author: WELCH, Judge.

text:
    Carl Donnell MOORE v. STATE of Alabama.
    CR-09-0071.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.

      James E. Gentry, Tuscaloosa; and Michael J. Upton, Tuscaloosa, for appellant.
    Troy King, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   WELCH, Judge.

Carl Donnell Moore was convicted of trafficking in a controlled substance, a violation of § 13A-12-231(2), Ala.Code 1975, and was convicted of distributing a controlled substance, having sold a controlled substance within a three-mile radius of a school and a housing project, violations of §§ 13A-12-211, 13A-12-250, and 13A-12-270, Ala.Code 1975. However, after remand by this Court, the trial court set aside Moore’s trafficking conviction. For Moore’s conviction based on the sale of a controlled substance within a three-mile radius of a school and housing project, the trial court sentenced Moore to 30 years’ imprisonment. The trial court ordered Moore to pay an assessment of $2,000 in accordance with the Drug Demand Reduction Act, an assessment of $100 to the Forensic Trust Fund, and an assessment of $50 to the Crime Victims Compensation Fund. Moore filed an untimely motion for a new trial with this Court. This appeal followed.

The record reflects that Moore was represented at trial by Michael J. Upton, and that, on October 6, 2009, at sentencing, Moore filed his oral notice of appeal. On that date, the trial court allowed Upton to withdraw as counsel and appointed James E. Gentry to serve as Moore’s counsel on appeal. On November 18, 2009, the court reporter filed a notice with the trial court that she would be unable to produce a transcript of Moore’s trial because the electronic file containing the trial transcript was corrupted. Although the record does contain a transcript of Moore’s sentencing proceeding and copies of motions and paper filings with the trial court, the record does not contain a transcript of the trial proceedings.

On December 15, 2009, the trial court conducted a hearing on this matter with Upton and Gentry and appointed Upton to serve as Moore’s appellate counsel in addition to Gentry; however, only Gentry signed as counsel of record in Moore’s brief on appeal with this Court. Further, only Gentry requests attorney fees for serving as appellate counsel.

On January 15,' 2010, Moore filed an untimely motion for a new trial with this Court, in which he argued that he is entitled to a new trial because the court reporter’s stenograph machine malfunctioned and a trial transcript would not be available for appeal. On February 16, 2010, this Court remanded the case and ordered that the trial court comply with Rule 10(d), Ala. R.App. P., and prepare a statement of the evidence presented at trial.

On July 12, 2010, the trial court submitted the following order on return to remand:

“The Court has conducted several hearings in an effort to obtain an agreed statement as the record on Appeal pursuant to Rule 10(e) of the Alabama Rules of Appellate Procedure. As noted by the submissions of the parties, an agreed statement could not be achieved. Consequently, the Court makes this return on remand to the Alabama Court of Criminal Appeals as follows:
“1. [Moore] was convicted of Sale of a Controlled Substance within a 3 mile radius of a school and within a 3 mile radius of a public housing project under Count III of the Indictment.... “2. After reviewing the (1) State’s Submission of Proposed Reconstruction of Transcript which was filed by the State on April 6, 2010, and is attached to this order, (2) the Defense Counsel’s Summary/reconstruction of the available trial transcript and [Moore’s] objection filed on March 12, 2010, and reaffirmed on May 27, 2010, which are attached to this order, (3) the exhibits admitted into evidence which consisted of 16 exhibits including photographs, a scale, finger print report, audio cassette and video cassette, (4) the limited notes which the Court could locate after a lengthy search, (5) this Court’s recollection of the trial testimony and (6) the Court file, the Court adopts the State’s submission of proposed Reconstruction of Transcript which is attached to this order as the Record on Appeal with the following additions:
“a. The Court instructed the Jury that the crime of Possession of Controlled Substance can be jointly committed and guilt of an accused does not depend on ownership of the controlled substance.
“b. The defense noted in its Summary/Reconstruction of the unavailable Trial Transcript concerning Jury Instruction that this Court instructed the Jury on two additional factors not listed in Ex parte J.C., 882 So.2d 274 (Ala.2003). The two additional factors which the Court instructed the Jury were (1) Evidence of previous use and (2) evidence that showed the Defendant’s proximity to the contraband.
“3. With the additions noted above, the Court finds that there is a sufficient transcript presented for Appellate Review on the Appeal of the Sale of Cocaine conviction under Count III of the Indictment. The Court notes that in [Moore’s] submission, there are no criticisms directed to the sale case which involved the purchase of cocaine by the confidential informant, ... who was wearing an audio transmission device.
“4. The Court finds that the transcript adopted by the Court as to the Trafficking in Cocaine conviction under Count IV of the Indictment is insufficient because it lacks detail regarding the evidence and arguments on the Motion to Suppress the Cocaine seized from the residence of [S.N.] and also the surrounding circumstances regarding the Constructive Possession of Cocaine, which formed the basis of the trafficking charge. For these reasons, this Court finds that [Moore] is entitled to a new trial on the Trafficking Charge contained in Count IV of the indictment. Accordingly the Trafficking conviction, is set aside for lack of a trial transcript.”

(Return to Remand 1-3.)

On appeal, Moore argues that he is entitled to a new trial because the trial transcript, in its entirety, is unavailable for his appeal. Specifically, Moore argues that he was not represented on appeal by his trial counsel and that the reconstructed record is “wholly inadequate” for the purposes of his appeal. (Moore’s brief, at 6.) In addition, Moore argues that the trial court was without jurisdiction to appoint Upton to serve as appellate counsel on December 15, 2009, because more than 30 days had expired since Moore filed his notice of appeal on October 6, 2009. The State appears to concede that the trial court’s appointment of Upton as appellate counsel was void. (State’s brief, at 11.) However, the State argues that Upton “participated” in Moore’s appeal and that this fact should weigh against Moore in his argument that he should receive a new trial. (State’s brief, at 10.)

Initially, we note that the trial court was without jurisdiction to appoint Upton to serve as Moore’s appellate counsel because Moore did not file a post-judgment motion in the trial court extending the trial court’s jurisdiction. See Ex parte Walker, 652 So.2d 198, 199 (Ala.1994) (holding that “a trial court ordinarily has no jurisdiction over a case after an appeal has been taken”; however, the trial court retains jurisdiction to rule on a timely filed motion for a new trial); Rule 24.1(b), Ala. R.Crim. P. (“A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced. After a denial of a motion for a new trial, the previously filed notice of appeal shall be deemed to have been filed as of the date of the denial of the motion and shall' include an appeal from the denial of the motion.”); Rule 4(b)(1), Ala. RApp. P. Thus, prior to Upton’s being appointed as appellate counsel, the circuit court lost jurisdiction over Moore’s conviction and sentence and jurisdiction vested in this Court. See Williams v. State, 982 So.2d 615, 617 (Ala.Crim.App.2007) (“The general rule is that jurisdiction of one case cannot be in two courts at the same time.” [ (citations and quotations omitted) ]).

Therefore, for the purposes of this appeal, Moore was represented on appeal solely by Gentry.

The Alabama Supreme Court stated in Ex parte Godbolt, 546 So.2d 991 (Ala.1987), that

“[t]he Fifth Circuit Court of Appeals recognized in these cases that there are times when reversible error should be presumed when a court reporter fails to comply with the Court Reporter Act, 28 U.S.C.A. § 753(b), by omitting some portion of the trial proceedings. However, that court has not chosen to adopt a per se rule requiring reversal for any and all omissions. Error is presumed only if the defendant is represented on appeal by counsel other than the attorney at trial. The Fifth Circuit rule is well expressed in United States v. Selva, 559 F.2d 1303 (5th Cir.1977):
“ “While both the [Court Reporter Act] and [Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) ] insure to a defendant the right to a complete record on appeal, there has been considerable litigation in this court over the effect of a failure to comply with the Act. Two rules have evolved. The first holds that failure to comply with the Act is not error per se and will not work a reversal absent a specific showing of prejudice — i.e., appellant must show that failure to record and preserve the specific portion of the trial proceedings visits a hardship upon him and prejudices his appeal. United States v. Alfonso, 552 F.2d 605 (5th Cir.1977); United States v. Long, 419 F.2d 91 (5th Cir.1969); Addison v. United States, 317 F.2d 808 (5th Cir.1963); Strauss v. United States, 311 F.2d 926 (5th Cir.1963). The government urges upon us this body of law as controlling our decision here. We disagree. An examination of the second body of case law reveals that a different rule obtains in cases involving new counsel on appeal. When, as here, a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to mandate reversal. See United States v. Gregory, 472 F.2d 484 (5th Cir.1973) (dicta); United States v. Garcia-Bonifascio, 443 F.2d 914 (5th Cir.1971); United States v. Rosa, 434 F.2d 964 (5th Cir.1970); United States v. Atilus, 425 F.2d 816 (5th Cir.1970); Stephens v. United States, 289 F.2d 308 (5th Cir.1961). The wisdom of this rule is apparent. When a defendant is represented on appeal by the same attorney who defended him at trial, the court may properly require counsel to articulate the prejudice that may have resulted from the failure to record a portion of the proceedings. Indeed, counsel’s obligation to the court alone would seem to compel him to initiate such disclosure. The attorney, having been present at trial, should be expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded. But when a defendant is represented on appeal by counsel not involved at trial, counsel cannot reasonably be expected to show specific prejudice. To be sure, there may be some instances where it can readily be determined from the balance of the record whether an error has been made during the untranscribed portion of the proceedings. Often, however, even the most careful consideration of the available transcript will not permit us to discern whether reversible error occurred while the proceedings were not being recorded. In such a case, to require new counsel to establish the irregularities that may have taken place would render illusory an appellant’s right to notice plain errors or defects, Hardy, 375 U.S. at 280, 84 S.Ct. 424, and render merely technical his right to appeal.’ ”

546 So.2d at 996-97 (emphasis added).

Further, in Green v. State, 796 So.2d 438 (Ala.Crim.App.2001), the court reporter failed to transcribe the sentencing hearing, a closing argument in which the defendant objected to remarks made by the prosecutor, and a post-trial hearing. In Green, appellate counsel was not the same counsel who had represented the appellant at trial, and pursuant to Godbolt, this Court remanded Green’s case to the trial court for a new trial. In Green, this Court stated:

“In the present case, substantial portions of the trial record have been omitted. The record does not include the sentencing hearing, nor does it contain the hearing involving the trustworthiness of the witnesses alluded to during trial. Further, pages are missing from both the transcript of the pretrial hearing held on March 29, 1999, and the trial transcript. After a careful and extensive review of the record, this Court cannot conclude that the appellant has not been prejudiced by the missing portions of the record. Given the trial court’s finding that the omitted portions of the record entitled the appellant to a new trial, the appellant’s vigorous attempts to obtain a complete record on appeal, and the nature of the proceedings missing from the record, reversal is required under the unique circumstances of this case. Accordingly, the appellant’s conviction is reversed, and this case is remanded to the Hale Circuit Court for a new trial.”

