author: PER CURIAM.

text:
    Donald Lenneth BANKS, Appellant, v. STATE of Florida, Appellee.
    No. SC08-1741.
    Supreme Court of Florida.
    June 3, 2010.
    Rehearing Denied Oct. 22, 2010.

      Nancy Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
    Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Donald Banks appeals his conviction of first-degree murder and sentence of death. For the reasons stated below, we affirm his conviction and sentence.

I. BACKGROUND

As the trial court accurately explained in its sentencing order, the evidence presented at trial established the following regarding the murder of Linda Volum:

During the late evening hours of March 9 or the early morning hours of March 10, 2005, the Victim was stabbed to death. The killing probably occurred between midnight and 4:00 a.m. on March 10, 2005. The Victim received fourteen knife wounds, one to the neck, ten to the chest or abdomen, and three to her left forearm and hand. She also received abrasions and contusions in different areas of her body, especially around the hands and to the top of the head. She further received several small cuts in different areas, including the back of the hand and around the left eye. At least six of the wounds were hard stabs from a knife, rather than simple jabs, in that they penetrated the Victim’s ribs or sternum. One stabbing penetrated her liver, two or three penetrated her heart, and one penetrated her lung. The Victim attempted to defend herself against this attack, and was conscious and aware throughout the attack. She ultimately died from a loss of blood due to the stab wounds to her heart.
Between 2:40 and 2:47 a.m. on the same day, then, a person attempted to access an automatic teller machine with the Victim’s ATM card. This event was recorded by a video surveillance camera. Though the face of the person was not revealed in the recording, it was clearly a black male wearing a unique shirt, and jacket, visually identical to the ones [Banks] was wearing that night. ( [Banks] is also a black male). Furthermore, this person was driving a white, compact sedan which matched the description of the Victim’s automobile. The person was accompanied to the ATM location by another, still unidentified person.
Before dawn on the same morning, then, [Banks] returned to a residence he shared with his girlfriend, one Sudi[e] Johnson (“Johnson”). He had been away from the residence all night. He was driving a vehicle which appeared to be identical to that of the Victim. He entered the home limping, from a wound to his leg. He carried with him a pillowcase the same color as another pillowcase found later that day in the Victim’s home.[] Within the pillowcase, he carried bloody underclothing, and the Victim’s laptop computer.[] When Johnson asked him about the bloody clothing, [Banks] told her that “I just murked somebody.” The word “murk” is a slang term meaning murder. [Banks] had been bleeding from the wound to his leg, and continued to bleed while he was at the residence. However, about an hour after his arrival, he again departed in the same automobile in which he had arrived.
Later the same morning the Victim’s automobile was involved in a traffic accident. After the accident, the occupants of the vehicle fled from the scene. Deputy sheriffs investigating the accident, though, were able to ascertain that it was owned by the Victim. In the course of investigating the accident, then, a deputy went to the Victim’s residence, where he found her dead body.
About a day and a half after the foregoing events, Johnson took [Banks] to a hospital so that he could receive medical care for his leg wound. The wound subsequently proved to be almost visually identical to one of the wounds the Victim had received during the murder.
Johnson testified at trial that when [Banks] initially told her he had murdered someone, she did not believe him. She thought he was simply seeking attention. However, several days later she and [Banks] were watching a videotaped television program when a news flash was aired regarding the murder of Linda Volum. [Banks] then stated to Johnson “You see that?” and “I did that.” These remarks led Johnson to question [Banks] about the murder. In response, he related to her facts about the crime which could only have been known by someone who was present at the murder, or sheriffs investigators. He also told her that he had committed the crime as a “murder pay-back,” and that he had done so after entering the Victim’s residence in only his underclothing. He further said that when he left the residence “I had set the house up as a prop.” He explained that he had done so by putting a crack pipe in the residence, to make the murder appear to be “foul play.” [Banks] related [to Johnson] that he had received the wound to his leg on the night in question by accidentally stabbing himself in the course of stabbing the Victim to death.
The sheriffs office investigation of the crime scene produced substantial physical evidence of [Banks’] guilt. Indeed, a crack pipe, along with a knife, was found under the Victim’s body. Blood, which DNA testing proved to be [Banks’], was found in several places in the house. [Banks’ semen] was found on the Victim’s body, and a mixture of blood from both [Banks] and the Victim was found near the body. [Banks’] bare footprint was also found in some blood in the house. In addition, the [prints] of some unknown person [were] found in blood in one place, indicating that another person may have been present at the murder, besides [Banks]. That person has never been identified.

During the guilt phase, Banks maintained his innocence. He testified that he sold crack out of Volum’s residence and that Volum had exchanged sex as well as the use of her laptop and vehicle for crack. Banks stated that during the evening of Volum’s murder he had cut his fingers on a crack pipe, thereby explaining his blood in Volum’s residence. He also testified that Volum had asked him to go to the ATM for her and that an acquaintance, “Bo,” accompanied him on the trip. He stated that when he left that night to go home “Bo” remained at Volum’s residence. However, the jury found Banks guilty of first-degree murder.

The defense, during the penalty phase, presented the testimony of Banks’ father and a forensic psychologist. Banks’ father testified that he had not been a part of his son’s life since his son was seven years old. The psychologist testified that there was no evidence of any major mental illnesses or thought disorders. However, testing suggested mild to moderate deficits in frontal lobe functioning, which is responsible for planning, problem solving, and impulse control. The psychologist diagnosed him with a cognitive disorder not otherwise specified as well as antisocial personality disorder. Moreover, the psychologist noted a history of alcohol and substance abuse.

The jury recommended the death penalty by a vote of ten to two, and a Spencer hearing was held on August 6, 2008. Thereafter, following the jury’s recommendation and concluding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Banks to death. In so doing, the trial court found the following aggravators: (1) Banks had been previously convicted of violent felonies (very great weight); (2) the crime was especially heinous, atrocious, or cruel (very great weight); and (3) the crime was committed in a cold, calculated, and premeditated manner (great weight). The trial court found the following miti-gators: (1) Banks has a low IQ (very little weight); (2) Banks has a deficit in his brain (moderate weight); (3) Banks has antisocial personality traits (little weight); (4) Banks was not the only participant in the crime (no weight); and (5) Banks had a difficult youth (little weight).

II. ISSUES RAISED ON APPEAL

Banks raises six issues on appeal: (A) the trial court erred in denying a cause challenge to a prospective juror whose daughter had been the victim of an armed robbery; (B) the trial court erred in allowing the State to exercise peremptory challenges against two African-Americans; (C) the trial court erred in admitting DNA results without requiring the presentation of statistical evidence; (D) the trial court erred in denying a motion for mistrial when a witness mentioned Banks’ involvement in another crime; (E) the trial court erred during the penalty phase by allowing the State to present a video of Banks committing an armed robbery; and (F) the trial court erred in finding the cold, calculated, and premeditated (CCP) aggravating circumstance. None of these claims warrant relief.

A. Cause Challenge

Banks argues that the trial court erred in denying his cause challenge to a prospective juror whose daughter was recently robbed at gunpoint. However, we conclude that no reversible error occurred.

This Court has explained that “[a] trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror competency.” Conde v. State, 860 So.2d 930, 939 (Fla.2003). “This is because trial courts have a unique vantage point in their observation of jurors’ voir dire responses.” ■ Id. As a result, “this Court gives deference to a trial court’s determination of a prospective juror’s qualifications and will not overturn that determination absent manifest error.” Id. The test trial courts employ “for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.” Kopsho v. State, 959 So.2d 168, 170 (Fla.2007). “In evaluating a juror’s qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror.” Parker v. State, 641 So.2d 369, 373 (Fla.1994). “A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.” Kopsho, 959 So.2d at 170; see also § 913.03(10), Fla. Stat. (2005) (explaining that one can challenge a juror for cause based upon the juror’s “state of mind regarding the defendant, the case, the person alleged to have been injured by the offense charged, or the person on whose complaint the prosecution instituted that will prevent the juror from acting with impartiality, but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be a sufficient ground for challenge to a juror if he or she declares and the court determines that he or she can render an impartial verdict according to the evidence”).

In this case, the juror at issue twice assured the trial court that his daughter’s recent robbery would not affect his ability to be fair. He stated, “It’s not going to bother me” and “It won’t affect me, no, sir.” These unequivocal assurances of impartiality do not provide this Court -with a basis to conclude that the trial court abused its discretion in denying Banks’ cause challenge. In other words, it does not appear that the juror’s unequivocal responses provided any reasonable doubt as to whether the juror possessed an impartial state of mind. Cf. Kopsho, 959 So.2d at 172 (“Mullinax’s consistently equivocal responses raise reasonable doubt about his fitness as a juror.”); Segura v. State, 921 So.2d 765, 766 (Fla. 3d DCA 2006) (holding that the trial court abused its discretion in denying cause challenge because, “[d]espite repeated questioning and attempts to rehabilitate the juror, she never expressed a clear assurance that [her niece’s sexual assault] would not influence her judgment”).

Accordingly, we affirm the trial court’s denial of Banks’ cause challenge.

B. Peremptory Challenges

Banks alleges that the trial court reversibly erred when it allowed the State to strike two African-American prospective jurors without providing a legitimate race-neutral reason. We disagree.

In Melbourne v. State, 679 So.2d 759, 764 (Fla.1996) (footnotes omitted), this Court set forth the following guidelines for resolving an allegation of discrimination in the use of peremptory challenges:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3).

