author: WALLACE, Judge.

text:
    SARASOTA RENAISSANCE II, LIMITED PARTNERSHIP, Appellant, v. BATSON-COOK COMPANY, a foreign corporation; Cooper Carry and Associates, Architects, a foreign corporation; Bay Area Property Services, Inc., f/k/a West Tampa Glass Company, Inc.; Economy Caulking, Inc.; Fidelity & Guaranty Insurance Company; Hartford Casualty Insurance Company; and Winco Manufacturing Co., Inc., Appellees.
    No. 2D11-5449.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Keith D. Skorewicz and Edward 0. Sav-itz of Bush Ross, P.A., Tampa; W. Scott Hamilton and Diane R. McGinness of Price, Hamilton & Price, Chartered, Bra-denton; and Conrad Lazo of Fowler White Boggs, P.A., Tampa, for Appellant.
    Nicholas A. Shannin and Brian W. Bennett of Page, Eichenblatt, Bernbaum & Bennett, P.A., Orlando, and Frank A. Hamner of Frank A. Hamner, P.A., Winter Park, for Appellee Cooper Carry and Associates, Architects; and Kenneth L. Olsen and Traci B. Taylor of The Law Firm of Kenneth L. Olsen, Tampa, for Appellee Economy Caulking, Inc.
    Eric Peterson of the Law Firm of Peterson Bernard, West Palm Beach, for Appel-lees Bay Area Property Services, Inc., and Hartford Casualty Insurance Company.
    No appearance for remaining Appellees.
   WALLACE, Judge.

Sarasota Renaissance II, Limited Partnership (SRII), appeals a final order dismissing it as a party plaintiff in the construction litigation pending in the circuit court. Because SRII did not object to entry of the order under review, its appellate arguments are unpreserved. Thus we affirm the circuit court’s order, but we write to further explain our decision.

I. THE FACTS AND PROCEDURAL BACKGROUND

Batson-Cook Company initiated the underlying litigation in November 2004 when it sued SRII for breach of an oral reconstruction agreement. Batson-Cook and SRII entered into the agreement following water-intrusion damage caused by Tropical Storm Gabrielle to a Sarasota condominium building. SRII was the developer of the building, and Batson-Cook was the general contractor. According to Batson-Cook’s complaint, investigations concerning the water-intrusion damage resulted in conflicting claims about the cause and responsibility for the damages, including

(i) the claim that the water intrusion and damages were the result of deficient design, (ii) the claim that the water intrusion and damages were the result of deficient construction ..., (iii) the claim that the water intrusion and resulting damages were the result of an Act of God and were therefore a casualty loss[,] and (iv) the claim that the water intrusion and resulting damage were the result of a combination of the above.

(Emphasis added.) In addition, Batson-Cook asserted that Cooper Carry and Associates, Architects (the architect on the project), and Batson-Cook’s subcontractors were placed on notice of the foregoing issues. Rather than waiting for a determination of responsibility, SRII and Batson-Cook orally agreed that they would begin repairs immediately, with Batson-Cook continuing as the contractor and the original subcontractors performing the repairs. Batson-Cook and SRII further agreed that Batson-Cook would not be paid during the performance of the reconstruction agreement, “but that payment would be made after the conclusion of the work at such time as there was a determination of the party or parties responsible for the water intrusion and resulting damages” and “that upon the conclusion of the remediation, the parties would move promptly to effect such a determination.”

Batson-Cook alleged that it expended in excess of $2.9 million in performing the repairs, and it alleged that SRII had expended $3.5 million in remediation. Bat-son-Cook asserted that SRII was in breach of the reconstruction agreement because

[djespite the conclusion of the work contemplated by the Reconstruction Agreement ... and despite repeated requests by [it] that [SRII] cause the institution of proceedings that would result in a determination of the responsibility for the water intrusion and resulting damages (and therefore the “settling up” contemplated by the parties in the terms of the Reconstruction Agreement), [SRII] has failed to take the action that it agreed to take so that [Batson-Cook] would be paid by [SRII].

SRII answered the complaint and filed counterclaims against Batson-Cook and third-party claims against Cooper Carry and Federal Insurance Company, a construction surety that had issued a performance bond for Batson-Cook. SRII made claims against Batson-Cook for breach of contract/express warranty, for violation of Florida’s building codes, and for a declaratory judgment; a claim against Federal Insurance for contractual indemnity; and claims against Cooper Carry for breach of contract, violation of Florida’s building codes, and professional malpractice. In 2006, the condominium association for the building filed a separate lawsuit against many of the same parties involved in the 2004 litigation initiated by Batson-Cook. Although those claims are not pertinent to this proceeding, we note that the trial court consolidated the association’s litigation with the 2004 case.

In January 2011, Batson-Cook settled its claims with SRII in both the 2004 and 2006 cases. Specifically, the settlement agreement provided as follows:

The Parties desire and intend to (i) resolve any and all claims for direct liability of either of them to the other which have been asserted, or which could have been asserted by or between them while, at the same time, denying any liability for any such claims, (ii) address the claims that [SRII] has or could have asserted against Cooper Carry and Associates Architects, Inc. (“Architect"), both for its damages and for the damages and claims asserted against it by Batson-Cook, by [SRII] assigning same to Batson-Cook, and (iii) address the claims for vicarious liability of Batson-Cook to [SRII] for the acts and inactions of its subcontractors by [SRII] assigning to Batson-Cook its claims against Batson-Cook to the extent of Batson-Cook’s vicarious liability for the actions and inactions of its subcontractors. It is expressly understood, intended and agreed by the Parties that this Settlement Agreement shall not in any way extinguish, waive, prejudice or operate as a release of any of the claims assigned by [SRII] to Batson[-]Cook referenced in Exhibit “A” (“Assignment of Claims and Causes of Action”).

(Emphasis added.) In the settlement agreement, the parties repeatedly expressed their intent to assign SRII’s claims against Cooper Carry to Batson-Cook and that those claims were not to be released. SRII also agreed to cooperate reasonably with Batson-Cook in the prosecution of the assigned claims.

In the assignment, SRII assigned to Batson-Cook all of its claims against Cooper Carry and its affiliates, agents, and representatives. Similarly, SRII assigned to Batson-Cook any claims that SRII had against Batson-Cook. The assignment included a provision under which SRII irrevocably appointed Batson-Cook as its representative to pursue the assigned claims.

In January 2011, the parties to the 2004 and 2006 proceedings, including Cooper Carry, entered into a stipulation to continue the trial of the 2004 litigation, which was set for February 22, 2011. After the entry of the stipulation, in April 2011, Bat-son-Cook filed a motion for leave to file an amended complaint “to add the necessary allegations in order to correctly identify and delineate the claims of BAT-SON[-]COOK and of [SRII] of [sic] by whom BATSON[-]COOK has been assigned its claims.”

At the hearing held in May 2011 on its motion to amend the complaint in the 2004 litigation, Batson-Cook’s counsel argued that Batson-Cook “has its claims for the money that it spent in remediating the Renaissance project. Also, Batson-Cook has been assigned [SRII’s] claims for the money [SRII] spent in remediating the Renaissance project following Tropical Storm Gabrielle in 2001.” Counsel stated, “[T]his is our motion to amend to assert the assignment by [SRII] to Batson-Cook.” Cooper Carry, along with several subcontractors affected by the proposed amendment, opposed the motion for leave to amend, arguing that they would be prejudiced by any amendment and that any amendment would be futile. Following the hearing, the circuit court denied Bat-son-Cook’s motion for leave to file an amended complaint. The circuit court accepted the arguments that the amendment would be prejudicial and futile and that finality should be reached in the case. Batson-Cook filed a motion for rehearing, which the circuit court also denied.

Next, in July 2011, Cooper Carry filed a motion to “drop” SRII from the 2004 litigation under Florida Rule of Civil Procedure 1.250(b). Cooper Carry asserted in its motion that SRII had assigned all of its claims in connection with the litigation to Batson-Cook, had “settled out of the [2004] case,” but “ha[d] failed to procedurally remove itself from the 2004 action.”

Batson-Cook objected to “dropping” SRII from the litigation; it also filed a motion for substitution of its counsel on behalf of SRII. Batson-Cook argued that a number of SRII’s claims remained viable in the litigation and that the circuit court should permit counsel for Batson-Cook to try SRII’s claims. Batson-Cook argued that there was no authority to support “dropping” SRII as a party under rule 1.250(b) in the circumstances of this case. In addition, Batson-Cook explained that— in accordance with Florida Rule of Civil Procedure 1.260(c) — when a claimant transfers its interest in a cause of action while the litigation is pending a court has two alternatives: (1) to allow the action to be continued in the name of the original claimant or (2) to allow the person to whom the cause of action was transferred to be either substituted for or joined with the original claimant.

The circuit court held a hearing on Cooper Carry’s motion to “drop” SRII as a party in September 2011. At the hearing on the motion, Cooper Carry’s counsel argued that SRII’s claims could no longer be pursued in the pending case because SRII had assigned all of its claims to Batson-Cook and had demonstrated its intent to withdraw from the litigation. Counsel argued that Batson-Cook was attempting to “force [SRII] to the table” to proceed on claims that it no longer desired to pursue.

Initially, the circuit court indicated its agreement with the arguments of counsel for Cooper Carry but stated that it was “somewhat reluctant to grant the motion outright in the sense of — in the sense of dropping the party defendant/counter plaintiff, [SRII].” The circuit court indicated that it was

going to deny the motion to drop the party; however, I am going to rule that the damages claims of SRII are eliminated from the case and they will not be presented during the case. To me it’s fairly clear that the assignor has released all the claims, does not want to go forward, those claims are out of the case.

