author: KHOUZAM, Judge.

text:
    Shauna Rae SMITH, Appellant, v. Fernando LLAMAS, Appellee.
    No. 2D11-5540.
    District Court of Appeal of Florida, Second District.
    March 27, 2013.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellant.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Jason D. Weisser of Schuler, Halvorson, Weisser & Zoeller, P.A., West Palm Beach, for Appellee.
   KHOUZAM, Judge.

Shauna Rae Smith appeals an order granting Fernando Llamas’s motion for new trial in this automobile accident case. Because the jury’s verdict was not against the manifest weight of the evidence, we reverse and remand for the trial court to reinstate the verdict. We affirm as to the remaining issues without comment.

This ease arises from an automobile accident that occurred on the evening of April 25, 2008. Llamas was travelling westbound and Smith eastbound on White Boulevard, a two-lane road in Collier County. Smith was attempting to make a left turn when their vehicles collided.

Llamas filed a complaint against Smith, claiming that Smith’s negligence caused him to sustain personal injuries to his neck and knee in the accident. Smith denied the allegations and raised comparative negligence as an affirmative defense. A jury trial was held. The jury found Smith solely hable for the damages to Llamas and awarded Llamas $37,000 for past medical expenses. However, the jury found that Llamas’s injuries were not permanent and awarded zero damages for future care. The jury also awarded zero damages for pain and suffering. The verdict did not apportion damages between Llamas’s neck and knee injuries.

Llamas filed a motion for a new trial on damages, arguing that the verdict was contrary to the manifest weight of the evidence. He claimed that the substantially undisputed evidence presented at trial established that he suffered permanent injuries to his knee and neck as a result of the accident. Based on this evidence, he contended, it was unreasonable for the jury to fail to find that his injuries were permanent and accordingly award damages for future medical expenses as well as for pain and suffering. Following a hearing, the trial court granted Llamas’s motion and ordered a new trial. Smith timely appealed.

We review the trial court’s order for an abuse of discretion. Bulkmatic Transp. Co. v. Taylor, 860 So.2d 436, 444 (Fla. 1st DCA 2003). “For a verdict to be against the manifest weight of the evidence, so as to warrant a new trial, the evidence must be clear, obvious, and indisputable; where there is conflicting evidence, the weight to be given that evidence is within the province of the jury.” Harlan Bakeries, Inc. v. Snow, 884 So.2d 336, 340 (Fla. 2d DCA 2004). Where conflicting evidence has been presented, a trial court may not act as a “seventh juror with veto power” by deciding that the verdict was against the manifest weight of the evidence and granting a new trial on that basis. McNair v. Davis, 518 So.2d 416, 418 (Fla. 2d DCA 1988). Here, conflicting evidence was presented on the question of whether Llamas sustained permanent injuries as a result of the accident. So this question was for the jury — not the judge— to resolve.

I. THE NECK INJURY

As to Llamas’s neck injury, the parties presented conflicting expert testimony. Dr. Gomez, a neurosurgeon who treated Llamas for his neck injury, testified that the injury caused by the accident was permanent. Dr. Gomez explained that Llamas underwent successful surgery for the injury, but it was not anticipated that the surgery would eliminate his neck pain entirely. Indeed, Llamas continued to experience pain and would experience pain for the rest of his life. Orthopedic surgeon Dr. Lins, on the other hand, testified that he examined Llamas and believed that he did not sustain a permanent neck injury as a result of the accident. Dr. Lins did not necessarily take issue with Dr. Gomez’s decision that surgery was an option for Llamas, but he did not believe that the injury was related to the accident. He opined that conservative treatment would have been appropriate to treat the neck injury caused by the accident.

II. THE KNEE INJURY

The parties also presented conflicting evidence on whether Llamas sustained a knee injury as a result of the accident. Though only one expert testified that Llamas had sustained a knee injury as a result of the accident, evidence was presented to rebut his testimony. The “jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony.” Wald v. Grainger, 64 So.3d 1201, 1205 (Fla.2011). The type of evidence that would create a reasonable basis for a jury to reject an expert’s testimony includes

conflicting medical evidence, evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiffs conflicting testimony or self-contradictory statements regarding the injury.

Id. at 1206.

In this case, Dr. Katzman — an orthopedic surgeon who had treated Llamas for his knee injury — opined that the injury was permanent and related to the automobile accident. But Dr. Katzman admitted that his opinion was partially based on Llamas’s stated history, and the record shows inconsistencies in Llamas’s story that would call the accuracy of that history into doubt. Dr. Katzman testified that Llamas told him that he had been thrown around inside his vehicle during the accident and that he had hit a window as well as a door. Llamas also did not report to Dr. Lins or Dr. Gillis that he lost consciousness during the accident. But Llamas told Dr. Gomez that he did lose consciousness. And Llamas testified at trial that he did not remember striking any part of his body on any part of the vehicle during the accident because he was unconscious at the time. When asked whether he told any of his doctors that he struck any part of his body on any part of the car, he stated that he did not remember.

Dr. Katzman also testified that Llamas claimed he had immediate pain in his knee after the accident, that he had constant pain in his knee during the eight months since the accident, and that he had trouble walking. Dr. Katzman indicated that the type of injury that Llamas sustained would have quickly caused swelling. Llamas testified that both his knees were in pain and bleeding immediately after the accident, but he admitted that he did not seek medical care until days later and that he went to a chiropractor. An eye witness testified that he did not observe any injuries at the scene of the accident. During Llamas’s trial testimony, one juror submitted the following question: “Why didn’t you go to the emergency room on Saturday, instead of the chiropractor?” Llamas responded, “I don’t know. I don’t know. Something that happens and it’s hard for you to analyze so quickly.”

Llamas also testified that he would have told all of his doctors if he was experiencing any pain, but his medical records showed that he did not consistently report knee pain to his doctors. For example, Dr. Lins testified that the records from when Llamas first sought medical attention four days after the accident indicated that Llamas did not report knee pain at that time. And Dr. Gomez testified that Llamas did not have problems with his gait or his ability to walk.

Llamas’s testimony was also inconsistent regarding how the knee injury affected his work. He testified that he worked three jobs: he ran a landscaping company; worked as a dishwasher/delivery person for a local restaurant; and set up staging, lighting, and audio equipment for bands. He indicated that he had trouble working for some time after the accident but admitted that he was currently able to work. He described his work for bands as “physically demanding” and indicated that as a landscaper he mowed lawns and cleared garbage. Llamas testified that he did not have as many landscaping clients since the accident. However, when confronted with his own prior statements that the number of clients had actually increased since the accident, he responded to this discrepancy by saying, “I don’t remember.”

