author: OSTERHAUS, J.

text:
    Marcus Darnell EBRON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3612.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Rehearing Denied March 31, 2014.

      Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Meredith Clark Hinshelwood, Assistant Attorney General, Tallahassee, for Appel-lee.
   OSTERHAUS, J.

In this direct criminal appeal, Appellant raises two points challenging his judgment and sentence for attempted voluntary manslaughter by act. Appellant’s arguments are both premised on the jury having been erroneously instructed on the “intent to kill” element disapproved of in State v. Montgomery, 39 So.3d 252 (Fla. 2010), and extended to attempted voluntary manslaughter by act in Williams v. State, 123 So.3d 23 (Fla.2013). We affirm for the reasons discussed below.

I.

Appellant was charged by amended information with attempted second-degree murder while wearing a hood or mask. The information also alleged appellant used a firearm in the commission of this offense and that it occurred on July 16 and 17, 2010.

At trial the State’s evidence was that Appellant entered the apartment of the shooting victim through the unlocked kitchen door wearing a black mask and gloves and carrying a firearm. Once inside, Appellant entered the living room, brandished his gun, and demanded money from the approximately 8 people there at the time. The shooting victim stood closest to Appellant and attempted to approach him when he was shot through the leg. A struggle ensued as others came to the victim’s aid and Appellant fired another shot. Eventually Appellant was tackled to the ground in the back bedroom, disarmed, had his mask and gloves removed, and tied up. In the meantime, several others in the apartment contacted the police. A few minutes later, police arrived and found three men sitting on top of Appellant in the bedroom. Appellant was not gagged but said nothing to police.

Appellant testified in his own behalf and told the jury a different story: that he was an invitee and a victim at the apartment that night. Appellant did not dispute that two shots were fired, that the victim was shot through the leg, or that he struggled with the men and eventually ended up on the floor in a bedroom tied up. But, Appellant testified he was the one who was robbed at gun point and that the others in the apartment set him up.

After the jury heard the evidence, during closing arguments, the State acknowledged there was no evidence that Appellant intended to kill the victim, just that Appellant shot twice and just didn’t care whether he killed anyone or not. Defense counsel requested instructions on all lesser-included offenses of attempted second-degree murder, including attempted voluntary manslaughter by act. And defense counsel did not object when the following instruction was read to the jury:

To prove the crime of attempted voluntary manslaughter the state must prove the following elements beyond a reasonable doubt: ... one, Marcus Darnell Ebron committed an act which was intended to cause the death of [the victim] and would have resulted in the death of [victim] except that someone prevented Marcus Darnell Ebron from killing [the victim] or he failed to do so.
In order to convict of attempted voluntary manslaughter it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

(Emphasis added).

The jury returned a verdict finding Appellant guilty of the lesser-included offense of attempted voluntary manslaughter by act. Thereafter, Appellant filed a motion for a new trial, which included a challenge to the erroneous attempted voluntary manslaughter instruction. But Appellant’s motion for new trial was denied.

II.

Appellant raises two issues on appeal. First, Appellant claims that reading the improper attempted voluntary manslaughter instruction including the “intent to kill” element to the jury was fundamental error entitling him to a new trial on that count. Second, Appellant claims it was fundamental error to instruct the jury on the lesser-included offense of attempted voluntary manslaughter by act at all, because the erroneous “intent to kill” instruction transformed Appellant’s conviction for attempted voluntary manslaughter by act into a conviction for a non-existent crime.

Because Appellant did not object to the jury instruction on attempted voluntary manslaughter at trial on either ground raised on appeal, Appellant’s claims of error are not preserved and are reviewed only for fundamental error. As stated by the Florida Supreme Court in State v. Delva, 575 So.2d 643 (Fla.1991),

Instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So.2d 701 (Fla.1978); Brown v. State, 124 So.2d 481 (Fla.1960). [That is] “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” ... [And flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.

Id. at 644-45 (citations omitted). See also Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008).

Under the facts and circumstances of this case we do not think that the instruction on attempted manslaughter by act rose to the level of fundamental error, because it did not involve a disputed element of the crime. In Williams v. State, 123 So.3d 23 (Fla.2013), the Florida Supreme Court recently articulated the rule concerning Montgomery error in language similar to that in Delva, supra:

[T]he defendant is entitled to an accurate instruction on the charged offenses and all lesser included offenses, and when the defendant is convicted of a crime not more than one step removed from the crime for which an erroneous instruction is given, fundamental error occurs if the instruction pertains to a disputed element of the crime.

(Emphasis added). Cf. Delva at 644-45 (“Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.”). See also Haygood v. State, 109 So.3d 735 (Fla.2013) (“[F]un-damental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.”) (citing Delva at 644-45). In this case, the record reflects “intent to kill” was not disputed by either the State or the defense. Rather, the State told the jury unequivocally that Appellant had no intent to kill the victim. And the defense did not make an issue of “intent to kill,” but argued that Appellant was not the perpetrator or shooter. And, so, based on this record, it is clear that “intent to kill” was not a disputed element in this case and “ ‘was not at issue as a defense.’” Battle v. State, 911 So.2d 85, 89 (Fla.2005) (quoting Delva at 645). See Griffin v. State, 128 So.3d 88, (Fla. 2d DCA Sept. 18, 2013) (holding Montgomery error not fundamental where “intent to kill” was not a disputed element, stating “[t]here is no dispute regarding the elements of an offense when the manner of the crime is conceded and the sole defense is mistaken identity.”) (citing Battle at 89).

A second reason that Montgomery is not dispositive is that Appellant was convicted of the lesser-included offense of attempted voluntary manslaughter itself rather than the primary offense of attempted second-degree murder. Thus, the “intent to kill” language did not direct the jury’s verdict to attempted second-degree murder, as was problematic in Montgomenj. Because “intent to kill” was not a disputed element and Appellant was not convicted of attempted second-degree murder, we conclude the erroneous “intent to kill” language of the attempted voluntary manslaughter by act instruction did not constitute fundamental error in this case.

We also reject Appellant’s second argument, that the erroneous “intent to kill” instruction transformed Appellant’s conviction for attempted voluntary manslaughter by act into an illegal conviction for a non-existent crime. In Williams, the Florida Supreme Court held that attempted voluntary manslaughter by act is still a viable offense in Florida notwithstanding an erroneous instruction and that Montgomery did not abrogate it. See also Ware v. State, 112 So.3d 532, 534 (Fla. 3d DCA 2013). The confusing instruction did not transform a conviction for attempted manslaughter into an illegal one for a nonexistent crime.

III.

Based on the foregoing discussion, we conclude the erroneous “intent to kill” instruction did not constitute fundamental error under the facts and circumstances of this case, because “intent to kill” was not a disputed element and did not operate to direct the jury to enter a verdict for attempted second-degree murder. We, therefore, affirm Appellant’s conviction and sentence for the lesser included offense of attempted voluntary manslaughter by act.

AFFIRMED.

LEWIS, C.J., and MARSTILLER, J., concur.

      . Motions for rehearing and rehearing en banc were filed in Griffin on October 1, 2013.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Robert DINGLE and Janet L. Dingle, Appellants, v. Jacqueline C. DELLINGER, et al., Appellees.
    No. 5D13-1725.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.
    As Corrected on Denial of Rehearing Feb. 27, 2014.

