text:
    SUN HARBOR HOMEOWNERS’ ASSOCIATION, INC., Appellant, v. Vincent BONURA, Appellee.
    No. 4D10-3038.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Rehearing Denied Sept. 7, 2012.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Marian A. Lindquist of Marian A. Lindquist, P.A., Wilton Manors, for appellant.
    Jay L. Farrow of Farrow Law, P.A., Davie, for appellee.
   DAMOORGIAN, J.

Sun Harbor Homeowners’ Association, Inc. (“Sun Harbor”) appeals a final judgment in favor of Vincent Bonura. We reverse.

Sun Harbor is a townhouse community, which has a “no dogs allowed” policy. Bonura owns a Sun Harbor townhouse where he resides with his fiancée, Natalie Vidoni, and her dog. The underlying litigation was instituted when Sun Harbor filed a two-count complaint against Bonura seeking declaratory relief with respect to whether the presence of his fíancée’s dog on the Sun Harbor premises was a violation of the Homeowners’ Declaration of Covenants. Sun Harbor also sought removal of the dog via injunction.

Bonura responded by filing a responsive pleading and counterclaim alleging that Sun Harbor’s actions in trying to have the dog removed were in violation of Florida’s Fair Housing Act and the Federal Fair Housing Act because Bonura’s fiancée suffered from a disability, thus entitling her to a reasonable accommodation for the use of an emotional therapy dog. Bonura alleged that pursuant to the Federal Act and the Florida Act, Sun Harbor was on notice that his fiancée suffered from a disability. Bonura also sought damages and injunctive relief. Relevant to this appeal, prior to filing the counterclaim, neither Bonura nor Vidoni filed a complaint with the Florida Commission on Human Rights.

Sun Harbor responded to the counterclaim denying liability under the Florida and Federal Acts, and affirmatively alleging that: (i) Bonura never requested an accommodation; (ii) there was no nexus between the alleged disability and any assistance provided by the alleged service animal; (iii) the dog was not an individually trained service animal or even a service animal; (iv) Bonura produced nothing to show any accommodation was necessary; and (v) he failed to comply with the conditions precedent to pursue a claim under the Florida Act.

As a preliminary matter, following a bench trial, the trial court entered a final judgment in favor of Bonura. Sun Harbor timely appealed that judgment. Shortly after Sun Harbor filed its notice of appeal, the trial court entered its “Order Withdrawing Prior Order And Substituting New Order On Non-Jury Trial” (hereinafter “Second Order”) pursuant to Florida Rule of Appellate Procedure 9.600(a). Sun Harbor filed an amended notice of appeal from both this Second Order and the original final judgment.

Rule 9.600(a) provides that the trial court shall have concurrent jurisdiction with the appellate court during the pen-dency of review to render orders on procedural matters relating to the cause. Fla. R.App. P. 9.600(a). “The correction of an error or omission properly falls within this category of procedural matters.” Luhrs v. State, 394 So.2d 137, 139 (Fla. 5th DCA 1981). Sun Harbor argues that the trial court did not have concurrent jurisdiction with this court to enter the Second Order because there were significant and substantial changes between the two orders. Bonura responds that the trial court did have jurisdiction under Rule 9.600(a) to enter the Second Order nunc pro tunc because it was correcting errors and omissions within the original order. The issue is whether the Second Order resolved an error or omission as argued by Bonura or represented a significant change in the findings of fact, reasoning, or statement of the law, as argued by Sun Harbor.

In St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971), the Florida Supreme Court explained as follows:

Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.

Id. at 28 (quoting Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 97 L.Ed. 245 (1952)); see also Wells v. State, 796 So.2d 1276 (Fla. 4th DCA 2001).

The order from which the original notice of appeal was filed granted relief only under the Federal Fair Housing Act. The Second Order not only refers to the Federal Fair Housing Act, but also discusses a violation of the Florida Act for the first time. The Second Order frames the issue as “whether Bonura is legally entitled to keep the dog at his townhouse under the Florida Fair Housing Act and [Federal] Fan* Housing Act ... ?” and goes on to state that the Federal Act was codified in the Florida Act. It then analyzes the claims under the Florida Act. Although the outcome was the same in both orders, it is obvious that the Second Order constituted more than a correction of an error or omission relating to procedural matters under Rule 9.600(a). Accordingly, we conclude that the trial court had no jurisdiction to enter the Second Order and we reverse that order. Having determined that the Second Order is a nullity, we review the final judgment from which the appeal was first taken.

Sun Harbor is governed by a 1989 Declaration of Covenants of Sun Harbor Townhomes (“Declaration”) and, relevant to this appeal, a 1997 Amendment to the Declaration (“Amendment”). Under the Amendment, Section 5, Paragraph 5.06 of the Declaration, was revised to state in pertinent part:

5.06 Animals. ... No dogs shall be allowed on any Parcel, except according to the provisions of this Paragraph. Any dogs currently owned by an Owner, and presently kept on such Owner’s Parcel, as of the date of this Amendment, shall be registered with the Association on a form to be provided. Thereafter, no dogs, other than those registered as of the date of this Amendment will be allowed onto any Parcel....

Additionally under the Amendment, the dogs that were grandfathered in could be replaced if they died, but no new dogs were allowed.

The case proceeded to a bench trial during which the following facts were adduced. Bonura became a resident at Sun Harbor after the 1997 Amendment was adopted. Ms. Vidoni testified that she moved in with Bonura in January of 2009, and brought her dog to the residence approximately one month later. However, in early January 2009, Bonura received a letter from Sun Harbor that a dog was residing at his property in violation of the “no dogs allowed” policy. Bonura responded in writing stating that “the information presented is false” and “[t]here is no dog residing” at his townhouse. Sun Harbor sent another letter in February 2009 to Bonura, stating that other tenants had seen a dog and demanded that the dog be removed within fifteen days. In early March 2009, Bonura, through his attorney, admitted there was a dog living in his townhouse, that it belonged to his fiancée who resided with him, and that it was a “registered service dog” needed to assist his fiancée with an unspecified disability. Bonura demanded an accommodation. The letter included a “Registered Service Dog Certificate,” purchased online from “RegisteredServiceDogs.com.”

Sun Harbor promptly advised Bonura in writing that he needed to have any request for an accommodation placed on the Association’s agenda for the next regularly scheduled Board Meeting, at which he would have to:

1. demonstrate that a resident suffers from a medical disability or handicap, unless the disability or handicap was visible, and indicating that any written information provided by the resident would not be copied or shared and would be returned after viewing;
2. demonstrate how the service animal can or will reasonably accommodate the disability;
3. demonstrate that the service animal has special skills or training to accommodate the handicap; and
4. demonstrate how the special skills and training of the service animal set it apart from an ordinary pet.

Finally, Sun Harbor instructed Bonura to notify the Association if he wanted to be placed on the agenda.

Bonura never requested to be placed on the Association’s monthly meeting agenda. Thereafter, the parties unsuccessfully participated in presuit mediation pursuant to Chapter 720, Florida Statutes, governing homeowners’ associations. Sun Harbor then filed suit. The parties attended mediation a second time, but again a resolution was not reached. However, the parties agreed that Bonura would attend the next association meeting in October of 2009 to attempt a resolution.

Both Bonura and Ms. Vidoni appeared at the October 2009 association meeting, and requested an accommodation based on the need of a therapy dog for Ms. Vidoni’s condition. Sun Harbor maintained that Ms. Vidoni and Bonura did not provide any medical documentation regarding her disability or the training of the animal at this meeting. Ms. Vidoni and Bonura insisted that the records were with her, but no one looked at them.

In support of the claim that Ms. Vidoni had a substantial limitation on a major life activity, the following individuals testified at the bench trial: (i) Matthew J. Ross, M.D.; (ii) Antonio DeFilippo, M.D.; and (Hi) Jacquelyn Smith, R.N.

Dr. Ross testified via video deposition that he treated Ms. Vidoni between 2004 and 2005 for injuries she suffered as a result of a motor vehicle accident which occurred in 2004. He found that Ms. Vido-ni had improved throughout the treatment period, and although she continued to have lingering deficits in coordination and dexterity, he concluded that that she did not have any substantial limitation on any major life activity. Dr. Ross did not prescribe a therapy dog for Ms. Vidoni.

Dr. DeFilippo, a psychiatrist, saw Ms. Vidoni four times beginning in October 2009, some four months after the lawsuit was filed in this case. He reviewed Ms. Vidoni’s records, including a 2008 letter from Dr. Luciano Dias. Dr. DeFilippo opined that he believed a therapy dog was required for Ms. Vidoni’s condition because of her ongoing depression and anxiety, and his personal observation on two occasions of her interaction with the dog, which he noticed helped her with those troubles.

Jacquelyn Smith, a nurse and friend of Ms. Vidoni who knew her prior to her accident, worked with patients with disabilities and neuromuscular disorders as well as patients involved in motor vehicle accidents. She recommended Ms. Vidoni utilize a service dog to alleviate her physical and psychological disorders. Nurse Smith observed Ms. Vidoni’s severe depression and extreme anxiety and noticed a marked improvement in Ms. Vidoni’s condition after she purchased the dog.

Ms. Vidoni also testified at the bench trial. She explained that as a result of her motor vehicle accident, she had disabilities that prevented her from attending medical school, which she had been accepted to before the accident occurred, prevented her from playing piano at her previous skill level, and affected her memory, coordination, and balance. She stated that she purchased her dog in March of 2008 upon the recommendation that it would help her with the depression and anxiety. She found that the dog provided emotional support, and helped her with her memory.

