text:
    STATE FARM FIRE & CASUALTY INSURANCE COMPANY, INC., Petitioner, v. BEST THERAPY CENTER a/a/o David Valera, Respondent.
    No. 3D10-2862.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.

      Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood, for petitioner.
    Stuart B. Yanofsky, Plantation, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

State Farm Fire and Casualty Insurance Company (“State Farm”) petitions for second tier certiorari review of a decision rendered by the Appellate Division of the Circuit Court. We have jurisdiction. Fla. R. App. P. 9.030(b)(2)(B); Custer Med. Cntr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010). The circuit court upheld the trial court’s decision to strike State Farm’s affirmative defense of fraud on the morning of trial and to prohibit State Farm from reading a portion of the insured’s (David Valera) deposition to the jury. We grant certiorari.

David Valera was involved in a car accident on Miami Beach, on August 4, 2004, and was insured by State Farm. Best Therapy Center (“Best Therapy”) brought this action against State Farm to recover for medical treatment that Valera allegedly received in connection with the accident. During discovery, Valera stated in a deposition that he did not receive any medical treatment from Best Therapy for the Miami Beach accident. Best Therapy filed a motion to strike State Farm’s affirmative defense of fraud on grounds that, when granted leave to file the affirmative defense of fraud, State Farm had improperly pled the affirmative defense. The motion to strike was never set for hearing, argued or ruled upon prior to the morning of trial.

On the morning of the trial, the court addressed Best Therapy’s motion to strike State Farm’s affirmative defense of fraud. The trial court granted Best Therapy’s motion and ruled that State Farm could not present any evidence of fraud because State Farm had not pled any fraudulent intent and because Best Therapy would have been prejudiced if State Farm were to have amended its pleadings on the morning of trial. The trial court reasoned that specific intent must be pled in order to present a defense of fraud, and that State Farm had not taken active steps to correct its pleadings when it was on notice that its fraud defense was insufficiently pled a year earlier when Best Therapy had originally filed its motion to strike.

A jury trial then proceeded. During the trial, State Farm was allowed to read Val-era’s deposition to the jury, but, pursuant to the trial court’s order in limine, State Farm was not allowed to read the part of the deposition where Valera said he did not receive medical treatment from Best Therapy for the Miami Beach accident. The part of the deposition where David Valera admitted never having received treatment for the Miami Beach accident merely was proffered to the trial judge. After all testimony was heard, the trial court dismissed the jury and granted a motion for directed verdict in favor of Best Therapy. State Farm appealed these rulings to the appellate division of the circuit court.

Acting in its appellate capacity, the circuit court upheld the trial court’s striking of State Farm’s fraud defense and prohibiting the jury from hearing that Valera had not received medical treatment from Best Therapy for the Miami Beach accident. The circuit court reasoned that State Farm had waived its fraud defense, and that the trial court properly used its discretion in denying State Farm leave to amend right before trial as Best Therapy would have been prejudiced.

The circuit court based its decision on the incorrect factual assumption that Val-era’s deposition was read in its entirety to the jury, when, in fact, State Farm was not allowed to read the proffered part of the deposition where David Valera testified that he did not receive any medical treatment from Best Therapy for the Miami Beach accident. The circuit court also awarded attorney’s fees to Best Therapy even though its brief had been stricken from consideration by the circuit court and it had been precluded from presenting oral argument due to the failure to timely file its answer brief or timely move for an extension of time to do so.

On a petition for second tier cer-tiorari, review of a decision rendered by the appellate division of the circuit court is limited to issues raised in the circuit court appeal and cannot be granted if the circuit court came to a wrong conclusion but made its decision according to the correct form of the law and the rules prescribed for rendering it. See Custer, 62 So.3d at 1092; Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995). Instead, second tier certiorari only may be granted where the circuit courts decision fails to afford procedural due process or departs from the essential requirements of the law resulting in a miscarriage of justice. Custer, 62 So.3d at 1092 (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 683 (Fla.2000)). A decision that is not based on any evidence is a miscarriage of justice and rises to the level of error warranting certiorari review. Dresner v. Tallahassee, 164 So.2d 208, 211 (Fla.1964).

It was within the trial court’s discretion to strike State Farm’s affirmative defense, and the circuit court applied the correct law in reviewing the trial court’s ruling. See Haines, 658 So.2d at 525; see also Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods., Inc., 553 So.2d 336, 337 (Fla. 4th DCA 1989) (holding that trial court’s decision to permit or refuse amendment to pleadings will not be disturbed on appeal absent an abuse of discretion; “the crucial consideration in both motions to amend and to conform to the evidence is the test of prejudice”); Lasar Mfg. Co. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983) (same). However, the circuit court’s affirmance of the trial court’s ruling prohibiting State Farm from reading Valera’s deposition in full to the jury on the incorrect basis that “the trial court did not limit State Farm’s reading of the deposition in any way” is a misstatement of the facts in the record. The trial court did, in fact, prohibit State Farm from reading that part of Valera’s deposition where he claims he was not treated by Best Therapy for the Miami Beach accident. Because the circuit court opinion was based upon the wrong record facts and the opinion’s holding is unsupported by evidence in the record on a key issue concerning the actual portion of David Val-era’s deposition excluded from consideration by the jury, the circuit court decision warrants second tier certiorari review; we grant the petition of certiorari and quash the opinion below as the decision constitutes a miscarriage of justice. Custer; see Dresner, 164 So.2d at 211. The circuit court also departed from the essential requirements of law by applying incorrect law when it awarded appellate attorney’s fees to Best Therapy.

Petition for writ of certiorari granted, opinion quashed, remanded for further consideration.

      . We question whether Best Therapy would have been prejudiced. Best Therapy was present when David Valera testified in deposition that he never had been treated by Best Therapy for his Miami Beach accident. Best Therapy also was put on notice in State Farm’s motion for summary judgment of State Farm's allegation of insurance fraud.

      . As a consequence of the grant of the petition for certiorari quashing the circuit court opinion, we need not directly address the trial court's grant of a directed verdict in favor of Best Therapy. On remand, the appellate court should reconsider whether or not the trial court abused its discretion, in determining that Best Therapy would have been prejudiced by State Farm’s amendment of its pleadings to allow for a properly pled affirmative defense of fraud, in light of the fact that Best Therapy was aware of the affirmative defense since, at the very least, the time of the filing of State Farm’s motion to amend.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Ricardo MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-792.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.

      Carlos J. Martinez, Public Defender, and Joanna G. Ingalls and Robert Kalter, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTINAS, and EMAS, JJ.
   SUAREZ, J.

Ricardo Martinez appeals from his conviction and sentence for improper exhibition of weapon pursuant to section 790.10, Florida Statutes (2009). We affirm.

Martinez was initially charged with aggravated assault with a weapon following an incident in which he pulled a gun on Moisés Godoy, who was walking his dog on a leash near an elementary school. Martinez was at the school to pick up his young daughters; he asserted that he retrieved his gun to protect his daughters, who he believed were being threatened by Godo/s dog. The jury convicted Martinez of the lesser included offense of improper exhibition of a weapon. Martinez was sentenced to sixty days in county jail followed by ten months of probation.

The State and the defense agreed upon a set of jury instructions and defense counsel made no objection to the wording. The instruction as given for the lesser included offense mistakenly substituted the phrase “aggravated assault” instead of “improper exhibition of a weapon” in the concluding sentence of that jury instruction. Martinez contends that this error effectively nullified his “defense of others” theory, which led to an erroneous guilty verdict and deprived him of a fair trial. He concludes that the error is fundamental. We disagree.

Because counsel did not contemporaneously object to the wording of the jury instruction, we must determine whether the error reaches “down into the validity of the trial itself to the extent that the verdict of guilty could not have been obtained without the assistance of the alleged error.” State v, Delva, 575 So.2d 643, 644-45 (Fla.1991). Moreover, an erroneous jury instruction constitutes fundamental error “when the omission is pertinent or material to what the jury must consider in order to convict.” Id. at 645.

In this case, Martinez asserted a “defense of others” theory below, and argues that the incorrect phrase in the jury instruction nullified his defense. Despite the incorrect terminology, used only once, that instruction in context and read together with the jury instructions as a whole made it quite clear as to the elements necessary to convict Martinez of the crime of improper exhibition beyond a reasonable doubt. The incorrect language did not eliminate the appellant’s “sole defense” and is not fundamental, reversible error. See Grier v. State, 928 So.2d 368, 370 (Fla. 3d DCA 2006); cf. Smith v. State, 521 So.2d 106, 108 (Fla.1988) (finding that the inadequacy of the old standard jury instruction on the insanity defense was not so flawed as to deprive the defendant of his defense or of a fair trial). Furthermore, the error was ameliorated by the trial court’s instructions on justifiable use of force.

This Court follows the Florida Supreme Court’s analysis of challenged jury instructions as set forth in Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008), and reviews the “totality of the record” for fundamental error. Brown v. State, 35 So.3d 148, 152 (Fla. 3d DCA 2010). The totality of the instructions provided to the jury in this case, including the “justifiable use of non-deadly force” instruction, put all of the other instructions in the proper context. See id. at 151. The instructions when read as a whole sufficiently cured the error in the language of the “improper exhibition of a weapon” jury instruction and clearly articulated that if the jury had “a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force” they should find him not guilty. Accordingly, we find no fundamental error in the jury instruction and affirm the conviction for improper exhibition of a weapon.