      Craig A. Brand, of The Brand Law Firm, P.A., Miami, for Appellants.

      Joseph M. Mason, Jr. and Carole Joy Barice, of McGee & Mason, P.A., Brooks-ville, for Appellee, Jacqueline C. Dellinger.
    Ryan J. Millhorn, of The Millhorn Law Firm, The Villages, for Appellees, Michael Millhorn, Eric Millhorn and The Millhorn Law Firm, L.L.C.
   ORFINGER, J.

Robert and Janet Dingle appeal the dismissal with prejudice of their legal malpractice claims against attorney Jacqueline Dellinger and the Millhorn Law Firm, L.L.C. We affirm in part, reverse in part, and remand.

This suit arose out of the alleged failure of Dellinger to properly draft documents gifting property to the Dingles. According to the Dingles’ third amended complaint, John P. Kyreakakis, the sole shareholder and agent of Whiteway Investments, Inc., a Panamanian corporation, retained Del-linger, an employee or agent of Millhorn, to prepare a quitclaim deed to gift a piece of real property from Whiteway to the Dingles. Kyreakakis provided Dellinger with an English translation of a power of attorney, originally drafted in Spanish in Panama, to evidence his authority to transfer Whiteway’s property to the Dingles. Dellinger drafted and recorded the quitclaim deed following its execution. Several months later, Kyreakakis died and his widow challenged the conveyance. Ultimately, this Court concluded that the power of attorney did not authorize Kyreakak-is to make a gift on Whiteway’s behalf and determined that the conveyance was invalid. See Dingle v. Prikhdina, 59 So.3d 326 (Fla. 5th DCA 2011). The Dingles then sued Dellinger and Millhorn, alleging legal malpractice. Dellinger and Millhorn moved to dismiss, arguing that because the Dingles were not parties to the attorney-client relationship, Millhorn and its employees or agents owed them no duty. The trial court agreed and, after several amendments, dismissed the Dingles’ causes of action with prejudice.

We review de novo a trial court’s order dismissing a complaint with prejudice. E.g., Wendler v. City of St. Augustine, 108 So.3d 1141, 1143 (Fla. 5th DCA 2013). To determine the sufficiency of a pleading, we accept as true all well-pled allegations of the complaint. Kinney v. Shinholser, 663 So.2d 643, 645 (Fla. 5th DCA 1995). In order to properly state a cause of action against an attorney for professional negligence, a plaintiff must plead sufficient facts to establish three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of the client’s loss. Law Office of David J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So.2d 962, 966 (Fla. 2007); Moscowitz v. Oldham, 48 So.3d 136, 138 (Fla. 5th DCA 2010). In this case, the issue on appeal involves the second element — whether Dellinger and Millhorn owed any duty to the Dingles. While the Dingles concede no attorney/client relationship existed between them and either Dellinger or Millhorn, they claim that they were the intended third-party beneficiaries of the contract between Whiteway and its attorneys.

An attorney’s liability for professional negligence is generally limited to clients with whom the attorney shares privity of contract. See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1379 (Fla.1993). Because the party who retains an attorney is in privity with that attorney, that party may bring a negligence action for legal malpractice. Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So.2d 192, 194 (Fla.1987). If the parties are not in privity, to bring a legal malpractice action, the plaintiff must be an intended third-party beneficiary of the lawyer’s services. See Espi-nosa, 612 So.2d at 1380. To assert a third-party beneficiary claim, the complaint must allege: (1) a contract; (2) an intent that the contract primarily and directly benefit the third party; (3) breach of the contract; and (4) resulting damages to the third party. See, e.g., Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994). A party is an intended beneficiary only if the parties to the contract clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong. See id.; see also Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002) (explaining that courts look to nature or terms of contract to find parties’ clear or manifest intent that it is for third party’s benefit). Thus, it is not necessary that the third-party beneficiary is named in the contract. See Fla. Power & Light Co. v. Mid-Valley, Inc., 763 F.2d 1316, 1321 (11th Cir.1985). Rather, the parties’ pre- or post-contract actions may establish their intent. Id.

The privity requirement has been relaxed most frequently in will drafting situations, but “the third party intended beneficiary exception to the rule of privity is not limited to will drafting cases.” Hodge v. Cichon, 78 So.3d 719, 722 (Fla. 5th DCA), review denied, 99 So.3d 942 (Fla.2012); Winston v. Brogan, 844 F.Supp. 753, 756 (S.D.Fla.1994) (citing Greenberg v. Mahoney Adams & Criser, P.A., 614 So.2d 604, 605 (Fla. 1st DCA 1993)). Although privity of contract may create a duty of care providing the basis for recovery in negligence, the lack of privity does not necessarily foreclose liability if a duty of care is otherwise established. See Baskerville-Donovan Eng’rs, Inc. v. Pensacola Exec. House Condo. Ass’n, 581 So.2d 1301, 1303 (Fla.1991). Still, “[a] person who is not a party to a contract may not sue for breach of that contract where that person receives only an incidental or consequential benefit from the contract.” Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So.2d 536, 543-44 (Fla. 5th DCA 2003) (quoting Caretta Trucking, 647 So.2d at 1030-31); see Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 400 (Fla. 2d DCA 2000) (“To find the requisite intent, it must be shown that both contracting parties intended to benefit the third party; it is insufficient to show that only one party unilaterally intended to benefit the third party.”).

In a case very similar to the one before us, the Iowa Supreme Court held that a third party, alleging legal malpractice in preparation of donative nontestamentary instruments of conveyance, could assert a claim for legal malpractice by establishing that the donor specifically identified the third party as the object of the donor’s intent and that the third party’s expectancy was lost or diminished as a result of the lawyer’s professional negligence. Holsap-ple v. McGrath, 521 N.W.2d 711 (Iowa 1994). In so holding, the Iowa Supreme Court wrote:

[W]e note[ ] two basic problems with recognizing third-party suits against lawyers: without the privity requirement, parties to a contract for legal services could easily lose control over their agreement. In addition, the imposition of a duty to the general public could expose lawyers to a virtually unlimited potential for liability.
On the other hand, we note[] the policy consideration supporting such a claim, primarily giving effect to the intent of the testator to transfer the property.
In deciding whether to recognize such a claim, we look to ... the desirability of effecting the grantor’s intent, the general policy of providing a remedy for a loss, and the need for an effective deterrent to future negligence. These concerns are as pertinent in a nontesta-mentary context as they [are in a testamentary context].
On the other hand, the dangers inherent in an overbroad recognition of liability are as real in this case as they are in a testamentary disposition case, and any recognition of a claim in these circumstances must be tempered accordingly. Primarily, we must be concerned that such a claim be so circumscribed as not to “expose lawyers to a virtually unlimited potential for liability.” See [Schreiner v. Scoville, 410 N.W.2d 679,] 681 [ (Iowa 1987) ].
Schreiner required, in order to limit the scope of recognizable third-party plaintiffs, that a plaintiff be a “specifically identifiable” beneficiary “as expressed in the testator’s testamentary instruments.” Id. at 682. Thus, more than an unrealized expectation of benefits must be shown; a plaintiff must show that the testator (or here, the grantor) attempted to put the donative wishes into effect and failed to do so only because of the intervening negligence of a lawyer ....
Second, under Schreiner, “a cause of action ordinarily will arise only when as a direct result of the lawyer’s professional negligence ... the [benefit] is ... lost, [in whole or in part].” Id. at 688.
Interpolating the requirements for a cause of action to the circumstances of this case, we hold that a plaintiff must establish that (1) the plaintiff was specifically identified, by the donor, as an object of the grantor’s intent; and (2) the expectancy was lost or diminished as a result of professional negligence.

