author: WALLACE, Judge.

text:
    Joseph CANNON and Vivian Cannon, Appellants, v. Robert FOURNIER, Fournier Construction LLC, Glenn Rose, Brenda Hoffman, and Andrew Hoffman, Appellees.
    No. 2D09-2614.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
    Rehearing Denied April 6, 2011.

      Paul U. Chistolini and William G.K. Smoak of McClain, Smoak & Chistolini, LLC, Tampa; and Patrick W. Harland, Jr., of the Law Firm of Patrick W. Har-land, Jr., LLC, St. Petersburg, for Appellants.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee Robert Fournier.
    No appearance for remaining Appellees.
   WALLACE, Judge.

An injured construction worker and his wife filed an action against the owners of the project under construction, a company that the owners had engaged to act as a “consultant” on the project, and the company’s agent. The company and its agent moved for summary judgment, contending that they did not owe a duty of care to the injured worker. The circuit court declined to enter a summary judgment in favor of the company. But the circuit court granted summary judgment in favor of the company’s agent and dismissed him from the action. The injured worker and his wife appeal. Because the record reflects genuine issues of material fact concerning the liability of the company’s agent, we reverse the circuit court’s order dismissing him from the action and remand for further proceedings.

I. THE FACTS

The claims at issue in this case arise from a construction site accident. On May 17, 2006, Joseph Cannon was working as a framer for the construction of a new residence on a lot in San Antonio, Florida, owned by Andrew and Brenda Hoffman. When the accident occurred, Mr. Cannon was woi’king on the second floor of the unfinished residence. He was using a pry bar to remove sheets of plywood that were covering a beam. The beam had been improperly installed and needed to be removed and replaced. Mr. Cannon was performing this task next to an exposed edge above the first floor. It had rained the previous day. Although the flooring was wet and slippery, Mr. Cannon was not wearing a safety harness, and there was no barrier separating him from the exposed edge while he worked.

While Mr. Cannon was manipulating his pry bar to remove the plywood sheeting, he slipped and fell over the exposed edge to the cement floor below. After his fall, Mr. Cannon was transported by helicopter to a hospital for treatment. He sustained serious, permanent injuries as a result of the fall.

Joseph and Vivian Cannon subsequently filed an action for damages against Andrew and Brenda Hoffman. The Cannons also sued Fournier Construction, LLC (the LLC), and Robert Fournier. The LLC is a licensed general contractor, and Mr. Fournier is its qualifying agent. For reasons that will be explained below, the precise role of the LLC on the Hoffmans’ project has been the subject of considerable controversy in the circuit court and in this appeal. Finally, the Cannons sued Glenn Rose, a framing contractor hired by the Hoffmans.

When the Hoffmans decided to begin the construction of their new residence on a lot they already owned, they spoke with Mr. Fournier. He was employed as a superintendent for a large homebuilder and had substantial experience in residential construction. Mr. Fournier had obtained his general contractor’s license in 2005. Afterward, he established the LLC and served as its qualifying agent. Mr. Fournier was also the sole member, agent, and employee of the LLC.

After a round of preliminary discussions and negotiations, the Hoffmans decided to engage Mr. Fournier to build their new residence. However, the conditions of Mr. Fournier’s employment with • the large homebuilder prohibited him from acting as a general contractor for others. To avoid this troublesome restriction, Mr. Fournier and the Hoffmans conceived an approach whereby Mr. Fournier would act as a consultant — instead of as a general contractor — in connection with the construction of the Hoffmans’ new residence. As the owners of the property, the Hoffmans would obtain the necessary permits to build the residence and hire and pay the trade contractors and material suppliers directly.

To this end, Mr. Fournier prepared a Consulting Proposal (the Proposal) for the Hoffmans’ consideration. The Proposal, which is between the LLC and Andrew Hoffman, is only one page long. Attached to it are two additional pages consisting of cost estimates for the labor and materials necessary to construct the planned residence.

Under a heading for the description of the consulting services to be provided by the LLC, the Proposal says only this: “Fournier Construction LLC is solely acting as a Consultant to the Hoffman ‘Owner/Builder’ home build of the above-mentioned property.” With regard to the Hoffmans’ responsibilities and duties, the Proposal provided:

Homeowner acknowledges that he will be responsible for obtaining and paying directly for all permits, builder’s risk policies, soil tests, etc. Homeowner acknowledges and understands that he will be responsible for paying for all associated subcontractor costs, etc., to the subcontractor directly.
Homeowner acknowledges and agrees that all Warranties of work performed will be fulfilled directly by the Florida Licensed Subcontractor who performed the work, and hereby waives any right to hold Fournier Construction LLC liable for any services provided by that said Contractor/Proprietor.

For the LLC’s consulting services — whatever they were — the Hoffmans agreed to pay the LLC a total of $22,100 in three separate installments. The first installment was due upon acceptance of the Proposal. The remaining two installments were to be paid upon the completion of designated stages of the construction. The LLC and Mr. Hoffman executed the proposal on September 14, 2005. The Hoffmans paid the initial installment to the LLC, and the project commenced.

In view of the litigation that followed Mr. Cannon’s unfortunate fall and resulting injuries, the Proposal is disappointingly vague concerning the nature and extent of the services that the LLC was to perform for the Hoffmans. A review of the relationship between the parties and what Mr. Fournier actually did is far more informative on this question. With regard to the parties’ relative sophistication concerning construction, neither of the Hoff-mans had any experience in building a residence. On the other hand, Mr. Four-nier was a licensed general contractor. Moreover, he had been employed in the construction industry for many years and had substantial experience in residential construction. Thus the Hoffmans were necessarily dependent on Mr. Fournier for his assistance in all aspects of planning, organizing, and supervising the construction of their new residence. At his deposition, when asked to describe Mr. Fournier’s role on the project, Mr. Hoffman said: “Well, he’d be basically building [the residence] ‘cause I know nothing about it.” Notably, both Mr. and Mrs. Hoffman testified in their depositions that they relied on Mr. Fournier with regard to compliance with applicable building codes, state and local ordinances, and job site safety requirements imposed by the Occupational Safety and Health Administration and others.

The evidence in the record also reflects that Mr. Fournier assumed or performed a number of responsibilities in connection with the project. First, he accompanied Mrs. Hoffman to the local building department and helped her obtain the necessary permit to build the residence. Second, Mr. Fournier recommended trade contractors to the Hoffmans and assisted them in securing the services of the contractors that they selected. Third, Mr. Fournier visited the job site at least once per week and more often if there was a problem that required his attention. Fourth, Mr. Four-nier called for the necessary inspections as the work progressed; on occasions when the work did not pass inspection, he spoke with the inspector and handled the matter. Finally, as we will see in more detail in the discussion below of the events that led to Mr. Cannon’s fall, Mr. Fournier consulted with the trade contractors on the solution to defects or problems encountered in the construction of the residence.

Although the Proposal characterized the LLC’s role on the Hoffman project as a consultant and not as a general contractor, Mr. Fournier placed a sign on the construction site that read, “Fournier Construction, LLC, Owner Builder.” The uncertain nature of Mr. Fournier’s role on the project apparently caused a considerable amount of confusion on the part of the trade contractors and suppliers. Numerous trade contractors and suppliers sent their invoices directly to the LLC or to Mr. Fournier. In turn, Mr. Fournier gave the invoices to the Hoffmans for payment. In addition, at least one of the trade contractors named Mr. Fournier as the contractor for the job on the notice to owner that it sent to the Hoffmans.

Thus the course of dealings between the LLC and the Hoffmans demonstrates that the LLC performed many of the functions that a general contractor would normally perform on a comparable residential construction project — with one important exception. Neither the LLC nor Mr. Fournier directly hired and paid the trade contractors and suppliers. This function remained the responsibility of the Hoffmans.

Although the Hoffmans generally hired trade contractors who were recommended to them by Mr. Fournier, this was not the case with Glenn Rose, the framing subcontractor. Instead, Mr. Hoffman obtained a referral to Mr. Rose through a friend, and Mr. Hoffman hired Mr. Rose to perform the framing work on the project. In turn, Mr. Rose recruited Mr. Cannon to assist him with the framing. Mr. Cannon began work at the job site on Wednesday, May 10, 2006, one week before his fall.

Before the day of the accident, Mr. Rose and Mr. Cannon identified a problem with the installation of a beam that was designed to support the second floor of the residence. Mr. Rose notified both Mr. Fournier and Mr. Hoffman about this problem. On the morning of May 17, Mr. Fournier and Mr. Hoffman met with Mr. Cannon at the job site to discuss the problem and to review the plan that Mr. Rose and Mr. Cannon had devised to correct it. Mr. Rose was not present for the meeting because he was running an errand. Thus Mr. Cannon described the problem and the proposed corrective measures to the other two men. According to Mr. Cannon, Mr. Fournier responded: “[Tjhat sounds good, that sounds like the only way .you can do it, go for it.” Mr. Hoffman, who was also present at the meeting, testified in his deposition that he believed that “Mr. Four-nier had a comfort level with the proposal as to how to fix the problem.” It is undisputed .that there was no discussion about the implementation of any safety measures before undertaking the corrective work.

After the meeting, Mr. Cannon went to the second floor and began using his pry bar to remove the plywood sheeting that was covering the beam. It was during this operation that he slipped and fell over the exposed edge. After the accident, the parties learned that Mr. Rose did not have any workers’ compensation insurance in effect. Mr. Rose left the job site the day after Mr. Cannon fell, leaving the framing job unfinished.

