author: GROSS, J. DAMOORGIAN, J., specially

text:
    WESTON TC LLLP, Appellant, v. CNDP MARKETING INC., a Florida corporation, and Helen C. Schur Parris, Appellees.
    No. 4D10-1063.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Peter A. Mardinly, Weston, for appellant.
    Michael S. Bendell of Michael Bendell, P.A., Boca Raton, for appellees.
   GROSS, J.

We reverse an order of dismissal because there was sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to avoid dismissal.

In February 2008, Weston TC LLLP filed suit against CNDP Marketing, Inc. and Helen C. Schur Parris for breach of a lease. The defendants answered and counterclaimed. Between February and October 2008, the parties engaged in discovery and other litigation activity. On December 81, 2008, the defendants moved for sanctions against the plaintiff.

No further file activity occurred until November 25, 2009, when the defendants filed a notice of lack of prosecution. In their notice, the defendants asserted Weston had not filed anything for ten months and stated they would seek a dismissal for lack of prosecution after one year of inactivity under Rule 1.420(e). On January 19, 2010, within the 60-day grace period provided by Rule 1.420(e), Weston filed a notice of the absence and unavailability of its attorney; the notice provided that it should be construed as “an application and request for continuance, extension of time and/or for [protective [o]rder as appropriately required.”

One week later, the defendants moved to dismiss for lack of prosecution. They argued that the notice of absence and unavailability was insufficient to avert a dismissal under the rule, citing Chemrock Corp. v. Tampa Electric Co., 23 So.3d 759 (Fla. 1st DCA 2009), rev’d., — So.3d -, 2011 WL 2566394 (Fla.2011).

In response, Weston argued that its notice was sufficient record activity and contended that Chemrock was inconsistent with Wilson v. Salamon, 923 So.2d 363 (Fla.2005), and the district court opinions applying that case. In a supporting affidavit, Weston’s attorney averred that he lived full-time in Pennsylvania in close proximity to his elderly mother. The attorney described in detail his mother’s severely deteriorating health and how much of his time from June to November 2009 was spent taking care of her, eventually leading to his neglect of the case. When confronted with the defendants’ notice of failure to prosecute, the attorney faxed a settlement offer to the defendants’ attorney, which was good until December 31. The defendants did not respond. The attorney then attempted to assess the state of the contested discovery in order to file something of substance but ran out of time. After determining that the plain language of Rule 1.420(e) required only some record activity, the attorney filed the January 19 notice of absence.

At a hearing, the circuit court concluded that the January 19 notice of absence was insufficient record activity to comply with Rule 1.420(e) and dismissed the case for lack of prosecution.

We agree with Weston that there was sufficient record activity in this ease for it to avoid dismissal under Rule 1.420(e). Whether there has been “record activity” within the meaning of Rule 1.420(e) is a question of law reviewed de novo, as it involves the construction of a procedural rule. See Swait v. Swait, 958 So.2d 552, 553 (Fla. 4th DCA 2007).

The current version of Florida Rule of Civil Procedure 1.420(e) provides:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

For many years, Florida courts drew a distinction between “active” and “passive” record activity, with only active activity being sufficient to avoid dismissal under Rule 1.420(e). See, e.g., Gulf Appliance Distribs. v. Long, 53 So.2d 706 (Fla.1951) (construing the statutory predecessor to Rule 1.420(e), which had different operative language than the rule). Courts struggled to apply the framework. Wilson v. Salamon, 864 So.2d 1122, 1123 (Fla. 2d DCA 2003) (“In the fifty years since Gulf Appliance was decided, the courts have never managed to establish a workable, predictable definition that distinguishes ‘passive’ activity from ‘active’ activity.” (citations omitted)). After the second district in Wilson certified a question on the framework of the rule, the Supreme Court took the opportunity to recede from Gulf Appliance and announce a bright-line rule. See Wilson v. Salamon, 923 So.2d 363 (Fla.2005).

In Wilson, the circuit court had dismissed an action for failure to prosecute, and the district court reluctantly affirmed. Id. at 363-64. In the operative twelvemonth period, one of plaintiffs out-of-state attorneys filed a motion to appear pro hac vice as co-counsel, which was granted by an order filed in the record. Id. at 364. There was no further activity in the record after that order until the defendants moved to dismiss. Id. In affirming the circuit court’s dismissal of the action, the second district held the pro hac vice motion to be insufficient activity to preclude dismissal under Rule 1.420(e) and asked the Supreme Court, by way of certified question, whether the order granting the motion was itself sufficient record activity. Id.

The Supreme Court reviewed the history of Rule 1.420(e), which replaced the statute at issue in Gulf Appliance, and noted that the case law spawned by Gulf Appliance diverged from the rule’s plain language, as amended by the Court. See id. at 364-67. The Court quoted with approval language from its earlier opinion in Metropolitan Dade County v. Hall, which indicated that to decide whether there was record activity under Rule 1.420(e) “requires only a review of the record. There is either activity on the face of the record or there is not.” Id. at 366-67 (emphasis in Wilson removed) (quoting Metro. Dade Cnty. v. Hall, 784 So.2d 1087, 1090 (Fla.2001)). Consistent with this statement in Hall, the Supreme Court abandoned the active/passive distinction and established a bright line rule:

[T]he language of the rule is clear — if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review of the face of the record reveals activity by “filings of pleadings, order of court, or otherwise,” an action should not be dismissed. See Hall, 784 So.2d at 1090. This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court. As Justice Wells noted in Hall, there is either activity on the face of the record or there is not. Id. We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active. It is this burden which has created the difficulty with which litigants and trial courts have struggled to determine whether a particular filing or action will advance the cause to resolution.
The subjective analysis that is currently being applied in that struggle has simply proven unworkable and has spurred an increase in non-merit-based litigation that has led us down a path we are no longer willing to follow.

Id. at 368. Applying the bright-line rule, the Court held that the filing of the motion for pro hac vice constituted record activity precluding dismissal. Id. at 369.

The version of Rule 1.420(e) at issue in Wilson is slightly different than the version in this case. There, the rule did not provide for notice and an opportunity to re-commence prosecution to avoid dismissal. The Supreme Court subsequently amended the rule to establish that procedure by breaking up the one-year period into a ten-month period, followed by notice, and a 60-day grace period, during which the plaintiff should act. See In re Amendments to The Fla. Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 176, 181-82 (Fla.2005); Fla. R. Civ. P. 1.420, comm, note to 2005 amend. In all other respects, including the “record activity” language, the rule remains the same. Thus, the amendment to the rule did not alter the meaning of “record activity,” and post-Wilson, pre-amendment cases are still good law on the rule’s definition of “record activity.”

After Wilson, every case construing Rule 1.420’s record activity provision has done so broadly. Indeed, Judge Cope of the third district observed, “Wilson has uniformly been interpreted to mean that any document appearing in the record within, one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute.” Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006) (emphasis in original) (citations omitted) (holding that ex parte motions for a clerk’s default counted as record activity even though they were meritless).

In three cases, the second and third districts have held that for the purpose of determining whether record activity has occurred, a filing during the rule’s 60-day grace period is judged by the same standard that is applied to a filing occurring before the issuance of a notice of a lack of record activity; these cases thereby applied Wilson to the entire one-year period described in Rule 1.420(e). See Pagan v. Facilicorp, Inc., 989 So.2d 21 (Fla. 2d DCA 2008) (a motion to stay the proceedings); Padron v. Alonso, 970 So.2d 399 (Fla. 3d DCA 2007) (“at least one filing within sixty days of the notice of intent to dismiss for lack of prosecution,” but not specifying what kind of filing); Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007) (“a motion for hearing and for witness attendance”).

This court followed Edwards in Lingo Construction v. Pritts Inc., 990 So.2d 705 (Fla. 4th DCA 2008); we held that a motion to set a date for arbitration, filed on the fifty-ninth day after a notice of lack of prosecution was issued, was sufficient to avoid dismissal under Rule 1.420(e).

To avoid reversal, the defendants rely heavily on Chemrock Corp. v. Tampa Electric Co., as they did below. There, the first district focused on the 60-day grace period after the filing of a notice of failure to prosecute. The court held that a plaintiff’s “motion in opposition” filed during the grace period was insufficient to avoid dismissal. 23 So.3d at 763. More broadly, the court held that “the Wilson definition of ‘record activity’ ” was “inapplicable to the sixty-day grace period following service of the notice” under Rule 1.420(e). Id. The Florida Supreme Court recently reversed the first district’s decision, holding that the Wilson standard for record activity applied to the entire twelve month period. See Chemrock Corp. v. Tampa Elec. Co., — So.3d at -(Fla. June 30, 2011) (“Just as we held in Wilson, the bright-line interpretation of rule 1.420(e), under which any filing of record is sufficient to preclude dismissal, applies to both time periods set forth in the amended rule.”).

Though the Supreme Court’s decision in Chemrock compels reversal in this case, we write to make two points about the first district’s analysis and explain the operation of Rule 1.420(e).

First, Chemrock failed to apply the plain language of the rule before looking to extrinsic sources. The Florida Rules of Civil Procedure “are construed in accordance with the principles of statutory construction,” Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006), so that an interpretation of the rules should give effect to the drafters’ intent, which is determined primarily from a rule’s language, see Larimore v. State, 2 So.3d 101, 106 (Fla.2008). When a rule is clear and unambiguous, courts will not look behind the rule’s plain language or resort to rules of construction to ascertain intent. See Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). For this reason, we disagree with Chemrock's reliance on the committee note to the 2005 amendment to Rule 1.420(e). See Chemrock, 23 So.3d at 761 (stating that the second and third district’s application of the rule was “contrary to the Committee’s intent and divests the Rule of all meaning”). Because the language of the rule is, with one exception, unambiguous, there is no need to turn first to a committee note as an aid to interpret the meaning of “record activity.”