Id. at 713-14 (internal citations, omitted); see Speedee Oil Change No. 2, Inc. v. Nat'l Union Fire Ins. Co., 444 So.2d 1804 (4th Cir.1984) (holding that corporation, as intended third-party beneficiary of promoter’s contract with attorney, could sue attorney based on incorrect advice to promoters as attorney understood that legal advice was intended for use and benefit of corporation, and that corporation, rather than individual promoters, would act upon advice); Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 266 (Minn.1992) (explaining that intended third-party beneficiary may bring action for legal malpractice where client’s sole purpose is to benefit third party directly, and attorney’s negligent act caused beneficiary to suffer loss; determination is matter of balancing extent to which transaction was intended to affect beneficiary, foreseeability of harm to beneficiary, degree. of certainty that beneficiary suffered injury, closeness of connection between attorneys’ conduct and injury, and policy of preventing future harm); see also Red River Valley Bank v. Home Ins. Co., 607 So.2d 892, 896 (La.App.Ct.1992) (indicating that attorney may be liable for malpractice to third-party beneficiary of attorney’s work); Onita Pac. Corp. v. Trs. of Bronson, 315 Or. 149, 843 P.2d 890, 896-97 (1992) (en banc) (ruling that attorney owes duty not only to client but also to intended beneficiaries of work done for client).

We conclude that the Dingles’ third amended complaint makes allegations sufficient to bring it within this narrow exception to the privity requirement in legal malpractice cases. The Dingles’ third amended complaint contains sufficient ultimate facts, which, if proved, show that they were the intended beneficiaries of Whiteway’s contract with Dellinger and Millhorn. The Dingles’ third amended complaint asserts that the primary intent of Whiteway in hiring Millhorn was to directly benefit them. Accepting, without finding, the complaint’s allegations as true, there was no direct benefit to Whiteway or Kyreakakis, making this transaction similar to a gift or devise made in a trust or in a will. Whiteway or Kyreakakis’s intent was frustrated by the alleged negligence of Dellinger and Millhorn in not preparing an enforceable quitclaim deed as they were contracted to do. See First Fla. Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9, 15 (Fla.1990) (holding accounting firm could be liable for negligence to persons whom it knows and intends will rely on its opinions); Rosenstone v. Satchell, 560 So.2d 1229, 1280 (Fla. 4th DCA 1990) (explaining that attorney may be held liable for breach of duties to one who he knows is intended beneficiary of legal services); Admiral Merchs., 494 N.W.2d at 266 (“[A]n intended third-party beneficiary may bring an action for legal malpractice in those situations when the client’s sole purpose is to benefit the third party directly, and the attorney’s negligent act caused the beneficiary to suffer a loss.”); see also Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 625 (Mo.1995) (holding that beneficiaries of trust have standing to sue settlor’s attorney for malpractice because attorney did not effectuate his client’s wishes for transfer of property).

Still, Dellinger insists that she did not have a duty of care to the Dingles because the requirement of privity in attorney malpractice actions has only been relaxed where there is only one “side” to a transaction (e.g., wills, trusts, estate planning and adoptions), and this case involved a two-sided real estate transaction. Thus, Dellinger contends that because she was employed by Whiteway, she could not ethically represent the Dingles’ interests or be held responsible to them.

Generally, an attorney is not liable to third parties for negligence or misadvice given to a client concerning an inter vivos transfer of property. Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So.2d 315, 317 (Fla. 3d DCA 1985). Courts usually reject the contention that the attorney for a seller, buyer, lender, or mortgagor owed a duty to another party. Thus, as a general rule, when a transaction involves two interests to be protected, an attorney employed by one of the parties to the transaction cannot be held responsible to other parties unless it is alleged and proved that the attorney committed some nonnegligent tort such as fraud or theft. See, e.g., Adams v. Chenowith, 349 So.2d 230, 231 (Fla. 4th DCA 1977). As the court in Amey, Inc. v. Henderson, Franklin, Starnes & Holt, P.A., 367 So.2d 633, 635 (Fla. 2d DCA 1979), explained:

Just as in Adams, there was more than one ‘side’ of the transaction before us. The law firm’s obligation ran to its client. There is no suggestion that the buyer was harmed by any type of fraudulent conduct. It may be that in transactions such as this the buyer often chooses to rely on the expertise of the lender’s lawyer on the premise that the lawyer would not approve the title for the loan unless the title were clear. However, this is a calculated risk, and if it proves to be unfounded, the buyer has no claim that the lawyer violates a duty owed to him. To hold otherwise would place the lawyer in an untenable position, particularly when it is well known that lawyers will often pass certain title defects when examining a title for a loan but refuse to do so when representing a purchaser.

While the general rule in Florida is that an attorney owes a duty of care only to his client and not to third parties, an attorney owes a duty to a third party if the attorney was hired for the purpose of benefitting a third party. See, e.g., Espinosa, 612 So.2d at 1379-80; Oberon, 512 So.2d at 194. Because the intended benefit rule requires the specific intent to benefit the third party, it is accepted that an attorney is not liable to the third party for malpractice alleged to have occurred during adversarial proceedings on the rationale that adversaries would never desire to benefit one another. Wild v. Trans World Airlines, Inc., 14 S.W.3d 166, 168 (Mo.App.Ct.2000); Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 625 (Mo.1995); Onita, 843 P.2d at 897.

This case involved a real estate transaction, typically a two-sided transaction. However, here, based on the allegations contained in the complaint, there was no adversarial relationship or differing interests to be protected, as the Dingles’ interests were not in conflict with Whiteway or Kyreakakis, thus suggesting a one-sided transaction. See generally Freedom Mortg. Corp. v. Burnham Mortg., Inc., 720 F.Supp.2d 978 (N.D.Ill.2010) (holding that mortgage lender sufficiently pled that primary purpose and intent of attorney’s representation of mortgage broker and title insurer were to influence lender, giving rise to duty of care running from attorney to lender, as third-party beneficiary of attorney-client relationship; although broker and title insurer hired attorney as closing agent presumably to act in their best interests, attorney’s work was nonadver-sarial as to lender in sense that attorney’s services as closing agent were typically relied upon by all parties to real estate transaction); Kirby v. Chester, 174 Ga.App. 881, 331 S.E.2d 915 (1985) (concluding that closing attorney owed duty to nonclient lender that relied on attorney’s title certification to loan money); Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618, 629-30 (1985) (determining that unrepresented mortgagor-buyer’s complaint, which alleged that mortgagee-lender retained attorney to intentionally benefit both parties, who had identical interests in the property, alleged sufficient facts to survive dismissal); 4 Legal Malpractice § 34:4 (2013 ed.) (“The rule of privity of contract prevails where a nonclient sues the attorney for errors in handling a transfer of property interests, in creating a security interest, searching title or representing a client in the transaction, who is sued by another party to the transaction.”) (collecting cases); see also Jimerson v. First Am. Title Ins. Co., 989 P.2d 258, 261 (Colo.App.1999) (explaining that professional supplier of information may be liable for its negligence to person with whom it has no contractual relationship, providing that supplier of information knows that recipient of information will provide it to that person or knows that information is to be used to influence transaction); Stuart v. Freiberg, 142 Conn.App. 684, 69 A.3d 320 (2013) (holding that genuine issue of material fact existed as to whether estate beneficiaries were intended beneficiaries of accountant’s work for estate executor, and therefore, whether accountant owed them duty of care, precluded summary judgment in professional malpractice claim against accountant).

