author: WARNER, J.

text:
    Stephen ATKINSON, Appellant, v. Deborah B. ANDERSON and Michael O. Anderson, Appellees.
    No. 4D09-2638.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Rehearing Denied Feb. 10, 2012.
    John R. Kelso of Levey, Filler, Rodriguez, Kelso & De Bianchi, LLP, Miami Beach, for appellant.

      Richard F. Hussey of Richard F. Hus-sey, P.A., Fort Lauderdale, for appellees.
   WARNER, J.

A co-tenant of a condominium unit sued the other co-tenant for ouster from the unit. After the trial court denied a motion for directed verdict, a jury found that the co-tenant had been ousted from the unit and awarded $21,000 in damages. The trial court, however, granted a motion for judgment notwithstanding the verdict, finding that there was no evidence of any communication, by the co-tenant in possession to the ousted co-tenant, that the co-tenant in possession claimed exclusive use. The ousted co-tenant appeals. We reverse, concluding that there was evidence sufficient to support the jury verdict.

Although it is usual to begin with a factual background in an opinion, because we must analyze the evidence in light of the law of ouster as well as the standards for granting a judgment notwithstanding the verdict, we begin with a discussion of the legal principles which we must apply to the factual record in this case.

On motion for directed verdict or judgment notwithstanding the verdict the trial court must “evaluate all facts in evidence and all reasonable inferences that can be drawn from those facts in the light most favorable to the non-movant.” Premier Lab Supply, Inc. v. Chemplex Ind., 10 So.3d 202, 205 (Fla. 4th DCA 2009). “ ‘Only where there is no evidence upon which a jury could properly rely, in finding for the plaintiff, should a directed verdict be granted.’ ” Stokes v. Ruttger, 610 So.2d 711, 713 (Fla. 4th DCA 1992) (quoting Collins v. School Bd. of Broward Cnty., 471 So.2d 560, 562 (Fla. 4th DCA 1985)). Review of a ruling on motion for judgment notwithstanding the verdict is de novo. Dorestin v. Hollywood Imports, Inc., 45 So.3d 819, 823 (Fla. 4th DCA 2010). The task of the District Court of Appeal in reviewing the propriety of an order granting a JNOV is identical to that in which an ordinary motion for directed verdict is involved — “ ‘the court must view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made.’ ” Johnson v. Swerdzewski, 935 So.2d 57, 60 (Fla. 1st DCA 2006) (quoting Collins, 471 So.2d at 563).

On the substantive issue, our supreme court determined that a co-tenant must have communicated his or her intention to exclusively possess the property in order to constitute an ouster of the other co-tenant. In Barrow v. Barrow, 527 So.2d 1373, 1376 (Fla.1988), the court, quoting Stokely v. Connor, 69 Fla. 412, 440-41, 68 So. 452, 459 (Fla.1915), defined ouster as follows:

[A] tenant in common, to show an ouster of his cotenant, must show acts of possession inconsistent with, and exclusive of, the rights of such cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership. He has the right to assume that the possession of his cotenant is his possession, until informed to the contrary, either by express notice, or by acts and declarations that may be equivalent to notice.

The court reiterated that holding adversely could not occur unless “ ‘manifested or communicated’ ” to the other co-tenant. Barrow, 527 So.2d at 1375 (quoting Coggan v. Coggan, 239 So.2d 17, 19 (Fla.1970)). Mere possession by one co-tenant, even for a lengthy time, could not be considered an ouster of the other co-tenant without communication of exclusive possession. Id. at 1377. The Barrow definition of ouster was read to the jury in this case as part of the jury instructions.

We now review the facts in this case, taken in a light most favorable to the appellant, to determine whether there is any evidence from which a jury could conclude, as they did, that an ouster took place, i.e., that the Andersons, as co-tenants, engaged in acts of possession of the condominium unit inconsistent with and exclusive of the rights of Atkinson, their co-tenant, and communicated these acts to Atkinson. We conclude that there was evidence from which a jury could make that factual finding.

Stephen Atkinson, the plaintiff^appellant, and his family were long-time friends of Deborah and Michael Anderson, the defendants/appellees, and their family. Atkinson, who lived in Orlando, was an avid boater, and the Andersons, who lived in Broward County, spent time with him boating. In 2003, the Andersons suggested to Atkinson that they jointly purchase condominium unit 704 in Port Condominium, a development under construction and on the water in Fort Lauderdale where Atkinson could also have a boat slip. They intended to use the condominium as a vacation home for their respective families, which included use for Atkinson’s five children and for the Andersons’ two children. During the time that they were working on the purchase of unit 704, Michael Anderson, who was in real estate, found that unit 902 in the same complex was also available. The parties also decided to purchase that unit for investment purposes.

Because of the Andersons’ financial difficulties, Deborah Anderson’s mother, Mrs. Boardman, actually signed the purchase agreement and obtained title with Atkinson, as tenants in common, of both units, which finally closed in 2005. Shortly thereafter, Mrs. Boardman quit-claimed her interest in unit 902 to the Andersons. After closing on the units, the Atkinson family and the Anderson family would use unit 704 on alternating weekends. At no time did both families use the condominium together.

' Although unit 902 was bought for resale, no buyers were forthcoming. The Andersons continued to experience financial difficulties and wanted to rent both units. Eventually, tenants were found for a period of time for both units. Unit 704 remained rented through the spring of 2006. When the renter left, Atkinson began using the unit again as a vacation home.

The Andersons’ financial difficulties persisted, and the parties began exchanging proposals for sale of each other’s interests in the units, even though at the time Mrs. Boardman was still the co-tenant of unit 704. They traded emails regarding multiple options, including the rental of the units. In one email to Mr. Anderson, Atkinson reminded him that, “I feel we need to resolve the rental issue, as our original intention was to use this as a weekend holiday place. I am not interested in renting.” (emphasis supplied). Discussions to find a solution and buyout continued for over a year.

Finally, Atkinson flew down to Fort Lauderdale and offered the Andersons cash for their interest in both units. The Andersons refused the tender and told Atkinson that they were moving into unit 704, having sold their residence elsewhere. Atkinson responded, “Well, you can’t move into 704. That’s the condominium that we share.” Feeling that the situation was getting uncomfortable, Atkinson called his attorney. As a result, Atkinson changed the locks on the condominium and sent Mrs. Boardman, who was still the co-tenant, a set of new keys and a letter in which he informed her that he had been threatened by the Andersons that they would move into the condominium. He let her know that this was not something that he would accept.

Thereafter, Mrs. Boardman’s lawyer wrote Atkinson to inform him that Mrs. Boardman was going to sell her interest and asking him if he wanted to match the price. Atkinson did not, and Mrs. Board-man quit-claimed her interest to the Andersons for an unknown sum. After the purchase, the Andersons sent a letter to Atkinson notifying him that the Anderson family was moving into unit 704. He further wrote, “If you want to use that unit, we will expect you to provide us with reasonable notice, and we believe that 7 days would be the minimum amount of notice. We will be sure to have one of the bedrooms available for your use when you request it.” Atkinson’s family included his wife and five children, and he needed the use of the entire condominium. They had never been required to furnish notice prior to entry into the condominium. These conditions were contrary to their prior use and agreement that the unit was a vacation home, not a permanent residence of either party. Atkinson did not request to use the unit after receiving the letter. Instead, he instituted this lawsuit.

Based upon the foregoing, and in a light most favorable to the appellant, there is evidence which would support the elements of an ouster. The parties were tenants in common in unit 704, and they intended to use the unit for their own vacation purposes, but not for occupancy by both families at the same time. They also agreed to rent it on one occasion to generate income. The unit was not intended to become the permanent residence of either party. After proposals for the sale or swap of each other’s interests in the units failed, Mr. Anderson told Atkinson he was moving into unit 704 with his family, to which Atkinson protested and even changed the locks on the condominium. Nevertheless, Boardman quit-claimed her interest to Anderson, and his family moved into the unit over Atkinson’s objection. Although the Andersons offered to allow Atkinson and his entire family to use one bedroom of the unit, they required seven days notice. Thus, the use they would allow was completely inconsistent with the parties’ prior use and agreement with respect to the unit.

The acts of the Andersons can be construed as inconsistent with the rights of Atkinson and were expressly communicated to him. See Barrow, 527 So.2d 1373. A jury could infer that the permanent residence in the unit by the Andersons was the assertion of exclusive possession, because the Andersons would not allow its use by Atkinson without notice. Further, the Andersons would permit Atkinson to occupy only a bedroom in the unit which they designated. Atkinson’s use was thus transformed to a permissive use. Clearly, the possession by the Andersons was directly and expressly objected to by Atkinson, yet the Andersons went ahead with their permanent possession over that objection. A jury could find that the severe limitations that the Andersons put on Atkinson’s use constituted the assertion of possession to the exclusion of Atkinson, which on this record was what appears to have been intended.

Taking the evidence and all of the inferences which may be drawn therefrom in a light most favorable to Atkinson, as we must, we conclude that there is evidence from which a jury could find that the Andersons had ousted Atkinson from use of unit 704. Thus, the trial court erred in granting the motion for judgment notwithstanding the verdict. We therefore reverse and remand for reinstatement of the verdict and to enter judgment in accordance therewith.