As alleged in the complaint, the theory of the Cannons’ action against the LLC and Mr. Fournier was that the LLC and Mr. Fournier

had a duty to perform all work necessary for constructing the Home in a competent, safe and workmanlike manner consistent with general construction practices, and in accordance with the terms, conditions, plans and specifications of the construction plans, and in compliance with all applicable Federal, State’and local building codes, statutes, rules, and ordinances, for the protection of others, including Joseph Cannon.

The Cannons alleged further that the LLC and Mr. Fournier had breached their duty of care in a variety of ways, causing the fall which resulted in Mr. Cannon’s serious injuries. The LLC and Mr. Fournier answered the complaint and raised numerous affirmative defenses.

Both the LLC and Mr. Fournier moved for summary judgment. Relying on the language of the Proposal, the LLC and Mr. Fournier argued that the LLC was nothing more than a consultant on the project and that it did not act as a general contractor. The LLC and Mr. Fournier contended that because the LLC had undertaken only to act as a consultant, neither of them had any duty to construction workers — such as Mr. Cannon — to maintain the job site in a reasonably safe condition. The LLC and Mr. Fournier concluded that the absence of such a duty required the entry of a summary judgment in their favor.

At the hearing on the motion for summary judgment, the circuit court had before it the depositions of Mr. Cannon, Mr. Fournier, Mr. Hoffman, and Mrs. Hoffman. The exhibits attached to the depositions include copies of the Proposal, the application for the building permit, an Owner/Builder Affidavit signed by Mrs. Hoffman when she obtained the building permit, the building permit itself, some invoices that were sent to the LLC and to Mr. Fournier, a notice to owner referring to Mr. Fournier as the contractor, and a photograph of the location where Mr. Cannon fell. In addition, the LLC and Mr. Fournier filed an affidavit from a construction safety expert in support of their position; the Cannons filed an opposing affidavit from another construction safety expert.

The trial court heard extensive arguments from the parties on the motion for summary judgment. Before ruling, the conscientious trial judge appears to have familiarized herself with the pertinent portions of .the depositions and other materials in the record. In announcing her ruling on the potential liability of the LLC, the trial judge said, in pertinent part:

The thing that I do look at a little more strongly is that there was a written agreement at all, and there was, and it is titled a consultant agreement.
However, Mr. Fournier’s normal business and job title is as a general contractor; and at first blush when you look at the — you see the consulting contract, initially I was leaning towards the fact that that would not create a duty on Mr.— Mr; Fournieris part by being simply a consultant, but there are some indicators ... that perhaps it was more — a more hands-on type of involvement by Mr. Fournier than simply a stand-in-back-in-the-office consultant- type like a — you know, even an engineer or an architect can be held liable for obviously many, many aspects of their involvement.
With Mr. Fournier-I came to the conclusion that the primary reason why he did a consulting agreement as opposed to a general contractor-type position was almost, if not exclusively, primarily because of his’ contractual obligations to [the large homebuilder].
And with the testimony of Ms. Hoffman, I — I myself begin to have a question as to his involvement and whether or not this was truly a hands-off, consultation-type situation or if, in fact, he was more of a general contractor and more in control of the site.
That I believe rose to the level — and I did not find that that issue was crystallized beyond — with complete clarity to where I could grant [the] motion for summary judgment as to Fournier Construction, LLC.

Thus the trial court focused on the evidence in the record reflecting the extent of the LLC’s control of the job site in declining to grant a summary judgment in its favor.

On the other hand, with regard to the potential liability of Mr. Fournier, the trial judge explained her ruling as follows:

However, I have heard absolutely no — no grounds, no — I have not seen a shred of anything anywhere where Mr. Fournier is alleged to be individually liable.
The consulting contract is clearly in the name of Bob — Mr. Fournier, LLC, and everything appears to reference towards that, so I will grant [the] Motion for Summary Judgment as to Robert Fournier, individually, but I will deny as to Fournier Construction, LLC.

Thus the trial court granted the summary judgment in favor of Mr. Fournier individually. The Cannons appeal the order dismissing Mr. Fournier as a defendant in the action.

II. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

III. DISCUSSION

The circuit court’s ruling denying summary judgment for the LLC but dismissing Mr. Fournier from the action is inconsistent. During the events in question, Mr. Fournier was the only member of the LLC and he was its sole agent and employee. Thus, anything that the LLC did in connection with the construction of the Hoffmans’ residence, it did by and through Mr. Fournier. “[Ojffieers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment.” White v. Wal-Mart Stores, Inc., 918 So.2d 357, 358 (Fla. 1st DCA 2005) (citing McElveen v. Peeler, 544 So.2d 270, 271-72 (Fla. 1st DCA 1989)); see also Moore v. PRC Eng’g, Inc., 565 So.2d 817, 820 (Fla. 4th DCA 1990) (holding that both an engineering company hired as a general consultant on a highway project and the company’s supervising engineer could be held liable to an injured employee of the general contractor for alleged negligence in supervision and in performing its function as the engineer on the project). The same rule applies to limited liability companies. See Young v. Hamilton, 92 Fed.Appx. 389, 392 (9th Cir.2003); Vertrue Inc. v. Meshkin, 429 F.Supp.2d 479, 503 (D.Conn.2006); Hoang v. Arbess, 80 P.3d 863, 867-68 (Colo.App.2003). Thus, to the extent that the LLC could be held liable for its acts or omissions in connection with the construction of the Hoffmans’ residence, Mr. Fournier may be held liable as well. The circuit court was mistaken in reaching a contrary conclusion.

The circuit court’s ruling that there was no genuine issue of material fact concerning Mr. Fournier’s liability for any negligent acts or omissions of the LLC was in error. But under the “tipsy coachman doctrine,” we are bound to affirm the circuit court’s order if it reached the correct result, even if it reached that result for the wrong reason. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); Johnson v. Allstate Ins. Co., 961 So.2d 1113, 1115 (Fla. 2d DCA 2007). Thus we must determine whether the circuit court reached the -correct result in granting the summary judgment in favor of Mr. Fournier and in dismissing him from the action. To ascertain whether the trial court committed reversible error in granting the summary judgment in favor of Mr. Fournier, we must determine whether there are facts in the record that would support a determination that the LLC owed a duty of care to construction workers such as Mr. Cannon. If so, then the jury could find Mr. Fournier liable with the LLC for a breach of that duty.

On' this appeal, the parties have addressed their arguments mainly to the question of whether the LLC was acting as a general contractor in connection with the construction of the Hoffmans’ residence. The Cannons contend that the consulting arrangement should be disregarded as a sham and that the LLC was actually acting as a general contractor. The Cannons conclude that as a general contractor, the LLC had “the duty to provide a safe construction work site” and could be held “liable for a dangerous condition [it] negligently created or approved.” See generally J.E. Macy, Annotation, General Contractor’s Liability for Injuries to Employees of Other Contractors on the Project, 20 A.L.R.2d 868 (1952). Mr. Fournier responds that the LLC contracted only to provide consulting services and never assumed the duties of a general contractor on the Hoffman project. Mr. Fournier concludes that because the LLC was acting only as a consultant, neither he nor the LLC owed a duty of care to workers on the job site such as Mr. Cannon.

In short, the parties disagree about whether the LLC should be labeled as a “general contractor” or something else. Their legal conclusions about the extent of the LLC’s duty to provide a safe place to work stem from the label to be applied to it. We think a narrow focus on determining how the LLC can best be labeled is not the correct approach to-resolving the issue before us. The circuit court went to the heart of the issue about the extent of the LLC’s duty by looking at the facts in the record concerning the functions that the LLC assumed in connection with the project.

As the circuit court properly noted in its ruling, there is evidence in the record that would support a finding that Mr. Fournier’s involvement in the project was “hands-on.” Comparing Mr. Fournier to professionals who are frequently involved in construction projects, the circuit court observed that “even an engineer or an architect can be held liable for ... many, many aspects of their involvement.” The circuit court continued by correctly identifying the critical point as the extent of the LLC’s control over and supervision of the job site. A person, or entity that controls and supervises the job site has a duty to provide workers on the job with a safe place to work. See Worthington Cmtys., Inc. v. Mejia, 28 So.3d 79, 83-85 (Fla. 2d DCA 2009); Garcia v. Biltmore Court Villas, Inc., 534 So.2d 1173, 1175 (Fla. 3d DCA 1988). If the LLC assumed such a duty voluntarily or by contract, it may be held liable to workers who sustain injuries on the job caused by a breach of that duty without regard to whether the LLC was acting as a general contractor. See, e.g., Conklin v. Cohen, 287 So.2d 56, 60-61 (Fla.1973) (architect); Juno Indus., Inc. v. Heery Int'l, 646 So.2d 818, 824-26 (Fla. 5th DCA 1994) (engineer); Moore, 565 So.2d at 820 (engineer); Geer v. Bennett, 237 So.2d 311, 315-16 (Fla. 4th DCA 1970) (architect); Hammond v. Bechtel Inc., 606 P.2d 1269, 1276 (Alaska 1980) (construction manager); Riggins v. Bechtel Power Corp., 44 Wash.App. 244, 722 P.2d 819, 823-24 (1986) (construction engineer). See generally Philip H. Partridge & Vincent A. No-letto, Jr., Construction Management: Evolving Roles and Exposure of Construction Managers and Architects/Engineers, 12 Am. J. Trial Advoc. 55, 69-76 (Summer, 1988); John I. Spangler, III & William M. Hill, The Evolving Liabilities of Construction Managers, 19 Construction Law. 30, 31-33 (Jan. 1999); Christi L. Underwood, Rights and Liabilities of Construction Managers, in Florida Construction Law and Practice §§ 4.27-.29 (Fla. Bar CLE 5th ed. 2006).