Dr. Katzman indicated that everyday events — such as twisting, jumping, or falling — could have caused the injury to Llamas’s knee. Dr. Murtagh, a neuroradiologist, examined the MRI of Llamas’s knee, and testified that the injury could have been caused by either degenerative changes or a specific trauma. He did not state an opinion on whether the surgery was necessary or the injury permanent.

III. CONCLUSION

We conclude that the trial court abused its discretion by granting a new trial in this case. There was conflicting evidence on whether Llamas sustained a permanent neck injury in the accident. And the jury could have concluded that Llamas did not sustain any knee injury as a result of the accident in light of evidence that he provided an inaccurate medical history and did not seek treatment for a knee injury until eight months after the accident. Accordingly, we reverse and remand for the trial court to reinstate the verdict.

Reversed and remanded with instructions.

BLACK, J., and MAKAR, SCOTT, Associate Judge, Concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alejandro RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3502.
    District Court of Appeal of Florida, Second District.
    March 27, 2013.

      Destiny R. Smith of Law Offices of Vir-lenys H. Palma, P.A., Fort Myers, for Appellant.
   KHOUZAM, Judge.

Alejandro Rodriguez challenges the order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order and remand for an evidentiary hearing.

In November 2011, Rodriguez entered a negotiated plea of no contest to possession of cocaine in exchange for a sentence of 40 days in jail. Rodriguez sought to withdraw his plea on the ground that it was involuntarily entered because his trial counsel did not advise him as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that a conviction for possession of cocaine would subject him to presumptively mandatory deportation. He further alleged that there is a reasonable probability he would not have pleaded but instead would have proceeded to trial had he been aware of the deportation consequences of the plea. Rodriguez presented a facially sufficient claim that his plea was involuntarily entered based on counsel’s failure to properly advise him of the clear deportation consequences of the plea. See Hernandez v. State, — So.3d - (Fla.2012).

The transcript of the plea hearing indicates that the trial court pursuant to Florida Rule of Criminal Procedure 3.172(c)(8) advised Rodriguez that the plea “may” subject him to deportation. In denying the motion, the postconviction court found that this was a sufficient warning of the deportation consequences of the plea. However, an admonition that a plea to a particular offense may subject a defendant to deportation is not sufficient to alert him that the conviction would result in presumptively mandatory deportation, and it therefore does not cure the prejudice resulting from counsel’s failure to so advise. See Hernandez, — So.3d at -; O’Neill v. State, 107 So.3d 1133, 1135 (Fla. 2d DCA 2012). We therefore reverse and remand for an evidentiary hearing on Rodriguez’s claim. See O’Neill, 107 So.3d at 1135. Because it appears that deportation proceedings have already begun, the postcon-viction court on remand shall expedite its consideration of Rodriguez’s claim.

Reversed and remanded.

VILLANTI and SLEET, JJ., Concur.

      . Padilla was decided prior to Rodriguez entering his plea, and his claim is therefore not affected by the issue of retroactive application.

      . See 8 U.S.C. § 1227(a)(2)(B)(i); Hernandez v. State, - So.3d - (Fla.2012) (discussing the applicability of 8 U.S.C. § 1227(a)(2)(B)(i)).

      . At the time of the issuance of the postcon-viction court’s order, neither this court nor the supreme court had ruled on this issue, and the postconviction court relied on cases from the Fourth and Fifth District Courts of Appeal.


author: VILLANTI, Judge.

text:
    Andre Cornelius HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-475.
    District Court of Appeal of Florida, Second District.
    March 27, 2013.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Andre Cornelius Holmes, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Andre Cornelius Holmes challenges the revocation of his probation for third-degree grand theft and the resulting sentence. We affirm the revocation and the sentence without further comment. However, we remand for correction of a scrivener’s error on Holmes’ scoresheet.

In a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), Holmes argued that his scoresheet was not properly calculated because it included twelve points for a “new felony conviction.” He points out that he did not have any new felony convictions at the time of sentencing and that the new substantive charges against him were dropped after he was sentenced on the revocation of probation. Therefore, he contends that he is entitled to be resen-tenced using a corrected scoresheet. However, while Holmes is correct that his scoresheet shows twelve points under the “Community Sanction” section for a new felony conviction, the error is a scrivener’s error rather than a substantive error.

Under the “Community Sanction” section of the Criminal Punishment Code scoresheet, a defendant may be assessed six points for each “community sanction violation,” which points are assessed for each violation of probation. See Jones v. State, 901 So.2d 255, 258 (Fla. 4th DCA 2005); Kelly v. State, 706 So.2d 396, 397 (Fla. 1st DCA 1998); see also Fla. R. Crim. P. 3.704(d)(16) (providing that community sanction points are assessed when a community sanction violation is before the court for sentencing). Here, the record shows that Holmes was before the court for his second violation of probation — the first having come in June 2010. Thus, the State properly scored twelve points under the “Community Sanction” section of Holmes’ scoresheet for these violations of probation. However, the scoresheet preparer incorrectly checked the box in the “Community Sanction” section for a new felony conviction, which also scores twelve points, rather than the box for a probation violation. Thus, while the points total for that section is correct, the incorrect reason for including those points is checked.

Since this scrivener’s error does not affect the total number of points assessed on the scoresheet, Holmes is not entitled to have his sentence reversed on this basis. However, to avoid questions in future proceedings, we remand for the scrivener’s error on the scoresheet to be corrected. Holmes need not be present when this correction is made.

Affirmed, but remanded with instructions.

LaROSE and CRENSHAW, JJ., Concur.


author: ROTHENBERG, J.

text:
    SO5 501, LLC, Appellant, v. METRO-DADE TITLE CO., Appellee.
    No. 3D12-2032.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.
    Fuerst Ittleman David and Joseph, P.L., and Allan A. Joseph and Michael B. Korn-hauser, for appellant.
    Klein Glasser Park Lowe & Pelstring, P.L., and Alex Diaz and Robert M. Klein, for appellee.

      Before CORTINAS, ROTHENBERG, and EMAS, JJ.
   ROTHENBERG, J.

S05 501, LLC (“the Buyer”) appeals from the trial court’s final order granting Metro-Dade Title Co.’s (“the Escrow Agent”) motion for judgment on the pleadings on the Buyer’s breach of fiduciary duty and gross negligence claims, which were premised on the allegation that the Escrow Agent wrongfully disbursed the Buyer’s escrowed deposit funds. We affirm.

The Buyer entered into a pre-con-struction purchase contract to purchase Unit 501 of the South of Fifth condominium in Miami Beach. Metro-Dade Title Co. was designated the escrow agent, and the escrow agreement was expressly incorporated into the purchase agreement. Paragraph 2(b) of the escrow agreement sets forth the procedure governing the disbursement of the Buyer’s deposit, stating:

Escrow Agent shall disburse the purchaser’s deposit(s), escrowed hereunder ... [t]o developer, within five (5) days after the receipt of Developer’s written certification that the purchaser’s contract has been terminated by reason of said purchaser’s failure to cure a default in performance of purchaser’s obligations thereunder.