Green v. State, 796 So.2d 438, 440 (Ala.Crim.App.2001).

Here, Moore was not represented at trial and on appeal by the same counsel. Though the State argues that Upton “participated” in Moore’s appeal, it is unclear from the record what assistance, if any, Upton provided Moore’s appellate counsel. As stated previously, the brief filed with this Court was submitted by Gentry, who is the only attorney requesting payment as appellate counsel. Further, the transcript of the trial is wholly unavailable as the result of a technical malfunction. Although it is well settled that it “is the appellant’s duty to provide this court with a complete record on appeal,” Gamble v. State, 791 So.2d 409, 418 (Ala.Crim.App.2000), no further effort on Moore’s part could possibly produce a trial record. Moreover, the trial court found on return to remand that the parties could not agree upon a statement of facts pursuant to Rule 10(d), Ala. R.App. P. Finally, without a trial transcript, we cannot determine if Moore has or has not suffered prejudice. Therefore, reversal is required under the unique circumstances of this case. Accordingly, Moore’s conviction for distribution of a controlled substance is reversed, and this case is remanded to the Tuscaloosa Circuit Court for a new trial.

REVERSED AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.


source: Caselaw Access Project

author:
WELCH, Judge.
      KELLUM, Judge,

license: Public Domain

text:
    Dorsie NORTHARD v. STATE of Alabama.
    CR-09-1645.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Dorsie Northard, pro se.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WELCH, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM and MAIN, JJ., concur. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Dorsie Northard’s 12th Rule 32, Ala. R.Crim. P., petition challenging his 1984 guilty-plea conviction for capital murder and his sentence to life imprisonment without the possibility of parole. I believe that allowing Northard to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Northard and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: VAN NORTWICK, J.

text:
    SPECIALTY MARINE & INDUSTRIAL SUPPLIES, INC., a Florida corporation, Appellant/Cross-Appellee, v. Bahram VENUS, individually; Sheila Venus, individually; Bahman Venus Living Trust, Bahman Venus and Nahid Venus as Trustees; Nahid Venus Living Trust, Bahman Venus and Nahid Venus as Trustees, Appellees/Cross-Appellants.
    No. 1D09-6092.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Rehearing Denied May 10, 2011.

      Michael R. Freed, Matthew T. Jackson, and Joshua R. La Bouef of Brennan, Manna & Diamond, P.L., Jacksonville, for Appellant/Cross-Appellee.
    Lester Makofka, Jacksonville, for Appel-lees/Cross-Appellants.
   VAN NORTWICK, J.

Specialty Marine & Industrial Supplies, Inc., appeals a judgment notwithstanding the verdict entered in favor of Bahram Venus and other defendants, appellees and cross-appellants. This judgment overturned a jury verdict that had awarded Specialty Marine damages in its negligent misrepresentation action against ap-pellees based upon the trial court’s finding that Specialty Marine “failed to justify [its] reliance” on Venus’ representation. On appeal, Specialty Marine argues that the trial court erred in usurping the jury’s determination that it had justifiably relied on Venus’ negligent misrepresentation. In response, appellees assert that Specialty Marine failed to establish the elements of reliance and causation necessary to establish a negligent misrepresentation claim. After our review of the record, because competent and substantial evidence supports the jury’s verdict, we reverse the judgment under review and reinstate the verdict. We also reverse the denial of prejudgment interest.

Bahram Venus and related Venus family trusts (jointly “Venus”) owned real property in Mayport, Florida. While Venus owned the property, a boundary-line dispute arose between Venus and a neighbor. The disputed area was a strip of land which measures approximately 176 x 18 feet at the northern portion of the property. Venus eventually sought to sell the property. Specialty Marine contacted Bahram Venus and expressed an interest in purchasing the property. At trial, the owner of Specialty Marine, James Michael Whalen, testified that, when he expressed an interest in the property, he was told by Bahram Venus that the property was 18 feet deeper than it actually was. Subsequently, Whalen was informed by an acquaintance of the boundary dispute between Venus and a neighbor. When Whalen questioned Venus as to the nature of the boundary dispute, Venus informed Whalen that the neighbor was “crazy,” that the problem was “not a big deal,” and that there was a survey supporting his position. At trial, Specialty Marine introduced evidence that, when it made a subsequent inquiry into this boundary dispute, Venus failed to correctly identify the 176 by 18 foot area of concern, and instead represented to Specialty Marine that the dispute involved a 6 to 8 foot strip of land. Further, according to Whalen, Venus never disclosed that a prior survey indicated that the property line at issue was not where Venus represented it to be.

After entering into a contract to purchase the subject property, Specialty Marine employed Tri-State Land Surveyors, Inc., a land surveyor recommended and utilized by Specialty Marine’s lending institution, to conduct a survey and verify the boundary of the parcel. Whalen testified that he would not have entered into the contract to purchase the property, which led to Specialty Marine obtaining the Tri-State survey as a part of the closing, had Venus not first misrepresented the boundary of the property. Tri-State’s survey erroneously showed that the boundary lines were located as represented by Venus. Specialty Marine closed the purchase of the property for a purchase price of $450,000. It later learned, however, that the actual boundary line was only six inches from the northerly side of the structure on the subject property, making the property unsuitable for its intended use. Specialty Marine filed a four-count complaint which included two claims against Tri-State for negligence and breach of contract regarding the preparation of the survey, a negligent misrepresentation claim against Bahram Venus individually, and a negligent misrepresentation claim against Bahram Venus, Sheila Venus, the Bahman Venus living trust, and the Nahid Venus living trust. Prior to trial, Specialty Marine settled with Tri-State.

At trial, the jury found that the Venus defendants engaged in negligent misrepresentation and returned a verdict in favor of Specialty Marine. The jury determined that the Venus defendants were the legal cause of 90% of Specialty Marine’s damages and found that Specialty Marine incurred $400,000 in total damages. Venus filed a motion for judgment notwithstanding the verdict, arguing that Specialty Marine failed to prove both reliance and causation of damages. The trial court granted Venus’ motion, ruling that the cause of Specialty Marine’s damages was not negligent misrepresentation but rather breach of warranty, a cause of action not raised by Specialty Marine. Nevertheless, the trial court awarded Specialty Marine $35,000 in damages under this alternate theory of liability. The trial court denied Specialty Marine’s motion for prejudgment interest on the $35,000 breach of warranty award. This appeal follows.

To state a cause of action for negligent misrepresentation, a plaintiff must show:

(1) the defendant made a misrepresentation of material fact that he believed to be true but which was in fact false; (2) the defendant was negligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely and [sic] on the misrepresentation; and (4) injury resulted to the plaintiff acting in justifiable reliance upon the misrepresentation.

Simon v. Celebration Co., 883 So.2d 826, 832 (Fla. 5th DCA 2004); see Butler v. Yusem, 44 So.3d 102, 105 (Fla.2010). In its judgment, the trial court explained its ruling, as follows:

The Court finds that it is difficult to find that Venus was negligent. The Court finds that in a light most favorable to the plaintiff he could be found to be negligent for his failure to disclose the [conflict with the neighbor] to Whalen. The Court also finds that [Specialty Marine] failed to justify [its] reliance. [Specialty Marine] made no investigation regarding a disputed property line which had been brought to his attention by the seller[.]

On appeal, Specialty Marine contends that it introduced competent substantial evidence showing that it relied on Venus’ negligent misrepresentations made prior to the closing of the purchase. Further, Specialty Marine argues that its reliance on Venus’ misrepresentation caused Specialty Marine to incur a loss by purchasing property which was unsuitable for Specialty Marine’s intended use. Venus argues in response that, because Specialty Marine relied on Tri-State’s negligently conducted survey, as a matter of law, Specialty Marine could not have relied on the misrepresentations in question. Venus further asserts that, as a result, even if he may have misrepresented the boundary line in dispute, Specialty Marine is precluded from recovery.