In this case, the Proposal was essentially silent concerning the nature and extent of the duties assumed by the LLC on the Hoffman project. But there was evidence in the record before the circuit court that the LLC had undertaken most of the functions that one would expect a general contractor to perform on a residential construction project. These functions included regular visits to the job site and addressing problems encountered on the job with inspectors and trade contractors. And the functions that the LLC declined to assume — the direct hiring and payment of trade contractors and material suppliers — had little or no relation to control and supervision of the job site. Furthermore, the Hoffmans had no experience in residential construction. They necessarily relied exclusively on Mr. Fournier for compliance with applicable laws, ordinances, and safety requirements.

Perhaps the most telling indicator in the record of the LLC’s assumption of responsibility for control of the job site arises from the framing contractor’s request for Mr. Fournier’s approval of a plan for the correction of the problem with the beam that had been improperly installed. Both Mr. Rose and Mr. Hoffman spoke with Mr. Fournier by telephone about the problem and about the manner in which it could be corrected. In addition, Mr. Fournier met with Mr. Cannon and Mr. Hoffman at the job site before the repair began in order to review the problem and to evaluate the plan for its correction. Although Mr. Rose was absent on an errand, Mr. Cannon reviewed the problem with Mr. Fournier and obtained his approval of the corrective plan before proceeding further. This evidence would support an inference that Mr. Fournier was in control of the job site to the extent that he had the ability to require the initiation of a fall protection plan before Mr. Cannon began using his pry bar on a wet, slippery floor next to an exposed edge on the second floor of the project.

IV. CONCLUSION

There was evidence in the record before the circuit court sufficient to create issues of material fact concerning the LLC’s responsibility — and thus Mr. Fournier’s as well — for control of the job site and supervision of matters relating to safety on the job. These issues of material fact precluded the entry of summary judgment for both the LLC and its agent, Mr. Fournier. For these reasons, we reverse the circuit court’s order to the extent that it dismissed the Cannons’ action against Mr. Fournier. We remand this case to the circuit court for further proceedings.

Reversed in part and remanded.

WHATLEY and MORRIS, JJ., Concur.

      . Because the circuit court's order completely disposed of the case against the company’s agent, this court has jurisdiction under Florida Rule of Appellate Procedure 9.110(k). See Kidweli v. Gen. Motors Corp., 975 So.2d 503, 504 (Fla. 2d DCA 2007).

      . The facts — which are drawn from the pleadings, the depositions of the parties, and the affidavits in the record. — are reviewed in the light most favorable to the injured conslruction worker and his wife as the nonmoving parties against whom the summary judgment was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 258-59 (Fla.2002). The accounts of the pertinent events offered by the parties in their depositions are not entirely consistent. In particular, the deposition testimony of Robert Fournier, the company’s agent, differs from the statement of the facts presented here concerning a number of significant details.

      . See § 713.06, Fla. Stat. (2005).

      . We note that workers' compensation immunity was not asserted as a defense in the circuit court.

      . Alternatively, Mr. Fournier argues that even if the LLC had agreed to act as a general contractor on the Hoffman job, it "would not have had the legal obligation to supervise [Mr. Cannon] in the performance of his work and has no liability to an independent contractor injured while engaged in his own work.” Thus Mr. Fournier would not have had any liability either.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    MGM CONSTRUCTION SERVICES CORP., Appellant, v. TRAVELERS CASUALTY & SURETY CO. OF AMERICA, et al., Appellees.
    No. 3D10-203.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Diane S. Perera and Adam D. Sherman, Miami, for appellant.
    Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and Matthew L. Lines, Miami, for appellee University of Miami; Lydecker Diaz, LLC, and Peggy Fisher, Miami, for appellees Maleta Construction Co. and Travelers Casualty & Surety Co. of America.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

MGM Construction Services Corp. (“the Subcontractor”) appeals from a summary final judgment in favor of Maleta Construction Co. (“the Contractor”), Travelers Casualty & Surety Co. of America (“Travelers”), and the University of Miami (“UM”). The trial court determined that as a matter of law, a subcontract entered into with an unlicensed subcontractor should be automatically dishonored in the courts of Miami-Dade County. Finding unresolved and disputed issues of material fact, we reverse.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Facts Leading to Motions for Summary Judgment

The Contractor hired the Subcontractor to perform drywall and stucco work on four projects in Miami-Dade County, two of which were located at UM. As so often happens, a dispute arose between the parties before completion of the labor. The Subcontractor ceased working and filed claims of lien on all four projects. In June 2006, the Contractor sued the Subcontractor, alleging breach of contract and fraud in the inducement, and seeking discharge of the liens.

The Subcontractor responded with thirty-two counterclaims for breach of contract, conversion, and foreclosure of its liens. By way of a third-party complaint, the Subcontractor also sued UM and Travelers. The Subcontractor sued Travelers on the basis of the bonds obligating Travelers to pay the projects’ Subcontractors for the labor and material expenses they incurred on behalf of the Contractor. The Subcontractor also sought to foreclose the liens on UM’s property which the Subcontractor claims are contractually authorized.

The Contractor, Travelers, and UM all submitted affirmative defenses, including the defense of illegality/unenforceability of contract. Those defenses were based on the fact that the Subcontractor did not possess a specialty contractor’s license as required by the Miami-Dade County Code of Ordinances (“MDCO”). See Miami-Dade, Fla., Code § 10-3 (2009) (“It shall be unlawful for any person, firm, joint venture, or corporation to engage in the business or act in the capacity of contractor or subcontractor ... without ... there having been issued a current valid certificate of competency or eligibility for the type 'of work donef.]”). In October 2008, the Contractor, UM, and Travelers (collectively, “the moving parties”) ah moved for summary judgment on the contract-based counts in the Subcontractor’s counterclaim and third-party complaint.

B. First Version of Summary Judgment Arguments

At first, the moving parties focused on section 489.128(1), Florida Statutes (2008), which provides that “[a]s a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” Furthermore, subparagraph (l)(a) provides in part that “[f]or purposes of this section, if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed.” (Emphasis added). Accordingly, the original arguments made by the moving parties may be fairly summarized as follows: (1) the MDCO requires a local license; (2) the Subcontractor never possessed such a license; (3) section 489.128 provides that such a contractor is unlicensed; and therefore (4) under the express language of section 489.128(1), the subcontract was unenforceable by the Subcontractor.

“Case closed,” it seemed, and as the trial court noted, the moving parties appeared destined for certain victory. “But,” in the immortal words of Phil Collins, “something happened on the way to heaven.”

C. Amended Summary Judgment Arguments and Decision

In 2009, the Legislature amended the last sentence of section 489.128(l)(a) to read: “For purposes of this section, if a state license is not required for the scope of the work to be pei'formed under the contract, the individual performing that work is not considered unlicensed.” § 489.128(l)(a), Fla. Stat. (2009) (emphasis added); see Ch. 2009-195, § 38, at 1955, Laws of Fla. (detailing amendments to section 489.128(l)(a)). The Legislature removed the “or local license” language, and that change applied retroactively not only to contracts entered into on or after October 1, 2000, but also to “all actions pending when this act becomes a law,” or on October 1, 2009. Ch. 2009-195, §§ 66, 68, at 1972, Laws of Fla. The bottom-line result of these changes was that the Subcontractor’s lack of a local license no longer triggered the unenforceability provision of section 489.128(1).

Despite the 2009 amendments to the law, the moving parties continued to pursue their summary judgment motions, arguing that the Subcontractor’s violation of the MDCO, standing alone, was sufficient to render the subcontracts unenforceable as a matter of law. Unlike section 489.128(1), the MDCO does not expressly provide that contracts entered into by unlicensed contractors will be rendered unenforceable by the unlicensed party. However, the MDCO specifically provides a number of civil and administrative penalties for unlicensed contracting. See § 10-14 (providing grounds for discipline, penalties, and enforcement). In addition, section l-5(a) provides generally that any violation of the MDCO may subject the wrongdoer to a criminal fine or up to sixty days in jail. Thus, the moving parties argued that the subcontracts were entered into against public policy, and under the general rule of Florida, they “may not be made the basis of any action either in law or in equity.” Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818, 823 (Fla.1953).

The trial court issued an order granting the moving parties’ motions for summary-judgment. The trial court found that the subcontracts were, pursuant to the MDCO, unlawful, and therefore unenforceable. The trial court entered summary final judgment and this appeal followed.

II. ANALYSIS

A. Standard of Review

The applicable standard of review is de novo, and summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The existence of an unresolved or disputed issue of material fact precludes summary judgment. MacKendree & Co., P.A. v. Pedro Gallinar & Assocs., P.A., 979 So.2d 973, 976 (Fla. 3d DCA 2008).

B. The Dial Court’s Order

Following the 2009 amendments to section 489.128, the issue before the trial court was substantially modified. The Subcontractor was unlicensed in violation of the MDCO, which subjects violators to a number of potential administrative, civil, and criminal penalties. However, the MDCO is silent as to whether a violation has any effect on the enforceability of the underlying contract. Accordingly, at the final summary judgment hearing, the trial court heard argument on whether and to what extent the Subcontractor’s violation of the MDCO affected the enforceability of the subcontracts.

At this point, it is important to note something that the trial court did not do. The trial court did not make an explicit finding that the Subcontractor and the Contractor were both guilty of some form of wrongdoing, and that therefore, both parties are equally prohibited from obtaining relief based on the contract. In those situations, “as we pontifically say in the law,” the parties are in pari delicto, and a court will not lend its aid to either party, “but will leave the parties where they place themselves.” Castro v. Sangles, 637 So.2d 989, 991 (Fla. 3d DCA 1994); see also Black’s Law Dictionary 806 (8th.ed. 2004) (noting that under the in pari delicto doctrine, “a plaintiff who has participated in a wrongdoing may not recover damages resulting from the wrongdoing”). The trial court did not make such a finding, and from our review of the record, it does not appear this case would fit the parameters of the in pari delicto doctrine.