At the conclusion of the bench trial, the trial court entered its final judgment, wherein it determined that Ms. Vidoni resided with Bonura at Sun Harbor and that she was a handicapped person as defined under the Federal Fair Housing Act. Accordingly, the trial court held that Ms. Vidoni was entitled to an accommodation permitting her to possess her therapy dog.

Sun Harbor first argues that Bonura cannot maintain a claim for a violation of the Florida Act because he had not exhausted his administrative remedies by filing a complaint with the Florida Commission on Human Rights as required by the Florida Act. Although we agree that the Florida Act, as interpreted by this Court, requires exhaustion of administrative remedies as a condition precedent to the institution of a civil suit, this issue is rendered moot by our reversal of the Second Order, which conducted its analysis under the Florida Act. See Belletete v. Halford, 886 So.2d 308 (Fla. 4th DCA 2004); see also §§ 760.34-.35, Fla. Stat. (2009).

Focusing our analysis on the original final judgment, we review the trial court’s decision on Bonura’s counterclaim with respect to the Federal Act to determine whether it is supported by competent, substantial evidence. Chackal v. Staples, 991 So.2d 949, 953 (Fla. 4th DCA 2008) (“On appeal, this court reviews ... any of the trial court’s findings of fact under the competent, substantial evidence standard of review.”) (citation omitted). “[T]he concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981).

Sun Harbor contends that Bonura did not prove that there was any request for accommodation and denial before suit was filed. It claims error to the extent that the trial court may have relied on any evidence from mediation to find a request for accommodation. Relying on its claim that any evidence from mediation was privileged, Sun Harbor submits that the first valid request for an accommodation was lodged at the October 2009 association meeting, after suit was filed. Thus, Bonu-ra could not demonstrate the request or denial as required elements of a claim under the Federal Act. Finally, it argues there was neither substantial, competent evidence of a handicap as required under both Acts nor that the dog was a qualified service dog.

In order to prevail on a cause of action under the Federal Act, Bonura was required to prove: (i) Ms. Vidoni’s handicap; (ii) Sun Harbor’s knowledge of the handicap; (iii) that an accommodation may be necessary to afford Ms. Vidoni an equal opportunity to use and enjoy the dwelling; (iv) that the accommodation is reasonable; and (v) Sun Harbor’s refusal to make the requested accommodation. See Prindable v. Ass’n of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1254 (D.Haw.2003); Dornbach v. Holley, 854 So.2d 211, 213 (Fla. 2d DCA 2002).

The Federal Act defines “handicap” as “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such impairment, or (3) being regarded as having such an impairment. ...” 42 U.S.C. § 3602(h). Federal regulations interpret “physical or mental impairment” to include any “mental or psychological disorder,” such as “emotional illness.” 24 C.F.R. § 100.201(a)(2) (2009). Federal regulations interpret “major life activities” as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 24 C.F.R. § 100.201(b) (2009). It follows that a plaintiff must first establish that at the time she requested the accommodation, she had a disability as defined by the Act. Cf. Johnston v. Henderson, 144 F.Supp.2d 1341, 1353 (S.D.Fla.2001) (discussing the necessity of proving a disability at the time an accommodation is requested to fall within the protection of the Rehabilitation Act, 29 U.S.C. § 701).

Moreover, federal courts have long recognized that a defendant has the right, in response to a demand for an accommodation, to perform a meaningful review of the request to determine if it is statutorily required. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir.2008); see also Overlook Mut. Homes, Inc. v. Spencer, 415 Fed.Appx. 617, 621 (6th Cir.2011) (“A housing provider ... is entitled to seek information from an allegedly disabled person in order to establish the existence of the disability and the necessity of the accommodation.”). As the Eleventh Circuit explained in Schwarz:

[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs’ request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law.

Schwarz, 544 F.3d at 1219 (quoting Printable, 304 F.Supp.2d at 1258).

“Once allowed that opportunity, a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.” Id. (citations and internal quotations omitted). Without the denial of an accommodation request, there is no discrimination under the Federal Act. Id. However, a failure to provide prompt responses to a reasonable accommodation request may function as a denial. Overlook Mut. Homes, Inc., 415 Fed.Appx. at 622.

We address whether the evidence presented proved: (i) Ms. Vidoni’s handicap; (ii) Sun Harbor’s knowledge of the handicap; and (iii) whether Sun Harbor knew of Ms. Vidoni’s request for an accommodation and refused her request, before Bonura filed his counterclaim. Bonura argues that these elements were proved through the introduction of his attorney’s March 6 and May 13, 2009 letters, the medical testimony at trial, and Ms. Vidoni’s testimony recounting the parties’ conversation and the presence of her medical records during the first mediation, which occurred before the counterclaim was filed. Furthermore, he submits the refusal to accommodate was demonstrated by the failed mediations and subsequent initiation of legal proceedings.

Sun Harbor points out that neither letter provided by Bonura’s counsel contains any evidence of a need or request for an accommodation. Sun Harbor further contends that the medical testimony does not support the finding of a handicap as defined by the statute. With respect to the information revealed during the parties’ mediation, Sun Harbor argues that the mediation privilege bars the admission of the content of the parties’ conversations that took place during mediation and anything that may have been revealed at that time.

The March 6, 2009 letter states that Ms. Vidoni is a “qualified individual with a disability.” The letter does not state how she is qualified, the limitations and difficulties she was suffering from, why she is entitled to the dog, or that the dog that occupied the residence was “necessary ... to afford [the plaintiff] equal opportunity to use and enjoy a dwelling” due to her disability, as opposed to just desirable and helpful. 42 U.S.C. § 3604(f)(3)(B). The May 13, 2009 letter is equally scant in content and provides even less than the previous correspondence.

Sun Harbor was well within its rights when it notified Bonura’s counsel that if the first letter was a request for an accommodation for a disabled person, it had to be placed on an agenda for a board meeting. Furthermore, the response detailed what Bonura would need to demonstrate at that meeting. Bonura never requested to be placed on the board meeting agenda and did not attend the next board meeting. In fact, Bonura and Ms. Vidoni only attended a board meeting months after suit was filed and after a second mediation was conducted.

We conclude that both letters failed to establish that Ms. Vidoni had a handicap, that Sun Harbor knew the nature or extent of the handicap, or that Sun Harbor refused to make a reasonable accommodation. The Prindable court noted that a doctor’s letters identifying that plaintiff suffered from a mental dysfunction that impaired his ability to work along with plaintiffs contention that he suffered from depression and anxiety and had HIV were insufficient to establish a handicap within the meaning of the statute. Prindable, 304 F.Supp.2d at 1255. In Hawn v. Shoreline Towers Phase I Condo. Ass’n, Inc., 347 Fed.Appx. 464 (11th Cir.2009), the Eleventh Circuit affirmed summary judgment in favor of defendant on the issue of defendant’s knowledge of plaintiffs disability because plaintiffs letter included “unclear explanations as to the nature and extent of his disability” and he refused to comply with subsequent requests for reasonable documentation, preventing defendant from conducting a meaningful review. Id. at 468. Here, as in Prindable, the letters were insufficient to establish a handicap. Furthermore, as in Hawn, the letters provided unclear explanations as to the nature and extent of Ms. Vidoni’s disability such that Sun Harbor could not conduct a meaningful review.

We further conclude that the medical testimony at trial was insufficient to establish that Ms. Vidoni suffered from a handicap as defined by the Federal Act in 42 U.S.C. § 3602(h). Reviewing the record, there was no competent, substantial evidence indicating any substantial limitation on one or more of Ms. Vidoni’s major life activities. In fact, the testimony indicated Ms. Vidoni was able to travel and work without the dog. Along those same lines, the evidence also failed to establish the necessity of the accommodation. Ms. Vido-ni admitted that she was not as dependent on the dog as she had been originally and she could be independent of the dog at times including for work.

Turning to the propriety of the introduction of evidence of conversations which took place during the first mediation, Bonura sought to introduce information provided at mediation to establish Sun Harbor’s knowledge of Ms. Vidoni’s disability. Sun Harbor objected to any testimony relating to events which occurred during mediation on the basis of privilege. The trial court overruled the objection concluding that Sun Harbor’s counsel had waived any objection by questioning a witness regarding whether the parties had attempted to mediate. Sun Harbor did not delve into any communications taking place at mediation.

We hold that the mention of mediation taking place does not constitute a waiver of an objection to the introduction of the substantive communications involved in such mediation. As such, the trial court erred when it concluded that Sun Harbor had waived any objection and when it allowed the contents of conversations which took place during mediation into evidence. See § 44.405(1), Fla. Stat. (2009) (“[A]ll mediation communications shall be confidential.”); DR Lakes v. Brandsmart U.S.A. of West Palm Beach, 819 So.2d 971, 974 (Fla. 4th DCA 2002) (“Mediation could not take place if litigants had to worry about admissions against interest being offered into evidence at trial, if a settlement was not reached.”). Accordingly, the trial court should not have considered this evidence in reaching its factual findings and conclusions of law.