Reversed and remanded with instructions.

POLEN and CONNER, JJ., concur.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Guillermo F. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2697.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2011.
    Rehearing Denied Jan. 25, 2012.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: PER CURIAM.

text:
    C.T., a Child, Petitioner, v. STATE of Florida and Department of Juvenile Justice, Respondents.
    No. 4D11-3070.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Diamond R. Litty, Public Defender, and Renee M. Rancour, Assistant Public Defender, Vero Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondents.
   PER CURIAM.

Petition denied. See V.P. v. State, 72 So.3d 788 (Fla. 4th DCA 2011).

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


author: MONACO, J.

text:
    Karen CAMPBELL, Appellant, v. HOUSEHOLD LIFE INSURANCE COMPANY, Appellee.
    No. 5D11-223.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    Rehearing Denied Jan. 20, 2012.

      Grossman Attorneys at Law, Boca Ra-ton, and Michael J. Ferrin, West Palm Beach, for Appellant.
    Traci H. Rollins and Jason Daniel Joffe, of Squire, Sanders & Dempsey (US) LLP, West Palm Beach, for Appellee.
   MONACO, J.

The appellant, Karen Campbell, appeals the final summary judgment rendered in favor of the appellee, Household Life Insurance Company (“HLIC”), determining that an application for credit life insurance completed by Mrs. Campbell and her now deceased husband, Danny R. Campbell, was not ambiguous and had never been accepted by HLIC. Because we agree with the trial court that the insurance documentation was not ambiguous and that no insurance contract was created prior to Mr. Campbell’s death, we affirm.

The facts are not in dispute. Mr. and Mrs. Campbell refinanced the mortgage on their home through Beneficial Florida, Inc. Simultaneously, the couple applied for optional credit life insurance through HLIC as offered to them by the lender. In order to do so Mr. and Mrs. Campbell executed and submitted an application for credit life insurance and a disclosure form.,

The Credit Insurance Disclosure provided to the Campbells for execution contained disclosures required by Florida law, and stated that “you understand that credit insurance coverage may be deferred if, at the time of application you are unable to perform normal activities of a person(s) of like age or sex, if the proposed credit insurance policy contains this restriction.” It further provided that “[a]ny credit insurance you buy will be effective on your Loan Date shown above, unless coverage is added after the date of your Loan.” The couple also executed an authorization to debit account which allowed Fort Knox National Bank to deduct premium payments directly from the Campbells’ checking account. The fixed monthly insurance premium payment was not financed, but was to be included in the Campbells’ monthly loan payments.

The Credit Insurance Disclosure also contained the following language on the signature page:

You acknowledge that: (1) your purchase of credit insurance is completely voluntary, (2) there will be no insurance until the insurer has approved your application (if one is required), (3) if the amount of your regular monthly loan payment changes and is less than the amount of your disability benefit, you direct the excess of the disability benefit to be paid to us to reduce your indebtedness, (4) you have reviewed and met the above eligibility requirements for the coverage(s) elected, and (5) you have read and received a copy of this Optional Credit Insurance Disclosure.

(Emphasis added).

In seeking to obtain the subject insurance Mr. and Mrs. Campbell were required, as well, to complete and submit a document entitled an “Application For Credit Life Insurance.” The application asked for the couple’s height, weight, age, occupation and health diagnoses, and other basic information. Additionally, the application authorized the couple’s medical providers to release medical records to HLIC or its reinsurers “so that [HLIC] can determine [the couple’s] eligibility for insurance.” Mr. Campbell indicated that he was 46 years of age, was a very large man, and suffered from high blood pressure and diabetes. Mrs. Campbell indicated that she was 42 years of age, was also a large person, and likewise suffered from diabetes.

Unfortunately, Mr. Campbell passed away a few days after the application was submitted and before a certificate of insurance was issued. When Mrs. Campbell made a claim with HLIC for the life insurance benefits on the life of her husband, she was informed that the couple’s application for coverage had been rejected. In a letter dated subsequent to the death of Mr. Campbell but addressed to him, HLIC stated that it declined Mr. Campbell’s application for Credit Life Insurance based on the information both borrowers supplied on the application form, as well as any additional medical information received during its underwriting review of the couple. The letter indicated that the Campbells would be refunded the full amount of the premium collected for the declined coverage. Mrs. Campbell received another letter further explaining that the Campbells’ application for credit life insurance had been denied because the couple’s height, weight and history of high blood pressure and diabetes did not fall within the insurer’s underwriting guidelines governing acceptability for the insurance product for which the Campbells had applied.

Mrs. Campbell thereafter filed a declaratory action asking the trial court to determine the rights and duties of the parties under the Mortgage Insurance Policy. She asked the trial court to find that Beneficial and HLIC wrongfully refused to hon- or the credit life insurance policy and that the rejection letter was not timely. She further asked the court to find that the return of the couple’s premium payment was not effective to cancel coverage and was done in bad faith to avoid payment of a legitimate claim.

Eventually, HLIC moved for summary judgment arguing that there was no genuine issue of material fact regarding HLIC’s denial of the Campbells’ credit life insurance application, as HLIC was under no duty to approve the Campbells’ application, and Mrs. Campbell could not point to any legally actionable wrongdoing on the part of HLIC. After a hearing on HLIC’s motion, the trial court concluded that the application plainly stated that the underwriters could determine the eligibility of applicants for insurance, and that there was no ambiguity in the application. The trial court granted HLIC’s motion for summary judgment. This timely appeal followed.

The standard of review for summary judgments is de novo. FCCI Ins. Co. v. Home, 890 So.2d 1141, 1142 (Fla. 5th DCA 2004). Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Here, those requirements are met.

As a general rule, in the absence of express provisions to the contrary, the application of one seeking insurance only constitutes an offer, and a legally enforceable contract is not created until the insurer accepts the offer. Liberty Mut. Ins. Co. v. Scalise, 627 So.2d 87, 91 (Fla. 1st DCA 1993) (citing Hartford Ins. Co. of the Midwest v. Surrency, 537 So.2d 208 (Fla. 5th DCA 1989) (explaining that an insurance policy takes effect when the insurance company receives an application and it is accepted)). The application itself is not a contract between parties. As with all other contracts, an insurance contract requires an offer and an acceptance. The application in the present case, as its language makes unambiguously clear, is not a contract; it is no more than an offer to contract for insurance that sets forth the terms that the insurer can either accept or reject. See Life Ins. Co. of North Am. v. Cichowlas, 659 So.2d 1333, 1335 (Fla. 4th DCA) (J. Warner, concurring specially), review denied, 666 So.2d 142 (Fla.1995); Rosin v. Peninsular Life Ins. Co., 116 So.2d 798 (Fla. 2d DCA 1960).

Moreover, the statutes that expressly govern credit life insurance suggest that the insurer must first accept the application for insurance before coverage is afforded. Sections 627.681(4) and (5), Florida Statutes (2010), say in pertinent part:

(4) All credit insurance sold shall be evidenced by a policy, certificate, or statement of insurance, which shall be delivered to the insured borrower or purchaser. Upon acceptance of the insurance by the insurer and within 60 days of the date upon which the indebtedness is incurred, the insurer shall cause the individual policy or group certificates of insurance to be delivered to the debtor....
(5) If the named insurer does not accept the risk and coverage is accepted by another insurer....

(Emphasis supplied).

In the instant case, the application plainly shows that the Campbells were not in good health at the time they submitted their application. Aside from their weight issues, they both suffered from diabetes, and Mr. Campbell suffered from high blood pressure. Additionally, there is no allegation that an HLIC agent told either of them that their insurance was effective on the date they applied. On the contrary, the Disclosure signed by Mr. and Mrs. Campbell expressly states that there would be no coverage until the application was approved. A policy may take effect on a specified date even though the contract may be subject to acceptance of an application. See Gulf Life Ins. Co. v. Ellis, 145 Fla. 262, 198 So. 836 (Fla.1940); Sur rency, 537 So.2d at 208; Suarez v. Southland Life Ins. Co., 158 So.2d 536 (Fla. 2d DCA 1963); 1A Couch on Ins. § 14:2 (A “policy is effective from the date stated, not from the date on which the premium is paid, in the absence of any mistake as to the date or of an agreement between the parties to the contrary. The date of the policy is not conclusive for the parties may agree ... that the policy be antedated and take effect from that date, ... or make the effective date dependent upon fulfillment of one or more stipulated conditions.... ”).

As the trial judge properly concluded, HLIC did not approve the application of the Campbells before Mr. Campbell’s death, and there is no language in the Disclosure that would suggest that insurance coverage became effective at any time before approval of the application. Thus, we find no error in the grant of the summary judgment in favor of HLIC.

We have considered the other issues raised by the appellant, but conclude that they need not be addressed in view of our disposition of this case. Accordingly, we affirm the judgment.

AFFIRMED.

TORPY, J., and PERKINS, T. R„ Associate Judge, concur.

