a long-standing relationship with its decorator such that the furniture would have been delivered on time, if necessary. The court also found that although the parties had not agreed to a specific listing of the furniture, from the negotiations the parties agreed that the type and quality would be the same as in two other model homes which the Buyer saw prior to signing the contract.

The court entered an amended final judgment after considering the Buyer’s motion for rehearing. The -court found that the omission of Schedule 1 (the furniture/furnishing package) was a latent ambiguity and that parol evidence was admissible to establish the specific items of furniture/furnishings package to be installed in the home. This included agreements as to the type and quality of furnishings as well as the fact that the Seller had sole discretion in-its-, selection of furnishings, which the documents revealed would be similar to two existing and furnished model homes. The Buyer now appeals from that amended final judgment.

The Buyer’s primary contention on appeal remains what he argued in the trial court: the contract violates the statute of frauds contained in section 672.201, and oral modifications of the contract would be prohibited by this section. Section 672.201 provides:

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(emphasis supplied).

Although both the parties and the trial court analyzed this case based upon the application of the statute of frauds for a sale of goods, section 672.201(1), the contract was for the sale of furnished real estate, not the sale of goods. As the trial court found, the provision of a furnished home was an integral element of the sale of the property. It did not constitute a separate contract. We must look to the predominant nature of the transaction in determining whether to apply the Uniform Commercial Code’s Article 2,. regarding the sale of goods. See BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1330 (11th Cir.1998)(citing United States Fid. & Guar. Co. v. N. Am. Steel Corp., 335 So.2d 18, 21 (Fla. 2d DCA 1976)).

Concluding that the predominant purpose of the contract was the sale of real estate, not goods, we apply the statute of frauds contained in section 725.01, Florida Statutes. Similar to section 672.201(1), section 725.01 requires that a contract for sale of real estate be in writing and signed by the party to be charged. “There is no definitive list of essential terms that must be present and certain to satisfy the statute of frauds. Rather, the essential terms will vary widely according to the nature and complexity of each transaction and will be evaluated on a case by case basis.” Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979). Socarras cites to Rundel v. Gordon, 92 Fla. 1110, 111 So. 386, 388-89 (1927), which explains,

Where it is sought to enforce in equity a contract for the sale of land, it is essential that the terms of the contract shall be expressed with reasonable certainty, and what is reasonable in any case must depend upon the subject-matter of the agreement, the purpose for which it was entered into, the situation and relation of the parties, and the circumstances under which it was made.

In this case, the trial court used that reasoning to conclude that the contractual terms were sufficient and enforceable..

The court found that the Buyer was purchasing the residential real property as an investment, and the Seller would lease back the property after purchase to use as a model home. An addendum to the contract provided that the home was to be fully furnished based upon an attached floor plan. The floor plan included the layout of furniture. Prior to execution of the contract, the Buyer had toured two other models, including the Campanile model home, and was aware of the amount, type and quality of those furnishings.

As the court noted, the form contract executed was for purchasing an already constructed model, whereas this home was still to be constructed and furniture was yet to be purchased. The form contract provided for furnishings in accordance with “Schedule 1,” but no such schedule was attached. Instead, a layout of furniture was attached to the contract and other documents stated the price of the furnishings at $860,000. At the time of closing a walk-through would occur, and anything missing from, the Schedule 1 list would be noted. The Seller would have a reasonable time after closing to substitute other furniture of like quality. Failure to correct the items on the punch list (which would include missing furniture) prior to closing would not be a ground to postpone the closing.

In preparation for closing, Ecclestone representatives conducted a walkthrough with the Buyer, who expressed reservations regarding some of the finishing. In addition, because the furniture was yet to be installed, the interior decorator met with the Buyer and showed him all of the furniture and furnishings which had already been ordered for the model.

The court concluded that although Schedule 1, which listed every item of furniture, was not attached to the contract:

the parties agreed that the furniture and furnishings would have a specific value, $360,000, and it would be of a specific type and quality, the same type and quality of furnishings used by Eccle-stone in the two model homes Lin saw prior to signing the contract, Campanile II and Casa Roma [both of which were specifically referred to in the addenda to the contract]. Thus, there was a sufficient benchmark to determine whether Ecclestone abided by its promise to provide a “fully furnished” model home, and Lin’s promise to pay for a “fully furnished” model home. The contract was not illusory, and it is enforceable.