Having determined that (i) the mediation evidence was inadmissible; and that (ii) the content of the letters of March 6 and May 13, 2009 as well as the trial testimony failed to establish that Ms. Vido-ni was handicapped under the Federal Act, that Sun Harbor had knowledge of this handicap or that Sun Harbor refused to accommodate Ms. Vidoni after being given an opportunity to conduct a meaningful review following a request for accommodation, we hold that Bonura failed to prove a case of disability discrimination under the Federal Act. See Prindable, 304 F.Supp.2d at 1255; Hawn, 347 Fed.Appx. at 467-68. Based upon the foregoing, we reverse and remand for entry of judgment in favor of Sun Harbor.

Reversed and Remanded.

MAY, C.J., and CONNER, J., concur.

      . See § 760.20-.37, Fla. Stat. (2009).

      . See 42 U.S.C. §§ 3601-3619.

      . The certificate listed a Seattle, Washington address for Ms. Vidoni, although the address' zip code indicates a location in Pompano Beach, Florida.

      . Although Dr. Dias never treated Ms. Vidoni, Dr. Dias prescribed a therapy dog for Ms. Vidoni during periods of travel. Additionally, Dias renewed the prescription for Ms. Vido-ni’s therapy dog for travel after the lawsuit had been filed.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Terry GLENN, Appellant, v. Dawn ROBERTS, etc., Appellee.
    No. 3D11-1093.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Rehearing Denied Sept. 6, 2012.
    Levey, Filler, Rodriguez, Kelso & Magil-ligan and John R. Kelso, for appellant.
    Arthur J. Morburger; Peter A. Cohen; Timothy C. Lincoln, for appellee.
    Before CORTINAS, LAGOA, and SALTER, JJ.
   LAGOA, J.

Terry Glenn (“Glenn”) appeals from an order granting Dawn Roberts’s (“Roberts”) motion for judgment on the pleadings, which found that the residuary estate of the decedent, Barbara Annette French (“French”), must be distributed pursuant to Florida’s intestate statute. We reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On March 20, 2003, French executed a Last Will and Testament (the “Will”). The Will contained the following Article, in relevant part:

THIRD
I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature, and wheresoever the same may be situate unto my friend, TERRY GLENN, having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire he benefit.

The Will also contained the following last and final Article:

FIFTH
In the preparation of this, my Last Will and Testament, I have carefully and thoughtfully considered each member of my family and all of my friends, and have not unintentionally omitted any of them, as it is my desire, and I so direct, that only those beneficiaries named herein, share as beneficiary of my probate estate.

French died on July 7, 2010.

Glenn, who was named as personal representative, commenced probate proceedings in the circuit court. Shortly thereafter, Roberts filed a petition seeking to set aside the Will. Roberts claimed that she was French’s only grandchild, and the rightful heir to French’s estate. Relying upon Estate of Corbin v. Sherman, 645 So.2d 89 (Fla. 1st DCA 1994), she argued that the first sentence of the Third Article, which devised the residuary estate to Glenn, was ineffective as a testamentary disposition because it was an oral instruction and did not meet the statutory requirement that a will be in writing. See §§ 731.201(36), 732.502, Fla. Stat. (2002). Roberts asserted that, as a result, the Will was invalid and all of French’s property should be distributed in accordance with Florida’s law of intestate succession.

Roberts subsequently filed a motion for judgment on the pleadings. After a hearing, the trial court granted Roberts’ motion for judgment on the pleadings and ordered French’s residuary property to be distributed pursuant to Florida’s intestacy statutes. This appeal ensued.

II. ANALYSIS

We review a trial court’s order granting a judgment on the pleadings de novo. See Newsome v. GEO Group, Inc., 72 So.3d 168, 170 (Fla. 4th DCA 2011). A motion for judgment on the pleadings may be granted only if the moving party is clearly entitled to a judgment as a matter of law. See Clarke v. Henderson, 74 So.3d 112, 114 (Fla. 3d DCA 2011); Cuccarini v. Rosenfeld, 76 So.3d 328, 330 (Fla. 3d DCA 2011).

As always, the polestar of will interpretation is the testator’s intent, which is “ascertained from the four corners of the document through consideration of ‘all the provisions of the will taken together, rather than from detached portions or any particular form of words.’ ” Bryan v. Dethlefs, 959 So.2d 314, 317 (Fla. 3d DCA 2007) (quoting Sorrels v. McNally, 89 Fla. 457, 462-63, 105 So. 106, 109 (1925)). Accord Diana v. Bentsen, 677 So.2d 1374, 1377 (Fla. 1st DCA 1996) (“In construing a will, the whole instrument must be considered, and a review of the entire testamentary scheme must be undertaken”) It is also settled that the law favors any reasonable construction of a will over intestacy. See In re Gregory’s Estate, 70 So.2d 903 (Fla.1954); In re Smith, 49 So.2d 337 (Fla.1950); Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002 (Fla. 5th DCA 2005).

We conclude that the trial court erred in granting Roberts’s motion for judgment on the pleadings. Although the trial court did not articulate the basis for its decision in either a written order or at the hearing, the only argument presented by Roberts below in support of her motion was that the Third Article constituted an unauthorized oral will, and that, as in Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1st DCA 1994), the Will therefore must be invalidated as ineffective. However, a review of the unambiguous language of French’s Will makes clear that it does not constitute an oral will and that Corbin does not apply here.

In Corbin, the will at issue contained the following provision: “FIRST: I give, bequeath and devise all of my estate of whatsoever kind and nature and wherever located to BETTY GUY SHERMAN to dispose of as she has been instructed to do by me.” 645 So.2d at 40. On appeal, the appellants argued, among other things, that the trial judge erred in his construction of the will and in ordering distribution thereunder. Id. at 41. The First District agreed, concluding that the will failed to effectively devise the property to designated beneficiaries and that intestacy resulted. Id. at 42. In reaching its conclusion, the First District determined that the will unambiguously attempted to devise the decedent’s property to Sherman, for Sherman to distribute according to oral instructions from the decedent. Because Florida does not recognize oral wills or provide for incorporation of oral instructions, intestacy resulted. Id.

Here, unlike in Corbin, the language in French’s Will is merely precato-ry, and not mandatory. In Corbin, the language at issue was clearly mandatory as it referenced oral instructions for the distribution of property (“to dispose of as she has been instructed”). Because it mandated the distribution of the decedent’s estate pursuant to oral instructions, it constituted an unauthorized oral will. In contrast, the language here does not mandate Glenn to distribute the residuary estate according to instructions from French, but rather, simply expresses French’s hope that Glenn will honor all of her “requests.” In other words, the unambiguous language of the Third Article devises the entire residuary estate to Glenn, who then has the discretion to honor French’s requests. Cf. Lines v. Darden, 5 Fla. 51 (1853) (“The words ‘will and desire,’ are not necessarily mandatory, nor does the question turn upon their grammatical construction.... Their import and signification depends not so much as to whom they are addressed, as the intention of the party using them.... ”); Diana, 677 So.2d at 1378 (concluding that provision in will that “request” stock be sold was not mandatory; “the crucial question remains the intent of the testator as made manifest in the will as a whole”); In re Estate of Fresia, 390 So.2d 176 (Fla. 5th DCA 1980) (stating rule that depending upon the intent of the testator, precatory words are sometimes mere recommendations and are sometimes mandatory).

In construing the Will as a whole, we find further evidence that it was French’s intent to devise her residuary estate to Glenn without limitation from the express language of the Will’s final provision. The Fifth Article states as follows:

In the preparation of this, my Last Will and Testament, I have carefully and thoughtfully considered each member of my family and all of my friends, and have not unintentionally omitted any of them, as it is my desire, and I so direct, that only those beneficiaries named herein, share as' beneficiary of my probate estate.

The Fifth Article establishes that: (1) French disinherited her family, among whom Roberts claims to be a member, and did not unintentionally omit them; and (2) the only beneficiaries of French’s estate are those named in the Will, i.e., Glenn and his wife Pearl.

Accordingly, because we find that the trial court erred in finding that the Will at issue was an oral will, we reverse the trial court’s order invalidating the Will and remand with directions to enter judgment finding that Glenn is the sole beneficiary under French’s Will.

Reversed and remanded.

      . Because Glenn survived French, we do not address Roberts's arguments concerning the second sentence of the Third Article which provided that in the event Glenn predeceased French, or did not survive distribution of her estate, the residuary estate was devised to Glenn's wife, Pearl, "having equal confidence that she will likewise follow my directives expressed to her and her husband prior to my death.”


author: ROTHENBERG, J.

text:
    Jimmie BERT, et al., Petitioners, v. Carlos BERMUDEZ, et al., Respondents.
    No. 3D12-911.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Rehearing Denied Aug. 9, 2012.

      Lewis Tein and Guy A. Lewis and Michael Tein, for petitioners.
    Ramon M. Rodriguez, for respondents.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, J.

Tammy Owen Billie and Jimmy Bert (“the defendants”) and their current counsel, Lewis Tein, PL (“the Lewis Tein law firm”), petition this Court for a writ prohibiting Judge Ronald Dresnick from presiding over the post-judgment matters still pending before the trial court. Because the trial court’s comments, when read in the context in which they were made, do not require disqualification, we deny the petition.