Second, and following from our first point of disagreement, the plain language of Rule 1.420(e) does not impose a heightened burden of record activity on a plaintiff during the sixty day grace period. The rule uses the same phrase — “record activity” — in describing what must be absent in the ten-month period and what is required in the grace period after a notice of no record activity. The 2005 amendment was designed to create a notice-and-opportunity requirement — and nothing more. See generally Swait, 958 So.2d at 553 (Fla. 4th DCA 2007) (noting that the amendment “sets out a new procedural framework” but “does not change that the minimum period of inactivity ... is one year.”); Philip J. Padovano, Civil Practice § 12:3 (2009 ed.) (“[T]he general purpose of the rule remains the same.”).

Under the rule, a plaintiff faced with dismissal for failure to prosecute can do one of three things: (1) during the grace period, move for and obtain a stay; (2) during the grace period, file something; or (3) do nothing during the grace period but show good cause why the action should remain pending. As the Chemrock court implied, these options create an ambiguity, since the first and third options “giv[e] two examples of filings which may be made during the sixty-day period,” “[njeither [of which] will automatically avoid dismissal.” 23 So.3d at 762. To resolve this ambiguity, which would seemingly allow actions under options one and three to satisfy the record activity requirement, the court concluded that not every filing during the grace period would constitute sufficient record activity, thereby limiting Wilson to the ten-month period. Id. at 762-63. However, where possible, a court must give full effect to all rule provisions and construe related rule provisions in harmony with one another. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992).

Harmonizing these three options, we read the rule as having one option based on record activity and two others based on stays and showings of good cause, so that a motion for a stay and a showing of good cause are excluded from the rule’s classification of “record activity.” Indeed, if a motion for stay is made and a stay timely obtained, the stay would take the case out of Rule 1.420(e) and its one-year period altogether. See Padovano, Civil Practice § 12:3 & n. 21 (“An action may not be properly dismissed for lack of prosecution if it has been stayed or abated by a previous order of the court.”). Likewise, a showing of good cause establishes why dismissal is not appropriate even though there has been no record activity under the rule. Accordingly, under the rule, motions for stay and showings of good cause are exceptions, and the proper scope of record activity is, therefore, anything that could be filed except for those two things.

The Chemrock approach to Rule 1.420(e) would have resurrected the legal quagmire that Wilson sought to eliminate by establishing a bright-line rule; filings during the 60-day grace period would have been evaluated under the same active/passive framework that proved so difficult prior to Wilson.

Based on the foregoing, Weston’s January 19 filing was sufficient to avoid dismissal under Rule 1.420(e).

Reversed.

POLEN, J., concurs.

DAMOORGIAN, J., concurs specially with opinion.

DAMOORGIAN, J., specially

concurring.

Agree with the majority as I must, I question the very notion that the party against whom suit is brought has the responsibility to “wake up” the party who brought the claim. Cases that languish in our system of justice have an institutional cost. For example, case counts have long been a significant factor in structuring court budgets. The longer a case is pending the more it costs the taxpayers. The same is true for the party against whom suit is brought. There are often reporting requirements imposed on private and public entities concerning pending litigation which impacts investment in and funding of these organizations. I do not think our system of justice benefits from rules that enable cases to languish for ten months only to be resurrected by what is now defined as record activity.

      . See also Bakala v. Bakala, 58 So.3d 423 (Fla. 2d DCA 2011) (a suggestion of death and motion for substitution); Guerrero v. Miami-Dade Cnty., 994 So.2d 472 (Fla. 3d DCA 2008) (a timely response to a motion to dismiss for failure to prosecute); Norman v. Darville, 964 So.2d 864 (Fla. 2d DCA 2007) (a notice of change of address); London v. Baxter Healthcare Corp., 965 So.2d 307 (Fla. 3d DCA 2007) (a status report); Miami-Dade Cnty. v. Walker, 948 So.2d 68 (Fla. 3d DCA 2007) (a notice of change of firm name); Johnson v. Maroone Ford LLC, 944 So.2d 1059 (Fla. 4th DCA 2006) (a second request for production); Rubio v. Cuba, 933 So.2d 1292 (Fla. 4th DCA 2006) (a notice of deposition, even though the deposition was subsequently cancelled); Reddy v. Farkus, 933 So.2d 595 (Fla. 5th DCA 2006) (a notice of cancellation of a hearing on a summary judgment motion); Cisko v. Phoenix Med. Prods., Inc., 930 So.2d 853 (Fla. 2d DCA 2006) (an interrogatory); Walker v. McDonough, 929 So.2d 1127 (Fla. 4th DCA 2006) (two notices of change of address, one from each side, and defense counsel’s notice of absence); Richards v. Sheriff of Palm Beach Cnty., 925 So.2d 1166 (Fla. 4th DCA 2006) (a motion by an attorney to withdraw and the order granting the motion); Hunnewell v. Palm Beach Cnty., 925 So.2d 468 (Fla. 4th DCA 2006) (an order denying a first motion to dismiss); Nie v. Beaux Gardens Assocs., Ltd., 923 So.2d 1200 (Fla. 3d DCA 2006) (a notice for pretrial conference and a notice for case management conference with a proposed stipulation for case management order); Comm’l Union Ins. Co. v. Marine Sales & Servs., Inc., 923 So.2d 535 (Fla. 4th DCA 2006) (a civil cover sheet); Frisbie v. Gardiner, 917 So.2d 403 (Fla. 4th DCA 2006) (a motion to withdraw as counsel and an order granting the motion); Lynch v. United Distribs., Inc., 915 So.2d 274 (Fla. 4th DCA 2005) (a notice of compliance with discovery).


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    Kimberly M. ANDREWS, et al., Appellants, v. Rudolph E. FREY and Shannon D. Frey, Appellees.
    No. 5D10-2068.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2011.

      James C. Hauser of Attorney’s Fees in Florida, Maitland, for Appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellee.
   COHEN, J.

In Nichols v. State Farm Mutual, 851 So.2d 742, 746 (Fla. 5th DCA 2003), this court stated that a “proposal for settlement is intended to end judicial labor, not create more.” (Citation omitted.) This case is but another example demonstrating that the authorizing statute and implementing rule encourage just the opposite. The issue in this appeal is the validity of a proposal for settlement that conditions acceptance on dismissing a defendant who is not an offeror.

Appellants, Kimberly M. Andrews and her minor daughter, Kyla Andrews, filed suit against Shannon D. Frey and Rudolph E. Frey, her father (sometimes collectively referred to as “Freys”), for injuries suffered in an automobile accident. Appellants sought damages from Shannon Frey for her negligence and from Rudolph Frey based on a theory of vicarious liability under the dangerous instrumentality doctrine. The Freys did not dispute their liability, only that Appellants sustained permanent damages. Prior to trial, Shannon Frey served separate proposals for settlement on both Kimberly Andrews and Kyla Andrews.

The proposals for settlement were essentially identical except for the name of the offeree and the amount being offered. Each proposal for settlement identified Shannon Frey as the offeror and required the execution of a “full Release releasing Defendants, SHANNON D. FREY and RUDOLPH E. FREY, and their insurers, with regard to any and all claims that arose as a result of the subject incident set forth in Plaintiffs Complaint....” If accepted, the parties would also file a joint stipulation dismissing the suit with prejudice. As consideration, Shannon Frey offered $50,000 to Kimberly Andrews and $10,000 to Kyla Andrews. Both offers were rejected.

At the conclusion of a jury trial, Kimberly Andrews’ net judgment after set-off was $21,416.67; Kyla Andrews’ net judgment after set-off was $0. The Freys subsequently moved for attorney’s fees and costs based on the rejection of the proposals for settlement, notwithstanding the fact that only Shannon Frey served the proposals for settlement. The trial court granted the motion and entered a final judgment against Kimberly Andrews and in favor of the Freys for $34,739.33. This timely appeal followed.

An offer of judgment or proposal for settlement, as it is often referred to, is intended to encourage settlement of litigation. Without detailing every requirement, this is accomplished by serving a proposal stating the amount, claims being settled, and any conditions and nonmone-tary terms on another party to the litigation. See § 768.79, Fla. Stat.; Fla. R. Civ. P. 1.442. If it is a joint proposal, it must “state the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3).

Upon receipt, the receiving party must assess her case and determine whether to accept or reject the proposal. This assessment must be made objectively and honestly because a party who rejects a reasonable offer may be liable for the sending party’s attorney’s fees and costs from the date of the proposal. § 768.79, Fla. Stat. To take advantage of this penal aspect of the offer of judgment statute, however, the sending party must strictly comply with the requirements in section 768.79 and rule 1.442. See Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003) (offer of judgment statute and rule 1.442 are in derogation of common law and strictly construed). The proposal’s terms must also be “sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offer-ee’s decision,” it will be invalidated for failing rule 1.442’s requirement that all conditions and nonmonetary terms be stated with particularity. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). Whether a proposal for settlement complies with the requirements in section 768.79 and rule 1.442 is reviewed de novo. See Frosti v. Creel, 979 So.2d 912, 915 (Fla.2008); Sparklin v. S. Indus. Assocs., Inc., 960 So.2d 895, 897 (Fla. 5th DCA 2007).