Affirmed.

      .The jury was instructed with a modified version of Florida Standard Criminal Jury Instruction 10.5 that provided:
      To prove the crime of improper exhibition of weapon, as a lesser included offense, the State must prove the following three elements beyond a reasonable doubt:
      1. Ricardo Martinez had or carried a firearm.
      2. Ricardo Martinez exhibited the firearm in a rude, careless, angry or threatening manner.
      3. He did so in the presence of one or more persons.
      If you find that the defendant committed the aggravated assault in necessary self-defense and/or defense of others, you must find him not guilty.
      [emphasis added].

      . Whether the self-defense clause of section 790.10, Fla. Stat., was part of the enacting or subsequent clause is of little consequence in this matter. The error neither reached the "validity of the trial” nor deprived the appellant of his "sole defense.” Delva, 575 So.2d at 644; Grier, 928 So.2d at 370.

      . The jury was also instructed on the justifiable use of non-deadly force:
      An issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which RICARDO MARTINEZ is charged if the injury to MOISES GODOY resulted from the justifiable use of non-deadly force.

      RICARDO MARTINEZ would be justified in using non-deadly force against MOISES GODOY if the following two facts are proved:
      1. RICARDO MARTINEZ must have reasonably believed that such conduct was necessary to defend himself or another against MOISES GODOY or his dog’s imminent use of unlawful force against RICARDO MARTINEZ or another person.
      2. The use of lawful force by MOISES GO-DOY or his dog must have appeared to RICARDO MARTINEZ to be ready to take place.
      3.In deciding whether the defendant was justified in the use of non-deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
      In considering the issue of self-defense or defense of others, you may take into account the relative physical abilities and capacities of the defendant, MOISES GODOY and MOISES GODOY’s dog.
      If, in your consideration of the issue of self-defense or defense of others you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.
      However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find him guilty if all the elements of the charge have been proved.

      . See Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (holding that where the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is "so flawed as to deprive defendants claiming the defense ... of a fair trial”).


author: HAWKES J.

text:
    SENTRY INSURANCE COMPANY and Express Script, Inc., Appellants, v. Leon HAMLIN, Appellee.
    No. 1D11-1041.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.

      William H. Rogner and Gregory D. White of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, P.A., Longwood, and Clint M. Lavender of Morgan & Morgan, Orlando, for Appellee.
   HAWKES J.

In this workers’ compensation case, the employer carrier (E/C) appeals a non-final order adjudicating compensability in Claimant’s favor. Claimant was injured when he attempted to retrieve personal property from a car which his lender was repossessing from his employer’s parking lot. There is no dispute that the accident resulting in the injuries occurred in the course and scope of Claimant’s employment. The question we address focuses only on the first part of the coverage formula, “arising out of work performed,” as set forth in section 440.09, Florida Statutes (2008).

The E/C argues the phrase “arising out of work performed” requires that the risks that caused Claimant’s accident and injuries must be work-related. The risk cannot be personal to Claimant or “imported” to the workplace by the Claimant. We agree. Because, at the time of the accident, Claimant was on a purely personal mission having no relationship to work, the accident and injuries did not arise out of his employment. We therefore reverse.

FACTS

Claimant, a sales associate, was sitting at his cubicle working, when his supervisor informed him that a tow truck was near his vehicle in the company parking lot. Claimant immediately exited the building and had a conversation with the tow truck driver who informed him he had orders to take possession of the car and suggested he call his bank or finance company.

Claimant went back inside the office and phoned the bank. A bank representative informed him that his car was being repossessed (Claimant was two months behind on his car payments) and he needed to get his personal items out of the vehicle. Claimant went back to his vehicle to retrieve his personal belongings, (incidental bills and school textbooks) not work-related items. While Claimant was collecting his belongings with his body partially in his car and his feet on the surface of the parking lot, the tow truck driver (who had hooked Claimant’s car up to the truck) drove off, dragging, and eventually running over Claimant, causing injuries.

The entire episode described above occurred within fifteen to twenty minutes. Claimant, who is permitted to take two paid fifteen-minute breaks per day, had not taken his breaks that day and was paid for this time. The parking lot, where the accident occurred, is used exclusively by the Employer and monitored by security guards. The Claimant was not disciplined or sanctioned in any way by his employer for going to the parking lot in response to the repossession of his car.

The parties bifurcated the issue of com-pensability from the issues regarding the precise amount of benefits due, and attended a merit hearing on only the issue of compensability. Claimant and his supervisor testified live (consistent with the account of the events as depicted above), and the parties, who had no ostensible disagreement over the facts, represented that the issue was primarily a legal matter.

CLAIMANT’S ARGUMENTS

Claimant maintains that because the injury occurred on the Employer’s premises, while he was on a paid break, doing an activity implicitly permitted by the Employer, the “arising out of’ requirement of section 440.09, Florida Statutes (2008) was satisfied. Specifically, he claims he had not substantially deviated from his employment when he was injured, and makes the following four points in support of his com-pensability argument.

• First, his injury is compensable under the premises rule because he was injured on the employer’s premises while preparing to perform work.
• Second, his injury is compensable because it occurred during a paid work break.
• Third, his injury is compensable because he was injured while ministering to his personal comfort; yet, he had not deviated from the course and scope of his employment (rendering Employer consent irrelevant). Additionally, even if there was a deviation, it was insubstantial—which would not remove him from the course and seope of his employment.
• Fourth, his injury is compensable because retrieval of his schoolbooks was an emergency and injuries sustained as a result of an emergency designed to save property are compensable under section 440.092(3), Florida Statutes (2008).

STANDARD OF REVIEW

We accept the facts as found by the JCC and stipulated to by the parties. To the extent this issue involves the JCC’s interpretation and application of a statute, it is a question of law and subject to a de novo standard of review.

“Arising out of’ pertains to occupational causation. § 440.02(36), Fla. Stat. (2008). An accidental injury or death arises out of employment if work performed within the course and scope of employment is the major contributing cause of the injury or death. See Id, A condition is considered to “arise out of employment” when the employment necessarily exposes a claimant to conditions which substantially contribute to the risk of injury and to which the claimant would not normally be exposed during his life outside employment. Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995).

Work connection determines coverage under chapter 440, not fault. Compensation “shall be payable irrespective of fault as a cause for the injury.” § 440.10(2), Fla. Stat. (2008). The Supreme Court has summarized workers’ compensation law and its unique relationship with the concept of liability:

The right to compensation benefits depends on one simple test: Was there a work-connected injury? Negligence, and, for the most part, fault, are not in issue and cannot affect the result. Let the employer’s conduct be flawless in its perfection, and let the employee’s be abysmal in its clumsiness, rashness and ineptitude; if the accident arises out of and in the course of the employment, the employee receives an award. Reverse the positions, with a careless and stupid employer and a wholly innocent employee and the same award issues.
Thus, the test is not the relation of an individual’s personal quality (fault) to an event, but the relationship of an event to an employment. The essence of applying the test is not a matter of assessing blame, but of marking out boundaries.

Taylor v. Sch. Bd. of Brevard County, 888 So.2d 1, 5 (Fla.2004) (citing Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition § 1.03, at 1^1 to 1-5 (2003)). “Arising out of’ is part of the work connection test.

For an injury to “arise out of work performed,” the injury must (1) be causally connected to the claimant’s employment; (2) have had its origin in some risk incident to or connected with the employment; or (3) flow from the employment as a natural consequence. See Fid. & Cas. Co. of N.Y. v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940).

In workers’ compensation, all risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and “neutral” risks—that is, risks having no particular employment or personal character. Griffith v. Budget Rent-A-Car Systems, Inc., 692 So.2d 294, 296 (Fla. 3d DCA 1997) (quoting A. Larson, The Law of Workmen’s Compensation § 7.00 (1984)). Harms from risks peculiar to employment are universally compensable. Id. Harm caused by personal risks are universally noncompensable. Id. It is within the third category (neutral risks) that most controversy in modern compensation law occurs. Id.

COURSE AND SCOPE INSUFFICIENT

The coverage formula found in section 440.09(1) reads: “The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment.” (emphasis added). The “arising out of’ requirement comes first and controls or modifies all that comes after it in the sentence. The “course and scope of employment” phrase defines the “work performed” that the injury must “arise out of.” Chapter 440 does not cover an accident resulting in injury, which does not arise out of, but does occur in the course and scope of employment.

Claimant’s first two arguments are based on the fact that he was in the course and scope of his employment when injured. These arguments fall short. Under the “premises rule” cases, the claimants are engaged in some activity related to work, such as getting tools, entering the work place or picking up their pay check. In the paid break cases, the question is frequently resolved in favor of the claimant because there has been no substantial deviation from work. The paid break is normally of short duration and related to the concept of the personal comfort rule and is, in essence, a continuation of the work. Injuries, even those undoubtedly suffered in the course and scope of employment (such as on the premises or on paid breaks), are not compensable if the risk giving rise to injury is distinctly (or wholly) personal in nature or the injury results from a risk that the employee has imported into the workplace. See Leon County Sch. Bd. v. Grimes, 548 So.2d 205 (Fla. 1989) (concluding employee’s injuries resulting from fall occurring while employee was performing work in the course and scope of employment were not compensa-ble because fall occurred as a result of personal risk, and “employment conditions did not contribute to her injury”); see also Carnegie v. Pan Am. Linen, 476 So.2d 311 (Fla. 1st DCA 1985) (“In circumstances where the workplace is merely the fortuitous site of a personal assault which is purely private in origin, and the employment does not otherwise impact the altercation, compensation benefits are properly denied even if the claimant is not the aggressor since the resulting injuries would not arise out of the employment.”).