(emphasis added). In paragraph 4, the parties limited the Escrow Agent’s responsibilities upon receiving such written certification in the following manner:

Escrow Agent may act in reliance upon any writing, instrument, or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statements or assertions contained in such writing or instrument and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instructions delivered to it, nor as to the identity, authority, or rights of any person executing the same. The duties of Escrow Agent shall be limited to the safekeeping of the deposits and the disbursement of same in accordance with the written instructions described above. Escrow Agent undertakes to perform only such duties as are expressly set forth hereto, and no implied duties or obligations shall be read into this Agreement against Escrow Agent.

Pursuant to the terms of the purchase agreement, the Buyer deposited $546,250 (10% of the purchase price) into escrow, and was required to deposit an additional 10% of the purchase price at a later date. The Buyer, however, never tendered the additional deposit. As a result, on February 10, 2009, the developer sent a letter to the Escrow Agent advising as follows:

The above-mentioned Purchase Agreement was formally declared in default on January 29, 2009. As pursuant to Paragraph 13 (Default), Buyer failed to make scheduled additional deposits and other payments and was given more than the required ten (10) days to correct same. Therefore, as pursuant to said Paragraph Seller is entitled to compensation for this damage, and thus is allowed to retain all of Buyer’s deposit.
Proper notice was given in accordance with Paragraph 21 (Notices); Buyer was notified in person, by phone, and in writing. Furthermore, we have complied with all conditions of the existing Escrow Agreement. Therefore, we have declared the above-mentioned contract null and void. As Escrow Agent, we are instructing you to ... transfer from the deposit of said Unit to 801 the amount of $250,000 so as to be able to fully reimburse the deposit of said Unit 301 to [b]uyer. The remaining balance in the amount of $296,250.00 shall be retained in escrow until further notice.

Based on these instructions, the Escrow Agent disbursed $250,000 of the Buyer’s escrowed deposit to the prospective purchaser of Unit 301, and continued to hold the balance of the Buyer’s deposit in escrow.

The Buyer alleges that it had an oral agreement with the developer whereby the developer waived the subsequent deposit. The Buyer ultimately filed a law suit against the Escrow Agent alleging claims of breach of fiduciary duty and gross negligence for failing to verify the representations made by the developer before complying with the written directives it received from the developer instructing it to disburse the Buyer’s deposit. On May 7, 2012, the Escrow Agent filed a motion for judgment on the pleadings, which the trial court granted. After the trial court entered final judgment in favor of the Escrow Agent, this appeal followed.

While “escrow holders have a fiduciary duty to exercise reasonable skill and ordinary diligence,” Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So.2d 1063, 1064 (Fla. 3d DCA 1993), “Florida law has established that parties may limit escrow agents’ responsibilities through contract.” Resolution Trust Corp. v. Broad & Cassel, P.A., 889 F.Supp. 475, 479 (M.D.Fla.1995); see also SMP, Ltd. v. Syprett, Meshad, Resnick & Lieb, P. A., 584 So.2d 1051, 1054 (Fla. 2d DCA 1991) (noting that “the language of the escrow agreement is the ‘primary consideration’ in determining the nature and extent of the agency” and that “[o]ther courts have also emphasized that the escrow agent is a special or limited agent with duties primarily established by the escrow agreement”).

For instance, in Resolution Trust Corporation, Broad & Cassel served as escrow agent for a land purchase and improvement transaction between Calusa Trace Development Corporation (“the seller”) and St. Joseph’s Health Care Center, Inc. (“the buyer”). Resolution Trust Corp., 889 F.Supp. at 476. The buyer placed $400,000 in escrow to be paid to the seller upon its completion of certain improvements to the subject property. Id. Under the escrow agreement, the parties strictly limited Broad & Cassel’s duties as escrow agent as follows:

The only duty of the Escrow Agent under the terms of the [agreement] shall be to pay the funds held in escrow ... as directed from time to time by [the b]uyer, to pay the costs of construction and installation of the improvements. The Escrow Agent shall disburse said funds only upon receipt of a written certification and direction from the [b]uyer ..., which shall specifically identify each person to whom a payment is to be made, the amount to be paid to each such payee, and the purpose for such payment. The Escrow Agent shall have the absolute right and shall be required to rely solely and entirely upon such Direction to Pay from the [b]uyer, and shall have neither the responsibility, nor the right to inquire into such Directions to Pay from the [b]uyer.
... All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for misdelivery to [the s]eller or [the b]uyer of monies subject to this escrow, unless such mis-delivery shall be due to willful breach of this agreement or gross negligence on the part of the Escrow Agent.

Id.

The seller later assigned its rights under the escrow agreement to HomeFed Bank to secure a loan, and the assignment was forwarded to and acknowledged by Alice White, an attorney at Broad & Cassel. Id. at 477. Thereafter, the seller’s representative sent a letter to the buyer’s counsel announcing that $800,000 worth of improvements had been completed on the parcel and requesting the release of $300,000 to the seller from the escrow fund. Id. The buyer’s counsel then sent a letter to Igal Knobler, another attorney at Broad & Cassel who had no knowledge of the assignment to HomeFed, directing the escrow agent to pay the seller $300,000 from the escrow fund. Id. Pursuant to these instructions, Knobler authorized the disbursement of $300,000 to the seller’s operating account. Id. The seller later defaulted on its loan, and Resolution Trust Corporation, as conservator for assignee HomeFed Bank, brought an action to recover the funds disbursed to the seller, asserting that Broad & Cassel violated its contractual and fiduciary duties. Id.

In entering summary judgment against HomeFed Bank, the federal district court reasoned as follows:

First, Broad & Cassel had very limited duties as an agent under the escrow agreement. Florida law has established that parties may limit escrow agents’ responsibilities through contract. Under Paragraph Four of the escrow agreement, the escrow agent did not have the responsibility nor the right to inquire into directions to pay made by St. Joseph’s. The parties to the escrow agreement therefore could not have relied on Broad & Cassel for independent investigation of whether any party was entitled to the escrow funds. Regardless of this limitation, [Resolution Trust Corporation] asserts that Broad & Cas-sel should have refused to adhere to instructions from St. Joseph’s. The escrow agreement prohibited such independence, and Broad & Cassel’s fiduciary duty cannot be interpreted so broadly as to contravene the agreement.

Id. at 479-80 (internal citations omitted).