“In determining whether or not a proffered race-neutral reason for a peremptory strike is a pretext, the court should focus on the genuineness of the race-neutral explanation as opposed to its reasonableness.” Murray v. State, 3 So.3d 1108, 1120 (Fla.2009), cert. denied, — U.S. -, 130 S.Ct. 396, 175 L.Ed.2d 273 (2009). “In making a genuineness determination, the court may consider all relevant circumstances surrounding the strike.” Id. “Relevant circumstances may include — but are not limited to — the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Melbourne, 679 So.2d at 764 n. 8. “[T]he most important consideration is that the trial judge actually ‘believes that given all the circumstances surrounding the strike, the explanation is not a pretext.’ ” Murray, 3 So.3d at 1120 (quoting Rodriguez v. State, 753 So.2d 29, 40 (Fla.2000)).

“[Reviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a nondiscriminatory manner. Second, the trial court’s decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So.2d at 764-65 (footnote omitted).

In this case, Banks objected to the striking of the two African-American prospective jurors and requested a race-neutral reason, thereby satisfying step one of the Melbourne guidelines. Subsequently, the State satisfied step two by providing a facially race-neutral reason for the strikes by explaining that it wished to strike the two gentlemen because they were both single and renters. Banks responded that being single and a renter does not mean that one is unsuitable for jury service. The State countered that it had already struck another single renter who happened to be a white male. After considering the arguments of both parties regarding genuineness, the trial court sustained the strikes as allowed by step three.

The trial court’s determination regarding the genuineness of the State’s race-neutral reason was not clearly erroneous given all the relevant circumstances surrounding the strikes. For example, the State struck the other prospective jurors who were single renters, including one of whom it is clear from the record was a white male. Additionally, the State did not strike at least one African-American male prior to moving to strike the two who were single renters. Moreover, at least two African-Americans and one Hispanic individual eventually served on the jury.

Therefore, we conclude that the trial court did not commit reversible error in allowing the State to strike the two African-American single renters.

C. DNA Evidence

Next, Banks contends that the trial court erred by allowing the State to present DNA evidence without also requiring the State to present population frequency statistics regarding the significance of that DNA evidence. However, this claim was not preserved for this Court’s review.

Banks did not present this argument to the trial court below. Instead, in his motion in limine, Banks argued that the population statistics failed to satisfy the Frye test, the State’s expert was not qualified as an expert in the field of population frequency statistics, and the population frequency test was improperly conducted. Later, during the expert’s testimony, Banks made a “predicate” objection, contending that the State’s expert was not qualified to discuss population statistics and that the expert must explain how he arrived at his numbers. During a sidebar conversation, the State explained that it did not plan to have its expert testify regarding population frequency statistics and that if it did so it would establish the proper foundation.

Banks never argued below that population frequency statistics must be introduced for DNA results to be admissible. Consequently, this issue is procedurally barred. See Singleton v. State, 783 So.2d 970, 978 (Fla.2001) (“Because defense counsel did not raise this argument below, it is not cognizable on appeal and is procedurally barred.”).

D. Testimony Regarding Uncharged Crime

Bank asserts that the trial court abused its discretion in denying his motion for mistrial when witness Sudie Johnson implicated him in an uncharged crime. We disagree.

“A ruling on a motion for a mistrial is within the sound discretion of the trial court and should be ‘granted only when it is necessary to ensure that the defendant receives a fair trial.’ ” Gore v. State, 784 So.2d 418, 427 (Fla.2001) (quoting Goodwin v. State, 751 So.2d 537, 547 (Fla.1999)). The standard of review applied to a trial court’s ruling on a motion for mistrial is abuse of discretion. Floyd v. State, 913 So.2d 564, 576 (Fla.2005). Under the abuse of discretion standard of review, a ruling will be upheld unless the ruling is “arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Lugo v. State, 2 So.3d 1, 19 (Fla.2008) (quoting Parker v. State, 904 So.2d 370, 379 (Fla.2005)).

In this case, Banks’ former girlfriend, Sudie Johnson, testified on cross-examination that she did not believe Banks when he first told her that he had “murked” someone. She thought he was just trying to get more attention from her, and she at first believed that Banks was not capable of such an act. Johnson testified that she was not aware that Banks was having sex with other women. Thereafter, defense counsel asked Johnson whether she changed her mind about Banks and stopped supporting him “because you found out that he and Ms. Volum had sex?” Johnson responded, “No, that wasn’t the reason. The reason was from the previous — I supported Mr. Banks all the way up until I seen the tape of him stabbing Mr. William Johnson....”

Defense counsel objected and moved for a mistrial, contending that the other victim was irrelevant and Johnson’s response was not an invited comment because he did not ask about other crimes but instead asked about when she changed her, mind about Banks. The trial judge denied the defense’s motion for mistrial. However, the trial judge gave a curative instruction, and the State agreed not to mention it in its closing argument. The next day the trial judge polled the jury to determine if the jurors could follow his instruction to disregard Johnson’s remark regarding the other stabbing. All of the jurors indicated that they would disregard Johnson’s remark and base their verdict only on the evidence lawfully before them.

Therefore, the trial court acted within its sound discretion when denying the motion for mistrial. We affirm the trial court’s denial.

E. Video

Banks next argues that the trial court erred by admitting, during the penalty phase, a soundless surveillance video of Banks committing a robbery and stabbing at a convenience store. We disagree.

As this Court has explained, “it is appropriate in the penalty phase of a capital trial to introduce testimony concerning the details of any prior felony conviction involving the use or threat of violence to the person rather than the bare admission of the conviction.” Rhodes v. State, 547 So.2d 1201, 1204 (Fla.1989). “[R]elevant evidence concerning the circumstances of a prior violent felony conviction is admissible in a capital sentencing proceeding, unless admission of the evidence would violate the defendant’s confrontation rights, or the prejudicial effect of the evidence clearly outweighs its probative value.” Finney v. State, 660 So.2d 674, 683 (Fla.1995). “Testimony concerning the events which resulted in the conviction assists the jury in evaluating the character of the defendant and the circumstances of the crime so that the jury can make an informed recommendation as to the appropriate sentence.” Rhodes, 547 So.2d at 1204; see also Singleton v. State, 783 So.2d 970, 978 (Fla.2001) (quoting Rhodes); Elledge v. State, 346 So.2d 998, 1001 (Fla.1977) (“This is so because we believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge.”). “However, the details of the collateral offense must not be emphasized to the point where that offense becomes the feature of the penalty phase.” Finney, 660 So.2d at 683.

In this case, the trial court did not abuse its discretion in admitting the surveillance video of Banks robbing and stabbing William Johnson on March 23, 2005. The video is undeniably probative of the circumstances of Banks’ prior violent felony. And a review of the video demonstrates that its probative value is not outweighed by its prejudicial effect. The approximately two-minute video is soundless with most of the footage devoted to viewing the victim and others inside a convenience store. The actual crime occurred very quickly, and it is not clear from the video how many times Banks stabbed William Johnson because the camera’s view of the stabbing was obstructed by a vehicle. Moreover, while blood is visible and while Johnson temporarily falls to the ground, Johnson gets back up and walks into the convenience store holding his arm. The jury was never informed that William Johnson eventually died as a result of the wounds he suffered. Therefore, the prejudicial effect of the video is less than the prejudicial effect involved in Singleton, where this Court upheld the penalty phase testimony of the victim even though her swearing in and identification of Singleton allowed the jury to view the prosthetics she needed after Singleton chopped off her arms during his prior violent felony. See Singleton, 783 So.2d at 978.

Additionally, the details of Banks’ prior violent felony did not become the focus. The trial court refused to permit the State to introduce storyboards that had been used in Banks’ trial for the robbery and stabbing. And the detective who authenticated the video did not testify extensively about his investigation. Finally, while the State did discuss the video in relation to the prior violent felony aggravator, it was not the primary focus of the State’s penalty phase closing argument.

Given the above, the trial court did not abuse its discretion in admitting the video during the penalty phase.

F. Cold, Calculated, and Premeditated Aggravator

Banks contends that the cold, calculated, and premeditated (CCP) aggravator was not proven beyond a reasonable doubt. His claim is without merit.

This Court has explained the following regarding the CCP aggravator:

A determination of whether CCP is present is properly based on a consideration of the totality of the circumstances. See Hudson v. State, 992 So.2d 96, 116 (Fla.2008); Lynch [v. State, 841 So.2d 362, 372 (Fla.2003) ]. The scope of review is limited “to ensuring that the trial court applied the correct rule of law, and if so, that there is competent, substantial evidence to support its findings” as to an aggravating factor. Caballero v. State, 851 So.2d 655, 661 (Fla.2003) (citing Willacy v. State, 696 So.2d 693, 695 (Fla.1997)). For CCP to be found, the killing must be “the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.” Franklin v. State, 965 So.2d 79, 98 (Fla.2007).

Gill v. State, 14 So.3d 946, 962 (Fla.2009).

Here, there is competent substantial evidence to support the trial court’s finding of the CCP aggravator. According to Sudie Johnson’s testimony, Banks admitted that the murder was a “murder pay-back” and that he took off his outer garments before entering Volum’s residence. Banks also told Johnson that he staged the crime scene to make it look like a drug-related murder. Therefore, the State presented evidence that Banks coolly and carefully planned to murder Volum before he entered her residence with no pretense of moral or legal justification. Accordingly, the trial court did not err in finding the CCP aggravator.