The dispute in this case concerns the condition in the proposals for settlement requiring the individual offeree release both Shannon and Rudolph Frey, even though Shannon Frey was identified as the sole offeror. We reject Appellants’ initial argument that this provision rendered the proposals ambiguous because it was unclear whether they were joint proposals. The proposals for settlement clearly and unequivocally stated that Shannon Frey was the sole offeror. The fact that the proposals conditioned acceptance on releasing Rudolph Frey neither created an ambiguity, nor transformed them into joint offers. See Eastern Atl. Realty & Inv., Inc. v. GSOMR LLC, 14 So.3d 1215 (Fla. 3d DCA 2009); Alioto-Alexander v. Toll Bros., Inc., 12 So.3d 915 (Fla. 4th DCA 2009).

Appellants also argue that the proposals for settlement were invalid because they did not differentiate the monies offered to settle their individual claims against Shannon and Rudolph Frey, yet required them to release Rudolph Frey if they wanted to accept the proposals. As a result, Appellants were unable to independently evaluate their claims against Rudolph Frey separate and apart from their claims against Shannon Frey. Appellants analogize this situation with that in Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla.2010), where the supreme court invalidated a joint proposal for settlement that was conditioned on the mutual acceptance of both offerees. The supreme court reasoned that conditioning acceptance on the agreement of both offerees prevented the individual offerees from independently evaluating and settling his claims with the offeror. Id. Appellants argue that “[tjhere is no legal or logical reason to differentiate an offer of judgment made by a defendant contingent on acceptance from multiple plaintiffs, from an offer of judgment made by a defendant contingent on dismissal of multiple defendants.”

Appellant’s argument is unpersuasive for two reasons. First, the proposals for settlement in this case were not joint and therefore did not need to apportion the amounts between Shannon and Rudolph Frey. Second, the proposals in this case are not analogous to those in Gorka. The joint proposal in Gorka was conditioned on acceptance by both offerees. Thus, neither offeree had any independent control to settle his claims against the offeror. This concern is not implicated in this case because Appellants did not have an independent claim against Rudolph Frey to evaluate or settle.

In this case, the only disputed issue was whether Appellants suffered permanent damages; the issues of Shannon Frey’s negligence and Rudolph Frey’s vicarious liability were not disputed. Thus, the only issues Appellants had to evaluate were whether they could prove they sustained permanent damages, the amount of those damages, and from whom they would collect. Stated differently, Appellants only had to determine the total value of their claims and which party could pay. Shannon Frey’s proposals for settlement implicitly represented that she could pay the amounts offered and, therefore, Appellants’ only decision upon receiving them was whether the total value of their claims exceeded the amount offered. Because the issues of negligence and vicarious liability were not disputed and because Appellants did not assert a claim that would have imposed separate liability or damages on Rudolph Frey and because any damages awarded would have been equally collectible from Shannon or Rudolph Frey, Appellants had no independent claim against Rudolph Frey to evaluate. Rather, Appellants miscalculated the value of their claims in rejecting the proposals for settlement and must now pay the Frey’s attorney’s fees and costs.

Like the Eleventh Circuit Court of Appeals in Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195 (11th Cir.2011), we certify to the supreme court, pursuant to Florida Rule of Appellate Procedure 9.125, the question:

WHETHER THE TERM “JOINT PROPOSAL” IN RULE 1.442(C)(3) APPLIES TO CASES WHERE ACCEPTANCE OF THE OFFER IS CONDITIONED UPON DISMISSAL WITH PREJUDICE OF AN OFFEREE’S CLAIMS AGAINST AN OFFEROR AND A THIRD PARTY?

AFFIRMED and QUESTION CERTIFIED.

ORFINGER, C.J., and GRIFFIN, J., concur.

      . We note that this very issue was certified by the Eleventh Circuit Court of Appeals in Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195 (11th Cir.2011).

      . This sum was calculated by taking Kimberly Andrews' net judgment of $21,416.67 and subtracting it from the Freys’ attorney's fees and costs of $56,156.

      . To support their argument that the proposals for settlement were joint and not simply from Shannon Frey, Appellants point out that the motion requesting, and order awarding, attorney’s fees and costs included both Shannon and Rudolph Frey. (At oral argument, Appellee acknowledged the award of fees to Rudolph Frey pursuant to the offer of judgment was erroneous. This post-trial error did not transform the pre-trial individual proposals into joint proposals given their unequivocal and unambiguous language indicating the sole offeror was Shannon Frey. Further, Appellants never objected to this error and the issue has not been preserved for this court’s review.) See Clear Channel Commc'ns, Inc. v. City of North Bay Village, 911 So.2d 188 (Fla. 3d DCA 2005).

      . In her concurring opinion in Dryden v. Pedemonti, 910 So.2d 854, 858 (Fla. 5th DCA 2005), Judge Griffin suggested that the only permissible nonmonetary conditions were those the offeror would be entitled to by operation by law upon settlement because the offer of judgment statute simply contemplates a mathematical calculation. The proposals sent by Shannon Frey are consistent with this view of the offer of judgment statute and rule. Assuming that no proposals were sent and Appellants obtained the same jury verdict, Shannon Frey’s payment of the damages would have released both Freys, by operation of law, from any additional liability.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. K.N., a Child, Appellee/Cross-Appellant.
    Nos. 5D09-4297, 5D09-4298, 5D09-4299, 5D09-4300, 5D09-4301, 5D09-4302, 5D09-4303, 5D09-4304 & 5D09-4305.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2011.

      Pamela J. Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Michael H. LaFay of NeJame, LaFay, Jancha, Ahmed, Barker & Joshi, P.A., Orlando, for Appellee/Cross-Appellant.
   COHEN, J.

The State and Appellee, K.N., both challenge the trial court’s ruling partially granting and denying Appellee’s motion to suppress, which affected nine delinquency cases involving numerous counts of burglary of a conveyance, grand theft, petit theft, possession of burglary tools, and loitering and prowling. We reverse the trial court’s order suppressing evidence, affirm to the extent it denied the motion to suppress, and remand for trial.

The facts are undisputed. Around 2:00 a.m. on a Monday morning, the Orange County Sheriffs Office received a 911 call from an identified resident of Courtleigh Drive. The resident reported a suspicious incident involving a white Toyota and its passenger: a tall, white male with long hair and a thin build running from house to house, peering into vehicles and checking door handles. This behavior was consistent with an increased number of burglaries involving unlocked vehicles in the Dr. Phillips area; handguns were stolen from some of the vehicles. The Orange County Sheriffs Office formed a specialty unit to combat the increased vehicle burglaries. Officer Adams was assigned to this task force and responded quickly to the resident’s report.

As Adams came around a bend on Courtleigh Drive, he spotted a white Toyota stopped in the road, facing him. Adams’ spotlight allowed him to observe two males in the car; the passenger met the resident’s description. Upon activating the spotlight, the Toyota began to move towards the patrol car and the neighborhood’s exit. Adams decided to investigate and activated his overhead lights. Because he was aware that handguns had been stolen in the rash of vehicle burglaries and, in his experience, burglars often carry weapons for defense, he decided to execute a high-risk traffic stop while awaiting backup units. After the vehicle stopped, Adams exited his patrol vehicle with gun drawn and waited for backup.

Once backup arrived, Adams asked Ap-pellee to exit the vehicle first. Adams handcuffed him, patted him down for weapons, and secured him in the patrol car. He executed the same procedure with the driver, later identified as Appel-lee’s cousin. As Appellee exited the car, Adams swept the car’s interior with his flashlight and noticed, in plain view, a flashlight and small multi-tool on the front passenger seat and an iPod on the rear seat. Adams often saw multi-tools used in the commission of burglaries. After securing the pair, Adams returned to the car to perform a protective sweep of the trunk to make sure no one was hiding there.

Adams performed the protective sweep based on prior experience when he encountered someone hiding in a trunk. As he shone his flashlight inside the trunk, he saw a Dell Latitude 610 laptop like the one he personally used. Based on his years of experience with the Sheriffs Office, he believed this model was used exclusively by law enforcement. Adams then returned to the patrol car, advised Appellee and his cousin of their Miranda rights, and gave them an opportunity to identify themselves and provide an explanation for their presence and conduct.

Appellee and his cousin explained that they were just driving around the neighborhood, enjoying the last day of spring break before school started the next morning — about four hours later. Neither knew anyone in the neighborhood. Although Appellee denied exiting the vehicle, his cousin contradicted him, stating that Appellee had done so several times to look at a boat. When asked about the multi-tool and flashlight in the front seat, Appel-lee answered that he was just holding the tool because it was in the car. Adams’ concern was not dispelled. He concluded that the resident’s report of suspicious activity and matching description of the car and passenger, the contradiction about whether Appellee exited the car, and the unlikely story that they were looking at someone’s boat at 2:00 a.m., gave him probable cause to arrest Appellee for loitering and prowling and possession of burglary tools. Appellee was subsequently arrested and so charged.

Officer Adams proceeded according to the then-prevailing interpretation of New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnotes omitted.) When he turned on the laptop, the warning screen popped up indicating it was the property of the Orange County Sheriffs Office. Before having the vehicle towed for safekeeping, an inventory of the vehicle was conducted and several items collected. Appellee and his cousin were transported to the West Orange substation for questioning where Detective Thompson and Deputy Shellenberger took over the investigation.

Deputy Shellenberger testified that he advised Appellee of his Miranda rights and obtained his statement admitting other vehicle burglaries, stolen property from which was at his residence. After the deputy explained that the owners of the property would probably like to recover the items and asked if they could do that, Appellee signed a consent form and took the deputy to his house. The deputy only searched Appellee’s bedroom and found a handgun in a black case between Appel-lee’s bed and the wall exactly where Ap-pellee described it would be. There were various electronics scattered all over the room.