The underlying lawsuit arose out of a tragic accident that occurred on Tamiami Trail ten years ago. The accident, in which Gloria Liliana Bermudez was killed and her husband Carlos Bermudez and their minor child were injured, resulted in a $8,177 million judgment rendered on August 5, 2009, against the defendants, who are members of the Miecosukee Tribe of Indians of Florida (“the Miecosukee Tribe” or “the Tribe”). On July 21, 2011, nearly two years later, Judge Michael Genden, who was sitting in for Judge Dresnick, granted the plaintiffs’ motion for attorney’s fees, filed pursuant to section 57.105, Florida Statutes, as a sanction against the defendants and the Lewis Tein law firm for various objections to discovery, delay tactics, and other discovery abuses they committed to hinder the plaintiffs’ post-judgment collection efforts, which to date have resulted in the failure to collect even one cent on the judgment. Specifically, Judge Genden found the defendants’ general objections to discovery requests to produce documents that in fact did not exist, for example, tax returns, and the refusal, over a two-year period, to answer interrogatories regarding documents that did not exist, entitled the plaintiffs to re-coupment of their attorney’s fees as a sanction. Judge Genden’s order was not appealed.

On August 30, 2011, Judge Dresnick conducted a lengthy evidentiary hearing to determine the sanction amount. At this hearing, Andrew Harris, who provided trial support to appellate counsel for the plaintiffs in this case, testified as to the value of the legal work provided to the plaintiffs; opined that the number of hours expended and the fees charged were reasonable; and speculated that the Lewis Tein law firm probably billed two to three million dollars in the post-trial phase of the case. While cross-examining Mr. Harris, Mr. Tein asked him the following questions:

And, in fact, would it surprise you to know that we haven’t been paid a cent in this case for over a year?
And, in fact, it doesn’t surprise you because you know that the Defendants don’t have the money to pay the judgment. That’s been your — what you found, right?
Do you want to withdraw your statement on direct, that you think we’ve billed two to $3 million in the post trial phase of this case, to make sure that the Court isn’t prejudiced at all by that?
And you’re not contending to Judge Dresnick that we’ve been paid by the Miecosukee Tribes of Indians, are you?

After Mr. Harris responded that yes, he did believe the Lewis Tein law firm was directly paid by the Miccosukee Tribe in this case, Mr. Tein asked, “Do you have any evidence of that? ... And what evidence do you have that the Miccosukee Tribe paid a cent to us in this case?” Mr. Harris responded that he had no evidence because the Lewis Tein law firm did not provide the billing records requested, but he believed it was unlikely the law firm represented the defendants pro bono.

Subsequently, Mr. Tein testified under oath at this same hearing as follows:

Our client is not the Miccosukee Tribe. The Miccosukee Tribe is not a party to this case.
The affidavit ... is true. They [Tammy Billie and Jimmy Bert] have been responsible for our fees and they— they — at that time they had been paying our fees.
By January’ ll[sic] they had run up a — a receivable. They hadn’t paid since, my recollection is, August of 2010. And we haven’t been paid anything since August of 2010.
But it would be mixing the responsibilities of the Tribe with the responsibilities of the Defendants for a judgment. That would be the equivalent of saying that if someone is from Nicaragua, that the Nicaraguan, the wealthy Nicaraguan government has a responsibility to step in and pay the fee.
What [sanctions] you impose on me and the firm will come right out of my and Mr. Lewis’ pocket. Miccosukee Tribe will not be paying it. Tammy and Jimmie will not be paying it. And I want to make sure that’s — that’s clear.

On September 13, 2011, the trial court entered its sanction order. Although the plaintiffs requested a sanction in excess of $150,000 to cover the fees they incurred in their post-judgment collection efforts and proceedings, Judge Dresnick awarded only $3500 based primarily on Mr. Tein’s representations that: the Lewis Tein law firm represented the named defendants, not the Tribe, in this case; they were not trying to protect the Tribe from paying the judgment, as they were merely representing their individual clients who happen to be Miccosukee Tribe members; and the Tribe in no way was paying for this representation. Judge Dresnick specifically noted that, if “Mr. Lewis and/or Mr. Tein was in fact representing the Miccosukee Tribe in attempting to avoid paying this judgment the Court can assure both sides that the result of this order would have been significantly different.”

Shortly after Judge Dresnick issued his September 13, 2011, order awarding sanctions in the amount of $3500, counsel for the plaintiffs received sixty-one cancelled checks issued by the Tribe to the Lewis Tein law firm totaling $3.1 million for professional services rendered by the Lewis Tein law firm, in which it appears that at least $2 million was paid for the law firm’s representation of the defendants in this lawsuit.

After the plaintiffs received the can-celled checks for payments made directly by the Tribe to the Lewis Tein law firm, several individuals executed sworn affidavits stating that these payments were either charged against the defendants’ tribal distributions, or as loans from the Tribe to them against future distributions. Tammy Billie stated that the Lewis Tein law firm represented her since 2005 in this case as well as in other matters; she is solely responsible for paying the Lewis Tein law firm for her share of the fees; her sole income is from her tribal distributions and from various jobs she performs on the reservation; and the checks issued by the Tribe to the law firm are charged against her current distributions and loans against future distributions. Billy Cypress, interim Chairman of the Tribe from 1987 to 1989, and Chairman from 1989 to December 2009, stated in his affidavit that the defendants were solely responsible for the fees charged by the Lewis Tein law firm; he directed the Tribe to write checks to pay these legal fees; and the payments were against the defendants’ current distributions and loans against future distributions. Julio Martinez, the Accounting Supervisor/Finance Officer for the Tribe from 1990 to 2009, stated the same in his affidavit.

Because these sworn affidavits conflict with earlier sworn testimony given by the defendants and call into question whether Mr. Tein’s representations at the August 30, 2011, hearing were truthful, the plaintiffs sought to depose several people including the defendants, Mr. Tein, Mr. Lewis, Billy Cypress, Julio Martinez, Mr. Roman (who provided the cancelled checks to the plaintiffs’ counsel at the direction of the current Chairman of the Tribe), and others. Specifically, the plaintiffs rely on the following testimony provided by the defendants in May of 2010, when they were deposed in aid of execution.

Jimmy Bert’s May 3, 2010, Deposition

When asked if he knew how much the jury awarded the plaintiffs in this case, Mr. Bert replied, “No.” He was also unaware if an appeal had been filed; did not know what legal fees he had incurred; had not received any invoices; and had not paid any legal fees. The following excerpts reflect questions posed by counsel for the plaintiffs, and answers provided by Mr. Bert through an interpreter, which accounts for the answers in third person.

Q: Have you incurred any legal fees with regard to the case that we’re here on today, Mr. Bert? Have you received any invoices? Have you received any documentation regarding the amount of legal fees that have been generated with regard to your representation in this case?
A: No, he doesn’t know.
Q: You’ve never received a single invoice for the defense or the representation that you have received from your attorneys in this case?
A: No, he’s never seen one.
Q: Have you paid your attorneys any amount of money at any point in time regarding your attorneys’ representation in this case?
A: No, not him.
Q: When you say “him,” who are you referring to?
A: Jimmie. He said no.
Q: Do you know who has been paying your legal fees with regard to your representation in this case?
A: He said he doesn’t know, but he thought the office paid.
Q: The same office where you pick up the $4,000 check, Mr. Bert? [referring to Mr. Bert’s disbursement checks].
A: Yeah, he — he—he thinks so. He doesn’t know.

Tammy Billie’s May 4, 2010, Deposition

Q: Who’s paying the legal bills for your representation in the civil case arising from the Bermudez accident?
A: I don’t know.
Q: Did you ever see any invoices — have you ever seen any invoices arising from your representation by Mr. Tein’s office and by Vivian Rosado’s involvement in this case regarding ... your defense, your representation in the civil lawsuit arising from the Bermudez motor-vehicle accident?
A: I don’t know.
Q: Do you know how much has been paid to Michael Tein’s office as the result of your representation in this civil lawsuit?
A: I wouldn’t know. I don’t know.

On January 10, 2012, Judge Dresnick granted the plaintiffs’ motion to depose Mr. Tein, Mr. Lewis, and others to determine whether Mr. Tein committed perjury when he testified the Lewis Tein law firm was not paid by the Tribe for the firm’s representation of the defendants. These depositions were set for a two-week period, beginning the week of March 19, 2012. Thereafter, on February 6, 2012, Judge Dresnick granted the Lewis Tein law firm’s motion for a protective order, precluding the plaintiffs from videotaping Mr. Tein’s and Mr. Lewis’ depositions. On March 14, 2012, the Lewis Tein law firm filed a, motion to stay the depositions and evidentiary hearing. This motion was heard on March 19, 2012, and is the subject of the motion to disqualify Judge Dresnick and the instant petition for writ of prohibition.

THE MOTION TO DISQUALIFY AND THE PROHIBITION PETITION

In their motion to disqualify Judge Dresnick and their petition for writ of prohibition to this Court, the defendants and the Lewis Tein law firm (collectively, “the petitioners”) claim the judge has exhibited bias against them. Specifically, the petitioners claim that on March 19, 2012, Judge Dresnick “vindictively” reversed a prior ruling and “lost control” when he “yelled” at Mr. Tein, told Mr. Tein to “shut up,” threatened Mr. Tein with contempt, told Mr. Tein he was getting on his nerves, and stated that Mr. Tein might be better served by allowing Mr. Lewis to make the remaining arguments. A review of the transcript of the March 19, 2012, hearing, however, paints an entirely different picture — one that reveals great restraint by the trial judge, and an attorney who either lost control or was intentionally trying to bait the judge. Whether Mr. Tein lost control or was purposely baiting the judge, the result was the same. Mr. Tein’s behavior was totally unprofessional, disrespectful, and disruptive. In short, his behavior was contemptuous.