III. SUFFICIENCY OF EVIDENCE

This Court reviews “the record of a death penalty case to determine whether the evidence is sufficient to support the murder conviction.” Winkles v. State, 894 So.2d 842, 847 (Fla.2005); see also Davis v. State, 859 So.2d 465, 480 (Fla.2003). Here, there is competent substantial evidence to support Banks’ murder conviction.

As explained previously, Banks confessed to Sudie Johnson that he repeatedly stabbed Volum as a “murder pay-back.” Banks also told Johnson that he removed his outer clothes before entering Volum’s residence and that he had accidentally stabbed his leg when he missed Volum’s body during the attack. Consistent with the information Banks relayed to Johnson, the medical examiner testified that Volum had indeed died as a result of multiple stab wounds. Also consistent with the information Banks relayed to Johnson, Banks’ blood, fingerprints, and footprints were found at the crime scene. Additionally, the night of the murder Banks attempted to use Volum’s ATM card, and he was seen driving a car that matched the description of Volum’s white, compact sedan. Moreover, Volum’s laptop was later recovered from the residence that Banks shared with Johnson. Also, Johnson testified that she saw bloody undergarments in a pillow case that Banks used to carry the laptop into their residence the morning after the murder. The pillowcase was the same color as Volum’s sheets, and a pillow at the crime scene was missing its case.

Accordingly, there is sufficient evidence to support the murder conviction.

IV. PROPORTIONALITY

“This Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant.” Bolin v. State, 869 So.2d 1196, 1204 (Fla.2004). Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So.2d 350, 856 (Fla.2005) (quoting Urbin v. State, 714 So.2d 411, 416 (Fla.1998)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So.2d 465, 480 (Fla.2003). In addition, the heinous, atrocious, or cruel aggravator and the cold, calculated, and premeditated aggravator are “two of the most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999).

The instant case involves a murder by stabbing. The jury recommended death by a vote of ten to two. The trial court found three aggravating circumstances beyond a reasonable doubt: (1) committed by a person previously convicted of a violent felony (very great weight); (2) especially heinous, atrocious, or cruel (HAC) (very great weight); and (3) committed in a cold, calculated, and premeditated manner (CCP) (great weight). The trial court found five mitigating circumstances: (1) low IQ (very little weight); (2) brain deficit (moderate weight); (3) antisocial personality traits (little weight); (4) not the only participant (no weight); and (4) difficult youth (little weight).

Under the totality of the circumstances, Banks’ sentence is proportional in relation to other death sentences that this Court has upheld. See, e.g., Merck v. State, 975 So.2d 1054 (Fla.2007) (death sentence proportionate for stabbing murder where trial court found prior violent felony and HAC aggravators, statutory age mitigator, and several nonstatutory mitigators, including: a difficult family background; alcohol use the night of the murder; and a capacity to form positive relationships); Singleton v. State, 783 So.2d 970 (Fla.2001) (death sentence proportionate for stabbing murder where trial court found prior violent felony and HAC aggravators as well as substantial mitigation, including: extreme mental or emotional disturbance; impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law; and under influence of alcohol and possibly medication at time of offense); Blackwood v. State, 111 So.2d 399 (Fla.2000) (death sentence proportionate for strangulation murder where trial court found HAC ag-gravator, one statutory mitigator, and eight nonstatutory mitigators).

V. CONCLUSION

For the reasons expressed above, we deny each claim raised on appeal and affirm Banks’ conviction and sentence of death.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . There was a pillow without a pillowcase at the crime scene.

      . When Johnson accessed the computer, she noticed the name L. Volum on the screen.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).


source: Caselaw Access Project

license: Public Domain

text:
    Erling Henrick JONSSON, Husband, Appellant, v. Linda M. DICKINSON, Wife, Appellee.
    No. 1D09-5311.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Lester Makofka of Makofka and Makof-ka, Jacksonville, for Appellant.
    Clyde W. Davis, Fernandina Beach, for Appellee.
   PER CURIAM.

The former husband seeks review of portions of the final judgment dissolving the marriage between him and the former wife. We affirm as to all issues.

The former husband complains first about a provision directing him to pay $30,000 to the former wife. The trial court characterized this award as “lump sum alimony.” However, it is apparent that the award was intended as an equitable award to reimburse the former wife for $30,000 of premarital funds she had invested in the marital home, which investment she lost when the home was foreclosed upon because the former husband did not pay the mortgage while the dissolution litigation was pending as he had been ordered to do. As such, the award is amply supported by the record. To the extent that, as a part of this issue, the former husband complains that the trial court failed to make findings of fact as required by statute, he has not preserved the point because, although he filed a motion for rehearing, he abandoned it when he filed his notice of appeal before the trial court had ruled on the motion. See Owens v. Owens, 973 So.2d 1169, 1170 (Fla. 1st DCA 2007) (treating a complaint that the trial court failed to make adequate findings of fact as unpreserved because it was not raised by a motion for rehearing); Fla. R.App. P. 9.020(h)(3) (stating that, if a notice of appeal is filed before an order is entered disposing of a timely filed motion for rehearing, the motion will be deemed abandoned). The other two issues raised by the former husband are, likewise, not preserved because either not presented in a motion for rehearing or, if presented, abandoned when he filed his notice of appeal before the trial court ruled on the motion.

AFFIRMED.

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    In re ELECTRONIC FILING OF the DOCKETING STATEMENT/NOTICE OF APPEARANCE OF COUNSEL.
    Administrative Order No. 10-1.
    District Court of Appeal of Florida, First District.
    March 24, 2010.
   BY ORDER OF THE COURT.

1)Effective for all proceedings assigned case number 1D10-1600 and higher, the Docketing Statement/Notice of Appearance of Counsel (“Docketing Statement”) filed by an attorney is required to be electronically completed and submitted to the court through the court’s secure online portal “eDCA.” While pro se litigants are encouraged to electronically complete and submit their Docketing Statements through eDCA, they are not required to do so and may submit paper versions of the court’s pink Docketing Statement instead.

2) Attorneys for appellants and petitioners must electronically complete and submit the Docketing Statement through eDCA immediately upon receipt of the court’s acknowledgment notice and assignment of a case number in cases involving an original writ, an appeal of a non-final order, or in a “child” case (as defined in the court’s Docketing Statement). In all other cases, counsel for the appellant must electronically complete and submit the Docketing Statement via eDCA within 20 days of the date of the court’s acknowledgment notice accepting this case and assigning a case number in the case. Pro se litigants are not required to electronically file their Docketing Statements but must otherwise timely file a paper version of their completed Docketing Statement with the court.

Counsel for appellees, respondents, and amicus curiae are not required to file a Docketing Statement unless there are amendments, corrections, or additions to the Docketing Statement filed by appellant/petitioner. Additionally, appellees/re-spondents and Amici are required to electronically complete and submit a Docketing Statement/Notice of Appearance of Counsel through eDCA if counsel’s name does not already appear on the certificate of service of the notice of appeal. Appellee’s Docketing Statement and notice of appearance, if required, are due to be electronically completed and submitted through eDCA no later than the service of the answer brief.

3) Attorneys are required to register with eDCA and must complete their Docketing Statement online by typing answers to the questions about the case into the court’s electronic Docketing Statement form. Once the attorney has finished answering all the relevant questions and clicked the “submit” button, an electronic version of the attorney’s Docketing Statement will be generated by the court’s online system. An electronic copy of the generated Docketing Statement will be submitted to the court and counsel will have the opportunity to print a copy of the completed electronic docketing statement for his or her records and to use in making service of the Docketing Statement on the opposing side.

4) The date the electronic copy of the Docketing Statement is submitted to and received by the court will constitute the date of filing of the Docketing Statement. A signed paper copy of the Docketing Statement will not be required or permitted to be filed with the court if an electronic copy is required.

5) Service of the Docketing Statement is still required to be made by the filer on the opposing side. Filers may need to print a paper copy or copies of their electronic Docketing Statement generated using eDCA to make service on the opposing side and any other parties/counsel in the case. If permission has been received from the other side to provide service by electronic means, an electronic copy of the Docketing Statement may be served to the Parties of Record or their attorneys in lieu of a paper copy.

6) Submission of the electronic Docketing Statement/Notice of Appearance through eDCA by a registered attorney will constitute a notice of appearance in the case by that attorney if an appearance in the case has not previously been made. A signature is not required on the electronic version of a Docketing Statement completed and submitted through eDCA.

7) If counsel is unable to comply with this order, counsel must file a motion as a separate paper document setting forth the reasons for which counsel cannot comply and requesting a hardship exception. In the rare instance when a hardship exception is granted, counsel will be required to submit a paper version of the Docketing Statement.

/s/ Paul M. Hawkes

Paul M. Hawkes, Chief Judge


author: NORTHCUTT, Judge.

text:
    Adam Clark RALEIGH, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-4183.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2010.
    Rehearing Denied Oct. 28, 2010.

      Michael Schneider, Naples, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Adam Clark Raleigh stands charged with habitual driving while license suspended or revoked. In this certiorari proceeding, he asks us to quash an order preventing him from deposing the arresting officer. We deny his petition.