At the suppression hearing, Appellee’s argument was three-pronged: there was no probable cause to arrest him for loitering and prowling and any statements he made while in custody should be suppressed; the search of the car was illegal under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); and any confession or consent to search subsequent to his unlawful detention and arrest should be suppressed as “fruit of the poisonous tree.” The State countered that Appellee, as a passenger, lacked standing to challenge the seizure of evidence from the vehicle under Gant or any other theory. In the alternative, the State argued the good faith exception to the exclusionary rule applied to any evidence seized because the police acted in accordance with Belton, the prevailing law at the time, and noted that Gant was decided a few weeks after the seizure. Further, even if Gant applied, the State argued the search was lawful under the second prong of Gant, which authorizes a search of the passenger compartment when it is reasonable to believe the vehicle contains evidence of the offense of arrest — in this case, possession of burglary tools.

The trial court found that Officer Adams had a reasonable suspicion to conduct an investigatory stop of the vehicle because he observed a vehicle and passenger that matched the description and location relayed by a citizen informant. The trial court also found the high-risk traffic stop was warranted based upon the officer’s training and experience in cases involving vehicle burglary. Further, it also found that Appellee’s and his cousin’s answers did not alleviate the officer’s justifiable concern because neither Appellee nor his cousin knew anyone in the neighborhood, both gave poor explanations for their presence at 2:00 a.m., and their answers were contradictory about whether Appellee had exited the vehicle. Finally, it noted the multi-tool and flashlight were in plain view on the front seat.

Although the trial court ruled the investigatory stop and questioning were lawful, it applied Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, and ruled that the seizure of the items from the vehicle’s passenger compartment was unlawful and subject to suppression. Based on the perceived illegality of the seizure of items within the vehicle’s passenger compartment, the trial court concluded that there was not a sufficient temporal break between the illegal search and the consent and search of Appellee’s residence. Therefore, the trial court ruled that the subsequent confession, consent, and seizure of evidence from Appellee’s residence was tainted and inadmissible. Notwithstanding this ruling, the trial court deemed the officer’s actions in executing a protective sweep of the trunk lawful and ruled the seizure of the Dell computer from the trunk was admissible. However, the trial court was not persuaded by Appellee’s argument that his rights were violated by the continued use of handcuffs in the patrol car after it was determined he was unarmed. The proceedings were stayed pending appeal.

The State argues on appeal that the trial court erred in applying Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, and holding the illegal vehicle search tainted Appellee’s later consent. Appellee cross-appeals, asserting that he was illegally arrested for a misdemeanor committed outside Adams’ presence, which tainted the later admissions, confession and seizure.

The record shows that Appellee failed to demonstrate that he had a legitimate expectation of privacy in the Toyota in which he was a mere passenger. He therefore lacks standing to challenge the items seized therein. See Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Deen, 625 So.2d 968 (Fla. 5th DCA 1993). He does have standing, however, to contest the legality of the investigatory stop and his arrest. See Williams v. State, 640 So.2d 1206, 1209 (Fla. 2d DCA 1994).

Motions to suppress are subject to a mixed standard of review. An appellate court is bound by the trial court’s findings of fact that are supported by competent, substantial evidence; however, the application of the law to the facts is subject to de novo review. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). A trial court’s determination of reasonable suspicion to conduct an investigatory stop and probable cause to arrest is reviewed de novo. Saturnino-Boudet v. State, 682 So.2d 188, 192 n. 6 (Fla. 3d DCA 1996).

We agree with the trial court’s conclusion that the totality of the circumstances warranted Adams’ reasonable suspicion that Appellee had attempted to commit burglary of a conveyance, thus warranting an investigatory stop. The reasonable suspicion needed to justify an investigatory stop is a case-specific determination based upon the totality of the circumstances as viewed by an experienced police officer. Id. at 191. Factors to consider in determining whether a reasonable suspicion exists to make an investigatory stop include the time and day, the location, the physical appearance of the suspect, the suspect’s behavior, the appearance and manner of operation of any vehicle involved, and anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. State v. Quinn, 41 So.3d 1011, 1014 (Fla. 5th DCA 2010). The police officer need not witness criminal activity in order to have a reasonable suspicion that criminal activity occurred or is about to occur. Id. This level of detention permits the officer to conduct a limited search or frisk of the individual for concealed weapons where the officer is justified in believing the person is armed and dangerous to the officer or others. Id. (citations omitted.) Also, the officer may detain the individual even at gunpoint and with handcuffs for the officer’s safety without converting the Terry stop into a formal arrest. Id. (citations omitted).

In this case, a resident’s 911 call reported a white male, the passenger of a white Toyota, running from car to car checking car doors. The officer found a vehicle and Appellee, located in close proximity to the caller’s residence, which matched the description. It was 2:00 a.m. on a weeknight. Courtleigh Drive, a very quiet neighborhood, fit the profile of an ungated community in the Dr. Phillips area that was the focus of law enforcement’s efforts to curb the ongoing rash of vehicle burglaries. When first observed minutes later, the Toyota was stopped in the street. The vehicle began to move after Adams shone his spotlight on the vehicle, which he interpreted as an attempt to flee. The investigatory stop was lawful in this case.

The facts underlying the investigatory stop also supported the trial court’s finding that Adams’ use of a high-risk traffic stop procedure was warranted. Specifically, the resident’s report described Appellee’s numerous attempts to enter a conveyance stealthily and without the owner’s consent, which is prima facie evidence of an attempt to enter with intent to commit an offense. See § 810.07(2), Fla. Stat. (2008). Appellee’s actions fit the modus operandi of the persons committing the rash of burglaries in the neighborhood. Adams knew that several firearms had been stolen from the recently burglarized vehicles and, from training and experience, also knew that burglars often carried weapons for protection. These facts gave Adams a reasonable basis to suspect Appellee was attempting to burglarize vehicles and that he might be armed.

Appellee contests Adams’ use of handcuffs and contends that their continued use after Adams determined that no weapons were present was illegal and tainted any consent that was the product thereof. Police may properly handcuff a person whom they are temporarily detaining when circumstances reasonably justify the use of such restraint. Reynolds v. State, 592 So.2d 1082, 1085 (Fla.1992). Neither handcuffing nor other restraints will automatically convert a Terry stop into a de facto arrest requiring probable cause. Id. (citing U.S. v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.1985)). ‘When such restraint is used in the course of an investigative detention, it must be temporary and last no longer than necessary to effectuate the purpose of the stop.” Id. Only after Adams returned to the patrol car after sweeping the Toyota did he initiate the questioning that was the purpose of the stop. After the questioning, the purpose for which they were stopped, the officers’ reasonable suspicion was elevated to probable cause to arrest Appellee for loitering and prowling and possession of burglary tools. Because the purported illegality of the stop was Appellee’s sole ground to suppress statements he made in the patrol car, his statements were untainted and not subject to suppression. Appellee does not assert an independent argument concerning the illegality of the search of his home, which the trial court disapproved based solely on the “fruit of the poisonous tree” doctrine.

Turning to the State’s appeal, because we determine the initial stop and the request that Appellee and his cousin exit the Toyota to be valid, he has no standing to challenge the search under Gant or any other theory. See Rakas, 439 U.S. at 148, 99 S.Ct. 421.

Accordingly, we affirm the trial court’s denial in part of Appellee’s motion to suppress, reverse its ruling granting Appel-lee’s motion to suppress, and remand for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

ORFINGER, C. J., and PALMER, J., concur.

      . Standard practice in a high-risk traffic stop is for two officers to approach the vehicle with guns drawn to make sure there are no passengers hiding in the vehicle or anything in the vehicle that could harm the officers.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Even assuming Appellee had standing to challenge the search, Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), would not require the suppression of evidence in plain view seized from the Toyota. This court has considered and rejected the retroactive application of Gant under the good faith exception. See Brown v. State, 24 So.3d 671, 680 (Fla. 5th DCA 2009); see also Howard v. State, 59 So.3d 229 (Fla. 2d DCA 2011); State v. Harris, 58 So.3d 408, 411 (Fla. lst DCA 2011) (certifying question: "Does the good-faith exception to the exclusionary rule apply to evidence seized by the police in contravention of [ ] Gant, []?"), rev. granted, Harris v. State, 61 So.3d 410 (Fla.2011). Further, Gant's second prong permits a search if it is reasonable to believe the vehicle contains evidence of the offense of arrest, in this case, possession of burglary tools, which Adams observed in plain view on the vehicle's passenger seat.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Joseph MODESTE, Appellee.
    No. 5D07-2010.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    Frank J. Bankowitz of Frank J. Ban-kowitz, P.A., Orlando, for Appellee.
   PER CURIAM.

ON REMAND

In August, 2008, this court reversed a trial court order suppressing certain statements made by Modeste during custodial interrogation. See State v. Modeste, 987 So.2d 787 (Fla. 5th DCA 2008) (Miranda warning provided to defendant was not inadequate because it did not expressly advise suspect that right to counsel included the right to have counsel present during interrogation). Our decision was quashed by the Florida Supreme Court in light of its decision in State v. Powell, 998 So.2d 581 (Fla.2008). See Modeste v. State, 4 So.3d 1217 (Fla.2009). When the United States Supreme Court accepted review of the Florida Supreme Court’s decision in Powell, this court entered an order holding the instant case in abeyance pending disposition of Florida v. Powell in the United States Supreme Court.