In Grimes, the Supreme Court declined to expand coverage of chapter 440 to injuries sustained in the course and scope of employment, but caused by risks personal to employee, where employment did not contribute to risk. 548 So.2d at 206. Although the Court did not provide an explicit method of analysis for difficult com-pensability issues, it did provide guidance:

The purpose of the act is to shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expense. Our act affords no relief for disease or physical ailment not produced by industry. [Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342, 343 (1944) ](emphasis added). Further, we have explained that chapter 440 “was not designed to take the place of general health and accident insurance.” General Properties Co. v. Greening, 154 Fla. 814, 820, 18 So.2d 908, 911 (1944).

Id.

In Carnegie, the claimant was injured during an at-work altercation which involved a female co-worker with whom claimant had been romantically involved. 476 So.2d 311. Although the relationship had apparently ceased and the two had not spoken for approximately one month, upon arriving at work on the day of the altercation claimant suffered a knife wound inflicted by the spurned lover regarding the termination of the relationship. Id. The JCC denied compensation for the knife wound, holding there must be some contributing factor from the employment before coverage could be found. Id. at 312. Although the JCC was correct on the law, we remanded for the JCC to resolve specific factual issues. Id.

The “arising out of’ inquiry or workplace risk question is frequently discussed in cases involving either horseplay at work or altercations at work. Even when finding coverage, the inquiry is always made to determine whether such incidents meet the “arising out of’ requirement. Frequently, the court has found these situations are a normal fixture of the workplace, and therefore result from a work-related (or work-produced) risk. See Jean Fluet, Inc. v. Harrison, 652 So.2d 1209, 1210 (Fla. 1st DCA 1995) (explaining that routine or minor horseplay is compensable because such aberrations are sufficently common in workplace); Tampa Maid Seafood Products v. Porter, 415 So.2d 883 (Fla. 1st DCA 1982) (concluding injuries suffered by non-aggressor in workplace assault were com-pensable where work facilitated the assault and contributed to altercation).

In Porter, the court found coverage when the case involved workplace gossip and where the assault was made using work place tools. Id. at 885. The court suggested that injuries resulting from normal work squabbles (about work issues) are compensable because the risk of such conflict is endemic to the workplace (and the human condition), and caused by the compelled proximity of flawed beings in the work environment:

Work places men under strain and fatigue from human and mechanical impacts creating frictions which explode in myriads of ways, only some of which are immediately relevant to their tasks. Personal animosities [created] ... outside the job are magnified to the boiling point by its compelled contacts.

Id. at 885 n. 3 (quoting Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11 (C.A.D.C.1940).

If industry does not contribute to the risk of the accident resulting in injury, the workers’ compensation law does not require industry to contribute to the cost of the injury. Accordingly, regardless of whether Claimant was injured on the premises during work hours, a necessary inquiry remains whether Claimant’s accident arose out of a risk incidental to work — whether a work risk somehow caused or contributed to the injury. Mere presence at the workplace is never enough, standing alone, to meet the “arising out of’ prong of the coverage formula. Because the accident did not “arise out of work performed in the course and scope of employment,” it is not compensable.

PERSONAL COMFORT

The Claimant also argues that the “personal comfort” rule allows a finding of compensability. Claimant misconstrues the rule. The courts have consistently awarded benefits to accidental injuries suffered while an employee is engaging in personal comfort activities, based on the rationale that such activities provide a benefit to the employer and are reasonably incidental to the performance of work activities. See Bayfront Med. Ctr. v. Harding, 653 So.2d 1140 (Fla. 1st DCA 1995) (providing “a worker’s attendance to personal comfort during a refreshment break is conducive to the facilitation of the employment”). The personal comfort rule only applies when there is either a work-related, or neutral risk. See Southern Bell Tel. & Tel. Co. v. McCook, 355 So.2d 1166 (Fla.1977) (holding that a claimant attending to a personal comfort (in this case, a restroom break) is not covered by the act if the workplace provided none of the risk or did not otherwise contribute to the injury); see also Rodriguez v. Tri-State Carriers, Inc., 792 So.2d 1253 (Fla. 1st DCA 2001) (finding, as a general rule, that an injury does not arise out of employment if the employee was injured while engaged in a purely personal errand); and see Galaida v. AutoZone, Inc., 882 So.2d 1111 (Fla. 1st DCA 2004) (holding claimant’s injury by his own firearm while on a personal comfort smoking break was not compensable).

Every “personal comfort” case accepted as compensable by the court has met three prongs:

(1) The activity has been a traditional or routine part of the work place experience (incidental to work);
(2) The employee’s participation in activity of this type has been held to benefit the employer by producing a refreshed employee; and
(3) The injury results from either a work created risk or a neutral risk.

A failure to meet these three prongs prevents an activity from qualifying under the personal comfort doctrine.

Claimant’s injury fails, at a minimum, to meet the first and third prongs, and arguably fails to meet the second. Certainly, Claimant was not ministering to a traditional (or objective) act of personal comfort such as eating a snack, smoking, or taking a restroom break (an activity that the law deems as incidental to work). Claimant’s injury resulted from his hanging out of a vehicle window while his lender exercised its repossession rights. Recovering property from a repossessed vehicle is not the type of activity normally associated with creating a “refreshed” employee. Claimant cannot just declare any activity as one pursued for “personal comfort.” Such a finding would render the “arising out of’ prong meaningless. Claimant was carrying out a mission that was purely personal and not related to work, incidentally or otherwise.

EMERGENCY

As an alternative basis to affirm the JCC, Claimant argues the tipsy coachman rule, asking this Court to construe his actions as an emergency undertaking covered under section 440.092(3).

Injuries are compensable under the workers’ compensation law if the employment places employees in a position that requires them, by “ordinary standards of humanity,” to respond to emergencies. Deutsch v. Heritage Auto. Enter., 939 So.2d 259 (Fla. 1st DCA 2006). The law provides coverage when an emergency triggers an action dictated “by ordinary standards of humanity” designed to save life or property. An emergency is something more than a whim or a mere desire by the employee to take some action. Webster’s dictionary defines “Emergency” as an unforeseen combination of circumstances or the resulting state that calls for immediate action, or an urgent need for assistance. Thus, the law requires a subjective response to a situation that would be objectively recognized as an emergency.

In Deutsch the claimant was injured when he acted to recover property that was being stolen from the employer’s premises. 939 So.2d at 260. The Claimant was in a position, due to work, to observe the attempted theft of the property. The “ordinary standards of humanity” may cause an individual to attempt to recover property they observe being stolen. Therefore, the observed theft in Deutsch would qualify as an emergency and the injury that resulted from the recovery effort, even if the property belonged to the claimant, would be included within the section’s scope.

The significance of the Deutsch holding was that the ownership of the property was not the determinative factor in deciding when section 440.092(3) applies. Deutsch recognizes the principle that when work places an individual in a position to observe the endangerment of property or people, such as an attempted theft or an assault, the “ordinary standards of humanity” may motivate the individual to take action. If injury results from the action, then the statute deems the injury would “arise from work performed” because of section 440.092(3).

Therefore, before any act can be found to be “in response to an emergency,” the emergency must arise in a situation that would be objectively recognized by others as an emergency requiring similar action to be undertaken as undertaken by the Claimant. The law does not permit the Claimant, or the Claimant’s circumstances, to bring acts within the scope of the section by declaring a personal emergency. Here, the rash act of attempting to recover personal schoolbooks from his vehicle while it was being repossessed, while potentially important to the Claimant— perhaps even a personal emergency— would not create an objectively recognized exigency. The normal “standards of humanity” would not dictate the action Claimant took.

Not only is there no evidence of an objective emergency, there is no evidence of a subjective belief by Claimant that the recovery effort was in response to an emergency. Claimant testified that his recovery effort was not related to work or an emergency, but only that he attempted to retrieve the books because he was instructed to do so by his lender. Claimant produced no evidence establishing that work created or caused his exposure to an “emergency” circumstance requiring his response. Because the evidence fails to establish that, the Claimant was responding, consistent with the “standards of humanity,” to an emergency, the tipsy coachman rule is not applicable.

CONCLUSION

Because Claimant was on a purely personal mission having no relationship to work, he is unable to demonstrate he suffered an accidental compensable injury arising out of a risk of his employment. Accordingly, we REVERSE the finding of compensability.

THOMAS and RAY, JJ., concur.

      . We reversed this case and remanded for the JCC to resolve material conflicts in evidence, including whether the work environment directly impacted the altercation and/or industry contributed to the risk that resulted in the injuries.