Notably, SRII’s counsel expressed concern about the circuit court’s ruling, not because it had assigned its claims to Batson-Cook under terms that would permit Bat-son-Cook to pursue those claims in its stead, but because of a concern about SRII’s potential exposure to claims for attorney’s fees and costs. Ultimately, after additional discussion, the circuit court revised its ruling to grant the motion to “drop” SRII as a party because of the confusion that allowing SRII to remain in the litigation might cause. In addition, the circuit court denied Batson-Cook’s motion to substitute as counsel for SRII in the litigation.

Later, the circuit court granted Batson-Cook’s motion to stay the underlying proceeding pending an appeal of the circuit court’s order. After SRII filed its notice of appeal, this court relinquished jurisdiction to the circuit court for the entry of a final, appealable order. Upon relinquishment, the circuit court entered a final judgment dismissing SRII’s claims from the action. Initially, Batson-Cook filed a notice of joinder in SRII’s appeal. However, Batson-Cook later withdrew its notice of joinder.

II. FRAMING THE ISSUE

The course of the proceedings outlined above culminated in three rulings by the circuit court: (1) an order denying Batson-Cook’s motion to amend made following the assignment of SRII’s claims to it; (2) an order denying Batson-Cook’s motion to substitute its attorneys as counsel for SRII and to pursue the assigned claims in SRII’s name; and (3) an order granting the motion to “drop” SRII as a party followed by the entry of a final judgment that effectively dismissed SRII’s claims from the pending action. The first two rulings — which directly affect Batson-Cook’s ability to proceed on the assigned claims — are nonfínal, nonappealable orders. See Traveler v. Steiner Transocean Ltd., 895 So.2d 1191, 1192 (Fla. 3d DCA 2005). Only the third ruling, “dropping” SRII as a party plaintiff in the litigation, is before us for review in the context of this appeal brought by SRII.

The apparent effect of the circuit court’s three rulings is to extinguish the claims that SRII timely brought against Cooper Carry and others without a determination of those claims on the merits. SRII is no longer a party to the litigation, and the circuit court’s denial of the motion to amend enabled Cooper Carry and some of the subcontractors to stymie Batson-Cook’s attempt to assert the assigned claims in its own right. Although we offer no opinion on this issue, we presume that Batson-Cook cannot now pursue the assigned claims in a separate action because the applicable statutes of limitations would bar the claims. However, in the context of this appeal, we can only review the circuit court’s order granting the motion to “drop” SRII from the litigation. Therefore, we cannot address the effect of the circuit court’s three rulings as a whole. Accordingly, we turn now to a discussion of the circuit court’s order “dropping” SRII as a party from the litigation.

III. DISCUSSION

In considering the issue before us, we look to Florida Rule of Civil Procedure 1.260(c) concerning “Transfer of Interest,” which provides as follows:

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

Batson-Cook argued in the circuit court and SRII argues on appeal that under rule 1.260(c), the circuit court had the option of granting Batson-Cook’s motion to amend and permitting Batson-Cook to pursue the assigned claims in its own name. Alternatively, the circuit court could have allowed Batson-Cook to pursue the assigned claims in SRII’s name and to substitute Batson-Cook’s attorneys as counsel for SRII. See Schmidt v. Mueller, 335 So.2d 630, 631 (Fla. 2d DCA 1976) (noting same); Levine v. Gonzalez, 901 So.2d 969, 972 (Fla. 4th DCA 2005) (noting same); Collier v. Canal Ins. Co., 511 So.2d 736, 738-39 (Fla. 1st DCA 1987) (noting same); Miami Airlines, Inc. v. Webb, 114 So.2d 361, 362-63 (Fla. 3d DCA 1959) (noting same).

The settlement agreement and the assignment did not operate to extinguish or to release SRII’s claims against Cooper Carry and others; instead, the effect of these documents was to transfer SRII’s interest in those claims to Batson-Cook. Accordingly, the circuit court could have permitted Batson-Cook either to substitute as the party on those claims or to pursue them in the name of SRII, the original holder of the claims.

On this appeal, our decision to affirm is compelled by SRII’s failure to object to the motion to “drop” it as a party. In fact, SRII urged the circuit court to enter an order to the effect that SRII would have no role whatsoever in the litigation going forward. SRII’s appellate arguments are inconsistent with the posture that it adopted in the circuit court. Although Batson-Cook objected to the entry of the order, SRII failed to join in the objection. Thus, insofar as SRII is concerned, the circuit court’s ruling amounts to unpre-served error concerning which SRII may not complain on appeal. See Eagleman v. Korzeniowski, 924 So.2d 855, 859 (Fla. 4th DCA 2006).

IV. CONCLUSION

For the foregoing reasons, SRII’s failure to preserve the asserted error precludes any appellate relief. Accordingly, we affirm the order under review and remand this case for further proceedings.

Affirmed and remanded for further proceedings.

VILLANTI and BLACK, JJ., Concur.

      . Over the next several years, several other parties were brought into the litigation under third-party practice, and several parties were dropped from the litigation as claims were settled. Those parties and claims are not pertinent to the issues in this appeal.

      . SRII also agreed to dismiss its claims against Federal Insurance, the bonding company for Batson-Cook. On March 9, 2011, SRII filed' a stipulation for dismissal with prejudice of its claims against Federal Insurance.

      . Cooper Carry made extensive arguments in opposition to Batson-Cook’s motion to amend. We need not detail those arguments here.

      .Batson-Cook did not seek appellate review of the circuit court’s order denying its motion to amend. The denial of a motion to amend is a nonfinal, nonappealable order; such orders are not reviewable under this court’s certiorari jurisdiction either. See Traveler v. Steiner Transocean Ltd., 895 So.2d 1191, 1192 (Fla. 3d DCA 2005) (holding that an order denying a motion for leave to amend is a nonfinal, nonappealable order that is not reviewable by certiorari).

      . Counsel for Cooper Carry made several additional arguments in support of its motion to "drop” SRII that we need not detail here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jarvis FORTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2244.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Rehearing Denied Aug. 1, 2013.
    Jarvis Fortson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is treated as a petition alleging ineffective assistance of appellate counsel, and is dismissed as untimely. See Fla. R.App. P. 9.141(d)(5).

BENTON, C.J., THOMAS and CLARK, JJ., concur.


text:
    Matthew FAISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5349.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Rehearing Denied Aug. 9, 2013.
    Matthew Faison, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, C. Ian Garland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Mobley v. McNeil, 989 So.2d 1215 (Fla. 1st DCA 2008).

THOMAS, ROWE, and SWANSON, JJ., concur.


author: ROTHENBERG, J.

text:
    Pedro P. VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-872.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Pedro P. Valdes, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Pedro P. Valdes (“the defendant”) appeals the summary denial of his motion for postconviction relief. Based on the trial court’s well-reasoned and thorough order addressing each of the grounds raised, and the accompanying record attachments which conclusively refute the defendant’s allegations and support the trial court’s findings, it is clear the motion was properly denied.

Affirmed.


author: MORRIS, Judge.

text:
    Clodis Kiwan THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1218.
    District Court of Appeal of Florida, Second District.
    June 21, 2013.

      Clodis Kiwan Thomas, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Clodis Kiwan Thomas appeals the order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Without further comment, we affirm the denial of claims five, six, seven, eight, and nine, and we reject Thomas’s claim that the postconviction court committed fundamental error by taking judicial notice of the trial transcripts. However, because of the procedural irregularities in this case, including the postconviction court’s failure to consider Thomas’s unrefuted testimony before denying claims one through three after an evidentiary hearing, we must reverse those claims and remand for a second evidentiary hearing. We also reverse in part the summary denial of claim four.

Ineffective assistance based on failure to call witnesses

In claims one through three, Thomas alleged that his counsel was ineffective for failing to call three witnesses at trial who Thomas claimed would have provided testimony relevant to his theory of self-defense:

• Bernice Rambert would have testified that the victim threatened Thomas, charged after him, and attempted to punch him.
• Richey McDonald would have testified that he videotaped Thomas’s approaching the residence where the victim was visiting, thereby refuting the victim’s testimony that the video camera may not have been on. Mr. McDonald also would have testified that the victim became upset upon seeing Thomas approach.
• Dr. Arun D. Jagoo would have testified that due to burns that Thomas suffered prior to the incident in question Thomas was in a great deal of pain and was therefore unable to fight back when the victim attacked him.

In denying claims one through three after an evidentiary hearing, the postcon-viction court noted that none of the three witnesses testified at the hearing, “rendering speculative the alleged substance of their possible testimony.” The court went on to hold that “an allegation of ineffective assistance of counsel for failure to call a witness will fail where the defendant does not present any supporting evidence at the evidentiary hearing from the witness the defendant claims would be helpful,” citing Gore v. State, 846 So.2d 461, 469-70 (Fla. 2003). Additionally, the court held that “the substance of such a witness’[s] testimony is a fact-based issue ... and thus a defendant effectively waives his allegation by failing to present evidence when given the opportunity to do so,” citing Ferrell v. State, 918 So.2d 163,173 (Fla.2005).

In reviewing a postconviction court’s ruling after an evidentiary hearing, we must defer to the court’s factual findings “to the extent that they are supported by competent, substantial evidence,” but we must review “de novo the application of the law to those facts.” Mungin v. State, 932 So.2d 986, 998 (Fla.2006).