Essentially, the court concluded that the failure to attach Schedule 1 was not fatal to the enforcement of the contract. The court gleaned from other portions of the contract that the parties contracted for the Seller to supply $360,000 of furnishings in accordance with the layout of the Casa Campanile model and of similar quality and quantity. Considering the entire circumstances of the case, the relation of the parties, and the circumstances under which the contract was made, we agree with the trial court that'the provision of a fully furnished home with $360,000 in furnishings set forth an essential term of the contract with reasonable certainty. Competent substantial evidence supports its determination. This contract met the requirements of section 725.01, and was entitled to be enforced by a judgment of specific performance.

We affirm without further elaboration on the remaining issues raised by the Buyer, as most are related to his contention that the contract could not be enforced because of the failure to include the listing of furnishings, an argument we have now rejected. He also contends that the Seller breached the contract first by failing to have the furniture in place by the date of closing, but we agree with the trial court in its conclusion that the Buyer first breached the contract by failing to have funds available to close. The Buyer never mentioned the failure to have the furniture actually delivered to the home as a reason that he did not attend the closing.

For the foregoing reasons, we affirm the judgment of the trial court.

STEVENSON and TAYLOR, JJ., concur.

      . The Seller signed it on June 18, 2005, and the property was to be completed in two years, that is, by June 18, 2007.

      . Even if we were to decide this case under Section 672.201, we would conclude that the statement of the price of the furniture, together with the references to the model homes and the layout of furniture attached to the contract constituted a sufficient statement of "quantity of goods” to satisfy the statute.


text:
    Franklin Kyle KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2337.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

A jury convicted the defendant of transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2007). The defendant argues that the trial court abused its discretion in not instructing the jury that “transmission” means both sending and receiving an image or information. We find that the trial court did not abuse its discretion. Therefore, we affirm.

The fifteen-year-old victim testified that she sent two photos from a cellular phone via text message to the twenty-one year-old defendant. In one photo, the victim was topless. In the second photo, the victim and a friend were naked. The defendant then attempted to send three photos of himself via text message to the phone which the victim was using. The victim told the defendant via “instant messenger” that the text message did not come through. Therefore, the defendant sent his photos via e-mail to an e-mail address which the victim was using. According to the victim, she then was able to view the photos. Two photos showed the defendant and his wife engaged in sexual activity. The third photo showed the defendant’s penis. The victim did not remember the defendant telling her to go to a website to view the photos.

The state then played a tape of a detective’s interview of the defendant. The defendant stated that he tried to text message his photos to the phone which the victim was using, but that did not work. Then the defendant tried to e-mail his photos to an e-mail address which the victim was using, but that did not work either. So the defendant directed the victim to a website to view his photos. The defendant admitted that he knew the victim was a minor.

The detective who conducted the interview testified that she obtained the photos from the defendant, who pulled them up on a police computer from his e-mail account. The detective did not recover the photos from the e-mail account or the computer which the victim was using.

The defendant testified at trial consistent with his interview. He added that he received e-mail system replies stating that his text message and his e-mail containing his photos were undeliverable.

The parties agreed to a jury instruction tracking section 847.0138. The statute provides that any person “who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor” commits a felony of the third degree. § 847.0138(2), Fla. Stat. (2007). The statute defines “transmit” as “to send to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138(l)(b), Fla. Stat. (2007).

The defendant also requested the following special instruction: “The posting of materials deemed harmful to minors on a website directed to the public is not ‘electronic mail’ and is not a transmission of an image, information, or material.” The special instruction was based on Simmons v. State, 944 So.2d 317 (Fla.2006), which holds that “[t]he posting of materials deemed harmful to minors on a website directed to the public. is not ‘electronic mail,’ and thus does not violate the statute.” Id. at 325 (citations omitted). The state and the court agreed to this instruction.

During closing argument, the defendant argued that “[i]f it didn’t go through, there’s no crime. If [the victim] viewed [the photos] on this website, there’s no crime.” In rebuttal, the state argued that “the evidence shows you the photographs were sent. And that is the evidence you need to return a conviction in this case. The evidence that the photos were transmitted.”