The case presently before this Court is analogous to Resolution Trust Corporation. First, as in Resolution Trust Corporation, the Escrow Agent was contractually required to disburse the Buyer’s deposit to the developer. Specifically, the escrow agreement provides the “Escrow Agent shall disburse the purchaser’s deposits), escrowed hereunder ... [t]o developer, within five (5) days after the receipt of Developer’s written certification that the purchaser’s contract has been terminated by reason of said purchaser’s failure to cure a default in performance of purchaser’s obligations thereunder.” The pleadings reflect that this contractual obligation was triggered on February 10, 2009, when the developer sent a written certification, in the form of a letter, to the Escrow Agent advising that the developer declared the Seller in default, and the purchase agreement “null and void,” because the “Buyer failed to make scheduled additional deposits and other payments and was given more than the required (10) days to correct same.” Second, as in Resolution Trust Corporation, “[u]nder Paragraph Four of the escrow agreement, the escrow agent did not have the responsibility nor the right to inquire into directions to pay made by [the developer].” Id. More particularly, the parties in the instant case agreed that the:

Escrow Agent may act in reliance upon any writing, instrument, or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statements or assertions contained in such writing or instrument and may assume that any person purporting to given any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instructions delivered to it, nor as to the identity, authority, or rights of any person executing the same. The duties of the Escrow Agent shall be limited to the safekeeping of the deposits and the disbursement of same in accordance with the written instructions described above. Escrow Agent undertakes to perform only such duties as are expressly set forth hereto, and no implied duties or obligations shall be read into this Agreement against Escrow Agent.

Thus, as in Resolution Trust Corporation, “[t]he parties to the escrow agreement ... could not have relied on [the Escrow Agent] for independent investigation of whether any party was entitled to the escrow funds.... The escrow agreement prohibited such independence, and [the Escrow Agent’s] fiduciary duty cannot be interpreted so broadly as to contravene the agreement.” Id.

In sum, our review of the pleadings demonstrates that the Escrow Agent’s disbursement of the escrowed funds was contractually required by the escrow agreement, and that the Escrow Agent was expressly relieved from any duty or obligation to investigate the veracity of the developer’s disbursement instructions under these circumstances. Therefore, as a matter of law, the Escrow Agent could not have breached its fiduciary duty by, nor was it grossly negligent for, disbursing the funds in the manner instructed by the developer and required by the escrow agreement.

Affirmed.

      . We do not address the propriety of the Escrow Agent’s disbursement of the funds to the prospective purchaser of Unit 301 rather than to the developer. The Buyer in this case does not have standing to raise this challenge.


author: CORTINAS, J.

text:
    Celeste WIEDER, Appellant, v. KING COLE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D12-1717.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.

      Philip D. Parrish; Richard A. Bokor, Tampa, for appellant.
    Restani, Dittmar & Hauser and Helen Ann Hauser, Coral Gables, for appellee.
    Before CORTIÑAS, ROTHENBERG and EMAS, JJ.
   CORTINAS, J.

Celeste Wieder (“Plaintiff’) is a unit owner at the King Cole Condominium. Plaintiff alleges that one afternoon, when returning to her unit after walking her dog, her foot got caught on a portion of the carpet in her hallway which had buckled after being shampooed. She asserts that, as a result, she fell and injured her arm, hand, and neck. The record demonstrates that the Plaintiff as well as other unit owners had complained to the board of directors of the King Cole Condominium Association, Inc. (“Association”) about the buckling carpet. Apparently, the buckling was worse immediately after the carpet was cleaned and still wet. It is undisputed that the Association did nothing to remedy the situation.

Eventually, the Plaintiff filed suit against the Association, alleging, in pertinent part, that

The [Association] ... had the duty to maintain said hallways which here ingress and egress to the apartments and to the condominium lobby in a reasonably safe and serviceable condition for the use of persons lawfully being in and about the premises of said building and area.
The [Association], notwithstanding their duties as aforesaid, did not maintain the said premises in a reasonably safe and serviceable manner, but on the contrary, negligently and wrongfully permitted and allowed said hallways of the condominium to be in a defective condition and allowed said condition to become a hazard, danger, and a trap to persons lawfully using said stairs [sic]. In addition thereto, and in the alternative, said defective condition and hazardous carpeting were inherently dangerous in themselves and were a trap, hazard and a danger to persons lawfully using said hallways. [Association] failed to warn persons using said stairway [sic] of its inherently dangerous condition.

The Association filed a motion for summary judgment arguing that the condition of the hallway carpet was obvious and known to the Plaintiff. The trial court granted summary judgment and subsequently denied the Plaintiff’s motion for rehearing, finding that

[r]egrettably, [P]laintiff suffered an injury when she tripped on a wet carpet in a common area of her condominium unit, a condition she acknowledged was open, obvious and known to her since she had recently walked down the same exact area on her way to walk her dog. After much consideration, the Court denies the [P]laintiff s motion for rehearing.

In Kopf v. City of Miami Beach, 653 So.2d 1046 (Fla. 3d DCA 1995), we addressed a similar situation. In Kopf a plaintiff sued the City of Miami Beach after she tripped and fell over a portion of a Miami Beach sidewalk that was cracked and deteriorated. Id. The trial court granted summary judgment in favor of the landowner after apparently determining that the condition of damaged sidewalk “was so ‘open and obvious’ that liability was precluded as a matter of law.” Id. at 1046 n. 1. In that case, we found that the record “raise[d] issues of negligence, comparative negligence, and causation which may properly be resolved only by a jury.” Id. at 1046 (citing Williams v. Madden, 588 So.2d 41 (Fla. 1st DCA 1991)). We further noted that the “open and obvious” doctrine upon which the trial .court had relied had “previously been found applicable only to alleged defects of original design or construction which involve conditions which are said to be ‘so common and ordinarily innocuous.’ ” Kopf, 653 So.2d at 1046 n. 1 (quoting Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207, 1208 (Fla. 5th DCA 1990)). Reversing the summary judgment, we held that

[i]n a broken or deteriorated sidewalk (or floor) case ... in which, a priori, the landowner is negligent in failing to maintain the already installed surface of his property, it would be indeed incongruous-and certainly directly contrary to the comparative negligence doctrine-to insulate him from liability for an accident caused at least in part by that negligence merely because the defective condition was there to be seen.

Kopf, 653 So.2d at 1046.