The United States Supreme Court subsequently reversed the Florida Supreme Court, determining that the warnings given to Powell did not violate the principles espoused in Miranda. Florida v. Powell, — U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). On remand, the Florida Supreme Court additionally determined that the warnings given to Powell did not violate the right against self-incrimination clause set forth in Article I, section 9 of the Florida Constitution. State v. Powell, 66 So.3d 905, 2011 WL 2374612 (Fla.2011).

Accordingly, we reverse the trial court’s order granting Modeste’s motion to suppress and direct the trial court to reconsider its decision in light of Florida v. Powell, — U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010) and State v. Powell, 66 So.3d 905, 2011 WL 2374612 (Fla.2011). The trial court may, in its discretion, afford the parties an opportunity to present additional evidence on the motion to suppress.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Dianne MORRISON and Michael Herbert, Appellants, v. US BANK, N.A., As Trustee for CSAB, etc., Appellee.
    No. 5D10-556.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2011.
    Michael E. Rodriguez of Foreclosure Defense Law Firm, PL, Tampa, for Appellants.
    Andrew D. Manko of Carlton Fields, P.A., Tallahassee, Michael K. Winston and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

Appellants challenge the final summary judgment in foreclosure entered in favor of Appellee. Appellants’ sole argument on appeal is that a disputed issue of material fact exists as to whether Appellee provided notice of default, as required by the language in the mortgage. Appellants denied that the notice had been provided, specifically quoting the language of the mortgage that pertained to the notice. Although Appellee attached a copy of the notice to its motion, the notice was not authenticated by affidavit or otherwise. The trial court overruled Appellants’ objection to the unauthenticated document. Appellee concedes that this was error, but nevertheless, contends that Appellants failed to raise the lack of notice in their pleading with the requisite specificity. We disagree and accordingly reverse and remand this cause for further proceedings.

REVERSED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Todd NORWOOD and Kimbrely Upright, Appellees.
    No. 5D10-3692.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellee.
   COHEN, J.

The State appeals an order granting Todd Norwood’s motion to dismiss. Nor-wood and codefendant Upright were charged with a scheme to defraud and petit theft in connection with their soliciting and collecting donations purportedly on behalf of the Disabled Police Officers of America. Filed under Florida Rule of Criminal Procedure 3.190(b), the motion challenges the factual allegations of the information. The unsworn motion includes an unsigned contract and refers to a newspaper article and news report from Missouri. The trial court conducted a hearing and dismissed the charges.

An order dismissing an information is reviewed de novo. State v. Shuler, 988 So.2d 1230, 1231 (Fla. 5th DCA 2008). When a motion to dismiss is based on undisputed facts, dismissal is appropriate when the undisputed facts do not establish a prima facie case of guilt. Id. In making .this determination, the evidence is construed, along with all reasonable inferences, in the light most favorable to the State. Id. If the undisputed facts indicate that the defendant could be found guilty of the crimes charged, the motion to dismiss must be denied. Id. The defendant has the burden of establishing that there are no material issues of disputed fact and that the facts do not establish a prima facie case of guilt. State v. Covington, 973 So.2d 481, 482 (Fla. 3d DCA 2007).

The State contends that the trial court erred in granting the motion to dismiss because neither the motion, nor the testimony presented at the hearing, established that it could not prove a prima facie case. We agree. First, accepting as true all the allegations in the motion to dismiss, the very face of the motion indicates there is a disputed issue of fact. Specifically, the charity organization’s president denied that it contracted with Norwood and Upright to work for or collect money on its behalf, which directly conflicted with Norwood and Upright’s assertion that they had a contract with the charity to solicit businesses. Further, Norwood could not produce a signed copy of his contract with the charity. Additionally, the very terms of the contract do not negate the State’s charges. The contract indicates that Kelvin & Associates agreed to “contact businesses ... to sell advertisements in an ad book,” and that any monies would be equally split between the charity and Kelvin & Associates. Conspicuously, the contract does not authorize Kelvin & Associates to solicit cash donations from businesses. Accordingly, we reverse the order dismissing the charges and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., and JACOBUS, J., concur.


text:
    Angello DERIUS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1847.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2011.

      Angello Derius, Malone, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2009-CF-013640-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    Kelly Ann LEIMBACH, Former Wife, Appellant, v. James Donald LEIMBACH, Former Husband, Appellee.
    No. 1D11-3333.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    Rhonda-S. Clyatt of Clyatt & Blow, Panama City, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.420(f); Paul v. Charles Schwab Co., Inc., 4 So.3d 787 (Fla. 1st DCA 2009).

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Suzanne NOEL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Rolling Frito Lay Sales LP, Appellees.
    No. 1D11-1363.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    Suzanne Noel, pro se, Appellant.
    A. Robert Whaley, General Counsel, for ■ Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.110; see also Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Maysoon SANYOURA-HAMADA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and ADP Totalsource Co. XXIII Inc., Appellees.
    No. 1D11-1310.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    Maysoon Sanyoura-Hamada, pro se, Appellant.
    A. Robert Whaley, General Counsel, for Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

DISMISSED. Durando v. Palm Beach County, 719 So.2d 1258, 1259 (Fla. 1st DCA 1998) (“[Disposition is without prejudice to their right to petition the agency to vacate and re-enter that order.”).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


author: MORRIS, Judge.

text:
    Nelson Gabriel DELEON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5740.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Nelson Gabriel Deleon appeals his judgments and sentences for carjacking with a deadly weapon and resisting an officer without violence. He raises three issues on appeal. He first challenges the trial court’s denial of his motion to suppress the victim’s out-of-court identification of him. We conclude, without further discussion, that the trial court properly denied his motion to suppress. However, as explained below, Deleon’s second and third arguments have merit, and we reverse his conviction and sentence for carjacking with a deadly weapon. We affirm his conviction and sentence for resisting an officer without violence.

Deleon was charged with carjacking with a firearm, resisting an officer without violence, and possession of a firearm by a convicted felon. The trial on the last count was severed from the trial on the first two counts. After a trial, the jury returned a verdict of guilty for the offense of carjacking with a deadly weapon and resisting an officer without violence. Deleon was sentenced as a prison releasee reoffender (PRR) to life in prison on the carjacking count and to time served on the resisting count.

In his second point on appeal, Deleon argues that the trial court erred in instructing the jury on the offense of carjacking with a deadly weapon because the specific offense of carjacking with a deadly weapon was not charged in the information. He contends that the information alleged only that he possessed a firearm during the offense and that the jury could not therefore find that he possessed a deadly weapon. In addition, he suggests that carjacking with a deadly weapon is not a lesser-included offense of carjacking with a firearm.

The relevant statute provides as follows:

(1) “Carjacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the carjacking the offender carried a firearm or other deadly weapon, then the carjacking is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the carjacking the offender carried no firearm, deadly weapon, or other weapon, then the carjacking is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 812.133, Fla. Stat. (2008) (emphasis added). Here, the information alleged that Deleon possessed a firearm during the offense, citing section 812.133, but the jury was instructed that it could find him guilty of carjacking with a deadly weapon as a lesser-included offense. At the charge conference, defense counsel objected to the jury’s being instructed on the offense of carjacking with a deadly weapon. The jury rejected the option of carjacking with a firearm and instead found that Deleon committed carjacking with a deadly weapon. After trial, Deleon filed a motion for new trial, arguing that the jury was improperly instructed on carjacking with a deadly weapon because the element of deadly weapon was not charged in the information and because it is not a lesser-included offense of carjacking with a firearm.

“A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same penalty.” Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999). “[W]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment.” Long v. State, 92 So.2d 259, 260 (Fla.1957).

In Jaimes v. State, 51 So.3d 445, 447 (Fla.2010), the defendant was charged with aggravated battery with a deadly weapon but the jury was instructed that it could also find him guilty on the theory of aggravated battery causing great bodily harm. He was found guilty of the uncharged theory of aggravated battery causing great bodily harm. Noting that “[i]t is a fundamental principle of due process that a defendant may not be convicted of a crime that has not been charged by the state,” id. at 448, the supreme court held that the improper jury instruction clearly had an effect on the jury’s verdict as evidenced by the jury’s special verdict form, id. at 451. The court recognized that ‘“one charged with a crime cannot be indicted for one offense and convicted or sentenced for another, even though the offenses are closely related and may be of [the] same general character,’ ” id. at 451 (alteration in original) (quoting Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957)), and held that “[because Jaimes was convicted of an offense based on elements that were never charged,” fundamental error was committed, id.

In Sanders v. State, 959 So.2d 1232, 1234 (Fla. 2d DCA 2007), this court held that it was fundamental error for the court to instruct the jury on the great bodily harm, permanent disability, or permanent disfigurement theory of aggravated battery when the information only charged the deadly weapon theory of aggravated battery and the State’s evidence could have supported a verdict on the uncharged alternate theory of the offense. See also Brown v. State, 41 So.3d 259, 261 (Fla. 4th DCA 2010) (holding that it was fundamental error to instruct the jury on an uncharged theory of the offense because it was possible, based on the State’s argument and the evidence presented, that the jury found the uncharged theory of the offense). In Zwick, 730 So.2d at 760, the defendant was charged with lewd or indecent assaults by committing specific acts, but the jury instructions were much more expansive, referencing other ways in which the offenses could have been committed. The court reversed because the jury returned a general verdict, making it possible that the defendant was convicted of uncharged acts. Id.