During jury deliberations, the jury posed the question: “[I]f it’s sent and not received is it transmission[?]” The defendant argued that the court should answer the question “no.” The state argued that the court should tell the jury to “read the jury instruction.” The court told the jury to “rely on the instructions as already given you.” The jury later found the defendant guilty as charged.

This appeal followed. According to the defendant, the clear implication from the jury’s question “[I]f it’s sent and not received is it transmission^]” is that the jury believed the victim did not receive his photos via electronic mail. The defendant argues that the jury essentially was asking the trial court if- “send,” which section 847.0138 does not define, means- that the images or information must be both sent and received.

To answer that hypothetically re-worded question, the defendant argues that the trial court should have informed the jury of the plain, and ordinary meaning of “send.” See Greenfield v. Daniels, 51 So.3d 421, 426 (Fla.2010) (‘“Where, as here, the legislature has.not defined the words used in a -[statute], the language should be given its plain and ordinary meaning.’ ”) (citation omitted). The defendant further argues that, to ascertain the plain and ordinary meaning of “send,” it would have been “appropriate to refer to dictionary definitions.” Id. (citation omitted).

The defendant then refers to two dictionary definitions of “send”: (1) “To cause to be conveyed by an intermediary to a destination: send goods by plane.” The American Heritage Dictionary of the English Language 1642 (3d ed. 1992); and (2) “[T]o cause to be carried to a destination.” Merriam-Webster’s Collegiate Dictionary 701 (10th ed. 1998). According to the defendant, these definitions indicate that the term “send” includes both sending and receiving. Thus, the defendant argues that the trial court’s failure to define “send” as including both sending and receiving was an abuse of discretion.

The state responds that, because the court’s instructions tracked the statute, the court did not abuse its discretion by informing the jury to rely on the instructions already given. The state further argues that the plain and ordinary meaning of “send” does not require the recipient’s participation. The state argues that to require the intended recipient to receive the harmful material would , contravene the statute’s purpose of preventing and punishing those who would send harmful material via electronic mail.

Our standard of review is for an abuse of discretion. See Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999) (“The controlling rule of procedure, Florida Rule of Criminal Procedure 3.410, provides that the giving of additional instructions in response to a jury query is within the trial court’s discretion.”); Fla. R. Crim. P. Rule 3.410 (2007) (“After the jurors have retired to consider their verdict, if they request additional instructions ... the court may give them the additional instructions.”) (emphasis added).

We find that the trial court did not abuse its discretion in telling the jury to rely on the instructions given. We base our finding on three grounds. First, we disagree with the defendant’s argument that the clear implication from the jury’s question, “[I]f it’s sent and not received is it transmission[?],” is that the jury believed the victim did not receive the photos via electronic mail. The jury was not asked to make, and did not make, a factual finding regarding whether the victim received the defendant’s photos via electronic mail. Further, the victim’s testimony provided competent, substantial evidence upon which the jury could have found that she received the defendant’s photos via electronic mail. In short, while the defendant’s presumption may be true, we will not read jurors’ minds to resolve today’s issue given the conflicting evidence.

Second, we disagree with the defendant’s attempt to focus on only the term “send” rather than considering section 847.0138 as a whole. See State v. Mason, 979 So.2d 301, 303 (Fla. 5th DCA 2008) (“Legislative intent is gathered from consideration of the statute as a whole.”). The statute punishes any person “who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor.” § 847.0138(2), Fla. Stat. (2007) (emphasis added). The legislature’s use of “believed” focuses on the person’s intent that the transmission be received, and not that the transmission was received. Applied here, the defendant believed he was transmitting his photos to a specific individual known by him to be a minor. The fact that the defendant believed he was doing so is the evil which the legislature seeks to correct through section 847.0138. See Longval v. State, 914 So.2d 1098, 1102 (Fla. 4th DCA 2005) (to discern legislative intent requires consideration of, among other things, “the evil to be corrected”). '

Third, even if we were to focus on only the term “send,” we do not necessarily agree with the two definitions of “send” which the defendant has asked us to apply to section 847.0138. The most recent Merriam-Webster online dictionary contains twenty-two different definitions of “send,” including the second definition which the defendant has asked us to apply here. See www.merriam-webster.com/dictionary/send (viewed Mar. 28, 2011). However, another definition of “send” from that dictionary is simply “transmit,” which, of course, is the very word which section 847.0138(l)(b) defines with the word “send.” Yet another applicable definition of “send” from that dictionary is “to dispatch by a means of communication.” Neither of these definitions would appear to require that the communication also be received.