The standard of review of a trial court’s ruling on a motion for judgment notwithstanding the verdict is de novo. Hancock v. Schorr, 941 So.2d 409, 412 (Fla. 4th DCA 2006); McQueen v. Jersani, 909 So.2d 491, 492-93 (Fla. 5th DCA 2005). The standard of review applicable to the review of a directed verdict also governs review of a judgment in accordance with a prior motion for directed verdict. See Premier Lab Supply, Inc. v. Chemplex Industries, Inc., 10 So.3d 202 (Fla. 4th DCA 2009). “[W]hen presented with a motion for directed verdict, a court must view all the evidence in a light most favorable to the non-movant, and in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made.” Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 325-26 (Fla. 1st DCA 2002) (citing Ticor Title Guarantee Co. v. Harbin, 674 So.2d 781, 782 (Fla. 1st DCA 1996)). A jury verdict must be sustained if it is supported by competent substantial evidence. See Richey v. Modular Designs, Inc., 879 So.2d 665, 667 (Fla. 1st DCA 2004).

When granting the judgment here, the trial court relied heavily on Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980), in ruling that Whalen’s “failure to act because of his stated reliance on Venus is not sufficient to constitute justifiable reliance.” Because Besett involved a claim for fraudulent misrepresentation, not negligent misrepresentation, the trial court’s reliance on Besett was misplaced. Under Florida law, fraudulent misrepresentation and negligent misrepresentation involve different elements, especially with respect to justifiable reliance. There are four elements necessary to establish fraudulent misrepresentation: (1) a false statement concerning a material fact; (2) the representer’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation. Butler, 44 So.3d at 105; Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985). Justifiable reliance is not a necessary element of fraudulent misrepresentation. Butler, 44 So.3d at 105. Because justifiable reliance is not an element of fraudulent misrepresentation, “a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had [the recipient] made an investigation, unless [the recipient] knows the representation to be false or its falsity is obvious.” Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 336 (Fla.1997) (quoting Besett v. Basnett, 389 So.2d 995, 998 (Fla.1980)).

In contrast, a claim for negligent misrepresentation under Florida law requires a showing that the recipient of the information justifiably relied on the erroneous information. Butler, 44 So.3d at 105; Gilchrist Timber, 696 So.2d at 337. Nevertheless, while “justifiable reliance on the misrepresentation is required as an element of the claim, justifiable reliance on a representation is not the same thing as failure to exercise due diligence.” Butler, 44 So.3d at 105. Therefore, a misrepre-senter is precluded from arguing that the recipient of information did not justifiably rely because he or she failed to conduct an adequate independent investigation. Additionally, principles of comparative negligence apply to negligent misrepresentation claims. Gilchrist Timber, 696 So.2d at 339.

As set forth in the Restatement (Second) of Torts § 552 (1977), expressly adopted in Gilchrist Timber, 696 So.2d at 339, liability for a negligent misrepresentation is dependent upon a finding that a party’s reliance on the misrepresentation was justifiable. Section 552(1) explains that

[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

This liability is “limited to loss suffered ... through reliance upon [the false information] in a transaction the [supplier of false information] intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.” Id. at § 552(2)(b).

We find that the competent, substantial evidence in the record, as discussed above, supports the jury’s finding that Specialty Marine justifiably relied on Venus’ negligent misrepresentations. Further, we cannot agree that, because Specialty Marine obtained a survey from Tri-State, as a matter of law there could be no justifiable reliance upon any negligent misrepresentation by Venus. We recognize that in other jurisdictions, where a buyer of property undertakes an independent investigation of the facts represented by the seller, as a matter of law, the buyer is not relying on the seller’s representation and cannot recover for either negligent misrepresentation or fraud. See, e.g., Bartlett v. Schmidt, 33 S.W.3d 35, 38 (Tex.App.2000). Under Florida law, even though justifiable reliance is required, a recipient of information does not have to investigate every piece of information furnished, but instead is responsible for investigating that information which “a reasonable person in the position of the recipient would be expected to investigate.” Gilchrist Timber, 696 So.2d at 339; see also Newbern v. Mansbach, 777 So.2d 1044, 1045-46 (Fla. 1st DCA 2001). If a recipient of false information does undertake an investigation, the element of justifiable reliance does not fail as a matter of law. Stev-Mar, Inc. v. Matvejs, 678 So.2d 834, 837 (Fla. 3d DCA 1996) (holding that, in an action for both fraudulent and negligent misrepresentation, where the buyer retained an attorney to verify the seller’s title representations and the attorney negligently failed to discover the title defects and seller’s false representations, seller could not avoid liability based on lack of justifiable reliance). Further, there is no requirement that Specialty Marine’s reliance on Venus’ misrepresentations be the sole or even the predominant cause of Specialty Marine’s decision to purchase the property “if his reliance is a substantial factor in determining the course of conduct that results in his loss.” Id. at 838. It is for the jury to determine whether reliance was justified under the totality of circumstances. Newbern, 777 So.2d at 1046.

The jury here was presented with evidence of Venus’ misrepresentations and the erroneous survey prepared by TriState. The jury instructions have not been challenged on appeal, and the jury obviously found Whalen to be a credible witness. By finding that Venus’ misrepresentations were only 90% of the cause of Specialty Marine’s damages, the jury clearly applied principles of comparative negligence and considered the full range of causation evidence. Thus, the jury’s verdict reflects Specialty Marine’s reliance on both Tri-State’s survey and Venus’ negligent misrepresentations. Because we find that competent, substantial evidence in the record supports the jury’s verdict, the trial court abused its discretion in granting the judgment notwithstanding the verdict in favor of Venus. Therefore, we reverse the lower court’s judgment notwithstanding the verdict and reinstate the jury verdict for Specialty Marine.

The trial court also ruled that Specialty Marine was not entitled to prejudgment interest on the $360,000 jury award after setting aside the jury verdict and granting a judgment notwithstanding the verdict. On appeal, Specialty Marine argues that, if the jury award is reinstated, then it is entitled to prejudgment interest on the amount of $360,000. “Prejudgment interest is generally not awarded in tort cases, because damages are generally too speculative to liquidate before final judgment.” Underhill Fancy Veal, Inc. v. Padot, 677 So.2d 1378, 1380 (Fla. 1st DCA 1996) (citing Lumbermens Mut. Cas. Co. v. Percefull, 653 So.2d 389 (Fla.1995)). In Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla.2010), the Florida Supreme Court recently considered under what circumstances the award of prejudgment interest is appropriate in a tort case, holding that “[i]n all cases, either of tort or contract, where the loss is wholly pecuniary, and may be fixed as of a definite time, interest should be allowed as a matter of right, whether the loss is liquidated or unliqui-dated. ...” Id. at 46 (quoting William B. Hale, The Law of Damages, § 67 (2d ed. 1912) (emphasis theirs)). Because Specialty Marine’s negligent misrepresentation tort claim sought purely pecuniary damages and because the loss leading to these damages was fixed in time, prejudgment interest is awardable. Bosem. We, therefore, reverse the lower court’s ruling on this issue.

The remaining issues raised on appeal and cross-appeal are rendered moot by our reversal of the judgment under review. Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

WEBSTER and DAVIS, JJ., concur.

      . Although the term "motion for a judgment notwithstanding the verdict” is still employed, pursuant to the Florida Rules of Civil Procedure, a motion challenging a jury verdict is more properly styled a "motion for judgment in accordance with a prior motion for directed verdict.” Rule 1.480(b), Fla. R. Civ. P.; see Fire & Casualty Ins. Co. v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA 2002). Appellees did move for a directed verdict.


author: LaROSE, Judge.

text:
    Timothy Wayne STEWMON, Appellant, v. Karen Sylvia STEWMON, Appellee.
    No. 2D09-1759.
    District Court of Appeal of Florida, Second District.
    May 25, 2011.
    Rehearing Denied Aug. 3, 2011.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.

      Robert Burandt of Burandt, Adamski, Grossman & Powell, PL, Cape Coral, for Appellee.
   LaROSE, Judge.

Timothy Stewmon (the Husband) appeals the final judgment dissolving his eleven-year marriage to Karen Stewmon (the Wife). Principally, he argues that the trial court erred in its equitable distribution of assets and liabilities. The Husband raises several meritorious issues that require us to reverse, in part.

Valuation Dates

The Husband points out that the trial court failed to specify valuation dates for marital assets or failed to justify different valuation dates for various marital assets. Marital assets are valued as of “the date or dates as the judge determines is just and equitable under the cireumstances[;] [different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.” § 61.075(6), Fla. Stat. (2004). Section 61.075(3) requires written findings of fact as to the distribution of assets and liabilities, including the following:

(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

The trial court’s valuations of two trucks, two motorcycles, and two boats match those on the Wife’s July 2008 financial affidavit, with the exception of an air boat, which the trial court valued at a lower amount reflected in the Wife’s April 2005 affidavit. The trial court also valued the marital home at an amount matching the Wife’s expert’s valuation at the time of trial. But the trial court valued the Wa-chovia, Citibank, and Capital One liabilities at the amount listed in her April 2005 affidavit, rather than at the lower amounts listed in her July 2008 affidavit. The trial court assigned these liabilities to the Wife. Apparently, the trial court assigned low values to the assets and high values to the liabilities distributed to the Wife. We must also note that our record indicates that the Husband had paid off these liabilities.

The trial court valued the Husband’s business at its 2003 value of $1.2 million, with his net share at $229,183. By the time of trial, a court-appointed evaluator valued the Husband’s interest at zero. The Wife testified that the Husband had received unaccounted-for disbursements from the business. The trial court explained that using the 2003 valuation would “cover the disbursements that [the Husband] has gotten over the last several years.... ” Although the transcript reveals the trial court’s reason for using the 2003 business valuation date, neither the transcript nor the final judgment explains why the trial court valued the trucks, motorcycles, boats, marital home and the Wacho-via, Citibank, and Capital One liabilities as of the dates it did. This was error. As to those assets and liabilities, on remand, the trial court should explain its rationale.