After Raleigh scheduled the officer’s deposition, the circuit court granted the State’s motion for a protective order on the ground that Raleigh had not complied with Florida Rule of Criminal Procedure 3.220(h)(1)(D). Under that provision, no deposition may be taken “in a case in which the defendant is charged only with a misdemeanor or a criminal traffic offense ... unless good cause can be shown to the trial court.”

The specific conduct giving rise to the charge against Raleigh — driving while one’s license is canceled, suspended, or revoked — may be a second-degree misdemeanor, a first-degree misdemeanor, or a third-degree felony, depending on the number of times the driver has been convicted based on that behavior or depending on whether the driver is a habitual traffic offender. See § 322.34(2), (5), Fla. Stat. (2008). Raleigh is charged with a third-degree felony because he allegedly has been convicted at least twice before. Therefore, rule 3.220(h)(1)(D) is not implicated by virtue of the degree of the offense for which Raleigh is charged.

However, the rule is rendered applicable to Raleigh’s case by the nature of the charged offense, as opposed to its degree. Raleigh is alleged to have violated a provision of chapter 322, which regulates drivers’ licenses and is a component of title XXIII, which contains the various chapters related to the licensure and operation of motor vehicles. A number of drivers’ license violations deriving from the requirements of chapter 322 have been designated by the legislature as “noncriminal traffic infractions.” See § 318.14, Fla. Stat. (2008). These include, for example, driving with a license that has been expired for four months or less, § 322.065; driving without carrying a valid license, § 322.15(1); driving at certain times while underage and without being accompanied by an adult, § 322.16(2), (3); and failing to timely update a license after a name or address change, § 322.19. Id.

Raleigh’s alleged drivers’ license violation is not on the list of “noncriminal traffic infractions.” To the contrary, as mentioned, violation of section 322.34(2) is a misdemeanor or a felony, depending on the number of times the defendant has previously been convicted of it. In other words, it is a “criminal traffic offense” as contemplated in rule 3.220(h)(1)(D). We therefore agree with the circuit court that Raleigh is charged with a criminal traffic offense, subject to the good cause requirement of rule 3.220 in order to take a deposition. Cf. Dep’t of Highway Safety & Motor Vehicles v. Rosenthal, 908 So.2d 602, 607 (Fla. 2d DCA 2005) (holding that “Rosenthal’s second DWLS offense was ... subject to a criminal penalty pursuant to section 322.34(2) and therefore not subject to disposition as a noncriminal traffic infraction under chapter 318”).

Although we deny Raleigh’s petition for relief, we do so without prejudice to his right to argue good cause for a deposition, if he is able to do so. We note the rule’s provision that “[i]n determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness’ testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition.” Fla. R.Crim. P. 3.220(h)(1)(D).

Petition denied.

ALTENBERND, J., and CASE, JAMES R., Associate Judge, Concur.


text:
    Danny Allen GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3227.
    District Court of Appeal of Florida, First District.
    Aug. 25, 2010.
    Rehearing Denied Nov. 3, 2010.
    Danny Allen Green, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

DAVIS, BENTON, and CLARK, JJ, concur.


author: PER CURIAM. SAWAYA, J.,

text:
    Mark GODFREY and Nicholas Grace, Appellants/Cross-Appellees, v. PRECISION AIRMOTIVE CORPORATION, et al., Appellees/Cross-Appellants.
    No. 5D07-4389.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 2010.
    Rehearing Denied Oct. 29, 2010.

      Jeffrey E. Bigman, of Law Firm of Smith Hood Bigman, Daytona Beach, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Arthur Alan Wolk, The Wolk Law Firm, Philadelphia, PA, for Appellants/Cross-Appellees.
    Matthew J. Conigliaro and Stephanie Zimmerman of Carlton Fields, P.A., St. Petersburg, and Wendy F. Lumish, of Carlton Fields, P.A., Miami, for Appel-lees/Cross-Appellants Teledyne Continental Motors, Inc., and Teledyne Technologies, Incorporated.
    No Appearance for other Appellees.
   PER CURIAM.

Mark Godfrey and Nicholas Grace (the Plaintiffs) timely appeal an order granting defendants Teledyne Continental Motors, Inc., and Teledyne Technologies, Inc.’s (collectively Teledyne) motion for a new trial in the Plaintiffs’ suit for damages suffered when the airplane they were in crashed allegedly as the result of a faulty carburetor. On cross-appeal, Teledyne also raises a number of issues. We need not address all issues raised, but agree with Teledyne that the trial court committed reversible error by allowing the Plaintiffs to introduce evidence of more than 100 problem occurrences involving other aircraft engines without a showing that the other incidents were caused by defects substantially similar to the defect that the Plaintiffs alleged here. These documents were purportedly offered solely to show that Teledyne was on notice of the carburetor defect that allegedly caused its engine to fail. Yet, most of the incidents involved a larger aircraft engine built by a competing manufacturer and using a different carburetor than the one Teledyne certified for use with the engine at issue in this case.

Generally, in this context, “evidence of the occurrence or non-occurrence of prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions.” Frazier v. Otis Elevator Co., 645 So.2d 100, 101 (Fla. 3d DCA 1994) (citations omitted). Florida law places the burden on the proponent of this type of evidence to demonstrate “substantial similarity” before the evidence can be admitted. Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 860 (Fla. 3d DCA 2007), review denied, 984 So.2d 1250 (Fla. 2008). Teledyne filed a timely pretrial motion to bar the Plaintiffs from admitting any evidence of other accidents without making the required showing. In response, the trial court entered an order that accurately set forth the law in this area and required the Plaintiffs to make the required showing in writing. The Plaintiffs filed a written submission that failed, in our view, to make the required showing as to the majority of these incidents. Basically, the Plaintiffs relied upon testimony from one of their experts, who opined that the engine at issue in this case was similar to other engines, including engines from other manufacturers. The same expert testified to a list of carburetors that he opined to be similar in that they all share the defects alleged to exist in the carburetor that allegedly contributed to the engine failure in this case. That testimony, however, was not sufficient to show that the more than 100 incidents placed before the jury met the required test for substantial similarity.

In fact, even if all of the accidents had involved the same Teledyne engine, that showing, alone, would not have been sufficient to secure admission of evidence regarding all of the other accidents. For example, one of the effects of the defects alleged by the Plaintiffs is a build-up of carbon in the engine exhaust valve that can interfere with the engine’s operation and, ultimately, cause the engine to fail (stop running during flight). The parties do not dispute, however, that there are other potential causes of carbon build-up inside an aircraft engine. For example, the Plaintiffs’ expert conceded that failing to change the engine oil when specified can cause this same condition. Yet, all that is known about some of the supposedly similar accidents is that they involved engines with carbon build-up. That showing, alone, is clearly insufficient to meet the similarity requirement of Frazier because there is no way of knowing whether the build-up was caused by the same condition alleged as a defect in this case. An accident caused because of failure to change an engine’s oil when required — even if it involved the same Teledyne engine type as the one at issue here — would not have put Teledyne on notice of the defects alleged in this case and would therefore have had no relevance to the matters at issue in this case.

Because the Plaintiffs’ pre-trial showing was not sufficient to meet the Frazier similarity standard, the trial court erred in denying Teledyne’s pre-trial motion on this issue. Given the volume of other accident evidence introduced in this case without a sufficient similarity showing, we cannot conclude that the error in admitting this evidence was harmless. Accordingly, a new trial is warranted.

For the benefit of the trial court and the parties in future proceedings, we note that we find no error in: (1) the trial court’s entry of summary judgment in favor of Teledyne on the issue of punitive damages; (2) the trial court’s failure to enter judgment in Teledyne’s favor as to the Plaintiffs’ negligent omission claim; or (3) the trial court’s denial of Teledyne’s other post-trial motions. We do note, however, that the jury instructions regarding the Plaintiffs’ negligent omission claim were problematic. Basically, the Plaintiffs claimed that Teledyne had a duty to disclose known defects under various Federal Aviation Administration (FAA) regulations. The Plaintiffs are correct that a legal duty may arise from administrative regulations. McCain v. Florida Power Corp., 598 So.2d 500, 503 n. 2 (Fla.1992). The trial court properly rejected Tele-dyne’s argument that the duty to disclose apparently created by these regulations cannot apply to them because the Plaintiffs alleged a defect with another manufacturer’s carburetor, and not with Teledyne’s engine. The problem with this argument is that Teledyne specified the carburetor that had to be used with its engine. And, the Plaintiffs’ theory is that the defective carburetor caused the engine to fail during flight. We agree with the Plaintiffs, as did the trial judge, that if FAA regulations require an airplane engine manufacturer to report known engine defects to the public, this disclosure requirement would necessarily include a duty to disclose a known defect in a carburetor or other part certified by the engine manufacturer for use with the engine that will cause the engine itself to fail.

The problems with the jury instructions on this issue arose as the trial court allowed the Plaintiffs’ theory to morph during trial from an affirmative misrepresentation theory to a negligent omission theory. Although we find no abuse of discretion, on this record, in allowing the Plaintiffs to basically amend their complaint to conform with the evidence, the parties ended up using standard instructions on affirmative misrepresentation that did not match the Plaintiffs’ ultimate theory of liability. On remand, the Plaintiffs should be granted an opportunity to formally amend their complaint to match the theory presented to the jury. And, this opinion should not be read as barring any legal defenses that Teledyne may raise in response to the amended complaint, other than the one expressly rejected in this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

LAWSON and COHEN, JJ., concur.

