author: ROTHENBERG, J. COPE, J.

text:
    REAL ESTATE INVESTMENT GROUP, LLC, and Terranova Investments of Miami, Inc., Appellants, v. ATTORNEYS’ TITLE INSURANCE FUND, INC., Appellee.
    No. 3D10-600.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2010.
    Dorothy F. Easley; Loren S. Granoff, Miami, for appellants.
    Adams & Reese and Joey E. Schlosberg, St. Petersburg and David L. Boyette, Sarasota, for appellee.
    Before COPE, CORTINAS , and ROTHENBERG, JJ.

       Did not participate in oral argument.

   ROTHENBERG, J.

Third-party plaintiffs, Real Estate Investment Group, LLC, and Terranova Investments of Miami, Inc. (collectively, “the insureds”), appeal from a non-final order granting summary judgment of coverage forfeiture in favor of third-party defendant Attorneys’ Title Insurance Fund, Inc. (“the insurer”). We have jurisdiction. Fla. R.App. P. 9.110(m). Because we conclude that there exist disputed issues of material fact, we reverse.

In 2002, the insureds purchased a development property in Miami-Dade County. The insurer provided the insureds with title commitments and two title insurance policies ($58,000 and $550,000). The title commitments, however, made no mention of a duly recorded easement allowing the South Florida Water Management District (“SFWMD”) access to a canal on the property.

The County approved the insureds’ plans for subdividing the property into thirteen separate lots. The insureds began construction, and because they were unaware of SFWMD’s easement, they built a house upon the easement. In December 2006, SFWMD issued a formal notice of violation, and the insureds ceased their building operations. The insureds retained private counsel, Anthony Recio (“Recio”), and on May 10, 2007, Recio submitted a claim to the insurer, referencing only the $58,000 policy. In response, the insurer requested certain documents, and the insureds sent the requested documents.

Thereafter, Recio commenced negotiations with the SFWMD in an attempt to secure a release of the easement. Based on these negotiations, SFWMD agreed to sell the easement to the insureds if the insureds agreed to pay for an appraisal of the area in dispute. By July 18, 2007, when the insurer had not yet granted or denied the insureds’ notice of claim, the insureds paid for the appraisal and continued to work with SFWMD to resolve the issue.

On October 17, 2007, the insurer notified the insureds that it was denying the claim asserting that the easement should have been obvious upon physical inspection, but stating, “if you wish to submit additional information for reconsideration of this decision, please do not hesitate to forward same.” Recio responded, disputing the insurer’s denial of coverage, notifying the insurer of its negotiations with SFWMD, and requesting the insurer to assist in the mitigation of its damages. The insurer failed to respond. Recio continued to negotiate with SFWMD which ultimately agreed to release the land to the insureds, which was valued at approximately $432,000, for $398,000. The insureds notified the insurer of SFWMD’s offer to resolve the easement violation.

In January 2008, the insurer retained attorney Ryan Bailine (“Bailine”), who became involved in discussions with SFWMD. Meanwhile, in February 2008, Recio submitted a second notice of claim to the insurer, including and referencing both policies. Over the next several months, Recio continued to communicate with the insurer, and warned the insurer that SFWMD’s offer to release the land would expire in sixty days and that the matter could turn adversarial. The insurer, however, failed to respond to SFWMD’s offer, and in January 2009, SFWMD sued the insureds for trespass and ejectment.

After being served with SFWMD’s complaint, the insureds filed a third-party complaint against the insurer seeking indemnity and declaratory relief based on the insurer’s failure to disclose or cure the defect in title. Apparently, this move finally got the insurer’s attention, because the insurer sent six letters to the insureds stating that the third-party complaint was premature, and that it would deprive the insurer of its contractual right to provide for the defense of the SFWMD action, and its right to the insureds’ cooperation.

Based on these communications, the trial court issued the instant order granting summary judgment, concluding that the insureds had breached their contractual duty to cooperate and assist in the defense of the SFWMD action. The trial court reasoned that the insurer properly made six requests for cooperation and assistance which were improperly refused as the insureds continued to pursue their third-party complaint. This appeal followed.

Our review of the trial court’s order granting summary judgment is de novo. Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008). Of critical importance here, the trial court found that “having initially denied the claim, the insurer reconsidered the denial and retained an attorney to negotiate with SFWMD on behalf of insured for a release from the easement.” In other words, the trial court found that: the insurer clearly reconsidered and reversed its no-coverage position; the insurer remained at all times in compliance with the terms of the policy; the insurer hired Bailine on behalf of the insureds; the insureds were made aware that Bailine was hired on their behalf; and the insureds consented to Bailine’s representation. For the reasons that follow, we reverse, holding that the trial court’s reliance on these findings was error, and that due to the existence of material issues of fact, the insurer was not entitled to summary judgment of coverage forfeiture as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130-31 (Fla.2000) (noting that the summary judgment standard is established where factual disputes do not exist).

If the facts underlying the above-mentioned findings were sufficiently developed, it would be difficult to quarrel with the trial court’s reasoning. Those findings, however, are supported by little more than the insurer’s arguments. The insurer argued before the trial court and on appeal, that it hired Bailine to represent the interests of the insureds, and that the act of bringing Bailine into the proceedings served to notify the insureds that the insurer had reconsidered and reversed its previous no-coverage position. However, a review of the record now before this Court reveals that the factual support for those arguments falls far short of the summary judgment standard.

While it is clear that on October 17, 2007, the insurer denied coverage in writing, and the insureds requested the insurer to reconsider its position, the record before this Court contains no written communication from the insurer to its insureds that it had changed its position and admitted to coverage under the policies. Additionally, there is a factual dispute as to whether Bailine was hired by the insurer to represent the insureds, and whether the insureds were aware, prior to the filing of their third-party complaint, that Bailine had been retained to represent them. To this end, we note that there is no record evidence of any communication by Bailine informing the insureds that he was representing their interests, or by the insurer that Bailine had been retained to represent them. There is no evidence that Bai-line ever updated the insureds (his ostensible clients) on the status of the case, his efforts, or of any results. In fact, the only communications before this Court involving Bailine were exchanged between Bai-line and representatives of the insurer, not the insureds.

The insureds argue that a reasonable interpretation of the record suggests that the insurer denied coverage without reversing its position until after the insureds filed their third-party complaint. The insureds maintain that they were unaware that Bailine was hired by the insurer to represent them (not the insurer). Furthermore, the insureds contend that the insurer retained Bailine for the insurer’s own purposes and interests — which were in direct conflict with those of the insureds — thereby forcing the insureds to continue employing separate counsel. Thus, the insureds argue that this denial left the insureds free to pursue the third-party complaint, and excused them from any contractual duty to cooperate with the insurer, or to turn over the defense of the SFWMD action to the insurer. See First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co., 695 So.2d 475, 477 (Fla. 3d DCA 1997) (“Where, however, an insurer denies a claim and refuses to defend, the insured can take whatever steps are necessary to protect itself from a claim.”); Steil v. Fla. Physicians’ Ins. Reciprocal, 448 So.2d 589, 591 (Fla. 2d DCA 1984) (holding same and noting the general rule that where an insurer refuses to defend, its insured may obtain a reasonable settlement despite policy language to the contrary).

Because significant questions persist as to whether the insurer reconsidered or reversed its no-coverage position, and if so, whether the insurer notified the insureds of the change in its position prior to the insureds’ filing their third-party complaint against the insurer; whether Bailine was hired on behalf of the insureds; and whether the insureds were aware that Bai-line had been hired to represent their interests, the insurer has failed to demonstrate the non-existence of material issues of fact entitling the insurer to judgment as a matter of law. Accordingly, summary judgment was improvidently granted. We therefore reverse the order under review and remand for further proceedings consistent with this opinion.

Reversed and remanded.

COPE, J.

(concurring).

I concur in the reversal of the summary judgment. In my view, an insurer has a duty to respond to the claims submitted by the insured within a reasonable time. See Joyce Palomar, Title Insurance Law § 11:12 (2009). The insureds submitted claims in this case in 2007 and 2008. The insurer denied coverage and the insureds requested reconsideration. The insurer never made a written response to the request for reconsideration.

The insureds were represented by their own outside counsel, Mr. Recio. Mr. Recio and the insureds were aware that the insurer had retained Mr. Bailine to negotiate with the South Florida Water Management District (“SFWMD”). Mr. Recio testified that while he was aware of this, it was his understanding that Mr. Bailine was acting as co-counsel for the insurer and was not representing the insureds.

The insurer acknowledges that there is no written communication from the insurer to the insureds, advising them that the insurer had reconsidered and had decided to grant coverage. The insurer also acknowledges that there is no written communication which advised the insureds that Mr. Bailine was representing them (as opposed to the insurer).

There is, however, a disputed issue of material fact regarding whether the insureds were verbally told that Mr. Bailine was representing them. The record contains a letter dated March 11, 2009, from a law firm which represented the insurer, to an attorney for the insureds. According to the letter, Mr. Bailine “confirmed that he was retained by the Fund to represent Real Estate Investment Group and Terra-nova Investments of Miami. He said there was a meeting attended by Mr. Rothman, Mr. Bailine and the two insureds and your clients were told at the beginning of the representation that he had been hired to represent them in connection with negotiating a release of the right of way.” (Emphasis added). While it is true that there is no written communication between Mr. Bailine and the insureds in the record before us, the above correspondence does make reference to an oral communication on the central issue: whether the insureds were informed that Mr. Bai-line was representing them. An issue for the trier of fact is whether Mr. Bailine did inform the insureds that he was representing them at the outset of the representation.