The Dingles’ claim of negligence against Millhorn as principals for the acts of their agent, Dellinger, depends upon the claim for professional negligence against Dellinger. As the Dingles have asserted a cause of action for professional negligence, they have alleged facts sufficient to sustain their vicarious liability claim. See, e.g., Aetna Ins. Co. v. Holmes, 59 Fla. 116, 52 So. 801, 802 (1910) (“The acts of an agent, performed within the scope of his real or apparent authority, are binding upon his principal.”). However, we affirm without discussion, the trial court’s dismissal of the Dingles’ negligent training and negligent supervision claim.

In summary, on the unique facts before this Court, we conclude the trial court erred in dismissing the professional negligence (count I), and the vicarious liability (count II), claims of the Dingles’ third amended complaint. We reverse this matter for reinstatement of these causes of action. We affirm the dismissal of the negligent supervision and training (count III) claim.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . Although an intended third-party beneficiary may maintain a legal malpractice action in theories of either tort (negligence) or contract (third-party beneficiary), the contractual theory is conceptually superfluous because the crux of the action must lie in tort as there can be no recovery without negligence. McAbee v. Edwards, 340 So.2d 1167, 1169 (Fla. 4th DCA 1976).

      . Whether an enforceable deed could have been drafted has not been determined.


author: PER CURIAM.

text:
    Clarence PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3370.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2014.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Clarence Perry, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a); See also Barbour v. State, 40 So.3d 60 (Fla. 5th DCA 2010).

EVANDER, COHEN and WALLIS, J.J., concur.


author: TAYLOR, J.

text:
    Jorge Ivan AYALAVILLAMIZAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-136.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Jorge Ivan Ayalavillamizar, appeals his conviction for first degree murder. He raises four issues, arguing that the trial court erred in: (1) denying his motion for judgment of acquittal because the circumstantial evidence was insufficient to support his conviction; (2) permitting the state to elicit irrelevant, inflammatory evidence that appellant struck the victim’s son in the past and that the victim had an abortion; (3) permitting the state to demonstrate how the murder weapon struck the victim’s head and to show photographs of the victim’s injuries, and (4) failing to give appellant’s proposed special jury instruction on circumstantial evidence. On all these issues, we affirm.

Appellant was charged with premeditated first-degree murder for the November 2004 bludgeoning death of his girlfriend, Bianca Sierra. The evidence presented at trial established that appellant and the victim lived together, appellant was aware that the victim planned on ending their romantic relationship, and appellant was upset that the victim had terminated her pregnancy.

Appellant was with the victim in her bedroom on the night of the murder. That night, the victim’s nine-year old daughter heard screams coming from the bedroom, and around 8:00 a.m. the next morning she noticed that the victim’s vehicle was missing. Later that morning, when first responders came to the apartment, they found the victim’s dead body behind her locked bedroom door. The victim had been struck on the head at least three or four times, suffered multiple fractures to her skull, and did not have any defensive wounds on her body. The victim’s blood was found on appellant’s sledgehammer, which was recovered along with his other work tools from a closet in the apartment. The victim’s injuries were consistent with the sledgehammer being the murder weapon. Appellant’s palm print was found on a headboard directly above the victim’s head.

The morning after the murder, appellant went to a friend’s house and asked for a change of clothing. He told the friend that he attempted to commit suicide because he had a fight with the victim. Appellant then fled South Florida, leaving behind his possessions. The victim’s car was found abandoned in Jacksonville, Florida. Nearly five years after the victim’s murder, appellant was apprehended in Brownsville, Texas.

Appellant’s motion for judgment of acquittal at the end of the state’s case was denied. Appellant did not present any evidence at trial, and his renewed motion for judgment of acquittal was also denied. The jury found appellant guilty of first degree murder, prompting this appeal.

With respect to appellant’s first issue on appeal, we conclude that the trial court properly denied appellant’s motion for judgment of acquittal. Even assuming, as appellant argues, that the state’s case was wholly circumstantial and subject to the special standard of review for circumstantial evidence cases, the state presented evidence inconsistent with any reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188 (Fla.1989) (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”).

In this case, all the circumstances pointed to appellant as being the perpetrator. The state proved that appellant had a motive to murder the victim and introduced evidence from which a jury could find beyond a reasonable doubt that appellant was the person who committed the murder. The state also presented evidence of appellant’s consciousness of guilt — his flight and suicidal behavior after the victim’s death.

Further, the state introduced evidence, taken as a whole, that is inconsistent with appellant’s theory that an intruder committed the murder after appellant left the apartment. There were no signs of forced entry into the apartment and no valuables were missing from the residence. However, both appellant and the victim’s car were gone when the victim’s body was found. The victim’s car was missing since at least 3:00 a.m. When the victim’s body was found at 7:30 a.m., rigor mortis was already present, suggesting that she had already been dead for at least three to six hours. The notion that some random intruder broke into the victim’s apartment shortly after appellant left, found appellant’s sledgehammer in the closet, killed the victim with the hammer at least three to six hours before her body was found, and did so without taking any valuables, is not a reasonable hypothesis of innocence.

In his next issue on appeal, appellant challenges two of the trial court’s eviden-tiary rulings: admission of evidence that appellant struck the victim’s son and that the victim had an abortion.

A trial court’s decision on the admissibility of evidence is reviewed under an abuse of discretion standard. Hudson v. State, 992 So.2d 96, 107 (Fla.2008). That discretion, however, is limited by the rules of evidence. Id.

First, appellant argues that the trial court abused its discretion in allowing the state to present testimony that he had hit the victim’s young son in the past. Appellant argues that he did not open the door to such evidence by eliciting testimony from the victim’s mother and daughter that they had never seen him strike the victim.

The evidentiary principle of “opening the door” allows the admission of otherwise inadmissible testimony to “qualify, explain, or limit” testimony or evidence previously admitted. Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000). “To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.” Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997). The “opening the door” concept is based on considerations of fairness and the truth-seeking function of a trial. Id. at 631.

“The mere fact that testimony may be characterized as incomplete or misleading, however, does not automatically trigger the admission of otherwise inadmissible evidence under the ‘opening the door’ rule.” Siegel v. State, 68 So.3d 281, 288 (Fla. 4th DCA 2011). “Rather, the State must demonstrate a legitimate need to resort to such evidence to correct a false impression. Otherwise, the ‘opening the door’ rule threatens to become a pretext for the illegitimate use of inadmissible evidence, and the fairness-promoting purpose of the rule is lost.” Redd v. State, 49 So.3d 329, 333 (Fla. 1st DCA 2010) (citations omitted).