      . Merriam-Webster's Collegiate Dictionary, Eleventh Edition (2003).


author: PER CURIAM.

text:
    Robert NIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4290.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Matt Shirk, Public Defender, and Seno-via L. Portis, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Robert Pro- . vin Nixon is hereby granted belated appeal from judgment and sentence entered in Duval County case number 2011-CF-000614. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BENTON, C.J., HAWKES and ROWE, JJ., concur.


text:
    CIRCLE F DUDE RANCH CAMP, Star Insurance Group and Florida Preferred Administrators, Appellants, v. Stephanie HUFF, Appellee.
    No. 1D11-2730.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Appellants.
    Jay Avril, Clearwater, for Appellee.
   PER CURIAM.

Upon review of Appellants’ timely response to this Court’s show cause order, the Court hereby dismisses this appeal for lack of jurisdiction. See Fla. R.App. P. 9.180(b)(1)(C). See also, e.g., Landry v. AMS Staff Leasing, 993 So.2d 1071 (Fla. 1st DCA 2008); Sun Sentinel & Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

DISMISSED.

BENTON, C.J., HAWKES and ROWE, JJ., concur.


text:
    Dr. Eric J. SMITH, Commissioner of Education, Appellant, v. Gilbert P. FAUBLAS, Appellee.
    No. 1D10-6050.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Margaret O’Sullivan Parker, Deputy General Counsel, Florida Department of Education, Tallahassee, for Appellant.
    Mark F. Kelly of Kelly & McKee, P.A., Tampa, for Appellee.
   PER CURIAM.

We affirm without discussion the issues raised by the Commissioner of Education on direct appeal regarding the final order of the Education Practices Commission temporarily revoking the educator’s certificate held by the appellee, Gilbert Faublas. However, we reverse based on the issue raised by Mr. Faublas on cross-appeal regarding the retroactive application of sections 1012.795 and 1012.315, Florida Statutes (2008). We find that the Legislature did not intend for those sections to apply retroactively, and that retroactive application of those sections violates constitutional principles. See Presmy v. Smith, 69 So.3d 383 (Fla. 1st DCA 2011). Accordingly, we find that the Education Practices Commission lacked authority to apply the statute retroactively, and we reverse the final order and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Stanley WEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3704.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Stanley West, appeals his conviction and sentence for possession of a firearm by a convicted felon. We find no error with the trial court’s denial of Appellant’s requested jury instruction on the defense of necessity. We do, however, agree with Appellant that the trial court erred in allowing testimony that was fairly susceptible of being interpreted as a comment on his right to remain silent. We, therefore, reverse and remand for a new trial.

Appellant, a convicted felon, testified during his trial that he temporarily possessed a firearm that his mother left at his home in order to dispose of it. According to Appellant, he exited his home with the firearm in order to give it to his father-in-law who lived nearby. Appellant’s father-in-law testified that he agreed to take the firearm after receiving a telephone call from Appellant.

A deputy who was dispatched to Appellant’s home as a result of a neighbor’s call regarding a verbal disturbance between Appellant and his wife, testified that he met Appellant as Appellant was exiting his home and that he secured the firearm that had been in Appellant’s pocket. In response to the prosecutor’s question of whether Appellant ever told him what he was doing with the firearm, the deputy replied, “No, sir.” The trial court overruled defense counsel’s objection that the testimony was an improper reference on Appellant’s right to remain silent. The prosecutor then asked the deputy whether Appellant, before he was taken into custody, said that he was disposing of the firearm. The deputy again answered, “No, sir.” The trial court overruled defense counsel’s objection to this testimony as well. The court, at Appellant’s request, instructed the jury that it is a defense to the crime of possession of a firearm by a convicted felon if the defendant took temporary control over the firearm for the purpose of disposal. The jury found Appellant guilty as charged. This appeal followed.

In support of the trial court’s rulings, the State focuses on the prosecutor’s second question and argues that because the question and the deputy’s response pertained to Appellant’s pre-arrest silence, the silence could be used to impeach Appellant’s inconsistent trial testimony. See State v. Hoggins, 718 So.2d 761, 770 (Fla.1998) (“Florida courts have found, consistent with the United States Supreme Court ... that prearrest, pre-Miranda silence can be used to impeach a defendant”). However, regardless of the fact that that question pertained to Appellant’s pre-arrest silence, the prosecutor’s first question was broad enough to encompass both pre-arrest and post-arrest silence and was, thus, improper. See id. (holding that the use of a defendant’s post-arrest silence, which includes silence at the time of arrest, is improper). Because the deputy’s response to that question was fairly susceptible of being interpreted as a comment on Appellant’s right to remain silent, the trial court erred in overruling defense counsel’s objection. See Mack v. State, 58 So.3d 854, 356 (Fla. 1st DCA 2011) (noting that any comment that is fairly susceptible to interpretation as a comment on a defendant’s right to remain silent will be treated as such).

We reject the State’s argument that the trial court’s error in allowing the testimony was harmless because we are unable to say beyond a reasonable doubt that the error did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). By informing the jury that Appellant failed to mention his reason for having the firearm after being taken into custody, the State lessened the effectiveness of Appellant’s trial defense, a fact which the prosecutor repeatedly noted during his closing argument. See Hoggins, 718 So.2d at 772 (noting that appellate courts must consider the prosecutor’s comments and argument, even if not objected to, when conducting a harmless error analysis). In that argument, the prosecutor focused upon the fact that Appellant never mentioned his defense “on that day,” thereby reminding the jury of Appellant’s post-arrest silence.

Accordingly, we REVERSE Appellant’s conviction and sentence and REMAND for a new trial.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    RACETRAC PETROLEUM, INC., Petitioner, v. Juliet Green COOPER and OPW Fueling, etc., Respondents.
    No. 5D10-3752.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    Michael Broussard, John D.W. Beamer and Meredith L. Barrios of Broussard & Cullen, P.A., Orlando, for Petitioner.
    Desiree E. Bannasch, Orlando, for Respondent Juliet Green Cooper.
    No Appearance for Respondent, OPW Fueling, Inc.
   PER CURIAM.

Petitioner seeks relief from an order compelling it to produce its claims file for the ostensible purpose of allowing its former employee to refresh her memory prior to her deposition. Petitioner’s former employee was its risk manager. She apparently assembled or prepared the contents of the claims file. Respondent scheduled her deposition and obtained the challenged order directing Petitioner to produce its claim file at the deposition. For purposes of this proceeding, Respondent conceded that the contents of the claims file are immune from discovery as work product. But see Bankers Sec. Ins. Co. v. Symons, 889 So.2d 93, 96 (Fla. 5th DCA 2004) (not all documents in claims file are privileged). Respondent further conceded that only the deponent will view the file and that no waiver of any privilege will result from the production of the file for this limited purpose. Although a theoretical case may be made for the production of work product to refresh a witness’s memory when the evidence is not otherwise available, thus far, Respondent’s showing is entirely conjectural. See Zaban v. McCombs, 568 So.2d 87, 89 (Fla. 1st DCA 1990) (where witness could recall facts concerning accident, improper to order production of witness’s statements); Adventist Health Sys./Sunbelt, Inc. v. Lake, 556 So.2d 819, 819 (Fla. 5th DCA 1990) (production of work product to refresh recollection of witness erroneous where respondents could have obtained substantial equivalent of witness’s statements). Accordingly, we quash the order under review to the extent that it orders the production of the file at the deposition.

PETITION GRANTED; ORDER QUASHED.

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


author: ALTENBERND, Judge.

text:
    Georgia A. KELLY and Michael L. Kelly, Petitioners, v. PHILIP MORRIS USA INC.; R.J. Reynolds Tobacco Company, individually and as successor by merger to Brown & Williamson Tobacco Corporation and successor through merger to The American Tobacco Company; and Lorillard Tobacco Company, Respondents.
    No. 2D11-109.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.

      Roy D. Wasson of Wasson & Associates, Chartered, Miami; and Howard M. Acosta of Law Office of Howard M. Acosta, Saint Petersburg, for Petitioners.
    Troy A. Fuhrman, Benjamin H. Hill, III, and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa; and Stephanie E. Parker, John F. Yarber, John M. Walker of Jones Day, Atlanta, Georgia, for Respondents.
   ALTENBERND, Judge.

Georgia A. Kelly and Michael L. Kelly, her husband, are plaintiffs in a tobacco-related personal injury lawsuit against Philip Morris and several other tobacco companies. Mrs. Kelly is currently suffering from lung cancer. The trial court entered an order that requires the “Plaintiffs” to assist in scheduling the depositions of treating physicians the Kellys intend to call at trial. The order further requires the “Plaintiffs” to “disclose to Defendants’ counsel all expert opinions held by, or sought to be elicited from,” these physicians. The Kellys have filed a petition for certiorari in this court seeking to quash this order. We dismiss their petition.

Our standard of review in a certio-rari proceeding requires this court to determine whether the trial court’s order is: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal.” See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). This court typically considers the second and third prongs of this analysis before we consider the first prong. At least descriptively, we treat the second and third prongs as “jurisdictional” because we have no reason to address the merits of a challenged order unless the matter satisfies the second and third prongs. When a petition does not satisfy these prongs, we normally dismiss the petition. In this case, neither aspect of the challenged order appears to result in a material injury and, accordingly, we dismiss the petition.

The Kellys first challenge the aspect of the order that requires that they assist in scheduling the treating physicians’ depositions. Especially in light of the heightened privacy issues that have evolved in health care over the years, we would expect this kind of cooperation and courtesy to occur among litigants without need for a court order. Admittedly, coordinating the scheduling of a deposition of a professional that accommodates his or her schedule and also that of the lawyers in a multi-party lawsuit can be a challenge, but we conclude the trial court has discretion to require this assistance from plaintiffs counsel. We cannot conclude that the quantity of staff time required to help schedule depositions of treating physicians results in a material injury in this context.