If the trier of fact concludes that there was a disclosure at or near the start of the representation that Mr. Bailine was representing the insureds, then a reasonable insured should have concluded that the insurer was undertaking to cover the claim. In that situation, the insureds would be obligated to cooperate by tendering the defense of the SFWMD lawsuit to the insurer, and having refused to do so, there would be no coverage.

On the other hand, if the trier of fact concludes that no such disclosure to the insureds took place, then the insureds were free to arrange for their own representation and were not required to tender the defense of the lawsuit.


source: Caselaw Access Project

author: SCHWARTZ, Senior Judge.

license: Public Domain

text:
    Sandra LEWIS, Appellant, v. SUN TIME CORPORATION d/b/a Prime Time and Waldorf Towers, Ltd., Appellees.
    No. 3D09-746.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing and Rehearing En Banc Denied Dec. 6, 2010.

      Greenspoon Marder, Neal Hirschfield and Bradley A. Ross, Ft. Lauderdale; Steven M. Goldsmith, Boca Raton, for appellant.
    Cozen O’Connor and Raquel M. Fernandez, Miami, for appellee Sun Time Corporation; Conroy Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hin-da Klein, Hollywood, for appellee Waldorf Towers, Ltd.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

On June 1, 2006, the plaintiff Sandra Lewis fell on a rain soaked outside flight of terrazzo steps while leaving a hotel-restaurant on Miami Beach. She sued the operators and now appeals from a jury verdict and judgment for the defendants. She raises what is essentially a single issue, the claim that the trial court erred in permitting evidence that there had been no prior falls since the building was constructed and opened as the Waldorf Hotel in 1937. While the issue is far from unsubstantial we are compelled to disagree.

It is well recognized that a no-accident history of the location of a premises liability case may be admitted into evidence for a variety of purposes including the central one of showing that the area was not in fact dangerous or defective. See Springtree Props., Inc. v. Hammond, 692 So.2d 164, 165 (Fla.1997) (considering absence of similar accidents in determining whether fact issues remained); Cent. Theatres v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944) (evidence that for several years there had been no accident from shooting at location admissible); State, Dep’t of Transp. v. Patterson, 594 So.2d 830, 831 (Fla. 4th DCA 1992) (“[A]p-pellant was entitled to have the jury consider that the records it still maintained revealed no bicycle accidents in the tunnel prior to the present accident.”); McAllister v. Robbins, 542 So.2d 470, 471 (Fla. 1st DCA 1989) (relying in part on evidence that no one had fallen over the concrete blocks at issue during the preceding seventeen years); see also Doe v. U.S., 718 F.2d 1039, 1043 (11th Cir.1983) (applying Florida law and approving evidence that for a number of years before the incident, there had never been a crime against a person committed on the premises); see generally Kenneth S. Broun, 1 McCormick on Evidence § 200 n. 34 (6th ed. 2009) (“A large number of cases recognize that lack of other accidents may be admissible to show (l)[an] absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.” (footnotes omitted)) ; 23 Fla. Jur.2d Evidence and Witnesses § 186 (2010); 29 Am.Jur.2d Evidence § 564 (2010).

We conclude that reversal is not justified by the challenged ruling because in the last analysis, we cannot find the trial court abused the discretion it is said to have:

(1) in the admission of evidence in general, see Ramirez v. State, 810 So.2d 836, 852 n. 51 (Fla.2001); Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So.2d 976, 978 (Fla. 2d DCA 2006); LaMarr v. Lang 796 So.2d 1208, 1209 (Fla. 5th DCA 2001);

(2) more specifically, in the admission of testimony concerning the prior safety history of the site in question, that is, previous accidents or their absence, see Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590, 594 (Fla.1974); Williams v. Madden 588 So.2d 41, 43 (Fla. 1st DCA 1991); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983); see generally cases collected, Jay M. Zitter, Annotation, Admissibility of Evidence of Absence of Other Accidents or Injuries at Place Where Injury or Damage Occurred, 10 A.L.R. 5th 371 (1993);

(3) in the even narrower but determinative issue as to whether the similarities in the previous circumstances outweigh the dissimilarities, so as to permit the introduction of that testimony. See Lawrence v. Fla. E. Coast Ry. Co., 346 So.2d 1012, 1015 (Fla.1977) (“[Djetermina-tions of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge.”); Friddle v. Seaboard Coast Line R.R. Co., 306 So.2d 97 (Fla.1974); Ry. Express Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla.1969); Hogan v. Gable, 30 So.3d 573, 575-76 (Fla. 1st DCA 2010); Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977); but cf. Godfrey v. Precision Airmotive Corp., 46 So.3d 1020 (Fla. 5th DCA 2010); Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010) (concluding “the dissimilarities of these cases are greater than their similarities”). As to this latter point, the record shows that while there were (as there had to be) variations in the circumstances surrounding the steps and their use, their basic dimensions, configuration, and composition — and their dangerous character, or lack of it remained constant for the seventy plus years they were in use. See Erickson, supra note 1. The significance of that stark fact was properly for the jury to consider.

Affirmed.

      . Citing Zheutlin v. Sperry & Hutchinson Co., 149 Conn. 364, 179 A.2d 829 (1962) (50,000 others had used curb without falling); McCarty v. Village of Nashwauk, 282 Minn. 262, 164 N.W.2d 380, 382 (1969) (error to exclude evidence of absence of prior accidents on sidewalk); Wollaston v. Burlington N., Inc., 188 Mont. 192, 612 P.2d 1277, 1282 (1980) (no prior railroad crossing accidents); Wozniak v. 110 South Main St. Land & Dev. Im

        provement Corp., 61 A.D.2d 848, 402 N.Y.S.2d 69, 70 (1978) (no other falls in hotel parking lot); Rathbun v. Humphrey Co., 94 Ohio App. 429, 113 N.E.2d 877 (1953) (amusement ride placed near trees used by thousands without complaint); Baker v. Lane County, 37 Or.App. 87, 586 P.2d 114, 117-18 (1978) (no other instances of children being injured at fairgrounds by reaching through outside fence to hold rope tethering horses). See also Costco Wholesale Corp. v. Marsan, 823 So.2d 301 (Fla. 3d DCA 2002); Williams v. Madden 588 So.2d 41, 43 (Fla. 1st DCA 1991).
      McCormick highlights why the admissibility of non-accidents as well as actual accidents is only fair.
      [I]t would seem perverse to tell a jury that one or two persons besides the plaintiff tripped on defendant’s stairwell while withholding from them the further information that another thousand persons descended the same stairs without incident.
      1 McCormick on Evidence § 200 and n. 30 (citing "Stein v. Trans World Airlines, 25 A.D.2d 732, 268 N.Y.S.2d 752 (1966) (error to exclude evidence that many thousands had walked through same area in air terminal without slipping); Erickson v. Walgreen Drug Co., 120 Utah 31, 232 P.2d 210, 214 (1951) (error to exclude evidence that no one had slipped on terrazzo entranceway, regardless of weather conditions, for the 15 years during which at least 4000 persons entered the store every day)[e.s.]; Mobbs v. Cent. Vt. Ry., Inc., 155 Vt. 210, 583 A.2d 566, 576 (1990); Stark v. Allis-Chalmers & Northwest Roads, 2 Wash.App. 399, 467 P.2d 854, 858 (1970) (no similar accident with 10,000 allegedly faultily designed tractors).”).

      . The plaintiff argues,
      the essential showing of substantially similar conditions would require some or all of the following facts: (1) it was raining and the stairs were wet; (2) the terrazzo on the stairs had been polished and the non-skid strips on the stairs had been removed and not replaced; (3) the hostess or manager was not in front of the stairs to warn people to be careful on their descent; (4) a 'wet floor’ warning sign had not been placed before the stairs, nor were the stairs covered with mats.
      We cannot accept the argument in this case because (1) the alleged distinctions were not specifically brought to the trial judge’s attention in opposing admissibility, precluding their consideration on appeal; see Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010); Suset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla.2005); and (2) “exactly identical circumstances cannot be realized and are not required.” 1 McCormick on Evidence § 200 n. 4; see Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 401 (5th Cir.1965) ("The differences between ... circumstances ... could have been developed to go to the weight to be given such evidence.”).

      . Plaintiff’s argument on appeal that evidence of "seventy-one (71) years without an accident, would have been too remote to be relevant” is not sensible. We are not dealing with a question of whether or not there was an accident on the stairway’s birthday in 1937, but rather evidence that there had been no accident on any of the 25,915 days — come rain or come shine — prior to June 1, 2006, when the plaintiff fell.

      . It should be pointed out that the prior history of the stairway was not a "feature” of the trial, which concerned the basic issues of damages, legal cause, contributory negligence, and most important from our point of view, a battle of the experts as to whether the design and construction of the stairway were sound. See Millar v. Tropical Gables Corp., 99 So.2d 589, 591 (Fla. 3d DCA 1958). Compare Hogan, 30 So.3d at 575 (erroneous admission of prior accident history reversible error in light of becoming a feature of the trial); Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 860 (Fla. 3d DCA 2007) (same). We have not overlooked the fact that defense counsel, in closing argument, did state that the fact there had never been a prior slip and fall was "the most important piece of evidence” in the case.


author: LAGOA, J.

text:
    Vincent SORENA, Petitioner, v. GERALD J. TOBIN, P.A., Respondent.
    No. 3D10-952.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing Denied Nov. 22, 2010.

      Patrick W. Maraist, North Palm Beach, for petitioner.
    Howard Brodsky, Miami, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   LAGOA, J.