      . Mrs. Campbell argues that HLIC had no choice but to issue a policy to her husband and her based, in part, on language found in National Life Ins. Co. v. Harriott, 268 So.2d 397 (Fla. 2nd DCA 1972). That is to say, Mrs. Campbell posits that the carrier was required to issue the policy as soon as it was applied for. Haniott is distinguishable in several respects. First, Harriott only stands for the proposition that a purchaser of credit life insurance may not intentionally conceal a terminal illness from the insurer in acquiring the insurance. Second, it involves a case where a policy had already been issued, and not one, as here, where only an application had been made. Third, it is largely based on a bulletin issued by the Florida Insurance Commissioner in 1972, that neither party has been able to locate. That bulletin, however, is quoted by the appellate court and contains language to the effect that the bulletin would "in no way interfere with the company's right to underwrite the insurance according to the normal procedures." We conclude, therefore, that Hairiott is inapplicable.


author: May, C.J.

text:
    INPHYNET CONTRACTING SERVICES, INC., Appellant, v. David M. SORIA, M.D., an individual, Emergency Specialists of Wellington, LLC, a Florida limited liability company and Medical Edge Healthcare Group, Inc., a Texas corporation, Appellees.
    No. 4D09-4731.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Rehearing Denied Feb. 10, 2012.

      Beverly A. Pohl, Peter R. Goldman and Vanessa M. Serrano of Broad and Cassel, Fort Lauderdale and Major Best Harding of Ausley & McMullen, P.A., Tallahassee, for appellant.
    Glenn J. Waldman and Douglas T. Marx of Waldman, Trigoboff, Hildebrandt, Marx & Calnan, P.A., Weston, for appellees.
   May, C.J.

After a long and tortured litigation history, the plaintiff appeals a final summary judgment in an action seeking to enforce a noncompete provision. It argues, among other issues, that the trial court erred in entering summary judgment as genuine issues of material fact remain. We agree and reverse.

The plaintiff filed an action against one of its former employees and a competing company, seeking to enforce a noncompete provision and damages. The facts giving rise to the claims are these.

The plaintiff provided emergency department staffing at Wellington Regional Medical Center. The plaintiffs former employee (“doctor”) is an emergency room physician and served as the plaintiffs Regional Medical Officer in 2003 and 2004, and as the Medical Director at Wellington. The doctor enjoyed a good relationship with Wellington’s Chief Executive Officer (“CEO”) and managing director, who were one and the same.

On June 16, 2004, without explanation, the CEO gave the plaintiff ninety-days notice that its long-standing staffing contract with the hospital was being terminated. Two days later, the Palm Beach Post published an article that reported Clovix, a Wellington-based group of doctors, had recently made a bid to take over medical services at the Palm Beach County Jail. The doctor was the spokesperson for Clo-vix. The plaintiff had previously been unaware of Clovix, the jail contract, or the doctor’s involvement.

That day, the plaintiff wrote to the doctor, reminding him of the restrictive covenants in his contract and his fiduciary obligations to the company. Believing the doctor was actively engaged in negotiating a contract with Wellington, the plaintiff promptly demanded that he “immediately cease” such activities. The hospital was also given written notice of the restrictive covenants, and was asked to “cease and desist aiding or encouraging [the doctor] to violate the foregoing restrictive covenants.”

Over the next month, the plaintiff received information that the doctor was acting inconsistently with his role as medical director. The doctor gave notice of his resignation, but on July 29, 2004, the plaintiff terminated the doctor’s contract for cause. The plaintiff also notified the hospital that the restrictive covenant in the doctor’s 2003 employment agreement prohibited him from working at Wellington after termination of the plaintiffs contract. Within days of those letters, the plaintiffs Vice-President was told that the doctor had offered positions with a new competitor to all of the plaintiffs Wellington-based physicians.

Before the transition occurred, and prior to the end of the ninety-day notice period, the CEO rescinded the termination of the plaintiffs contract. That action resulted from a call made by the plaintiffs parent company to the CEO’s boss, a senior Vice-President at Wellington. The CEO was instructed to correct the situation. However, the CEO wanted the doctor to remain as the emergency department medical director so he conditioned the plaintiffs reinstatement on rehiring the doctor.

The plaintiff proposed a new employment agreement with the doctor, which he signed on August 18, 2004. That contract contained extensive new provisions, which included the doctor’s duty to protect and preserve the relationship between the plaintiff and the hospital and other physicians who worked for the plaintiff. It also required the doctor to provide written reports of meetings, problems, and discussions bearing on those relationships. The 2004 employment agreement contained a restrictive covenant emphasizing the doctor’s duty of loyalty and a two-year non-compete clause, which prohibited him from working at Wellington or interfering with physician relationships during the noncom-pete period.

The noncompete clause provided:

7. Restricted Activities: You acknowledge that an essential part of this Agreement from Our perspective is that You are to work in a cooperative fashion with Us and for You not to pursue the Emergency Department staffing agreement with Wellington Regional Medical Center under any circumstances during the term of this Agreement and for two (2) years thereafter .... and You agree not to negotiate a contract to perform or perform Services at any hospital or Facility with whom We or our Affiliate [Team Health] is actively negotiating an agreement for the performance of Services. During this Agreement and for two years after it ends, You also agree not to do anything competitive or adverse to Us or which would adversely affect Our relationship with any hospital, physician or person with whom We contract, any other entity or Our employees.

Paragraph 8 provided for enforcement of the Agreement through an injunction.

Approximately a year later, the Wellington CEO notified the plaintiff that its contract would terminate on October 31, 2005, unless other contractual arrangements were made. The CEO admitted he discussed the decision with the doctor although he could not recall the extent of their discussions. The doctor never reported those discussions to the plaintiff. On November 1, 2005, another provider took over Wellington’s emergency department staffing with the doctor at the helm, never missing a shift in the transition.

The plaintiff filed suit soon thereafter to enforce the 2004 employment agreement, alleging the doctor had secretly been working with the new provider to induce Wellington to replace the plaintiff. During discovery, the CEO took full responsibility for the decision to replace the plaintiff with the new provider, insisting the doctor had not been involved.

The plaintiffs theory was that the doctor and new provider played a significant role, culminating in the termination of the plaintiffs contract. The Second Amended Complaint named the doctor and the new provider as defendants. The plaintiff alleged claims for breach of the restrictive covenants in the 2004 employment agreement, conspiracy, and breach of fiduciary duty. The plaintiff requested injunctive relief, damages, and attorneys’ fees against the doctor. The plaintiff alleged claims for conspiracy, aiding and abetting the doctor’s breach of fiduciary duty, and tortious interference with a business relationship against the new provider, seeking damages and injunctive relief.

The defendants moved for summary judgment on the Amended Complaint in 2007. A predecessor judge denied the motion. In early 2008, the case was transferred to the Complex Litigation Unit and assigned to a successor judge.

The defendants again moved for summary judgment. Although the plaintiff did not file a written cross-motion, counsel argued in its response and at the hearing that the plaintiff was entitled to partial summary judgment on liability on the breach of fiduciary duty, breach of contract, and tortious interference claims. After hearing extensive argument, and over the plaintiffs objection, the trial court granted the defendants leave to file a reply memorandum. In lieu of a reply, however, the defendants filed a lengthy, substantive proposed order. The court subsequently permitted additional post-hearing memo-randa.

The day before those submissions were due, the court entered an order simply denying the motion. Approximately three weeks later, the defendants moved for clarification. When the pending motion was brought to the court’s attention, it explained that disputed issues of fact precluded summary judgment.

Five weeks later, without notice or any further hearing, the court entered a new order “revisiting” its denial of summary judgment, and granting final summary judgment for the defendants. The plaintiff timely appealed, and moved to disqualify the judge from post-judgment proceedings. This appeal was held in abeyance during the pendency of the disqualification proceedings. The disqualification issue became moot as a result of an administra-five order that reassigned the cases to a new judge.

On appeal, the plaintiff argues the trial court erred in granting summary judgment because genuine issues of fact remained to be determined by a jury. The defendants respond that there were no disputed facts, only unsubstantiated inferences. We agree with the plaintiff—and the trial court’s original conclusion-that summary judgment should have been denied.

We have de novo review of this summary judgment. Gomez v. Fradin, 41 So.3d 1068, 1071 (Fla. 4th DCA 2010).

[Ejvidence that raises an issue of material fact, conflicts, permits different reasonable inferences, or tends to prove issues should be submitted to the jury. In other words, “[a] motion for summary judgment should not be granted if the record reflects the existence of genuine issues of fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist.”

Briggs v. Jupiter Hills Lighthouse Marina, 9 So.3d 29, 31 (Fla. 4th DCA 2009) (quoting Walter T. Embry, Inc. v. LaSalle Nat’l Bank, 792 So.2d 567, 568 (Fla. 4th DCA 2001)).

It is well-established that “if different inferences can be reasonably drawn from the uncontroverted facts, then summary judgment is improper as a matter of law.” Balsamo v. Gruppo Ceramiche Ricchetti, S.P.A., 862 So.2d 812, 814 (Fla. 4th DCA 2003) (citing Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996)). This is a case where those inferences can be drawn.

Perhaps the most significant evidence concerned the noncompete provisions of both employment agreements and the doctor’s involvement with Clovix to perform services at the jail, his close communications with the Wellington CEO, the withdrawal of the 2004 termination of the plaintiff conditioned upon the doctor being rehired, and the ultimate continuation of the doctor’s services despite the termination of the plaintiffs contract in 2005. A jury could glean from these facts that the defendants collaborated to terminate the plaintiffs contract while maintaining his employment at the hospital.