The March 19, 2012, hearing was set by Mr. Tein to request a stay of the depositions scheduled for that entire week and the following week, to allow Mr. Tein to file an untimely certiorari petition to this Court, objecting to the trial court’s January 10, 2012, order allowing the plaintiffs to take depositions and setting an eviden-tiary hearing to determine whether the Lewis Tein law firm, and specifically Mr. Tein, had committed perjury and a fraud on the court. Rather than summarily denying Mr. Tein’s untimely motion to file an untimely petition, the trial court attempted to determine how many depositions had been scheduled for the week of March 19, how many were scheduled for the following week, and the availability of the witnesses to be deposed prior to the scheduled May 3rd hearing.

Rather than appreciating the good grace of the trial court in entertaining his untimely motion and allowing the trial court to make its inquiry, Mr. Tein repeatedly interrupted the trial court’s inquiry and interjected that the scheduled depositions and evidentiary hearing were contrary to the law, out of bounds, and out of control, and that there was no legal basis for the trial court’s rulings. Additionally, the record reflects that Mr. Tein became so aggressive during this fifteen minute hearing, the trial judge had to admonish him for pointing his finger at the judge, and threaten to hold Mr. Tein in contempt of court if he did not stop interrupting and yelling over him and opposing counsel. In the nineteen page transcript of the hearing, on thirteen occasions, Mr. Tein characterized the proceedings as “out of control,” “contrary to the law,” or without any legal basis, and he interrupted the trial court or opposing counsel at least eighteen times, even after being admonished to stop interrupting and to be quiet.

The following is one example. The trial court asked opposing counsel, Mr. Rodriguez, whom he had scheduled to depose that week. While Mr. Rodriguez was attempting to list the witnesses, Mr. Tein interrupted, and continued to interrupt.

Mr. Tein: Your Honor, you asked him who was set and I’m the one who gets to argue right now.
Mr. Rodriguez: Furthermore—
Mr. Tein: In all fairness to me—
The Court: I’m trying to get information, please.
Mr. Rodriguez: If I may further respond, you Honor? Mr. Tein just made mention of James Robinson, an accountant. He made mention of Dexter Lehti-nen, Julio Martinez. Dexter Lehtinen and James Robinson were identified and disclosed as witnesses by Mr. Tein’s office. In fact, Your Honor—
Mr. Tein: Your Honor, this is not a trial.
Mr. Rodriguez: Let me respond.
Mr. Tein: He continues to argue. This is not a trial, your Honor.
The Court: He’s giving me some information. Please, I wish—
Mr. Tein: But it’s boundless.
The Court: Please.
Mr. Tein: He’s the one—
The Court: Please.
Mr. Tein: Did you see the article?
The Court: Please.
Mr. Tein: Judge, did you see the article that he did yest—
The Court: I want to hear from him.
Mr. Tein: Why? It’s just—
The Court: If I tell you again to shut up, I’m going to hold you in contempt. I’m trying to hear from him. Now be quiet.

We also feel compelled to note that the unprofessional conduct of the Lewis Tein law firm was not confined to Mr. Tein’s behavior at the March 19, 2012, hearing. The petition filed in this Court, signed by Mr. Lewis, fares no better. The language, mischaracterizations, and “spin” employed speak volumes.

In its petition to this Court, the Lewis Tein law firm characterized the trial judge as “petulant,” “vindictive,” and “out of control,” and characterized his rulings as “baseless.” The following represents some of the statements contained in the petition.

The Circuit Court responded petulantly and vindictively by penalizing counsel for daring to challenge the Circuit Court’s discretion....
There is no doubt the case spun out of control procedurally, largely because the trial judge appears unwilling to set things straight, even after conceding there was no factual support for “perjury.” It has also spun out of control, however, in terms of judicial temperament. Indeed, the judge’s loose reins on his own temperament mirrors his loose reins on the process he is overseeing.
The Circuit Court’s High-Handed Reversal Exhibits Bias.
In addition to its recent threats, yelling, and erratic comments towards Petitioners’ lawyer and vindictive reversals, the Circuit Court’s irrational refusal to correct prior errors — that it admits are errors — demonstrates bias.

A trial judge has the right, and, in fact the obligation to control his or her courtroom and the proceedings, including taking corrective measures, when a party, witness, observer, or, as in this case, a lawyer becomes combative, disrespectful, or disruptive. To require disqualification of a judge whenever a party, witness, or lawyer’s behavior invokes an invited response by the judge, would encourage the behavior exhibited at this hearing as a means of “judge-shopping.” Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983). More importantly, there is nothing this judge did or said to demonstrate bias or prejudice, or to suggest the judge will not decide the issues before him fairly and impartially. See Oates v. State, 619 So.2d 23, 26 (Fla. 4th DCA 1993) (finding disqualification of the trial judge was not required for stating the defendant was “being an obstinate jerk,” where “[n]o reasonable person could conclude, on reading the transcript in this case, that the defendant was not ‘being an obstinate jerk’ [and] ... the court did not say that the defendant was a jerk, only that he was ‘being’ a jerk”).

What we have here is a lawyer, and now lawyers, who have acted recklessly and unprofessionally, and are now concerned that their behavior may have tarnished their image. We have, however, reviewed the record and conclude that although the trial court was justifiably frustrated with Mr. Tein’s behavior at the March 19, 2012, hearing, he expressed no views as to Mr. Tein’s credibility, made no comment suggesting he had pre-judged any issue, harbored any bias or prejudice against the defendants, Mr. Lewis, Mr. Tein, or the Lewis Tein law firm, or said anything to support a finding that the petitioners’ fear that they will not enjoy the impartiality and neutrality of the judge in deciding the issues is reasonable. We, therefore, deny the petition, and remind Mr. Tein and Mr. Lewis of their obligations and responsibilities as members of The Florida Bar and as officers of the court.

Petition denied.

WELLS, C.J., concurs.

SHEPHERD, J., concurs in result only.

      . The petitioners also cite to a comment made by Judge Dresnick at a hearing on August 30, 2011, and rulings the Lewis Tein law firm disagrees with. However, a trial court’s rulings are not grounds for disqualification; the objection to the comment cited is untimely; and the comment when read in the context in which it was made demonstrates no bias or prejudice against the petitioners. We, therefore, decline to address these arguments further.


author: WARNER, J.

text:
    Howard KEYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4056.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.

      Nellie L. King of The Law Offices of Nellie L. King, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant Howard Keyes challenges the denial of his motion for postconviction relief from his conviction for first degree murder of Mark Weiner, the father of his girlfriend, Melissa Weiner. The trial court held an evidentiary hearing prior to denying all relief. He raises three issues: (1) ineffective assistance of counsel as his public defender counsel was operating under a conflict of interest at trial because several state witnesses were former clients of the public defender’s office; (2) ineffective assistance of counsel for failure to request a voluntary intoxication jury instruction; and (3) ineffective assistance for failure to object to the medical examiner’s testimony that his conclusion regarding the cause of death was based upon unreliable double hearsay. We affirm on all issues.

Factual Background

The evidence implicating Keyes in the death of the victim was strong, and included admissions that Keyes made to Melissa and to inmates while he was incarcerated. The victim had thrown Keyes and Melissa out of his house, where they had been living, because of their drug abuse. The state presented evidence that before the murder Keyes had expressed anger and hatred of the victim and threatened to physically harm him. Prior to the murder Keyes contacted an acquaintance, who owned a body shop in another state, and inquired about disposing of the victim’s vehicle.

During the hours leading up to the murder, Keyes and Melissa had been on a drug binge but had run out of drugs. Melissa explained that they walked for three hours to get to the victim’s home before the murder occurred. Keyes went inside while she stayed outside. When Keyes returned, he told her that he had put the victim in a headlock to prevent him from calling police and that he did not intend to kill the victim.

Various witnesses testified regarding how, after the murder, Keyes and Melissa used the victim’s belongings, including thousands of dollars taken from the victim’s accounts, to purchase crack cocaine. When police apprehended him, Keyes was found in possession of the victim’s birth certificate and credit cards.

Inmates who were in jail with Keyes after his arrest testified that he made incriminating statements. Charles Comer testified that Keyes told him that he had gone to the victim’s home “to get paid” and that the victim was not supposed to be home. Comer testified that Keyes said the victim “started some s — t” and that Keyes said “you don’t f — k with me when I’m high.” Keyes described how he wrestled with the victim and demonstrated to Comer the hold that Keyes used on the victim. Another jail inmate, who bonded with Keyes regarding the military, testified that Keyes told him “being that we are both in the military we know how to choke out people.”

The medical examiner could not initially determine a cause of death in this case, but after receiving information from police regarding witness statements, the medical examiner changed the cause of death to compression of the neck. The expert discussed studies regarding neck holds (“sleeper holds”) used by police and the military to subdue individuals by cutting the flow of blood to the brain. The examiner discussed a study showing that a disproportionate number of middle-aged men accidentally died when a sleeper hold was applied.

The public defender was appointed to represent Keyes. The office had formerly represented several of the state witnesses, who were jail inmates or involved in the buying and selling of drugs. Up until less than two weeks before Keyes’ trial began, the office represented Comer, who ultimately received a favorable plea deal from the state in numerous pending cases in exchange for his testimony at trial.