What the trial court did rule was that simply because the Subcontractor was unlicensed, in violation of the MDCO — a legislative instrument providing administrative, civil, and criminal penalties for violations — as an automatic matter of law, the subcontracts were rendered void, and the Subcontractor was prohibited from obtaining any remedy from the courts. The reasoning behind the trial court’s ruling can be summed-up in the following “undoubted rule” expressed by the Florida Supreme Court': “ ‘[WJhere a statute pronounces a penalty for an act, a' contract founded upon such act is void, although the statute does not pronounce it void or expressly prohibit it.’” Town of Boca Raton v. Raulerson, 108 Fla. 376, 146 So. 576, 577 (1933) (quoting Berka v. Woodward, 125 Cal. 119, 57 P. 777, 779 (1899)). Nevertheless, for the reasons that follow, we conclude that the trial court’s decision was error.

C.The Trial Court Erred in Summarily Determining that the Subcontractor Is, As an Automatic Matter of Law, Entitled to No Remedy

1. The Need for Flexibility

The fundamental problem with an inflexible rule is that it opens the door to substantial injustice in certain cases. The applicable legislative body — here the Miami-Dade Board of County Commissioners — was free to require that contracts entered into by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed party. See Metro. Dade Cnty. Fair Hous. & Emp’t Appeals Bd. v. Sunrise Vill. Mobile Home Park, Inc., 511 So.2d 962, 965 (Fla.1987) (noting that under Florida’s Constitution, the government of Miami-Dade County may exercise the same legal powers as any other municipality, and that under section 166.021(3), municipalities may “enact legislation concerning any subject matter upon which the state legislature may act”). However, in the present case, that legislative body did not elect to do so. Thus, whether the penalty of unenforceability should be applied in any given case falling under the MDCO is a decision that was effectively delegated to the courts.

And that decision is by no means an easy one. Inevitably, there will be situations in which an inflexible rule precluding any recovery by an unlicensed subcontractor cannot be applied in good conscience. For example, in Dow v. United States for Use & Benefit of Holley, 154 F.2d 707, 708 (10th Cir.1946), the court was faced with a lawsuit brought by Holley, a subcontractor, against Dow, the general contractor on a construction project on an army air base in Utah. Holley completed the work under the subcontract. Id. at 711. Holley, however, was unlicensed, in violation of a Utah law making it unlawful “to.engage in the business or act in the capacity of contractor within the state without having a license.” Id. at 710. The Utah law provided a penalty for violations, but nowhere did it explicitly state that a contract entered into with an- unlicensed party would be unenforceable. Id.

The Tenth Circuit -noted that ordinarily, Holley, as an unlicensed subcontractor in violation of Utah law, would be unable to enforce his rights under the contract with Dow. Id. However, the court held, “[bjoth contracts having been completed and Dow having received payment in full, it would not further the letter or the spirit of the law to allow him to escape liability for the unpaid balance due Holley by asserting the illegality of the subcontract.” Id. at 711. Thus, the Dow case stands for the proposition that in the absence of legislative direction, a hard and fast rule declaring contracts unenforceable is bound to result in inequitable or absurd outcomes in certain situations, and that some flexibility in the decision-making process is required.

Two competing needs confound the courts as decision makers. First is the need to shield the general public from shoddy workmanship. Second is the need to protect unlicensed parties from being preyed upon by unscrupulous owners and general contractors as demonstrated in the Dow case. On this subject, the authors of Corbin on Contracts have stated:

The statute clearly may protect against fraud and incompetence. Yet, in very many cases the situation involves neither fraud nor incompetence. The unlicensed party may have rendered excellent service or delivered goods of the highest quality. The noncompliance with the statute may be nearly harmless. The real defrauder may be the defendant who will be enriched at the unlicensed party’s expense by a court’s refusal'to enforce the contract. Although courts have yearned for a mechanically applicable rule, most have not made one in the present instance. Justice requires that the penalty should fit the crime.... The statute fixes its own penalties, usually a fíne or imprisonment of a minor character with a degree of discretion in the court. The added penalty of unenforceability of bargains is a judicial creation. In many cases, the court may be wise to apply this additional penalty. When nonenforcement causes great and disproportionate hardship, a court must avoid nonenforcement.

15 Corbin on Contracts § 88.3, at 577-78 (rev. ed. 2003).

In other words, all violations of licensing statutes are not created equally, and the courts faced with whether to add the penalty of non-enforceability to a violation of a licensing provision, where the statute or ordinance does not provide for such a penalty, must take a flexible approach. The violation of a licensing provision does implicate concerns over whether the other party and the public at large are sufficiently protected from shoddy workmanship. However, the mere existence of a violation, standing alone, is insufficient to automatically trigger the judicial penalty of unenforceability.

In the present case, the trial court added the penalty of unenforceability to the MDCO based on the mere fact that the Subcontractor violated the MDCO’s license requirement.- This was error. While the trial court correctly noted that the Subcontractor’s violation implicated concerns over whether the public was being sufficiently protected from shoddy workmanship, it did not consider whether any other factors weighed in favor of the need to avoid non-enforcement. In short, the trial court applied a hard and fast rule, not the flexible approach required to ensure the prevention of injustice.

2. The Restatement Approach

In the Restatement (Second) of Contracts, the authors illustrated how courts should determine, in the absence of legislative direction, whether a party’s failure to comply with a licensing requirement should trigger the penalty of non-enforceability. This Court is persuaded that the Restatement framework provides appropriate guidance on how to flexibly approach the question of whether to add the penalty of non-enforceability. The framework provided is as follows:

If a party is prohibited from doing an act because of his failure to comply with a licensing, registration, or similar requirement, a promise in consideration of his doing that act or his promise to do it is unenforceable on grounds of public policy if
(a) the requirement has a regulatory purpose, and
(b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.

Restatément (Second) of Contracts § 181 (1981).

It bears mentioning that the trial court did correctly determine that the MDCO has a regulatory purpose, and is more than a mere revenue-raising measure. The trial court noted that the MDCO requires a prospective contractor to possess and maintain a certain level of experience, aptitude, and public liability insurance. We therefore agree with the trial court that the licensing requirement in the MDCO is a regulatory measure.

Under the Restatement’s approach, the next step for the trial court'was to determine whether the public policy behind the MDCO clearly outweighed the interest in allowing the Subcontractor to enforce the Contractor’s promise. To that end, the Restatement identifies a number of factors that should be taken into account:

(2) In weighing the , interest in the enforcement of a term, account is taken of
(a) the parties’ justified expectations-,
‘(b) any forfeiture that would result if enforcement were denied, and
(c) any special public interest in the enforcement of the particular term.
(3) In weighing a public policy against enforcement of a term, account is taken of
(a) the strength of that policy as manifested by legislation or judicial decisions,
(b) the likelihood that a refusal to enforce the term will further that policy,
(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and
(d) the directness of the connection between that misconduct and the term.

Restatement (Second) of Contracts § 178 (1981).

As previously noted, not all violations of a licensing requirement are created equally. With no great stretch of the imagination, one can envision a situation in which a contractor is “unlicensed” due to a late or missed payment. Perhaps an illness prevented someone from keeping current with their continuing education requirements. An' unlicensed subcontractor may have performed as contracted, providing the required quality and timeliness, only to be left uncompensated by a contractor who hired the subcontractor with the full knowledge that he was unlicensed. The possibilities are endless, but they emphasize the wisdom in applying a flexible approach when judicially determining whether the penalty of non-enforceability should be applied. The above-listed factors are not exclusive, and they need not be considered individually or in exhaustive detail. However, they pose material questions, and summary judgment is inappropriate until the facts are developed to the point where those questions can be answered.

In this case, the trial court automatically added the judicial penalty of non-enforceability after taking into account the fact that the Subcontractor violated the MDCO, and the MDCO exists to protect the public from shoddy workmanship. While consideration of the various relevant factors may ultimately lead the trial court to the same conclusion, the analysis was incomplete, and thus summary judgment was inappropriate.

3. The Unique Interests Involved in the Contractor/Subcontractor Context

As noted above, the trial court’s error lies in the fact that it failed to consider whether any material factors cut in favor of allowing the Subcontractor to enforce the terms of its agreements with the Contractor. The trial court found that the Subcontractor’s violation of the MDCO implicated concerns over whether the public was sufficiently protected from shoddy workmanship and went no further. The trial court ruled that when that policy is implicated, the penalty of non-enforceability ought to be automatically triggered as a matter of law.

The chief shortcoming in the trial court’s analysis is that it failed to weigh the unique interests implicated -by the specific facts of this case against the policy considerations that favored non-enforcement. The actual property owners involved in this case conducted their business with the Contractor, a business which as far as this Court can discern, was fully licensed, insured, and in compliance with the law. Surely, this fact afforded the members of the general public some protection. When the Contractor reached an agreement with the Subcontractor, presumably, it did so with some knowledge of the Subcontractor’s reputation and ability. Thus, we conclude that the trial court erred in failing to consider the arms length, professional nature of the relationship between the Contractor and the Subcontractor, as well as the other relevant factors, along with the competing policy concerns.