The Kellys also challenge the part of the order that requires the “Plaintiffs” to disclose to Defendant’s counsel — at least seven days before a deposition of any treating physicians they intend to call at trial — all expert opinions held by, or sought to be elicited from, these physicians. This issue requires a little more analysis than the first claim.

Although the requirements of this order are analogous to the requirements of Florida Rule of Civil Procedure 1.280(b)(4)(A), it is undisputed that the trial court did not specifically rely on this rule, which does not expressly apply to treating physicians as compared to persons retained as litigation experts. We have found no Florida case law expressly approving or disapproving the procedures required by this order in the context of treating physicians. There is a somewhat similar federal rule, but the trial court has not required compliance with the more elaborate provisions of the federal rule. See Fed. R. Civ. P. 26.

This is a multi-party lawsuit, and it is not entirely clear that every party will wish to attend these depositions. The disclosure prior to the deposition may well streamline the process of taking the depositions. It should be emphasized that the trial court has not compelled the treating physicians to take any action in the trial court proceeding. Indeed, the trial court would not appear to have any jurisdiction or authority over the treating physicians at this time.

The trial court has not specified the precise method of compliance with this order. We assume from the language of the order that the Kellys’ attorneys, as officers of the court, can satisfy this order by a letter or other written communication to opposing counsel. The Kellys’ attorneys are not required to explain in detail the expected testimony of the treating physicians, but merely to disclose “expert opinions” held by the treating physicians and opinions that the Kellys’ attorneys seek to elicit from those treating physicians. Additionally, although the order contains no provisions explaining what might occur if the Kellys’ attorneys cannot obtain the cooperation of a treating physician as to his or her expert opinion prior to the deposition, the trial court would have the authority to address such a complication if and when it arises.

At this point, the trial court would appear to have discretion to enter this disclosure order as part of its control over discovery. Given that the order can be satisfied by a letter from counsel that does not compel any disclosure of actual work product, we conclude that the order results in no material injury that would warrant our review by certiorari.

The petition for writ of certiorari is dismissed.

NORTHCUTT and KELLY, JJ., Concur.

      . Admittedly, a dismissal pursuant to Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995), can be confusing to the parties. It is not comparable, for example, to a dismissal resulting from a petitioner’s failure to file a timely petition. And it is very unlikely that a Parkway dismissal would result in an issue that could be considered by the supreme court by means of a petition for a writ of prohibition. When we dismiss a petition for writ of common law certiorari based on the analysis in Parkway and not for other reasons, we usually cite the Parkway case to assist the parties.


author: KELLY, Judge.

text:
    Michael J. MICKEL and Barbara J. Mickel, Appellants, v. Robert J. NORTON and Mary A. Norton, Appellees.
    No. 2D10-3437.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.
    Mark A. Ebelini of Knott, Consoer, Ebelini, Hart & Swett, P.A., Fort Myers, for Appellants.
    David K. Oaks of David K. Oaks, P.A., Punta Gorda, for Appellees.
   KELLY, Judge.

Michael and Barbara Mickel appeal from a final judgment granting permanent injunctive relief to their neighbors, Robert and Mary Norton. We reverse.

This dispute arose when the Mickels installed a six-foot-high vinyl fence along the property line between their home and the Nortons’ home. The Nortons sued the Mickels alleging the fence constituted a private nuisance and that it violated their “riparian and littoral rights” by obstructing their view of the water. They sought a mandatory injunction requiring removal of the fence and a permanent injunction prohibiting the Mickels from placing any items on their property that would obstruct their view of the water.

After a trial, the circuit court found in favor of the Nortons. The final judgment ordered the Mickels to remove the portion of the fence obstructing the Nortons’ view from their backyard across the Mickels’ property to the water. It also enjoined the placement of any items on the Mickels’ property that would interfere with the Nortons’ view. In making its decision, the trial court relied primarily on this court’s decision in Lee County v. Kiesel, 705 So.2d 1013 (Fla. 2d DCA 1998). On appeal, the Mickels argue that Kiesel is inapplicable and that the Nortons have no legal right to a view of the water over the Mickels’ yard. We agree.

In Kiesel, the owners of riverfront property prevailed in an inverse condemnation action against Lee County in connection with the county’s construction of a bridge that obstructed the Kiesels’ view of the river. This court affirmed the trial court’s award of compensation to the Kiesels based upon the supreme court’s holding in Hayes v. Bowman, 91 So.2d 795 (Fla.1957), which recognizes the right of an upland property owner to an unobstructed view of adjoining waters. Id. at 799 (citing Thiesen v. Gulf, Fla. & Ala. Ry. Co., 75 Fla. 28, 78 So. 491 (1917)).

We conclude that Kiesel is inapposite. The Kiesels’ home was situated on a riverfront lot. The bridge made landfall on property adjacent to the Kiesels’ home. The bridge was not aligned perpendicularly to the shoreline, but rather extended over the river at an angle. As a result, the bridge extended directly across the view from the Kiesel home to the river. Because the bridge was built at an angle, the trial court found that it “substantially and materially interferes with ... the view across the waters of the Caloosahatchee River from the ... property.” Kiesel, 705 So.2d at 1014-15.

The evidence in this case demonstrated that the Mickels’ fence did not interfere with the Nortons’ view of the water bordering their property. The parties’ homes are situated on adjoining pie-shaped lots on the tip of a small peninsula. The Mick-el lot is at the tip of the peninsula. The west side of the lot borders Alligator Bay and the Peace River; the rear of their home faces west toward the water. The Norton lot lies to the north of the Mickel lot. The north side of the Nortons’ lot faces the Sunrise Waterway, a manmade waterway that provides subdivision homeowners with access to Alligator Bay and the Peace River; the rear of their home faces north toward the water.

In addition to the rights enjoyed by the public, private or “special” ripai'ian rights are vested in owners of land that extends to the high water mark of navigable waters:

Those who own land extending to ordinary high-water mark of navigable waters are riparian holders who, by implication of law, and in addition to the rights of navigation, commerce, fishing, boating, etc., common to the public, have in general certain special rights in the use of waters opposite their holdings; among them being the right of access from the water to the riparian land and perhaps other easements allowed by law.

Broward v. Mabry, 58 Fla. 398, 50 So. 826, 830 (1909) (emphasis added). Among the “other easements allowed by law,” is the right to an unobstructed view over the adjoining water. See Thiesen, 78 So. at 507.

The difficulty with the Nortons’ contention that the Mickels’ fence interferes with their riparian right to an unobstructed view of the water is that it ig-ñores the fact that their property and the Mickels’ property border different bodies of water. The Nortons still have a direct and unobstructed view of the Sunrise Waterway, which is the only body of water adjoining their lot. At most, the Nortons established that the fence obstructed then-view of the Mickels’ side yard and Alligator Bay which lies to the west on the other side of the Mickels’ lot. Because the Nor-tons’ lot is not bordered by Alligator Bay, they are not entitled to the private or special riparian rights incident to the ownership of land bordered by that body of water, including the right to a view of the bay. Accordingly, the trial court erred when it concluded they were entitled to relief.

The Mickels also argue, and we agree, that the trial court erred when it ruled in favor of the Nortons on their nuisance claim. The Mickels contend that they had the fence installed for safety reasons to protect their privacy. At trial, Mr. Mickel testified that when he and his wife went into their backyard,

Mr. Norton would either stand out there and watch us the entire time ... or he’d be out there telling us, shouting over at us or coming over and saying that he had a legal right to the view over and through our property; he had a legal right to tell us where we could plant and not plant.... We finally had enough of it.

The Nortons alleged numerous reasons why the fence should be removed, including that the fence is out of place in the neighborhood, that it serves no useful purpose, that it diminishes the value of their property, that it was not constructed or installed in accordance with applicable instructions or requirements, and that it unreasonably denies them a view of the water from their backyard. However, there is no evidence in the record to support the Nortons’ claims.

While it is unfortunate that the relations between these neighbors deteriorated to the point that the Mickels felt it necessary to install the fence to avoid confrontations with Mr. Norton, this does not support the conclusion that the fence is a nuisance. Even assuming the Nortons had a legal right to view the water by looking over the Mickels’ yard, we conclude the fence served a useful purpose by protecting the Mickels’ privacy and keeping trespassers from entering their property. See Calusa Golf, Inc. v. Carlson, 464 So.2d 1271, 1271 (Fla. 3d DCA 1985) (finding that an injunction preventing the construction of a fence was inappropriate “even though a spiteful purpose may have partially motivated the construction” where the fence would “serve a useful purpose by protecting the [property] from trespass and vandalism”); Walden v. Van Harlingen, 220 So.2d 670, 671 (Fla. 1st DCA 1969) (finding that the fact that a property owner desires to enclose his property from public view does not render the fence unlawful as a nuisance); Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357, 359 (Fla. 3d DCA 1959) (stating that where a structure serves a useful and beneficial purpose it does not give rise to a cause of action regardless of the fact that it “may have been erected partly for spite”). Accordingly, we reverse.

Reversed.