In sum, we believe that if the legislature intended to punish a person for “transmitting an image, information, or data that is harmful to minors” only if the minor received the transmission, then the legislature would have said so in section 847.0138. The fact that the legislature did not say so tells us that the legislature’s intent is to punish those who believe they are transmitting harmful material via electronic mail to a minor, regardless of whether the minor receives the transmission. Thus, the trial court did not abuse its discretion by telling the jury, in response to the question, “[I]f it’s sent and not received is it transmission!;?],” to rely on the instructions given. Our supreme court’s reasoning in Perriman applies here:

An additional extemporaneous instruction would have run the risk of further confusing the jury: The judge ultimately told the jury to refer to the standard instructions, and these instructions, which present an accurate statement of the law, provided adequate guidance. ... [W]e cannot conclude on this record that no reasonable person would respond as the trial court did.

731 So.2d at 1247-48 (citing Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (“[Djiscretion is abused only where no reasonable man [or woman] would take the view adopted by the trial court.”)) (footnotes omitted).

Affirmed.

GROSS, C.J., and STEVENSON, J., concur.

      . The defendant notes that the first district quoted the second definition when it rejected a defendant’s constitutional challenge to section 847.0138. Simmons v. State, 886 So.2d 399, 404 (Fla. 1st DCA 2004).


author: EMAS, J.

text:
    GOLDEN GATE HOMES, LC, Appellant, v. Lewis J. LEVEY, Esq., Michele DeBianchi, and Levey Filler Rodriguez Kelso & DeBianchi, LLP, f/k/a Levey Airan Brownstein Friedman Roen & Kelso, LLP, Appellees.
    No. 3D10-1209.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.

      Geoffrey D. Ittleman, Fort Lauderdale, for appellant.
    Levey, Filler, Rodriguez, Kelso & DeBi-anchi, and John R. Kelso, Miami, for ap-pellees.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   EMAS, J.

Appellant, the plaintiff below, appeals an order dismissing with prejudice its second amended complaint. We review the trial court’s ruling de novo, Morin v. Fla. Power & Light Co., 963 So.2d 258 (Fla. 3d DCA 2007), and, accepting as true the well-pled allegations of the operative complaint, affirm in part and reverse in part.

I. INTRODUCTION

In 2003, Golden Gate Homes, LC (“Golden Gate”) retained the law firm of Levey Airan Brownstein Shevin Friedman Roen & Kelso, LLP (“Levey Airan”) to represent its interest in litigation against three companies: Golden Gate v. L & G Engineers (“L & G Litigation”); Golden Gate v. Smith, McLaughlin (“Smith Litigation”); and Golden Gate v. Caribbean Land Surveyors (“Caribbean Litigation”).

During the course of the L & G Litigation and the Smith Litigation, Levey Airan experienced difficulty responding to the opposing parties’ discovery requests. Le-vey Airan asserts that this failure was the fault of Golden Gate’s principal, Herman Zingg (“Zingg”), who refused to provide all the documents requested. Golden Gate claims that it was Levey Airan’s failure to respond to the discovery requests that led to the problems that followed. In the latter part of 2006, Levey Airan withdrew from representation of Golden Gate in both the L & G Litigation and the Smith Litigation.

Those cases eventually were concluded and, in May 2008, Golden Gate filed a complaint (which was amended twice thereafter) alleging two counts of professional malpractice and one count of negligent supervision against two attorneys, Lewis J. Levey, Esq. (“Levey”) and Michelle DeBianchi (“DeBianchi”), and the law firm of Levey Filler Rodriguez Kelso & DeBianchi, LLP (“Levey Filler”), f/k/a Levey Airan Brownstein Shevin Friedman Roen & Kelso, LLP. The discussion which follows summarizes the allegations of the complaint in the context of the two underlying lawsuits which form the basis for Golden Gate’s complaint: The Smith Litigation and the L & G Litigation.