We recognize that where a defendant makes an affirmative decision not to present evidence on his claims at an evidentia-ry hearing, the claims may be deemed waived. See Ferrell, 918 So.2d at 173-74 (holding that where postconviction counsel informed the court that the defense “decided not to proceed with” the presentation of witnesses at an evidentiary hearing, appellant waived his claim); Gore v. State, 24 So.3d 1, 13-14 (Fla.2009) (relying on Ferrell and holding that appellant waived his penalty-phase ineffective assistance of counsel claims where he made it clear he was not interested in pursuing such claims and he “did not ‘care’ ” about an evidentia-ry hearing). Additionally, where trial counsel testifies at an evidentiary hearing and the defendant fails to present any evidence rebutting counsel’s testimony, the defendant’s claim may fail. See Gore, 846 So.2d at 469-70 (holding that where trial counsel was the only witness at evidentiary hearing and he testified about his efforts to call witnesses on defendant’s behalf, defendant’s failure to present any testimony to support his allegations resulted in a failure to prove ineffective assistance claim).

But neither of those factual scenarios exist in this case. Here, there is nothing in the record indicating that Thomas affirmatively waived the presentation of the witnesses. Rather, Thomas asserted in his initial brief that he asked postconviction counsel to secure the attendance of the various witnesses, and attached to Thomas’s initial brief were letters he wrote to his postconviction counsel reflecting the same. There was no explanation provided by postconviction counsel at the evidentia-ry hearing as to why the witnesses were not called. An additional distinction in this case is that trial counsel failed to appear at the evidentiary hearing because the State failed to issue a subpoena for his attendance.

Although the postconviction court had Thomas’s unrefuted testimony regarding the substance of the witnesses’ testimony and how their testimony would have aided his theory of self-defense, the postconviction court denied the claims solely on the basis that the witnesses did not testify at the hearing.

Generally, a defendant has the burden to present evidence at a postcon-viction evidentiary hearing, and once he does so, even if only through the presentation of his own testimony, the State must present contradictory evidence. See Williams v. State, 974 So.2d 405, 407 (Fla. 2d DCA 2007); Pennington v. State, 34 So.3d 161, 154-55 (Fla. 1st DCA 2010). Further, if a defendant’s testimony is un-refuted and the postconviction court has not articulated a reason to disbelieve the defendant, the court cannot choose to disregard the defendant’s testimony. See, e.g., Williams, 974 So.2d at 407-08 (noting that postconviction court did not attribute defendant’s lack of credibility to his demeanor or any inconsistent actions and thus court did not articulate any reason for finding appellant’s testimony not credible); Beasley v. State, 964 So.2d 213, 216-17 (Fla. 2d DCA 2007) (holding that postcon-viction court’s findings were not supported by competent, substantial evidence where postconviction court chose not to believe appellant’s testimony even though it was unrefuted); Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004) (holding that postconviction court had no evidence whatsoever upon which to base a finding that appellant knowingly and voluntarily waived his right to previously accrued gain time where appellant’s testimony was un-refuted); Feldpausch v. State, 826 So.2d 354, 356 (Fla. 2d DCA 2002) (finding that because there was no conflicting testimony that required postconviction court to assess credibility of different witnesses, post-conviction court erred by rejecting testimony of attorney simply because it did not wish to believe him).

However, we recognize that the facts of this case are not typical. The first problem here is that there is no indication that the postconviction court actually considered Thomas’s unrefuted testimony before denying the claims. The postconviction court simply did not cite any reasons for disregarding Thomas’s testimony.

We acknowledge that at the evidentiary hearing, Thomas testified about discussions he had had with trial counsel in regard to calling Bernice Rambert and Dr. Jagoo to testify at trial. Although portions of Thomas’s testimony suggest that trial counsel may have had strategic reasons for not calling both of those witnesses, we decline to adopt such inferences based on the few comments Thomas made, especially because trial counsel did not appear at the hearing to provide his own explanation.

The postconvietion court’s error in failing to even consider Thomas’s unrefuted testimony was compounded by the fact that Thomas apparently tried to secure the attendance of the witnesses at the eviden-tiary hearing but for some unexplained reason, that did not occur. Thus, the post-conviction court erred by denying these claims solely because Thomas’s witnesses did not appear at the hearing.

We believe that under the unique circumstances of this case — where the State failed to put on any evidence, where the postconviction court failed to consider Thomas’s unrefuted testimony, and where there is a suggestion that Thomas attempted to secure the presence of the witnesses but for some unexplained reason his post-conviction counsel failed to do so — a new trial is not the appropriate remedy. Rather, we believe that the multiple procedural irregularities essentially rendered the evi-dentiary hearing meaningless and, therefore, the appropriate remedy would be to reverse and remand for a second eviden-tiary hearing. Cf. Mendoza v. State, 964 So.2d 121, 125 (Fla.2007) (reversing and remanding for second evidentiary hearing where the circuit court failed to evaluate the evidence either in its order or on the record and the original circuit court judge was deceased). We note however that it is the combination of procedural irregularities that requires a reversal of these claims and that this opinion should not be read to hold that a defendant’s self-serving testimony about what a witness would say is sufficient to establish ineffective assistance of counsel based on the failure to call a witness.

Ineffective assistance based on failure to adequately prepare and failure to impeach

In claim four, Thomas presented two allegations relating to counsel’s failure to adequately prepare for trial by reviewing the victim’s medical records: (1) because the medical records revealed that there were no bullets still lodged in the victim’s body, counsel could have used the medical records to impeach the victim’s credibility where the victim testified that he still had bullets lodged in his body, and (2) counsel could have used the medical records to prove that the victim did not suffer great bodily harm, which would have negated the State’s proof of attempted first-degree murder.

We recognize that in summarily denying claim four, the postconviction court cited Thomas’s allegation regarding failure to impeach the victim and found that “counsel was not deficient in failing to impeach the victim on the issue of whether the bullets remained lodged in his body.” However, in making that finding, the post-conviction court improperly merged both allegations of claim four into one allegation. That is, the postconviction court cited Coronado v. State, 654 So.2d 1267, 1270 (Fla. 2d DCA 1995), for the definition of great bodily harm and then determined that Thomas’s “act of shooting the victim multiple times ... constitute^] great bodily harm, irrespective of whether the bullets remained lodged in the victim’s body.” We agree that the issue of whether the bullets remained lodged in the victim’s body was not dispositive of whether the State established that great bodily harm occurred, and therefore, we affirm the summary denial of that portion of claim four. But Thomas’s allegation that the medical records could have been used to generally impeach the victim’s credibility was a legally sufficient claim and was an issue that the postconviction court did not address. We therefore reverse the summary denial of that portion of claim four and remand for the postconviction court to either attach records refuting it or to evaluate that portion of the claim at the second evidentiary hearing. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (“To uphold the [postconviction] court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”); Tapp v. State, 44 So.3d 666, 667 (Fla. 2d DCA 2010) (reversing summary denial of claim made in rule 3.850 motion and remanding for postconviction court to either attach records refuting claim or to hold an evidentiary hearing).

Conclusion

We conclude that based on the unique circumstances of this case, the postconviction court erred in denying claims one through three of Thomas’s rule 3.850 motion solely because Thomas’s witnesses did not appear at the evidentiary hearing. We reverse the denial of those claims and remand with instructions to the postconviction court to conduct a second evidentiary hearing. Because the postconviction court erred in analyzing a portion of claim four, we reverse the summary denial of the portion of that claim dealing with counsel’s failure to impeach the victim with medical records. On remand, the postconviction court should either attach records refuting that portion of claim four or it should evaluate that portion of the claim at the second evidentiary hearing.

Affirmed in part, reversed in part, and remanded for proceedings in conformance herewith.

LaROSE and KHOUZAM, JJ., Concur.

      . Thomas was convicted of attempted first-degree murder in 2006. His direct appeal was affirmed by this court. Thomas v. State, 970 So.2d 833 (Fla. 2d DCA 2007) (table decision).

      . Cf. Walls V. State, 641 So.2d 381, 390 (Fla.1994) (“As a general rule, uncontroverted factual evidence cannot simply be rejected unless it is contrary to law, improbable, untrustworthy, unreasonable, or contradictory.”).

      . Regarding Mr. McDonald, Thomas testified that when he asked his trial counsel to have Mr. McDonald testify for the defense, defense counsel did not respond. Thus, unlike the discussions regarding the other two witnesses, there is nothing in the record indicating that trial counsel provided a reason for declining to call Mr. McDonald to testify.


author: CLARK, J.

text:
    The ESTATE OF Barbara KESTER/Glenna Kester, Appellant, v. Pamela ROCCO and Cynthia Collins, Appellee.
    No. 1D12-2006.
    District Court of Appeal of Florida, First District.
    June 24, 2013.
    Rehearing Denied Aug. 12, 2013.

      Jennifer S. Haley-Gleason of Allen, Ko-pet & Assoc., PLLC, Tallahassee, for Appellant.
    Diane D. Tremor and Kyle L. Kemper of Rose, Sundstrom & Bentley, Tallahassee, for Appellee.
   CLARK, J.

Appellant Glenna Kester, personal representative of the estate of Barbara Kes-ter, appeals the trial court’s revised order, entered May 31, 2012, finding that she exercised undue influence over the testator, breached her fiduciary duties to the estate, and took possession of three financial assets after her mother’s death as a constructive trustee rather than as a beneficiary. The order is reversed because the evidence was insufficient to support a finding of undue influence and there was no showing that Appellant breached her fiduciary duties.