Keyes’ appointed counsel, however, had never met nor represented any of the state witnesses personally. The office withdrew from representing all state witnesses prior to trial and obtained waivers of confidentiality from the former clients. While counsel told Keyes of the office’s prior or simultaneous representation of the witnesses, counsel never asked nor discussed with Keyes whether Keyes was concerned about the potential conflict of interest. Counsel did not obtain a written waiver of any conflict and did not bring the conflict to the trial court’s attention. See generally R. Regulating Fla. Bar 4-1.7 (Conflict of Interest; Current Clients); R. Regulating Fla. Bar. 4-1.9 (Conflict of Interest; Former Clients).

Analysis

To establish a claim of ineffective assistance of counsel based on a conflict of interest, Keyes must show that counsel labored under an actual conflict of interest that adversely affected his lawyer’s performance. In Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002), our supreme court explained:

[I]n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler [v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ]; see also Quince v. State, 732 So.2d 1059, 1065 (Fla.1999). A lawyer suffers from an actual conflict of interest when he or she “actively represents] conflicting interests.” Cuyler, 446 U.S. at 350[, 100 S.Ct. 1708]. To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. See Herring v. State, 730 So.2d 1264, 1267 (Fla.1998). A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708, 64 L.Ed.2d 333. “[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id. If a defendant successfully demonstrates the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer’s representation. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052, 80 L.Ed.2d 674; Cuyler, 446 U.S. at 350, 100 S.Ct. 1708, 64 L.Ed.2d 333.
The question of whether a defendant’s counsel labored under an actual conflict of interest that adversely affected counsel’s performance is a mixed question of law and fact. See Cuyler, 446 U.S. at 342, 100 S.Ct. 1708, 64 L.Ed.2d 333; Quince, 732 So.2d at 1064. Once a defendant satisfies both prongs of the Cuyler test, prejudice is presumed and the defendant is entitled to relief. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052, 80 L.Ed.2d 674; Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333.

The existence of actual conflict, and whether the conflict adversely affected the lawyer’s performance, is a mixed question. This court defers to the postconviction court’s factual findings but reviews the legal conclusions de novo. State v. Larzelere, 979 So.2d 195, 208 (Fla.2008).

An imputed conflict with a public defender’s office may be enough to constitute an “actual conflict” where trial counsel is aware that the office represents, or has represented, state witnesses. See Bouie v. State, 559 So.2d 1113, 1115 (Fla.1990); R. Regulating Fla. Bar 4-1.10 (Imputation of Conflicts of Interest; General Rule). Cf. Mungin v. State, 932 So.2d 986, 1001-02 (Fla.2006) (holding that actual conflict was not established where trial counsel was not aware that his office was representing the state witness during trial); Hunter, 817 So.2d at 792 (holding that actual conflict was not established where counsel was not aware that state witness had previously been represented by the public defender’s office). Keyes failed to establish, however, that trial counsel’s conflict of interest amounted to an actual conflict that adversely affected counsel’s performance.

To establish the claim, Keyes was required to identify “specific evidence in the record that suggests that his or her interests were compromised.” Hunter, 817 So.2d at 792. The postconviction court made a detailed evaluation of Keyes’ claims as to the various witnesses represented by the public defender’s office. It concluded that although a serious breach of ethical standards occurred when counsel failed to obtain a waiver of conflict from Keyes, this deficiency did not prejudice the outcome of the trial or the performance of counsel. Counsel vigorously cross-examined the state witnesses, including Comer, and Keyes was not able to show how the testimony would have been different absent the ethical lapse. On appeal, Keyes likewise has not pointed to anything other than speculation as to how counsel’s representation was compromised. There is nothing in the record to show that his “interests were impaired or compromised for the benefit of the lawyer or another party.” Herring, 730 So.2d at 1267. “Without this factual showing of inconsistent interests, the conflict is merely possible or speculative and, under Cuyler, 446 U.S. at 350, 100 S.Ct. 1708, such a conflict is ‘insufficient to impugn a criminal conviction.’ ” Id. We find no error in the trial court’s conclusions.

As to the defense of involuntary intoxication, which had not yet been abolished as a defense at the time of commission of this crime, the trial court found that counsel’s strategic grounds for not requesting an instruction were reasonable. Moreover, the court found that the voluntary intoxication defense would not have been available, because the evidence showed that Keyes was not intoxicated at the time of the offense. Thus, Keyes not only did not establish deficient performance, he failed to show that it was “reasonably likely” that a voluntary intoxication defense would have succeeded at trial. Harrington v. Richter, — U.S. —, —, 131 S.Ct. 770, 791-92, 178 L.Ed.2d 624 (2011) (holding that prejudice under Strickland does not arise when a reasonable probability exists that the jury may have found reasonable doubt as to guilt, but rather when “[t]he likelihood of a different result [is] substantial, not just conceivable”). We find no error in the trial court’s findings and conclusions of law.

Finally, Keyes claims that counsel was deficient in failing to object to the medical examiner’s testimony regarding the cause of death. Instead, counsel cross-examined the doctor and obtained an admission that the opinion regarding cause of death was based solely on what others had said and not based on physical evidence. Counsel then used this to argue that the death was an accident.

Keyes argues that the decision was not reasonable because accident is not a defense to first degree felony murder. The jury, however, convicted Keyes of first degree premeditated murder as charged in the indictment. Keyes fails to show a substantial likelihood that challenging the precise manner of death would have altered the verdict. Keyes argues that, if counsel had objected, the cause of death would have remained a “mystery.” Almost certainly, however, in light of the other evidence, the jury would not have believed that the victim died of natural causes or that someone else had committed the murder if the cause of death had been listed as unknown. Moreover, the jury was aware that the expert found no physical evidence to substantiate his opinion.

For the foregoing reasons we affirm the denial of appellant’s motion for postconviction relief.

POLEN and TAYLOR, JJ., concur.


author: LEVINE, J.

text:
    David P. STARK and Evelyn Stark, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D10-4945.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied Sept. 7, 2012.

      Roy D. Wasson and Roberta Mandel of Wasson & Associates, Chartered, Miami, and Steven R. Simon of Steven R. Simon, P.A., Miami, for appellants.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in determining that there was no genuine issue of material fact as to whether the insurer was prejudiced by the notice given by the insureds to the insurer. We find that the trial court erred in determining that there was no issue of material fact as to whether the insurer was prejudiced by the timing of the notice given by the insureds.

The insureds had a homeowner’s insurance policy with the insurer when Hurricane Wilma caused significant damage to South Florida on October 24, 2005. The insureds’ policy had a deductible of $9,665 for hurricane damage. The specific provisions of the insurance policy required the insureds to comply with the following duties “after a loss to which this insurance may apply”:

a. give immediate notice to us or our agent....;
b. protect the property from further damage or loss, make reasonable and necessary temporary repairs required to protect the property, keep an accurate record of repair expenditures;
c. prepare an inventory of damaged or stolen personal property....;
d. as often as we reasonable require:
(1) exhibit the damaged property;
(2) provide us with records and documents we request and permit us to make copies;
e. submit to us, within 60 days after the loss, your signed, sworn proof of loss[.]

The insurance policy also required the insured be in “compliance with the policy provisions” in order to file suit.

After Hurricane Wilma, the insureds became “aware of roof damage” to their home. They hired a company to repair or replace approximately twenty-three broken roof tiles, for which they paid $300. The insureds also applied for financial relief from FEMA in order to cover the cost of the broken tiles. The insureds believed that the cost of repairing the damage “would not exceed the deductible” of $9,665.

Throughout the next few years, the insureds’ roof continued to leak and their home continued to suffer further damage. The insureds reported their claim to the insurer on March 9, 2009, over three years after Hurricane Wilma.

An investigator for the insurer observed fifty-two repaired roof tiles and thirteen replaced roof tiles, but was “unable to establish a date and cause of loss.” As a result of the investigator’s review, the insurer informed the insureds that the investigator could “not find any accidental direct physical loss to the dwelling which [could] be directly related to Hurricane Wilma.” The insureds provided to the insurer a receipt for $300 in repairs from 2005 reflecting that the repairs were “the result of storm damage caused by Hurricane Wilma.” In response, the insurer claimed that the receipt did not “sufficiently overcome [its] prejudiced ability to independently investigate the cause and date of any damage which necessitated the roof repairs.”

The insureds then sued the insurer for breach of contract. The insurer raised the insureds’ failure to comply with the post-loss duties under the policy as an affirmative defense, including their duty to give the insurer immediate notice of the alleged loss. In opposition to the insurer’s motion for summary judgment, the insureds filed several affidavits, including those of engineer Geoff Nicholson and public adjuster Ricardo McDonald.

Nicholson averred that he inspected the insureds’ home and roof on June 3, 2010. According to Nicholson, “[t]he inspection revealed a classic pattern of wind damage. The only possible event that could have caused this type of damage was Hurricane Wilma” Nicholson stated that “Hurricane Wilma caused the tile uplift and tile breakage damages that we observed on the roof.” Further, Nicholson opined that “within reasonable engineering probability ... the classic pattern of windstorm damage from Hurricane Wilma ... was clearly evident upon the inspection which was conducted in 2010 and would have been evident upon an inspection by” the insurer.

Also in opposition to the insurer’s motion, McDonald claimed that he had met with the insurer’s investigator who had inspected the insureds’ home. McDonald stated in his affidavit that the insurer’s investigator told McDonald “that there appeared to be storm damage to the [insureds’] roof.” McDonald believed the damage to the insureds’ roof was caused by Hurricane Wilma.

The trial court granted the insurer’s motion for summary judgment finding that the insureds failed to report the loss in a “timely fashion. And, therefore, it constitutes as presumed to be prejudice.” As a result of the granting of summary judgment, this appeal ensues.