Here, defense counsel elicited testimony from the victim’s daughter and mother that they never saw appellant hit the victim. In turn, the prosecutor sought to introduce evidence that appellant had struck the victim’s son. The prosecutor argued that this evidence was admissible to rebut appellant’s false suggestion that he was a non-violent person who had never committed domestic violence within the family unit. The trial court overruled appellant’s objection to this evidence and allowed the victim’s daughter to testify that appellant had been violent toward her little brother “once or twice” in a “mostly” disciplinary fashion, but “not really” like a father to a son.

Although we disagree with the state’s contention that the testimony elicited by appellant that the mother and daughter never saw him hit the victim opened the door to evidence that the daughter saw appellant strike the victim’s son, any error in admitting this testimony was harmless. Here, the testimony was brief, isolated, and never repeated or commented upon in the state’s closing argument. Although improperly admitted evidence of other crimes or bad acts is presumptively harmful, see Czubak v. State, 570 So.2d 925, 928 (Fla.1990), the evidence of collateral bad acts in this case — that appellant had struck the victim’s son once or twice in a mostly disciplinary fashion — was slight and not a feature of the trial. See Rodriguez, 753 So.2d at 43 (admission of collateral crime testimony indicating that the defendant had a police “ID number” and used aliases was harmless error because such testimony consisted of isolated comments in the course of lengthy witness presentations). We conclude that there is no reasonable possibility that the error, if any, contributed to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Second, appellant argues that evidence that the victim had an abortion was both irrelevant and highly prejudicial. We disagree. Evidence that appellant was very upset about the victim’s decision to have an abortion was admissible to show his motive for the murder and to rebut the defense’s argument that appellant had no motive to murder the victim. See Black-wood v. State, 777 So.2d 399, 407 (Fla.2000) (holding that the witness’s statements about the victim’s comments to appellant regarding her pregnancy, past abortions, and intention not to see him anymore were material to the issue whether appellant possessed a motive to kill the victim).

Appellant next argues that the trial court erred in denying his motion for mistrial based on the prosecutor’s conduct during closing argument. He contends that the prosecutor’s act of repeatedly and loudly slamming appellant’s sledgehammer during closing argument was an improper attempt to inflame the passions of the jury. He further complains that the admission of numerous gory photographs of the victim’s injuries improperly invited the jury to base its verdict on emotion. The cumulative errors in this case, appellant argues, require reversal of his conviction.

The control of closing argument is within a trial court’s discretion. Jackson v. State, 89 So.3d 1011, 1018 (Fla. 4th DCA 2012). “Likewise, a trial court’s ruling on a motion for mistrial is reviewed for an abuse of discretion, and the court should grant a mistrial only where the error is so prejudicial that it vitiates the entire trial.” Id.

In this case, the prosecutor opened his closing argument by urging the jury to consider the criminal nature of the act of repeatedly smashing a four-pound sledgehammer over a person’s skull. He demonstrated the act by loudly striking a hammer against the podium, a chair, and a marble surface. Appellant objected and moved for a mistrial, which the trial court denied.

As a preliminary matter, we find that appellant preserved this issue for review. “Ordinarily, to preserve a claim based on improper comment, counsel has the obligation to object and request a mistrial. If counsel fails to object or if, after having objected, fails to move for a mistrial, his silence will be considered an implied waiver.” Nixon v. State, 572 So.2d 1336, 1340 (Fla.1990). However, where a timely objection is made to an improper comment, and the objection is overruled, thus rendering futile a motion for mistrial, the issue is properly preserved for appellate review even though the defendant did not ask for a mistrial. Simpson v. State, 418 So.2d 984, 986-87 (Fla.1982).

Here, appellant objected to the prosecutor’s demonstration with the hammer and moved for a mistrial. This was sufficient to preserve the issue for appellate review. Although the state cites cases finding a waiver of the issue where the defendant declined a trial court’s offer of a curative instruction, in those cases there was no indication that defense counsel ever moved for a mistrial. See Diaz v. State, 513 So.2d 1045, 1049 (Fla.1987); Jean v. State, 638 So.2d 995, 997 (Fla. 4th DCA 1994); Dormezil v. State, 754 So.2d 168, 170 (Fla. 5th DCA 2000). If defense counsel believes that a curative instruction would be insufficient and requests a mistrial instead, the issue should be considered preserved. Cf. Henderson v. State, 789 So.2d 1016, 1018 (Fla. 2d DCA 2000) (“When any curative instruction would be insufficient, the trial court should grant a mistrial.”).

On the merits, we find that the prosecutor’s conduct of repeatedly slamming appellant’s hammer down in order to demonstrate the blows to the victim’s head was designed to evoke an emotional response to the crime and fell outside the realm of proper argument. See Taylor v. State, 640 So.2d 1127, 1134-35 (Fla. 1st DCA 1994) (“In this case, the prosecutor’s act of striking a table with the murder weapon and his conjecture concerning the child’s dying words were harmful error ... The activities were designed to evoke an emotional response to the crimes or to the defendant, and fall outside the realm of proper argument.”); see also Nardone v. State, 798 So.2d 870, 874-75 (Fla. 4th DCA 2001) (cumulative effect of prosecutor’s conduct in repeatedly striking the table with the aluminum strip with such force as to send drywall scattering around the courtroom, coupled with improper opinion testimony, was harmful error; however, it was unnecessary to decide whether the prosecutor’s demonstration, standing alone, was so egregious as to warrant a new trial).

In this case, although the prosecutor’s conduct in closing argument was improper, it was not so egregious, standing alone, to warrant a new trial. See Spriggs v. State, 392 So.2d 9, 10 (Fla. 4th DCA 1980) (admonishing prosecutor for picking up knife admitted into evidence and sticking it into jury rail during closing argument, but finding the error harmless); Clark v. State, 553 So.2d 240, 242 (Fla. 3d DCA 1989) (finding that prosecutor’s conduct in aiming unloaded murder weapon at jury and pulling the trigger was error, but holding the error harmless).

In addition, we conclude that the trial court did not abuse its discretion in allowing the state to show the jury six autopsy photographs of the victim’s injuries. The photographs admitted in this case were not so inflammatory as to create undue prejudice in the minds of the jurors. The trial court conscientiously considered all of the photos the state sought to introduce, rejecting the two most gruesome photographs as being cumulative. The photographs that were admitted were relevant to issues concerning the manner in which the crime was committed, the nature and extent of injuries, the force of the violence used, and the killer’s intent. They were also relevant to explaining the medical examiner’s testimony. See McWatters v. State, 36 So.3d 613, 637 (Fla.2010) (no abuse of discretion to admit into evidence four autopsy photographs depicting decomposed heads, necks, and torsos of the victims, as the photographs were relevant where they were used by the medical examiner to explain the condition of the bodies and the manner and cause of death). Moreover, gory photographs may be admitted if they properly depict the factual conditions relating to the crime and aid the jury in finding the truth. See Mazzara v. State, 437 So.2d 716, 718 (Fla. 1st DCA 1983).