In a perhaps more factually analogous case, Lotto v. Point East Two Condominium Corporation, Inc., 702 So.2d 1361 (Fla. 3d DCA 1997), we reversed a summary judgment in favor of a condominium association. There, a resident of the condominium tripped and fell over a section of an exterior sidewalk that was cracked and uneven. Id. at 1361. She sued the association “for negligence in failing to maintain the sidewalk in a reasonably safe condition, and for failure to warn her of the condition of the sidewalk.” Id. The plaintiff had admitted at deposition that she had walked over the stretch of sidewalk at issue numerous times before her accident. Id. Because the deteriorated condition of the sidewalk was obvious, we held that the association did not owe a duty to warn the plaintiff under the particular circumstances of that case. Id. at 1362. “However, we [did] not think that the obviousness of the condition relieved the condominium association of the duty to repair it.” Id. We reversed the summary judgment in favor of the association because “there remain[ed] a factual issue whether the association should anticipate that condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding that the condition was obvious, and would be harmed thereby.” Id. (emphasis added); see Hogan v. Chupka, 579 So.2d 395, 396 (Fla.1991) (“While the open and obvious nature of a hazard may discharge a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition.”).

Here, the Plaintiff testified at her deposition that she had seen and avoided the buckled carpet several times. However, her testimony also demonstrated that multiple condominium residents had complained to the Association about the problem with the carpet, and the Association had taken no action. We acknowledge that, given the Plaintiffs familiarity with, and knowledge of, the carpet’s condition, “her decision to proceed to encounter the risk does, of course, raise the question whether she was comparatively negligent.” Lotto, 702 So.2d at 1362. Nonetheless, the underlying case involves a hallway and carpet on the Association’s property and provided for use by the condominium residents. As in Lotto, there remains a factual issue in this case as to whether, notwithstanding the obvious nature of the buckling, the Association could anticipate the continued traversing of the hallway and buckled carpet by condominium residents and that they could be harmed by so doing. See Lotto, 702 So.2d at 1362 (citing Hogan, 579 So.2d at 396).

The Association relies on several cases involving changes in floor levels in support of its argument that there is no question of fact as to whether the carpet was a dangerous condition requiring repair or correction by the Association. See Casby v. Flint, 520 So.2d 281, 282 (Fla.1988); Bowles v. Elkes Pontiac Co., 63 So.2d 769 (Fla.1953); Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992) (holding that the difference in elevation between a sidewalk curb and a street did not constitute a dangerous condition). We find these cases to be wholly distinguishable. In the case before us, it is undisputed that the Association was aware that the carpet buckled whenever it was cleaned and that several condominium residents had complained of the condition. It is equally undisputed that the Association took no steps to remedy the situation. This is not a case where a common design element such as a lowered step or the difference in elevation between a sidewalk and a street caused a plaintiff to fall. Here, the Plaintiff alleges that under certain conditions, the otherwise innocuous carpet would buckle and create a dangerous condition. Whether the Association should have anticipated an unreasonable risk of harm to the residents requiring it to take action is a question of fact for the jury. Accordingly, we reverse the final summary judgment in favor of the Association.

Reversed and remanded.


author: SUAREZ, J.

text:
    William OEHLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1729.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   SUAREZ, J.

William Joseph Oehling appeals from a final judgment of conviction. We affirm in part and reverse in part.

Oehling was charged with possession of a firearm by a convicted felon and possession of a controlled substance (one Xanax pill). The case had been pending for several months when, two days prior to trial, the State notified the defense that witness Natalie Morgan would testify as a surrogate expert witness to an unavailable analyst’s report comparing the defendant’s DNA to that swabbed from the firearm. Furthermore, on the morning of trial, the State added chemist Matthew Putterbaugh as a “B” witness to testify to the lab report identifying the contraband as alprazolam (Xanax). All parties agreed that the late disclosure of these two witnesses was a discovery violation. The trial court then conducted a Richardson hearing to inquire about the circumstances surrounding the State’s discovery violation and examine the possible prejudice to the defendant.

At the Richardson hearing, the defense objected to Morgan’s testimony concerning the DNA report based on general hearsay grounds. The trial court determined that the prejudice would be minimal and allowed Morgan to testify to the DNA results obtained from the firearm swabs. The court also allowed the chemist, Putter-baugh, to testify as a non-deposable “B” witness to the chemical identification, because the defense was on notice that the identification of the confiscated substance was at issue and prejudice to the defendant was slight.

Immediately prior to trial, the defense moved to sever the firearm charge from the drug charge based on the introduction of the two late-added State witnesses. The trial court denied the motion, finding that the defense had filed a speedy trial demand as to both charges and could not move to sever on the eve of trial. Oehling stipulated to his prior felony offenses and went to trial on the unsevered charges. The jury was thus apprised of Oehling’s prior felony convictions and convicted him as charged.

Oehling argues that the trial court violated his Sixth Amendment right to confront the analyst who originally performed the DNA test on the firearm when it allowed the analyst’s supervisor, Morgan, to testify as a surrogate expert witness. We conclude, however, that the pretrial objection to the admission of Morgan’s testimony made during the Richardson hearing was not expressly based on the Confrontation Clause under Crawford, but rather on general hearsay grounds. This was insufficient to preserve a Confrontation Clause issue for appeal. To preserve a Crawford objection to hearsay as violative of the Confrontation Clause, “a specific objection is necessary.” Williams v. State, 967 So.2d 735, 747 n. 11 (Fla.2007) (citing Schoenwetter v. State, 931 So.2d 857, 871 (Fla.2006)). See Delhall v. State, 95 So.3d 134 (Fla.2012). In Delhall, the court held that a single objection based on general hearsay grounds was insufficient to preserve a confrontation issue. Here, Oehling failed to make any specific and express Confrontation Clause objection to Morgan’s testimony or surrogacy either by pretrial motion or contemporaneous objection at trial. The defendant must object specifically on the ground that admission of the testimony will violate the defendant’s right to confront witnesses; it is not sufficient to object to the statements as inadmissible hearsay. Id.

The appellant urges us to consider that Oehling did raise a confrontation objection at trial when the defense sought, on cross-examination, to ask Morgan if she knew whether the original analyst accepted any money for his deposition. Oehling asks this Court to extrapolate that particular “confrontation” objection to the entire issue of Morgan’s substitution as an expert witness. We follow Delhall in concluding that, because the defense did not make a specific, express constitutional Confrontation Clause objection to Morgan’s substitution for the unavailable analyst, the issue was not preserved for appeal. We therefore affirm Oehling’s conviction for possession of a firearm by a convicted felon.

We agree with the appellant, however, that the trial court abused its discretion by denying his motion to sever the firearms possession charge from the possession of a controlled substance. Severance should be granted liberally when prejudice is likely to follow from refusing the severance. State v. Vazquez, 419 So.2d 1088, 1090 (Fla.1982) (“[T]he better practice would be to sever a count which requires proof of a prior conviction in order not to deprive a defendant of the presumption of innocence.”); accord Sosa v. State, 639 So.2d 173, 174 (Fla. 3d DCA 1994); Maycock v. State, 398 So.2d 495 (Fla. 3d DCA 1981). Although both of Oehling’s offenses are part of the same criminal episode, the charge of possession of a controlled substance does not require proof of prior convictions. The prejudicial effect of this failure to sever requires reversal. Accordingly, the defendant’s conviction for possession of a controlled substance is reversed and the cause remanded.