Vincent Sorena (“Sorena”) petitions this Court for certiorari review of an order denying his motion to stay the proceedings below pending resolution of a first-filed lawsuit involving similar parties and issues. Because we find that this action involves both substantially similar parties and substantially similar issues as are involved in the earlier-filed action, we grant the petition for certiorari and quash the trial court’s order denying a stay of proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Gerald J. Tobin (“Tobin” or “Attorney”) and Gerald J. Tobin, P.A. (“Tobin P.A.” or “Law Firm”) rendered legal services to Mordechai Shahak (“Shahak” or “Client”). According to Tobin, Sorena is Shahak’s business partner and therefore, responsible for legal fees incurred by Shahak.

In October 2006, Tobin initiated an action against Shahak, Sorena, and other supposed partners of Shahak. See Tobin v. A & F Eng’g, No. 06-22984 (Fla. 11th Cir. Ct. filed Oct. 31, 2006), transferred, No. 2007 CA 006302 (Fla. 15th Cir. Ct. filed Apr. 24, 2007) (“First-Filed Action”). The complaint alleges that in early 2003, the defendants orally agreed to build a home on property owned by Tobin “under the guise of repaying” Tobin for legal services rendered to Shahak. Construction commenced in March 2003, and about a year later, Tobin decided to hire another contractor to finish the job. Tobin’s complaint asserts that the defendants: (1) converted funds by misrepresenting and overcharging Tobin for construction-related expenses, (2) fraudulently induced Tobin’s agreement to permit the construction, and (3) breached the oral agreement by failing to perform the work in a satisfactory manner.

In March 2007, the trial court entered an order transferring the First-Filed Action to the Palm Beach County circuit court. The trial court’s order was affirmed by this Court, see Tobin v. A & F Eng’g, 979 So.2d 967 (Fla. 3d DCA 2008), and the case is now pending in Palm Beach County, see Tobin v. A & F Eng’g, No. 2007 CA 006302 (Fla. 15th Cir. Ct. filed Apr. 24, 2007). The pleadings are not closed and the case has not been set for trial.

Shortly after the First-Filed Action was transferred, the Law Firm commenced the underlying action against Sorena in Miami-Dade County. See Gerald J. Tobin, P.A. v. Sorena, No. 0715670 (Fla. 11th Cir. Ct. filed May 25, 2007) (“Second-Filed Action”). The complaint alleges that in May 2003, Sorena retained the Law Firm to represent him in “various legal transactions,” that the Law Firm mailed invoices for services rendered to Sorena, and that Sorena failed to pay the fees and costs set forth in the invoices. The relief sought includes damages and other monetary relief for breach of contract, account stated, and open account. Nineteen invoices dated from June 6, 2003 through April 30, 2007 are attached to the complaint. Each invoice is addressed to Shahak, not to Sorena. None of the statements are itemized (except for several charges in the June 6, 2003 invoice); rather, the statements merely identify the total amount due for services in each of about eight to twelve various matters. The balance due on each matter is the same in every invoice issued since July 21, 2003.

Sorena moved to dismiss the Law Firm’s complaint based on failure of consideration and the lack of an “account” to support the Law Firm’s claims. The motion was denied. Roughly two years later, Sorena sought an involuntary dismissal or, in the alternative, final summary judgment, arguing that the claims asserted in the Second-Filed Action arose out of the same transaction or occurrence as the claims asserted in the First-Filed Action. The trial court denied the requested relief. About a year later, Sorena moved to stay the Second-Filed Action based on the pen-dency of the First-Filed Action, which the trial court denied. Sorena petitions this Court for a writ of certiorari to quash this order.

II. ANALYSIS

This Court has certiorari jurisdiction to review a trial court’s non-final order denying a motion for stay. See Pilevsky v. Morgans Hotel Group Mgmt., LLC, 961 So.2d 1032, 1033, n. 1 (Fla. 3d DCA 2007); see also Fla. R.App. P. 9.030(b)(2)(A). Certiorari review is appropriate where the underlying order departs from the essential requirements of the law, resulting in a material injury that cannot be corrected on appeal. Fedorov v. Citizens State Bank, 24 So.3d 1227, 1228 (Fla. 3d DCA 2009).

“Comity principles dictate that an action should be stayed, and a trial court departs from the essential requirements of law by failing to grant such a stay, when the first-filed lawsuit involves substantially similar parties and substantially similar claims.” Pilevsky, 961 So.2d at 1035. Complete identity of the parties and claims is not required. In re Guardianship of Morrison, 972 So.2d 905, 910 (Fla. 2d DCA 2007); Fedorov, 24 So.3d at 1229. “It is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” Pilevsky, 961 So.2d at 1035 (quoting Fla. Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994)).

The parties in the First-Filed and Second-Filed Actions are substantially similar. Sorena is named as a defendant in both lawsuits, and although Tobin brought the First-Filed Action individually, the impetus for the oral construction agreement between the parties was legal services rendered by Tobin to Shahak. See Morrison, 972 So.2d at 910 (complete identity of the parties is unnecessary); Pilevsky, 961 So.2d at 1035 (failure to join certain investors and officers of defendant company in prior pending action did not favor denial of a motion to stay, rather, entry of a stay furthered Florida policy discouraging forum shopping).

Likewise, the First-Filed and Second-Filed Actions involve substantially similar claims. Both lawsuits stem from the same set of facts, i.e., Tobin’s prior representation of Shahak, Shahak’s alleged partnership with Sorena, and the failure of either individual to properly compensate Tobin or the Law Firm for legal services rendered. Further, the Palm Beach County action will determine, among other things, whether Shahak and Sorena were partners, whether Tobin agreed to accept the construction of a home on his property as compensation for legal services rendered to Shahak, and if so, what legal services were the subject of his agreement. Because resolution of the First-Filed Action will resolve many of the issues raised in the Second-Filed Action, a stay of the underlying proceedings was appropriate. See Fedorov, 24 So.3d at 1229. We, therefore, conclude that the trial court’s failure to order a stay was a departure from the essential requirements of law. Id.; Pilevsky, 961 So.2d at 1034-35.

We also agree with Sorena that the trial court’s failure to stay the underlying proceedings will result in a material injury that cannot be corrected on appeal because it forces Sorena to continue litigating the same issues in two separate forums. Because the record reveals no valid reason justifying “a departure from the general rule of comity,” Pilevsky, 961 So.2d at 1036, the trial court’s refusal to stay the Second-Filed Action results in a material injury that cannot be corrected on appeal. See Fedorov, 24 So.3d at 1228.

III. CONCLUSION

Based on the foregoing, this Court grants certiorari, quashes the trial court’s order, and remands the case with instructions to enter a stay of the underlying proceedings pending resolution of the First-Filed Action.

Petition granted.

      . The invoices were issued sporadically until February 28, 2006, at which time statements were sent more or less monthly. Notably, no invoices were issued between July 22, 2003 and July 18, 2005, a period of nearly two years during which construction on Tobin’s property was ongoing.

      . Sorena contemporaneously sought the removal of the action from the trial court’s calendar, a stay of discovery and pre-trial deadlines, and the transfer of the Second-Filed Action to Palm Beach County. These motions were denied.

      . Although the “principle of priority’’ is based on comity principles, its application has not been limited to the stay of subsequently-filed state court proceedings in favor of earlier-filed actions pending in other state or federal courts. E.g., REWJB Gas Invs. v. Land O'Sun Realty, Ltd., 643 So.2d 1107, 1108 (Fla. 4th DCA 1994) (approving stay of subsequent action filed in Broward County in favor of prior lawsuit filed in Dade County); Lightsey v. Williams, 526 So.2d 764, 766 (Fla. 5th DCA 1988) (quashing order denying stay of Osceola County proceedings in favor of earlier-filed Polk County action).

      . The Law Firm was eventually joined as a counter-defendant in the First-Filed Action, but not until after the trial court entered its order denying the motion for stay filed in the underlying action.

      .The Law Firm contends that the legal services involved in the First-Filed Action are not the same legal services involved in the Second-Filed Action. However, there is ample support in the record for the conclusion that the legal services identified in the First-Filed and Second-Filed Actions overlap. For example, the invoices appear only to summarize outstanding fees carried forward from 2003 (during which time Tobin rendered at least a portion of the services involved in the First-Filed Action). In addition, the Law Firm did not issue any invoices for the two-year period that coincided with the construction on Tobin’s property.


author: COPE, J.

text:
    Officer David DELAURENTOS and Miami-Dade County, Petitioners, v. Maribel PEGUERO, as Personal Representative of the Estate of Jose Gabriel Ventura, deceased, Respondent.
    No. 3D10-828.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing and Rehearing En Banc Denied Dec. 10, 2010.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for petitioners.
    Gonzalo R. Dorta, Miami, for respondent.
    Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.
   COPE, J.

This is a petition for writ of certiorari in which Miami-Dade County and a police officer seek to quash an order compelling disclosure of a pre-employment psychological evaluation. We conclude that, under the circumstances of this case, the records fall outside the scope of permissible discovery and grant the petition.

The underlying lawsuit in the trial court is an action for wrongful death filed against Miami-Dade County police officer David Delaurentos and his employer, Miami-Dade County. The decedent was Jose Gabriel Ventura, a seventeen-year-old, who was shot and killed in an encounter with the officer. The officer had made a traffic stop of the decedent’s vehicle. After the officer got out of his police car and approached the decedent’s car, the decedent drove away and made a u-turn. According to the officer, the decedent drove his vehicle directly towards the officer causing him to be in fear of his life and he shot the driver. According to the decedent’s estate, the use of deadly force was unnecessary.

In the second amended complaint, the personal representative of the decedent (“the Estate”) sued the officer for battery (count one) and negligence (count two). The Estate sued the County for vicarious liability (count three). The Estate also alleged that the County was negligent in hiring, training, retaining, and supervising the officer (counts three-six).