This conclusion is not without support in the law. See, e.g., Dow, 154 F.2d at 710 (holding that the ordinary rule that contracts entered into by unlicensed parties are unenforceable does not apply where the unlicensed party seeks to recover from a licensed member of the same profession); accord Costello v. Schmidlin, 404 F.2d 87 (3d Cir.1968); Edmonds v. Fehler & Feinauer Constr. Co., 252 F.2d 639 (6th Cir.1958); Kennoy v. Graves, 300 S.W.2d 568, 570 (Ky.App.1957); Alcoa Concrete & Masonry, Inc. v. Stalker Bros., 191 Md.App. 596, 993 A.2d 136, 143-44, cert. granted, 415 Md. 41, 997 A.2d 791 (2010); Christenberry Trucking & Farm, Inc. v. F & M Mktg. Servs., Inc., 329 S.W.3d 452 (Tenn.App.), appeal denied, (Tenn. Oct. 21, 2010).

4. The Limits of This Court’s Holding

Although upon remand the trial court may ultimately come to the same conclusion — that the subcontracts between the Contractor and the Subcontractor are unenforceable — we are compelled to reverse the summary final judgment now before us because the analysis that led to the trial court’s initial decision was incomplete. By way of instruction, we direct the trial court to consider, at a minimum, the following relevant and material factors: (1) whether the nature of the contracting parties’ relationship made the need to protect the public from shoddy workmanship less compelling; (2) the extent to which the Subcontractor’s violation of the MDCO was serious and deliberate; (3) the quality of the work performed by the Subcontractor; (4) whether the Contractor knew the Subcontractor was unlicensed; and (5) whether and to what extent injustice would result in preventing the Subcontractor from any recovery.

Lastly, we note that our decision is in line with a previous decision of this Court. In Warren v. Bill Ray Construction Co., 269 So.2d 25, 26 (Fla. 3d DCA 1972), the trial court entered summary judgment in favor of a defendant-contractor which argued, in part, that the plaintiff-subcontractor was entitled to no relief because it was unlicensed in violation of a county ordinance. This Court held that “the failure to hold a certificate of competency would not preclude recovery by the plaintiff partnership, although it might subject it to penalty at the instance of the county.” Id. at 27. Thus, while our decision is not founded entirely upon the Warren case, that opinion supports this Court’s conclusion. A trial court cannot add the penalty of non-enforceability to a licensing ordinance based on the mere fact that there was a violation. The policy interests behind the ordinance are but one of a host of factors that must be considered before this judicial penalty is tacked on to a legislative instrument.

III. CONCLUSION

The trial court was faced with a very difficult question: Whether a contractual party — who is unlicensed in violation of an ordinance that does provide penalties, but is silent as to the violation’s effect on the enforceability of the underlying contract— should be precluded from any remedy. The trial court, noting the public interest behind the MDCO, determined as an automatic matter of law that the Subcontractor was precluded from any and all remedies. We have concluded that this was error and hold that where the applicable legislative body does not choose to add the penalty of non-enforceability to a licensing provision, the courts may do so, but must take care to ensure the prevention of injustice. Under the trial court’s approach, an unscrupulous general contractor would have too much incentive to employ an unlicensed party, take advantage of those services, but escape liability for its promise to pay. Although the policies behind the MDCO are valid, and they must be considered, the trial court should have considered the relative strength of these policy concerns, and weighed them against the competing policies, if any.

Because a number of factual questions must be answered before the factors identified in the foregoing sections of this opinion can be appropriately considered, we reverse the trial court’s order granting summary final judgment, and we remand for further proceedings consistent with this opinion.

Reversed.

      . The parties do not dispute that the MDCO requires a certificate of competency for the type of work that the Subcontractor contracted to perform. The parties also agree that the Subcontractor was not required to hold a state-level license.

      . Phil Collins, Something Happened on the Way to Heaven, on ... But Seriously (Atlantic Records 1989).


author: POLEN, J.

text:
    STATE of Florida, Appellant, v. Wilson CANNON, Appellee.
    No. 4D09-3545.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Rehearing Denied April 21, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   POLEN, J.

The State appeals from the dismissal of sale of cocaine and possession charges against appellee. The issue is whether the undercover officers’ actions, in giving ap-pellee cocaine after the transaction was complete and allowing him to go into the community with that substance, violated due process and required that the charges against appellee be dismissed. We answer that question in the affirmative, but as to the possession charge only. The sale of cocaine charge should stand, as that offense was already completed when the officers allowed appellee to. take some of the crack cocaine.

Appellee moved to dismiss the sale and possession charges, arguing he was denied due process and that his constitutional rights were infringed upon when officers gave him cocaine as payment for setting up a drug buy.

On the day in question, narcotics agents Bango and Kabis were conducting undercover video buys, with the use of a hidden camera. The video of this transaction reflects that the officers drove up to appel-lee, who was sitting down near the South-gate Motel. Agent Bango calls out to him a few times, asking for “Lonnie.” Appel-lee then approaches the vehicle. Agent Bango tells appellee they had come to meet Lonnie, who “was going to take them to get ‘forty’ someplace,” meaning forty dollars worth of crack cocaine. Appellee then replies something unintelligible about a “forty.” Agent Bango says, “if you can do it,” and invites appellee to “hop in the back.”

Appellee enters the undercover vehicle and asks for a cellular telephone. He says they are going to see “Solo.” Appellee is heard telling “Solo” over the phone, that he “need[s] forty.” Appellee then directs the undercover officers to another location. There, they are flagged down by a black male, and proceed to conduct the transaction. Agent Bango testified that the black male handed him crack cocaine, in exchange for two twenty-dollar bills. Bango then handed the cocaine to Agent Kabis. Appellee did not handle the money or cocaine. After the transaction, appellee is heard saying, “give me some love, bro,” which Agent Bango interpreted to mean that he wanted a piece of the crack cocaine. Agent Kabis opened his hand and replied, “just don’t hurt me” — which Agent Bango understood to mean, “don’t take too much.” Appellee proceeded to take two pieces of crack cocaine from Agent Kabis’ hand. Neither man’s hands are visible in the video of the transaction. Bango then drove appellee back to the Southgate motel and dropped him off.

After appellee exited the vehicle, he was stopped by law enforcement for identification purposes. Appellee was not searched. or arrested at that time, however, and the cocaine was not recovered. Appellee was arrested three weeks later. .

On cross-examination,. Bango testified that this was not a reverse sting operation. Rather, they used appellee as a “broker.” Bango, who was experienced in conducting drug transactions and setting up buys, admitted that the sheriffs office does not authorize him to give crack cocaine to citizens, though Bango indicated he had done so before in other cases.

In granting the motion to dismiss the charges, the trial court concluded that to prosecute appellee for sale and possession of cocaine under these circumstances violated his due process rights under the United States and Florida Constitutions.

The State argues that the law enforcement conduct in this case was not so egregious as to violate appellee’s due process rights, and thus, the trial court erred in dismissing the charges. Alternatively, the State contends that only the possession charge should have been dismissed, for any due process violation did not relate to the already completed offense of sale of cocaine. While we conclude that the trial court was correct to dismiss the possession charge, we agree with the State’s second argument, that the sale of cocaine charge should stand.

“Governmental misconduct that violates a defendant’s due process rights under the Florida constitution requires dismissal of criminal charges.” Anderson v. State, 574 So.2d 87, 92 (Fla.1991). This court reviews de novo the trial court’s legal conclusion as to whether the facts constitute a due process violation. State v. Myers, 814 So.2d 1200, 1201 (Fla. 1st DCA 2002).

“Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent.” Bist v. State, 35 So.3d 936, 940 (Fla. 5th DCA 2010). For example, in State v. Williams, 623 So.2d 462, 465 (Fla.1993), our supreme court held that the illegal manufacture of crack cocaine for use in “reverse sting” operations constituted governmental misconduct contrary to the due process clause of the Florida Constitution. See also Farley v. State, 848 So.2d 393, 398 (Fla. 4th DCA 2003) (holding that law enforcement’s manufacture of child pornography as part of an email solicitation, coupled with promises of protection from government interference, was a violation of due process); Soohoo v. State, 737 So.2d 1108, 1111 (Fla. 4th DCA 1999) (holding that an undercover agent’s consignment arrangement for “the sale of drugs represents governmental conduct which this court cannot condone.”). “The rule applies regardless of the defendant’s predisposition and serves to check outrageous police conduct.- This rule is narrowly applied and is limited to those instances where the government’s conduct so offends decency or a sense of justice that the judicial power may not be exercised to obtain a conviction.” State v. Taylor, 784 So.2d 1164, 1167 (Fla. 2d DCA 2001) (citing Roehin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029 (1945)).

Although there are no cases directly on point, Taylor, cited by both parties, is instructive. In Taylor, an undercover officer and a confidential informant purchased cocaine from the defendant at his home on two occasions. 784 So.2d at 1166. On the third occasion, they returned with a search warrant, but did not conduct a search. Instead, they made another narcotics purchase in a trafficking amount. Id. The officers returned the next day to execute the search warrant and arrest the defendant. Id. The trial court denied the motion to dismiss the counts relating to the first two transactions but granted the motion as to the third sale. Id. The court concluded that the third purchase added nothing from an evidentiary purpose and constituted a violation of due process under the Florida Constitution. Id.

On appeal, Taylor argued the officers had violated his due process rights by failing to execute the search warrant and creating the situation in which the sale occurred. 784 So.2d at 1167. The second district disagreed, however, and reversed the order of dismissal to reinstate the charge. The appellate court explained:

The record is clear that the drugs were located at Mr. Taylor’s residence and, in contrast to the situation in the cited cases, law enforcement officers did not manufacture, deliver, or participate in the sale of the illegal drugs. The record is likewise clear that Mr. Taylor voluntarily engaged in the criminal conduct of selling illegal drugs.

Id.