Omission of Liabilities

The Husband argues that the trial court failed to value and distribute all marital liabilities. Specifically, he claims that the trial court (1) omitted a $500,000 personal loan listed on his July 2008 affidavit, (2) omitted a $2600 debt he owed on a motorcycle, and (3) omitted an approximately $22,000 debt he owed on one of the boats and paid off when he sold it. The trial court erred in failing to explain its rationale for not valuing and distributing these liabilities. See § 61.075(3)(d), (6). On remand, this, too, should be corrected.

Marital or Nonmarital Status of Assets and Liabilities

Next, the Husband argues that the trial court failed to determine whether assets and liabilities were marital or nonmarital. See Smith v. Smith, 996 So.2d 924, 925 (Fla. 1st DCA 2008) (holding trial court must provide specific factual findings that identify and distinguish marital from non-marital assets). He identifies the Wife’s premarital jewelry, vehicles they each purchased after the filing date, and his allegedly premarital 401K account. Our record reflects that the parties agreed on the division of personal property, including the jewelry. Nothing in our record suggests that the Wife purchased a vehicle after filing for dissolution. Apparently, the vehicle to which the Husband refers as his postfiling purchase is a Hyundai he claims to have purchased with the proceeds from the sale of a business vehicle. The trial court listed the business vehicle in the equitable distribution, but did not list the Hyundai. Because it does not appear that the trial court equitably distributed the Hyundai, we see no error.

The trial court awarded the 401K account to the Husband and an IRA account to the Wife. The Husband’s testimony conflicted as to whether the 401K account was nonmarital. The Wife’s 2008 financial affidavit lists both as marital; the Husband’s 2008 affidavit lists neither. We see no error.

Depleted Assets

The Husband claims that the trial court erred in distributing depleted assets to him without a specific finding of his wrongful conduct. See Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005). He refers us to two bank accounts, valued at $23,650 and $22,258, that were liquidated during the dissolution proceeding to pay marital obligations. He also points to a $28,000 credit for the proceeds from the boat sale, when all the proceeds were used to pay off a boat loan and marital obligations. The trial court should have explained its distribution of any depleted assets. We direct the trial court, on remand, to make specific findings.

Bankruptcy Nondischargeability

Finally, the Husband argues that the trial court erred in ruling that the equalizer payment he owes to the Wife is nondischargeable in bankruptcy. We agree. See Roth v. Roth, 973 So.2d 580, 589 (Fla. 2d DCA 2008) (holding bankruptcy nondischargeability provision was error that must be stricken from the judgment; a state court cannot decide a federal bankruptcy issue in a divorce case when no bankruptcy proceeding has been filed); Meeks v. Meeks, 964 So.2d 185, 187 (Fla. 2d DCA 2007). On remand, the trial court should strike this provision of the final judgment.

Conclusion

Beyond the errors specifically described in this opinion, we affirm the final judgment of dissolution of marriage in all other respects. We remand the matter for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and MORRIS, JJ, Concur.


author: PER CURIAM.

text:
    Albert DENNIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2352.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    Rehearing Denied Aug. 2, 2011.
    Albert Dennis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    USAA CASUALTY INSURANCE COMPANY, a foreign corporation, Petitioner, v. Christopher CALLERY and Charlotte Webb, Respondents.
    No. 2D10-5466.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    Rehearing Denied Aug. 3, 2011.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Petitioner.

      Angela A. Zervos of Yanchuek, Berman, Wadley & Zervos P.A., Tarpon Springs, for Respondent Christopher Callery.
    No appearance for Respondent Charlotte Webb.
   LaROSE, Judge.

USAA Casualty Insurance Company petitions for certiorari review of a nonfinal order granting Christopher Caller/s motion to compel production of medical records in his suit for uninsured motorist benefits. See Fla. R.App. P. 9.030(b)(2)(A). The order is reviewable by certiorari because disclosure of the material would cause irreparable harm that cannot be cured on plenary appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (holding certiorari review appropriate when a discovery order relates to materials protected by privilege, work product, or trade secret). The trial court departed from the essential requirements of law in compelling production absent compliance with the notice requirements of section 456.057(7)(a)(3), Florida Statutes (2010). Accordingly, we grant the petition and quash the order.

USAA hired a physician to examine Mr. Callery and opine as to whether Mr. Call-ery was permanently injured as a result of the automobile accident underlying the lawsuit. See Fla. R. Civ. P. 1.360. Mr. Callery requested that USAA disclose the results of the physician’s last twenty medical examinations of personal injury plaintiffs. Mr. Callery hoped to impeach the physician by showing that his reports routinely and uniformly supported insurers. USAA objected to the request; Mr. Call-ery moved to compel discovery. The trial court ordered production with all patient-identifying information redacted. More specifically, the trial court directed that only the physician’s conclusions/impressions, the physician’s signature, the date of report, and the name and address of the receiving attorney be provided.

Section 456.057(7)(a) provides, in part, that a health care practitioner may not discuss a patient’s medical records without the patient’s written authorization. The only applicable exception is “[i]n any civil or criminal action ... upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.” § 456.057(7)(a)(3).

Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008), guides our decision to grant relief. In Graham, the plaintiff moved to compel the physician who performed a medical examination to produce all reports he prepared pursuant to rule 1.360. Id. at 933. As here, the plaintiff intended to use the reports for impeachment. Id. Relying on Amente v. Newman, 653 So.2d 1030 (Fla.1995), the trial court ordered production and directed that names, social security numbers, and dates of birth be redacted. Graham, 991 So.2d at 933. Amente, a medical malpractice case, held that a defendant physician’s medical records for all similar patients for a two-year period were discoverable, without notice to the patients, if the records were redacted to protect patient identity. 653 So.2d at 1032.

On certiorari review in Graham, we distinguished Amente; the discovery there related to substantive issues in a medical negligence case in which the physician was a party and the supreme court in Amente concluded that compliance with the notice statute was impossible. Graham, 991 So.2d at 935. We noted that “the Da-cheikhs made no effort to provide or to have the court provide ‘proper notice’ to the affected patients. They did not argue that such notice was impossible.” Id. In Graham, we held that the trial court departed from the essential requirements of law by compelling disclosure of medical examination reports without notice to the patients as required by section 456.057(7)(a) and without adequate protection of their privacy rights. Id. at 934. Like the medical reports in Graham, the reports here are relevant only to impeach the nonparty physician. The trial court made no finding and our record supports no conclusion that notice under section 456.057(7)(a) is impossible.

Mr. Callery argues that we should affirm because the trial court tailored its order to Graham’s suggestion that patient identities could be safeguarded sufficiently to allow discovery, without compromising impeachment value, by redacting everything in the examination reports except “the doctor’s impression or conclusions at the end of his report.” Id. at 936. Graham does not reach so far. Rather, Graham held that Amente does not eliminate section 456.057’s requirements, but at most “allows a court to override that language by providing adequate alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.” Id. at 937 (emphasis added). Mr. Callery made no such showing. Thus, the trial court departed from the essential requirements of the law in ordering disclosure, even with the directed redactions.

We grant the petition for certiorari, quash the trial court’s order, and remand for further proceedings.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:

      3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.


author: PER CURIAM. CASANUEVA, C.J.,

text:
    S.P.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2415.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.
    Rehearing Denied Aug. 5, 2011.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed.

VILLANTI and LaROSE, JJ., Concur.

CASANUEVA, C.J., Concurs in result only with opinion.

CASANUEVA, C.J.,

Concurring in result only.

I concur in the affirmance only because binding case law mandates the result. However, I write to express my concern that our case law deviates from the plain meaning of the legislature’s words in section 784.011(1), Florida Statutes (2009).

Among other offenses, the trial court adjudicated S.P.M. delinquent on count four in the petition for delinquency, a charge of aggravated assault. The criminal episode resulting in these proceedings involved a moment of road rage where a number of men all exited their vehicles at an intersection and confronted each other. At some point, S.P.M. wielded a tire iron, which was the deadly weapon utilized in the aggravated assault charge. Mr. Douglas Wright, Sr. (Mr. Wright) was the victim of this particular offense. The sum of the evidence regarding Mr. Wright’s fear is contained in the following excerpt from the State’s direct examination:

Q. Did [S.P.M.] ever point the tire iron in your general direction?
A. No, ma’am.
Q. Were you in a group that he pointed it at?
A. No, I was off to the side of that?
Q. Okay. Did you feel threatened by the tire iron?
A. Not the tire iron itself, no.
Q. Did the defendant in any way physically, or with a weapon, without a weapon, verbally make any threats to you?
A. I know that when I was watching the other boy walk up in the corner of my eye, I could see him flinch toward me and that’s what made my son throw the punch.
Q. Was his fist balled up when he did that?
A. Yes, ma’am.
Q. How close was he?
A. Probably, like, two feet from me.

In cross-examination, Mr. Wright repeated that he was not threatened when S.P.M. wielded the tire iron:

Q. Now, you said you saw the white male with the tire iron?
A. Yes, ma’am.
Q. But your testimony is that you didn’t think he was going to swing it at anyone, correct?
A. No, at me, I said he wasn’t going to swing it at.
Q. And you didn’t see him swing at anyone, correct?
A. No, he sure didn’t.
Q. Okay. And you said you didn’t feel threatened at all.
A. I wasn’t in front of him when he was standing there with it, no.
THE STATUTE
An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

§ 784.011(1). An “aggravated assault” is an assault coupled with either the use of a deadly weapon without homicidal intent or with the intent to commit a felony. § 784.021(1).