Based on the foregoing cases, the trial court committed fundamental error in instructing the jury on an offense — carjacking with a deadly weapon — that was not charged in the information. The improper instruction clearly had an effect on the jury’s verdict as evidenced by the special verdict form finding him guilty of carjacking with a deadly weapon. Not only was the jury instructed on a theory of the offense that was not charged in the information, but the jury was instructed on a theory of the offense that was unsupported by the evidence; the victim testified that Deleon carried a gun, and there was no evidence that he carried any other weapon during the commission of the offense.

We reject the State’s argument that because the information cited the applicable statute, section 812.133, Deleon was put on notice that he could be convicted of carjacking with deadly weapon. See generally DuBoise v. State, 520 So.2d 260, 265 (Fla.1988) (“[T]he failure to include an essential element of a crime does not necessarily render an indictment so defective that it will not support a judgment of conviction when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense.”). Although the information cited section 812.133, it specifically included the element of a firearm while it specifically excluded the element of a deadly weapon. And the cases cited above make no exception for when the general criminal statute is cited in the information.

We further conclude that the error was compounded when the jury was incorrectly instructed that carjacking with a deadly weapon is a lesser-included offense of carjacking with a firearm. An offense is a proper lesser-included offense if it meets the definition of a necessary or permissive lesser-included offense, even if it does not result in a lesser degree or penalty than the main charged offense. Sanders v. State, 944 So.2d 203, 206-07 (Fla.2006); Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008) (“Lesser included offenses are determined based on the elements of the offenses, not on the penalties attached.”). Here, the offense of carjacking with a deadly weapon is not a lesser-included offense of carjacking with a firearm; it is an alternative way of committing an offense of the same general character, and it fails to meet the definition of a lesser-included offense.

Carjacking with a deadly weapon is not a necessarily lesser-included offense because carjacking with a deadly weapon is not always subsumed within the charged offense of carjacking with a firearm. See State v. Paul, 934 So.2d 1167, 1175 (Fla.2006) (holding that necessarily lesser-included offenses are those “‘in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial’ ” (emphasis omitted) (quoting State v. Florida, 894 So.2d 941, 947 (Fla. 2005))), receded from on other grounds by Valdes v. State, 3 So.3d 1067 (Fla.2009). A permissive lesser-included exists when “on the face of the statutes, the two offenses appear to be separate[] but the facts alleged in the accusatory pleadings are such that the lesser offense cannot help but be perpetrated once the greater offense has been.” State v. Weller, 590 So.2d 923, 925 n. 2 (Fla.1991). Carjacking with a deadly weapon is not a permissive lesser-included offense of carjacking with a firearm because the two offenses do not appear separate on the face of the statutes and, as discussed above, the accusatory pleading in this case does not allege the facts necessary for carjacking with a deadly weapon.

The error is clear in this case. The jury found that Deleon did not possess a firearm and decided to convict him of the next lesser offense, but the next lesser offense listed on the verdict form was erroneously included on the verdict form. We reverse Deleon’s conviction and sentence for carjacking with a deadly weapon and remand for the trial court to enter a judgment and sentence for carjacking, which was properly alleged in the information and proved by the State. See Jaimes, 51 So.3d at 452 (reversing and remanding with directions for the trial court to enter a judgment for the lesser-included offense of simple battery because the elements of simple battery were charged and proven at trial).

In his third point on appeal, Deleon argues that his written sentence for carjacking with a deadly weapon fails to comport with the oral pronouncement of sentence because he was orally sentenced as a PRR to life in prison but the written sentence reflects a minimum mandatory term of life for the use of a firearm. See Ashley v. State, 850 So.2d 1265 (Fla.2003). He preserved this issue in a motion to correct sentencing error, which was not ruled upon by the trial court and is therefore deemed denied. See Fla. R. Crim. P. 3.800(b)(1)(B). The State concedes the error, and the error is clear from the record. But the reversal of Deleon’s conviction and sentence for carjacking with a deadly weapon renders this issue moot. On remand, the trial court shall enter a conviction for carjacking and ensure that the new written sentence does not reflect a minimum mandatory term for use of firearm, which was not found by the jury.

Affirmed in part; reversed in part; remanded.

SILBERMAN, C.J., and BLACK, J., Concur.

      . Even though defense counsel raised this same legal argument in his motion for new trial, it was not asserted as a legal ground when defense counsel contemporaneously objected to the instruction at the charge conference. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003) ("In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs. ‘Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.' ” (citation omitted) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982))).


author: LaROSE, Judge.

text:
    The ESTATE OF Nettie IRONS, by and through her Daughter, June SPRINGER, as Personal Representative, Appellant, v. ARCADIA HEALTHCARE, L.C., d/b/a Dove Healthcare at Lake Wales, Appellee.
    No. 2D10-5712.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.

      Valeria Hendricks of Harmon, Woods, Parker, Hendricks & Abrunzo, P.A., Tampa, for Appellant.
    Dale R. Sisco and Kristi Neher Davis-son, Tampa, for Appellee.
   LaROSE, Judge.

The Estate of Nettie Irons appeals a nonfinal order compelling arbitration of claims under the wrongful death and nursing home statutes against Arcadia Healthcare, L.C. See §§ 400.023, 768.21, Fla. Stat. (2009). We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv). The Estate argues that Mrs. Irons’ power of attorney did not authorize her surrogate to consent to arbitration. We agree and reverse.

Mrs. Irons resided for about a month at Dove Healthcare, an Arcadia skilled nursing and rehabilitation facility. Within days of her discharge, she died. Prior to her admission to Dove, Mrs. Irons executed a Health Care Power of Attorney (POA) appointing her daughter, June Springer, as her “health care surrogate” and permitting Mrs. Springer “to make all health care decisions for [Mrs. Irons].”

Following Mrs. Irons’ death, the Estate filed suit. Arcadia moved to compel arbitration. The admission agreement that Mrs. Springer signed pursuant to the POA contained an arbitration provision. The Estate objected, arguing that Mrs. Springer lacked authority to consent to arbitration. The trial court granted the motion. It concluded that the POA was a durable power of attorney giving Mrs. Springer authority to act for her mother regarding anything concerning her health, including contracting for nursing home care.

The POA was titled “Health Care Power of Attorney.” It provided, in pertinent part, as follows:

This Power is a Durable Power of Attorney that is effective upon signing and until it is revoked in writing, it is to be honored regardless of whether I can make my own health care decisions or provide informed consent. This Power revokes any prior health care surrogate designation that I may have made and permits my Surrogate to make all health care decisions for me.
All third parties, including insurance companies, physicians, pharmacists, health care facilities, clinics, hospitals and all other providers of my medical care shall comply with my Surrogate’s request for information and accept any documents (including releases) my Surrogate signs for me. Without limiting the rights and authority of my Surrogate to act for me, my Surrogate may, among other acts and decisions:
1. Consult with health care providers and sign informed consent forms in my best interests as my Surrogate perceives same and authorize my admission to or transfer from a health care facility;
2. Apply for all public benefits, including Medicare and Medicaid, and to have access to my personal financial information to the extent required to make application;
3. Have access to any and all medical records, medical history, billing, and any other information related to my medical care and shall execute releases of any such confidential information in my place and stead[;]
4. Withhold or withdraw, by court order if necessary, life-prolonging or death-delaying procedures in accordance with my Living Will Declaration, or other writing, which I may presently have or which I will make in the future.

Mrs. Irons, however, remained liable for signing admission or treatment papers for her care:

I alone, and not my Surrogate, shall be liable for signing admission or treatment papers for my health care, as I alone shall be responsible for such costs. This Power [of Attorney] is not given as a condition of treatment by or admission to a health care facility.

The narrow issue before us concerns the scope of the POA. The interpretation of a power of attorney is a question of law which we review de novo. Candansk, LLC v. Estate of Hicks, 25 So.3d 580, 582 (Fla. 2d DCA 2009); Jaylene, Inc. v. Moots, 995 So.2d 566, 568 (Fla. 2d DCA 2008).

“Powers of attorney are strictly construed. They will be held to grant only those powers that are specified and will be closely examined in order to ascertain the intent of the principal.” Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992) (holding power of attorney specifically granting authority to son to provide for father’s lifetime maintenance and care did not authorize son to transfer father’s assets into trust to protect them from father’s wife) (citing Falls at Naples, Ltd. v. Barnett Bank of Naples, N.A., 603 So.2d 100 (Fla. 2d DCA 1992) (Altenbernd, J., concurring)); see Carrington Place of St. Pete, LLC v. Estate of Milo ex rel. Brito, 19 So.3d 340, 341-42 (Fla. 2d DCA 2009) (holding power of attorney granting agent authority to manage principal’s property interests did not confer on the agent power to enter into arbitration agreements). A power of attorney “need not expressly refer to arbitration to confer the authority to agree to this method of dispute resolution.” Candansk, 25 So.3d at 582 (citing Jaylene, 995 So.2d at 569). For example, in Jaylene, we reversed an order denying a nursing home’s motion to compel arbitration. 995 So.2d 566. We concluded that the power of attorney, which granted the agent “full power and authority” to “manage and conduct all of [the principal’s] affairs and to exercise all of [her] legal rights and powers, including all rights and powers that [she] may acquire in the future,” encompassed the authority to consent to arbitration. Id. at 568; see also Estate of Smith v. Southland Suites of Ormond Beach, LLC, 28 So.3d 103, 104 (Fla. 5th DCA 2010) (holding power of attorney’s broad authority for attorney in fact to effectuate principal’s legal rights authorized consent to binding arbitration agreement where arbitration not mentioned specifically).