Affirmed in part, reversed and remanded in part.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . The report of the DNA analysis was not admitted into evidence.

      . The analyst who performed the actual DNA testing was unavailable because he had been deployed overseas.

        . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).


author: PALMER, J.

text:
    Justin David MANN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-330.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2013.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Justin Mann (defendant) appeals his sentence which was entered by the trial court after he was found guilty of violating his probation. Determining that the trial court erred in failing to award the defendant prison credit, we reverse.

The defendant entered a negotiated plea to the charges of dealing in stolen property and false verification of ownership. The court orally sentenced the defendant as follows:

You are hereby sentenced to the Department of Corrections for a period of 18 months to be given credit for [Jail] time served. That will be concurrent for both charges. Immediately following that, following your release you’ll be placed on standard probation for a term of 12 months. In addition, there will be a two year suspended sentence, which will be during the probationary period. So it’s 18 months, 12 months probation, within that 12 months probation is a two year suspended sentence back at DOC. You can avoid that by complying with the terms of your probation. But I will say that any substantial willful violation, failing to report, positive drug test, even if it’s marijuana or some lower level of the-or at least considered lower level drug positive test that’s enough to impose a sentence. And it will be imposed, not just enough, it will be imposed, okay.

The defendant’s written sentencing order states that the defendant was sentenced to concurrent terms of 18 months’ imprisonment “followed by a period of 12 months on probation”. The court entered a separate written probation order which described the defendant’s sentence in two different areas. At the top of the order, the sentence is summarized as: “EIGHTEEN (18) MONTHS DEPARTMENT OF CORRECTIONS FOLLOWED BY TWELVE (12) MONTHS PROBATION; TWO (2) YEARS DEPARTMENT OF CORRECTIONS (SUSPENDED).” At the bottom of the order, the sentence is summarized as follows: “[C]ommitted to the Department of Corrections for a term of 18 months Department of Corrections (each count/concurrent) with credit for time served jail time. After you have served 18 Months (each count/concurrent) of the term, you shall be placed under the supervision for a period of Twelve (12) months (2 years Department of Corrections SUSPENDED) under the direction of the Department of Corrections, subject to Florida law.” (Emphasis in original).

The State subsequently filed a petition charging the defendant with violating his probation. The defendant entered a plea of nolo contendere to the charge, but raised an issue regarding the amount of prison credit he was entitled to receive. The court revoked the defendant’s probation and sentenced him to a term of two years’ incarceration, with no credit for the 18 months he previously served.

The defendant maintains that he is entitled to receive credit for the 18 months he has already served in prison on these charges because, as pronounced, his original sentence was a probationary split sentence which requires the award of credit. We agree.

A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless.such credit is waived. See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. (2007).

Dortly v. State, 107 So.3d 1229 (Fla. 1st DCA 2013). In contrast, if a defendant violates the probationary portion of a true split sentence, a trial court can revoke probation and impose either the suspended portion of incarceration or any sentence that could have originally been imposed. The defendant is entitled to receive credit for the time already served on the original, non-suspended portion of the sentence only if the court imposes the original period of incarceration. Moore v. Stephens, 804 So.2d 575, 577 (Fla. 5th DCA 2002).

In Poore v. State, 531 So.2d 161, 164 (Fla.1988), our Supreme Court described (1) a true split sentence as consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion, and (2) a probationary split sentence as consisting of a period of confinement, none of which is suspended, followed by a period of probation. Here, the trial court did not sentence the defendant to a term of 42 months’ imprisonment with two years suspended; rather, the court expressly sentenced the defendant to a term of 18 months’ imprisonment followed by a period of probation. See Williams v. State, 957 So.2d 600, 603 (Fla.2007) (explaining that a trial court’s oral pronouncement of a sentence controls over the written sentencing documents). Thus, the defendant is correct that he received a probationary split sentence and, as such, he is entitled to receive prison credit for the 18 months he has already served in this matter.

Accordingly, the defendant’s sentence is reversed and this matter is remanded with instructions to award the defendant prison credit.

REVERSED and REMANDED.

EVANDER and COHEN, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Markis Phillip SMITH, Appellee.
    No. 5D11-3730.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    Roger L. Weeden, Orlando, for Appel-lee.
   PER CURIAM.

The State appeals an order granting Appellee, Markis Phillip Smith [“Smith”], a new trial after he was convicted of robbery with a firearm. Although there are no findings by the lower court, it is agreed that the motion for new trial was based on a claim of prosecutorial misconduct during closing argument.

Smith was charged by information with one count of robbery with a firearm. A jury trial was held on July 12-13, 2011. The evidence at trial showed that the victim, Desmond Henry, while sitting in his vehicle in front of a hair salon, was robbed at gunpoint by Smith. Smith then fled in a car. Numerous patrons inside the salon observed the robbery. They all positively identified Smith as the robber.

The jury returned a verdict of guilty with a special finding that Smith carried, displayed, used or possessed a firearm in the commission of the robbery. Smith timely filed a motion for new trial and requested that the closing argument be transcribed. His motion alleged that he was denied a fair trial as a result of improper comments by the prosecutor. The motion specifically identified the following:

1. Calling his theory of the defense insane.
2. Suggesting to the jury that his counsel’s comment on the alleged victim’s testimony on the color of the perpetrator’s hat being “black” was false and misleading, when in fact it was an accurate comment.
3. Suggesting to the jury that his sister’s testimony regarding Smith’s gold teeth and tattoos at the time of the offense was fabricated without any evidence of fabrication and with contrary evidence from Smith’s booking photo, which shows gold teeth.
4. Arguing to the jury that his counsel misled the witness Ms. Nelson into saying the photo of Smith in the photo lineup most resembled Smith, when in fact that was the witness’s testimony, which Smith’s counsel merely highlighted during cross-examination.
5. After choosing not to invoke the rule on witness sequestration, the State suggested to the jury that there was some impropriety in his sister’s testimony, since she had remained in the courtroom during the trial.
6. Pointing at Smith repeatedly during closing and stating this is the man who committed the robbery, thereby suggesting some special knowledge or information about the case, apart from the evidence admitted at trial.

Two months later, without conducting a hearing or having the closing argument transcribed, the trial court ordered a new trial for Smith. The trial court also denied the request for a transcript of the trial. The State filed a motion for reconsideration, pointing out the lack of transcripts, the lack of a hearing, the lack of opportunity to be heard and the lack of explanation for the trial court’s ruling. The trial court denied the State’s motion for reconsideration.