Finally, we reject appellant’s argument that the trial court abused its discretion in refusing to instruct the jury on the state’s burden of proof in circumstantial evidence cases. The Florida Supreme Court has consistently held that it is within the trial court’s discretion to refuse to give the circumstantial evidence instruction, which was removed from the standard jury instructions over thirty years ago. See, e.g., Gosciminski v. State, 132 So.3d 678, 708-709 & n. 19 (Fla.2013); Jackson v. State, 25 So.3d 518, 530-31 (Fla.2009); Floyd v. State, 850 So.2d 383, 400 (Fla.2002).

Accordingly, we affirm the judgment and sentence in this case.

Affirmed.

DAMOORGIAN, C.J., and GROSS, J„ concur.


text:
    Leroy MASON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2914.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Leroy Mason, Lake City, Pro Se.

      No appearance required for appellee.
   PER CURIAM.

Leroy Mason, III, appeals the summary denial of his amended Rule 3.850 motion for post-conviction relief. We affirm.

On December 31, 1989, Mason shot and killed the unarmed victim with a sawed-off shotgun after the victim refused to comply with Mason’s demands during an attempted robbery. Mason was indicted for first-degree murder and attempted armed robbery. The State sought the death penalty.

In October, 1990, Mason entered a negotiated plea to second-degree murder, a lesser offense of first-degree murder, and received life in prison with a fifteen-year mandatory minimum as a habitual violent felony offender on this count. Mason was seventeen years old (about a month shy of his eighteenth birthday) at the time he committed the murder. The court imposed a concurrent sentence of five years for the attempted robbery.

Mason filed the post-conviction motion at issue in August 2012, alleging that he was entitled to relief under Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). He sought a new sentencing hearing on the murder count. Miller held that a sentencing scheme that requires a mandatory sentence of life in prison without possibility of parole for a juvenile violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The trial court agreed with the State’s response, which argued that the motion was untimely and that Miller did not apply retroactively to Mason’s conviction. Geter v. State, 115 So.3d 375, 376 (Fla. 3d DCA 2012); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012). The Florida Supreme Court is presently considering the retroactivity of Miller in Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013) (certifying question), rev. granted, SC13-865 (Fla. June 3, 2013). We need not reach the retroactivity issue, however, because Miller does not apply to the circumstances of this case.

Mason was sentenced for second-degree murder, a first-degree felony punishable by a term of years up to life. § 782.04(2), Fla. Stat. (1989). The statute under which Mason was punished did not require mandatory life in prison without parole for this offense. Consequently, Miller does not apply. Starks v. State, 128 So.3d 91 (Fla. 2d DCA 2013) (holding that a discretionary life sentence for second degree murder did not violate Miller).

Mason’s amended motion and motion for rehearing cited Daugherty v. State, 96 So.3d 1076 (Fla. 4th DCA 2012), rev. dismissed, 118 So.3d 219 (Fla.2012). In that direct appeal, we remanded the case for the trial court to consider the “distinctive attributes of youth,” as discussed in Miller, in resentencing the defendant. Id. at 1080. That decision did not extend the holding of Miller, and we have not held that a life sentence may never be imposed on a juvenile. Miller did not categorically preclude sentencing a juvenile to life without possibility of parole:

Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.... Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

132 S.Ct. at 2469. Miller found unconstitutional a sentencing scheme that precludes a trial court from considering the defendant’s youth in determining whether life without possibility of parole is appropriate. Here, Mason negotiated a plea to a lesser offense which did not mandate life without possibility for parole. Mason acknowledges in his filings that the trial court had discretion to impose a lesser sentence and opted against doing so. There is nothing in this record to suggest that the trial court was precluded from considering Mason’s youth when determining the sentence. Mason is not entitled to relief under Miller.

Mason’s filings also cite Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), but neither of these cases apply. Roper prohibits the death penalty for juveniles, and Graham applies to life without parole sentences for non-homicide offenses.

Affirmed.

TAYLOR, GERBER and CONNER, JJ., concur.

      . Mason committed his offenses after enactment of the sentencing guidelines which abolished parole for noncapital felonies. See § 921.001(10), Fla. Stat. (1983) ("The provisions of chapter 947 [parole] shall not be applied to such person”); Stewart v. State, 549 So.2d 171, 175-76 (Fla.1989). Mason appears ineligible for parole. § 775.084(4)(e), Fla. Stat. (1989) (providing that the provisions of chapter 947 shall not be applied to a defendant sentenced as a habitual violent felony offender).


text:
    Linda ZIMMERMAN, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee.
    No. 4D12-2190.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Linda Zimmerman, Lake Worth, pro se.
    Shayna A. Freyman, Thomas H. Loffre-do, and Jeffrey T. Kuntz of Gray Robinson, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Linda Zimmerman appeals a final judgment of foreclosure entered in favor of JP Morgan Chase Bank (“Chase”). Appellant raises multiple issues on appeal. We affirm on all except appellant’s argument that Chase failed to establish that it had standing to bring the foreclosure action. On this point Chase rightly concedes error. Standing to foreclose is a “crucial element” in any mortgage foreclosure proceeding and must be established at the inception of the lawsuit. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). Chase attached to the complaint a photocopy of appellant’s promissory note and mortgage listing Washington Mutual Bank, FA, as the lender. Over one year later, in support of its motion for summary judgment, Chase filed the original note containing an undated endorsement in blank, but failed to file any evidence establishing that Chase obtained possession of the endorsed note prior to filing the complaint.

Because Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed, a material issue of genuine fact exists as to whether Chase had standing at the time the lawsuit was filed, thereby precluding entry of summary judgment. See id.; Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 254 (Fla. 2d DCA 2012). We therefore reverse the final judgment of foreclosure. On remand, Chase must show that it was the holder of the endorsed note on the date the complaint was filed. By contrast, if the evidence shows that the note was endorsed in blank after the lawsuit was filed or that Chase was not the holder of the note on that date, then Chase had no standing at the time the complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint. See McLean, 79 So.3d at 175; Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990).

Reversed and remanded.

DAMÓORGIAN, C.J., GERBER and LEVINE, JJ., concur.


text:
    Lisa FEINTUCH and Ira Feintuch, Appellants, v. US BANK NATIONAL ASSOCIATION, As Trustee for CSFB ARMT 2006-2, Appellee.
    No. 4D12-428.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Rehearing Denied March 10, 2014.
    Jason B. Pear and Michael I. Bernstein of The Bernstein Law Firm, Miami Beach, for appellants.
    Donna L. Eng, Michael K. Winston and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

STEVENSON, CIKLIN and KLIÑGENSMITH, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    A.M.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-653.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Rehearing Denied March 24, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

A.M.R., a juvenile, challenges his adjudications of delinquency for three counts of violation of probation in three separate cases (case numbers 10-445, 11-174, and 11-388) and for new law violations in case numbers 11-470 (one count of assault) and 11-483 (one count of battery on an educational employee, one count of disorderly conduct, and one count of disruption of an educational institute). A.M.R. raises several arguments on appeal but we find merit only in A.M.R.’s contention that the trial court erred in failing to amend the disposition orders to specify the maximum penalties for the offenses, to reflect the amount of time served in secure detention prior to disposition, and to reflect the correct statute for his violation of probation charges. Thus, we affirm A.M.R.’s adjudications of delinquency, but we reverse and remand for the correction of his disposition orders.