Count four of the petition of delinquency charged that S.P.M.’s actions “did create a well-founded fear in [Mr. Wright] that such violence was imminent and in the commission of said assault [S.P.M.] did use a deadly weapon, to wit: a tire iron.” But Mr. Wright testified that he was not in fear and the State presented no other evidence to the contrary. Looking only to the plain meaning of the statute, the State failed to provide a prima facie case of assault because there was no evidence that the victim had any well-founded fear.

INTRODUCTION OF THE REASONABLE PERSON STANDARD

Case law has instituted the use of a reasonable person standard to satisfy the element of a well-founded fear when the victim does not testify regarding his or her subjective state of mind. Gilbert v. State, 344 So.2d 564 (Fla.1977) (Gilbert I), appears to be the progenitor of this practice. In less than 250 words, the supreme court did no more than quash a Third District decision because the district court had utilized cases which held that a well-founded fear of violence or imminent peril was not an element of aggravated assault. Id. at 565. The supreme court noted that it had already disapproved of those same authorities in a prior decision, State v. White, 324 So.2d 630, 631 (Fla.1975) (holding that “fear must be proved” and disapproving cases that had held that assault “does not require an awareness by the victim of imminent peril”). Thus, the Gilbert I court remanded for reconsideration in light of White. Gilbert I, 344 So.2d at 565.

On remand, the Third District considered whether “there was no evidence of well-founded fear on the part of the victim that violence was imminent.” Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977) (Gilbert II). The language of the opinion suggests that the victim did not testify regarding her state of mind. Nonetheless, the court found there was sufficient evidence:

[W]e find that the defendant’s action in pointing the pistol at the victim’s head in plain view of the victim and other persons present met all of the essential elements of aggravated assault. It is unlikely in the course of human events that a person in [the victim’s] circumstances would not have a well-founded fear that violence is imminent when a pistol is pointed at her head.

Id. With this holding, the Third District replaced the subjective requirement of fear in the statute with an objective “reasonable person” standard for the first time.

Since the Gilbert opinions, other districts have allowed the application of the reasonable person standard in similar assault cases. For example, in L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003), L.R.W. chased the victim and then held a chair over her own head in a menacing manner while the victim was approximately six to seven feet away. The victim was laughing during the incident, but others in the room retreated. The victim did not testify. The Fifth District held:

There is ... no requirement that the victim of an assault actually testify to his or her own state of mind. See McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980). If the circumstances are such as would ordinarily induce fear in the mind of a reasonable person, then the victim may properly be found to have been in fear. See Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977).

Id. at 1266. Even though the victim was laughing, the district court relied on the trial court’s finding that the victim may have been laughing “out of fear, or out of a desire ... to frustrate LEW’S ‘design and intent’ to injure her. Additionally, there was evidence that the other residents were in fear for their safety because they retreated when LRW picked up the chair.” Id. The court concluded that these inferences permitted the trial court to conclude that a reasonable person in the victim’s place would have been in fear. Id.

In McClain v. State, 383 So.2d 1146, 1147 (Fla. 4th DCA 1980), Mr. McClain was convicted of two counts of aggravated assault when he pulled a knife on two grocery store employees who gave chase after they watched Mr. McClain pilfer a piece of meat. When confronted with the knife, the employees backed up. Id. Neither employee testified. Relying upon Gilbert II, the court held that the evidence was sufficient to prove the victims were in fear. McClain, 383 So.2d at 1147.

In Johnson v. State, 888 So.2d 691 (Fla. 4th DCA 2004), the defendant drove by a crowd and pointed a gun at the victim. He said to the victim “I missed the first time, but I won’t miss this time.” Id. at 693. The crowd, including the victim, “scattered.” The victim did not testify. The court relied upon Gilbert II and McClain to affirm the convictions.

In Calvo v. State, 624 So.2d 838 (Fla. 5th DCA 1993), the victim testified but not about the fear element. Mr. Calvo tried to push his way into a news station past a security guard who was an off-duty law enforcement officer. Mr. Calvo was carrying a long bouquet of flowers, but the officer testified that he was carrying it like one would carry a long gun while hunting. Id. at 838. When Mr. Calvo tried to shove past him, the officer felt that the package actually contained a long instrument, and Mr. Calvo was definitely holding it like a rifle. The officer subdued Mr. Calvo and found the package to contain a shotgun. Id. at 839. Although the officer did not testify whether or not he had a well-founded fear that violence was imminent, the Fifth District held that the circumstances allowed the inference that a reasonable person would have been in fear, citing McClain. Calvo, 624 So.2d at 839.

This evolution of case law has allowed replacement of the statute’s subjective standard of fear with a reasonable person standard when the victim does not testify regarding that element. While these prior opinions have found it appropriate to relax the statute’s clear, subjective standard, none of the cases present a situation where the victim testified regarding the element at issue. In our case, Mr. Wright took the stand and affirmatively stated that he did not feel threatened. Application of the reasonable person standard is unnecessary because Mr. Wright provided competent, substantial evidence of his subjective emotional state at the time of the offense, which is what the statute’s language requires. I believe this case law does not change the result mandated by the plain language of the statute. The State affirmatively disproved its own case through Mr. Wright’s testimony.

THIS COURT’S DECISION IN SULLIVAN

In Sullivan v. State, 898 So.2d 105 (Fla. 2d DCA 2005), Mr. Sullivan was convicted of aggravated assault on a law enforcement officer. Mr. Sullivan made threats towards two officers when they responded to what they believed was a domestic disturbance call. The threats were sufficiently credible that the two officers took up defensive positions by their vehicles that were parked one behind the other. Mr. Sullivan emerged from his home breathing hard and brandishing a kitchen knife over his head. Despite repeated commands to drop the knife, Mr. Sullivan charged the officers. He did eventually stop and drop the knife before any physical harm was done.

During trial, the officer who was the victim of the charged offense testified that “he did not believe that violence to him was imminent.” Id. at 108. This court applied the language from Gilbert II and Biggs v. State, 745 So.2d 1051, 1053 (Fla. 3d DCA 1999) (applying Gilbert II to its own set of facts), and held that “it is not always necessary for the victim to testify that he was afraid.” Sullivan, 898 So.2d at 108. However, this court ultimately overturned the conviction. We held that there was insufficient evidence of imminent violence because there was another officer between Mr. Sullivan and the victim, and Mr. Sullivan never got closer than within thirty feet of the victim. Id. at 109.

The fact that this court is bound by its prior decision in Sullivan is the only reason I concur with my fellow judges. Before Sullivan, the reasonable person standard from Gilbert II and its progeny had only been used when there was no direct evidence of the victim’s fear or lack thereof. By utilizing a reasonable person standard in a case where the victim testified that he was not afraid and there was no evidence to the contrary, the Sullivan court essentially eliminated the subjective standard that the statute requires.

I respectfully disagree with this court’s holding in Sullivan that the reasonable person standard should be applied even in the face of direct, uncontroverted evidence from the victim regarding his subjective state of mind. However, because I am bound by that precedent, I concur in result only.


author: THOMAS, J.

text:
    PENSACOLA BEACH PIER, INC., and John Soule, Appellants, v. William C. KING, Clyde Patroni, and Michael Pinzone, individually and d/b/a PPK Holding Company, Inc., Chris Cadenhead, individually, Pier Associates, Inc., and Sunset Holding Company, Inc., Appellees.
    No. 1D10-3779.
    District Court of Appeal of Florida, First District.
    June 20, 2011.
    Rehearing Denied Aug. 4, 2011.

      George R. Mead, II, and Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellants.
    Chris E. Cadenhead of Cadenhead & Dees, P.A., Destín, for Appellee Pier Associates, Inc:
    Steven J. Baker, for Appellee Michael Pinzone, Individually, and d/b/a PPK Holding Company, Inc.
   THOMAS, J.

Appellants challenge the trial court’s entry of a final summary judgment. Although the final summary judgment disposed of all five counts of Appellants’ complaint, Appellants’ appeal concerns only their claims for: 1) tortious interference with a business relationship; 2) defamation; and 3) civil conspiracy. We affirm the judgment as to the civil conspiracy claim without further comment. As discussed below, we find that Appellants failed to preserve their arguments as to the first issue. Regarding the second issue, we find that Appellants failed to preserve all but one of their arguments, which we find lacks merit because it misconstrues the trial court’s order to reach an issue that was not explicitly addressed; consequently, we also affirm as to the second issue.

Factual Background

This appeal arises out of a 13-year dispute regarding Appellants’ effort to obtain the contract rights to build and operate a concession stand on a pier at Santa Rosa Island. Initially, Appellants finished first in the Request for Proposal (RFP) process, meaning they were selected as the firm of first preference with whom the Santa Rosa Island Authority (SRIA) would commence contract negotiations. Appel-lees subsequently threatened litigation regarding the legality and/or propriety of the bid process, prompting the SRIA to cease contract negotiations with Appellants and reopen the RFP process. The SRIA ultimately awarded the contract to Appellees.

Appellants then filed suit against the SRIA. The circuit court ordered that SRIA reinstate contract negotiations with Appellants, but that decision was reversed by this court in Santa Rosa Island Authority v. Pensacola Beach Pier, Inc., 834 So.2d 261 (Fla. 1st DCA 2002). Appellants later filed the complaint that ultimately led to the final summary judgment addressed here.

Appellants’ tortious interference claim concerned Appellees’ successful efforts to restart the RFP process without filing a formal bid protest or commencing litigation. The trial court found that Appellants were in the process of negotiating a final contract after finishing first in the bidding process, but had not yet entered into the contract when the SRIA decided to suspend negotiations. The trial court also referred to this court’s opinion from the first appeal, in which we held that “[a]b-sent evidence of illegality, fraud, oppression, or misconduct,” Appellants were without a remedy with respect to the SRIA’s decision to readvertise for new proposals and rearrange the preference order of the bidders. Id. at 263. The trial court ultimately ruled that “[t]here was no contractual business relationship with which [Appellants] could have interfered and therefore [Appellants] cannot recover on this cause of action.”