One significant piece of evidence was an email from the new provider to the doctor for his “approval” of its proposal to Wellington. A jury might find that the doctor had a fiduciary duty to disclose this information to the plaintiff, and that his failure to do so breached that duty. See Capital Bank v. MVB, Inc., 644 So.2d 515, 520 (Fla. 3d DCA 1994).

The plaintiff argues that the restrictive covenants were designed to protect its substantial relationship and ongoing goodwill with Wellington; the substantial investments (both monetary and specialized training) it made in the doctor; the confidential, proprietary, and trade secret information that was shared with the doctor; and the plaintiffs relationships with its employees. It further argues that the facts support inferences to prove the various claims alleged.

It is neither our role nor that of the trial court to make those factual determinations. That role belongs to the fact finder. In this case, that fact finder is the jury. The trial court erred when it failed to limit its ruling to whether there were genuine issues of fact, and undertook the role of fact finder.

The plaintiff makes two additional arguments: (1) the trial court erred in finding an accord and satisfaction; and (2) the plaintiff was denied due process under Local Rule 7. We agree that the trial court improperly used the defense of “accord and satisfaction” as a basis for summary judgment because the defendants waived the defense by not raising it in their Answer. Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 923 (Fla. 2d DCA 2000). We need not reach the due process argument as the existence of genuine issues of material fact defeat the defendants’ motion for summary judgment.

Reversed.

STEVENSON and CIKLIN, JJ., concur.


text:
    Larry BENJAMIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1832.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Philip J. Massa, Regional Counsel, and Louis G. Carres, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The issue presented in this case is whether appellant’s convictions for lewd or lascivious molestation and lewd or lascivious conduct violate double jeopardy. Because the charges involved a single criminal episode, and the statutory provisions involve the same elements under the Blockburger test, we hold that they violate double jeopardy and reverse.

Appellant was charged by information with four counts. This appeal involves only two. Count III of the information alleged a violation of section 800.04(5)(a), Florida Statutes, in March 2005 when appellant “did intentionally touch in a lewd or lascivious manner the buttocks, or the clothing covering them, of [J.B.], a person 12 years of age or older but less than 16 years of age.” Count IV alleged a violation of section 800.04(6)(a), Florida Statutes, that on the same date, appellant “did intentionally touch [J.B.], a person under 16 years of age, in a lewd or lascivious manner by rubbing his genital area against her body.” The two counts arose out of one incident, where J.B. was sleeping at her aunt’s house, when appellant, her aunt’s husband, came into her room, lay down on the bed, and started rubbing her backside and buttocks with his hand. He then started a grinding motion against J.B.’s back and buttocks. She believed he was grinding her with his private parts, but she never saw his genitals. After this went on for some period of time, he got up and left the room.

At the conclusion of the trial, appellant was convicted of counts III and IV. Appellant was sentenced to a fifteen-year prison sentence on count III and to fifteen years of sex offender probation on count IV, consecutive to his sentence on Count III. He appeals these sentences.

The Fifth Amendment “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Because double jeopardy issues involve purely legal determinations, the standard of review is de novo. See Trotter v. State, 825 So.2d 362, 365 (Fla.2002).

On appeal, appellant claims that his convictions under both sections 800.04(5)(a) and 800.04(6)(a) for conduct against the same victim during the same episode are duplicative and violate double jeopardy. Section 800.04, Florida Statutes, defines various lewd or lascivious offenses under Florida law. Subsection (5)(a) defines lewd or lascivious molestation, providing in pertinent part as follows: “A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.” § 800.04(5)(a), Fla. Stat. (2004). Subsection (6)(a) defines lewd or lascivious conduct, providing that a person who “[ijntentionally touches a person under 16 years of age in a lewd or lascivious manner ... commits lewd or lascivious conduct.” § 800.04(6)(a), Fla. Stat. (2004).

State v. Paul, 934 So.2d 1167 (Fla.2006), receded from in part by Valdes v. State, 3 So.3d 1067 (Fla.2009), controls the result in this case. In Paul, the defendant had touched the victim in the genital area over the clothing and kissed the victim on the neck while in the living room. For the episode in the living room, the defendant was convicted of lewd and lascivious molestation under section 800.04(5)(a) for touching the victim’s genitals, and lewd and lascivious conduct under section 800.04(6)(a) for kissing the victim’s neck. Id. at 1170, 1173.

In Gordon v. State, as cited in Paul, our supreme court explained: “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” 780 So.2d 17, 19 (Fla.2001), receded from in part by Valdes (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). If there is no clear “legislative intent to authorize separate punishments for two crimes” then a court employs the use of the Blockburger test “to determine whether separate offenses exist.” Id. at 19-20. Finding no clear statement of legislative intent in its review of section 800.04, the Paul court applied the codified Blockburger analysis set forth in section 775.021. Paul, 934 So.2d at 1172.

Noting that the Blockburger test applies to crimes occurring in only one criminal transaction or episode, the Paul court explained that the first step is to review whether there was one criminal episode or multiple episodes. Id. In determining whether offenses occurred during a single criminal episode, courts must “look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a temporal break between offenses.” Id. at 1172-73 (citation and internal quotations omitted). A court must then “apply the Blockburger test to each criminal episode to determine whether multiple punishments are authorized.” Id. at 1173. The Blockburger “same elements” test “prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses.” Id. at 1172. Under the “same elements” test, each offense is considered separate “ ‘if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced, at trial.’” Id. at 1173 (quoting § 775.021(4)(a), Fla. Stat. (2005)) (emphasis in Paul).

In reference to offenses under sections 800.04(5)(a) and (6)(a), the Paul court explained:

In comparing the elements of sections 800.04(5)(a) and 800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section 800.04(6)(a)(l) defines “lewd or lascivious conduct” as any intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999). In other words, any violation of subsection (5)(a), which prohibits the lewd touching of particular body parts of a person under sixteen years of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true — that (6)(a)(l) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations.

Id. at 1173-74 (emphasis in original). The court concluded that Paul could not be convicted of both a violation of section 800.04(5)(a) and section 800.04(6)(a)(l) for the two acts in the living room.

Applying the analysis to this case, we conclude that the two charges arose out of one criminal episode. Both acts were performed on one victim in the same location and with practically no temporal separation. See Paul. Furthermore, the “same elements” test establishes that appellant cannot be convicted under both section 800.04(5)(a) and section 800.04(6)(a) for conduct in the same criminal episode. Id. at 1173-74. Therefore, his conviction and sentences for both crimes violates double jeopardy.

When dual convictions of the same degree are found to violate double jeopardy, the proper remedy is to “vacate the conviction and sentence on one of those counts.” Binns v. State, 979 So.2d 439, 442 (Fla. 4th DCA 2008). We therefore reverse and remand with instructions that the trial court vacate the conviction and sentence on either count III or count IV.

POLEN and GERBER, JJ., concur.

      . He was also convicted on count II involving a different victim. His sentence on that count was fifteen years in prison, and the sentence on count III was consecutive to the sentence on count II. Probation on count IV was consecutive to both prison sentences.

      . The 2004 version of the statute was in effect until August 31, 2005. Because the instant case involves a March 2005 incident, the 2004 statute is applicable.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    Owin DRUMMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2896.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Rehearing Denied Jan. 18, 2012.
    Ricardo Corona, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011), and cases cited. See also Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: SHEPHERD, J.

text:
    DTRS INTERCONTINENTAL MIAMI, LLC, etc., Appellant, v. A.K. GIFT SHOP, INC., etc., Appellee.
    No. 3D11-1552.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Rehearing Denied Jan. 25, 2012.
    Hunton & Williams, and Charles Julin, Barry R. Davidson, Thomas R. Julin and Anna Lazarus, Miami, for appellant.

      Gary S. Glasser, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal by DTRS Intercontinental Miami, LLC, the owner of a hotel located in Miami, Florida, from an order denying it immediate possession of commercial space in the hotel leased to A.K. Gift Shop, Inc., entered upon the failure of A.K. Gift Shop to comply with an “Agreed Order Directing Tenant to Pay Rent Into Registry of Court Pursuant to § 83.232, Florida Statutes.” The order, signed by the trial court on April 5, 2011, and filed with the clerk on April 7, 2011, required A.K. Gift Shop to deposit specified rent into the court registry within five days of its entry, exclusive of weekends and holidays. Counsel for A.K. Gift Shop claimed he did not receive the order until April 13, 2011, one day after the deadline for compliance if calculating from the April 7 filing date of the order. The trial court reasoned that because DTRS Intercontinental provided envelopes for the court to send the agreed orders to counsel, it tacitly agreed the orders would not take effect until received by the parties. This was error.