WALLACE and CRENSHAW, JJ., Concur.


text:
    D.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2296.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Dismissed as moot. See Vazquez v. State, 930 So.2d 860 (Fla. 2d DCA 2006).

CASANUEVA, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Johnny K. STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2955.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.
    Johnny K. Stephens, pro se.
   PER CURIAM.

Johnny K. Stephens appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

In 2006, Stephens pleaded guilty to attempted robbery and was sentenced to ten years in prison as a habitual felony offender with a five-year mandatory minimum as a prison releasee offender. Stephens claimed that the predicate felonies used to sentence him as a habitual felony offender did not satisfy the sequential requirement of section 775.084(5), Florida Statutes (2008), necessary for the imposition of a habitual felony offender sentence. He asserted that the judgments and sentences for the predicate offenses in case numbers CRC00-20221 and CRC01-12896 were entered on the same day and should have been treated as a single qualifying offense for habitual felony offender purposes.

In response, the State conceded that the judgments and sentences submitted during Stephens’s sentencing did not support a habitual felony offender sentence but noted that Stephens also had out-of-state felony convictions in Virginia that would support the habitual offender designation. The State submitted a request to the Virginia Department of Corrections and obtained certified orders of Stephens’s convictions in the state. The postconviction court held that the sentence was lawful because the convictions in case numbers CRC00-20221 and CRC01-12896 occurred on two separate dates, thereby meeting the predicate felony requirement. The postconviction court also noted that the Virginia judgments and sentences submitted by the State would also qualify Stephens for a habitual sentence.

Initially, we note that the documents supporting the Virginia convictions were not entered into evidence at sentencing but were submitted during postconviction proceedings. This evidentiary process is outside of the limits of rule 3.800(a). See, e.g., Casey v. State, 788 So.2d 1121, 1122 (Fla. 2d DCA 2001). However, because the motion was properly sworn and timely filed within two years of the January 25, 2008, issuance of the mandate on Stephens’s direct appeal, rule 8.850 would authorize an evidentiary hearing on this motion. See id.

Stephens correctly argued, and the State properly conceded, that the convictions in case numbers CRC00-20221 and CRC01-12896 can only be counted as one prior felony conviction for habitual enhancement purposes. See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001) (“[A]l-though the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of the same sentencing proceeding.”). The convictions were entered on the same day, in the same proceedings, and do not meet the sequential conviction requirements of section 775.084(5). See id.; see also Johnson v. State, 790 So.2d 1163, 1163 (Fla. 2d DCA 2001); Westberry v. State, 906 So.2d 1141, 1142 (Fla. 3d DCA 2005). Because the convictions only count as one prior felony, alone, they are insufficient to qualify Stephens for habitual felony offender sentencing.

Additionally, the attached Virginia convictions are not prior convictions and cannot be used as a qualifying felony. See Johnson v. State, 752 So.2d 702, 704 (Fla. 2d DCA 2000); Gavlick v. State, 740 So.2d 1212, 1214 (Fla. 2d DCA 1999); Cornet v. State, 791 So.2d 593, 594 (Fla. 3d DCA 2001). For the Virginia convictions to qualify as a predicate felony for enhancement purposes, the felony “must be a prior felony and the defendant must have been convicted of that prior felony within five years of the date of commission of the offense for which the defendant is being sentenced.” Gavlick, 740 So.2d at 1214; see Cornet v. State, 791 So.2d at 594 (“A crime committed subsequent to the one for which defendant is being sentenced cannot serve as a qualifying felony for purposes of imposing a habitual offender sentence.”). The attached documents from the Virginia Department of Corrections indicate that Stephens was arrested on November 4, 2004, for possession of heroin and possession of a firearm and was convicted on July 20, 2005. Stephens committed the current offense on September 28, 2003, before he was convicted of the Virginia offenses. Based on the record before us, Stephens lacks the requisite predicate felony convictions to qualify as a habitual felony offender.

We therefore reverse the order of the postconviction court affirming Stephens’s habitual felony offender sentence with directions for the court to hold an evidentia-ry hearing pursuant to rule 3.850 on the issue of qualifying predicate felony offenses.

Reversed and remanded.

WHATLEY, NORTHCUTT, and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    Jose Luis MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4831.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.

      Jose Luis Morales, pro se.
   DAVIS, Judge.

Jose Luis Morales appeals the order denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised five grounds for relief. We reverse and remand for further proceedings on ground three only. We affirm the remainder of the postconviction court’s order without comment.

On June 8, 2009, Morales pleaded guilty to attempted sexual battery of a child under twelve years of age and burglary with battery. Morales was sentenced to concurrent terms of twenty years’ imprisonment on each count, followed by ten years of sex offender probation. However, Morales claimed that his plea was involuntary due to his counsel’s affirmative misadvice regarding the probable length of his sentence. Specifically, Morales claimed that his counsel informed him that if he accepted the plea and maintained good behavior, he would only serve fourteen years of the twenty-year sentence. This estimate was allegedly based on a pending change in gaintime law that would supposedly benefit Morales upon coming into effect. Morales claimed that had his counsel not provided affirmative misadvice as to the amount of time he would ultimately serve, he would not have entered his guilty plea.

The postconviction court denied this claim as an attempt to go behind the plea, finding that the plea colloquy had addressed Morales’s maximum sentence and whether Morales had been promised anything. See Stano v. State, 520 So.2d 278, 279-80 (Fla.1988) (holding that a defendant cannot relitigate the plea when it was clear the plea was voluntarily entered). However, the Florida Supreme Court has held that certain claims of ineffective assistance of counsel based on erroneous advice cannot be refuted by the plea colloquy unless it specifically and correctly addressed the issue upon which the misad-vice was given. See State v. Leroux, 689 So.2d 285, 237 (Fla.1996). Furthermore, such valid claims of erroneous advice extend to misrepresentations about the effect and application of gaintime on the length of the defendant’s prison sentence, as is the case here. See Leroux, 689 So.2d at 236; Borders v. State, 936 So.2d 737, 738 (Fla. 2d DCA 2006). In such cases, “were it to be made clear to a defendant at the time the plea was entered that he could not rely on anyone’s estimated computation of the time the defendant would actually serve, then such a defendant would have no basis to complain later.” Leroux, 689 So.2d at 237. However, where a basic plea colloquy is given, it typically “cannot be said that respondent’s allegations of the misadvice of counsel are ‘conclusively’ rebutted.” Id.

In Morales’s case, the court conducted a standard plea colloquy that did not include a discussion of sentence length specific enough to satisfy the Leroux standard or conclusively rebut counsel’s alleged misadvice. Accordingly, we must reverse the postconviction court’s denial of ground three. On remand, the postconviction court is instructed to either attach portions of the record conclusively refuting Morales’s claim or conduct an evidentiary hearing. We affirm the order in all other respects.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J., Concurs.

KELLY, J., Dissents.


text:
    Steve A. HUTCHINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5640.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.
    Steve A. Hutchins, pro se.
   PER CURIAM.

Steve Hutchins challenges the order of the postconviction court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of ground four of the motion and remand for further proceedings. In all other respects, we affirm.

In September of 1983 Hutchins pleaded guilty to two counts of handling and fondling a child under the age of fourteen in exchange for sentences of ten years’ probation concurrent on both counts. In 1986 the State filed an affidavit of violation of probation alleging that Hutchins committed a new sexual offense against the same child victim. Hutchins absconded from supervision and was arrested in Georgia in January 2008. In May 2008 following an evidentiary hearing wherein the victim testified, the trial court revoked Hutchins’ probation finding that he violated condition five of his probation which required him to live at liberty without violating the law. Hutchins elected not to be sentenced under the sentencing guidelines, and the trial court sentenced him to fifteen years’ prison on each count of handling and fondling, with the sentences to run concurrently.

In ground four of the rule 3.850 motion, Hutchins alleged that his election not to be sentenced under the sentencing guidelines was involuntary because the guidelines scoresheet prepared by the State was inaccurate and counsel was ineffective in failing to detect the errors in the score-sheet. Specifically, Hutchins alleged that the correct permitted range under the guidelines was any nonstate prison sanction or community control to three and one-half years’ prison rather than the permitted range of five and one-half to twelve years’ prison as calculated by the State. Hutchins alleged that he would have elected to be sentenced under the guidelines had counsel advised him of the correct permitted sentencing range.

The postconviction court denied this claim, finding that had Hutchins requested to be sentenced under the guidelines, the trial court would not have been bound to honor his request because Hutch-ins’ offenses were committed prior to the effective date of the 1983 sentencing guidelines. This is an incorrect statement of the law. A defendant who was placed on probation prior to October 1983 is entitled to be sentenced under the guidelines when probation is revoked after October 1, 1983, provided that the defendant affirmatively elects a guidelines sentence. See Shaw v. State, 63 So.3d 898, 899-900 (Fla. 5th DCA 2011). “When reviewing a court’s summary denial of a rule 3.850 motion or claim, the court must accept the movant’s factual allegations as true to the extent they are not refuted by the record.” Franqui v. State, 59 So.3d 82, 95 (Fla. 2011). We conclude that Hutchins presented a cognizable claim that his election not to be sentenced under the guidelines was involuntary based on trial counsel’s alleged failure to advise him of the correct sentencing range. The record before this court does not refute Hutchins’ claim. We therefore reverse the summary denial of ground four of the motion and remand to the postconviction court to consider the claim on its merits.