Below, Smith made only one objection during the State’s entire closing argument, and that one came during the rebuttal argument. The following was the objected-to statement made by the prosecutor:

And one of the things that defense keeps pointing out, which I find very interesting, is that he was saying, well, because his height is off, that he clearly can’t be the person who did this. Well, first of all, the only person we heard from about his height is his sister. Now, you guys saw him. He stood before you. So you can make the judgment of how tall he is. But I’d like you to keep in mind the height of the victim. The victim is huge. He’s, like, six-three. He’s a big guy. And what he said is that, yeah, the defendant is smaller than him, that he believed him to be, like, five-six. He wrote in his statement five-six, but he believed — he told the officer that he was between five-six and five-eight. Well, is it so unrealistic that a guy who’s six-three, this big hulk of a man, sees a guy who’s shorter, smaller than him, and says that he’s five-six to five-eight, when he may be five-eight, five-nine, five-ten? I don’t know. We don’t know how tall he is. But you can make that — that determination. Because he presented himself to you. So as far as that being something that makes this reasonable doubt, that’s insane.

Defense counsel objected to characterizing the defense as “insane.” The State rephrased and closing argument continued. Smith’s counsel did not request a curative instruction or move for a mistrial. In our view, this objectionable statement received the appropriate treatment it warranted and would not have supported a mistrial had one been requested. All other instances of alleged prosecutorial misconduct were not objected to at trial. Therefore, to warrant a new trial, the prosecutorial misconduct must rise to the level of fundamental error. See e.g., State v. Mathis, 933 So.2d 29, 32 (Fla. 2d DCA 2006); State v. Delafuente, 487 So.2d 1083 (Fla. 4th DCA 1986). “The test for determining fundamental error is whether the error ‘goes to the foundation of the case or goes to the merits of the cause of action.’ Specifically, prosecutorial misconduct constitutes fundamental error when, but for the misconduct, the jury could not have reached the verdict it did.” Miller v. State, 782 So.2d 426, 432 (Fla. 2d DCA 2001) (quoting Ashford v. State, 274 So.2d 517, 518 (Fla.1973)); Mathis, 933 So.2d at 32.

We agree with the State that its closing argument did not rise to the level of fundamental error. Indeed, most of the complained-of “misconduct” in closing was not objectionable at all. Smith argues, for example:

During her closing, the prosecutor made numerous comments, which suggested special knowledge or invited the jury to consider evidence not presented at trial. With her first words during closing, the prosecutor pointed at the Defendant and stated:
“This man committed an armed robbery on April 18, 2009. It’s that simple. He’s the person who did it.”
The prosecutor further stated: “to believe that this is a case of mistaken identity, you have to ignore the facts of this case.... ” Those comments are a clear statement implying the personal beliefs of the prosecutor.

These are no more than comments on the evidence that the prosecutor was entitled to make. Considering the State’s comments made during its closing argument both individually and collectively, we conclude that any improprieties did not deprive Smith of a fair trial.

The most serious prosecutorial lapse in this case were comments concerning Smith’s theory of defense, such as: “if that’s the best they got, okay, great”, and the “insane” comment referenced above. Although the prosecutor may have crossed the line by denigrating defense counsel’s theories and argument, the comments did not go to the heart of the case. Accordingly, we reverse the new trial order and remand for entry of a judgment consistent with the jury verdict.

REVERSED and REMANDED.

GRIFFIN, TORPY and JACOBUS, JJ., concur.


text:
    Terence McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3416.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Terence McClain appeals from the judgment and sentence entered after a jury found him guilty of attempted first-degree murder with a firearm, attempted voluntary manslaughter with a firearm, and two counts of aggravated battery with a firearm. McClain raises several arguments on appeal, only two of which merit discussion. He contends the trial court erred in instructing the jury on the forcible-felony exception to the self-defense instruction, and in sentencing him to a minimum mandatory twenty-five-year sentence for attempted voluntary manslaughter. Finding error in the jury instruction, we reverse and remand for a new trial.

The events that led to the charges lodged against McClain occurred in a residential neighborhood in Apopka, Florida. McClain and the victim, Jesse Ingram, were involved in a shoot-out in which both were shot but survived. The sequence of events was in dispute, and the evidence of who shot first was murky.

The trial court properly concluded McClain was entitled to a jury instruction on self-defense. Over the defense’s objection, the trial court included the instruction on the forcible-felony exception, which provides that a claim of self-defense is not available to a defendant who was committing a forcible felony at the time he used deadly force. Thus, the jury was instructed as follows:

An issue in this case is whether the Defendant acted in self-defense. It is a defense to the offense with which Terence McClain is charged if the injuries to Jesse Ingram or Marlon Coley resulted from the justifiable use of deadly force.
However, the use of deadly force is not justifiable if you find that Terence McClain was attempting to commit, committing, or escaping after the commission of attempted murder with a firearm, or aggravated battery with a firearm ....

Because McClain was not charged with a forcible felony other than the felonies for which he was claiming self-defense, we find the trial court erred in giving the instruction on the forcible-felony exception. See Martinez v. State, 981 So.2d 449, 454 (Fla.2008). The inclusion of the instruction essentially precluded the jury from finding that McClain acted in self-defense.

Sua sponte, we have considered whether the erroneous instruction constituted harmless error. While McClain advanced alternative theories of defense, the self-defense theory was more consistent with the witnesses’ accounts of the evening’s events. Because the erroneous jury instruction vitiated McClain’s most plausible defense and essentially relieved the State of its burden of proving beyond a reasonable doubt that McClain did not act in self-defense, this error cannot be deemed harmless. Cf. Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002). Had the jury been given a proper self-defense instruction, there is a reasonable possibility that McClain would not have been convicted. Accordingly, we reverse and remand for a new trial on all four counts.

For the benefit of the parties on remand, we further note that the trial court erred in imposing the minimum mandatory sentence for McClain’s attempted voluntary manslaughter conviction pursuant to section 775.087(2), Florida Statutes (2010). See Brown v. State, 83 So.3d 777, 778 (Fla. 5th DCA 2011) (noting attempted voluntary manslaughter is not an enumerated offense subjecting defendant to minimum mandatory sentence under section 775.087(2), Florida Statutes). However, based upon the reversal of McClain’s convictions, that error becomes moot.

REVERSED and REMANDED FOR A NEW TRIAL.

LAWSON, EVANDER and COHEN, JJ., concur.

      . McClain's gunfire also wounded a bystander, Marlon Coley.