As part of the County’s process for hiring police officers, candidates are required to undergo a psychological evaluation by a licensed psychologist. The officer involved in this case was tested and interviewed by Dr. Mark Axelberd in 2005. Dr. Axelberd is under contract with the County and is not a County employee. After the evaluation was completed, Dr. Axelberd provided a report to the County. Dr. Axelberd uses a rating system which rates the applicant as acceptable, marginal, or unacceptable.

In connection with its claim that the County was negligent in hiring Officer De-laurentos, the Estate issued a subpoena for the psychological report that Dr. Axel-berd provided to the County. The Estate also subpoenaed Dr. Axelberd’s own records of his interview with this officer, the latter category being records that Dr. Ax-elberd did not provide the County.

The County and the officer both objected to production of the psychological evaluation records. The trial court overruled the objections and ordered that the records be produced. The County and the officer filed this petition for writ of certio-rari seeking to quash the trial court’s order.

The County and the officer first argue that the psychological evaluation is protected by Florida’s psychotherapist-patient privilege, which is found in section 90.503, Florida Statutes (2009). According to that provision, there is a privilege which attaches to “confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition....” Id. § 90.503(2) (emphasis added). The consultation with the psychologist in this case was not for diagnosis or treatment. It was for purposes of a pre-employment examination. We entirely agree with the trial court that no psychotherapist-patient privilege applies here...

Second, the County and the officer argue that the records should not be produced because they are exempt from disclosure under the Public Records Act. They rely on subparagraph 119.071 (4)(b) 1., Florida Statutes (2009). That statute provides an exemption from public disclosure for “[mjedical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee.... ” This argument, too, is without merit. The cited statute simply provides an exemption in the event that a citizen makes a public records request for medical records. That statutory provision does not create a privilege which would insulate such records from discovery in litigation.

The third point raised by the County and the officer has merit. The argument is that the subpoena seeks information which is outside the scope of permissible discovery.

As previously stated, the Estate has sued the County on two distinct theories. One of those theories is that the County is vicariously liable for the officer’s actions under the doctrine of respondeat superior (count three). The Estate alleges, and the County admits, that the shooting in this case occurred during the course and scope of the officer’s employment. Because of that admission, the County is vicariously liable for the officer’s actions, including any judgment that may be obtained.

The Estate’s second theory is, so far as pertinent here, that the County was negligent in hiring this officer (counts four and five). The Estate has issued its subpoena in connection with its claims that the County was itself negligent.

Florida cases distinguish between (a) acts committed within the scope and course of employment, and (b) acts committed outside the scope of employment. In the first situation, where acts were committed within the course and scope of employment, the basis of employer liability is respondeat superior. “As to this doctrine [respondeat superior] the negligence of the employer is immaterial since this Court is committed to the rule that if the employee is not liable, the employer is not liable.” Mallory v. O’Neil, 69 So.2d 313, 315 (Fla.1954); see Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986). Where, as here, a plaintiff alleges and a defendant admits that the alleged torts took place during the course and scope of employment, employer liability can only be pursued on the basis of respondeat superi- or and not on the basis that the employer was negligent. Mallory, 69 So.2d at 315.

In the second situation, where the employee’s acts were committed outside of the course and scope of employment, the analysis differs. In that situation, a plaintiff may sue the employer for negligence “in knowingly keeping a dangerous servant on the premises ... whether the servant acted willfully, maliciously or negligently.” Mallory, 69 So.2d at 315; Watson v. City of Hialeah, 552 So.2d 1146, 1148 (Fla. 3d DCA 1989); Garcia, 492 So.2d at 438 (citing Restatement (Second) of Torts § 317); Williams v. Feather Sound, Inc., 386 So.2d 1238, 1239-40 (Fla. 2d DCA 1980).

On authority of the Mallory decision, we conclude that the request for production of these documents is outside the scope of permissible discovery. Because the County has conceded that the officer’s acts took place during the course and scope of his employment, the only allowable theory of liability against the County is respondeat superior. That being so, as stated in Mallory, “the negligence of the employer is immaterial....” 69 So.2d at 315. It follows that the requested discovery is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fla. R. Civ. P. 1.280(b)(1). For the stated reasons, we quash the order now before us.

Petition granted.

      . The parties agreed, and the trial court ordered, that the records should remain sealed pending disposition of this petition. This court issued an order determining that the records would remain confidential pending disposition of this proceeding. See Fla. R. Jud. Admin. 2.420(g).

      . The psychologist provided a consent form stating, in substance, that there is no psychologist-client privilege for the evaluation, that the evaluation is not for purposes of providing treatment or health care, and that the use and results of the evaluation are intended only for the hiring agency. The form goes on to authorize the psychologist to provide the evaluation to the hiring agency.


author: PER CURIAM.

text:
    Edward ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-700.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.
    Rehearing Denied Dec. 16, 2010.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nelfrard v. State, 34 So.3d 221 (Fla. 4th DCA 2010).

TAYLOR, HAZOURI and CIKLIN, JJ., concur.


text:
    Leo A. MENA, etc., Appellant, v. SWEAT TRANSPORTATION, INC., etc., and Minnie V. Corbitt, as Executrix of the Estate of Billy Corbitt, Appellees.
    No. 3D09-1720.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing Denied Nov. 22, 2010.
    Fowler White Burnett, and Robert F. Bouchard and June G. Hoffman, Fort Lauderdale, for appellant.
    Hinshaw <& Culbertson, and Maureen G. Pearcy and Ronald Pena, Miami, for appel-lees.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See 7550 Building, Inc. v. Atlantic Rack & Shelving, Inc., 999 So.2d 663 (Fla. 3d DCA 2009).


text:
    Clandyve SIMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3281.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Clandyve Simon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN and LAGOA, JJ.
   COPE, J.

Defendant Clandyve Simon appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of counsel. We affirm in part and reverse in part.

Defendant was found guilty of two counts of attempted second degree murder and was sentenced to twenty years in prison. Defendant was accused of firing several shots into a vehicle. The two victims in the vehicle did not testify at trial. The defendant’s defense at trial was misidenti-fication.

In his motion alleging ineffective assistance of counsel, defendant made three claims. First, defendant claimed his counsel was ineffective in advising him not to testify at trial. Second, defendant asserted his lawyer was ineffective in failing to object to the introduction of an out-of-court statement made by a non-testifying witness. Third, defendant claimed his counsel was ineffective in failing to obtain DNA testing of a black hat which was worn by the perpetrator during the crime. The trial court summarily denied the motion and defendant Simon has appealed.

On appeal from a summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). The record before us does not conclusively refute the defendant’s claim on point one.

The defendant claimed his counsel gave him misadviee in advising him not to testify at trial. Defendant argued that his counsel advised him that his testimony was unnecessary “because without testimony from the alleged victims the state would be unable to prove ... the required elements of the charged offense.” Defendant went on to argue that this advice was deficient because there was an eyewitness (a police officer) who testified at trial and who identified defendant as the perpetrator. Defendant stated that but for his counsel’s misadvice, he would have testified that at the time of the crime, he was at a motel room with his girlfriend, they got into an argument, he left, it started raining, so he took cover in some nearby apartments. When he was ready to leave, police rushed him and he was arrested and misidentified by the eyewitness police officer. According to the defendant, had he testified, he would have established his innocence and would have cast reasonable doubt on the officer’s testimony.

In response to this argument, the State argued that defendant was not entitled to relief because the record establishes that it was the defendant’s decision not to testify. In support of this claim, the State relied on the following pre-trial exchange:

THE COURT: Your attorney just told me that you do not wish to testify in this trial, is that correct?
THE DEFENDANT: Yes.
THE COURT: Do you understand that even though your attorney may give you advice either way it is your constitutional right as to whether or not you want to testify?
THE DEFENDANT: Yes.
THE COURT: And even though your attorney may say, no, I don’t think you should testify, you could say to him, Mr. Marshall, I don’t agree with you, I want to testify?
THE DEFENDANT: Yes, Sir.
THE COURT: And that’s because it is your Constitutional right, do you understand that?
THE DEFENDANT: Yes, Sir.
THE COURT: So again, I will ask you for the last time, do you wish to testify in this matter?
THE DEFENDANT: No sir.

The State and the trial court suggested that this exchange established that defendant is not entitled to relief because he voluntarily chose not to testify. While it is true that the colloquy establishes defendant voluntarily agreed with counsel’s recommendation not to take the stand, and while ultimately the decision to testify or not is that of the defendant, the defendant is entitled to have reasonable advice of a lawyer. See Lott v. State, 931 So.2d 807, 819 (Fla.2006).

The Florida Supreme Court’s Lott decision is controlling here. The first step in determining whether there was ineffective assistance of counsel where defendant claims he would have testified is to determine whether the defendant voluntarily agreed with counsel not to take the stand. Id. If that is established, then the trial court must answer the separate and second question which is whether counsel’s advice to defendant “even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged [defendant] from testifying.” Id. The trial court stopped at question one and failed to address the second question.