Barbara Jane Kester died testate on January 21, 2011. In addition to her will, executed in 2004, Mrs. Kester had executed two codicils to her will, each in December, 2010. The codicils specifically named her children: Glenna Kester (Glenna), Pamela Rocco (Pamela), Cynthia Collins (Cynthia), Monte Kester (Monte), and David Kester (David) as beneficiaries of the estate and designated Glenna and David as personal representatives. Mrs. Kester had given Glenna her durable power of attorney several years previously, but there was competent substantial evidence that Mrs. Kester retained her mental faculties and ability to understand and manage her own finances until the time of her death.

Shortly after Mrs. Kester’s death, Glenna took possession of two financial accounts (the “Farmer & Merchants CD” and the “First Florida Credit Union account”) as either a Payable on Death beneficiary or a joint account holder with right of survivorship. Glenna also took possession of a third account (the “AIG annuity”), on which her mother had listed Glenna, Monte and David as beneficiaries. For this annuity, Glenna testified that she had distributed her brothers’ one-third shares to them and kept her share. Monte and David did not deny receiving this distribution from Glenna in their testimony at the hearing. Because of the beneficiary designations on these three assets, Glenna did not list them as estate assets in the probate action and Pamela and Cynthia, the other two daughters of Mrs. Kester, did not receive any distributions from these assets.

Mrs. Kester’s will and codicils were admitted to probate and the validity of these legally executed documents was never challenged. However, Pamela and Cynthia challenged the inventory of estate assets Glenna filed with the court in the probate proceedings. They petitioned the court to compel Glenna to return the value of the three financial accounts at issue to the estate for distribution. The petitioners argued that because Mrs. Kester’s will clearly stated that her estate would be equally distributed among the five heirs, the resulting uneven division whereby they received far less from their mother’s estate than Glenna and their brothers proved that Glenna had exercised undue influence upon Mrs. Kester regarding the financial accounts. Pamela and Cynthia further charged that Glenna thwarted their mother’s wishes and misappropriated these assets for her own benefit, in breach of her fiduciary duty to the estate and beneficiaries.

After hearing the petition to compel production of the assets, the trial court agreed with Pamela and Cynthia and found that Glenna’s authority to take possession of the accounts from the financial institutions was procured by undue influence over her mother “especially during the time between Mr. Kester’s death in May 2010 and Mrs. Kester’s own death in January 2011.” The court further found that because of her undue influence over Mrs. Kester’s designations on these accounts, Glenna was deemed to have taken possession of the accounts “as a constructive trustee.” Finally, because Glenna had not followed the notes she and her mother made about Mrs. Kester’s property, the court found that Glenna had breached her fiduciary duty, created by both her durable power of attorney and appointment as personal representative, to carry out her mother’s wishes. The court ordered Glenna (but not her brothers) to return the proceeds from the accounts at issue to the estate and pay damages to Pamela and Cynthia from Glenna’s share of the estate for the litigation and other expenses incurred in correcting Glenna’s wrongdoing in connection with the probate of the estate. In addition to requiring Glenna to provide additional accounting and inventory statements, the trial court revoked the letters of administration appointing Glenna and David the personal representatives and substituted Pamela as the interim personal representative.

The key evidence relied upon by the petitioners, and the trial court, to support the finding of Glenna’s undue influence and breach of fiduciary duty to carry out Mrs. Kester’s intended distribution of her assets is an unsigned, undated spreadsheet purportedly prepared for Mrs. Kester by Glenna in December of 2010. There was testimony that the spreadsheet was the result of discussions between Glenna and Mrs. Kester in December, 2010, concerning Mrs. Kester’s plans for her property. Although both codicils to Mrs. Kester’s will were executed in December of 2010, the spreadsheet is not referenced in the codicils. The spreadsheet listed Mrs. Kes-ter’s property, including the accounts at issue, estimated values, notes about potential distributions of each item and actions to be taken to effectuate this plan (the to-do list). The evidence indicated that in January 2011, Mrs. Kester changed the beneficiaries on the AIG Annuity to remove Pamela and Cynthia, leaving only Glenna, David and Monte, consistent with the first item on the to-do list. However, none of the other items on the list were accomplished before Mrs. Kester passed away. In addition to this document, the petitioners presented the consistent testimony of all the heirs, including Glenna, that they were aware of Mrs. Kester’s intent to distribute her assets equally among her five heirs. Other witnesses described Mrs. Kester’s intelligence, mental acuity and her longstanding active participation in her own financial planning, such as investing in CD’s and shopping for favorable interest rates during the months prior to her death.

Undue influence must amount to “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997); see also Peacock v. Du Bois, 90 Fla. 162, 105 So. 321, 322 (1925) (undue influence present where person “is not left to act intelligently, understandingly, and voluntarily” and the influence operates “to dethrone the free agency of the person ... rendering his act the product of the will of another instead of his own”). Undue influence is presumed when (i) a person with a confidential relationship with the testator, (ii) was active in procuring or securing the preparation or execution of the devise and (iii) is a substantial beneficiary thereof. See Estate of Brock, 692 So.2d 907, 911 (Fla. 1st DCA 1996). The active procurement element may be determined based on the following factors: presence of the beneficiary at the execution or the occasions where the testator expressed desire to devise, recommendation of an attorney, the beneficiary’s knowledge of the contents prior to its execution, giving instructions to the drafting attorney, securing witnesses and safekeeping of documents after execution. Raimi v. Furlong, 702 So.2d at 1287; see also Hade v. Estate of Helling, 811 So.2d 822, 826 (Fla. 5th DCA 2002) (adding (inequality of mental capacity and strength between testator and beneficiary as factor). If sufficient facts are shown to raise the presumption, it may be rebutted by evidence to the contrary. In re Carpenter’s Estate, 253 So.2d 697 (Fla.1971).

The evidence that Glenna had a close relationship with her mother was insufficient to infer any undue influence. The testimony established that the other heirs also had close relationships with Mrs. Kester and assisted her with various tasks and transportation whenever needed. Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Estate of Brock, 692 So.2d at 911. Where communications and assistance are consistent with a “dutiful” adult child towards an aging parent, there is no presumption of undue influence. Carter v. Carter, 526 So.2d 141, 142-43 (Fla. 3d DCA 1988). Ultimately, “[i]f an adult child ... cannot talk to his parent ... then we have finally demolished the family ties of love and natural affection.” Id.

Likewise, the evidence of Glenna’s active procurement of Mrs. Kester’s designations of ownership and beneficiaries on the accounts was insufficient to establish the second indicator of undue influence. The testimony was unrefuted that Glenna was not present on any occasion when Mrs. Kester created or changed the financial account ownership or beneficiary list. There was no evidence that Glenna gave her mother instructions regarding any account changes, that Glenna alerted any bank employees prior to her mother’s transactions, or otherwise actively participated in the account designations. In fact, the dates Mrs. Kester named Glenna as a joint account holder or POD beneficiary are not clear from the record and the signature cards and POD designation(s) are not in the record. Mrs. Kester’s statement to a bank employee to the effect that Glenna would “take care of everything” did not establish any conditions on Mrs. Kester’s designations or show that Mrs. Kester did not intend her actions on the accounts as written.

To the extent the trial court relied on the to-do list as evidence of Glenna’s active procurement of Mrs. Kester’s changes to the financial accounts at issue, the unsigned, undated, unwitnessed document is not referenced in the valid codicils apparently prepared around the same time and is simply insufficient to overcome the bank documents providing Glenna’s authority to take possession of the assets after Mrs. Kester’s death. The to-do list notes are legally insufficient to constitute a separate writing identifying devises of tangible property or an agreement to make a devise. See §§ 732.515 & 732.701, Fla. Stat. It is not even clear that the undated notes were prepared prior to Mrs. Kester’s naming Glenna as the POD owner or survivorship owner of the Farmer & Merchants CD and the First Florida Credit Union account.

As for Mrs. Kester’s relative mental capacity and strength, the bank officer who assisted Mrs. Kester in July of 2010 testified that Mrs. Kester had always been knowledgeable about her investments and acted without confusion or anxiety when she substituted Glenna for the late Mr. Kester on one of the accounts. Monte, who accompanied Mrs. Kester to the bank in January of 2011 to change her AIG Annuity to remove Pamela and Cynthia, testified that Mrs. Kester was fully aware of her actions, had always been financially savvy, and was not pressured or compelled in any way on that occasion, even though her death was imminent. No witness expressed an opinion that Mrs. Kester had lost her free agency or willpower regarding her property even during the month prior to her death.

The evidence also showed that Mrs. Kester distributed some of her assets prior to her death, to siblings other than Glenna. Mrs. Kester assisted Monte financially after he lost his job and assisted Cynthia with finances after Cynthia had a stroke, helped Cynthia finance a vehicle and provided housing for Cynthia. While there was plentiful evidence that Mrs. Kester wished to treat her heirs equally and divide her assets evenly, there no evidence that she meant that each heir would receive equal cash distributions or that all of her property would pass via probate proceedings and none by right of survivorship or to named beneficiaries.

Because there was insufficient evidence of undue influence by Glenna over Mrs. Kester’s designations of her financial accounts, the trial court’s finding that Glenna took the assets as a constructive trustee is also erroneous. A constructive trust is an extraordinary remedy, arising in equity to prevent unjust enrichment resulting from fraud, undue influence, or breaches of fiduciary duty. See, e.g., Joseph v. Chanin, 940 So.2d 483, 487 (Fla. 4th DCA 2006). Here, it is unclear how Glenna breached any duty by taking possession of the accounts in accordance with the bank documents Mrs. Kester executed and, in the case of the AIG annuity, distributing Monte and David their one-third shares.