On January 12, 2012, the trial court adjudicated A.M.R. delinquent and entered a separate disposition order for each charge in each case, committing him to a level eight, high-risk residential program. The disposition orders entered in case numbers 10-445, 11-174, and 11-388 referenced the adult violation of probation statute, section 948.06, Florida Statutes (2011), instead of the juvenile violation of probation statute, section 985.439, Florida Statutes (2011). The orders granted A.M.R. credit for time served in a secure detention facility prior to adjudication, but did not specify the amount of days credit A.M.R. was entitled to. Additionally, the orders committed A.M.R. for an indeterminate period “but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above.” A.M.R. then filed a Motion to Correct Disposition Errors, which the trial court denied. We hold that this was error as the orders contain several defects.

Disposition orders are governed by Florida Rule of Juvenile Procedure 8.115. Subsection (d)(2) provides that a disposition order shall “state the disposition of each count, specifying the charge title, degree of offense, and maximum penalty defined by statute and specifying the amount of time served in secure detention before disposition.” Fla. R. Juv. P. 8.115(d)(2).

This Court has previously held that under Rule 8.115, it is not enough for a disposition order to merely reference the maximum statutory sentence for an offense without specifying what the maximum sentence actually is. J.B. v. State, 829 So.2d 376, 378 (Fla. 4th DCA 2002) (holding that language in a disposition order stating that a juvenile’s placement was “ ‘for an indeterminate period, but no longer than the maximum sentence allowable by law or the twenty first (21st) birthday’ ” did not sufficiently state the maximum penalty for the charged offense). Thus, as each disposition order in the instant case only referenced the statutory maximum for the charged offense without specifying what the maximum actually was, the orders do not comply with Rule 8.115(d)(2) and must be corrected.

Additionally, Rule 8.115(d)(2) requires that the court specify “the amount of time served in secure detention before disposition.” As A.M.R.’s disposition orders did not specify the number of dáys A.M.R. served in secure detention before disposition, they must be corrected to do so on remand. D.B. v. State, 114 So.3d 1121, 1122 (Fla. 2d DCA 2013) (holding that Florida Rule of Juvenile Procedure 8.115(d)(2) requires that a disposition orders specify the amount of time spent in secure detention prior to disposition).

Lastly, as urged by A.M.R., the orders in case numbers 10-445, 11-174, and 11-388 must be corrected to reflect that A.M.R. was charged under the juvenile violation of probation statute instead of the adult statute.

Affirmed in Part, Reversed in Part and Remanded to Correct Disposition Orders.

GERBER and LEVINE, JJ., concur.


text:
    Mikel ANDERSON, Appellant, v. WACHOVIA MORTGAGE CORPORATION; John W. Chilton, Heather Halladay; Any and All Unknown Parties Claiming By Through, Under and Against the Herein Named Individual Defendant(s) Who Are Not Known To Be Dead Or Alive, Whether Said Unknown Parties May Claim An Interest As Spouses, Heirs, Devisees, Grantees, Or Other Claimants; Wachovia Bank, National Association; Ave. Electronics, Inc.; Tenant # 1, Tenant # 2, Tenant #3, and Tenant #4, the names being fictitious to account for parties in possession, Appellees.
    No. 4D13-1895.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Rehearing Denied March 17, 2014.
    Jerome R. Schechter of Jerome R. Schechter, P.A., Fort Lauderdale, for appellant.
    Christian J. Gendreau of Storey Law Group, P.A., Orlando, for appellee Christi-ana Trust, a Division of Wilmington Savings Fund Society, FSB, as trustee for Stanwich Mortgage Loan Trust, Series 2013-2.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

STEVENSON, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Darryle K. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2977.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.

      James Regan of James Regan Attorney-at-Law, Fort Pierce, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice for appellant to raise the alleged exception to the time limitation in the trial court pursuant to Florida Rule of Criminal Procedure 3.850(b). See Steele v. Kehoe, 747 So.2d 931 (Fla.1999).

Affirmed.

DAMOORGIAN, C.J., CONNER and KLINGENSMITH, JJ., concur.


text:
    Gina Marie HARDISON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-3094, 4D13-3095, 4D13-3096.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, GERBER and CONNER, JJ., concur.


text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Fred PHILLIPS and Carol Phillips, Appellees.
    No. 5D13-583.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.
    Rehearing Denied March 12, 2014.

      Scot E. Samis, of .Traub Lieberman Straus & Shrewsberry LLP, St. Peters-burg, for Appellant.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, and K.C. Williams, III, of Williams Law Association, P.A., Tampa, for Appellees.
   ORFINGER, J.

State Farm Florida Insurance Company appeals the trial court’s order requiring it to pay replacement costs for subsurface sinkhole repairs before its insureds, Fred and Carol Phillips, contracted for the necessary repairs. We reverse.

The facts are not in dispute. In July 2010, State Farm issued the Phillipses a homeowner’s insurance policy that contained a general loss payment clause as well as a separate sinkhole and catastrophic ground cover collapse coverage clause. The general loss payment clause reads, in pertinent part:

8. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:
a. 20 days after we receive proof of loss and reach agreement with you; or
b. 60 days after we receive your proof of loss and:
(1) there is an entry of a final judgment; or
(2) there is a filing of an appraisal award with us.

The sinkhole and catastrophic ground" cover collapse coverage clause included a loss settlement provision, which reads, in pertinent part:

SECTION 1 — LOSS SETTLEMENT The following is added:
COVERAGE A — DWELLING and COVERAGE B — PERSONAL PROPERTY

If a covered loss resulting from a sinkhole is verified and the dwelling or personal property is Insured on the basis of replacement cost:

1. we may limit our payment to the actual cash value of the sinkhole loss ... until you enter into a contract for the performance of building stabilization or foundation repairs. After you enter into a contract, we will pay the amounts necessary to begin and perform such repairs as the work is performed and as expenses are incurred. We may not require you to advance payment for such repairs....

In February 2011, a sinkhole damaged the Phillipses’ home. Following a dispute over the amount that State Farm owed, the Phillipses sued to compel an appraisal. The ensuing appraisal established the amount of the loss, including amounts for building stabilization and foundation repairs. The Phillipses moved for judicial confirmation of the appraisal award. State Farm responded that the sinkhole loss settlement clause and section 627.707(5)(b), Florida Statutes (2010), on which that clause was modeled, authorized it to withhold partial payment for subsurface repairs until the Phillipses had contracted for those repairs. The trial court disagreed with State Farm and ruled that the statute and the sinkhole loss settlement clause in the policy were permissive, and did not allow State Farm to withhold payment for the replacement costs for subsurface repairs. State Farm appeals that order.