We review de novo the grant of summary judgment by the trial court. Sunshine State Ins. Co. v. Jones, 77 So.3d 254, 257 (Fla. 4th DCA 2012). “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.” Id. (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)).

As a general matter, “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985). Thus the notice condition in an insurance policy “can be avoided by a party alleging and showing that the insurance carrier was not prejudiced by noncompliance.” Id. See also Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999, 1004 (Fla. 4th DCA 2002) (“Unless the carrier was prejudiced by the insured’s violation of the notice provision, the carrier could not avoid its duty to provide coverage for the expenses.”). Clearly, the burden is “on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts.” Macias, 475 So.2d at 1218. Whether the presumption of prejudice to the insurer has been overcome is “ordinarily ... a separate issue of fact.” Gonzalez v. U.S. Fid. & Guar. Co., 441 So.2d 681, 681 (Fla. 3d DCA 1983). Before the trial court should grant summary judgment, the record on such a motion should “conclusively foreclose[ ]” the insured’s “ability to overcome the presumption [of prejudice].” Robinson v. Auto Owners Ins. Co., 718 So.2d 1283, 1285 (Fla. 2d DCA 1998).

We find that the trial court erred in granting summary judgment. The trial court conclusively presumed prejudice to the insurer since the insurer was deprived of the opportunity to conduct a timely investigation. However, there remained a disputed issue of material fact as to whether the insurer was, in fact, prejudiced by the late notice from the insureds.

In the present case, the affidavits of Nicholson and McDonald created issues of material fact as to whether the insureds could overcome the presumption of prejudice applicable to the late notice provided to the insurer. Nicholson’s opinion that the insurer could still have observed the “classic pattern of windstorm damage” left by Hurricane Wilma as late as 2010 suggested that the insureds could convince a finder of fact that their noncompliance with the notice provision did not prejudice the insurer by depriving it “of the opportunity to investigate the facts.” Macias, 475 So.2d at 1218.

Further, McDonald’s declaration in his affidavit that the insurer’s investigator told him that there was storm damage to the insureds’ roof also presents an issue of material fact concerning the ability of the insureds to overcome the presumption of prejudice. We disagree with the insurer’s contention that McDonald’s rendition of what the investigator said was inadmissible hearsay. The investigator’s statement was admissible as a vicarious admission of the insurer. § 90.803(18)(d), Fla. Stat.; see, e.g., Botte v. Pomeroy, 497 So.2d 1275, 1277-78 (Fla. 4th DCA 1986). Finally, the statement was not offered to prove the truth of the matter asserted, i.e., that the insureds’ roof incurred storm damage; rather, it was offered to prove that the insurer had the opportunity to observe roof damage caused by Hurricane Wilma.

In summary, there remained issues of material fact regarding the insureds’ ability to overcome the presumption of prejudice applicable to the late notice of their damage claim given to the insurer. Accordingly, we reverse the entry of final summary judgment for the insurer and remand for further proceedings consistent with this opinion.

Reversed and remanded.

POLEN and HAZOURI, JJ., concur.

      . The insureds argue that an issue of material fact existed as to whether they in fact complied with the notice provision, based on their belief that the $300 in damage was not a loss to which their insurance "may apply” in light of their $9,665 deductible. Because we find that the trial court erred under Macias, we decline to address this issue. Rather, we assume for purposes of this opinion, without deciding its merits, that the notice provided by the insureds did not comply with the provision requiring immediate notice.

      . Specifically, Nicholson gave his opinion that, within reasonable engineering probability:
      the classic pattern of windstorm damage from Hurricane Wilma which was observed on the [insureds'] roof was clearly evident upon the inspection which was conducted in 2010 and would have been evident upon an inspection by [the insurer] and therefore [the insurer] was not prejudiced in it’s [sic] investigation of this claim.

      .In addition, McDonald reiterated that the insurer "was not prejudiced by the late reporting of this claim.”

      . We also decline the insurer’s invitation to affirm the granting of summary judgment under the tipsy coachman doctrine based on the insureds’ alleged failures to comply with other post-loss duties under the insurance policy. The transcript of the summary judgment hearing reveals that the trial court based the entry of summary judgment only on the insureds’ failure to provide timely notice. An appellate court "should not ordinarily decide issues not ruled on by the trial court in the first instance.” Akers v. City of Miami Beach, 745 So.2d 532, 532 (Fla. 3d DCA 1999). We, therefore, "express no opinion as to the legal merits of [the insurer’s] alternative ground[s] at this time.” Id.


author: PER CURIAM.

text:
    Zachary KARL, et al., Appellants/Cross-appellees v. CAREFREE LIFESTYLES, INC., etc., Appellee/Cross-appellant.
    No. 3D11-2265.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Restani, Dittmar & Hauser and Helen A. Hauser, for appellants/cross-appellees.
    Gary S. Gostel, for appellee/cross-appel-lant.
    Before WELLS, C.J., and CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

This is an appeal and cross-appeal from an amended final judgment in favor of Carefree Lifestyles, Inc., in its action for breach of a non-compete agreement by a former employee, . Zachary Karl, and Celebrity Concierge Management, LLC.

The parties agree that pursuant to this Court’s opinion in Sostchin v. Doll Enterprises, Inc., 847 So.2d 1123 (Fla. 3d DCA 2003), the calculation of net lost profits awarded to Carefree Lifestyles (“Carefree”) failed to deduct the expenses of salaries paid to its officers. Accordingly, we reverse and remand solely for a determination of the amount Carefree paid for officer compensation and for a recalculation of the damage award to reflect the deduction of the officer compensation from the net loss profit calculation. We affirm as to all other points raised on both the appeal and the cross-appeal.

Accordingly, the judgment is affirmed in part and reversed in part and remanded for proceedings in accordance with this opinion.

Affirmed in part; reversed in part.


text:
    Yvette RICOTTA, Appellant, v. UNIVERSITY OF MIAMI, Appellee.
    No. 3D11-2918.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Rehearing Denied Aug. 1, 2012.
    Dana M. Gallup, Hollywood, for appellant.
    Isicoff, Ragatz & Koenigsberg and Teresa Ragatz and Erie D. Isicoff, Miami, for appellee.
    Before SALTER and FERNANDEZ JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Wood v. Green, 323 F.3d 1309 (11th Cir.2003), cert. denied, 540 U.S. 982, 124 S.Ct. 467, 157 L.Ed.2d 373 (2003); Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir.1994), cert. dismissed, 513 U.S. 1052, 115 S.Ct. 657, 130 L.Ed.2d 560 (1994).


author: WELLS, Chief Judge.

text:
    CERTAIN INTERESTED UNDERWRITERS AT LLOYD’S LONDON Subscribing to Policy No. 328-2037, Appellant, v. PITU, INC., a foreign corporation, Appellee.
    No. 3D11-2233.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Rehearing Denied Aug. 3, 2012.

      Phelps Dunbar, Bridget Remington, Vincent P. Beilman, Kimberly G. Jones and John Mullen, Tampa, for appellant.
    Arnold R. Ginsberg, for appellee.
    Before WELLS, C.J., and FERNANDEZ, J„ and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Certain Interested Underwriters at Lloyd’s London Subscribing to Policy No. 828-2037 (“Lloyd’s”) appeals from a declaratory judgment awarding homeowner Pitu, Inc., $1,240,199.67, plus interest for water damage sustained following a water pipe rupture. Because the insurance policy at issue expressly limits recovery for such damage to $25,000, we reverse.

On May 29, 2009, Lloyd’s issued an “all risk” homeowner’s insurance policy to Pitu for a dwelling located in Miami-Dade County. While the policy was in effect, a water pipe located in one of the upper stories of the home burst, resulting in extensive water damage to both the premises and personal property located therein. Pitu estimated the damage sustained to the dwelling at $907,325.65 and to its personal property at $40,236.00.

Lloyd’s acknowledged that the claimed water damage was a covered loss under the policy and estimated that loss to be $673,378.28. However, relying on a policy endorsement limiting coverage for water damage to $25,000, Lloyd’s agreed to pay only that amount for the loss sustained.

Pitu sued Lloyd’s for breach of contract and for a declaratory judgment claiming that, rather than limiting coverage provided by the policy, the endorsement “provided coverage for water damage that would not be covered under the insurance policy.” More specifically, Pitu alleged that, “for an additional premium,” the endorsement provided $25,000 in coverage for water damage otherwise expressly excluded from coverage under the policy.

Following a hearing on the parties’ cross motions for summary judgment, at which the court below stated “I don’t think that limitation [endorsement] applies to the water damage that’s complained of here,” judgment was entered in Pitu’s favor. Because the policy and endorsement unambiguously limit coverage for the damage sustained to $25,000, we reverse.

Our standard of review is de novo. See State Farm Mut. Auto. Ins. Co. v. Menendez, 24 So.3d 809, 810 (Fla. 3d DCA 2010) (“Because the interpretation of an insurance contract presents a question of law, this Court’s standard of review is de novo.”), rev’d on other grounds, 70 So.3d 566 (Fla.2011); State Farm Mut. Auto. Ins. Co. v. Reis, 926 So.2d 415, 416 (Fla. 1st DCA 2006) (confirming de novo standard of review for construing an insurance contract). “Insurance contracts, like other contracts, ‘should receive a construction that is reasonable, practical, sensible, and just.’ ” State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031 (Fla. 2d DCA 2009) (quoting Gen. Star. Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004)). To this end, “insurance contracts are interpreted according to the plain language of the policy except ‘when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.’ ” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986)). Moreover, “a single policy provision should not be read in isolation and out of context, for the contract is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, endorsements, or riders.” State Farm Mut. Auto. Ins. Co. v. Mashburn, 15 So.3d 701, 704 (Fla. 1st DCA 2009).