We will not overturn a trial court’s findings in a probate matter where competent substantial evidence supports its findings, unless the court misapprehends the evidence as a whole or misconceives the legal effect of the evidence. See In re Barker’s Estate, 52 So.2d 785, 785 (Fla.1951); Gair v. Lockhart, 45 So.2d 193, 194 (Fla.1950); Hendershaw v. Estate of Hendershaw, 763 So.2d 482, 483 (Fla. 4th DCA 2000). Because Pamela and Cynthia failed to meet their evidentiary burden to prove the demanding standard for undue influence and to show any breach of Glenna’s fiduciary duties, the trial court’s ruling must be reversed. In addition, the trial court’s award of fees and litigation costs must also be reversed. See § 733.609(1), (2), Fla. Stat.

Accordingly, we REVERSE the trial court’s revised order and REMAND for further proceedings.

LEWIS and RAY, JJ., concur.

      . For ease of identification and reference, because of the duplicity of some of the surnames, we refer to the litigants by their first names.


text:
    Shawn SINGLETARY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2249.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

      Before SUAREZ, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. See Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), reh’g en banc denied, No. 3D12-1736 (Fla. 3d DCA June 26, 2013) (holding that Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not apply retroactively in collateral review cases); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012) (same).


author: WELLS, Chief Judge.

text:
    Oza B. JENKINS, Appellant, v. SOUTHLAND MALL, INC., and PowerDirect Marketing, LLC, Appellee.
    No. 3D13-590.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.
    Rehearing Denied July 24, 2013.
    Oza B. Jenkins, in proper person.
    Brenton L. Horner, Los Angeles; Jill Anne Hillman, Los Angeles, for appellee, PowerDirect Marketing, LLC.; Solowsky Allen, Richard Allen and Kristin David Cawn, for appellee Southland Mall.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   WELLS, Chief Judge.

Oza B. Jenkins appeals from an order granting a motion to vacate clerk’s default, granting injunctive relief, declaring her to be a vexatious litigant, and imposing sanctions pursuant to section 57.105 of the Florida Statutes. We dismiss the appeal as to that portion of the order vacating a clerk’s default entered against Southland Mall, Inc., and PowerDirect Marketing, LLC., as an appeal from a non-final, non-appealable order. See Fla. R.App. P. 9.130(a). We affirm the remaining portions of the order granting injunctive relief, requiring Jenkins to withdraw her judgment lien against Southland Mall, determining Jenkins to be a vexatious litigant, requiring Jenkins post bond to secure each named defendant, and imposing monetary sanctions against her pursuant to section 57.105.

Dismissed in part, affirmed in part.


text:
    Kevin E. CANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1295.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Rehearing Denied Aug. 7, 2013.
    Kevin E. Candler, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot.

VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.


text:
    Edgar B. FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4290.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Edgar B. Farmer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 14, 2011, judgment and sentence in Santa Rosa County Circuit Court case number 2009-CF-1590. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: KELLY, Judge. PETERS, R. TIMOTHY, DAVIS, Chief Judge,

text:
    Patrick Neal WOLF, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3145.
    District Court of Appeal of Florida, Second District.
    July 3, 2013.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Patrick Neal Wolf challenges his conviction for burglary of a dwelling. The dwelling he was accused of burglarizing was his former residence. His defense was based in part on the contention that the victim had wrongfully evicted him; therefore, he had a legal right to enter the home. In this appeal he argues that the trial court abused its discretion when it denied his request for a special jury instruction that was a recitation of various subsections of chapter 83, Florida Statutes, the Florida Residential Landlord-Tenant Act. We conclude that the trial court acted well within its discretion when it found Mr. Wolf had failed to establish that he was entitled to the requested instruction. Accordingly, we affirm.

The victim, Richard Schmid, rented a bedroom in his home to Mr. Wolf on a month-to-month basis. After the first month, Mr. Wolf failed to timely pay his rent and the victim asked him to leave. He gave Mr. Wolf until the next day to move out, which Mr. Wolf did, leaving his house key but taking most of his belongings with him. The victim had the locks changed the same day Mr. Wolf left.

Approximately two weeks later, the victim returned home from work and noticed that several items of his personal property were missing. He suspected Mr. Wolf was the culprit and confronted him about the theft. Mr. Wolf admitted to taking the items and told the victim that he used a garage door opener to gain entry into the home. When questioned by police, however, Mr. Wolf said he entered the victim’s home through an unlocked window, removed the victim’s property, and left through the garage. At trial, Mr. Wolf did not testify in his own defense and he called no witnesses.

Mr. Wolfs primary defense to the burglary charge was that the State had not proven he had the intent to take the victim’s property at the time he entered the home. Although Mr. Wolf had not testi-fled at trial, his attorney nevertheless argued that Mr. Wolf had gone back to the home only intending to retrieve some belongings he had left there, but after entering the home he decided to take the things belonging to the victim as an “afterthought” to “teach [the victim] a lesson” for the way he was “kicked out” without advance notice. Counsel also argued that Mr. Wolf had a right to be in the home because the victim had terminated the rental agreement without advance notice, a fact the victim acknowledged during his testimony.

At the charge conference, defense counsel requested the following special jury instruction, based on what trial counsel referenced as the “relevant portions” of sections 83.46, 83.56, 83.57, and 83.43, Florida Statutes, which are part of the Florida Landlord-Tenant Act:

1. Landlord and Tenant Law: Residential Tenancies
A landlord cannot terminate a tenancy on the spot by an immediate “verbal eviction.”
Termination of rental agreement
(1) If the tenant materially fails to comply with material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises. The notice shall be adequate if it is in substantially the following form:
You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because (cite the noncompliance).
(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a notice that, if the noncompliance is not corrected within 7 days from the date the written notice is delivered, the landlord shall terminate the rental agreement by reason thereof.
Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. The notice shall be adequate if it is in substantially the following form:
You are hereby notified that (cite the noncompliance). Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without your being given an opportunity to cure the noncompliance.
(2)If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:
You are hereby notified that you are indebted to me in the sum of_ dollars for the rent and use of the premises (address of leased premises, including county), Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the_day of_(year).
(landlord’s name, address and phone number)
(3)The delivery of the written notices required shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.
Rent; duration of tenancies
(1) Unless otherwise agreed, rent is payable without demand or notice; periodic rent is payable at the beginning of each rent payment period; and rent is uniformly apportionable from day to day.
(2) If the rental agreement contains no provision as to duration of the tenancy, the duration is determined by the periods for which the rent is payable, if the rent is payable weekly, then the tenancy is from week to week; if payable monthly, tenancy is from month to month; if payable quarterly, tenancy is from quarter to quarter; if payable yearly, tenancy is from year to year. Termination of tenancy without specific term
A tenancy without a specific duration may be terminated by either party giving written notice in the manner provided in s. 83.56(4), as follows:
(1) When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;
(2) When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;
(3) When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and
(4) When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.
Definitions
As used in this part, the following words and terms shall have the following meanings unless some other meaning is plainly indicated:
(1) “Landlord” means the owner or lessor of a dwelling unit.
(2) “Tenant” means any person entitled to occupy a dwelling unit under a rental agreement.
(3) “Premises” means a dwelling unit and the structure of which it is a part and a mobile home lot and the appurtenant facilities and grounds, areas, facilities, and property held out for the use of tenants generally.
(4) “Rent” means the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement.
(5) “Rental agreement” means any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of premises.

The trial court declined to give the instruction.

A trial court has wide discretion in deciding whether to give or withhold a jury instruction. See Petrucelli v. State, 855 So.2d 150 (Fla. 2d DCA 2003). In criminal trials, “[t]he standard jury instructions are presumed correct and are preferred over special instructions.” Stephens v. State, 787 So.2d 747, 755 (Fla.2001). In order to establish entitlement to a special jury instruction, a defendant “must prove: (1) the special instruction [was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the [special instruction was a correct statement bf the law and not misleading or confusing.” Id. at 756. In rejecting Mr. Wolfs proposed instruction, the trial court stated, In part,

I [t]his special instruction that you asked I [sic] while is a correct statement in part I of Chapter 83, there’s no question in this I Court’s mind under the entire circum-I stances of this case that that would, in I fact, be confusing to and mislead the I jury. And I’ll specifically find that the I standard instructions, you’ll have to Bwork with them, they — any theory of I defense that you posited here, I believe | the standard instruction applies to that. I don’t think you have met the burden for a special instruction.

We agree with the trial court.

First, it is self-evident that the special instruction would have been confusing to the jury. As the trial court aptly stated, “even I have to read through [the instruction] very carefully to even begin to understand in the context of all that’s being said and done here.” For this reason alone, we would affirm the trial court.

Second, we also agree with the trial court that Mr. Wolf did not meet his burden to demonstrate that the standard jury instruction did not adequately cover his theory of defense. The standard jury instruction for burglary provides in pertinent part:

To prove the crime of Burglary, the State must prove the following [two] [three] elements beyond a reasonable doubt:
1. (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).
2. At the time of entering the [structure] [conveyance], (defendant) had the intent to commit [an offense] [ (the crime alleged) ] in that [structure] [conveyance].
The offense intended cannot he trespass or burglary.
Give element 3 only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public. [Citations omitted].
3. [ (Defendant) was not [licensed] [invited] to enter the [strueture][convey-anee].] [The premises were not open to the public at the time of the entering.] Give if applicable. § 810.07, Fla. Stat.
You may infer that (defendant) had the intent to commit a crime inside a [structure][conveyance] if the [entering][attempted entering] of the [structure] [conveyance] was done stealthily and without the consent of the owner or occupant.