Florida Rule of Civil Procedure 1.080(h)(1) provides, “A copy of all orders ... shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment.” However, subdivision (h)(3) of the rule states, “This subdivision is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.” The dispute in this case revolves around whether the trial court timely transmitted the order to counsel. Rule 1.080(h)(3), however, makes the dispute irrelevant, as the order was effective on April 5, 2011, and any alleged failure of the trial court to transmit the order did not excuse A.K. Gift Shop’s duty to comply therewith. See Phoenix Holding, LLC v. Martinez, 27 So.3d 791, 792 (Fla. 3d DCA 2010) (declining to set aside judicial sale where mortgagors contended they were served at the wrong address with a copy of the final judgment on the basis that Rule 1.080(h)(3) is directory and the trial court’s failure to comply with Rule 1.080(h) does not affect the order or judgment or its finality). Moreover, the record reflects A.K. Gift Shop did not deposit the specified rent into the court registry until April 19, 2011, more than five days after the date by which even A.K. Gift Shop’s counsel contends he received the order.

Section 83.232(5), Florida Statutes (2011), provides, “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” In Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So.3d 811, 812 (Fla. 3d DCA 2010), this court confirmed that trial courts “have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made.” We further stated, “[T]he law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.” Id. at 812 n. 1.

Under the plain language of section 83.232(5), DTRS Intercontinental is entitled to an immediate writ of possession. See id.; see also Poal Wk Taft, LLC v. Johnson Med. Ctr. Corp., 45 So.3d 37 (Fla. 4th DCA 2010); Stetson Mgmt. Co. v. Fiddler’s Elbow, Inc., 18 So.3d 717 (Fla. 2d DCA 2009); 214 Main St. Corp. v. Tanksley, 947 So.2d 490 (Fla. 2d DCA 2006).

Reversed and remanded for entry of an immediate writ of possession.

      . In contrast, a trial court errs in refusing to vacate orders that are not mailed to the parties where it affects a party's right to appeal. See, e.g., Bien-Aime v. MSRH Board Walk, LLC, 41 So.3d 1117, 1117 (Fla. 4th DCA 2010); Boelter v. Boelter, 39 So.3d 1282, 1284 (Fla. 2d DCA 2010); Hialeah Hotel, Inc. v. Woods, 778 So.2d 314, 316 (Fla. 3d DCA 2000); Bennett v. Ward, 667 So.2d 378, 380 n. 3 (Fla. 1st DCA 1995).

      . Counsel for A.K. Gift Shop asserts he attempted to deposit money into the court registry on April 14, 2011, the day after he says he received the April 5 order, but the clerk did not accept the deposit because it was not accompanied by the proper filing fee. Neither A.K. Gift Shop nor its counsel provides any explanation why another five days elapsed before the deposit finally was made.


text:
    Heribel CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2980.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Rehearing Denied Jan. 19, 2012.
    Heribel Cruz, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011).


author: WELLS, Chief Judge. EMAS, J.

text:
    D.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3001.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Affirmed. See E.P. v. State, 997 So.2d 1240 (Fla. 3d DCA 2008) (citing Jackson v. State, 791 P.2d 1023 (Alaska Ct.App. 1990)(“in the case of transportation in a police vehicle, however, or in the analogous circumstances here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person”), In re Kelsey, 243 Wis.2d 422, 626 N.W.2d 777 (2001), and State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993)).

EMAS, J.

specially concurring.

I concur in affirming the trial court’s order denying the motion to suppress, but write to explain my reasons for doing so.

The relevant facts are not in dispute: A patrol officer in a marked police car observed D.O. walking with a group of five other juveniles. It was a school day, during school hours, and the juveniles were not walking in the vicinity of a school, carrying any books or book bags, or wearing any clothing that would readily identify them as students.

The officer approached the group and began to question them about their age and why they were not in school. After determining that D.O. was sixteen years old and should have been in school, the officer prepared to take D.O. back to school (or to his home, if he was suspended from school). Before placing D.O. in the back of the patrol car, the officer conducted a pat-down search of D.O.’s outer clothing. The officer did not have D.O.’s consent to do so, and the officer acknowledged that he had no reasonable suspicion to believe that D.O. was armed. The officer testified that he conducted a pat-down search because it is department policy to pat down any person before placing them in a patrol car, for officer safety. Upon conducting the pat down, the officer felt a “bulge,” which D.O. told the officer was a firearm. The officer retrieved the firearm and D.O. was charged with carrying a concealed firearm.

D.O. filed a motion to suppress, arguing that the existence of a departmental policy does not provide the necessary basis to justify a pat-down search of a juvenile who is being transported based on truancy, which is not a criminal offense. D.O. argues that, because the officer had no reasonable suspicion that D.O. was armed, the pat-down search violated D.O.’s Fourth Amendment rights, and the firearm must be suppressed.

The trial court denied the motion to suppress, and D.O. entered a plea reserving the right to appeal the denial of this dispositive motion.

Thus, the issue presented is this: upon lawfully taking a juvenile truant into custody pursuant to its duty under section 984.13, Florida Statutes, may a police officer conduct a limited pat-down search for weapons, even in the absence of reasonable suspicion to believe the juvenile is armed, before placing the juvenile in a police vehicle for the purpose of delivering the juvenile without unreasonable delay to the appropriate school system site?

In order to properly analyze this particular search, we must first review the relevant statutory scheme. Chapter 984 (entitled “Children and Families in Need of Services”) creates a broad array of services available to children and families in need of services and imposes a variety of duties upon state agencies to achieve several important goals. This chapter includes providing services for child runaways, children locked out of their home, children beyond the control of their parents, and habitual truants. See § 984.03(9), (25), and (27), Fla. Stat. (2011).

Section 984.13 was created to authorize and obligate law enforcement officers to serve as the initial contact point for children who may be in need of these services. That section provides:

(1) A child may be taken into custody:
(a) By a law enforcement officer when the officer has reasonable grounds to believe that the child has run away from his or her parents, guardian, or other legal custodian.
(b) By a law enforcement officer when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his or her parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site. For the purpose of this paragraph, “school system site” includes, but is not limited to, a center approved by the superintendent of schools for the purpose of counseling students and referring them back to the school system or an approved alternative to a suspension or expulsion program. If a student is suspended or expelled from school without assignment to an alternative school placement, the law enforcement officer shall deliver the child to the parent or legal guardian, to a location determined by the parent or guardian, or to a designated truancy interdiction site until the parent or guardian can be located.
(c) Pursuant to an order of the circuit court based upon sworn testimony before or after a petition is filed under s. 984.15.
(d) By a law enforcement officer when the child voluntarily agrees to or requests services pursuant to this chapter or placement in a shelter.
(2) The person taking the child into custody shall:
(a) Release the child to a parent, guardian, legal custodian, or responsible adult relative or to a department-approved family-in-need-of-services and child-in-need-of-services provider if the person taking the child into custody has reasonable grounds to believe the child has run away from a parent, guardian, or legal custodian; is truant; or is beyond the control of the parent, guardian, or legal custodian; following such release, the person taking the child into custody shall make a full written report to the intake office of the department within 3 days; or
(b) Deliver the child to the department, stating the facts by reason of which the child was taken into custody and sufficient information to establish probable cause that the child is from a family in need of services.
(3)If the child is taken into custody by, or is delivered to, the department, the appropriate representative of the department shall review the facts and make such further inquiry as necessary to determine whether the child shall remain in custody or be released. Unless shelter is required as provided in s. 984.14(1), the department shall:
(a) Release the child to his or her parent, guardian, or legal custodian, to a responsible adult relative, to a responsible adult approved by the department, or to a department-approved family-in-need-of-services and child-in-need-of-services provider; or
(b) Authorize temporary services and treatment that would allow the child alleged to be from a family in need of services to remain at home.

§ 984.13 Fla. Stat. (2011).

A reading of the entire section places into proper context the purpose and intent of this statutory provision, as well as the role of law enforcement officers in carrying out its mandates. As can be seen, law enforcement’s role is not to investigate criminal activity or apprehend suspects. Rather, it is to promote the safety and protection of children and families in need of services, and to ensure that individuals in need are provided with these services as expeditiously as possible. The Florida Legislature expressed this intent in section 984.02(1), Florida Statutes:

(1) GENERAL PROTECTIONS FOR CHILDREN.
It is a purpose of the Legislature that the children of this state be provided with the following protections:
(a) Protection from abuse, neglect, and exploitation.
(b) A permanent and stable home.
(c) A safe and nurturing environment which will preserve a sense of personal dignity and integrity.
(d) Adequate nutrition, shelter, and clothing.
(e) Effective treatment to address physical, social, and emotional needs, regardless of geographical location.
(f) Equal opportunity and access to quality and effective education which will meet the individual needs of each child, and to recreation and other community resources to develop individual abilities.
(g) Access to preventive services.
(h) An independent, trained advocate when intervention is necessary and a skilled guardian or caretaker in a safe environment when alternative placement is necessary.

Law enforcement officers serve as the eyes and ears of our community and are often the first to encounter individuals in the very situations addressed in Chapter 984. Law enforcement, in a very real sense, fulfills a role as a “community caretaker” when they encounter truants, child runaways, children locked out of their home, and children beyond the control of their parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian, or return the child to school or the appropriate agency that can provide the services needed in light of the individual circumstances.

The United States Supreme Court first recognized the community caretaker doctrine in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Cady, police officers found an unoccupied and disabled car that had been involved in an accident and left on the highway, posing a potential traffic hazard. The officers learned that the person who had been driving the vehicle was a police officer, that the officer was intoxicated and that his service revolver was still in the vehicle. Following a standard police procedure, and in order “to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands,” the officers searched the trunk of the vehicle for the gun. Id. at 443, 93 S.Ct. 2523. During the search of the trunk, the officers found evidence of an unrelated homicide. In holding the search valid, the Court noted the various roles served by state and local law enforcement:

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id. at 441, 93 S.Ct. 2523 (emphasis added).