II. SMITH LITIGATION

A. Background

The well-pled allegations of the complaint establish the following:

The Smith Litigation was set for trial in January 2007. Despite a 2005 court order compelling responses to Smith’s interrogatories and requests for production, Golden Gate’s principal (Zingg) appeared at his deposition duces tecum more than a year later, on September 29, 2006, with a suitcase containing nearly nine thousand additional documents which had not been previously produced. Zingg also testified that there were other pertinent documents “scattered either in friends’ or family homes and abroad” which had not yet been provided to Smith. Based on this late production, the existence of additional un-produced documents, and a looming trial date, Smith filed a motion to strike the trial date and for sanctions. Smith sought sanctions on the additional basis that Zingg had failed to review the produced documents in advance of the deposition, rendering the deposition itself largely futile. The court granted the motion to strike the trial date, but reserved ruling on the request for sanctions. Shortly thereafter, Levey Airan withdrew as counsel for Golden Gate, and Golden Gate hired a new attorney in December 2006. The new attorney was able to gather the remaining documents from Golden Gate, had them copied and produced to Smith, prompting the trial court to deny Smith’s renewed motion for sanctions. The trial court did, however, order Golden Gate to pay the costs associated with the document production-approximately $10,000. Golden Gate did not appeal this determination. The case was later settled by the parties.

Golden Gate alleged in its complaint for professional malpractice that appellees’ actions resulted in Golden Gate being assessed $10,000 in copying and production costs.

B. Discussion

We find that the trial court correctly determined, from the complaint and its attachments, that Golden Gate could not establish that appellees were responsible for the assessment of costs against Golden Gate in the Smith Litigation. Given the findings of the trial court in the Smith Litigation, the Smith trial court correctly determined that Golden Gate was responsible for the delayed discovery and was responsible for the costs of copying the documents which Golden Gate (through its principal, Herman Zingg) failed to properly and timely produce to Smith. The trial court in the instant action therefore properly dismissed the complaint to the extent it alleged claims arising from the Smith Litigation.

III. L & G LITIGATION

A. Background

The well-pled allegations of the complaint establish the following timeline in the L & G Litigation:

November 2003: Golden Gate hires Le-vey Airan, Levey, and DeBianchi to represent its interest as the plaintiff in the L & G Litigation.

March H, 2006: Following L & G’s notice that the case is ready for trial, the trial court issues an order setting trial on July 10, 2006. The trial is later continued to November 27, 2006.

May 2006: Pursuant to the trial court’s Uniform Order, L & G files its witness and exhibit list. Golden Gate does not file any witness list or exhibit list.

August 16, 2006: L & G serves Golden Gate with interrogatories and a request for production. Golden Gate does not respond timely or seek an extension of time to respond to the discovery.

September 25, 2006: L & G files an ex parte motion to compel Golden Gate to respond to the outstanding discovery.

September 28, 2006: The court enters an order compelling Golden Gate to respond to the outstanding discovery requests within fifteen days. Golden Gate does not file any response to the outstanding discovery requests.

October 26, 2006: Levey Airan moves to withdraw as counsel for Golden Gate.

October 30, 2006: The court grants Le-vey Airan’s motion to withdraw and, in light of the November 27, 2006, trial date, orders Golden Gate to obtain new counsel within fifteen days or face sanctions, including dismissal of its complaint.

November 6, 2006: New counsel files a motion on behalf of Golden Gate together with a conditional notice of appearance, stating that it would undertake representation of Golden Gate only if the court granted a continuance of the November 27th trial date.

November 14, 2006: Deadline for Golden Gate to obtain new counsel. No notice of appearance is filed by this date.

November 16, 2006: The trial court denies the motion for continuance (and therefore Golden Gate remains without counsel).

November 17, 2006: L & G moves to dismiss due to Golden Gate’s failure to obtain new counsel within the court-ordered fifteen-day time period.

November 22, 2006: The court grants L & G’s motion to dismiss, and enters an order dismissing the complaint without prejudice for failure to obtain new counsel.

December 12, 2006: Golden Gate retains new counsel and, twenty days after the trial court’s final order of dismissal, new counsel files a motion to reinstate the complaint, citing Golden Gate’s difficulty in obtaining new counsel as the reason for delay.

December 21, 2006: At the hearing on the motion for reinstatement of the complaint, Golden Gate’s new counsel argues that the statute of limitations has expired on its claims against L & G and that, absent a rfeinstatement of the complaint, its claims would be time-barred. Golden Gate also, argues that it should not be punished for Levey Airan’s failure to -file a witness and exhibit list. The trial court enters an order reinstating the complaint and resets the case for trial in March 2007.