Similarly, here, it was appellee and not the undercover agents who arranged the sale. Nor did the agents promise ap-pellee anything in return. As depicted in the video, appellee approached the undercover vehicle, indicated that he could get “forty,” and entered the vehicle of his own accord. Appellee then requests a cellular phone and is heard telling “Solo” over the phone, that he “need[s] forty.” Appellee then directs the undercover agents to another location, where the transaction ■ is completed. Clearly, like Mr. Taylor, ap-pellee voluntarily engaged in the sale— albeit as a principal.

As for the possession charge, however, the officers did create the situation for that offense to occur. While the State claims that appellee asked the officers for some of the cocaine as payment, such a statement is not heard on the recording of the transaction. Rather, appellee is heard saying “give me some love, bro.” While Agent Bango testified that he believed ap-pellee was asking for cocaine, again, appel-lee did not make that specific request. The officers could just have easily offered appellee money or food, but instead chose to offer him crack cocaine, an illegal, highly addictive drug. Appellee was then permitted to leave with the substance, either to consume or release back into the community. Law enforcement, who stopped appellee after he exited the undercover vehicle, could have made an arrest at that time. Instead, they let appellee go, and he was not arrested for another three weeks. Notably, this was not a situation where law enforcement furnished the defendant with a controlled substance, as part of a reverse sting operation. See, e.g., State v. Brider, 386 So.2d 818, 821 (Fla. 2d DCA 1980) (reversing dismissal of information charging appellee with possession of cannabis with intent to sell or deliver on the premise that “furnishing the contraband with which the defendant is later charged with handling, without more, does not constitute governmental misconduct... .”)■

As it pertains to the possession charge, the law enforcement conduct which took place here represents that which this court cannot condone. Finding that the police misconduct was sufficiently egregious to warrant dismissal of that charge, we affirm, in part. As discussed, however, the sale of cocaine charge should stand. The two charges are not “inextricably intertwined,” as appellee proposes.

Affirmed in part, reversed in part, and remanded for jurther proceedings consistent with this opinion.

CIKLIN and LEVINE, JJ., concur.

      . As explained by Agent Bango, the purpose for stopping appellee at this point was,
      [s]o we knew his identity, as this was an ongoing operation. We had just started into the City of Lake Worth doing video buys, so our policy was we like to get good firm identities. So we had a marked unit stop him, ask him his name, identification, take a picture, get his thumb print. That way we know who he is, we don’t arrest the wrong person.

      . To the State’s secondary argument, that any due process violation did not relate to the already completed offense of sale of cocaine, appellee merely asserts that the sale and possession charges were "inextricably intertwined.” However, the case appellee cites in support of this proposition, D.M. v. State, 714 So.2d 1117 (Fla. 3d DCA 1998), deals with the admissibility of "other act” evidence, and has no bearing on whether a charge is related to outrageous government conduct. See id.


author: PER CURIAM.

text:
    Alexander WEBSTER, individually, and as Personal Representative of the Estate of Louise Webster, deceased, Appellant, v. MARTIN MEMORIAL MEDICAL CENTER, INC., Appellee.
    No. 4D09-2497.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Rehearing Denied April 21, 2011.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami, Gloria Seidule of Law Office of Gloria Seidule, Stuart, and Kevin O’Con-nor of Foley Mansfield, Miami, for appellant.
    Janet W. Adams and Heidi J. Livingston of Hill, Adams, Hall & Schieffelin, P.A., Winter Park, for appellee.
   PER CURIAM.

We reverse the order granting the defendant hospital’s motion for summary judgment in a medical malpractice action. According to the Florida Supreme Court,

in medical malpractice actions, courts should grant summary judgment in favor of the defendant cautiously. A summary judgment is properly rendered only upon showing a complete absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.' The proof must be such as to overcome all reasonable inferences in favor of the party opposing summary judgment.

Univ. of Miami v. Bogorff, 583 So.2d 1000, 1005 (Fla.1991) (citations omitted). The issue is reviewed de novo. E.g., Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005).

This case is controlled- by Visingardi v. Tirone, 193 So.2d 601 (Fla.1966), which explained that the plaintiff has a lesser burden when opposing a motion for summary judgment than when opposing a motion for directed verdict at trial:

At the trial, to be sure, the plaintiff herein would have the burden of proving, not only the acts of negligence, but them causal relationship with the injury alleged. However, unless the record that is considered on motion for summary judgment otherwise shows an absence of such causal relationship, the plaintiff, who is opposing the motion, is under no obligation to put in evidence showing such causal relationship.

Id. at 604. The trial court in this case granted summary judgment based on its conclusion that Webster’s evidence had established “a mere possibility of causation,” which was insufficient and because Webster had failed to produce “factual support” or “any evidence on the element of causation.” It appears that the trial court misplaced the burden and that the defendant hospital failed to establish that there was no issue of fact regarding causation.

In Visingardi, also a medical malpractice case, the defendant doctor argued:

‘On defendant’s motion for summary judgment the plaintiff must come forward with sufficient, substantial, competent, evidentiary support for each and every fact which he must establish in order to prevail. If it appears that he has not, and that a directed verdict would be justified were the case at trial, the trial court must grant summary judgment in favor of the defendant’
“In an attempt to meet his burden to show by expert testimony that defendant had departed from the requisite standard of care, and that this departure proximately caused the edema or Mrs. Visingardi’s death therefrom, plaintiff filed the affidavit m question.”

Id. at 605. The supreme court rejected the doctor’s argument that equated a plaintiffs burden at summary judgment with the burden of overcoming a motion for directed verdict at trial:

Both passages correctly state the burden of the plaintiff at trial; both are inaccurate as to his burden as the party opposing a motion for summary judgment.

Id. It noted that summary judgment is proper where

the record affirmatively showed that the plaintiff could not possibly prove her case, and not because she had simply failed to come forward with evidence doing so.

Id.

The trial court relied on two cases which do not control here, as both involve appeals following jury trials, where no evidence was presented that causally linked the negligence with damages. See Murphy v. Sarasota Ostrich Farm/Ranch, Inc., 875 So.2d 767, 768-769 (Fla. 2d DCA 2004); Greene v. Flewelling, 366 So.2d 777, 779-80 (Fla. 2d DCA 1978).

On remand, the trial court may reconsider the plaintiffs motion to amend to add a claim for punitive damages under section 768.72, Florida Statutes (2002), since it does not appear that the court decided the motion on its merits, but relied primarily on the fact that the motion was untimely, since it was filed four days before trial.

Reversed.

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

      . The Supreme Court in Visingardi directly quoted the defendant doctor's brief.


text:
    Carl W. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4940.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Carl W. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 30, 2010, judgment and sentence in Duval County Circuit Court case number 16-2008-CF-012293-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


text:
    Glenn Randall CHASE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5794.
    District Court of Appeal of Florida, First District.
    March 16, 2011.

      Glenn Randall Chase, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse and remand.

The appellant entered a plea agreement in which he admitted violating his probation in exchange for a sentence of twenty-four months’ imprisonment. After he was sentenced, the Department of Corrections forfeited 181 days of gain time. The appellant alleges that by forfeiting his gain time, the Department thwarted the intent of his plea agreement. He alleges that it was the understanding of the parties that he was to serve no more than 24 months in prison, but that the forfeiture will lead to his serving 24 months, 181 days in prison.

It is well-settled that the Department of Corrections has the authority to forfeit all of a defendant’s gain time following a violation of probation. See § 944.28(1), Fla. Stat. (2007); Horton v. State, 943 So.2d 859, 860 (Fla. 1st DCA 2006). However, a defendant is entitled to have a plea agreement enforced if the Department’s forfeiture of gain time thwarted the intent of a negotiated plea. See, e.g., McAllister v. State, 821 So.2d 1250 (Fla. 1st DCA 2002) (“While the trial court cannot compel the DOC to follow the plea agreement since it would usurp the DOC’s authority to forfeit gain time, the trial court can still effectuate the purpose of the plea agreement by either resentencing the appellant in a manner that will effectuate the plea agreement given the DOC’s forfeiture, or by allowing the appellant to withdraw from his plea”); Etienne v. State, 994 So.2d 450 (Fla. 3d DCA 2008) (a defendant is entitled to have a plea agreement enforced if the DOC’s forfeiture of gain time thwarted the intent of a negotiated plea agreement); State v. Jackson, 842 So.2d 1040 (Fla. 3d DCA 2003) (although it is clear trial court cannot rescind DOC’s forfeiture of gain time, it could grant a motion to enforce plea where that forfeiture thwarted the intent of negotiated plea agreement), and cases cited therein; Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002) (holding that the Department of Corrections’ forfeiture of gain time cannot be countermanded by the court, but neither can that forfeiture thwart a plea agreement). The trial court’s order does not contain any record attachments conclusively refuting the appellant’s, claim. Thus, we reverse and remand for the trial court to attach portions of the record conclusively refuting the appellant’s claim or to hold an evidentiary hearing.

REVERSED and REMANDED for further proceedings.

ROBERTS, CLARK, and WETHERELL, JJ., concur.


text:
    Frederick JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6269.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Frederick Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the judgments and sentences rendered on April 8, 2010, in Okaloosa County Circuit Court case numbers 2009-CF-1550, 2009-CF-1568 and 2009-CF-1569. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


author: RAMIREZ, C.J.

text:
    CITY OF KEY WEST, TREE COMMISSION, Petitioner, v. Radim HAVLICEK, etc., Respondent.
    No. 3D10-2533.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.

      Shawn D. Smith, City Attorney, and Larry R. Erskine, Key West, for petitioner.
    Lee Robert Rohe, Summerland Key, for respondent.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   RAMIREZ, C.J.