SAWAYA, J., dissents with opinion.

SAWAYA, J.,

dissenting.

I respectfully dissent. Three defendants remained in this case at the time of the trial and only two suffered adverse verdicts of liability and damages: Tele-dyne Continental Motors, Inc. and Tele-dyne Technologies (collectively Teledyne), which manufactured the motor that failed on the doomed aircraft, and Precision Air-motive Corporation (Precision), which manufactured the faulty carburetor — the only carburetor that could be used on the Teledyne motor. Precision settled with the plaintiffs after this appeal was filed, leaving Teledyne as the only other party. During the trial, the plaintiffs introduced a substantial amount of evidence, including a number of composite exhibits regarding prior accidents and incidents involving the Precision carburetor and the Teledyne motor. The prior accident evidence was presented to the jury for a very limited purpose: to establish that Teledyne was on notice that there were problems with its motor and that Precision was on notice that there were problems with its carburetor. The jury was given a specific instruction that read:

During the course of the case various SDRs [Service Difficulty Reports] and warranty reports were admitted at this trial for a limited purpose only. These documents are not admissible for the truth of the matters recorded in the document because the person who made this report is not here to testify.
In other words, you can [sic] may not conclude from the mere fact that certain events were recorded in these documents, either that the events truly occurred as they are described, or that they happened for the reason stated in the document.
These documents are being admitted solely for the purpose of showing that the report was made and that certain parties may have learned that the report was made and had notice of the alleged difficulty with the service, not for the truth of what was reported.

The majority reverses the verdict in favor of Teledyne, concluding that some of this evidence was erroneously admitted because the incidents in the reports were not substantially similar to the incident in the instant case. I do not believe admission of this evidence constitutes reversible error.

Although prior incidents must be substantially similar to the incident at issue if used to prove the existence of a dangerous condition, this requirement is relaxed if evidence of prior incidents is introduced only to establish notice of a potentially dangerous condition, as it was in this instance. When prior accident evidence is used to prove notice, the evidence may pertain to the same type of product; if different models of the product are involved, the proponent must establish that they are substantially similar to the model at issue and malfunction under similar circumstances. As the court explained in Emerson Electric Co. v. Garcia, 623 So.2d 523, 524 (Fla. 3d DCA 1993):

Evidence of the safety-history of a product is admissible where the evidence pertains to the use of the same type of appliance or equipment, and is based on use of the product under substantially similar conditions. Railway Express Agency, Inc. v. Fulmer, 227 So.2d 870 (Fla.1969); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983), rev. denied, 447 So.2d 889 (Fla.1984); Lasar Mfg. Co. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983); Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA) cert. denied, 353 So.2d 680 (Fla.1977). The purpose of product safety-history history is to show the dangerous character of the product and the defendant’s knowledge thereof. Railway Express Agency, Inc., 227 So.2d at 872 (citing Chambers v. Loftin, 67 So.2d 220 (Fla.1953)).

In order to admit such evidence, the trial court must make “at least a threshold determination” of substantial similarity. Hogan v. Gable, 30 So.3d 573, 575-76 (Fla. 1st DCA 2010). “The other accidents do not have to occur at an identical place and time, but the conditions should be similar enough to provide the requisite probative value.” Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 858 n. 7 (Fla. 3d DCA 2007) (citing Charles W. Ehrhardt, Florida Evidence § 411.2 (2007)), review denied, 984 So.2d 1250 (Fla.2008). As the court explained in Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012, 1015 (Fla.1977), “[DJeterminations of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge.” If the plaintiff offers sufficient proof of substantial similarity and the defendant submits conflicting proof, the trial court has the discretion to determine admissibility based on the plaintiffs proof and allow the jury to determine the weight to give the evidence. “When there is sufficient similarity of conditions for the court to admit the evidence, the variations may be considered by the jury in determining the weight which they will give the evidence.” Charles W. Ehrhardt, Florida Evidence § 411.2 (2010). Similarly, in Friddle v. Seaboard Coast Line Railroad Co., 306 So.2d 97 (Fla.1974), the Florida Supreme Court adopted the dissent in Seaboard Coast Line Railroad Co. v. Friddle, 290 So.2d 85 (Fla. 4th DCA 1974), which specifically stated:

The sufficiency of the showing of similarity is a matter resting primarily within the sound discretion of the trial judge. Moreover, the dissimilarities are matters going to the Weight rather than the Admissibility of the evidence are questions that a jury is capable of evaluating and assessing.

290 So.2d at 90 (citation omitted).

Much of the evidence the majority condemns consists of reports of prior accidents and incidents that do not involve Teledyne engines and do not involve the exact model carburetor — the MA-3SPA— that failed in the instant case. Most of that evidence is contained in what the trial court labeled Exhibit 244-A and Exhibit 139, which are composite exhibits of numerous reports of carburetor failures. The carburetors in those reports involved the MA-4SPA and the MA4-5, which were manufactured by Precision. That evidence was introduced to establish a poor safety history of Precision’s carburetors that were of the same type and to show that Precision was on notice that its carburetors, particularly its MA-3SPA, were defective. This evidence was especially important to the plaintiffs in order to establish a basis for their punitive damage claim against Precision, and the jury was made aware that the evidence did not involve Teledyne’s motor. It is apparent that the parties understood this evidence to be directed against Precision as demonstrated by the fact that Teledyne filed its motion to exclude the prior accident evidence regarding its own motor and then simply joined in the motions filed by Precision. Moreover, when the trial court gave Precision and Teledyne the opportunity during trial to make specific objee-tions regarding the similarity requirement so it could reconsider its ruling admitting the evidence, Precision said it would do so and Teledyne said nothing and did nothing. Now, in the instant proceedings after Precision settled with the plaintiffs and is no longer a party, Teledyne is actually attempting to utilize the evidence directed against Precision to extricate itself from the adverse verdict rendered against it.

Additionally, the expert for the plaintiffs testified during trial that all of these Precision model carburetors have substantially the same parts and mechanisms, worked the same, and were substantially similar. He further testified that the defects involved in the MA-3SPA were common to the other models installed on other engines and that notice of the defects in one model was notice of the same defects in the others. Although contrary expert evidence and opinions were presented in an attempt to prevent admission of this evidence, the trial court found that the threshold predicate of similarity was established by the testimony of the plaintiffs’ experts and allowed the jury to resolve the conflicting evidence to determine what weight to give the reports of the prior failures of Precision’s carburetors. Hence, the jury was fully aware of the fact that this evidence did not involve Teledyne’s motor, and I do not believe that but for this evidence, the jury would have returned a different verdict as to Teledyne. See Nat’l Union Fire Ins. Co. v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000) (“[T]he test for harmful error in a civil case ... is ‘whether, but for such error, a different result may have been reached.’” (quoting Katos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992))); see also Hogan, 30 So.3d at 575 (same). If the trial court erred in admitting this evidence, it was harmless as to Teledyne.

The majority fails to mention that there was much evidence of substantially similar accidents and incidents involving Tele-dyne’s motor. This evidence clearly establishes that Teledyne was on notice that there were problems with its motor. As the plaintiffs point out in their briefs, during a two-day evidentiary hearing and during trial, the trial court heard the testimony of the plaintiffs’ expert and the defendants’ experts regarding the substantial similarity of this evidence and appropriately exercised its discretion in finding that the threshold predicate of similarity had been established. The numerous reports contained in composite Exhibit 244-B, unlike Exhibit 244-A, involved reports on Cessna 150 planes with Teledyne’s Continental 0-200 engines and Precision’s MA-3SPA carburetor. These SDRs complained variously of leaking intake valves, stuck valves, low compression due to heavy deposits of lead, and stuck valves due to carbon or lead build-up.

The plaintiffs also introduced Exhibits 137 and 138, which include an FAA Malfunction or Defect Report and cover letter involving a float assembly. At trial, the plaintiffs’ expert, Mr. Sommer, testified that the Malfunction or Defect Report is filled out by mechanics in the field when they find something they consider to be a flight safety item that would be useful to get into the hands of the public. The FAA collects the forms and sends them on to the manufacturers and uses them to make judgments in regards to whether they have a safety problem. The Malfunction or Defect Report contained in Exhibit 137 was submitted by a General Aviation District Office of the FAA, meaning that an FAA inspector had found a problem that he was reporting. It involved a Cessna 150L, an O-200A Continental engine, and the MA-3SPA carburetor. The total time of usage of the carburetor parts was 323 hours; the carburetor in the plaintiffs’ plane had 296 hours. The document reported:

Engine loss RPM from 2750 to 1300 following takeoff. Emergency landing made without damage to aircraft or occupants. Carburetor removed from engine and disassembled. Float lever assembly, Part Number 30-159, is found hung up in inlet valve. In closed position, no identification could be ascertained as to the actual causé on the bench. No binding of the float or the body and unable to repeat the condition. Recommend change of these units to the old-type float and valve assembly and float valve clip. New type, since 1970, float lever assembly and float valve clip a very cheap assembly. This wire clip appears easily bent and/or coned. Caused a hangup, even though we were unable to duplicate the condition on the bench.

This is the same type of failure involved in the instant case.

Exhibit 138 was the letter accompanying the above Defect Report that was sent to Teledyne. It asked that Teledyne follow the investigation through Marvel-Sche-bler, the predecessor to Precision, and advise the FAA of its comments on the cause of the malfunction and possible corrective action. Mr. Sommer testified that he was unaware of any action Teledyne had taken in response to the letter.