Appellants’ defamation cause of action stemmed from various statements and allegations contained in correspondence sent by and on behalf of Appellees, as well as in attachments to some of that correspondence, all of which was sent to the SRIA as part of their effort to reopen the RFP process. Appellants alleged some of Ap-pellees’ statements accused Appellants of illegal activity before and during the RFP process, which allegedly helped Appellants prevail in the first round of bidding.

The trial court found that the “bases of the defamation count are the letters that were sent by or on behalf of King ... and Pinzone,” and that “it is undisputed that the letters themselves do not contain any statements about [Appellants]. Instead the letters questioned the bid process and notified the [SRIA] that a formal protest was a possibility.” The court added that it found “that there is a privilege to question proposed governmental action.” It also found that the “letters clearly expressed an opinion that the winning bid did not meet the minimum requirements as set forth in the request for proposals, but made no statements about [Appellants] which could in any way be construed as defamatory.”

Appellants did not file a motion for rehearing, "clarification, a motion to vacate, or for relief from the judgment. As we explain below, this was critical under the circumstances.

Interference with Business Relationship Claim

Appellants argue that the trial court erred by entering final summary judgment on their claim for tortious interference with a business relationship because there was “no contractual business relationship” with which Appellees could interfere, thus “mistakenly confusing] the tort of tortious interference with a business relationship with that of tortious interference with contract ” Although this point is well taken, Appellants failed to preserve this argument.

The trial court’s error appeared for the first time on the face of the final summary judgment. Appellants, however, did not file a motion for rehearing, motion to vacate, or motion for relief from judgment in an attempt to correct this error; consequently, Appellants failed to preserve their otherwise meritorious argument. See, e.g., D.T. v. Fla. Dep’t of Children & Families, 54 So.3d 632, 633 (Fla. 1st DCA 2011) (holding appellant failed to preserve argument that court’s order was deficient due to lack of statutorily required findings because she did not file a motion for rehearing); Holland v. Cheney Bros., Inc., 22 So.3d 648, 650 (Fla. 1st DCA 2009) (holding, “ ‘[i]n workers’ compensation cases, as in other cases, we will not consider arguments which were not presented in a meaningful way to the lower tribunal.’ ”) (quoting Jettison v. Dixie S. Indus., Inc., 857 So.2d 365, 366 (Fla. 1st DCA 2003) (emphasis added)); Lake Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So.2d 139, 142 (Fla. 2d DCA 1962) (holding, where appellants raised for the first time on appeal that they disagreed with the trial court’s statement in its summary judgment order that the facts were undisputed, “[i]t is the duty and responsibility of the attorneys in a cause to see that the orders entered by the trial court are in proper form and substance and that they correctly recite the record. Any incorrect statements made in any order should be promptly brought to the attention of the court.”); cf. Hooters of America, Inc. v. Carolina Wings, Inc., 655 So.2d 1231, 1234-35 (Fla. 1st DCA 1995) (holding claim that award of damages to plaintiff was improper because it encompassed damages related to four restaurants while complaint only referred to one restaurant, was not waived by fact that claim was not raised before trial court in motion for rehearing or motion to set aside default judgment, as resulting due process violation was fundamental error warranting review on appeal).

In such an instance, the trial court should be afforded an opportunity to correct the error before the aggrieved party seeks reversal of the order on appeal. Indeed, the rehearing rule, Florida Rule of Civil Procedure 1.530, provides: “When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question” has made an objection to the trial court or “made a motion for rehearing, for new trial, or to alter or amend the judgment.” Fla. R. Civ. P. 1.530(e). Implicit in this rule is that, in all other instances in which there is a concern about a judgment, it is necessary to file one of the enumerated motions to preserve the issue for appeal.

This should not be read, however, as requiring a party displeased with a trial court’s decision on a matter because it found the opposing argument more persuasive to file such a motion to reargue the case. Rather, such post-judgment motions are necessary, for example, to preserve errors appearing for the first time in the judgment itself or, where applicable, there were errors during trial, or a judgment entered after a jury trial is not supported by the evidence.

Appellants also raised an alternative argument on this issue:

[Appellant] also submitted evidence from which the jury could determine that the actions taken by King and Pinzone amounted to ‘intentional and unjustified interference’ with the negotiations ... Further, while King and Pinzone could have filed a timely protest of the bidding process — thereby permitting PBPI to respond to the allegations and to be judged by a neutral finder of fact — King and Pinzone instead simply threatened litigation after missing the deadline to file a formal protest. Thus, a jury could find not only that the conduct was intentional, but that it was tortious and unjustified as well.

Appellants never made this argument below. In one of their responses to the summary judgment motions, Appellants did not address the tortious interference claim at all; in another, they made a general argument that Appellees failed to meet their burden for entitlement to final summary judgment, but again did not address the interference claim. In their “Supplementary Omnibus Response” to the summary judgment motions, Appellants argued that the facts failed to negate the existence of a business relationship between Appellants and the SRIA with which they alleged Appellees wrongfully interfered. Finally, the record reflects that the only issues discussed during the final summary judgment hearing concerned the parties’ respective evidentiary burdens regarding summary judgment, whether certain legal memoranda was filed timely, and scheduling matters.

“ ‘In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.’ ” Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). As discussed, Appellants’ alternative argument was not raised below; consequently, it was not preserved and cannot be a ground for reversing the trial court.

Defamation Claim

Appellants’ preservation difficulty extends to the defamation issue. The trial court found that the basis of Appellants’ defamation claim concerned statements contained in correspondence sent on behalf of Appellees King and Pinzone. The court found that it was “undisputed that the letters themselves do not contain any statements about [Appellants].” Rather, the court determined, “the letters questioned the bid process and notified the Santa Rosa Island Authority that a formal bid protest was a possibility.” Appellants raise three arguments as to this finding.

Appellants first argue that Appellees did not seek summary judgment on this basis, thus, it was error to grant their motion on this ground. To the extent this may have constituted error, the error appeared for the first time on the face of the judgment. Because Appellants never filed a motion for rehearing or sought any other post-judgment relief on this or any other ground, this argument was not preserved.

Appellants’ second argument is that the “letters, on their face, allege that someone engaged in “[i]llegal bidding procedures,” and that the documents attached to some of the letters in question accused Appellants of “prohibited ‘pre-proposal negotiations’ and improper meetings with” the SRIA and its staff. These statements, Appellants assert, were “slander per se,” because they accused them of illegal actions. Appellants failed to preserve this argument for two reasons. First, the trial court’s order is silent as to any statements contained in the attachments to the letters, and Appellants did not file a motion for rehearing asking the court to make a finding regarding those statements. Secondly, they did not file a motion to clarify whether the court’s conclusion applied to those statements or was limited to those in the letters themselves. Williamson v. Cowan, 49 So.3d 867 (Fla. 5th DCA 2010) (holding, “[b]ecause Appellant never challenged the adequacy of the findings in a motion for rehearing ... the issue was not properly preserved for appellate review.”).

Also, even if the trial court’s finding did include the statements in the attachments, the other preservation hurdle Appellants failed to surmount is that they never argued below that any of the statements at issue were defamatory per se. See Robbins, 914 So.2d at 928.

This same fate befalls Appellants’ third argument, in which they assert that the trial court “ [presumably ... reached its decision by interpreting the letters as accusing members of the SRIA — rather than [Appellants] — of engaging in ‘illegal activity1 ” and, under Florida law, “ ‘if an allegedly defamatory publication is reasonably susceptible of two meanings, one of which is defamatory and one of which is not, it is for the trier of fact to determine the meaning understood by the average reader.’” (quoting Ford v. Rowland, 562 So.2d 731, 734 (Fla. 5th DCA 1990)). Again, Appellants never made this argument below, either in response to Appellees’ summary judgment motions and supporting legal memoranda, or in a motion for rehearing, despite the fact that it was Appellees’ position then, and now, that all of the statements at issue were addressed to questioning the RFP process. Thus, it was not preserved.

Appellants’ final argument relating to the defamation issue fails for a different reason. They assert that the trial court entered final summary judgment on their defamation claim because the statements at issue were privileged because they “questioned a proposed governmental action.” Appellants argue this was error for two reasons: 1) the case cited by the trial court does not support this conclusion; and 2) the litigation privilege recognized by Florida law does not apply here because the statements were not made as part of any pending litigation, or as part of any communications that were a necessary condition precedent to judicial or administrative action. Rather, Appellants argue, the statements were made in communications threatening future litigation, which are not privileged. Although this is an interesting issue, we need not reach it here. The trial court’s finding regarding privilege was in the context of finding that none of the statements were addressed to Appellants but, rather, addressed solely to the RFP process. Thus, the court found, the statements were privileged because they questioned the SRIA’s actions. The court did not find that, even if some or all of the statements were addressed to Appellants, they were subject to the litigation privilege. If the latter were the case, the issue would be appropriate for our consideration.

Conclusion

It is difficult to overemphasize the importance, absent fundamental error, of preserving issues and arguments before asking an appellate court to reverse a trial court’s final judgment. The importance of this principle is too often not appreciated, and appellate courts are constrained, as we are here, to affirm orders which otherwise might have been reversed.

AFFIRMED.

HAWKES, J., Concurs; ROBERTS, J., Concurs in Result Only.