The City of Key West, Tree Commission, petitions this Court for a writ of certiorari. The City claims that the trial court departed from the essential requirements of law when it permitted the respondents to take the discovery depositions of three members of the Tree Commission in the matter pending before the special magistrate. Because we agree with the City that the trial court departed from the essential requirements of the law when it ordered the depositions, we grant the petition and quash the trial court’s order.

The administration and enforcement of regulations regarding tree protection in the City are contained in sections 110-286 through 110-295 of the Code of Ordinances of the City of Key West. On February 19, 2008, pursuant to section 110-289 of the Code, the Urban Forestry Manager for the City of Key West issued a Notice of Administrative Hearing before the Tree Commission of the City of Key West to the respondent, Radim Havlicek. The notice alleged a number of violations of the tree protection provisions contained in the Code as to seven trees specifically included on the list of specially protected trees in the Code.

The hearing before the Tree Commission was held on April 14, 2008. The respondent appeared, testified and was represented by counsel. The Tree Commission found that the respondent commit-téd thirty-five irreparable violations of the tree protection, ordinance. The respondent declined to enter into a compliance settlement agreement. Thus, in accordance with the Code, the Tree Commission forwarded the case to the special master with a recommendation that the respondent be fined one-half the maximum amount for each violation in the event the special master found the respondent to be in violation.

Seven months passed, and in December 2008, Havlicek caused the issuance of three subpoenas for deposition duces te-cum for the depositions of three members of the Tree Commission. The Tree Commission thereafter filed its Motion for Protective Order. A hearing was .conducted on this motion before the special magistrate. In January of 2009, the special magistrate orally granted the motion.

In February of 2009, Havlicek filed his Petition for Writ of Certiorari in the Appellate Division of the Circuit Court in and for Monroe County. The Tree Commission filed its response, and Havlicek filed his reply. After oral argument, the court granted certiorari.

The Tree Commission thereafter filed its petition for writ of certiorari in this Court. After the parties filed their briefs, this Court filed its opinion, granting the Tree Commission’s writ of certiorari and quashing the circuit court’s order granting cer-tiorari. See City of Key West Tree Comm’n v. Havlicek, 20 So.3d 904 (Fla. 3d DCA 2009). This Court held that the circuit court had no jurisdiction to review an oral order, and found that “[bjased on the Magistrate’s comments at the hearing, the Magistrate’s view may have been that if the Magistrate conducts ■ a trial de novo, then the claim of error before the Tree Commission is immaterial.” Id.

The circuit court judge thereafter entered an “Order Remanding Case for Entry of Written Order by Magistrate.” The special magistrate then entered an order granting the Tree Commission’s motion for protective order. In that order, the special magistrate specifically found that “the proceeding before the Special Magistrate will be a de novo hearing. This Court will not consider any part of the record pertaining to the Tree Commission’s hearing on this matter, and any claim of error before the Tree Commission is moot and immaterial.”

In February of 2010, Havlicek filed his Petition for Writ of Certiorari in the Circuit Court for the Sixteenth Judicial Circuit, in and for Monroe County. The Tree Commission responded, and Havlicek replied. In August 2010, the trial court granted Havlicek’s petition and allowed the discovery depositions of three members of the Tree Commission. • This order is now before us for review.

Among its various points on it’s petition, the City contends that the trial court departed from the essential requirements of law when it determined that the subject Tree Commissioners became fact witnesses subject to discovery depositions as a result of site visits. We agree with the City that this determination is in conflict with section 286.0115(l)(c)(3), Florida Statutes (2010), which provides that “[l]ocal public officials may conduct investigations and site visits and may receive expert opinions regarding quasi-judicial action pending before them” and “[s]ueh activities shall not be presumed prejudicial to the action if the existence of the investigation, site visit, or expert opinion is made a part of the record before final action on the matter.” As was made clear during oral argument in this case, the Tree Commissioners are not witnesses in the pending matter before the special magistrate, thus the depositions would be to no avail.

The case of Towers v. City of Longwood, 960 So.2d 845 (Fla. 5th DCA 2007), cited by the trial court in its order, is distinguishable. Towers involved a circuit court action where the plaintiff filed a declaratory judgment action against the City of Longwood with respect to development of certain properties in the city. Id. at 847. Thus, the Fifth District Court of Appeal in Towers analyzed the plaintiffs request to depose pursuant to Florida Rule of Civil Procedure 1.280(b)(1), which establishes the right of parties to obtain discovery in matters litigated in circuit court. Id. at 848. However, code enforcement matters are not governed by the Florida Rules of Civil Procedure. Chapter 162, Florida Statutes (2010), controls code enforcement matters, which as the City accurately points out, contains no provision regarding discovery.

Moreover, in paragraph 4 of his order, the special magistrate found that “[t]his Court interprets sections 110-290 and 110-292 of the Code to require a hearing de novo before the Special Magistrate when matters are forwarded from the Tree Commission.” In paragraph 10, the special magistrate stated that because the proceeding before the special magistrate would be de novo, “[tjhis Court will not consider any part of the record pertaining to the Tree Commission’s hearing on this matter, and any claim of error before the Tree Commission is moot and immaterial.” In paragraph 11, the special magistrate stated “[i]t would be the responsibility of this Court to determine IF the charged violation of the Code was committed and IF either of the two Respondents committed the alleged violations” before concluding what “the appropriate penalty, if any, would be.”

The trial court also noted in its order that the proceedings before the special magistrate would be a hearing de novo. In addition, the trial court found that Hav-licek “conceded at oral argument that the de novo nature of the Special Magistrate’s review of all conclusions come to by the Tree Commission makes what would otherwise be apparent violations of due process, effectively moot.”

Accordingly, we find that the trial court departed from the essential requirements of the law when it ordered that Havlicek may take the discovery depositions of three members of the Tree Commission in the matter pending before the special magistrate.

Petition for certiorari granted, order quashed.


author: HAZOURI, J.

text:
    GALT OCEAN MANOR CONDOMINIUM ASSOCIATION, INC., Appellant, v. Leonard KOPPELMAN, et al., Appellees.
    No. 4D10-3335.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Rehearing Denied April 26, 2011.
    Debra P. Rochlin of Law Offices of Debra P. Rochlin, P.A., Fort Lauderdale, and Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellant.
    Suzanne Weiss and Joseph D. Garrity of Garrity-Weiss, P.A., Deerfield Beach, for appellees.
   HAZOURI, J.

Appellant, Galt Ocean Manor Condominium Association, Inc. (“the Association”), appeals the following two orders: (1) Order on Plaintiffs’ (“Owners”) Motion for Relief from Judgment and Stay of Enforcement; and (2) Order on Plaintiffs’ (“Owners”) Claims for Exemptions from Garnishment and Requiring Disgorgement of Any Assets Previously Garnished. We dismiss this case because it is not yet ripe for appellate review.

First at issue is the trial court’s order deferring ruling on the motion for relief from judgment and staying enforcement of the attorney’s fee judgment. While an order staying a proceeding is not an ap-pealable non-final order, Dep’t of Children & Families v. L.D., 840 So.2d 432, 434 (Fla. 5th DCA 2003), the Association contends that the stay order is appealable because “it was part and parcel of the order dealing with the Motion for Relief from Judgment.” We disagree.

Next, the Association correctly contends that the order granting Owners’s exemptions from garnishment is reviewáble under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). However, while renewable, the issue is not yet ripe. See Mendez v. W. Flagler Family Ass’n, Inc., 303 So.2d 1, 5 (Fla.1974) (finding that “piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction”). While the Association contests the trial court’s grant of Owners’s exemptions from garnishment, the attorney’s fee award has been stayed pending the outcome of collateral litigation in L.T. Case No. 07-22929 CACE 21. Thus, even if Owners’s exemptions from garnishment merited reversal, the Association would be unable to collect the attorney’s fee award because the trial court has deferred ruling on the motion for relief from judgment and has stayed enforcement of the attorney’s fees.

Accordingly, this case is dismissed.

Dismissed.

POLEN and CIKLIN, JJ„ concur.


author: KELLY, Judge.

text:
    David B. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3220.
    District Court of Appeal of Florida, Second District.
    March 16, 2011.
    David B. Williams, pro se.
   KELLY, Judge.

David B. Williams appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of grounds one, three, four, and five, but we reverse and remand on ground two.

In ground two, Williams claims that counsel was ineffective for failing to investigate and present a defense to the charge of criminal use of identification information. He alleges that he advised counsel that he was in lawful possession of the victim’s identification and that the victim was aware that he intended to secure a driver’s license with the information. He contends that he provided counsel with the victim’s name and telephone number. He asserts that had counsel contacted the victim directly to verify the facts, he would not have pleaded guilty but would have gone to trial and would have been acquitted.

The' postconviction court denied Williams’ claim as facially insufficient for failure to allege prejudice. However, Williams sufficiently alleges prejudice, and his allegation, if true, would have negated one of the elements of the charge of criminal use of personal identification information. See § 817.568(2)(a), Fla. Stat. (2003). To convict a defendant of criminal use of personal identification information, the State must prove beyond a reasonable doubt that the defendant: “(1) willfully and fraudulently [used or possessed] with intent to fraudulently use; (2) another person’s personal identification information; and (3) without that person’s authorization or prior consent.” Townshend v. State, 965 So.2d 236, 237 (Fla. 5th DCA 2007) (quoting Sibley v. State, 955 So.2d 1222, 1226 (Fla. 5th DCA 2007)); see also § 817.568(2)(a). Consent from the victim to use his personal information is a -valid defense to criminal use of personal identification information, and if this were the case, the State would be unable to prove every element of the crime beyond a reasonable doubt at trial. See Townshend, 965 So.2d at 237 (“[T]he State failed to prove that the alleged victim had not authorized Mr. Townshend to’ use his personal information. Accordingly, this conviction must be vacated.”). Thus, the claim is facially sufficient. See Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004) (“The merits of any defense ... is [sic] relevant to the credibility of the defendant’s assertion that he would have insisted on going to trial.”); Munroe v. State, 28 So.3d 973, 976 (Fla. 2d DCA 2010) (“Munroe’s claim of prejudice — that he would have proceeded to trial — is credible if he can demonstrate that the defense was viable.”).