Exhibits 137,138, and 244-B were properly admitted. There were sufficient similarities between the malfunction being reported and the malfunction in the instant case for the trial court to admit the exhibits. These exhibits involved the identical engine, carburetor, and plane, and involved an in-flight failure. The trial court did not abuse its discretion in concluding that the evidence was similar enough to provide the requisite probative value to establish the threshold predicate of similarity. That evidence was admitted for the limited purpose of establishing a poor safety history of the Teledyne motor to show that Tele-dyne had notice of the problem with its motor. The jury was given a specific instruction that it was to be considered to establish notice only and it must be presumed that the jury followed that instruction. See Rodriguez v. Loxahatchee Groves Water Control Mgmt. Dist., 636 So.2d 1348, 1350 (Fla. 4th DCA 1994) (“Furthermore, the trial judge gave a jury instruction to the effect that other accident evidence could not be considered as proof of negligence, but only as proof of appel-lee’s knowledge of a dangerous condition if the conditions were substantially similar. Unless there is a clear showing to the contrary, it should be presumed that the jury followed the jury instructions.”), review denied, 649 So.2d 233 (Fla.1994). There is nothing to suggest that the jury considered this evidence for any other purpose or that Teledyne was unfairly prejudiced by it.

I conclude that there was more than sufficient evidence that was properly submitted to the jury to establish that Tele-dyne was on notice of a problem with its motor. Even if it is assumed, as the majority contends, that the evidence of prior accidents regarding Precision’s carburetor was improperly admitted, that error concerned Precision and the claims filed against Precision. Even if it is further assumed that the error did affect Tele-dyne, and I firmly believe that it did not, then the error was harmless. There is no way that it can reasonably be concluded that but for that evidence, a different verdict would have been rendered as to Tele-dyne.

Finally; I turn to the allegedly improper comments made by the plaintiffs’ counsel that prompted the trial court to grant a new trial. Clearly, those comments were not improper in light of the punitive damage claim lodged against Precision. However, that issue is mooted by virtue of the majority’s decision to reverse on the basis of the similar accident evidence, so I will not discuss it any further. I believe that the order entered by the trial court granting a new trial should be reversed and judgment entered in accordance with the verdict rendered by the jury in favor of Teledyne.

      . See U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1147-48 (10th Cir.2009); Wheeler v. John Deere Co., 862 F.2d 1404, 1407-08 (10th Cir.1988) ("Evidence proffered to illustrate the existence of a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. The requirement is relaxed, however, when the evidence of other accidents is submitted to prove notice or awareness of the potential defect.”); see also Lawrence v. Fla. E. Coast Ry. Co., 346 So.2d 1012, 1015 (Fla.1977) ("However, Mrs. Lawrence argues that the evidence was not introduced for the purpose of showing that the King's Street crossing was dangerous, but rather for the purpose of showing that the Railroad had notice that the signal system was not operating properly. The record supports her argument. It appears the District Court confused the rule governing prior similar accidents with the rule governing admission of evidence of notice of defective appliances.”).

      . See Ry. Express Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla.1969); Hogan v. Gable, 30 So.3d 573, 575 (Fla. 1st DCA 2010); Jackson v. H.L. Bouton Co., 630 So.2d 1173, 1176 (Fla. 1st DCA 1994); Lasar Mfg. Co. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983); Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977); see also Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 860 (Fla. 3d DCA 2007).

      . See also Hogan; Hall-Edwards; Stephenson v. Cobb, 763 So.2d 1195, 1196 (Fla. 4th DCA 2000) (quoting Lawrence, 346 So.2d at 1015); Jackson.


author: GRIFFIN, J.

text:
    Cedric FRASILUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-421.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 2010.
    William R. Ponall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING AND WRITTEN OPINION

GRIFFIN, J.

The judgment and sentence in this case were initially affirmed by this Court -without a written opinion. Appellant has filed a motion for rehearing and a request for a written opinion. We deny the motion for rehearing because we remain convinced that the trial court committed no reversible error; however, we withdraw the previously issued affirmance and grant the motion for a written opinion.

Cedric Frasilus was indicted by a grand jury for the first degree murder of Deme-trick Smith [“Mr. Smith”] on January 13, 2008, and was convicted after a trial. The issue about which Appellant seeks a written opinion arose during jury deliberations.

After the jury retired to deliberate, they returned with a question: “When was the picture taken on the Department of Highway and Safety? What date, the issue date or duplicate? Signed ...., Foreperson.” This question related to the identification of Appellant as the assailant. One of the surviving victims said the assailant wore dreadlocks under a “hoodie.” Appellant claimed that he had not worn dreadlocks for four years and, that on the date of the homicide, he was bald. In his testimony, he claimed the photograph on his driver’s license, showing him with no hair, was taken the month before the crime. After reading the jury’s question, the trial judge said he could not tell the jury the date the photograph was taken, so he would send the following note back to the jury: “You will have to use your best recollection of the evidence. You have received all the evidence we can give you.” The court asked counsel if that was acceptable, and both Appellant and the State agreed. Now, on appeal, Appellant contends the trial court committed fundamental error by failing to inform the jury that it was entitled to a read-back of portions of the testimony.

The State’s position is that the jury never asked for any testimony to be read back to them, and the trial court’s response to their factual question was proper. Florida Rule of Criminal Procedure 3.410 provides that a trial court may, in its discretion, allow portions of the trial testimony to be read back to the jury upon their request. A trial court’s discretion over whether to allow a read-back of testimony is wide. Kelley v. State, 486 So.2d 578, 583 (Fla.1986). See also Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). In fact, the Florida Supreme Court has observed that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So.2d 110, 130 (Fla.2001) (citing McKee v. State, 712 So.2d 837, 838 (Fla. 2d DCA 1998)).

As late as 2007, the Florida Supreme Court has addressed the question of testimony read-back during jury deliberations. In Re Amendments to The Florida Rules of Civil Procedure, The Florida Rules of Criminal Procedure, The Standard Jury Instructions in Civil Cases and The Standard Jury Instructions in Criminal Cases — Implementation of Jury Innovations Committee Recommendations, 967 So.2d 178, 183 (Fla.2007). The Jury Innovations Committee had recommended that the court develop criteria for denying a read-back request. The court declined the invitation, saying: “We conclude that trial judges should have broad discretion in denying read-back requests.” It did, however, authorize Standard Criminal Instruction 4.4, which provides a suggested format for addressing jury read-back requests. In the same opinion, the supreme court authorized Standard Criminal Instruction 4.3, a procedure for addressing jurors’ questions.

Despite the wide latitude a trial court is accorded in exercising its discretion whether to read back testimony, some courts have said that a trial court “may not mislead the jury into thinking that a readback is prohibited.” Avila, 781 So.2d at 415. The Fourth District Court of Appeal has taken an expansive view of what constitutes a “misleading” of the jury. In Amia, the jury informed the court “that it needed to review the timing of specific events set forth by the testimonies of four named alibi witnesses.” 781 So.2d at 414. The trial judge told the jury that although the court reporter took “down the trial in shorthand notes,” there were “no printed transcripts” to “submit back to you.” Id at 415. The Fourth District concluded that the trial judge abused his discretion by failing to tell the jury about the potential availability of a read back:

While the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited. In this case, the jury clearly sought a readback of specific testimony. The trial court, however, without mentioning that a method of readback was available, informed the jury that there were no transcripts and that the jury members should rely upon their collective recollection. Because such a statement may have confused the jury as to whether a readback of testimony was permissible, we conclude that the trial court abused its discretion.

Id. at 415-16 (citations omitted).

In Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009), the Third District took a different approach. There, the jury sent a note to the court requesting trial transcripts. Id at 857. The trial court informed the prosecutor and defense counsel that it believed “the accurate and correct response is that they must rely on their own collective recollection of the evidence.” Id at 858. Defense counsel objected based on the failure of the suggested instruction to inform the jury of the availability of a read-back. Id The trial court overruled the objection and instructed the jury as it had announced it would. Id On appeal, the Third District held that the instruction was “fair and legally accurate” and that the trial court was under no obligation, in response to the request for transcripts, to inform the jury that a read-back may be available upon request. Id at 858-59.

The Appellant makes much of Judge Cope’s dissenting opinion in Hazuri, where he said:

The majority opinion finds dispositive the fact that the jury note asked for transcripts. According to the majority, since no transcripts were in existence, it follows that the question could be answered with a simple “no.”
The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony. Defense counsel quite properly said that under rule 3.410, a jury may request to have “testimony read to them,” and the court may so order.

Id. at 861 (Cope, J., dissenting). We need not decide whether a request for a transcript ipso facto gives rise to a duty on the part of a trial judge to inform the jurors of their right to request a read-back because our case is different. The jury did not ask to review a transcript or examine testimony; it asked for an answer to a fact question.

The Fourth District recently rejected the Third District’s view in Barrow v. State, 27 So.3d 211 (Fla. 4th DCA 2010). There, as in Hazuri, the jury requested to view the trial transcript. 27 So.3d at 215. Both the prosecutor and defense counsel suggested that the court advise the jury of its right to request a read-back. Id. at 216. The court, however, refused to give such an instruction, and instead told the jury, “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id. The Fourth District held that this instruction was misleading and, thus, constituted reversible error. Id. The Barrow court also certified conflict with Hazuri.