The State relied on Garcia v. State, 21 So.3d 30 (Fla. 3d DCA 2009) to suggest that stopping at question one was appropriate here. It argued that the pre-trial colloquy here was similar to that in Garcia and that therefore defendant was not entitled to relief. But that case is distinguishable and the State misinterpreted Garcia. In Garcia, the defendant was charged with being the driver in a robbery wherein the passenger jumped out of the car and committed the robbery. Garcia, 21 So.3d at 31. The defense there was that his co-defendant acted independently and the defendant (the driver) had no idea that the co-defendant was going to commit a crime. Id. This Court determined that counsel’s advice to Garcia not to testify was reasonable in that on cross-examination, the prosecutor would have introduced defendant’s prior criminal history which would have “tarnished defense counsel’s portrayal of the defendant as an unsuspecting driver unwillingly drawn into his passenger’s criminal conduct.” Id. This Court further held that counsel’s strategic decision to advise the defendant not to testify was not unreasonable and that counsel had a “reasonable impression of the State’s case and the defendant did not allege any specific deficiency in counsel’s performance.” Id. The Court went on to say that “a trial counsel’s reasonable strategic decisions should not be second-guessed, particularly when the client agrees to the strategy.” Id.

In this case, by contrast, the claim is that counsel had an unreasonable assessment of the case by saying that the State could not succeed without the witnesses where there was a police officer who was ready to testify against the defendant and where there was absolutely no testimony presented to contradict the testimony of the officer.

Under the circumstances here, an evidentiary hearing was necessary to determine this second question — whether counsel’s advice was deficient. Lott, 931 So.2d at 819. Counsel may make a tactical decision in advising the defendant, but a trial court’s finding that such a decision was tactical, so as to defeat a defendant’s post-conviction ineffective assistance claim, usually is inappropriate without an eviden-tiary hearing. See State v. Williams, 797 So.2d 1235, 1239 (Fla.2001). As already stated, there was no evidentiary hearing here. Instead, the trial court summarily denied defendant’s motion finding that the defendant voluntarily chose not to testify. We remand the case for an evidentiary hearing as to point one of defendant’s Rule 3.850 motion.

The record conclusively refutes defendant’s second and third claims. We affirm on points two and three without discussion.

Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

      . We have taken judicial notice of the record filed in defendant’s appeal in Appeal Number 3D07-1541.

      . The trial court did say that the defendant’s proposed testimony about the gunshot residue test would be hearsay. The court did not, however, address the remainder of the defendant's proffered testimony or the question whether a reasonable attorney would have discouraged the defendant from testifying.

      . In Garcia, the defendant — who chose not to testify at trial and later claimed ineffective assistance of counsel — stated at the pre-trial conference that he was satisfied with his counsel’s advice on whether to testify at trial.


author: SALTER, J.

text:
    ONE 79TH STREET ESTATES, INC. and Darrell Wilson a/k/a Keith D. Wilson, a single man; Po Boy Realty Investment, Inc., Appellants, v. AMERICAN INVESTMENT SERVICES, Appellee.
    No. 3D09-3134.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Dorothy F. Easley, Miami, for appellants.
    Mark Evans Kass, Miami, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   SALTER, J.

One 79th Street Estates, Inc., Po Boy Realty Investments, Inc., and their president, Mr. Wilson, appeal a final summary judgment of foreclosure on a commercial mortgage loan for $759,600, documented in June 2006. Because the appellee/lender, American Investment Services (AIS), accepted a very substantial paydown after an initial payment default and acceleration, and because of the conflicting terms of documents offering reinstatement of the mortgage after the entry of an earlier judgment, we reverse the final summary judgment and remand the case for further proceedings.

No Stamps, No Foreclosure

This was a commercial loan on stationery-store documents that were modified as additional advances occurred. There is nothing inherently wrong with pre-printed notes and mortgages, but in this case the forms omitted certain terms that might have guided the parties and the court after an unusual series of occurrences and problems. Less is not always more.

The first problem was a payment default by the appellants; this gave rise to a foreclosure complaint in 2006. The second problem was AIS’s failure to pay for documentary stamp and intangible taxes on the mortgage, and to record it. Notwithstanding the fatal deficiency inherent in AIS’s failure to pay the required taxes, and apparently as a result of the appellants’ failure to mount any meaningful defense, a predecessor trial judge entered a final summary judgment of foreclosure in January 2007. A foreclosure sale was then set for April 5, 2007.

At some point before that sale, the parties entered into a reinstatement and mortgage modification agreement. The April 2007 “Agreement for Reinstatement of Mortgage and to Secure Additional Advances” included (among other terms) a recitation of the loan history, an itemized reinstatement amount of $100,503 (acknowledging receipt of $34,100 paid by the appellants to reduce that arrearage to $66,403), and a postponement of the foreclosure sale for 75 days so that the appellants could pay that balance. Paragraph 6 of the agreement stipulated that “the mortgage note and mortgage are a good and valid mortgage on the subject property and that [the appellants] have no defenses thereto.” In June 2007, it is undisputed that the appellants made a further payment of $82,000 to AIS, bringing the total post-judgment payments to $116,100.

No Reinstatement, No Refund, No Judgment

AIS later maintained that the payments of $116,100 were insufficient to reinstate the mortgage, but were tendered and accepted only in consideration of AIS’s agreement to reschedule foreclosure sale dates. Ultimately, AIS did not reinstate the mortgage, dismiss the foreclosure, or return any of the payments made by the appellants. In December 2007, just before a rescheduled sale, Mr. Wilson filed a petition under Chapter 13 of the United States Bankruptcy Code and the sale was can-celled. During the bankruptcy, Mr. Wilson raised the lender’s non-payment of taxes and resulting unenforceability of the mortgage. The bankruptcy court sent the parties back to the circuit court for a resolution of that issue. In June 2008, the trial court vacated the foreclosure judgment and abated the foreclosure lawsuit to permit AIS to pay the documentary stamp and intangible taxes and record the mortgage. AIS then took those steps.

Resumption of the Foreclosure Action

In November 2008, the bankruptcy court dismissed Mr. Wilson’s Chapter 13 case. In 2009, AIS resumed its prosecution of the original 2006 foreclosure case and moved again for final summary judgment. The appellants were allowed to amend their affirmative defenses before AIS’s motion was heard.

Although the appellants raised a number of affirmative defenses and related issues in Mr. Wilson’s affidavit, only one issue merits consideration here. The appellants’ second and third amended affirmative defenses asserted that the mortgage was to have been reinstated upon AIS’s receipt of the $116,100 in payments in April and June of 2007. After a hearing, these amended affirmative defenses were rejected. AIS’s motion was granted, the final summary judgment was entered, and this appeal followed.

Analysis

When a mortgage is foreclosed, the mortgage is “merged” into the final judgment and loses its separate identity. Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 n. 2 (Fla. 3d DCA 2009). The “reinstatement” of a mortgage after the entry of a foreclosure judgment is considerably more significant than merely rescheduling a foreclosure sale date. Reinstatement signifies that the mortgage is returned to its pre-default status as an effective instrument, by definition anticipating that any foreclosure judgment is vacated and the lawsuit dismissed. There is no apparent reason the parties could not have agreed to some form of settlement agreement whereby the foreclosure judgment would be reduced by the amounts paid, the lawsuit would not be dismissed, and a sale would only be set if the judgment debtor defaulted on future obligations, but that is not the agreement memorialized in this case.

Rather, the April 2007 reinstatement agreement expressly refers to an opportunity for the mortgagor to “reinstate” the AIS mortgage, to a “cure” of past amounts due, to the addition of the liquor license foreclosure amount “to the amount due under [AIS’s] note and mortgage,” and to a stipulation that “the mortgage note and mortgage are a good and valid mortgage on the subject property.” Each of these terms indicates a withdrawal of acceleration and a return of the mortgage loan to its pre-default, pre-foreclosure status. Coupled with the appellants’ undisputed payment of amounts exceeding the specified “arrearage,” and AIS’s retention of those payments, AIS is not entitled to judgment as a matter of law.

Another incongruity in the pleadings, affidavits, and judgment is evident in the interest amounts computed by AIS and included in the summary final judgment. Simple arithmetic discloses that AIS used the default interest rate of 18% per annum versus the “good standing” rate of 16%. If, as the appellants plainly intended, the $116,100 was tendered for “reinstatement,” the lower rate would have applied unless and until further (post-reinstatement) defaults arose and were noticed, and until the reinstated loan was again accelerated as a result of any such defaults.

Conclusion

Reviewing this record and all inferences in favor of the appellants as required, we conclude that a triable issue exists regarding the June 2007 reinstatement agreement and the parties’ performance under it. Because the final summary judgment was denied as to any personal liability of Mr. Wilson under the mortgage loan, we have not addressed the parties’ contentions on that point.

The final summary judgment is reversed and the case is remanded for further proceedings.

      . Section 201.08(l)(b), Florida Statutes (2007), precludes judicial enforcement of a mortgage "unless and until the tax due thereon ... has been paid.” The note and mortgage attached to AIS’s 2006 complaint were copies of the unrecorded documents, and there is no indication that the original note and mortgage were filed or presented to the trial court when the first (void) final judgment of foreclosure was entered in 2007.

      . The reinstatement agreement also provided that $50,619 advanced by AIS or an affiliate to prevent foreclosure of the appellants’ liquor license would be added to the mortgage principal and repaid in the (increased) monthly installments. The lender's willingness to tolerate default, make a further advance, and reinstate the mortgage is explained by the 16% per annum "good standing” interest rate and 18% default rate agreed upon in the documents.

      . Mr. Wilson’s affidavit of September 15, 2009 substantiates the reinstatement payments, but it was not docketed before the summary judgment hearing. Mr. Wilson maintains that he filed it well in advance of the hearing, but it does not bear a certificate of service confirming timely mailing to the appellants' counsel. We do not address whether it was indeed filed as required, because AIS does not dispute the receipt or timing of the payments. June 2009 affidavits of other witnesses (and indisputably a part of the record) authenticated the 2007 reinstatement agreement and the payments to AIS made by Mr. Wilson.