      . Appellants voluntarily dismissed Appellee Clyde Patroni from the suit prior to entry of summary judgment.

      . Appellants’ appeal as the first two counts involve Appellees King and Pinzone, only.


text:
    Keith L. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3369.
    District Court of Appeal of Florida, First District.
    June 21, 2011.
    Rehearing Denied Aug. 2, 2011.
    Keith L. Simmons, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Keith Simmons, appeals the trial court’s summary denial of his motion for postconviction relief alleging ten grounds of ineffective assistance of counsel filed pursuant to Florida Rule of Criminal Procedure 3.850. Summary denial was proper as to claims two through ten. Therefore, we affirm the denial of these claims without further discussion. For the reasons that follow, we reverse the summary denial of ground one, remand for further proceedings in connection with that ground, and affirm the trial court’s order in all other respects.

In ground one, Appellant alleged his defense attorney rendered ineffective assistance in failing to obtain a ruling on a motion to sever. The trial court based its denial of this claim on the State’s response to Appellant’s postconviction motion, which characterized defense counsel’s failure to obtain a ruling on the motion as trial strategy. In its response, the State neither referenced nor attached portions of the record refuting Appellant’s claims. Similarly, the trial court’s order failed to include record attachments. While the failure to obtain a ruling on a motion to sever based on reasonable trial strategy may refute a claim of ineffective assistance of counsel, “without an adequate record, we are in no position to make such a fact-based determination.” See Davis v. State, 648 So.2d 1249, 1250 (Fla. 4th DCA 1995) (citing Williams v. State, 642 So.2d 67, 69 (Fla. 1st DCA 1994)). Thus, because the trial court failed to assemble a record from which it could be conclusively determined that Appellant is entitled to no relief on this facially sufficient claim, we reverse the trial court’s order as to that claim and remand with instructions for the court to either attach portions of the record conclusively refuting this claim or for an eviden-tiary hearing. See Williams v. State, 46 So.3d 118, 119 (Fla. 1st DCA 2010) (identifying this form of relief).

In addition to challenging the summary denial of his ten postconviction claims, Appellant raises two issues for the first time on appeal. We decline to address these issues because, among other reasons, Appellant’s failure to present arguments associated with both issues renders them “insufficiently presented for review.” Shere v. State, 742 So.2d 215, 218 n. 6 (Fla.1999) (because the appellant “did not present any argument or allege on what grounds the trial court erred in denying these claims,” the claims were “insufficiently presented for review”); see also State v. Mitchell, 719 So.2d 1245, 1247 (Fla. 1st DCA 1998) (concluding that “[i]n the absence of any argument addressed to the [claim],” the appellant “abandoned such a claim”).

Accordingly, we affirm the denial of claims two through ten but reverse the denial of claim one and remand for further proceedings on this claim.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


author: HAWKES, J.

text:
    Craig B. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0969.
    District Court of Appeal of Florida, First District.
    June 28, 2011.
    Rehearing Denied Aug. 4, 2011.

      Craig B. Daniels, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Craig B. Daniels appeals a circuit court order denying his third and fourth amended motions for posteonviction relief under Florida Rule of Criminal Procedure 3.850. The order also denied his motion to voluntarily dismiss the third amended postcon-viction motion without prejudice. Daniels argues the court erred in denying the third amended postconviction motion without first ruling upon the motion to dismiss. He claims the court was obligated to grant the motion to dismiss without prejudice, as he brought the motion before the trial court ruled on the underlying postconviction claims and the State would suffer no prejudice by a dismissal. We disagree.

Defendant supports his argument with caselaw which preceded the Supreme Court’s decision in Spera v. State, 971 So.2d 754 (Fla.2007). Prior to Spera, cases consistently held that the trial court was required to grant a defendant’s motion to dismiss a postconviction claim without prejudice, so long as it was filed before the court ruled on the underlying claim and dismissal would not cause prejudice to the State. See Hutchinson v. State, 921 So.2d 780, 781 (Fla. 1st DCA 2006); Hansen v. State, 816 So.2d 808, 809 (Fla. 1st DCA 2002); see also Clark v. State, 491 So.2d 545, 546 (Fla.1986); Carvalleria v. State, 675 So.2d 251 (Fla. 3d DCA 1996); Washington v. State, 937 So.2d 271, 272 (Fla. 4th DCA 2006).

However, the process for evaluating postconviction motions changed with Spera. Spera held that when a trial court summarily denies a defendant’s motion for postconviction relief for failure to meet pleading requirements, it must give the defendant the opportunity to amend the motion. See Spera, 971 So.2d at 761; see also Wilson v. State, 13 So.3d 83, 85 (Fla. 2d DCA 2009); Watson v. State, 975 So.2d 572, 573 (Fla. 1st DCA 2008). This does not mean postconviction defendants have unlimited opportunities to amend a facially insufficient motion. Spera requires only that courts give defendants one opportunity to amend. See Oquendo v. State, 2 So.3d 1001, 1006 (Fla. 4th DCA 2008); Prevost v. State, 972 So.2d 274, 275 (Fla. 1st DCA 2008). After this one opportunity is given, courts are not required to give additional chances. See Nelson v. State, 977 So.2d 710, 711 (Fla. 1st DCA 2008) (stating “[although a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera does not mandate repeated opportunities”).

In light of Spera, it seems there are certain circumstances where a trial court is still required to grant a postconviction defendant’s motion to dismiss without prejudice, and certain circumstances where it can exercise discretion regarding such motions. For example, if a defendant moves to dismiss a postconviction motion without prejudice before a trial court has issued a ruling—meaning before the court has evaluated the underlying motion for legal sufficiency—the motion should be granted, so long as it is not prejudicial to the State. This aligns with the pre-Spera cases stating a trial court should grant a defendant’s motion to dismiss without prejudice unless it has ruled upon the underlying postcon-viction claims.

However, the situation changes once the defendant is given the opportunity to amend. Spera requires only one opportunity to amend. Therefore, if the defendant has already had that chance, a court should not be obligated to extend yet another opportunity by granting a subsequent motion to dismiss without prejudice. Otherwise, a defendant could attempt to circumvent Spera by following each amended postconviction motion with a motion to dismiss without prejudice, thereby prolonging the postconviction process.

In short, when a postconviction defendant moves to dismiss his motion without prejudice, the trial court must determine whether a previous order gave the defendant an opportunity to amend pursuant to Spera. If no such order was issued, the motion to dismiss should be granted unless it will cause prejudice to the State. However, if such an order was issued, the disposition of the motion to dismiss should be-left to the trial court’s discretion and the court is not required to grant it.

Turning to the instant case, the trial court gave Daniels at least two opportunities to amend his postconviction motion under Spera before he brought the instant motion to dismiss without prejudice. In orders dated February 27, 2008, and June 18, 2008, the trial court gave Daniels the chance to address the facial deficiencies in his postconviction motion. Daniels, in turn, amended his postconviction claims several times; in fact, the instant motion to dismiss concerns the third amended postconviction motion and indicates Daniels’ intent to file a fourth amended motion.

Since the trial court gave Daniels ample opportunity to amend his postconviction claim, it was not obligated to grant the motion to dismiss without prejudice. It properly determined that to do so would be an abuse of the postconviction process. This determination is AFFIRMED.

VAN NORTWICK and PADOVANO, JJ., concur.

      . This reasoning is consistent with how we have treated motions to dismiss postconviction claims following Spera. Since then, the only case from this District dealing with a motion to voluntarily dismiss a postconviction claim has been Davis v. State, 28 So.3d 168 (Fla. 1st DCA 2010). Davis does not indicate whether the defendant was given an opportunity to amend under Spera. It states only that the defendant filed a motion for voluntary dismissal prior to the denial of his postconviction motion on the merits. Id. at 169. Under such circumstances, the motion to dismiss should have been granted without prejudice, which is what this Court found. Id.


text:
    HDV CONSTRUCTION SYSTEMS, INC. and Gallagher Bassett Services, Inc., Appellants/Cross-Appellees, v. Luis E. ARAGON, Appellee/Cross-Appellant.
    No. 1D10-6401.
    District Court of Appeal of Florida, First District.
    June 28, 2011.
    Rehearing Denied Aug. 9, 2011.

      Robert D. Pope of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Jacksonville, for Appellants/Cross-Appel-lees.
    George D. Rotchford of Rotchford & Betancourt, P.A., Jacksonville, for Appel-lee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, the Judge of Compensation Claims (JCC) found that the Employer knew or should have known that Claimant (its employee), an illegal immigrant from Mexico, was without the legal right to work in the United States. The JCC further found that notwithstanding this knowledge, the Employer hired and continued to unlawfully employ Claimant, until he was injured in a significant workplace accident. After Claimant suffered injury, the Employer and its workers’ compensation carrier (collectively the E/C) attempted to assert, as a defensive matter, Claimant’s illegal status so as to defeat a claim for permanent total disability (PTD) benefits. The JCC concluded, based on the authority of Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985), that, because the Employer knew or should have known of Claimant’s illegal status prior to his injury, but continued his employment nonetheless, the E/C was precluded from using Claimant’s illegal status as a defensive measure — requiring the E/C to respond to the disability imposed by Claimant’s significant and objectively demonstrated work-related injuries and physical restrictions, and his vocational limitations which include, but are not limited to, his unauthorized work status.

On appeal, the E/C argues that Claimant’s illegal status should defeat Claimant’s entitlement to permanent total disability (PTD) benefits. Because we conclude that the JCC properly applied this court’s precedent in Cándelo and, further, because competent substantial evidence supports the JCC’s finding that Claimant is permanently and totally disabled based on the combined effect of his physical injuries and restrictions and his vocational impediments, we affirm the award of permanent total disability (PTD) benefits.