Because Williams’ allegation is not refuted by the record, we reverse and remand ás to ground two. On remand, the post-conviction court shall either attach record documents conclusively refuting the allegation or hold an evidentiary hearing. In all other respects, the postconviction order is affirmed.

Affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.


text:
    J. Bruce FLATT & Leontine Ebers, Appellants, v. Matthew FOWLER, Appellee.
    No. 3D10-954.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.

      Abraham Rappaport, Boca Raton, for appellants.
    Philip D. Parrish and Robert C. Maland, Miami, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Open Bible Cmty. Church v. Paragon Constr. Ultd., Inc., 751 So.2d 188 (Fla. 3d DCA 2000).


text:
    James Edward WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-123.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    James Edward Williams, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

James Edward Williams appeals from the summary denial of his Florida Criminal Procedure Rule 3.800 motion to correct illegal sentence. On appeal from a summary denial of a Rule 3.800 motion, this Court must reverse unless the postconviction record conclusively shows that defendant is entitled to no relief. Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded with instructions.


text:
    Carlos A. PERERA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Rex Chemical Corp., Appellees.
    No. 3D10-2221.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Santiago J. Padilla, Miami, for appellant.
    Louis A. Gutierrez, Tallahassee, Unemployment Appeals Commission, for appel-lees.
    Before, RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Matus v. GRMI, Inc., 885 So.2d 487 (Fla. 3d DCA 2004); St. Augustine Church v. Fla. Unemployment Appeals Comm’n, 754 So.2d 183 (Fla. 3d DCA 2000).


author: SHEPHERD, F., Associate Judge.

text:
    Dilip ARCOT, Appellant, v. Rama BALARAMAN, Appellee.
    No. 5D10-988.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Catherine G. Swain, of Catherine G. Swain, P.A., Daytona Beach, for Appellant.
    Joan Stefanec Briggs, of Adams, Briggs & Briggs, Daytona Beach, for Appellee.
   SHEPHERD, F., Associate Judge.

This is an appeal by a former husband from an order denying his motion to clarify an Amended Final Judgment of Dissolution with respect to summer visitation with the minor child born of the marriage. We conclude the trial court abused its discretion by failing to order alternate weekend visitation during the summer months.

The contestants in this post-dissolution dispute are two highly trained and high spirited medical professionals, whose marriage was dissolved in May .2007. This is their second appellate appearance before this Court. See Arcot v. Balaraman, 12 So.3d 861 (Fla. 5th DCA 2009). The focus of the first appeal, taken from the Amended Final Judgment of Dissolution, was financial. The focus of this appeal is on the parties’ now eleven-year-old daughter.

After affording the former husband alternate weekend summer visitation for the first two summers after entry of the Amended Final Judgment of Dissolution, the former wife elected to deny him weekend visitation with the daughter during the summer of 2009. She says the earlier years’ visitation was gratuitous on her part. As a sure sign this is not the case, both parties argue the Amended Final Judgment is unambiguous and supports their respective positions. The trial judge, finding herself in the unenviable position of a successor trial judge between warring parties, found a provision of the Amended Final Judgment stating, “The father shall be entitled to two consecutive weeks with [the minor child] every summer,” to be exclusive. We disagree.

The Amended Final Judgment of Dissolution provided:

8. It is in the child’s best interest that the parties share parental responsibility for their minor daughter.... The parties have not expressly agreed that the court should designate the mother as primary residential parent for [daughter], but the father’s case concedes that [daughter] would primarily reside with her mother and see her father according to a schedule the court establishes.
The court will essentially adopt the material portions of Dr. Hoffman’s recommendations at page 13 of his report except for a mid-week overnight visit. The father shall be entitled to alternate weekend visitation commencing on the first Friday after the date of this Final Judgment. His visitation shall commence Friday at the close of [daughter’s] school day and continue through the following Sunday at 7:00 p.m. Either the father or a responsible adult he has designated will pick her up at school and return her to her mother’s residence. At least 24 hours before the child is picked up, the father shall advise the mother whom he has designated so the school can be notified in advance. If the person is not present to pick her up when school lets out for the day, [daughter] is free to go to her mother’s residence by her usual means. Once [daughter] has been picked up, it is the father’s responsibility to house and care for her during this time period unless the father agrees that the child should be returned early. The child shall not be left in the care of a nanny or babysitter unless the father is away from his residence due to medical employment.
HOLIDAYS: In odd-numbered years, the mother shall have Memorial Day weekend and the Thanksgiving holidays and the father shall have July Dh and the Labor Day weekend. This holiday schedule shall supersede the regular alternating weekend schedule. In even-numbered years this schedule will be reversed.
(d) MOTHER’S DAY AND FATHER’S DAY shall be spent with the appropriate parent who shall have the child for the entire weekend on this occasion regardless of how the normal alternate schedule falls.
SUMMER: The father shall be entitled to two consecutive weeks with [daughter] every summer. No later than April 15th of each year, the father shall advise the mother in writing of the two-week period he has selected. (Emphasis added).

Read in isolation, the provision of the Amended Final Judgment upon which the trial judge relied can be construed to limit the former husband to two consecutive weeks with the daughter during the summers (plus Father’s Day and every other July 4th), and no more. However, like marital settlement agreements and other types of contracts, paragraphs and provisions in dissolution orders do not exist in hermetically sealed compartments. Cf. Gowni v. Makar, 940 So.2d 1226, 1229 (Fla. 5th DCA 2006) (holding that “the meaning of a contract is not to be gathered from any one phrase or paragraph, but from a general view of the writing as a whole, with all of its parts being compared and construed, each with reference to the others”).

Reading the pertinent provisions of the Amended Final Judgment of Dissolution in this case as a collective whole, as we are directed to do, we first note the Amended Final Judgment of Dissolution provides that “[t]he father shall be entitled to alternate weekend visitation commencing on the first Friday after the date of this Final Judgment.” There is no seasonal limitation in that pronouncement.

Second, after identifying and allocating two summer holidays — Father’s Day and every other July 4th — to the Father, the Amended Final Judgment states, “[t]his holiday schedule shall supersede the regular alternating weekend schedule.” This statement, of course, presupposes the existence of weekend visitation during the summer months.

Third, we note the Amended Final Judgment of Dissolution expressly states that the court intended to “essentially adopt the material portions of Dr. [Norman] Hoffman’s, recommendations at page 13 of his report except for a mid-week overnight visit.” Dr. Hoffman’s second and fifth recommendations read as follows:

2. To insure the best interest of the minor child, it is further recommended that a standard visitation schedule be secured. One parent should have every other weekend.
5. During the summer vacation, each parent should have at least a two-week uninterrupted visit with his or her daughter.

Not only do these recommendations call for a “standard visitation schedule,” ordinarily understood in the family law context to include alternate weekend visitation, but also the fact these two recommendations exist in separate paragraphs belies the former wife’s argument that the commencement and return times in the dissolution order impliedly limited the immediate prior provision that “[t]he father shall be entitled to alternate weekend visitation commencing on the first Friday after the date of this Final Judgment.”

The only substantial difference between the time-sharing recommendations made by Dr. Hoffman in his report and the time-sharing terms of the Amended Final Judgment of Dissolution is that the court did not accord standard mid-week visitation to the former husband. However, as fully explained in paragraph 9, the Amended Final Judgment also grants the former wife permission to relocate to Ocala, seventy-five miles from the residence of the father, making mid-week visitation impractical. It is clear the initial trial judge derived comfort in awarding this not insubstantial benefit to the former wife by his expectation, expressly re-stated in paragraph 9, that “the father will be with [the daughter] from Friday afternoon through Sunday afternoon every other weekend.”

In his report, Dr. Hoffman describes the acrimony between the parents in this case to be “irresolvable.” As every loving parent should know, visiting parental acrimony on the care of a minor child can only cause harm to the child. It should not take a citation to legal authority for these particular parents to appreciate the point. The Amended Final Judgment of Dissolution was crafted carefully to afford the parents in this case the type of “frequent and continuing contact” with the minor child, contemplated by Florida’s dissolution of marriage law. See § 61.13(2)(c)(l), Fla. Stat. (2010) (“It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrear-ing”). The trial court abused its discretion by misinterpreting the Amended Final Judgment of Dissolution to deprive the father alternating weekend visitation during the summer months.

REVERSED and REMANDED for further proceedings consistent with this opinion.

EVANDER and JACOBUS, JJ., concur.


text:
    PEOPLEASE CORPORATION and L & S Logistic Services, Inc., Appellants, v. Kurt SCHROEDER and Linda Schroeder, Appellees.
    No. 1D11-0207.
    District Court of Appeal of Florida, First District.
    March 21, 2011.
    Lamar D. Oxford and John T. Conner of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellants.
    Paul M. Anderson of Anderson & Hart, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Reeves v. Fleetwood Homes of Florida, Inc., 889 So.2d 812, 820 (Fla.2004) (determining that appeal is authorized only for those orders that specifically state that the defense of workers’ compensation immunity is unavailable as a matter of law and not because of disputed issues of fact); see also Fla. Dep’t of Corrections v. Culver, 716 So.2d 768 (Fla.1998); Footstar Corp. v. Doe, 932 So.2d 1272, 1274 (Fla. 2d DCA 2006).

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.