      . Ordinarily reinstatement occurs when the mortgagor tenders arrearages before acceleration. This "results in a reinstatement of the mortgage loan to a current status_" Kendall Coffey, Foreclosures in Florida 265 (2d ed. 2008). A reinstatement of a mortgage after acceleration and foreclosure can accomplish the intended result only if the foreclosure judgment is vacated.

      . In AIS’s affidavits in support of its motion for summary judgment, AIS attached a letter from AIS’s counsel in June 2007 purporting to add additional terms for reinstatement. If there was not a meeting of the minds, however, and the appellants were not entitled to reinstatement, AIS had no right to retain the payments tendered pursuant to the agreement.

        . Sheikh v. Coregis Ins. Co., 943 So.2d 242, 244 (Fla. 3d DCA 2006).

      . Such further proceedings should also address the appellants' requests for additional discovery and leave to amend to add a counterclaim. Those motions were denied in connection with the summary judgment rulings.


author: COPE, J. SCHWARTZ, Senior Judge

text:
    Jose Alejandro PINEDA and Martha Pineda, Appellants/Cross-Appellees, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 3D09-1003.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Rehearing and Rehearing En Banc Denied Dec. 10, 2010.
    Marlene S. Reiss, Miami, for appellants/cross-appellees.

      Bernstein, Chackman & Liss and Rose, and Bonnie M. Sack, Hollywood; Russo Appellate Firm and Elizabeth K. Russo and Susan S. Lerner, Miami, for appel-lee/cross-appellant.
    Before COPE and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal and cross-appeal of an order denying attorney’s fees under section 627.428, Florida Statutes (2009), for services rendered in connection with an appraisal under a homeowners insurance policy. We affirm in part and reverse in part.

The appellants, Jose and Martha Pineda, are the insureds in a homeowners insurance policy issued by State Farm Florida Insurance Company (“State Farm”). Their home was damaged by Hurricane Wilma in October 2005. Two-and-one-half years later, on February 27, 2008, the Pinedas made a claim for hurricane damage to their home. By March 17, 2008, an engineer, retained by State Farm, inspected the property and generated an itemized estimate of damage in the amount of $23,951.41. On March 21, 2008, the Pine-das countered with an estimate of $103,200.

On May 19, 2008, State Farm made payment based on its estimate and, three days later, invoked the appraisal clause of the property. The Pinedas replied that they, too, invoked the appraisal clause. The appraisal clause in Section 1 — Conditions, reads:

4. Appraisal. If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, disinterested appraiser. Each shall notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us.

When the parties were unable to agree on an umpire, State Farm filed a Petition for Selection of Neutral Umpire. In Paragraph 17 of the Petition, State Farm alleged as follows:

17. The appraisal provision provides that the appraisers, if they cannot agree shall submit their differences to the umpire. The only manner in which the differences can be submitted is in a line by line item estimate. The appraisal process merely determines the amount of the loss and coverage is the exclusive jurisdiction of the court. In this case, coverage issues have arisen and the only way for the parties to ensure that contested coverage items are not included in the appraisal award, is to delineate the appraisal award in a line item estimate. A vast amount of judicial resources will be saved by ordering that the scope of the appraisal be delineated, itemizing each area and item of damage and the amount to repair or replace each item, in a line by line item estimate.

The Pinedas filed an answer to the Petition, agreeing that the assistance of the trial court was necessary to resolve the impasse over the umpire. In Count 2 of their amended counterclaim, the insureds sought a declaratory judgment that the trial court was not authorized, under the language of the appraisal clause, to require an itemized appraisal by the umpire. State Farm moved to dismiss the counterclaim on the ground that the matter currently was in appraisal and that the counterclaim was premature.

With regard to the request for an itemized appraisal, the Pinedas stated that they had discussed the issue with the umpire, and the umpire told the Pinedas that use of a line by line appraisal form would increase the amount of fees the umpire would charge. Apparently the umpire did not say what that additional amount might be.

The court entered an interlocutory order stating that the insurance policy itself does not require a line by line appraisal, so the court denied State Farm’s request. The court recommended (but did not require) that the parties agree to a line by line award if State Farm would pay for the additional time that is required for the umpire to prepare an itemized award. However, State Farm did not accept that recommendation and did not offer to pay the additional umpire fee. Accordingly, the umpire completed his work without preparing a line by line estimate. An award of $111,000 was entered in favor the Pinedas, which State Farm promptly paid.

The Pinedas requested an award of attorney’s fees under section 627.428, Florida Statutes, for the legal services performed in court. A successor judge entered a final order in the case, memorializing the earlier ruling regarding the line by line appraisal, but denying attorney’s fees. The Pinedas have appealed and State Farm has cross-appealed.

The sole issue before us is whether the Pinedas are entitled to an award of attorney’s fees for successfully defeating State Farm’s request that the trial court direct the umpire to provide an itemized appraisal.

An insured is entitled to attorney’s fees under 627.428, Florida Statutes, where it was reasonably necessary for the insured to litigate in court in connection with an appraisal under an insurance policy. Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079, 1081-82 (Fla. 4th DCA 2009); Fed. Nat’l Ins. Co. v. Esposito, 937 So.2d 199, 200-02 (Fla. 4th DCA 2006); Travelers Indem. Ins. Co. v. Meadows MRI, LLP, 900 So.2d 676, 678 (Fla. 4th DCA 2005). The Fourth District has said that “whether suit is filed before or after the invocation of the appraisal process is not determinative of the insured’s right to fees; rather, the right to fees turns upon whether the filing of the suit served a legitimate purpose.” Lewis, 13 So.3d at 1082.

Both parties agree that attorney’s fees are not awardable where, as here, the appraisers fail to agree on the appointment of an umpire and it becomes necessary for one or both parties to file suit to ask the court to make the appointment. Accordingly, no fees are to be awarded for that portion of the case.

In this case, State Farm raised the question of the appraisal award format. The appraisal process was ongoing. Not only was the Pinedas’ counterclaim for declaratory relief proper, see Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 9 (Fla.2004), but resolution also was necessary to the completion of the appraisal process. It is not necessary for us to decide here whether the trial court correctly interpreted the appraisal clause. It is only necessary for us to decide whether resolution of the issue presented by the Pinedas’ declaratory counterclaim was reasonably necessary in connection with the ongoing appraisal. We hold that it was. The request for a line item appraisal was initially raised by State Farm and the Pinedas reasonably responded with their request for a declaratory judgment. They attained a benefit by the trial court’s ruling. The appraisal award was in favor of the Pinedas and State Farm paid the award. See Coppola v. Fed. Nat’l Ins. Co., 989 So.2d 1171, 1172-74 (Fla. 4th DCA 2006). Accordingly we reverse and remand for a (modest) attorney’s fee award on this issue.

State Farm has filed a cross-appeal, arguing that the trial court should not have entered a partial final judgment disposing of the insureds’ counterclaims. We disagree, as a final order was needed in order to dispose of the counterclaims and bring the case to a conclusion.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

SHEPHERD, J., concurs.

SCHWARTZ, Senior Judge

(dissenting in part).

Because State Farm promptly paid in full an (undifferentiated) award which was the result of a contractual appraisal process which it initiated itself and for which the appellant is concededly not entitled to fees, I believe that their attorneys’ alleged efforts in the Circuit Court were (a) entirely unnecessary and gratuitous (b) resulted in no practical benefit to the client, or (c) both. In these circumstances, I do not believe that they are entitled even to the “modest” — actually minimal or nominal— award which is contemplated by the majority. I would affirm.

      . The Pinedas abandoned Count 1 of the Amended Counterclaim, and do not request attorney’s fees for it, so we do not address it here.


author: ROTHENBERG, J.

text:
    G & S DEVELOPMENT CORP., Appellant, v. Jack SEITLIN, as Trustee and Individually, and Pepper Family, LLC, Appellees.
    No. 3D09-954.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Marlene S. Reiss, Miami, for appellant.
    H. Hugh McConnell, Coral Gables, and McConnell Lipton, for appellee Jack Seit-lin.
    Gutter Chaves Josepher Rubin Forman Fleisher and Richard A. Josepher, Boca Raton, for appellee Pepper Family, LLC.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

The plaintiff, G & S Development Corp. (“G & S”), appeals an order granting a Motion to Enforce Settlement (“Motion to Enforce”) filed by defendant Jack Seitlin (“Seitlin”), finding that the Second Addendum to Vacant Land Contract (“Second Addendum”) is enforceable. We affirm.

G & S filed an amended complaint against Jack Seitlin, as Trustee and Individually, and Pepper Family, LLC (“Pepper”), seeking specific performance of a real estate contract entered into by G & S (buyer) and Seitlin, as Trustee (seller). Pursuant to a Co-Tenants Agreement, Seitlin is named as Trustee of the real property that is the subject of the contract, and as Trustee, he was granted the right to control all decisions related to the sale of the real property, including the price and terms. Although Pepper is a beneficial owner under the Co-Tenants Agreement, the amended complaint provides that Pepper is named as a “nominal defendant” from which no damages are sought.

As alleged in the amended complaint, the facts leading to the underlying lawsuit are as follows. In July 2002, Seitlin, as Trustee, leased real property to G & S. Pursuant to the lease agreement, G & S had a right of first refusal in the event that Seitlin received an offer to sell the property. Upon receiving an offer from a third party, Seitlin offered G & S its right of first refusal. G & S submitted the Purchase and Sales Agreement to Seitlin with the same terms as offered by the third party, but Seitlin failed to honor the lease agreement’s right of first refusal.