January 16, 2007: At the hearing on L & G’s motion for reconsideration, the trial court vacates its December 21, 2006 order reinstating the complaint, concluding that it did not have jurisdiction to enter the reinstatement order. The trial court determines that Golden Gate’s motion for reinstatement was filed more than ten days after the final order of dismissal and was therefore untimely under Rule 1.530, Florida Rules of Civil Procedure. Further, the trial court finds that the motion for reinstatement did not set forth just cause or excusable neglect under Rule 1.540, Florida Rules of Civil Procedure, and therefore the motion reinstating the complaint should not have been granted pursuant to that rule. The trial court enters a final order dismissing Golden Gate’s complaint, and Golden Gate appealed. This Court affirmed the trial court’s order vacating the order of reinstatement. Golden Gate Homes, LC v. L & G Eng’g Servs., Inc., 974 So.2d 489 (Fla. 3d DCA 2008).

Thereafter, Golden Gate filed an action for legal malpractice seeking damages from Levey Filler, f/k/a Levey Airan, Le-vey, and DeBianchi, asserting that their actions during the L & G Litigation, together with their late withdrawal from the L & G Litigation, left Golden Gate without counsel who could come into the case and properly prepare for a trial that was less than thirty days away. Appellees moved to dismiss, contending that it was not their withdrawal from the case, but rather the independent, superseding actions of Golden Gate and its subsequent counsel that caused whatever losses Golden Gate claims to have suffered.

The trial court granted appellees’ motion to dismiss and, finding that it would be futile to permit Golden Gate a third opportunity to amend, entered the dismissal order with prejudice.

B. Discussion

Appellees contend that the actions of Golden Gate and its successor counsel, as described above, constitute intervening, superseding acts which, as a matter of law, break the chain of proximate causation and prohibit any claim that appellees’ conduct was the proximate cause of the losses suffered by Golden Gate.

While we offer no comment on the ultimate merits of Golden Gate’s claim, we do find that the issue of whether appellees were negligent, and if so, whether such negligence was the proximate cause of Golden Gate’s loss, cannot be made, as a matter of law, at this juncture of the case.

We first note that the fact that appellees had withdrawn from the case does not necessarily absolve them of any potential liability for subsequent events. Privity is not a requirement for a claim of professional negligence. Dadic v. Schneider, 722 So.2d 921 (Fla. 4th DCA 1999); Chipman v. Chonin, 597 So.2d 363 (Fla. 3d DCA 1992).

As the Florida Supreme Court observed in Law Office of David J. Stern, P.A. v. Security National Servicing Corp., 969 So.2d 962, 966 (Fla.2007), “a legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client.”

When ruling on a motion to dismiss for failure to state a cause of action, the trial court must “treat as true all of the ... complaint’s well-pleaded allegations, including those that incorporate attachments, and [should] look no further than the ... complaint and its attachments.” Morin, 963 So.2d at 260.

Treating as true the complaint’s well-pled allegations and incorporated attachments, we determine that there remain questions of fact whether appellees’ actions in the L & G Litigation (including the timing of their withdrawal from representation) constitute neglect of a legal duty and, if so, whether such negligence was the proximate cause of the loss to Golden Gate.

In Dadic, 722 So.2d at 922, plaintiffs retained Schneider to represent them-in a mechanic’s lien foreclosure. On the day trial was scheduled to begin, Schneider moved to withdraw from the case, citing an inability to have any meaningful communication with his clients and alleging a litany of abusive conduct by the clients toward counsel and others. At the hearing on the motion, plaintiffs agreed that Schneider should be permitted to withdraw and plaintiffs represented to- the court they would represent themselves and that they were ready to proceed with the trial. The court permitted Schneider to withdraw, and plaintiffs proceeded to trial without counsel ten days later.