The community caretaker doctrine has been followed in Florida. See e.g., Ortiz v. State, 24 So.3d 596 (Fla. 5th DCA 2009) (observing that “[cjaretaking functions are performed by police officers because we expect them to take those steps that are necessary to ‘ensure the safety and welfare of the citizenry at large’ ” (quoting 3 La-Fave, Search & Seizure (4th ed.2004), § 5.4(c), pp. 201-02)). See also Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1979); Shively v. State, 61 So.3d 484 (Fla. 2d DCA 2011); and Castella v. State, 959 So.2d 1285 (Fla. 4th DCA 2007). Cf. Riggs v. State, 918 So.2d 274, 280 n. 1 (Fla.2005) (acknowledging the doctrine but declining to consider its application to a search within a home based upon Cady’s observance of a “constitutional difference between searches of and seizures from houses and similar structures and from vehicles”).

It is within this framework, and in consideration of these circumstances, that we must determine the “reasonableness” of the officer’s conduct in patting down the juvenile truant before transporting him, by police car, back to his school.

We first must note, of course, that truancy is not a crime, but rather an acknowledgment of compulsory education laws designed to ensure children under a certain age are in school. See § 1003.26-.27, Fla. Stat. (2011). See also L.C. v. State, 23 So.3d 1215 (Fla. 3d DCA 2009). But while truancy is not a criminal offense, the public relies in large part upon police officers on the street to enforce our truancy laws. Section 984.13(l)(b) authorizes a police officer to take into custody a child whom (s)he has reasonable grounds to believe is absent from school without permission. The statute further provides that the police officer shall “without unreasonable delay,” deliver the child to the appropriate school system site or, if the child currently is suspended from school, to the child’s parent or legal guardian or a designated truancy interdiction site until the parent or legal guardian is located. A police officer not only has the authority, but also the legal obligation, to take the juvenile into “custody” (although not the type of custody associated with an arrest for a criminal offense) and to transport the juvenile to school, home, or to his parent without unreasonable delay. See K.A.C. v. State, 707 So.2d 1175, 1177 (Fla. 3d DCA 1998) (observing that the juvenile was stopped by police “because of the possibility that he was truant, in which case the officers had a legal duty to transport him to school”).

Labeling the encounter in this case as a “stop and frisk,” is incomplete and somewhat misleading, given the unique character of truancy enforcement. The Court in Terry approved a limited pat-down search for weapons where a law enforcement officer lawfully and temporarily has detained an individual to investigate criminal activity, and has reasonable suspicion to believe that individual may be armed. By contrast, we are confronted here with a police officer who has probable cause to believe the juvenile is truant, but has neither probable cause to believe the juvenile committed any crime, nor reasonable suspicion to believe the juvenile is armed. More to the point, in a typical Terry stop, the officer is merely conducting a temporary investigatory detention on the street. The encounter in our case has moved from the street to the police vehicle where the juvenile will be seated behind, and in close proximity to, the officer. This is a significant distinction when assessing the reasonableness of the officer’s actions in light of the circumstances facing him. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the United States Supreme Court upheld, against a Fourth Amendment challenge, an officer’s search of an individual incident to a lawful arrest. The Court cited two historical rationales for upholding the reasonableness of such a search: 1) the need to discover weapons on the arrestee and disarm him before transporting the arrestee to the police station; and 2) the need to discover contraband or evidence of the crime for which he has been placed under arrest. Id. at 234, 94 S.Ct. 467.

Notwithstanding the fact that D.O. had not committed a crime and was not being placed under arrest, he nonetheless was being taken into custody and being transported by the officer in a police vehicle. Therefore the first rationale for justifying searches incident to arrest — officer safety — is fully applicable to our case. While one may presume it more likely that such an attack would be committed by a criminal suspect than a juvenile truant, officer safety is still a significant and weighty concern in both scenarios.

The encounter in this case thus defies classification as either a 1) search incident to arrest pursuant to a full custodial arrest or 2) a pat-down search pursuant to a valid temporary detention and reasonable suspicion that the person is armed; rather, the encounter is a hybrid bearing certain characteristics and underpinnings of each. We see this by having considered the “seizure” (full custody but not a criminal arrest) separately from the “search” (limited pat-down).

Our analysis nevertheless must be guided by the same general principles espoused in Terry:

[W]e deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizure.
In order to assess the reasonableness of [the officer’s] conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.” Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).

Terry, 392 U.S. at 20-21.

The Court elaborated on these principles in Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977):

The touchstone of our analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). Reasonableness, of course, depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Thus we apply a balancing test, considering and weighing the public interests and individual rights at stake.

Public Interests

1.Law enforcement officers have been specifically designated by statute as the individuals obligated to carry out the important governmental function of ensuring compliance with our truancy laws and delivering juveniles to their school or their parent when the juvenile is absent from school without authorization. Because of this statutory duty, officers do not have the option of obtaining consent from the juvenile to conduct a pat-down and, in the absence of such consent, leaving the juvenile where they found him. Stated another way, if we require some level of articu-lable suspicion before permitting a pat down of a truant who is in the lawful custody of law enforcement, an officer will be forced to choose between his own personal safety and fulfilling his role as a community caretaker under Chapter 984.

2. Law enforcement must carry out this duty “without unreasonable delay” so as to minimize the amount of time a child is absent from school. If we prohibit law enforcement from conducting a pat down of a juvenile truant before he is placed in a patrol car, additional delay likely will be caused by the need to call another officer (or second patrol car) to the scene to ensure officer safety during the transportation process.

3. Arguably the most significant governmental interest is officer safety, which the United States Supreme Court has characterized as “both legitimate and weighty.” Maryland v. Wilson, 519 U.S. 408, 412, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). I do not think it unreasonable for a police officer to pat down an individual when the officer is duty-bound to transport the individual in his police vehicle. Out on the street, the police officer is in control of the encounter and able to defend himself against an individual who may be armed. Once in a police car, however, this relative control over the individual diminishes or evaporates altogether. The officer’s back is to the individual, and the officer’s full attention is on the road. Under these circumstances, the officer has exposed himself to a significantly increased risk of harm from a person with access to a weapon.

4. In many circumstances, the police officer will be transporting a juvenile back to a school campus. There is a strong governmental interest in ensuring that our school campuses and classrooms are weapons-free environments, and that our schoolchildren are safe (and feel safe) while at school. Permitting a limited pat-down search of juvenile truants would further that interest.

Individual Rights

1. Balanced against the public interest is the invasion of personal security that accompanies a pat-down search. Such a search has been described as a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” See Terry, 392 U.S. at 17, 88 S.Ct. 1868. Some may contend that Terry’s description no longer represents the general modern view. Terry was decided more than forty years ago, before such police-citizen encounters were captured routinely on video and made easily accessible on the internet, and perhaps the proliferation of such videotaped encounters has desensitized the general public to the indignity of such encounters. Even if this may accurately describe an evolving view of the general public, one cannot ignore or even lightly regard the individual embarrassment, indignity and stigma that is caused to the person subjected to such a search, typically held on the street, for any curious onlooker to see.

2. Moreover, a pat-down search is undoubtedly more intrusive, frightening and embarrassing where the subject of the search is a juvenile as opposed to an adult.

3. Authorizing a pat-down search of juvenile truants without reasonable suspicion to believe the juvenile is armed may lend itself to abusive or pretextual practices by police.

4. Establishing a bright-line rule permitting such pat-down searches may result in searches of even elementary-school truants. However, I do not intend that a pat-down search be required in every instance, but merely that police officers be authorized, in their discretion, to conduct a limited weapons search under these particular circumstances.

Weighing the governmental interests against the individual rights, I believe the balance should be struck in favor of permitting the search conducted in this case. In recognition of the individual interests, and to minimize its intrusiveness, the search must be limited in scope to a pat-down of the outer clothing of the juvenile, and limited in purpose to locating any weapons on the juvenile’s person.

Mention must be made of two decisions of this Court which have, to some extent, addressed the issue at bar. In E.P. v. State, 997 So.2d 1240 (Fla. 3d DCA 2008), we upheld, without further analysis, a pat-down search of a juvenile which “followed a Terry stop justified under section 984.13, Florida Statutes ... and justifiably preceded placing him in the police car for the purpose of taking him to school as the statute requires.” Id.

In L.C. v. State, 23 So.3d 1215 (Fla. 3d DCA 2009), we reversed the denial of a motion to suppress where the police officer, instead of conducting a limited pat-down search for weapons, performed a direct search of all L.C.’s pockets. Holding that such a search was unreasonable under the Fourth Amendment, we expressly “save[d] for another day the not inconsequential question whether [the officer] would have had the authority to perform a pat-down search of L.C.” Id. at 1220.

I believe that day has come, and we should plainly and explicitly hold that, upon lawfully taking a juvenile truant into custody pursuant to its duty under section 984.13, a police officer may conduct a limited pat-down search for weapons, even in the absence of reasonable suspicion to believe the juvenile is armed, before placing the juvenile in a police vehicle for the purpose of delivering the juvenile without unreasonable delay to the appropriate school system site.