Element 3 is given if the defendant is claiming as an affirmative defense that he has an invitation or license to enter or that the premises were open to the public. See State v. Hicks, 421 So.2d 510, 511 (Fla.1982) (holding that consent or license to enter is an affirmative defense, and that “nonconsent” to enter was not an essential element of burglary).

Mr. Wolfs counsel argued that the manner of the eviction was “tantamount to an affirmative defense, that if [Mr. Wolf] had a lawful right to be there or believed he had a lawful right to be there” he was protected against unlawful eviction or termination of his rental agreement under the statutes governing residential tenancies. Yet, despite this argument, counsel rejected element 3 of the standard jury instruction as inapplicable. Thus, whatever defense Mr. Wolf thought the “unlawful eviction” j>rovided, he apparently did not believe it meant he was licensed to enter the home. Mr. Wolfs rejection of element 3 of the standard instruction is problematic for an additional reason — without any reference to license or consent to enter the premises as a defense to burglary, it is hard to imagine what the jury was supposed to glean from the special instruction.

Because we conclude that the trial court did not abuse its discretion when it found Mr. Wolf failed to establish his entitlement to the special jury instruction, we affirm.

PETERS, R. TIMOTHY, Associate Judge, Concurs specially.

DAVIS, C.J., Dissents with opinion.

PETERS, R. TIMOTHY,

Associate Judge, Concurring specially.

I concur without reservation and add these comments. Patrick Wolfs primary response to the charge of residential burglary, simply stated, was that he had a right to be in the home; he had been wrongly evicted. That is an affirmative defense addressed by element 3 of Florida Standard Jury Instruction 13.1. Arguably, a special instruction containing specific, applicable provisions of the Florida Residential Landlord and Tenant Act together with such other principles of law as may be required to make any such special instruction both accurate and complete could have been given to augment the standard instruction. However, no such instruction was presented or requested. The special instruction that was requested was confusing, misleading, and incomplete. Mr. Wolf was not entitled to any such instruction. To compound the difficulty, Mr. Wolfs counsel rejected element 3 of the standard instruction as inapplicable; she wanted the special instruction read and element 3 not read. Had that been done, the resulting jury instruction on burglary would have been incomprehensible. There was no abuse of discretion by the trial court in refusing to give the requested special instruction.

DAVIS, Chief Judge,

Dissenting.

I would respectfully dissent from the majority’s decision regarding the trial court’s failure to give the requested jury instruction and would reverse for a new trial.

Patrick Neal Wolf challenges his conviction for burglary of a residence. He argues that the trial court erroneously denied his request to give a special jury instruction thereby depriving him of a defense. The facts of this case are unusual and must be fully set forth to understand the areas of the law implicated. Richard! Schmid owns title to a residential home in| Hillsborough County. In May 2010, hi began to look for another person who would be willing to rent a bedroom in the home. Following an internet search for a tenant, Schmid and Wolf negotiated a rental agreement that was reduced to a written document. The agreement was a month-to-month rental agreement with no specified duration and called for Wolf to pay monthly rent of $550 on the third of each month. It required Wolf to give at least thirty days’ notice of his intent to terminate the agreement, but it was silent regarding Schmid’s rights of termination. By the agreement, Wolf was entitled to exclusive use and possession of the guest bedroom and joint possession with Schmid as to the common areas of the home, including the garage where the laundry facilities were located.

Wolf paid the first month’s rent on a prorated basis; however, he did not timely pay June’s rent. On the evening of June 8, Schmid advised Wolf that he needed to move out of the home the next day. On June 9, Wolf went to work, and Schmid stayed at home and called a locksmith to change the locks on the doors. When Wolf returned home that evening, he “complied” with Schmid’s request that he leave and gave Schmid the key to the residence. At that time, Wolf removed a few personal items but left behind some larger items of personal property, including a bicycle, a bed, and a boombox. He did not indicate to Schmid when he would return to retrieve these items.

Upon his returning to his home on June 18, Schmid found that several items of his personal property were missing. Wolfs personal property remained in the home. The next day, Schmid called Wolf on his cell phone and asked Wolf about the missing property. Wolf admitted taking the property and indicated that he had sold some of it. Wolf advised Schmid that he used the garage door opener to get into the garage and entered the unlocked door leading from the garage into the home. At trial, Schmid denied that he previously gave Wolf a garage door opener, but he did agree that under the rental agreement Wolf had access to the garage. There were no signs of forced entry.

Upon finding that his personal property was missing, Schmid called the sheriffs office and advised that he suspected Wolf of taking the property. A deputy sheriff then contacted Wolf, who voluntarily met with detectives and, after waiving his Miranda rights, admitted entering the home and taking the property. Wolf was charged with burglary of a residence, grand theft, and two counts of dealing in stolen property.

In order to prove that Wolf committed burglary pursuant to section 810.02(l)(b)(l), Florida Statutes (2009), the State had to show that Wolf entered the house “with the intent to commit an offense therein, unless ... [Wolf was] licensed or invited to enter.” At trial, the State presented three witnesses, Schmid and the two detectives who investigated the case. After the State rested, Wolf moved for judgment of acquittal on the burglary charge, arguing that he had a rental agreement with Schmid that gave him license to enter the home. Wolf further argued that Schmid had not given him the notice to terminate the rental agreement that is required by section 83.57(3), Florida Statutes, and that therefore Wolf continued to have legal license to occupy the premises at the time of the entry. Although Wolf did not challenge the sufficiency of the evidence related to the grand theft charge, he argued that he could not be convicted of burglary because the State failed to show that he did not have the legal right to be in the home.

The State responded that because Schmid, as the owner of the property, told Wolf to leave, Wolf no longer had the right to enter the home. According to the State, if Wolf had further rights against Schmid for improperly evicting him, his only recourse was to bring a civil action for damages. The trial court denied Wolfs motion for judgment of acquittal, concluding that the State presented a prima facie case under section 810.02(l)(b)(l).

Wolf chose not to testify, and the defense rested. Wolf renewed his motion for judgment of acquittal, and the trial court affirmed its prior ruling. At the charge conference that followed, Wolf requested a special instruction that advised the jury of the requirements of chapter 83, Florida Statutes, which deals with landlords and tenants. Specifically, Wolf requested that the jury be instructed that under section 83.57(3), in order to terminate a month-to-month lease, a landlord must give the tenant at least “[fifteen] days’ notice prior to the end of any monthly period.” Wolf argued that the jury should be advised regarding the necessary steps Schmid was legally required to take if he had wanted to terminate the rental agreement that he entered into with Wolf. Wolf pointed out that the jury should be aware of these requirements so it could determine if, in fact, he was in the home with the legal right to be there.

The trial court determined that the proposed special instruction was an accurate statement of the law but that the facts of the case did not support the giving of the proposed instruction, that the proposed instruction was misleading, and that the standard instruction was sufficient. Wolf responded that the standard instruction denied him the right to argue his theory of defense, namely that he did not commit burglary because he had a right to enter the property. Wolf also pointed out that the standard instruction provided an inference that a defendant found to be in possession of recently stolen property intended to commit a crime inside the property. According to Wolf, that inference amounted to the court instructing the jury that a burglary had occurred regardless of Wolfs right to be on the premises. Wolf maintained that for the defense to suggest to the jury that a burglary did not occur because he had the right to be in the home was futile when the court essentially advised the jury that a burglary did occur because items were taken from the house. The trial court rejected Wolfs argument and submitted the case to the jury with the standard instruction, denying the request for the special instruction.

In closing argument, Wolfs counsel admitted that Wolf committed the theft. However, he challenged the burglary charge, arguing that the State had failed to prove Wolfs intent at the time he entered the home. Counsel suggested that Wolf did not break into the home or enter by darkness of night but rather walked up to the home in broad daylight and used the garage door opener to enter the garage. He then entered the unlocked door leading from the garage into the home. Counsel argued that the manner of entry did not support an inference that Wolfs intent upon entering the home was to commit a crime.

He also attempted to argue Wolfs right to be in the home:

So even if you believe that Mr. Wolf had no legal right to be there, which we’re asserting he did based on the way he was kicked out. He was not given notice, which is what Mr. Schmid required if Mr. Wolf wanted to vacate, did not afford him the reciprocal right.

The State responded to Wolfs argument as follows: “This is criminal court. This is not landlord/tenant court. So we’re not dealing with any landlord/tenant issues in this case. We are dealing with crimes.... ” The State went on to argue that after Wolf left the home on June 9, he did not contact Schmid or give any indication that he was coming back for his property. The State argued that Wolf had abandoned his personal property and had left the property for Schmid to “deal with.”

The trial court instructed the jury as follows:

To prove the crime of Burglary, the State must prove the following two elements beyond a reasonable doubt:
1. Patrick Neal Wolf entered a structure owned by or in the possession of Richard Schmid.
2. At the time of entering the structure, Patrick Neal Wolf had the intent to commit a theft in that structure.
You may infer that Patrick Neal Wolf had the intent to commit a crime inside a structure if the entering of the structure was done stealthily and without the consent of the owner or occupant.

The jury returned its verdict of guilty on both the burglary charge and the grand theft charge. Wolf now appeals only the conviction on the count of burglary.

To be entitled to a special jury instruction, a defendant must show that the facts of the case support the instruction, that the instruction is an accurate statement of the law, that the requested instruction is not misleading, that the standard instruction is not adequate to meet the need of the special instruction, and that there is evidence to support the requested special instruction. See DeJesus v. State, 98 So.3d 105, 107 (Fla. 2d DCA 2012).