Affirmed in part, reversed in part, and remanded.

WHATLEY, DAVIS, and KELLY, JJ., Concur.

      . In 2008 the State filed an amended affidavit of violation of probation alleging that Hutch-ins also violated two other conditions of his probation.

      . The 1983 version of the sentencing guidelines is applicable in this case. See § 921.001(4)(b)(1), Fla. Stat. (2008); Logan v. State, 921 So.2d 556, 559 (Fla.2005).

      . If Hutchins' calculation of the permitted range under the sentencing guidelines is correct, it would have been illogical for him not to elect to be sentenced under the guidelines, particularly because he violated probation by committing a new offense against the same victim and then absconded from supervision.

      .For example, Hutchins alleged that the 1986 handling and fondling offense was improperly scored as an additional offense at conviction. The portion of the transcript of the sentencing hearing attached to the post-conviction court’s order does not establish that Hutchins was sentenced on anything other than the 1982 offenses or even that he was convicted of the 1986 offense.


author: PER CURIAM. ■

text:
    Joshua B. WHITAKER, Petitioner, v. Ashley MERKISON, Respondent.
    No. 1D11-3721.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2011.
    Joshua B. Whitaker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM. ■

DENIED. See Marquez v. State, 11 So.3d 975 (Fla. 3d DCA 2009).

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Sean N. SHUMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4714.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2011.
    Rodney G. Gregory and Nah-deh Simmons of The Gregory Law Firm, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, WETHERELL, and SWANSON, JJ., concur.


author: SAWAYA, J.

text:
    BLACK DIAMOND PROPERTIES, INC., et al., Appellants, v. Charles S. HAINES, Kathy Haines, et al., Appellees.
    No. 5D10-764.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.

      Edward A. Marod, of Gunster Yoakley & Stewart, P.A., West Palm Beach, and Anne S. Mason, of Mason Law, P.L., Clearwater, for Appellants.
    John C. Bell, Jr., of Bell & Brigham, Augusta, Georgia, and Steve A. Rothen-burg, Ocala, for Appellees.
   SAWAYA, J.

Defendants, Black Diamond Properties, Inc. (“Properties, Inc.”), Black Diamond Realty (“Realty, Inc.”), and Stanley C. Olsen, appeal a final judgment based upon a jury verdict awarding damages for misleading advertising to Plaintiffs, Charles and Kathy Haines, Angelo and Brenda Masut, Tom Howell, and Richard Conboy. The issues we will address are whether the misleading advertising claims are barred by the statute of limitations and whether the trial court erred in denying Defendants’ motion for new trial based on erroneous jury instructions.

This case involves a subdivision, Black Diamond Ranch (“Black Diamond”), and a private golf club, Black Diamond Club (“the Club”), which are located in Lecanto, Florida. The Club includes two golf courses, a clubhouse, and a driving range (“golf courses and facilities”). Olsen, who developed both Black Diamond and the Club, sold lots in Black Diamond through his wholly-owned company, Realty, Inc. Memberships in the Club were marketed as “equity memberships” to those who owned lots in Black Diamond. Despite this marketing ploy, those who purchased memberships actually received a l/750th ownership in a not-for-profit corporation called Black Diamond Club, Inc. (“Club, Inc.”). Club, Inc., in turn, has an option to purchase the golf courses and facilities from Properties, Inc., which is wholly-owned by Olsen. The option is part of the Club Purchase Agreement (“the Agreement”). The nature of the Agreement was a matter of dispute in the lower court proceedings, with Plaintiffs arguing that the Agreement was merely an illusory option since Olsen could prevent the golf courses and facilities from ever being transferred to Club, Inc.

The terms of the Agreement specify that revenues from the sale of memberships and dues paid by members flow through Club, Inc. into Properties, Inc. as nonrefundable option payments and are used to cover the cost of operating the Club. The Agreement further provides that the option is triggered by the sale of the 750th membership in Club, Inc. Club, Inc. can exercise its option at an earlier date only at the discretion of Properties, Inc. Properties, Inc. has complete authority to set the price of memberships, and Olsen has complete discretion to appoint members to the board of directors for Club, Inc.

The premise of this suit is that Olsen and his employees led those who purchased memberships to believe that they were actually getting a fractional ownership interest in the golf courses and facilities, when, in fact, they only received fractional ownership in a not-for-profit corporation that did not own the golf courses or the facilities. This not-for-profit corporation only held an option to purchase the golf courses and facilities at some time in the future. That option could only be triggered by the sale of the 750th membership in Club Inc. Olsen held the sole discretion to set the price for those memberships and thereby controlled all future events that could lead to the exercise of that option. In essence, despite the fact that Plaintiffs were sold equity memberships, all they purchased was an interest in a corporation that owned nothing more than an option contract that could only be exercised at the discretion of Olsen, who was the owner of the legal entity that owned the golf courses and facilities. Plaintiffs alleged that the actions of Defendants constituted false and misleading advertising under section 817.41, Florida Statutes (1997).

Defendants argue that Plaintiffs, with the exception of the Haineses, were barred by the applicable statute of limitations found in section 95.11(3)(f), Florida Statutes, which provides for a limitation period of four years for “an action founded on a statutory liability.” § 95.11(3)(f), Fla. Stat. (1997). Plaintiffs purchased their memberships at various times. Charles and Kathy Haines purchased their membership in February 2000. Angelo and Brenda Masut purchased their membership in March 1998. Tom Howell bought his membership in June 1998. Richard Con-boy bought his membership in January 1997. The underlying lawsuit was filed on October 30, 2003, by Tom Howell, Richard Conboy, and Charles Haines. The complaint was subsequently amended to include Kathy Haines and the Masuts. As to all Plaintiffs except the Haineses, it is uncontroverted that the suit was not filed within the four-year limitations period under the statute. Because Defendants concede that the Haineses timely filed their claim under section 817.41, any further discussion regarding the statute of limitations defense will relate to the claims of the other four plaintiffs.

Plaintiffs contend that Defendants are barred from asserting a statute of limitations defense based on equitable estoppel and the continuing tort doctrine. We disagree. Plaintiffs argue that the Defendants are barred from raising a statute of limitations defense under the doctrine of equitable estoppel because they did not disclose to Plaintiffs until sometime in 2001 that Club Inc. did not actually own the golf courses and facilities. Therefore, Plaintiffs assert that they did not know until that time that they had a cause of action for false advertising. Plaintiffs have misinterpreted the doctrine of equitable estoppel.

“The doctrine of equitable estoppel has been recognized and applied in numerous contexts by the supreme court since the inception of statehood.” See Morsani v. Major League Baseball, 739 So.2d 610, 614 (Fla. 2nd DCA 1999), approved in part, 790 So.2d 1071 (Fla.2001) (citations omitted). “The doctrine has also been recognized as a valid defense to a limitations-period defense.” Id. (citations omitted). However, equitable es-toppel “presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant’s conduct.” See Bell v. Fowler, 99 F.3d 262, 266 n. 2 (8th Cir. 1996) (citing Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995)) (emphasis added). Stated another way, “[ejquitable estoppel arises where the parties recognize the basis for suit, but the wrongdoer prevails upon the other to forego enforcing his right until the statutory time has lapsed.” Cook v. Deltona Corp., 753 F.2d 1552, 1563 (11th Cir.1985) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1043 n. 7 (10th Cir.1980)) (emphasis added).

Ryan v. Lobo De Gonzalez, 841 So.2d 510, 518 (Fla. 4th DCA 2003), quoted in Acous tic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1144 (Fla. 4th DCA 2008).

The doctrine of equitable estoppel is inapposite given that Plaintiffs do not allege that they knew they had a cause of action, but failed to comply with the statute of limitations because they relied on fraudulent representations made by Defendants that led them to delay filing suit. To the contrary, Plaintiffs argued in the lower court proceedings that they did not comply with the statute of limitations because, until 2001, they did not recognize the basis for their false advertising claims.

Furthermore, Plaintiffs’ reliance on the continuing tort doctrine to counter the statute of limitations defense is unavailing. “Where the [continuing tort] doctrine applies, a plaintiff may recover damages for tortious acts committed within the limitations period prior to the filing of suit.” Suarez v. City of Tampa, 987 So.2d 681, 685 (Fla. 2d DCA 2008) (citations omitted).

A continuing tort is “established by continual tortious acts, not by continual harmful effects from an original, completed act.” Horvath v. Delida, 213 Mich.App. 620, 540 N.W.2d 760, 763 (1995). “When a defendant’s damage-causing act is completed, the existence of continuing damages to a plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort.” In re Medical Review Panel for Claim of Moses, 788 So.2d 1173, 1183 (La.2001); see also Fed. Deposit Ins. Corp. v. Laidlaw Transit, Inc., 21 P.3d 344, 356 (Alaska 2001) (stating that where the defendants were “not exacerbating the contamination that they allegedly caused,” a continuing trespass claim was inappropriate because “the contamination in this case [does not] differ[ ] from the harm ordinarily at issue in cases involving torts of a non-continuing [sic] nature, where discrete wrongful acts often have lasting consequences”).