      . The phrase “taken into custody” means “the status of a child immediately when temporary physical control over the child is attained by a person authorized by law, pending the child’s release, detention, placement, or other disposition authorized by law.” § 984.03(53), Fla. Stat. (2011).

      . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla. Stat. mon)

      . In recognizing these differences and striking a balance between the interests at stake, I conclude, infra, that a reasonable search under the circumstances is not a full search incident to arrest, but a less intrusive protective search limited in scope to a pat-down of the outer clothing of the individual and limited in purpose to discovering weapons on his person.

      . See K.A.C. v. State, 707 So.2d 1175 (Fla. 3d DCA 1998).

      . Other jurisdictions that have declined to permit a pat-down search under similar circumstances have noted that the offer of a ride was gratuitous and law enforcement was under no legal duty to transport the individual. See e.g., People v. Scott, 16 Cal.3d 242, 128 Cal.Rptr. 39, 546 P.2d 327 (1976). Cf. People v. Tobin, 219 Cal.App.3d 634, 638-39, 269 Cal.Rptr. 81 (1990) (upholding a pre-trans-port pat-down search where officer had a duty to remove the individuals from a position which was undeniably dangerous to themselves and to other members of the public).

      .Counsel for D.O. agreed at oral argument that the "alternative” of handcuffing a juvenile truant before placing him in the police vehicle would be more intrusive than a limited pat-down search for weapons. See Reynolds v. State, 592 So.2d 1082, 1088 (Fla.1992) (Barkett, J., concurring in part and dissenting in part) (observing "handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop” (quoting United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982))).

      .Courts in several other states have held that the need to transport a non-arrestee in a police vehicle justifies a limited pat-down search for weapons, even in the absence of a reasonable suspicion to believe the individual is armed. See e.g., People v. Queen, 369 Ill. App.3d 211, 307 Ill.Dec. 400, 859 N.E.2d 1077 (2006); People v. Tobin, 219 Cal.App.3d 634, 269 Cal.Rptr. 81 (Cal.App.1990); Michigan v. Otto, 91 Mich.App. 444, 284 N.W.2d 273 (1979); State v. Lombardi, 727 A.2d 670 (R.I.1999).

      . In fact, one might argue that the existence of easy access to these virtual encounters cause greater indignity and embarrassment to the individual whose experience with the police can be seen not only by a limited number of curious onlookers but also by an unlimited number of curious onliners as well.

      . I do not address whether such a limited pat-down search is reasonable under the Fourth Amendment where the officer is under no duty to transport the individual.


text:
    Martin Edward MESSIER, Appellant, v. Lesley J. MARTIN-MESSIER, Appellee.
    No. 3D10-2777.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Rehearing Denied Feb. 2, 2012.
    Greenman & Manz and David Manz, Marathon, for appellant.
    Lesley J. Martin-Messier, n/k/a Lesley Salinero, in proper person.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal from an order denying the former husband’s motion for rehearing on the trial court’s denial of his Florida Rule of Civil Procedure 1.540(b) motion and supplemental petition for modification of time-sharing, enforcement of mediation agreement and final judgment, determination of parent plan, and child support.

We dismiss the former husband’s appeal of the order denying the former husband’s Rule 1.540(b) motion for lack of jurisdiction. See Fla. R.App. P. 9.130(5) (“Motions for rehearing directed to these [non-final] orders will not toll the time for filing a notice of appeal.”). We reverse the order of the trial court which denied the former husband’s request for child support for the minor child, Dakota Messier, and remand for a calculation and award of child support for the period from September 2010 through the date of Dakota’s high school graduation. See § 61.30, Fla. Stat. (2010); § 743.07(2), Fla. Stat. (2010); Wattenbarger v. Wattenbarger, 767 So.2d 1172, 1173 (Fla.2000). We affirm all other points on appeal.


text:
    Jorge L. DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5113.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Rehearing Denied Feb. 10, 2012.
    Jorge L. Dominguez, Graceville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant is cautioned that filing future frivolous appeals or petitions from this lower court case involving post-conviction or other collateral challenges to his adjudication and/or sentence may result in sanctions, including an order barring pro se pleadings or other filings under State v. Spencer, 751 So.2d 47 (Fla.1999), and/or referral to prison officials for consideration of disciplinary procedures which may include loss of gain time. See §§ 944.279(1), 944.28(2)(a), Fla. Stat.

POLEN, HAZOURI and CIKLIN, JJ., concur.


author: GERBER, J.

text:
    Ernie Terrell STRAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-771.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Rehearing Denied Feb. 10, 2012.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant argues that the trial court erred in convicting him for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. He relies on our opinion in Boyd v. State, 17 So.3d 812 (Fla. 4th DCA 2009). In Boyd, we held that the double jeopardy clause precludes convicting a felon for both possession of a firearm and possession of ammunition when the possessions occur at the same time. Id. at 818 (interpreting section 790.23, Florida Statutes (2005)). The state, on the other hand, relying on Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000), argues that the defendant’s possession of the firearm and possession of the ammunition “were clearly separate in both time and space such as to be properly considered as two separate offenses.” Id. at 1228.

We agree with the defendant’s argument. Although the firearm and the ammunition were found at two separate times, the defendant’s possession of the firearm and the ammunition were not “clearly separate in both time and space.” Id. Rather, the defendant’s possession of the firearm and the ammunition consisted of “a single possession of more than one article.” Id. Therefore, the trial court erred in convicting the defendant for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon.

Because the defendant’s conviction for possession of a firearm by a convicted felon carries a three-year minimum mandatory sentence, see § 775.087(2)(a)l.r., Fla. Stat. (2009), we remand for the trial court to vacate the defendant’s conviction and sentence for possession of ammunition by a convicted felon and to correct the defendant’s scoresheet and judgment accordingly. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002) (“When dual convictions violate double jeopardy, the proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.”) (internal quotations and brackets omitted).

On the other two arguments which the defendant raises in this appeal, including his challenge to his conviction for tampering with a witness, we affirm without further discussion. However, we remand for the trial court to amend the defendant’s sentence for tampering with a witness to show that the sentence, which was to run consecutively to the sentence for possession of ammunition by a convicted felon, now shall run consecutively to the sentence for possession of a firearm by a convicted felon.

Affirmed in part, reversed in part, and remanded.

TAYLOR and DAMOORGIAN, JJ., concur.


author: FERNANDEZ, J.

text:
    Richard GOLDBLATT, individually and Valerie Goldblatt, individually, Appellants, v. C.P. MOTION, INC., a Florida Corporation, Appellee.
    No. 3D10-1848.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.

      Kasowitz, Benson, Torres & Friedman, LLP, and Lawrence D. Silverman, Miami, and Sandra J. Millor; Gerald J. Houlihan, Miami, for appellants.
    Carey Rodriguez Greenberg & Paul, LLP, and David P. Milian, Miami, and David M. Levine, for appellee.
    Before WELLS, C.J., and SUAREZ, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Richard and Valerie Goldblatt appeal a final judgment awarding appellee C.P. Motion, Inc. $4,969,339. The Goldblatts maintain, in part, that the final judgment award is invalid, as it is the product of an unenforceable liquidated damages clause. We agree and therefore reverse on this basis. We affirm the final judgment in all other respects.

In November of 1999, Richard Goldblatt and Raymond Weisbein created C.P. Motion, a business that specializes in the distribution of a medical device used in the treatment of joint injuries. During the course of business, C.P. Motion, with Richard Goldblatt and Valerie Goldblatt as personal guarantors, entered into an agreement with Real Lease, Inc. whereby Real Lease agreed to lease medical equipment to C.P. Motion in exchange for monthly lease payments.

Raymond Weisbein and Richard Gold-blatt terminated their business agreement in 2004. The parties subsequently negotiated and executed a settlement and release agreement. Pursuant to the agreement, C.P. Motion paid the Goldblatts $2.7 million in cash, paid $300,000 in periodic salary payments, and agreed to forgive $4 million in debt. C.P. Motion also promised to indemnify the Goldblatts from judgments and liabilities arising from their business relationship. In return, the Gold-blatts agreed to relinquish any ownership interest in C.P. Motion. The Goldblatts also agreed to a five-year restrictive covenant, which restricted the Goldblatts from conducting any business that competed with C.P. Motion. In the event that the Goldblatts breached the restrictive covenant, the parties negotiated a liquidated damage sum of $250,000 per breach.

The parties subsequently breached the terms of the agreement. The Goldblatts claim that C.P. Motion breached when it failed to indemnify them against a lawsuit by Real Lease, one of C.P. Motion’s creditors. C.P. Motion, on the other hand, claims that the Goldblatts breached the restrictive covenant when they solicited C.P. Motion’s clients.

Both parties brought suit and subsequently filed cross motions for summary judgment. In his motion, Richard Gold-blatt argued that the restrictive covenant was unenforceable as to its duration and that the liquidated damages clause was unenforceable as it amounted to an unconscionable penalty. C.P. Motion argued that the liquidated damages provision was enforceable as a matter of law. In her motion, Valerie Goldblatt argued that she should not be held liable for Richard Gold-blatt’s actions because she did not personally breach the restrictive covenant.