In considering the specific instruction that Wolf requested, the trial court concluded that the instruction was a correct statement of the law. However, the court also determined that the issue before it was a question of actual possession at the time of the incident and that the standard instruction thus applied to any theory of defense Wolf wished to argue. The court also found that Wolf had failed to meet “the burden for special instruction.” This seems to suggest that the trial court believed the legal relationship between Schmid as owner of the property and Wolf as the tenant was not relevant as to who had actual physical control of the property at the time of the incident. But section 810.02(l)(b)(l) clearly anticipates that a defense to burglary is having a license to enter the property. And caselaw is clear that the owner of a property must be established as someone other than the accused defendant. See Anderson v. State, 356 So.2d 382, 384 (Fla. 3d DCA 1978) (“One of the essential elements of the crime of burglary relevant here is that the burglarized structure or conveyance must be that of another; that is, it must be lawfully possessed at the time of the offense by someone other than the defendant.”); see also Andria v. State, 379 So.2d 690, 691-92 (Fla. 4th DCA 1980) (concluding that where “the police officer knew ... that the person was either the tenant or the former tenant” of the residence he was observed entering, “[p]robable cause did not exist for the arrest”).

In analyzing the facts of this ease and the law as it applies to those facts, it first should be noted that the concept of ownership in the context of the burglary statute is different from the general concept of ownership in real property law, although both contexts are applicable here. Ownership in the burglary context is not limited to the title holder of the real property. Rather, anyone who has the legal right to occupy, including a tenant who has license to enter based on a lease agreement, is considered to be an “owner” for the purpose of the burglary statute. Anderson, 356 So.2d at 385 (“It is ... well-settled that a legal tenant who occupies the burglarized premises at the time of the offense is the ‘owner’ thereof under the burglary statute .... ”), disapproved on other grounds by In the Interest of M.E., 370 So.2d 795 (Fla.1979); see also Harper v. State, 169 So.2d 512, 514 (Fla. 2d DCA 1964) (“The general rule applicable in eases of this type is that the ownership of the building should be laid, not in the holder of the legal title where he is not in possession, but in the actual occupant, the party in possession and control of the building.... Under this rule, where property is occupied by a lawful tenant, the ownership should be laid in the tenant....”); Haugland v. State, 374 So.2d 1026, 1032 (Fla. 3d DCA 1979) (“The state here incorrectly laid the ownership of the burglarized premises solely in the landlord fee-title owner when the proof at trial clearly established that such owner as pled was not in possession of such premises at the time of the burglary. Such was fatal to the state’s case.”).

In the context of real property law, the ownership of title is akin to holding the proverbial “bundle of sticks.” See generally City of Orlando v. MSD-Mattie, L.L.C., 895 So.2d 1127, 1130 (Fla. 5th DCA 2005) (“[P]roperty ownership ... is a bundle of rights analogous to a bundle of sticks.”). The owner can transfer to another person one of the “sticks” and still retain title ownership. Id. (noting that in the case of an easement “all rights not granted are retained by the grantor”). But once an owner has transferred that stick in the form of a particular ownership interest, the owner usually does not retain any rights to that interest.

The circumstances here, however, are somewhat unusual because although Schmid transferred to Wolf the legal right to occupy the property, Schmid reserved for himself a right of joint occupancy with Wolf. That fact, however, does not negate the legal license to occupy that Schmid conferred on Wolf via the lease agreement.

And Schmid’s attempt to simply assert actual physical control over the premises does not, in and of itself, terminate the lease agreement or the rights conveyed thereunder. See § 83.57(3). Schmid did not give Wolf the statutorily required notice that he was terminating the lease or file a complaint for possession; therefore he did not legally terminate the rental agreement with Wolf.

I do recognize that a tenant can abandon or waive his possessory interest rights by his actions or words. Whetstone v. State, 778 So.2d 338, 342 (Fla. 1st DCA 2000) (“[Pjroof of abandonment of leased premises requires that there must be an intent to abandon and conduct by which the intention is carried into effect .... ” (internal quotation marks omitted)), receded from on other grounds by Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001).

In Washington v. State, 11 So.3d 980 (Fla. 5th DCA 2009), Washington and the victim were joint tenants who lived together prior to the burglary. The victim ordered Washington to leave and changed the locks after he left. Upon leaving, Washington took all of his possessions with him. The victim then asked the landlord to remove Washington’s name from the lease, and she paid the full rent herself. The trial court denied Washington’s motion for judgment of acquittal, which was based on the premise that as a cotenant he still had a right to enter the premises. Id. at 981. The Fifth District affirmed, finding that “a jury question was presented as to whether [the victim] had a superior interest in the premises.” Id. at 982.

Based on the same reasoning, I conclude that whether Wolfs actions exhibited an abandonment of his possessory interest is a question of fact for the jury to determine and that the trial court was correct to deny Wolfs motion for judgment of acquittal and to submit the issue to the jury.

However, I further conclude that Wolf was entitled to have the jury advised as to his legal rights under chapter 83. That is, if he held a legal right to possess/occupy the property and if that legal right had not been terminated in the statutorily prescribed manner, then Wolf was licensed to enter under section 810.02(l)(b)(l) and could present a defense that he did not commit burglary. Advising the jury of his rights under the statute would give the jury the opportunity to consider all of the factors in deciding whether he maintained a legal right to possess/occupy the premises. See Pierre v. State, 77 So.3d 699, 701-02 (Fla. 3d DCA 2011) (“Pierre’s legal interest as a lessee is but one factor among the totality of circumstances to be considered in determining whether the victim had a superior possessory interest on the night in question.”).

With regard to whether Wolfs requested instruction was misleading, I acknowledge that it did not explain that a tenant may waive his legal standing as an owner by his acts, such as voluntarily leaving the premises and returning the key. However, I would suggest that when presented with the proposed instruction, it is the State’s responsibility to request further modification in order to clarify the issue of waiver or abandonment. But I do not see that the requested instruction in any way misleads the jury as to Wolfs rights under the law, and I would not find the requested instruction fatally flawed because it did not also provide the State’s theory of its case. Furthermore, even without the State requesting further clarification, Wolfs proposed instruction is a more accurate statement of the law as it would pertain to the instant facts than is the standard jury instruction.

For these reasons, I believe the trial court erred in denying Wolfs request and I would reverse.

      . Schmid did not retain a copy of the agreement, no copy was produced at trial, and the record does not otherwise contain a copy. However, Schmid testified to the details of the agreement.

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

      .The two counts of dealing in stolen property were charged in a separate case. After Wolf's conviction for the burglary and grand theft at jury trial, Wolf entered a negotiated plea on the dealing in stolen property charges. The only conviction being challenged on appeal is the burglary conviction.

      . Schmid testified that Wolf told him he entered the home through the garage using the garage door opener. However, the investigating detective testified that Wolf's statement to police indicated that he crawled through an unlocked window to gain access to the home.


text:
    Samuel Lee WHITE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D13-1405, 3D13-1406.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Rehearing Denied July 31, 2013.

      Samuel Lee White, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: EVANDER, J.

text:
    Thomas M. ANGELOTTA, As Personal Representative, Etc., Appellant, v. SECURITY NATIONAL INSURANCE, COMPANY etc., Appellee.
    No. 5D12-3363.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Rehearing and Rehearing En Banc Denied Aug. 7, 2013.
    Andrew Klymenko of Coleman & Klym-enko, LLC, St. Petersburg, and George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa, for Appellant.

      Rosemary B. Wilder and Josh Levy, of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for Appellee.
   EVANDER, J.

Thomas M. Angelotta, as the personal representative of the Estate of John J. Angelotta, appeals from the entry of an adverse final summary judgment. He contends that the trial court erred in its determination that the leased vehicle driven by the tortfeasor, Ralph Snyder, was not covered by the automobile insurance policy issued by Security National Insurance Company (“Security”) to Snyder pursuant to Florida’s Financial Responsibility Law found in chapter 324, Florida Statutes (2007).

We find merit to Appellant’s argument and, accordingly, reverse. In doing so, we conclude that the vehicle driven by Snyder, a golf cart that had been modified, inter alia, to exceed a speed of twenty miles per hour, fell within the statutory definition of a “low speed vehicle” and, as such, was a “motor vehicle” as defined in section 324.021. Because section 324.151(l)(b) requires that an insurance policy issued pursuant to Florida’s Financial Responsibility Law “insure the person named therein against the loss from the liability imposed upon him or her by law for damages arising out of the use by the person of any motor vehicle not owned by him or her ” (emphasis added), we conclude that coverage exists in the instant case.

The facts of this case are largely undisputed. On February 28, 2008, while driving a modified golf cart on a public roadway, Snyder sideswiped a car and then crashed into a lawfully stopped golf cart operated by John Angelotta (“Angelotta”). The collision occurred within The Villages, a retirement community in which many residents utilize golf carts as a means of transportation.

Angelotta sued Snyder to recover for injuries he sustained as a result of the collision. At the time of the incident, Snyder had an automobile insurance policy with Security, issued pursuant to Florida’s Financial Responsibility Law due to Snyder’s prior conviction for driving under the influence.

Security refused to defend or indemnify Snyder in the lawsuit, claiming that the vehicle driven by Snyder was not covered under its insurance policy. Angelotta ultimately obtained a final judgment against Snyder in the amount of $70,515.29. Snyder then assigned to Angelotta his rights to any monies from any and all actions he may have against Security relating to the events giving rise to Angelotta’s lawsuit against Snyder, in exchange for Angelot-ta’s promise not to execute upon the final judgment.