After years of litigation, the parties entered into settlement negotiations in an effort to complete the sale of the real property. As a result of the negotiations, Seitlin and Marshall Pepper, as Manager of Pepper, executed the Second Addendum in March 2008. On April 24, 2008, just prior to a scheduled hearing, Scott Han-non, as President of G & S, also executed the Second Addendum, and both Hannon and Seitlin initialed three handwritten revisions to the Second Addendum. When G & S failed to comply with the terms of the Second Addendum, Seitlin filed a Motion to Enforce. After hearing Seitlin’s Motion to Enforce, the trial court entered an order granting the motion, finding that the Second Addendum was enforceable. G & S’s appeal followed.

We begin our analysis by noting that G & S has failed to present this Court with a transcript of the hearing below or with a stipulated or approved statement of the proceedings as permitted by Florida Rule of Appellate Procedure 9.200(b)(4). Without a record of the hearing, this Court cannot determine what issues were raised or argued by the parties during the hearing, and therefore, may reverse the decision “only if an error of law appears on the face” of the order under review. Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999); see also Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997) (“Without a transcript, appellate courts cannot usually determine what issues were either raised or argued by the parties during a proceeding. As such, the lack of a transcript normally precludes appellate review.”); S. Fla. Apartment Ass’n v. Dansyear, 347 So.2d 710, 711 (Fla. 3d DCA 1977) (finding that it is the responsibility of the appellant to provide a sufficient record for review, and that the failure to do so leaves the appellate court with no alternative but to assume that the trial court ruled correctly). Because no error of law appears on the face of the order under review, we are compelled to affirm the order of the trial court.

Although meaningful appellate review is not possible due to the lack of a transcript, we briefly address an issue raised by G & S in this appeal. G & S contends that the trial court erred by enforcing the Second Addendum because Marshall Pepper did not initial the three handwritten revisions or otherwise indicate acceptance of the revisions. We disagree.

“The party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement.” Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002). Thus, Seitlin, as the party seeking to enforce the Second Addendum, had the burden of establishing that the opposing party assented to the terms of the Second Addendum.

The record before the lower tribunal and this Court demonstrates that both G <& S and Seitlin, by executing the Second Addendum and initialing the three handwritten revisions, assented to the terms of the Second Addendum. Marshall Pepper’s failure to initial the revisions does not render the Second Addendum unenforceable. First, we note that Pepper did not file an opposition to the Motion to Enforce, and on appeal, Seitlin’s and Pepper’s positions are aligned. Second, and more importantly, G & S’s argument, that Marshall Pepper’s failure to initial the revisions renders the Second Addendum unenforceable, is inconsistent with the allegations set forth in G & S’s amended complaint. G & S’s amended complaint provides that Pepper is a “nominal defendant” and that the Co-Tenants Agreement “acknowledges that Seitlin would serve as ‘Trustee’ of the Property with specific powers including the control and decision to sell the Property and to determine the terms of any such sale.” A review of the Co-Tenants Agreement confirms this allegation. Therefore, under the Co-Tenants Agreement, Seitlin, as Trustee, possessed the authority to consent to the sale of the real property, and Pepper was not required to approve the sale or the accompanying conditions of the sale. Although the record demonstrates that Pepper assented to the sale, Pepper’s assent was not required. Thus, even if we could confirm that this argument was raised and argued below, we would conclude that it lacks merit.

Affirmed.

      . As stated earlier, we cannot determine whether this argument was raised below.


author: GERBER, J.

text:
    Gerald CANTALUPO, as Personal Representative of the Estate of Suzanne Marie Cantalupo, Appellant, v. Paul J. LEWIS, Appellee.
    No. 4D09-489.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2010.
    Rehearing Denied Dec. 16, 2010.

      James L.S. Bowdish and Bridget N. Mi-rande of Crary, Buchanan, Bowdish, Bovie Beres, Elder & Williamson Chartered, Stuart, for appellant.
    Benjamin M. Esco of Cole, Scott & Kis-sane, Miami, and Anne C. Sullivan of Gaebe, Mullen, Antonelli & DiMatteo, Coral Gables, for appellee.
   GERBER, J.

The plaintiff appeals from a final summary judgment. The issue is whether the defendant can be liable for negligent en-trustment or negligent undertaking where the defendant took his alcohol-impaired brother’s car keys, and then put the keys in a place where his brother easily found the keys, resulting in his brother causing a fatal collision. We hold that, under those facts, the defendant cannot be liable for negligent entrustment or negligent undertaking. Therefore, we affirm.

The material facts are undisputed. One night at 8:30 p.m., the defendant and his brother went to a restaurant. Over the next hour and forty-five minutes, the defendant’s brother drank several glasses of bourbon. At 10:15 p.m., the defendant and his brother left the restaurant. The defendant asked for his brother’s keys because he felt his brother had too much to drink. His brother handed over the keys. The defendant then drove himself and his brother to the defendant’s home. They arrived at 11:30 p.m. The defendant put the keys in the kitchen and went into his home office to do some work. His brother remained in the other part of the house.

At 2:00 a.m., the defendant’s brother came into the office. The defendant recognized that his brother had been drinking more and was in worse shape than when they had left the restaurant. His brother had the keys and said he was going home. The defendant told his brother it would be best if he stayed the night. His brother agreed and again handed over the keys, saying that he would stay the night. The brother then went back to the other part of the house.

At 2:10 a.m., the defendant went into the living room and put the keys on a hutch. The hutch was twenty feet from the couch on which his brother would be sleeping. The defendant did not keep the keys because he did not want his brother to wake him and his wife when leaving for work at 8:00 or 9:00 that morning. After the defendant put the keys on the hutch, his brother got ready to sleep on the couch. The defendant then went back to his office.

At 2:30 a.m., the defendant went into the living room. He saw his brother lying on the couch with his eyes closed. The defendant then went to bed.

At some time before 3:13 a.m., the defendant’s brother got up, took the keys, and left the house. He drove the wrong way down a nearby road and collided head-on with a vehicle driven by Suzanne Cantalupo. Both the defendant’s brother and Cantalupo were killed.

The personal representative of Cantalu-po’s estate filed a two-count action against the defendant for negligent entrustment and negligent undertaking. The defendant moved for final summary judgment, arguing that he could not be liable under the undisputed facts of this case. After a hearing, the circuit court granted the motion, reasoning:

Obviously, (the defendant) could have done more ... to secure the keys. But I’m going to grant the summary judgment, and the 4th can decide — I don’t know much about public policy, but I don’t think people in a position like this, where they’re going to be liable no matter what they do if what they do fails. I recognize the analogy to the Good Samaritan law.... So I’m going to grant the motion for summary judgment.

This appeal followed. The plaintiff argues that the circuit court erred in granting the motion for summary judgment on public policy grounds without addressing the merits of the claims for negligent en-trustment and negligent undertaking. The plaintiff further argues that, on the merits, the court should have denied the motion for summary judgment because genuine issues of material fact exist as to whether the defendant is liable for negligent entrustment and negligent undertaking. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (“A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. If the evidence raises any issue of material fact ... it should be submitted to the jury.”).

We agree with the plaintiff that the court should not have granted the motion for summary judgment on public policy grounds without addressing the merits of the claims. However, because the parties presented the court -with arguments on the merits of the claims, and because our review is de novo, we can address the merits of the claims. See Fina v. Hennarichs, 19 So.3d 1081, 1084 (Fla. 4th DCA 2009) (“‘The standard of review applicable to trial court rulings on motions for summary judgment is de novo.’”) (citation omitted); Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

Having reviewed the merits of the claims, we find that the circuit court properly granted the motion for summary judgment. Without genuine issue of material fact, the defendant cannot be liable for negligent entrustment or negligent undertaking under the circumstances of this case. We address each cause of action in turn.

Negligent Entrustment

This court has recognized Section 390 of the Restatement (Second) of Torts as setting forth the law of negligent entrustment. Fina, 19 So.3d at 1085. Section 390 states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390 (1965). Here, the plaintiff argues that the defendant, by putting the car keys where his brother easily could find them, constructively entrusted the car to his brother when he knew that his brother was likely to use the car in a manner involving unreasonable risk of harm to himself and others.

In support of this constructive entrustment theory, the plaintiff relies on Foster v. Arthur, 519 So.2d 1092 (Fla. 1st DCA 1988). In Foster, the defendant asked her housemate, a convicted murderer, to repair her bed frame. In doing so, the housemate discovered a gun which the defendant kept between the mattress and the box spring. The housemate later used the gun to shoot the plaintiff. The plaintiff sued the defendant for negligently entrusting the gun to the housemate. After the trial court entered a final judgment for the plaintiff, the first district affirmed. In its reasoning, the first district recognized that the defendant did not personally deliver the gun to her housemate. However, the first district found that the defendant placed the gun in her housemate’s “constructive, if not actual, possession” by inviting the housemate to repair the bed frame. Id. at 1094. The court stated:

Consent to use a firearm need not be expressly given.... It may be given indirectly through the conduct of the gun owner, such as when, under certain circumstances, he provides the opportunity for another person to use the gun.

Id.

We find the plaintiffs reliance on Foster to be misplaced and therefore reject the plaintiffs argument. The defendant’s mere placement of the car keys on the hutch where his brother easily could find them does not constitute “supplying” the keys, much less the car, to his brother. To the extent the first district found in Foster that such an action may be considered to be a “constructive” entrustment, we question whether such a finding should be recognized to exist as a matter of law. In any event, to avoid conflict with our sister court, we read Foster to be limited to the unique facts of that case, that is, the use of a firearm.