Arcadia stresses that Mrs. Irons executed a “durable power of attorney.” See § 709.08(7)(a), Fla. Stat. (2009) (“Except as otherwise limited by this section, by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney.”). Thus, according to Arcadia, the POA grants Mrs. Springer broad power that necessarily includes the authority to bind Mrs. Irons (or her Estate) to arbitration. But section 709.08(6) provides that “[u]nless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, ... contractual or statutory rights or elections....” The qualifying phrase, “[ujnless otherwise stated,” reminds us of our obligation to construe strictly the language of the POA. See also § 709.08(7)(a). “Where nothing in a [power of attorney] gives an attorney-in-fact legal authority to enter into an arbitration agreement on a person’s behalf, a trial court is incorrect to grant a nursing home’s motion to compel arbitration based on an admission agreement entered into by the attorney-in-fact.” Carrington, 19 So.3d at 341.

Sovereign Healthcare of Tampa, LLC v. Estate of Huerta, 14 So.3d 1033 (Fla. 2d DCA 2009), articulated our two-prong analysis of a power of attorney. A power of attorney may contain a “catchall” statement describing broadly the authority granted to the attorney in fact, it may grant specific powers, or it may do both. If the power of attorney includes both, the nature of listed specific powers may clarify whether the broader catch-all provision includes a particular, but not specifically mentioned, power. See id. at 1034-35. In Sovereign Healthcare, we concluded that two specific grants of authority — to consent to hospitalization and “to sign any and all releases or consent required” for such hospitalization — were similar enough to the power to agree to an arbitration clause in a nursing home admission agreement. Id. at 1035; see also Candansk, 25 So.3d at 582 (holding power of attorney’s specific grant of power to act with respect to claims and litigation supported conclusion that broad power to “act in [the principal’s] name, place and stead in any way which [she herself! could do, if [she] were personally present” was broad enough to authorize consent to nursing home’s binding arbitration provision in admissions agreement); Carrington Place, 19 So.3d at 341 (holding power of attorney that did not make broad, general grant of authority and specifically granted authority related solely to property interests did not confer authority to consent to arbitration clause in nursing home admission agreement) (citing Estate of McKibbin v. Alterra Health Care Corp., 977 So.2d 612 (Fla. 2d DCA 2008)); Jaylene, 995 So.2d at 568-69 (explaining that similarity of specifically listed powers — to enter into binding contracts and to settle the principal’s claims — to the power to agree to arbitrate supported the conclusion that power of attorney’s umbrella grant of “full power and authority to act on [the principal’s] behalf’ was broad enough to include it); Five Points Health Care, Ltd. v. Mallory, 998 So.2d 1180, 1181 (Fla. 1st DCA 2008) (holding power of attorney’s specific grant of power to “[p]rosecute, defend and settle all actions” consistent with conclusion that broad grant of authority to “[d]o anything regarding [her] estate, property and affairs that [she] could do for [herself]” included power to consent to arbitration).

Mrs. Irons’ POA is not so broad. The broadest description of the granted authority is the statement that it lists specific powers “[w]ithout limiting the rights and authority of [her] Surrogate to act for [her].” The specifically listed powers, however, relate to the direct provision of medical care. The POA is called a “Health Care Power of Attorney” and identifies Mrs. Springer as a “health care surrogate,” suggesting a limited role for Mrs. Springer. See § 765.205, Fla. Stat. (2009) (defining responsibilities of a health care surrogate). The third parties it directs to accept the surrogate’s actions on Mrs. Iron’s behalf are all related to the provision of health care: “insurance companies, physicians, pharmacists, health care facilities, clinic, hospitals, and all other providers of my medical care.... ” The POA “is to be honored regardless of whether [Mrs. Irons] can make [her] own health care decisions or provide informed consent.” We can say that the POA authorized Mrs. Springer to make health care decisions for her mother. The language of the POA, however, supports no conclusion that Mrs. Irons intended to authorize her daughter to act for her in matters related to her property rights or potential litigation with health care providers. Particularly persuasive is the fact that the POA contains language strikingly similar to that used in the health care surrogate statute. See section 765.205.

The POA cabins Mrs. Springer’s authority. We would strain her mother’s intent to conclude that the POA authorized Mrs. Springer to bind Mrs. Irons to arbitration. Cf. Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.3d 627, 630 (Fla. 2d DCA 2010) (holding wife’s authority to sign admission agreements and consents for medical treatment on husband’s behalf did not authorize consent to arbitration because arbitration agreement was not necessary for or related to his treatment); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 300-01 (Fla. 4th DCA 2005) (holding consent to arbitration in nursing home admission agreement signed by patient’s son was not strictly related to health care decisions).

We are compelled to reverse the nonfi-nal order on review and remand to the trial court with directions to enter an order denying the motion to compel arbitration.

Reversed and remanded with directions.

SILBERMAN, C.J., and CRENSHAW, J., Concur.

      . A durable power of attorney is a written power of attorney by which a principal designates another as the principal’s attorney in fact. The durable power of attorney must be in writing, must be executed with the same formalities required for the conveyance of real property by Florida law, and must contain the words: "This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes”; or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity, except as otherwise provided by this section.
      § 709.08(1); see also Black’s Law Dictionary 1210 (8th ed. 1990) (stating that a durable power of attorney is "A power of attorney that remains in effective during the grantor's incompetency”). The POA here is "effective upon signing” and directs that "it is to.be honored regardless of whether [Mrs. Irons] can make [her] own health care decisions or provide informed consent.” Mrs. Irons' surrogate "must diligently attempt to notify [Mrs. Irons’] spouse and any adult children upon [her] incapacity and before exercising this Power [of attorney].”

      . Section 765.205 provides that (1) a health care surrogate's responsibilities (powers) are to (a) act for the principal to make all health care decisions (only) during the principal's incapacity, (b) consult with providers to (c) give informed written consent for health care, (d) be provided access to medical records, (e) apply for public benefits and have access to the principal’s necessary financial records; and (2) a surrogate may authorize release of information to ensure continuity of health care and may authorize the principal's admission, discharge or transfer to or from a chapter 400 health care or other facility or program.


author: WARNER, J.

text:
    George Fred ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2051.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach (withdrawn as counsel after filing brief), and George Fred Roberts, Monticello, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

During deliberations in this criminal trial for lewd molestation by a father of his daughter, a juror sent out a note disclosing that she had a child who would be attending the same school as the victim, and she felt the matter was “too close to home.” Rather than conduct an inquiry, the court allowed the jury to continue to deliberate until it reached its verdict. We hold that the court erred in failing to conduct any inquiry and reverse for a new trial.

The state charged appellant, George Roberts, with three counts of lewd and lascivious molestation and one count of lewd conduct arising out of appellant’s alleged sexual abuse of his older daughter. Roberts had rotating custody of his daughters with his ex-wife, and the alleged molestation occurred during her visits with him from October 2002 to October 2005. At trial the older daughter testified to various incidents of appellant’s sexual abuse of her. In addition to the older daughter’s testimony, the state put on similar fact evidence consisting of the testimony of her sister and her sister’s friend regarding incidents with the appellant. Both of appellant’s daughters testified that they were students in a particular middle school.

Appellant took the stand in his own defense. He denied that he ever molested or inappropriately touched his daughters or the friend. He claimed that their accusations were part of a campaign against him. In addition to his denials, the defense called the examining nurse practitioner who testified that she found no physical evidence of sexual abuse, although she also stated that a lack of positive physical findings did not mean that the appellant did not improperly touch his children.

The parties rested and the case proceeded to closing argument. After the court instructed the jury, the court told the jurors that, for those who did not bring their lunch, a deputy would take them to the cafeteria to get something to eat so that they could deliberate during lunch. The court then dismissed the alternate juror. On the way back from the cafeteria, juror Smith told the deputy that she would like to have a conversation with the judge. She did not give any indication as to what it was about. The deputy told her that he would relay it to the judge.

Shortly after the jury began deliberating, the deputy brought the matter to the court’s attention and testified on the record regarding juror Smith’s request. The court instructed the deputy to stop the deliberations, bring out juror Smith, and have her write down any question on paper. Juror Smith then sent out a note which read: “I have a[sic] 11 year [old] son that will be attending [the same middle school that the victims attended] in August and feel this is to[o] close to home.” Defense counsel argued that the note spoke for itself and indicated that juror Smith could not be fair. Defense counsel also expressed concern that juror Smith could have “poisoned” the other jurors. He then moved for a mistrial, which the court denied. Counsel then argued that, at the very least, juror Smith and the other jurors needed to be questioned. However, the court denied the request to question any jurors, explaining that “[i]f they come back with a verdict of guilty we’ll question them.” The judge then stated that he was not going to respond to juror Smith’s note.

After deliberations, the jury returned its verdict, finding appellant guilty of the first three counts but not guilty of the fourth count. Appellant subsequently filed a written motion for new trial, motion for mistrial and motion to interview jurors. After a hearing, the court denied the motions and sentenced appellant. From his convictions and sentences, appellant brings this appeal.

Appellant contends that the trial court erred in denying his motion for mistrial, his motion to interview jurors, and, post-verdict, his motion for new trial, all premised on juror Smith’s note explaining her discomfort in being on the jury where her son would be at the same middle school as the appellant’s daughters, who were his accusers. Because the trial court failed to conduct any inquiry into the circumstances which certainly suggested juror bias, we reverse.

The standard of review of a trial court’s ruling on a motion to interview jurors is abuse of discretion. Roland v. State, 584 So.2d 68, 70 (Fla. 1st DCA 1991). Dealing with the conduct of jurors is also left to the sound discretion of the court. See Doyle v. State, 460 So.2d 353, 356-57 (Fla.1984) (holding that the trial court did not abuse its discretion in deny ing a motion for mistrial and instead giving a curative cautionary instruction where an unidentified juror encountered defense counsel during a court recess following the state’s presentation of evidence and stated, “Good luck. You’re going to need it.”).