Angelotta then filed an action against Security, seeking a declaratory judgment that the modified golf cart was covered by Snyder’s insurance policy and raising breach of contract and bad faith claims. The bad faith claim was abated.

Both parties subsequently filed competing motions for summary judgment. At the summary judgment hearing, the parties agreed that there were no genuine issues of material fact and that the legal issue to be determined was whether the damages caused by Snyder, while operating the leased modified golf cart, were covered by the insurance policy.

Security argued that pursuant to the terms of the insurance policy, it was only obligated to cover bodily injury or property damage for which the insured was legally responsible if the injury or damage was caused by a sudden, unexpected and unintended event that arose out of the ownership, maintenance, or use of an “auto.” “Auto” was defined by the policy as

any self-propelled private passenger motor vehicle with not less than four wheels designed principally for use on paved public streets and, highways, provided it has a gross vehicle weight (as determined by the manufacturer’s specification) of 12,000 pounds or less and is not a step-van, parcel delivery van, cargo cutaway van or other van with cab separate from the cargo area.

(Emphasis added). It was Security’s position that the modified golf cart in question was not “designed principally for use on paved public streets and highways.”

Security further argued that it was not required to defend or indemnify Snyder based on the policy’s “regular use” exclusion:

[There is no] liability coverage for the ownership, maintenance, or use of:
Any vehicle, other than “your covered auto” which is:
(a) Owned by “you”; or
(b) Furnished or available for “your” use; or for which you are a “frequent operator.”

The undisputed facts in the instant case reflect that the modified golf cart leased by Snyder was available for his regular use and was not listed on the policy as a covered vehicle.

In response, Angelotta argued that the modified golf cart was, in fact, a “low-speed vehicle” under Florida law and, as such, was a “motor vehicle” under Florida’s Financial Responsibility Law. Ange-lotta further contended that to the extent the policy’s “regular use” exclusion and/or its definition of “auto” conflicted with Florida’s Financial Responsibility Law, those provisions were invalid.

The trial court determined, as a matter of law, that Snyder’s vehicle was a golf cart and as such, was not covered by Security’s policy because it was not “designed principally for use on paved public streets and highways.” Based on this determination, the trial court granted Security’s motion for summary final judgment and denied Angelotta’s competing motion for partial summary judgment. We respectfully disagree with the trial court’s analysis.

Angelotta argues that the modifications made to the vehicle in question brought the vehicle within the statutory definition of a “low-speed vehicle.” We agree. Section 320.01(22), Florida Statutes (as amended effective Jan. 1, 2008) defines a “golf cart” as “a motor vehicle that is designed and maintained for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of 20 miles per hour.” (emphasis added). By contrast, a “low-speed vehicle” is defined as “any four-wheeled electric vehicle whose top speed is greater than 20 miles per hour but not greater than 25 miles per hour, including neighborhood electric vehicles. Low-speed vehicles must comply with the safety standards in 49 C.F.R. s. 571.500 and s. 316.2122.” § 320.01(42), Fla. Stat.

Here, the undisputed facts establish that the vehicle driven by Snyder was capable of exceeding speeds of twenty miles per hour and fell squarely within Florida’s statutory definition of low-speed vehicle.

The fact that a vehicle fits within the definition of a low-speed vehicle rather than a golf cart is legally significant in several respects:

(1) Low-speed vehicles are required to be registered and insured if they are being operated on a roadway. See § 316.2122(3), Fla. Stat. (2007). By contrast, golf carts are generally exempt from Florida’s vehicle registration requirements. See § 320.105, Fla. Stat. (2007).
(2) A low-speed vehicle driven on any public roadway must be operated by an individual with a valid driver’s license. See § 316.2122(4), Fla. Stat. There is no similar requirement for the operator of a golf cart. See § 316.212(6), Fla. Stat. (2007) (“A golf cart may not be operated on public roads or streets by any person under the age of 14.”).
(3) Unlike golf carts, low-speed vehicles are required to comply with the safety standards set forth in section 316.2122, Florida Statutes and section 571.500 of the Code of Federal Regulations.
(4) In the absence of a local ordinance, a low-speed vehicle may be operated on streets with a posted speed limit of thirty-five miles per hour or less. See § 316.2122(1), Fla. Stat. By contrast, in the absence of a local ordinance, the operation of a golf cart on public roadways is extremely limited. See § 316.212, Fla. Stat.

For purposes of Florida’s Financial Responsibility Law, a “motor vehicle” is defined as “every self-propelled vehicle which is designed and required to be licensed for use upon a highway_” § 324.021(1), Fla. Stat. (2007). The modified golf cart/ low-speed vehicle driven by Snyder at the time of the February 28, 2008 collision falls within the Financial Responsibility Law’s definition of “motor vehicle.” It was designed for use on Florida’s highways and was required by federal and state law to have numerous items of safety equipment to help insure its safe operation on public roads. Furthermore, it was required to be registered in accordance with section 320.02, Florida Statutes (2007). Section 320.02(1) provides: “Except as otherwise provided in this chapter, every owner or person in charge of a motor vehicle which is operated or driven on the roads of this state shall register the vehicle in this state.” (emphasis added).

An insurance policy issued as proof of financial responsibility pursuant to chapter 324 is required to insure the policyholder not only for liability for damages arising out of the ownership or use of the policyholder’s covered vehiele(s), but also against loss from liability imposed by law for damages arising out of the use by the person of any motor vehicle not owned by the policyholder:

An operator’s motor vehicle liability policy of insurance shall insure the person named therein against loss from the liability imposed upon him or her by law for damages arising out of the use by the person of any motor vehicle not owned by him or her....

§ 324.151(l)(b), Fla. Stat. (2007).

Based on the clear and unambiguous language of section 324.151, Security was required to insure Snyder against loss from liability imposed upon him for damages suffered by Angelotta as a result of Snyder’s negligent operation of his leased vehicle on February 28, 2008.

To the extent that the “regular use” exclusion and the definition of “auto” in Security’s policy conflicted with Florida’s Financial Responsibility Law, those provisions are invalid. A policy procured under the Financial Responsibility Law is an insurance policy for the benefit of the public using the highways of this state. Therefore, it may not contain exclusions which destroy the effectiveness of the policy as to any substantial segment of that public. See Allstate Indem. Co. v. Wise, 818 So.2d 524, 527 (Fla. 2d DCA 2001) (“Intentional act” exclusion set forth in policy issued pursuant to chapter 324 was unenforceable because to hold otherwise would “contravene the public policy behind the financial responsibility laws.”); Makris v. State Farm Mut. Auto. Ins. Co., 267 So.2d 105, 108-109 (Fla. 3d DCA 1972) (employee exclusion in automobile insurance policy issued pursuant to chapter 324 was unenforceable as matter of law).

We reverse the trial court’s entry of summary final judgment in favor of Security and direct that, on remand, the trial court grant the motion for partial summary judgment filed by the plaintiff below.

REVERSED and REMANDED.

LAWSON and COHEN, JJ., concur.

      . John Angelotta died during the pendency of this appeal. Pursuant to Florida Rule of Appellate Procedure 9.360(c)(3), this court granted the motion of Thomas M. Angelotta, as personal representative, to be substituted as the appellant in this action.

      . The National Highway Traffic Safety Administration similarly defines a low-speed vehicle as a four-wheeled motor vehicle whose attainable speed is more than twenty miles per hour, but not greater than twenty-five miles per hour on a paved level surface. See 49 C.F.R. § 571.3 (2008). In its commentary to this rule, the National Highway Traffic Safety Administration opined:
      Speed-modified golf cars are motor vehicles. Not only are speed-modified golf cars whose top speed is between 20 and 25 miles per hour fast enough to be capable of being used on roads with low-posted speed limits, but also their operation on public roads is commonplace_Further, much of the on-road use is not incidental to the playing of golf. Instead, many trips are made for purposes unrelated to golf, such as shopping or visiting friends.
      63 F.R. 33194, 33205.

      . Section 316.2122(2) provides that a low-speed vehicle must be equipped with "headlamps, stop lamps, turn signal lamps, tail-lamps, reflex reflectors, parking brakes, rearview mirrors, windshields, seat belts, and vehicle identification numbers.”

      .Section 49 C.F.R. 571.500, S5.(b) provides that each low-speed vehicle shall be equipped with:
      (1) Headlamps,
      (2) Front and rear turn signal lamps,
      (3) Taillamps,
      (4) Stop lamps,
      (5) Reflex reflectors: one red on each side as far to the rear as practicable, and one red on the rear,
      (6) An exterior mirror mounted the on the driver’s side of the vehicle and either an exterior mirror mounted on the passenger’s side of the vehicle or an interior mirror,
      (7) A parking brake,
      (8) A windshield that conforms to the Federal motor vehicle safety standard on glazing materials (49 CFR 571.205),
      (9) A VIN that conforms to the requirements of part 565 Vehicle Identification Number of this chapter, and
      (10) A Type 1 or Type 2 seat belt assembly conforming to Sec. 571.209 of this part, Federal Motor Vehicle Safety Standard No. 209, Seat belt assemblies, installed at each designated seating position.

      . Although Florida’s Financial Responsibility Law does not provide a definition for a “highway,” that term is defined by Florida's motor vehicle traffic laws to include:
      The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.
      § 316.003(53)(a), Fla. Stat. (2007); see also § 322.01(38), Fla. Stat. (2007); Mattingly v. State, 41 So.3d 1020, 1021-22 (Fla. 5th DCA 2010).