Negligent Undertaking

Our supreme court set forth the law of negligent undertaking in Clay Electric Cooperative, Inc. v. Johnson, 873 So.2d 1182 (Fla.2003):

Whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service — i.e., the “undertaker” — thereby assumes a duty to act carefully and to not put others at an undue risk of harm. This maxim, termed the “undertaker’s doctrine,” applies ... not just to parties in privity with one another — i.e., the parties directly involved in an agreement or undertaking — but also to third parties....
Section 324A of the Restatement sets forth the following standard for assessing liability in such cases:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Id. at 1186 (quoting Restatement (Second) of Torts § 324A (1965)). Here, the plaintiff argues that a genuine issue of material fact exists as to whether the defendant’s conduct satisfied the first and second prongs of section 324A. We disagree.

As to section 324A’s first prong, we find that no genuine issue of material fact exists because, even if the defendant failed to exercise reasonable care by putting the keys on the hutch where his brother easily could find them, that failure did not increase the risk of harm. From the time the defendant and his brother left the restaurant, the risk of harm was that the defendant’s brother would drive under the influence and injure a third person other than himself. When the defendant twice convinced his brother to hand over the keys, the defendant reduced that risk of harm. When the defendant put the keys on the hutch where his brother easily could find them, the defendant merely restored the risk of harm to the level which existed when he and his brother left the restaurant. At no time during the night did the defendant increase the risk of harm above that level.

As to section 324A’s second prong, we recognize that the defendant’s brother owed a duty to third persons not to drive under the influence. However, the record establishes, without genuine issue of material fact, that the defendant did not undertake to perform that duty. Rather, the defendant attempted to prevent his brother from driving under the influence. “Not driving under the influence” is different in both words and substance from “attempting to prevent another from driving under the influence.” Not driving under the influence is inaction. One cannot undertake to “perform” another’s duty of inaction.

The plaintiff argues that this case is indistinguishable from Clay Electric. There, an electric company contractually agreed to maintain streetlights along a road but then failed to maintain the streetlights, resulting in a driver killing a boy who was walking to his school bus stop along the darkened road. Our supreme court found that the electric company assumed a specific duty to act with due care in maintaining the streetlights and that the electric company could be liable under section 324A’s first and third prongs. According to the court: (1) the electric company’s failure to exercise due care in maintaining the streetlights increased the risk that a driver would be unable to see the victim; and (2) the electric company, in undertaking to maintain the streetlights, arguably caused the victim’s family to rely on the fact that the lights would be operating properly and that the victim’s pathway to the school bus stop would be lighted. The court rejected the electric company’s contention that the “increased risk” subsection was inapplicable because the victim was no worse off with an inoperative streetlight than he would have been with no light at all. The court reasoned:

The plaintiffs did not allege that [the electric company] negligently installed the streetlights on an otherwise unlighted street. Rather, they alleged that [the electric company] negligently maintained the streetlights on an otherwise lighted street.... This raises a jury question as to whether [the electric company’s] negligence increased the risk of harm to [the victim],

873 So.2d at 1187 (emphasis in original).

Unlike the electric company, the defendant here did not have any duty to prevent his brother from driving under the influence. See Carney v. Gambel, 751 So.2d 653, 654 (Fla. 4th DCA 1999) (“Generally, there is no duty to control the conduct of a third person to prevent him or her from causing physical harm to another.”). The fact that the defendant undertook to prevent his brother from driving under the influence at various times did not impose upon the defendant a duty to prevent his brother from driving under the influence at all times. To hold otherwise would discourage people from taking an impaired person’s keys in the first instance, just as the circuit court articulated purely from a public policy standpoint. Our holding today avoids that nonsensical result.

At oral argument, the plaintiff suggested in the alternative that the time from which the alleged increased risk of harm could be measured was the time at which the defendant and his brother arrived at the defendant’s home and the brother obtained more to drink. We disagree. To the extent the defendant’s brother drank more at the defendant’s home, the defendant was a “social host” during that time. Our supreme court has found that a person injured by an impaired person does not have a cause of action against a social host who served alcoholic beverages to the impaired person. Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla.1987); see also Dowell v. Gracewood Fruit Co., 559 So.2d 217, 218 (Fla.1990) (rejecting attempt to characterize Bankston as only deciding liability for serving alcoholic beverages to a minor). Thus, measuring the risk of harm from the time when the defendant and his brother arrived at the defendant’s home does not create liability here.

Affirmed.

HAZOURI, J., and KELLEY, GLENN D., Associate Judge, concur.


text:
    Bonnie GREENBERG, Appellant, v. SCHINDLER ELEVATOR CORPORATION, etc., et al., Appellees.
    Nos. 3D08-848, 3D09-18.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Samuel M. Yaffa, Delray Beach and Marjorie Gadarian Graham, Palm Beach Gardens, for appellant.
    Sedgwick, Detert, Moran & Arnold, Lenore C. Smith, Jeannine C. Jacobson, and Richard P. Hermann, II, Fort Lauderdale, for appellee, Schindler Elevator Corporation; and Law Offices of Clinton D. Flagg, Susana C. Núñez, and John R. Buchholz, Coral Gables, for appellee, Miami-Dade County.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Bonnie Greenberg (“Greenberg”) appeals from final judgments entered after a directed verdict for Schindler Elevator Corporation (“Schindler”) and Miami-Dade County (“the County”) in this personal injury action. We reverse.

Greenberg sued Schindler and the County for injuries she received when she fell on an escalator at Miami International Airport. Greenberg claimed that the escalator stopped short causing her to fall. This escalator, which the County and Schindler owned and/or maintained, was reported as not working a few hours prior to Green-berg’s fall. Although there is a record of a technician having checked the escalator, there was no record of any work performed on the escalator.

At trial, the court excluded evidence of various reports showing prior problems with the subject escalator, and denied Greenberg’s request for a jury instruction on negligence per se. Over Greenberg’s objection and motion for mistrial, the trial court permitted defense counsel to argue there was no evidence of prior problems with the escalator.

Dr. Gart, a doctor specializing in physical medicine, rehabilitation, and pain management, testified on behalf of Greenberg. Although he is not a surgeon, Dr. Gart opined that Greenberg would require back surgery in the future. However, the trial court did not allow Dr. Gart to give his opinion regarding future surgery because he was not a surgeon.

Both Schindler and the County moved for directed verdict at the end of Green-berg’s case. The trial court reserved ruling, and the trial proceeded. Thereafter, the jury returned a verdict in favor of Greenberg, apportioning 20% liability each to Schindler and the County. The trial court then entered directed verdicts, ruling there was insufficient evidence of negligence on the part of Schindler and the County. The trial court also denied Greenberg’s motion for new trial.

On appeal, Greenberg asserts that the trial court erred in setting aside the jury verdict and directing a verdict for Schindler and the County, and in failing to grant a new trial. On the other hand, Schindler and the County contend that the trial court correctly directed a verdict in their favor because Greenberg failed to prove they were negligent. We agree with Green-berg.

Turning first to the directed verdict, we review the trial court’s ruling de novo. See Banco Espirito Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So.2d 1030, 1032 (Fla. 3d DCA 2008). We consider the evidence, and all inferences which may be made from the evidence, in the light most favorable to Greenberg, as the non-moving party. 979 So.2d at 1032. Only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party may a trial court enter a directed verdict. 979 So.2d at 1032.

Here, Greenberg presented evidence showing that the County and Schindler were notified that the subject escalator stopped running earlier on the day of Greenberg’s fall. There was no evidence that any work was performed on the escalator. From this, the jury could reasonably infer that the County and Schindler negligently failed to examine the escalator to determine what was causing it to stop running, and to correct the problem. Greenberg’s fall was a direct result of the escalator’s sudden stop. Thus, since Greenberg presented evidence of negligence, the trial court erred in entering a directed verdict in favor of the County and Schindler.

Next, we consider the trial court’s denial of the motion for new trial. First, the trial court erred in not giving the jury instruction on negligence per se. The plaintiff was entitled to that instruction as to the County. See Nicosia v. Otis Elevator Co., 548 So.2d 854, 855 (Fla. 3d DCA 1989).

Second, the trial court erred in overruling Greenberg’s objection to defense counsel closing argument. Defense counsel should not have been allowed to argue there was no evidence of prior problems with the subject escalator after the trial court excluded such evidence. It is improper argument for defense counsel to obtain exclusion of evidence and then in closing argument criticize the plaintiff for failing to produce that very evidence. Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485-86 (Fla. 3d DCA 1997).

Finally, the trial court erred in excluding Dr. Gart’s opinion regarding future surgery. Dr. Gart testified that in his practice he normally refers patients for surgery. Moreover, Dr. Gart was a treating physician and, as such, he was a fact witness, not an expert witness. Therefore, he did not need to be an expert back surgeon in order to testify to his belief that Greenberg would need surgery in the future. The nature and extent of Dr. Gart’s expertise was a proper subject for cross-examination, not for determining whether he could testify.

For these reasons, the trial court erred in denying Greenberg’s motion for new trial. Accordingly, we reverse the judgment entered on the directed verdict, and remand for a new trial.

Reversed and remanded for new trial.


text:
    Alfredo DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-757.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Alfredo Dominguez, in proper person.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

We reverse the order summarily denying Alfredo Dominguez’s motion for additional credit for time served because nothing attached to the order on appeal demonstrates that Dominguez is not entitled to the additional credit he seeks. Aristides v. State, 44 So.3d 195 (Fla. 3d DCA 2010); Parks v. State, 18 So.3d 1199 (Fla. 3d DCA 2009). This cause is remanded for further proceedings.

Reversed and remanded.


text:
    Tyrone MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-338.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Rehearing Denied Dec. 13, 2010.

      Tyrone Morgan, in proper person.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Mercado v. State, 13 So.3d 1112 (Fla. 3d DCA 2009).