Id. at 686 (emphasis in original) (holding that a claim for dumping garbage on the plaintiff’s property was not a continuing tort). In the instant case, the damage-causing act was completed at the time Plaintiffs purchased the memberships in reliance on Defendants’ misrepresentations. Accordingly, the continuing tort doctrine is inapplicable to the facts of this case. We conclude that the section 817.41 claims of Angelo and Brenda Masut, Tom Howell, and Richard Conboy are barred by the statute of limitations.

As to the Haineses, Defendants claim that the jury instruction regarding them section 817.41 claim is erroneous and requires reversal. We agree. Defendants argue that the jury instruction was erroneous because it did not instruct the jury that it had to find that Defendants either knew or should have known the advertisements were false or misleading. In Joseph v. Liberty National Bank, 873 So.2d 384 (Fla. 5th DCA 2004), this court explained:

Although the statute does not say it, the case law that has developed since the adoption of section 817.41(1) requires one seeking to maintain a civil action for violation of the statute to prove each of the elements of common law fraud in the inducement, including reliance and detriment, in order to recover damages.
... [I]n order to state a cause of action for fraud in the inducement a plaintiff must allege that (a) the repre-sentor made a misrepresentation of a material fact; (b) the representor knew or should have known of the falsity of the statement; (c) the representor intended that the representation would induce another to rely and act on it; and (d) the plaintiff suffered injury in justifiable reliance on the representation.

Id. at 388 (emphasis in original) (citations omitted). Thus, the jury instructions given by the trial court subjected Defendants to strict liability on the section 817.41 claims in contravention of Joseph. Defendants are entitled to a new trial regarding the section 817.41 claim of the Haineses.

Accordingly, we reverse that part of the final judgment awarding damages to Charles and Kathy Haines, Angelo and Brenda Masut, Tom Howell, and Richard Conboy pursuant to section 817.41. We remand this case to the trial court for a new trial on the Haineses’ section 817.41 claim.

AFFIRMED in part; REVERSED in part; REMANDED.

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

      . Defendants’ other arguments on appeal are directed to issues involving plaintiffs Lawrence Laukka and Jackson Randolph, in addition to the already named plaintiffs. These arguments are without merit. Accordingly, we affirm all other aspects of the final judgment without further discussion.

      . While Plaintiffs’ argument misses the mark for the doctrine of equitable estoppel, it would be germane to the delayed discovery doctrine. " 'The "delayed discovery” doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.' ” Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007) (quoting Heamdon v. Graham, 767 So.2d 1179, 1184 (Fla.2000)). However, Plaintiffs have expressly disavowed any reliance on the delayed discovery doctrine both in the lower court and on appeal. Accordingly, we will not express an opinion on the applicability of tire delayed discovery doctrine to Plaintiffs’ claim for false advertising.


text:
    Stephen A. MASSENGALE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4849.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2011.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Stephen Massengale appeals his convictions for manslaughter by driving under the influence (DUI), driving with a license suspended or revoked, DUI causing damage to a person or property, and DUI causing serious bodily injury. Appellant contends that the trial court erred by denying a motion for mistrial after the prosecutor improperly commented in opening statement about Appellant’s constitutional right not to testify. The effect of the State’s improper remarks is subject to “harmless error” analysis. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Holloman v. State, 573 So.2d 134 (Fla. 2d DCA 1991). Concluding that the State has met its burden under DiGuilio to show there is no reasonable possibility that this error affected the verdict, we affirm the convictions. See DiGuilio, 491 So.2d at 1135.

Appellant also asserts error in the trial court’s imposition of the mandatory cost of prosecution ($100.00) pursuant to section 988.27(8), Florida Statutes (2008). The State properly concedes error because the offenses of which Appellant was convicted occurred before this authorizing statute became effective. Ex post facto principles are implicated where a statute is applied retroactively to impose a cost or surcharge and the length of a defendant’s sentence can be increased by the failure to pay. See Griffin v. State, 980 So.2d 1085, 1037 (Fla.2008). As payment of this $100.00 fíne is a condition of Appellant’s probation, the failure to pay it could result in revocation of his probation.

We AFFIRM the judgment and sentence, except for the $100.00 fine at issue, which we REVERSE and REMAND to the trial court with directions to strike it from the judgment of fines.

WOLF, LEWIS, and RAY, JJ., concur.


text:
    George Sawday TELLAM, D.P.M. and Ankle & Foot Associates, Petitioners, v. Paul S. MUMFORD and Susan Mumford, his wife, Respondents.
    No. 1D11-1343.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2011.
    Stephen M. Masterson of Smith, Brooks, Masterson, Tallahassee, for Petitioners.
    Richard C. Watson of Rahaim, Watson, Dearing & Moore, P.A., Jacksonville, for Respondents.
   PER CURIAM.

We quash the trial court’s order and remand for a hearing to determine whether respondents’ claim rests on a reasonable basis and whether the notice of intent to initiate litigation was in compliance with the reasonable investigation requirement of sections 766.201-766.212, Florida Statutes (2009). See Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 663-64 (Fla. 4th DCA 2008) (“ ‘[w]hen one of the parties files a motion under section 766.206, the trial court must determine whether the opposing party’s claim ... “rests on a reasonable basis” and whether the notice of intent to sue ... is “in compliance with the reasonable investigation requirements of ss 766.201-766.212.” ’ ” (quoting Duffy v. Brooker, 614 So.2d 539, 544-45 (Fla. 1st DCA 1993))).

Petition granted.

BENTON, C.J., HAWKES, and ROWE, JJ., concur.


text:
    Rickie Edward WILDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5196.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2011.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the judgment and sentence entered after he pled guilty to one count of grand theft, seven counts of forgery, and seven counts of uttering forged checks. Appellant entered into a plea agreement. In exchange for the plea, he agreed to be adjudicated guilty and sentenced to 60 months in prison. At the sentencing hearing, Appellant was sentenced to 100 months in prison. Appellant contends that this sentence was in violation of the plea agreement. The State properly concedes error. “ ‘A plea agreement is a contract and the rules of contract law are applicable to plea agreements.’” Armstrong v. State, 985 So.2d 1156, 1158 (Fla. 3d DCA 2008) (quoting Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998)). We REVERSE and REMAND to the trial court for imposition of a sentence of 60 months’ imprisonment.

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Maruchi RODRIGUEZ-FARO, Appellant, v. M. ESCARDA CONTRACTOR, INC., Appellee.
    No. 3D10-1275.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.

      John H. Faro, Bonita Springs, for appellant.
    Raul Gastesi, Jr., Miami Lakes, and Jose A. Ceide, for appellee.
    Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Maruchi Rodriguez-Faro (“the homeowner”) appeals from an order denying her motion to vacate a final summary judgment entered in favor of M. Escarda Contractor, Inc. (“the contractor”). We reverse.

The homeowner’s husband signed an agreement for the contractor to renovate and remodel the couple’s condominium. The contractor began the work, and the homeowners made certain payments. Later a dispute arose and the homeowners refused to make further payments. In response, the contractor filed a mechanic’s lien against the condominium.

Thereafter, the contractor sued the homeowners to foreclose on the mechanic’s lien, and for breach of contract and unjust enrichment. When the homeowner and her husband failed to answer the contractor’s amended complaint, the contractor moved for summary judgment, attaching an affidavit stating the amount due under the contract. At the summary judgment hearing, the homeowner’s husband informed the trial court that he had filed for bankruptcy. Consequently, the trial court denied, without prejudice, the motion for summary judgment against him and the claim to foreclose the mechanic’s lien. Conversely, the trial court granted summary judgment on the contractor’s claim of unjust enrichment against the homeowner, directing execution against the homeowner for' the full unpaid contractual amount.

Almost two years later, when the homeowner failed to appear for a deposition in aid of execution, the contractor moved for sanctions. The homeowner filed a motion to vacate the summary judgment under Florida Rule of Civil Procedure 1.540. The trial court denied the motion as untimely. This appeal followed.

On appeal, the homeowner asserts, inter alia, that the trial court abused its discretion in denying her motion because she was not given an opportunity to be heard on the damages. On the other hand, the contractor contends that the trial court properly denied the motion as untimely. We agree with the homeowner.

A trial court’s denial of a motion for relief from judgment is reviewed for abuse of discretion. See State Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1386 (Fla. 1st DCA 1992). In Florida, it is well settled that a defaulting party is entitled to notice and an opportunity to be heard when the amount of damages is unliquidat-ed. See Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007). Further, a judgment entered without such notice and opportunity to be heard is void. 957 So.2d at 666. And, a void judgment can be collaterally attacked at any time. See, e.g., Wolfe v. Stevens, 965 So.2d 1257 (Fla. 2d DCA 2007).

Damages are unliquidated if they require testimony to ascertain a value. Cellular Warehouse, 957 So.2d at 665. Moreover, where the claim is for unjust enrichment, damages may be considered unliquidated despite an existing contract. See Fiera.com, Inc. v. DigiCast New Media Grp., Inc., 837 So.2d 451 (Fla. 3d DCA 2002).

Here, the only proof of damages the contractor submitted was his affidavit stating the amount which remained unpaid under the contract. Both parties agree that the contracted work was not completed. Therefore, because further evidence was required to ascertain the value of the work performed, the damages were unliq-uidated. Consequently, the trial court abused its discretion in determining the amount of damages without further evidence.

Accordingly, we reverse the denial of the motion to vacate the summary judgment, and remand for further proceedings.

Reversed and remanded.