The policy at issue here is an all risk policy which covers both the dwelling (Coverage A) and the personal property in it (Coverage C). Coverages A and C do not insure for loss “[c]aused by,” among other things, wear and tear, deterioration, latent defect, mechanical breakdown, rust and corrosion, unless those causes result in not otherwise excluded water damage from a plumbing system:

We insure against risk of direct loss to property described in Coverages A ... and C, only if that loss is a physical loss to property.
We do not insure, however, for loss:
1. Under Coverages A ... and C:
a. Excluded under SECTION I— EXCLUSIONS
b. Caused by:
4. Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Inherent vice, latent defect, mechanical breakdown;
(c) Smog, rust or other corrosion, mold, wet or dry rot;
If any of these cause water damage not otherwise excluded, from a plumbing ... system ..., we cover loss caused by the water including the cost of tearing out and replacing any part of a building necessary to repair the system....

Further, as to Coverage C, while there is no coverage for breakage of certain personal property, there is coverage for breakage that results from water not otherwise excluded by the policy:

We do not insure, however, for loss:
3. Under Coverage C caused by:
(a) Breakage of:
(1) Eyeglasses, glassware, statuary, marble;
(2) Bric-a-brac, porcelains and similar articles other than jewelry, watches, bronzes, cameras and photographic lenses.
There is coverage for breakage of the property by or resulting from:
(6) Water not otherwise excluded....

Because none of the policy’s exclusions apply to the water damage at issue here, the parties conceded below that the complained of water damage was a covered loss under these policy provisions. The parties instead disputed application of a policy endorsement limiting recovery for water damage loss, with Lloyd’s claiming the endorsement limits Lloyd’s liability for covered water losses to $25,000 and Pitu arguing — and the court apparently agreeing — that the endorsement extends an additional $25,000 in coverage for water damage otherwise excluded by the policy. Nothing in the policy supports the latter proposition. To the contrary, the endorsement at issue is clear and unambiguous in its limitation of coverage for those losses covered by the policy to $25,000:

ENDORSEMENT
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
WATER DAMAGE AGGREGATE LIMITATION
READ CAREFULLY
In consideration of the premium charged, it is hereby understood and agreed that for such insurance as is afforded by this policy, loss(es) paid arising out of, or caused by, water damage shall be subject to a maximum amount of $25,000 during the policy term.
ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED.

Recovery for the losses claimed by Pitu should, therefore, have been limited to $25,000.

The judgment on appeal is therefore reversed with this matter remanded for entry of judgment in Lloyd’s favor.

      . Pitu has also sued the insurance agency and the agent that sold it the subject policy; these claims remain pending below and are not subject to this appeal.

      . Coverages A and C exclude coverage, among other things, for (1) discharge, leakage, or overflow from "[fjreezing of a plumbing ... system ... while the dwelling is vacant” unless reasonable care has been taken to heat the building or shut off the water supply; and (2) freezing, thawing, pressure or weight of water or ice to fences, pavement, patios/swimming pools, foundations, retaining walls, bulkheads, piers, wharfs or docks. The policy itself expressly excludes coverage for the following types of water damage: (1) flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these; (2) water which backs up through sewers or drains or which overflows from a sump; and (3) water below the surface of the ground which exerts pressure or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure. By virtue of a separate policy endorsement not at issue here, the second of these water damage exclusions was deleted and, for an addition premium, Pitu received up to $5,000 in coverage for loss caused by water back up and sump overflow.

      . We also reject the argument made for the first time on appeal that the primary focus of this matter should be on the broken pipe rather than the water which came from it which, according to Pitu, proximately caused the entire loss making the endorsement inapplicable. The endorsement expressly applies to "loss(es) ... arising out of, or caused by, water damage.” (Emphasis added). "The term ‘arising out of' is broader in meaning than the term 'caused by’ and means 'originating from,' ‘having its origin in,’ ‘growing out of,’ 'flowing from,’ ‘incident to’ or ‘having a connection with'_” Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996); see also Nat’l Indem. Co. v. Corbo, 248 So.2d 238, 240 (Fla. 3d DCA 1971) (recognizing that "arising out of” means "causally connected with, not proximately caused by”); Taurus Holdings, Inc., 913 So.2d at 533 (confirming "the proposition that ‘arising out of does not equate to proximate cause — at least in coverage provisions”). Thus, regardless of whether the broken pipe was the proximate cause of the loss, there is no dispute, and indeed Pitu did not dispute, that this loss was incident to or connected with the water flowing from it.


author: SUAREZ, J.

text:
    Phillip BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3078.
    District Court of Appeal of Florida, Third District.
    July 5, 2012.
    Rehearing Denied Aug. 9, 2012.
    Phillip Butler, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Phillip Butler appeals from the denial of his petition for post-conviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800. We affirm.

On February 3, 2012, we ordered Butler to show cause why he should not be prohibited from filing further pro se proceedings with this Court regarding his May, 1999 conviction for nine felony counts in lower court case number F98-18181. We have carefully considered Butler’s response to the Court’s order to show cause, and we conclude that good cause has not been shown. We now prohibit Butler from filing any additional pro se appeals, motions, pleadings or petitions relating to his conviction and sentence in lower court case number F98-18181.

Of the fifteen post-conviction motions that Butler has filed below, one of them raises claims identical to those raised in the current petition. On March 3, 2006, Butler filed a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800, raising the claim that 1) double jeopardy bars his convictions in counts 2-5 for armed kidnapping because they all involved the same elements, and 2) that he should not have been convicted of separate counts of attempted armed robbery in counts 6-9 because the offenses were part of the same criminal transaction. The trial court denied relief on those issues because each of the counts 2-5 alleged a different victim, and in counts 6-9 the jury found that the defendant robbed four separate individuals such that four separate convictions on those counts were proper. This Court affirmed. See Butler v. State, 941 So.2d 430 (Fla. 3d DCA 2006).

Butler’s current petition, denied by the trial court on October 27, 2011, raises the same issues, i.e., that his right against double jeopardy was violated because he was convicted for four counts of kidnapping with a weapon and four counts of attempted armed robbery. He claims that this petition is neither time barred nor successive because the current claim is founded on manifest injustice, allowing the claim to be raised at any time and requiring substantive relief. The points raised and argument made in this current post-conviction petition are nearly identical to those raised and argued in his March 2006, Rule 3.800 petition. The issues raised have been considered and determined on the merits. The claim of “manifest injustice” is without merit and fails to overcome the bar against successive filings. See Hepburn v. State, 934 So.2d 515 (Fla. 3d DCA 2005).

We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations. See State v. Spencer, 751 So.2d 47, 49 (Fla.1999) (citing Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998)); Attwood v. Singletary, 661 So.2d 1216, 1217 (Fla.1995); Art. 1, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury-”). On the other hand, there is no constitutional right to file a frivolous lawsuit. See Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606, (1996) (holding that depriving someone of a frivolous claim deprives him of nothing at all, except perhaps the punishment of sanctions). Activity of this type not only wastes public resources, but also diminishes the ability of the courts to devote their finite resources to the consideration of legitimate claims. See Spencer, 751 So.2d at 48. Because of the potential for waste and abuse, the legislature recently has admonished the judiciary that “it is the Legislature’s intent that all terms and conditions of direct appeal and collateral review [shall] be strictly enforced.” § 924.051(8), Fla. Stat. (2005) (emphasis added). See also O’Brien v. State, 689 So.2d 336, 337 (Fla. 5th DCA 1997) (directing that post-conviction litigants in that court be on notice of the newly-adopted admonition and warning of consequences for violations).

Based on a careful review of Butler’s record in this Court, we believe that he has exhausted his post-conviction remedies. Cassady v. State, 683 So.2d 1194, 1194 (Fla. 5th DCA 1996) (“[The defendant] appears to have exhausted his post-conviction remedies and has certainly exhausted us in doing so.”); Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”). For the foregoing reasons, we order that from this time forward any pleadings or motions filed in this Court relating to lower court case number F98-18181 must be reviewed and signed by an attorney licensed to practice law in the State of Florida, and the Clerk of the Third District Court of Appeal is directed not to accept any further pro se pleadings from appellant relating to case number F98-18181.

So ordered.

      . Butler was convicted after jury trial of one count of burglary with assault while armed, four counts of kidnapping with a weapon or an aggravated battery, and four counts of attempted robbery with a deadly weapon.

      . See State v. Spencer, 751 So.2d 47 (Fla.1999).

      . We note that while this appeal was pending, the Court issued a clerk’s order in Case No. 3D11-2377, prohibiting Butler from filing any further pro se pleadings or motions related to lower court case number F98-18181. See Butler v. State, 88 So.3d 948 (Fla. 3d DCA 2012).


text:
    Dennis HUTCHINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-619.
    District Court of Appeal of Florida, Third District.
    July 5, 2012.
    Rehearing Denied Aug. 3, 2012.
    Dennis Hutchins, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
   An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Diane V. Ward, Judge.

Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.

Affirmed. See Stephens v. State, 787 So.2d 747, 753-54 (Fla.2001); Lynch v. State, 293 So.2d 44, 45 (Fla.1974).