The trial court denied Richard Gold-blatt’s motion for summary judgment, holding that the liquidated damages clause was enforceable as a matter of law. The trial court granted C.P. Motion’s motion for summary judgment as to liability and denied Valerie Goldblatts motion for summary judgment. Following these rulings, C.P. Motion moved for summary judgment for damages under the liquidated damages clause. The trial court entered final judgment in the amount of $4,969,339 against the Goldblatts jointly and severally.

The entry of summary judgment in favor of the movant involves a question of law, subject to a de novo review on appeal. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082 (Fla.2005). To prevail on a motion for summary judgment, the movant must prove that there are no genuine issues of material fact. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

Chief among their issues on appeal, the Goldblatts challenge the enforceability of the liquidated damages clause in the settlement agreement. First, they argue that the liquidated damages clause is unenforceable because any damages that resulted from the contract breach were ascertainable at the time the contract was formed. Second, they argue that the liquidated damages clause results in nothing more than a penalty. We agree with the Goldblatts that the liquidated damages clause is unenforceable.

C.P. Motion correctly argues that Florida law is well settled that the parties to a contract may stipulate in advance the amount that is to be paid or retained as liquidated damages in the event of a contract breach. See Mineo v. Lakeside Village of Davie, LLC., 983 So.2d 20, 21 (Fla. 4th DCA 2008) (affirming the enforceability of a $60,000 liquidated damages clause). Although generally enforceable in Florida courts, such clauses may be held invalid where their purpose is to deter a breach. See Humana Med. Plan, Inc. v. Jacobson, 614 So.2d 520, 522 (Fla. 3d DCA 1992). In order to be enforceable, a liquidated damages clause must satisfy two conditions:

First, the damages consequent upon a breach must not be readily ascertainable. Second, the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages.

Lefemine v. Baron, 573 So.2d 326, 328 (Fla.1991).

The Goldblatts cite several compelling reasons why the liquidated damages clause is unenforceable due to a lack of ascertainable profits. First, they point to the fact that C.P. Motion had substantial industry experience, such that it was capable of forecasting any damages that might flow from their breach. In turn, C.P. Motion argues that the Goldblatts, who were equally knowledgeable in the industry, stipulated to the impossibility of ascertaining potential damages. This argument, however, is unconvincing.

The mere fact that the Goldblatts stipulated to an otherwise unenforceable liquidated damages clause does not automatically render the clause enforceable. Even where contracting parties stipulate that a liquidated damages clause is the product of the contracting parties’ inability to readily ascertain damages, the court can still invalidate the clause. For example, in North Beach Investments, Inc. v. Sheikewitz, 63 So.2d 498 (Fla.1953), the Florida Supreme Court addressed contract language similar to the one here, and stated the following:

This Court is committed to the doctrine that when the actual damages contemplated by the parties upon breach are susceptible of ascertainment by some known rule or pecuniary standard and the stipulated sum is disproportionate thereto, it will be regarded as a penalty. Such being the case, the corollary of the rule should be true, that is, that when the actual damages cannot be susceptible of ascertainment by some known rule or pecuniary standard under reasonable circumstances, the stipulated amount should be regarded as liquidated damages, and the parties should be bound by their covenants and the contract so made. The prime factor in determining whether such sum is a penalty or a forfeiture is whether the sum named is just compensation for damages resulting from the breach.

Id. at 499 (emphasis added).

Furthermore, although the parties claim that precise damages were not readily ascertainable, preciseness is not the legal standard. Rather, damages must be readily ascertainable, and they must compensate for damages resulting from the breach. There is little doubt that sophisticated business people with a long history in the industry could arrive at a standard or a more formulaic approach for calculating damages. For example, the parties could have agreed to arrive at damages for a breach by calculating a percentage of lost profits (of the specific lost client), or even by reclaiming any profits gained by the breaching party. The parties did neither.

Instead, the liquidated damages clause awarded the non-breaching party $250,000 per breach, regardless of what the actual harm was. This resembles a penalty or deterrent to the breaching party. Use of liquidated damages clauses to this end is never allowed. See Secrist v. Nat’l Serv. Indus., Inc., 395 So.2d 1280 (Fla. 2d DCA 1981) (stating liquidated damage provisions operating as a penalty are improper and not enforceable by courts). Where there is doubt as to whether a provision is a penalty or a proper liquidated damages clause, “the tendency of the courts is to construe a provision for payment of an arbitrary sum a penalty rather than one for liquidated damages.” See T.A.S. Heavy Equip., Inc. v. Delint, Inc., 532 So.2d 23, 25 (Fla. 4th DCA 1988). Additionally, where a court finds that the provision is a penalty, the plaintiff may only recover the actual damages pled and proven at trial. See Secrist, 395 So.2d at 1282 (citing Poinsettia Dairy Prods. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936)).

Here, the award of $250,000 per breach would be the same regardless of what harm (if any) actually befell the non-breaching party. It is therefore conceivable that the non-breaching party could collect more in liquidated damages than the actual harm suffered. Thus, the liquidated damages sum has the potential of conferring a windfall to the non-breaching party. This result is unacceptable and unenforceable as it constitutes an award that is disproportionate to the actual harm. See Coleman v. B.R. Chamberlain & Sons, Inc., 766 So.2d 427, 429 (Fla. 5th DCA 2000).

We thus conclude that the liquidated damages clause was unenforceable because the damages were readily ascertainable, and it constituted a penalty. Accordingly, we reverse the judgment award of $4,969,339 and remand for a proper determination of the actual damages. We affirm the final judgment in all other respects, including the trial court’s conclusion that the restrictive covenant was enforceable and that Valerie Goldblatt was jointly and severally liable.

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


text:
    GLOBETEC CONSTRUCTION, LLC, Appellant, v. CUSTOM SCREENING & CRUSHING, INC., Custom Crushing & Materials, Inc., Appellees.
    No. 3D11-1265.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Rehearing Denied Jan. 27, 2012.
    Erik W. Scharf and Wayne R. Atkins, Coconut Creek,; Victor M. Diaz, Jr., Miami, for appellant.
    Roy D. Wasson, Miami, and Annabel C. Majewski; Raul E. Garcia, Jr., Miami, for appellees.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

GlobeTec Construction, LLC, (“Globe-Tec”), a Florida limited liability corporation, appeals from an order denying its motion to compel arbitration based on an arbitration agreement to which its adversary in this litigation, Custom Screening and Crushing, Inc., and Custom Crushing and Material, Inc. (collectively “Custom”), is not a party. Under basic contractual principles, no agreement can bind a non-signatory, and for this reason we affirm the trial court’s denial. However, by the same token, where there is no contract between the parties there can be no suit for fraudulent inducement, and accordingly we remand this case with instructions to dismiss the underlying cause of action.

The predicate in this cause of action is a mining contract between two foreign companies, GlobeTec Panama, S.A. (“Panama”), and Minas y Agregados (“Minas”). A conflict in operations arose, and the companies are currently in arbitration in Panama per the terms of the contract. However, in an unusual twist, those companies are not the parties before this Court. Rather, Appellant in this case is GlobeTec, which formed Panama, and Ap-pellee is Custom, whose CEO formed Mi-nas.

Custom, while openly acknowledging that it is not a signatory to the contract between Panama and Minas, brought suit against GlobeTec for fraud in the inducement of the same contract. In response, GlobeTec moved to enforce the contract’s arbitration clause. The trial court denied the motion, noting that Custom was not a party to the contract and therefore could not be compelled to arbitrate by its terms. GlobeTec now appeals.

Despite GlobeTec’s creative attempts at persuasion, an arbitration agreement of the kind at issue here cannot be enforced against a non-party. E.g., Lopez v. Atlas One Fin. Group, LLC, 27 So.3d 164, 166 (Fla. 3d DCA 2010). It is axiomatic that GlobeTec, a non-signatory to the agreement, cannot compel Custom to arbitration, for Custom, also non-signatory, did not agree to the arbitration agreement. However, by the same reasoning, Custom’s cause of action for fraud in the inducement must fail. In an action for fraud in the inducement, the plaintiff must show that the fraudulent act induced the formation of contract between the parties. See, e.g., Lou Bachrodt Chevrolet, Inc. v. Savage, 570 So.2d 306 (Fla. 4th DCA 1990) (providing that elements of fraud in inducement include representation of material fact that is knowingly false and intentionally made to induce the other party to do an act from which he suffers damage); Phillips Chem. Co. v. Morgan, 440 So.2d 1292, 1296 n. 7 (Fla. 3d DCA 1983) (quoting from fn.16 in Excel Handbag Co. v. Edison Brothers Stores, Inc., 630 F.2d 379 (5th Cir.1980) holding that to rescind a contract on the grounds that it was procured by fraud, the courts of Florida have required proof that ... the fraudulent act induced the formation of the contract.). It is similarly axiomatic that where there is no contract between the parties by the plaintiffs own admission, he cannot possibly demonstrate inducement.

Affirmed and remanded with instructions for the trial court to dismiss the complaint.

      . We do not reach the question of whether Panama and Minas are subsidiaries of Globe-Tec and Custom, respectively,