Following a directed verdict in favor of the other side, the Dadics sued Schneider for legal malpractice, alleging, inter alia, a failure to properly investigate the case, failure to adequately conduct discovery, and failure to prepare the case for trial. The trial court granted summary judgment on the malpractice claim. The Fourth District reversed:

We recognize that the attorney-client relationship here ended before the ultimate conclusion of the underlying lawsuit. However, while employment is an element, an attorney need not be in privity with the client throughout the entire course of the underlying action. Where the attorney-client relationship ends before its conclusion, the question is whether the attorney proximately caused the client’s damages.
Proximate cause may be considered a question of law where reasonable minds cannot differ. However, here, reasonable minds could differ as to this in the event it is determined that Schneider did not perform adequate discovery. In such event, the Dadics’ loss might be attributable in part to him notwithstanding their subsequent actions in the litigation. An issue of fact also exists as to whether the Dadics’ actions constituted an intervening superseding cause negating any possible liability on the part of Schneider.

Id. at 923-24 (citations omitted).

In Dadic, as here, counsel’s withdrawal was with the consent (or absence of objection) of the client. The issue in Dadic, as here, was whether the timing of the withdrawal, combined with the allegations of counsel’s inadequate discovery, investigation, and preparation, constitute the neglect of a reasonable duty and, if so, whether such neglect was the proximate cause of the resulting loss to the client. Dadic, 722 So.2d at 923.

We recognize that Dadics’ counsel withdrew on the very day trial was scheduled to begin and the Dadics thereafter represented themselves (although the trial court continued the case for ten days before commencing the trial). In the instant case, appellees withdrew twenty-six days before the scheduled trial. However, Golden Gate could not represent itself in the litigation. As a result of Levey Air-an’s withdrawal, Golden Gate had fifteen days to find and hire an attorney who was ready, willing and able to take on. this three-year-old case and be prepared for trial eleven days later.. In addition, no witness list or exhibit list had been filed on behalf of Golden Gate at the time appellees withdrew.

Whether appellees neglected a reasonable duty and proximately caused Golden Gate’s loss (and whether the actions of Golden Gate and successor counsel were an intervening, superseding cause) are, at this stage, questions of fact arid not law. We conclude that Golden Gate pled a viable claim and the trial court erred in dismissing the complaint insofar as it alleges professional malpractice and negligence arising out of the L & G Litigation.

TV. LEVEY FILLER AS A PROPER PARTY

Finally, we determine that the trial court correctly dismissed Levey Filler as a party to this action. Golden Gate acknowledged that it employed the law firm of Levey Airan in 2003 to represent it in the underlying litigation, but is suing Levey Filler, an entity which Golden Gate contends merely represents a name change from the Levey Airan law firm.

However, it was established that each of the entities has a separate corporate existence and each remains an active corporate entity. Levey Filler was not even formed until 2007, after the date Le-vey Airan had withdrawn completely from, and was no longer representing Golden Gate in, the underlying litigation. The trial court determined that Levey Filler was not a proper party to this action, and we find no error in this determination. See Sure Snap Corp. v. Baena, 705 So.2d 46 (Fla. 3d DCA 1998).

V. CONCLUSION

We therefore reverse the trial court’s order insofar as it dismissed with prejudice that portion of the complaint alleging professional malpractice and negligence arising out of the L & G Litigation. We affirm in all other respects the trial court’s order, including that portion of the order dismissing Levey Filler as a party defendant.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.

      . Golden Gaté conceded that the order appealed from does not address the Caribbean Litigation, and that the Caribbean Litigation does not form a part of this appeal.

      . Golden Gate contends that the two entities (Levey Filler and Levey Airan) are actually one and the same, and that the Levey Filler firm simply represents a change in firm name from the Levey Airan firm. As we discuss infra at IV, we find this contention to be without merit.

      . Golden Gate attached Smith’s motion for sanctions, including the relevant excerpts of Zingg’s testimony, to the operative complaint.

      . Golden Gate did not appeal the order assessing costs, and later settled the Smith Litigation.

      . As discussed infra at IV, we find that the trial court correctly determined that Levey Filler is not a proper party to the complaint.

      . As an artificial entity, Golden Gate could not represent itself in the litigation; it was required to be represented by counsel. Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247 (Fla. 3d DCA 1985).

      . Ordinarily the trial court may not look beyond the complaint and its attachments in determining, on a motion to dismiss, whether a plaintiff sued the wrong defendant. See Mancher v. Seminole Tribe of Fla., Inc., 708 So.2d 327 (Fla.1998). In this case, however, Golden Gate did not object to the evidence provided to and relied upon by the trial court in its determination. In addition, both parties acknowledged here and in the court below that Levey Airan and Levey Filler are separate and active entities.