We review the trial court’s interpretation of an insurance contract and statutes de novo. E.g., Kingsway Amigo Ins. Co. v. Ocean Health, 63 So.3d 63, 66 (Fla. 4th DCA 2011); Biltmore Constr. Co. v. Owners Ins. Co., 842 So.2d 947, 949 (Fla. 2d DCA 2003). Legislative intent is the polestar of statutory interpretation, but when a statute is clear or unambiguous, the reviewing court should not resort to the rules of statutory instruction. Instead, the reviewing court should give effect to the statute’s express terms, and its reasonable or obvious implications. E.g., Kingsway, 63 So.3d at 66-67. The same rules apply to the interpretation of insurance policies. See, e.g., Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729, 733 (Fla. 4th DCA 2006). The intent of the parties governs, but “[ejourts should resort to complex rules of construction to determine coverage or the applicability of exclusions only when the language used in the policy is ambiguous or otherwise susceptible of more than one meaning. Absent such factors courts should apply the plain meaning of words and phrases used in a policy of insurance.” Arias v. Affirmative Ins. Co., 944 So.2d 1195, 1197 (Fla. 4th DCA 2006) (quoting Se. Fire Ins. Co. v. Lehman, 443 So.2d 408, 408-09 (Fla. 4th DCA 1984)). “If possible, conflicting provisions of a contract are to be read in such a way as to give a reasonable interpretation and effect to all provisions.” Beach Cars, 929 So.2d at 738; see also U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007) (requiring courts to endeavor to give effect to every provision). Specific provisions of a contract control over general conditions. Underwriters of Lloyds of London v. Cape Publ’ns, Inc., 63 So.3d 892, 896 (Fla. 5th DCA 2011) (citing Colonial Bank, N.A. v. Taylor Morrison Servs., Inc., 10 So.3d 653, 655 (Fla. 5th DCA 2009)). This is equally true with regard to insurance contracts. See Herring v. Horace Mann Ins. Co., 795 So.2d 209, 212 (Fla. 4th DCA 2001) (holding, when provisions of insurance policy conflict, “[w]e recognize the clear rule of construction that a specific provision in a policy governs over a general provision”).

In ordering State Farm to pay for the replacement costs for subsurface repairs, the trial court relied on our holding in State Farm Florida Insurance Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009). After a sinkhole damaged the Nicholses’ home, they asserted a claim against State Farm, their homeowner’s insurance company. Following an appraisal, State Farm refused to pay the entire amount designated as subsurface damages, contending, as they do here, that the entire amount was not due until the Nicholses entered into a contract for those repairs. The Nicholses’ policy contained a general loss payment clause identical to the one found here. However, their policy did not incorporate the separate sinkhole loss settlement clause authorized by section 627.507(5)(b), and found in the Phillipses’ policy. Finding the statute to be permissive, we held that State Farm could not take advantage of the alternate payment methodology that the statute allowed because the policy did not incorporate the statutory payment method. Nichols, 21 So.3d at 905. Our holding in Nichols is consistent with Florida case law interpreting other statutes which permit an insurer to limit payment if the insurance policy clearly and unambiguously elects an alternative statutory payment method. See, e.g., Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., — So.3d -, -, 2013 WL 3332385, 38 Fla. L. Weekly S517, S517, S521 (Fla. July 3, 2013); Kingsway, 63 So.3d at 67 (citing Maryland Cas. Co. v. Murphy, 342 So.2d 1051, 1052 (Fla. 3d DCA 1977)); see also Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55, 57 (Fla. 3d DCA 2011) (citing Kingsway, 63 So.3d at 67-68).

In the instant case, section 627.707(5)(b) gave State Farm the authority to withhold payment for the replacement costs of the necessary subsurface repairs until the Phillipses contracted for those repairs. State Farm incorporated the statute’s language into the policy, which distinguishes this case from Nichols, and allows State Farm to exercise the holdback authorized by the statute. See Geico Gen. Ins. Co., 38 Fla. L. Weekly at S521, — So.3d at-(requiring election in policy of statutorily authorized payment limit); Kingsway, 63 So.3d at 67 (same). The policy is not ambiguous. To construe the policy otherwise would render the sinkhole loss settlement provision meaningless.

For these reasons, we reverse the trial court’s judgment to the extent that it required State Farm to pay the replacement cost for stabilization and foundation repairs before the Phillipses entered into a contract for those repairs.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . Section 627.707(5)(b), Florida Statutes (2010), reads, in pertinent part:
      The insurer may limit its payment to the actual cash value of the sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs. After the policyholder enters into the contract, the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred. The insurer may not require the policyholder to advance payment for such repairs.
      This statute has since been reorganized and reworded. See § 627.707(5)(a) & (c), Fla. Stat. (2013).


text:
    Felix N. ACHOLONU, M.D., and North Florida Obstetrical & Gynocological Associates, P.A., Petitioners, v. Heike HOBBS and Maurice Hobbs, Respondents.
    No. 1D14-0236.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Rehearing Denied April 1, 2014.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Petitioners.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits. See Hedrick v. State, 6 So.3d 688, 693 (Fla. 4th DCA 2009) (holding that a motion to disqualify is not deemed automatically granted by operation of the rule when the movant has failed to serve the judge as required by rule 2.330(c)).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Pierre MICHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-338.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.
    Rehearing Denied April 11, 2014.
    Pierre Michel, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal stems from the trial court’s summary denial of appellant’s rule 3.850 motion for post-conviction relief. We reverse on two of appellant’s six points and remand for further proceedings.

Appellant pleaded guilty to trafficking in cocaine and one count of conspiracy to traffic in cocaine. He entered into a negotiated plea to concurrent eight-year prison terms.

Through the first and sixth points of his motion, appellant argues that he received ineffective assistance of counsel due to counsel’s failure to file a motion to suppress statements he made after receiving inadequate Miranda warnings, and failure to inform him of a possible entrapment defense. Appellant alleges that if properly advised of these challenges and defenses, he would have rejected the plea and proceeded to trial.

Both of these claims are facially sufficient as alleged and not waived by the plea. See Brown v. State, 967 So.2d 440, 443 (Fla. 4th DCA 2007) (citing Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004)); see also Velazquez v. State, 973 So.2d 1206, 1207 (Fla. 2d DCA 2008). Neither is refuted by the record furnished. See generally Surinach v. State, 111 So.3d 186 (Fla. 4th DCA 2013); Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006) (en banc).

We reverse the summary denial of claims one and six and remand with directions for the trial court to attach portions of the record that conclusively refute appellant’s claims or, if such documents are not available, to conduct an evidentiary hearing to evaluate the “totality of the circumstances” as outlined by the Florida Supreme Court. See Griffin v. State, 114 So.3d 890, 899-903 (Fla.2013); Grosvenor, 874 So.2d at 1181-82. As to the remaining claims, we affirm.

DAMOORGIAN, C.J., GROSS and LEVINE, JJ., concur.

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


text:
    David Jahquan ALEXIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-999.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Rivera v. State, 34 So.3d 207, 209 (Fla. 2d DCA 2010).

SILBERMAN, VILLANTI, and SLEET, JJ., Concur.


text:
    John BARTLEY and Carol Bartley, Appellants, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
    No. 3D13-2434.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.

      Edward L. Acle, for appellants.
    Gaebe, Mullen, Antonelli & DiMatteo and Elaine D. Walter and Christienne H. Sherouse and Brian W. Kelley, for appel-lee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc., 95 So.Sd 290 (Fla. 3d DCA 2012).