When suggestion of juror bias is not frivolous, the court should make “an adequate inquiry” into whether the bias existed and whether it was prejudicial. Gonzalez v. State, 511 So.2d 700, 701 (Fla. 3d DCA 1987) (citing United States v. Ramsey, 726 F.2d 601, 604 (10th Cir.1984)). In Gonzalez, at the conclusion of the trial, the alternate juror reported to the court that a member of the jury panel, juror Greenwood, had described the insanity defense as a “cop-out” and had asked the alternate, “Did you bring your coffin nails today?” The alleged comments were made prior to the jury’s deliberations. Gonzalez, 511 So.2d at 701 n. 1. The court conducted a limited voir dire of the juror, but the juror avoided answering directly as to whether she made the comments. Id. at 701. The court did not inquire further, except to ask her whether she had any problem in following the law, which she responded that she did not. Id. On appeal of the defendant’s convictions following the jury verdict, the Third District concluded that the defendant was denied a fair trial because the alleged comments demonstrated that the juror was not impartial and the trial court failed to make a sufficient voir dire regarding the alleged misconduct. Id.

We apply the Gonzalez analysis to this case. Juror Smith’s note raised a suggestion of bias which at least demanded an “adequate inquiry” from the trial court. While the juror’s statement that she had an eleven-year-old child who attended the same middle school as the victim, and the case was “too close to home,” is amenable to various interpretations, it should not be viewed in a vacuum. A reasonable interpretation of juror Smith’s note was that she felt she could not remain impartial and judge the case based upon the evidence. Cf. McClain v. State, 220 Ga.App. 474, 469 S.E.2d 756 (Ga.App.1996) (holding that trial court did not abuse its discretion in striking juror for cause where the juror stated that he was not comfortable with the case because “it hits too close to home”). She may have felt pressured knowing that her son would be at the same school as the appellant’s daughters, thus making it difficult for her to decide in favor of the appellant and have her son potentially face the daughters at school. The fact that she brought it upon herself to send the note to the trial judge suggests that she may have felt that she could no longer be a fair and impartial juror. We cannot know, because the trial court failed to conduct any inquiry whatsoever.

The judge’s only reason for refusing to question juror Smith during trial was that the judge had already excused the alternate juror. We conclude that this constitutes an abuse of discretion to simply ignore a juror’s note which suggests that the juror is no longer fair and impartial. An inquiry was necessary. See Gonzalez, 511 So.2d at 701; see also Henderson v. Dade Cnty. Sch. Bd., 734 So.2d 549, 550 (Fla. 3d DCA 1999) (“Despite a clear indication that at least one juror had preconceptions regarding the case prejudicial to the plaintiffs’ position, and that the two jurors had discussed the case in violation of the court’s instructions, the trial court did not question these jurors at all. This was error and warrants a new trial.”); cf. Hutchinson v. State, 882 So.2d 943, 956-57 (Fla.2004) (explaining that the trial court “acted appropriately” by questioning jurors about their ability to be impartial following their exposure to an individual who commented that she hoped the jurors would “hang” the defendant), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla.2008).

Juror Smith had informed the court and the parties in her jury questionnaire that she had an eleven-year-old child. Because she was not asked, she did not inform them that her son attended the same school as the daughters. She did not withhold any information and tried to let the judge know of her concern once she became aware of this connection. The juror revealed this information prior to the conclusion of the trial and deliberations. The trial judge should have conducted some inquiry to determine whether the juror could remain fair and impartial or may have tainted the remaining jury panel. We must reverse, because without inquiry into the juror’s reflections that she could not be fan* and impartial based upon this outside influence, the appellant’s right to a fair trial before an impartial jury is not protected.

Because we reverse the conviction and sentence for a new trial, we feel it necessary to comment on the prosecutor’s closing argument, which was also raised by appellant as a ground for reversal. While some of the prosecutor’s remarks may have been a fair reply to defense counsel’s arguments, the prosecutor’s closing argument was replete with improper comments which offered her opinion as to appellant’s guilt, shifted the burden of proof, appealed to sympathy for the accuser, vouched for the accuser’s credibility, and invited the jury to base its verdict on which witness the jury thought was most credible. In short, the prosecutor’s closing argument reads like a checklist of nearly every form of improper argument under Florida case law. Were we not reversing for a new trial on the jury issue, we may have concluded that the argument was so flawed as to constitute fundamental error. The prosecutor should not repeat such improper argument in any retrial or chance a second reversal of any conviction.

On the remaining issues raised by both the defense counsel and appellant’s later-filed pro se brief, we affirm.

Reversed and remanded for a new trial.

TAYLOR and CONNER, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Alexander A. ALVARADO, Appellant, v. BAYSHORE GROVE MANAGEMENT, LLC, Appellee.
    No. 3D09-3332.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.
    Lawrence J. McGuiness and Juliana Gonzalez, for appellant.
    Damian & Valori and Russell Landy, Miami, for appellee.
    Before ROTHERNBERG and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   On Motion for Rehearing

SCHWARTZ, Senior Judge.

After oral argument on appellant’s motion for rehearing, the opinion of October 6, 2010, is vacated and the following is substituted in its place:

The plaintiff Alvarado was employed as a maintenance person in a commercial office building operated by the appellee, Bayshore Grove Management, LLC. After he was discharged allegedly for excessive tardiness and absenteeism, he brought this two count action under the Federal Labor Standards Act, 29 U.S.C. § 201 (“FLSA”), for unpaid overtime (Count I) and for unlawful discharge under the anti-retaliatory provision of the act based on the claim that Bayshore had fired him because he had made generalized verbal complaints about his compensation (Count II). The trial court entered summary judgment on both counts for Bayshore. Alvarado appeals but we affirm for the following reasons.

I.

The overtime claim is not cognizable as a matter of law because neither Alvarado nor the employer is subject to the act:

1. There is no “individual coverage” for Alvarado inasmuch as he was not, as 29 U.S.C. § 206(a) requires “engaged in commerce or in the production of goods for commerce” within the meaning of the statute. See Lenca v. Laran Enters., Inc., 388 F.Supp. 782, 784-85 (N.D.Ill.1974) (collecting cases finding “residential or commercial janitor’s work does not substantially affect interstate commerce” for purposes of FLSA coverage); see also Thome v. All Restoration Servs., Inc., 448 F.3d 1264 (11th Cir.2006) (same as to mold and water restoration worker); Jimenez v. S. Parking, Inc., 2008 WL 4279618, *1 (S.D.Fla.2008) (same as to car wash employee).
2. The alternative basis asserted for coverage under the act likewise does not apply because the employer Bayshore is not an “enterprise engaged in commerce or in the production of goods for commerce.” 29 USC § 207(a). This is so because, contrary to 29 USC § 203(s)(l), its “annual gross volume of sales made or business done” was, at most, $461,605.00, less than the $500,000 required. See Padilla v. Manlapaz, 643 F.Supp.2d 298 (E.D.N.Y.2009); Cordero v. Red Grouper, Inc., 2008 WL 1781158, *1 (M.D.Fla.2008); Casanova v. Morales, 2007 WL 4874773, *1 (S.D.Fla.2007).

II.

We also affirm the summary judgment on the retaliation claim because, even considered in its best light, the plaintiffs oral “complaint” about the failure to pay him for the hours he had worked and his allowance for overtime, did not meet the degree of formality required to invoke the Act’s anti-retaliation provision. See 29 U.S.C. § 215(a)(3); Kasten v. Saint-Gobain Performance Plastics Corp., — U.S. -,-, 131 S.Ct. 1325, 1334-1335, 179 L.Ed.2d 379 (2011).

The Supreme Court in Kasten specifically held:

At oral argument, the Government said that a complaint is “filed” when “a reasonable, objective person would have understood the employee” to have “put the employer on notice that [the] employee is asserting statutory rights under the [Act].” Tr. of Oral Arg. 23, 26. We agree. To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights •protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones, [e.s.]

Kasten, 131 S.Ct. at 1335.

Alvarado himself described his complaint as follows:

Just before I was fired on July 11, 2007, I complained to Defendant’s management that I was not receiving the correct amount of pay since my time records were altered and/or falsified so as to avoid having to pay me overtime.

It is obvious that this “complaint” fell far short of the degree of specificity and reference to the statute required by the Supreme Court.

Affirmed.

      . 29 U.S.C.A. Section 203, states in part:
      (s)(l) "Enterprise engaged in commerce or in the production of goods for commerce” means an enterprise that—

      (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 ...

      . The Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., - U.S. -, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011), vacating the Seventh Circuit's decision at 570 F.3d 834 which was followed in the original opinion in this case, nullifies our previous holding that any such complaint must be in writing.

      . Like our earlier opinion, we pretermit consideration of the appellee’s still further arguments for affirmance, including without limitation (1) whether a retaliation claim is not available if as in this case the underlying employment is not covered by the wages and hours provisions of the federal statute, see Lamont v. Frank Soup Bowl, Inc., 2001 WL 521815, *6 (S.D.N.Y. May 16, 2001); and (2) whether, as was also specifically reserved in Kasten, 131 S.Ct. at 1336, the claim is cognizable when the complaint is made only to the employer, as here, rather than to an official body. Id. (“Resolution of the government/private employer question is not a ‘predicate to an intelligent resolution’ of the oral/written question that we granted certiorari to decide.” (citations omitted).