By way of cross-appeal, Claimant challenges the JCC’s conclusion that he was legally prohibited from awarding PTD benefits on a continuing basis and for periods following the merit hearing. Because a JCC may award continuing PTD benefits, we reverse the JCC’s denial of PTD benefits for periods following the date of merit hearing, and remand for additional proceedings.

Facts

Claimant, while working for the Employer as a framer, fell from a height of thirty feet, suffering multiple complex fractures to his left foot and forearm. After receiving extensive medical treatment, including the implantation of a spinal cord stimulator, Claimant was determined to have permanent injuries, including an objective diagnosis of complex regional pain syndrome in the left foot accompanied by constant pain, nerve injury, and discoloration. As a result of these injuries, Claimant has been permanently restricted to sedentary work only, a strength level that prohibits Claimant from performing any of his pre-injury occupations (farm, construction, and manufacturing work). Claimant, in addition to not possessing proper documentation that would allow him to work legally in the United States, has no driver’s license, a limited education, an inability to speak, read, or write in English, and no transferable skills which would assist him in obtaining lighter employment.

Claimant filed a claim for PTD benefits, which the E/C denied on the basis that Claimant was physically capable of sedentary work, and was unemployable only because of his illegal status. Claimant, relying on the authority of Cándelo, sought to prove that, because the Employer knew or should have known his illegal status at all relevant times, it was precluded from asserting this fact as a shield from liability. The JCC, sufficiently convinced by the evidence demonstrating as much, found that the Employer knew or should have known Claimant’s illegal status and unlawfully employed him nonetheless. Based on expert vocational testimony introduced by the E/C, the JCC found that Claimant’s physical injuries, when combined with Claimant’s vocational impediments (including his illegal status — which, the JCC concluded on the authority and rationale of Cándelo, could not be discounted) rendered him permanently and totally disabled, and unable to engage in even sedentary employment within a fifty-mile radius of his residence. Based on these findings and conclusions, the JCC awarded PTD benefits, but only through the date of merit hearing, because the JCC concluded that he was legally prohibited from awarding PTD benefits on a “continuing basis.” This appeal and cross appeal follow.

Cándelo

Although there is no shortage of debate that can be had on the issue of illegal labor and its effect on our state, there is no dispute that the Florida Legislature has expressed an unyielding, textual intent that aliens, including those who are illegal and unlawfully employed, be covered and compensated under the Florida Workers’ Compensation Law. See § 440.02(15)(a), Fla. Stat. (2007) (defining “employee” to include any person who receives remuneration from an employer, including aliens, whether “lawfully or unlawfully employed”); see also Safeharbor Employer Servs., Inc. v. Velazquez, 860 So.2d 984 (Fla. 1st DCA 2003) (“Therefore, we conclude that the Florida legislature’s right to enact workers’ compensation benefits for illegal aliens is not preempted by federal action.”). Indeed, the purpose of workers’ compensation law is to place on industry, rather than the general taxpaying public, the expense incident to the hazards created by industry. Gore v. Lee County Sch. Bd., 43 So.3d 846, 849 (Fla. 1st DCA 2010) (explaining workers’ compensation legislation is designed to relieve society in general of expenses created by industry). Moreover, because the employer stands to benefit and profit from its employment of labor, and further is in the best position to avoid the risk of loss, the courts have uniformly recognized the impropriety of foisting on society the costs of a “broken body” and “diminished income” created by industry. Mobile Elevator Co. v. White, 39 So.2d 799, 800 (Fla.1949).

Accordingly, the Florida Legislature has long recognized that although the employment of illegal aliens is prohibited by federal and state law, violation of these laws is an unfortunate reality, and the cost of injuries sustained by unlawful workers, being no less real than those suffered by lawful workers, should be borne by the industry giving rise to the risk (and best positioned to avoid the loss), not the general taxpaying public. In the instance of employers that employ illegal workers, this court has held that such an employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due only when the employer “knew or should have known of the true status of the employee.” Candelo, 478 So.2d at 1170 (“This holding prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits.”). The holding in Cándelo, in addition to being binding authority on this court, advances the principle that an entity that knowingly employs unlawful labor should not be able to shirk the cost of the injuries it creates — and in turn, shift the cost of the damages that it has knowingly created on the taxpaying public— ultimately placing it in a unfairly superior financial position to those employers who operate lawfully. Accordingly, here, we find no error in the JCC’s application of Cándelo so as to preclude the E/C from raising Claimant’s illegal status, a concern that it waived when hiring and continuing to employ Claimant, as a defensive mechanism to avoid responsibility for an individual who is, based on the factual findings of the JCC, permanently and totally disabled under the Workers’ Compensation Law.

PTD Determination

To obtain PTD benefits under the Florida Workers’ Compensation Law, a claimant must demonstrate he is not able to engage in at least sedentary employment within a fifty-mile radius of his residence due to his physical limitations. See § 440.15(l)(b)5., Fla. Stat. (2007). This court has stated that the legal question presented under section 440.15(l)(b)5. is not merely whether the employee is physically capable of performing at least sedentary employment, but whether the employee (the individual seeking benefits, not a hypothetical individual) can reasonably secure or obtain — “engage in” — at least sedentary employment within a fifty-mile radius of his residence, considering his physical and vocational limitations. See Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009) (reversing denial of PTD benefits where JCC made conclusory finding that claimant was physically capable of performing at least sedentary employment, but failed to make finding that claimant could reasonably obtain employment within fifty-mile radius of his residence in consideration of his particular vocational impairments).

Here, the evidence established that Claimant was physically disabled from performing any of the strenuous jobs he held before his injury, and was likewise physically precluded from most occupations or trades, making his employment opportunities severely limited — even without consideration of the vocational impediments, which include (in addition to an illegal status) a limited education, an inability to read, write, or speak English, no driver’s license, and no transferrable skills. Based on the expert vocational testimony introduced by the E/C, the JCC found that Claimant’s injury, combined with his vocational impediments, rendered him permanently and totally disabled (incapable of securing and engaging in even sedentary employment), satisfying one of the three disjunctive tests for establishing permanent total disability recognized by this court. See Blake v. Merck & Co., 43 So.3d 882, 883 (Fla. 1st DCA 2010) (explaining evidentiary methods of proving PTD where employee has non-presumptive injury).

Here, the E/C, although recognizing the authority of Cándelo, argues that its holding (perhaps altered by a new polemic, the passage of time, or the expense of the benefit here at issue) should not be upheld or applied under these circumstances, as doing so would reward Claimant. To be certain, workers’ compensation is not designed as a reward of any sort; rather, it is a limited form of compensation for actual physical injury, both medically demonstrated and verified. See § 440.09(1), Fla. Stat. (2007) (providing compensation only payable for injury that is objectively demonstrable within a reasonable degree of medical certainty). The purpose of workers’ compensation is to provide statutorily-limited sustenance and medical benefits to only those who are legitimately injured and disabled through workplace accidents — so that these expenses are not visited on society at large. See, e.g., Fla. Game & Fresh Water Fish Comm’n v. Driggers, 65 So.2d 723, 725 (Fla.1953) (observing that Florida’s Workers’ Compensation Law was enacted partially “to place on the industry served and not on society the burden of providing for injured or killed workmen and their families.”). Moreover, to the extent that any argument can be made that a system that allows individuals to collect benefits derivative of illegal employment is undesirable policy because it “rewards” the illegal worker and punishes the employer, this is a decision within the province of the Legislature. See Velazquez, 860 So.2d at 985-86 (explaining the right to enact compensation laws allowing illegal aliens to recover is matter for state legislature, and Florida “clearly” allows benefits for illegal aliens). And, the Florida Legislature has made pellucidly clear its intent that illegal immigrants be covered under the Florida Workers’ Compensation Law. See § 440.02(15)(a); see also Velazquez, 860 So.2d at 985-86. Undoubtedly, part of the rationale for placing the onus of compensation, even though limited, on the specific industry that causes the loss is to provide a financial incentive for that entity best positioned to do so, to avoid the loss altogether. See generally Candelo, 478 So.2d at 1170. Here, the Employer could have avoided the entirety of the loss — which it now seeks to shift onto society at large— by refraining from knowingly hiring illegal labor. Because Claimant sustained disabling physical injuries that, when combined with his vocational impediments, render him incapable of engaging in even sedentary employment, we affirm the award of PTD benefits.

A JCC may Award Continuing PTD Benefits

Finally, the JCC found Claimant entitled to PTD benefits from the date of overall maximum medical improvement through the date of the final hearing, but for no period thereafter. The JCC cited Temples v. WDW Hospitality & Recreation Corp., 993 So.2d 63 (Fla. 1st DCA 2008), and Myers v. Hillsborough School Board, 982 So.2d 735 (Fla. 1st DCA 2008), as authority for his refusal to award benefits beyond the date of merit hearing. Although these cases support the proposition that a claimant, under specified circumstances, may permissibly bring sequential claims for PTD benefits without being barred by res judicata, nothing in Temples or Myers precludes a JCC from awarding PTD benefits on a continuing basis where there is an evidentiary foundation for disability, permanent in duration.

Indeed, section 440.192(3), Florida Statutes (2007), contemplates such an award: “A petition for benefits may contain a claim for past benefits and continuing benefits in any benefits category, but is limited to those in default and ripe, due, and owing on the date the petition is filed.”

Accordingly, we AFFIRM the award of PTD benefits, REVERSE the JCC’s denial of PTD benefits for periods following the merit hearing, and REMAND for entry of an order awarding PTD benefits on a continuing basis.

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