The Barrow court relied, in part, on this court’s decision in Roper v. State, 608 So.2d 533, 534 (Fla. 5th DCA 1992), where the trial court had responded to a jury’s request to “see” certain testimony by informing the jury, over defense counsel’s objection, that there was nothing to “see,” as no transcript was available. See Barrow, 27 So.3d at 217. This Court said that the trial court’s response was too narrow and that it was error to refuse even to consider defense counsel’s request:

The trial judge here narrowly focused upon the word “see” (as distinguished from “hear”) in the jury’s request and deftly side-stepped the problem. As we see it, he employed a semantic shell game effectively negating an option allowed the jury under Rule 3.410. At the very least, the trial judge should have apprised the jury that a method was available to have the cross-examination, or specific portions of it, read to them. Then, if the jury requested it, the trial court could have weighed that request in light of any applicable considerations.

Id. at 535. The Roper court did not suggest, however, that a jury’s fact question gives rise to a duty to inform the jury that it may request a read-back of any relevant testimony.

Even if a court’s failure to inform the jury of their right to request a read-back in a case such as this were error, it is hard to conceive that it would be fundamental error. Davis v. State, 760 So.2d 977, 978 (Fla. 3d DCA 2000); Farrow v. State, 573 So.2d 161, 162-63 (Fla. 4th DCA 1990). We are aware of only one Florida case, LaMonte v. State, 145 So.2d 889 (Fla. 2d DCA 1962), in which the court’s failure to advise the jury of the right to a read-back was held to be fundamental error.

LaMonte is the case on which Appellant principally relies. In LaMonte, the evidence against the defendant was entirely circumstantial. No testimony by any witness put the defendant at the place of the robbery. During deliberations, the jury asked two questions: “whether the rubber mask was found on the floor of the closet or whether it was found in the attic; and whether there was a rear door as well as a side and front door to the home of the defendant.” Id. at 892. The jury requested that the testimony on those matters be read back or that the court supply the answers. The court responded by informing the jury that it was not able to comment on the evidence and could not tell the jury what was in the record and what was not in the record. Defense counsel did not object. The Second District concluded that the jury’s question pertained to a material issue that could have been resolved by reading testimony to the jury, and the failure of the trial court to have the testimony read to the jury was fundamental error.

The LaMonte decision may be explained in part by reference to the state of the law in 1962. The LaMonte jury had expressly requested a read-back of testimony and the court made note of the fact that the applicable statute at the time, section 919.05, Florida Statutes, by its express terms, made a read-back mandatory, upon the jury’s request, although case law had construed the statute to vest discretion in the trial court. In 1970, section 919.05 was repealed in light of the adoption in 1967 of the Florida Rules of Criminal Procedure and was superseded by rule 3.410. In 1972, the rule was revised to eliminate the mandatory language. The committee note says the purpose of the change was to make the rule discretionary. In re Florida Rules of Criminal Procedure, 272 So.2d 65, 116 (Fla.1972).

We do not think it is either necessary or desirable to impose a requirement on the trial court to inform the jury of its right to request a read-back in response to any question from the jury concerning an issue of fact that may have been the subject of testimony somewhere during the course of trial. Nor would such a requirement take into account that a defendant’s failure to request a read-back in such a circumstance might well be strategic. Because a trial court is not required to accede to a jury’s request for a read-back of evidence it has already heard, it is difficult to imagine circumstances under which a trial court’s failure to advise the jury of its right to request a read-back could vitiate the fairness of the entire trial.

Most recently, in Hendricks v. State, 34 So.3d 819 (Fla. 1st DCA 2010), the First District disagreed with LaMonte and determined that no fundamental error occurred in their case, despite the lower court’s arguably misleading failure to advise of the availability of a read-back in response to a request to view the transcript of certain testimony. The district court pointed out that the decision whether to request a read-back could well be strategic and that the application of fundamental error in this context would encourage “gamesmanship.” Id. at 831.

Here, after hearing the jury’s question, the trial court advised the jury to rely on its collective recollection of the evidence it had already heard to make its decision. The jury arrived at a unanimous verdict, suggesting that the jury was able to discuss the matter and resolve their factual question. Appellant has attempted to construct an evidentiary scenario analogous to LaMonte in which the date of the photograph is of transcendental importance in an otherwise evidence-starved prosecution. But that is not true of this case. Moreover, even if the date of the photograph were established on the record to be consistent with Appellant’s testimony, it does not establish Appellant’s appearance on the date of the crime. It cannot be said in this case that the trial court’s failure to offer a read-back of any trial testimony that may have pertained to Appellant’s photograph vitiated the fairness of the entire trial.

AFFIRMED.

ORFINGER and COHEN, JJ., concur.

      . In attempting to fashion a response to the jury in this case, it is apparent that the trial court thought it was responding to a jury question, not a request to read-back the testimony of a witness.


text:
    Anthony J. FAILS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3485.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2010.
    Rehearing Denied Nov. 9, 2010.

      Anthony J. Fails, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges petitioner’s conviction and sentence for sexual battery in Escambia County Circuit Court case number 2004-CF-3337-A. The petition is without merit and raises claims that could have been or were raised on direct appeal or in postcon-viction motions. Accordingly, the petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004). Petitioner’s motion for a show cause order is denied.

Petitioner has unsuccessfully sought relief in 16 other cases which challenged his 2004 Escambia County conviction. Petitioner has failed to obtain relief by appeal, petition for writ of habeas corpus or petition alleging ineffective assistance of appellate counsel in case numbers 1D05-1023, 1D05-5949, 1D07-0544, 1D07-1418, 1D07-2145, 1D08-0185, 1D08-1827, 1D08-2255, 1D08-4134, 1D09-1552, 1D09-4967, 1D09-5197, 1D09-5366, 1D10-1076, 1D10-1077 and 1D10-1199. Based on this litigation history, petitioner was directed to show cause why sanctions should not be imposed against him, including a prohibition against any future appeals or petitions challenging his 2004 Escambia County conviction, unless petitioner is represented by an attorney in good standing with The Florida Bar.

Having considered his response, we find that petitioner has failed to show good cause why sanctions limiting his right to appear pro se should not be imposed. We conclude from our review that petitioner’s repetitive attacks on his conviction are an abuse of the legal process that has “substantially interfered with the orderly process of judicial administration.” Birge v. State, 620 So.2d 234, 235 (Fla. 1st DCA 1993).

Accordingly, petitioner is hereby prohibited from filing any further pro se pleadings in this court challenging his conviction in Escambia County Circuit Court case number 2004-CF-3337-A, “regardless of the remedy sought or theory raised, unless he is represented in such proceeding by a member in good standing of The Florida Bar.” Baker v. State, 939 So.2d 167, 168 (Fla. 1st DCA 2006). We further direct the clerk of this court not to accept any additional pro se filings in this case from petitioner.

PETITION DISMISSED.

WOLF, ROBERTS, and ROWE, JJ„ concur.


author: THOMAS, J. VAN NORTWICK, J.,

text:
    Victor WHITEHEAD, d/b/a Whitehead Construction, Appellant, v. TYNDALL FEDERAL CREDIT UNION, Appellee.
    No. 1D09-5221.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2010.
    Rehearing Denied Nov. 2, 2010.

      Mark D. Dreyer, Panama City, for Appellant.
    Haydn M. Trechsel of Williams, Gautier, Gwynn, DeLoaeh & Sorenson, P.A., Tallahassee, for Appellees.
   THOMAS, J.

Appellant Victor Whitehead, doing business as Whitehead Construction, appeals a final summary judgment entered in favor of Appellee Tyndall Federal Credit Union, in which the trial court found Appellee did not violate the provisions of section 713.3471(2)(a), Florida Statutes (2005). For the reasons explained below, we reverse.

Factual Background

On Sept. 17, 2004, Appellant entered into a Contractor Agreement with John P. Jones, Jr., and his wife Susan P. Jones (Jones), for the construction and sale of a new home. On Oct. 25, 2004, Jones entered into a Construction Loan Agreement with Appellee and executed a note in the amount of $215,000 in Appellee’s favor. Appellant, in turn, executed a Contractor Acknowledgment in a document attached to the Construction Loan Agreement. Cheryl Whitehead, as Appellant’s agent, signed the acknowledgment, which provided in relevant part:

The undersigned acknowledges that he is aware of the amount of the loan and has reviewed and approved of the draw schedule. The undersigned further acknowledges that Lender and the undersigned are not in privity and that Lender owes no duty to the undersigned beyond disbursing the loan proceeds as agreed between Lender and Borrower in the manner requested by Borrower.

Construction began on the house, and Appellee distributed construction advances over a period of several months in the aggregate amount of $165,680. Disputes arose between Appellant and Jones, however, and according to Cheryl Whitehead’s deposition testimony, on June 27, 2005, Mr. Jones advised that no further draws would be disbursed to Appellant. Appellant filed a lien on the same day. Appellant continued working on the house, however, hoping the disputes could be resolved and the house closed. In her deposition testimony, Cheryl Whitehead explained, “Until I heard that we were no longer the contractor, if we were released or fired, we were not fired at the time that I liened it, and until I was fired, I did not want to be breaching a contract, so we continued our work.” Jones fired Appellant on July 12, 2005. Appellant incurred $57,358.43 in expenses during the period from June 10, 2005, to July 7, 2005.

On August 26, 2005, Jones entered into a contract with another contractor to complete construction of the home. Appellee subsequently disbursed construction draws for the benefit of that contractor in the aggregate amount of $49,320 which, together with the $165,680 paid to Appellant, amounted to $215,000, the full amount of the loan.

In Count III of its Third Amended Complaint, Appellant alleged that Appellee violated the notice provisions in section 713.3471(2)(a), Florida Statutes (2005). The trial court found that it was undisputed that Appellee never made a decision to cease further loan advances prior to final distribution of all funds available under the loan. In fact, the entire amount of the loan was disbursed, albeit to two separate contractors. The court found that under the plain and unambiguous language of section 713.3471(2)(a), as a matter of law, Appellant could not prevail “because [Ap-pellee] disbursed the full amount of the Loan, $215,000.00, this amount was paid to [Appellant] and the subsequent contractor and [Appellee] followed the instructions of its borrower.” Based on these findings, the trial court entered final summary judgment in favor of Appellee as to Count III of the complaint.

Analysis

Because this case is one of statutory interpretation, the standard of review is de novo. See Morgenthau v. Estate of Andzel, 26 So.3d 628, 630 (Fla. 1st DCA 2009) (holding that appellate review is de novo to the extent the issue turns on statutory interpretation).

Section 713.3471(2)(a), Florida Statutes (2005), provides:

Within 5 business days after a lender makes a final determination, prior to the distribution of all funds available under a construction loan, that the lender will cease further advances pursuant to the loan, the lender shall serve •written notice of that decision on the contractor and on any other lienor who has given the lender notice. The lender shall not be hable to the contractor based upon the decision of the lender to cease further advances if the lender gives the contractor notice of such decision in accordance with this subsection and the decision is otherwise permitted under the loan documents.

In his complaint, Appellant alleged Ap-pellee failed to comply with this statutory notice requirement. The trial court interpreted section 713.3471(2)(a) to mean that Appellee did not owe Appellant notice under the statute because Appellee never made the decision to cease further loan advances prior to final distribution of all funds.

The trial court’s interpretation of section 713.3471(2)(a) is based on a literal reading of the statute’s plain language that notice is only required when the lender decides to cease further advances “prior to the distribution of all funds” available under the loan. We agree with Appellant, however, that under the statute, once a lender knows that it will stop advancing funds to a contractor or any other lienor, the lender has a duty to notify that contractor of its decision. If the lender fails to do so, it may be liable to the contractor.

Under the trial court’s interpretation of the statute, a lender that is fully aware that Contractor A continues to work on a job after the borrower has already instructed the lender to cease making payments to that contractor (or if the lender itself has decided to stop making those payments), the lender is under no obligation to give Contractor A notice that it is going to stop making payments to him, so long as there remain loan funds to be disbursed and the lender is willing to disburse those funds to Contractor B. To read the statute to allow for such unjust enrichment at Contractor A’s expense leads to an absurd result and would frustrate clear legislative intent. See State v. Atkinson, 831 So.2d 172, 174 (Fla.2002) (“A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences.”); see also Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“[Cjourts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ It is also true that a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.”) (emphasis supplied; citation omitted). The obvious purpose of the statute is to prevent exactly what occurred here: the unjust termination of payments to a contractor who continues work, without any notice from the lender that payments will be terminated.

Conclusion

For the foregoing reasons, the trial court incorrectly entered summary judgment in favor of Appellee on this issue. Consequently, the trial court’s order granting summary judgment is REVERSED. The summary judgment is hereby VACATED, and the case is REMANDED for proceedings consistent with this opinion.

HAWKES, C.J., concurs. VAN NORTWICK, J., dissents with written opinion.

VAN NORTWICK, J.,

dissenting.

Because the trial court’s order applies the clear and plain text of section 713.3471(2)(a), Florida Statutes (2005), I would affirm. Accordingly, I respectfully dissent.

In interpreting a statute, a court should look “ ‘primarily’ to the plain text of the relevant statute, and when the text is unambiguous, [its] inquiry is at an end.” E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009). If giving that statute the plain meaning makes it inconsistent with other parts of the same statute or others in pari mate-ria, a court would be required to examine the entire act and those in pari materia in order to ascertain the overall legislative intent. Id. (quoting Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks LLC, 986 So.2d 1260, 1265-66 (Fla.2008)). Examining a statute in pari materia means the court addresses the legislation “as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of the law already in existence.” Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003) (quoting State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000)).

In its order, the trial court found that it was undisputed that Tyndall Federal Credit Union never made a decision to cease further advances under the construction loan prior to final distribution of all funds available under the loan. The entire proceeds of the loan were disbursed, albeit to two separate contractors. Further, the trial court read the language of section 713.3471(2)(a) to mean that, as a matter of law, appellant could not prevail “because TFCU disbursed the full amount of the Loan, $215,000.00, this amount was paid to [Whitehead] and the subsequent contractor and TFCU followed the instructions of its borrower.”

I agree with the trial court that, under the clear language of section 713.3471(2)(a), the notice provision of the statute is invoked only when the lender makes a final determination to cease payments while there are still outstanding funds which could be disbursed. This notice provision does not conflict with the statute read as a whole and I would not create a judicial exception to a clear statutory provision.


author: BENTON, J.

text:
    Gary FERGUSON, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, a domestic insurance corporation, Appellee.
    No. 1D09-5451.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2010.
    Rehearing Denied Nov. 18, 2010.

      Ty Tyler of Tyler & Hamilton, P.A., Jacksonville, for Appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood and Jayne A. Pittman of, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Orlando, for Appellee.
   BENTON, J.

Gary Ferguson appeals a final judgment exonerating Universal Property & Casualty Insurance Company (Universal) of any liability under a homeowners’ insurance policy it had issued him. In the wake of a house fire, Universal denied Mr. Ferguson’s claim for benefits, on grounds he had misrepresented his criminal history in his application for the policy. We find no irregularity or impropriety in the judgment insofar as it reflects the jury’s determination that Mr. Ferguson made the misrepresentation and that Universal would not have written the policy if it had known the truth.

Mr. Ferguson also contended, however, that Universal, acting through a claims or field adjuster with full knowledge of his history (an arrest for driving under the influence of alcohol), had waived any right to deny coverage on account of his misrepresentation. On the waiver question, the trial court granted Universal’s motion for directed verdict. We reverse the judgment insofar as it rests on the directed verdict, and remand the case for further proceedings.

“Granting a motion for directed verdict is ‘proper only if there was no evidence upon which a jury could find,’ Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995), against the party for whom the verdict is directed.” White v. City of Waldo, 659 So.2d 707, 708 (Fla. 1st DCA 1995).

It is appropriate to direct a verdict for the defendant only when the evidence considered in its entirety and the reasonable inferences to be drawn therefrom fail to prove the plaintiffs case under the issues made by the pleadings. Golden v. Morris, Fla.1951, 55 So.2d 714.

Hartnett v. Fowler, 94 So.2d 724, 725 (Fla.1957).

[A] party who moves for a directed verdict admits for the purpose of testing the motion the facts in evidence and in addition admits every reasonable and proper conclusion based thereon which is favorable to the adverse party. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800,15 So.2d 903 [1943],

Id. ‘“In reviewing the propriety of the trial court’s directed verdict, this court must review the facts and inferences to be drawn in a light most favorable to appellant, the nonmoving party.’ Gant v. Lucy Ho’s Bamboo Garden, Inc., 460 So.2d 499 (Fla. 1st DCA 1984).” White, 659 So.2d at 708-09.

In the present case there was evidence upon which the jury could reasonably have found that Universal clothed the adjuster with broad, apparent authority to act on its behalf in resolving Mr. Ferguson’s claim. We agree with the learned trial judge that no view of the evidence would support a finding of actual authority to waive the contractual rights in question: the contract between Universal and the adjuster, an independent contractor, did not give the adjuster the right to waive any of Universal’s rights.

But the jury could have found sufficient apparent authority. See Southern States Fire Ins. Co. v. Vann, 69 Fla. 549, 68 So. 647, 648 (1915) (“Where the conduct of an agent, acting within his apparent authority, is such as to estop the principal from claiming the benefit of a provision of a written instrument, such estoppel is not a varying of the written instrument by parol, nor is it an abridgment of the right to contract. In such a case the conduct of the agent is in law the act of the principal which in law waives the right.”) (quoting Eagle Fire Co. v. Lewallen, 56 Fla. 246, 47 So. 947, 957 (1908) (Whitfield, J., specially concurring)). Because the testimony was conflicting, the jury should have been permitted to decide whether the adjuster had apparent authority and whether his acts or omissions — after Mr. Ferguson disclosed to him the misrepresentation on the application for insurance — operated to waive Universal’s right to rescind the contract of insurance.

Accordingly, we reverse the judgment insofar as it rests on the directed verdict, and remand for a new trial on waiver. On remand, Mr. Ferguson is not entitled to relitigate whether he failed to disclose on his application that he had been arrested for driving under the influence of alcohol in the past ten years or whether Universal would have written the policy if it had known. But he is entitled to have a jury decide whether the adjuster had apparent authority to waive Universal’s right to deny coverage on that basis, and whether he did so.

Reversed and remanded, with directions.

VAN NORTWICK and WETHERELL, JJ., concur.