      . In addition to asserting self-defense, McClain argued during closing argument that his brother had shot Ingram and Coley.


author: GRIFFIN, J.

text:
    OKALOOSA NEW OPPORTUNITY, LLC, Appellant, v. LD PROJECTS, LLC, etc., et al., Appellee.
    No. 5D12-3136.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    Beverly A. Pohl, P.A., and Barbara Vio-ta-Sawisch, of Broad and Cassel, Fort Lauderdale, and Robert Alfert, Jr., P.A., and Jeremy T. Springhart, of Broad and Cassel, Orlando, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Okaloosa New Opportunity, LLC [“Oka-loosa”] appeals an order denying its motion for proceedings supplementary that was entered subsequent to the entry of a default final judgment against LD Projects, LLC [“LD Projects”].

Okaloosa claims to be the victim of a fraudulent scheme involving multiple bad actors who caused it to make three money transfers, together totaling $2,850,000.00, ostensibly to fund the purchase of real estate loans from Wells Fargo Bank. In a thirteen-count complaint, Okaloosa filed suit against LD Projects; William J. Kear-ney, an individual; the William J. Kearney Irrevocable Family Trust, dated August 22, 2011, through its trustee William J. Kearney; Dolores Balliett, an individual; and the Camille Holding Family Trust, dated August 26, 2011, through its trustee, Camille Holding. Okaloosa alleged in part:

19. Kearney and Balliett represented to Okaloosa that they established LD Projects in order to hold Okaloosa’s money for the purpose of funding the purchase of the Wells Fargo Loans.
20. In fact, Kearney and Balliett, furthering their fraudulent actions, established LD Projects for the improper purpose of taking possession of Okaloo-sa’s funds, knowing that the funds would immediately be transferred to, inter alia, Kearney and Balliett, for their own personal use.
21. LD Projects’ improper purpose caused injury to Okaloosa.
22. Kearney and Balliett exercise control over LD Projects to the extent that LD Projects manifests no separate interests of its own and functions solely to achieve purposes of Kearney and Bal-liett.
S3. Instead of using the money that Okaloosa transferred to LD Projects for the purpose of funding the purchase of the Wells Fargo Loans, Kearney, Bal-liett and Holding plundered LD Projects’ account for their own personal use.

Subsequently, on or about February 23, 2012, and upon Okaloosa’s motion, the trial court entered default final judgment against LD Projects, determining that LD Projects “ha[d] been defaulted due to its failure to serve a response to either the Complaint or Amended Complaint.” The trial court ordered:

1.Plaintiff, Okaloosa New Opportunity, LLC, is entitled to maintain this action, and this Court has jurisdiction of the subject matter and the parties.
2. The Plaintiffs Okaloosa New Opportunity, LLC, Motion for Default Final Judgment as to Defendant, LD Projects, LLC, be and the same is hereby GRANTED by reason of the default entered against the Defendant, LD Projects, LLC, and, therefore, judgment is hereby entered against the Defendant, LD Projects, LLC, for the relief sought in the Plaintiffs Amended Complaint.
3. Plaintiff, Okaloosa New Opportunity, LLC, is entitled to enforce the July 27 Promissory Note and August 18 Promissory Note sought to be enforced in the Complaint. However, the Plaintiff shall indemnify and hold harmless the Defendant, LD Projects, LLC, from any loss it incurs by reason of a claim by another person to enforce the lost July 27 Promissory Note and August 18 Promissory Note.
4. Defendant, LD Projects, LLC, has defaulted under the July 27 Promissory Note, which is described in the Plaintiffs Amended Complaint. LD Projects failed to pay the Note when due, or any time thereafter.
5. Defendant, LD Projects, LLC, has defaulted under the August 18 Promissory Note, which is described in the Plaintiffs Amended Complaint. LD Projects failed to pay the Note when due, or any time thereafter.
6. There is now due to the Plaintiff, Okaloosa New Opportunity, LLC, from the Defendant, LD Projects, LLC, on the July 27 Promissory Note, the following sums:
A. Principal Due $1,000,000.00
B. Interest thereon from 7/27/11 to 9/27/11 $ 13,333.33
C. Interest thereon from 9/28/11 through the date of this Judgment at the rate of $273.98 per day. $ 40,823.02
TOTAL $1,054,156.35
7.Therefore, the Plaintiff, Okaloosa New Opportunity, LLC, shall recover from the Defendant, LD Projects, LLC, on the July 27 Promissory Note, the sum of $ 1,054,156.35 which shall bear interest at the rate of 4.75% per year, for all of which let execution issue.
8.There is now due to the Plaintiff, Okaloosa New Opportunity, LLC, from the Defendant, LD Projects, LLC, on the August 18 Promissory Note, the following sums;
A Principal Due $1,500,000.00
B. Interest thereon from 7/27/11 to 9/27/11 $ 15,123.29
C. Interest thereon from 9/28/11 through the date of this Judgment at the rate of $410.96 per day. $ 61,233.04
TOTAL $1,576,356.33
9.Therefore, the Plaintiff, Okaloosa New Opportunity, LLC, shall recover from the Defendant, LD Projects, LLC, on the August 18 Promissory Note, the sum of $ 1,576,356.33, which shall bear interest at the rate of 4.75% per year, for all of which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the judgment debtors) shall complete under oath the attached Florida Rules of Civil Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on the judgment creditor’s attorney, or the judgment creditor if the judgment creditor is not represented by an attorney, within forty-five (45) days from the date of this Final Judgment, unless the Final Judgment is satisfied or post-judgment discovery is stayed.
Jurisdiction of this case is retained to enter further orders that are proper to compel the judgment debtor(s) to complete Form 1.977, including all required attachments, and serve it on the judgment creditor’s attorney, or the judgment creditor if the judgment creditor is not represented by an attorney.
Jurisdiction of this case is further retained by this Court to enter final judgment against the remaining defendants to this lawsuit on Counts I, II, III, IV, V, VI, VII, X, and XI of the Amended Complaint.

On or about June 5, 2012, Okaloosa filed a motion for proceedings supplementary to execution, to establish equitable liens and foreclose liens, and to appoint a special magistrate. Okaloosa alleged in part:

1. On February 23, 2012, OKALOOSA obtained a judgment in the amount of $2,630,512.68 which named Defendant, LD PROJECTS, LLC, a Florida Limited Liability Company, (hereinafter “LD PROJECTS”), as the judgment debtor (hereinafter the “Judgment”). A copy of the Creditor’s Affidavit filed in this action, which attaches a copy of the Judgment, is attached hereto as Exhibit “A”.
2. There is presently due and owing upon the Judgment the sum of $2,630,-512,68, plus post-judgment interest as of the date of the judgment at the rate of 4.75% per annum.
3. In order to conceal LD PROJECTS’ assets from OKALOOSA, LD PROJECTS fraudulently transferred its assets in violation of Chapter 726 and § 56.29(6)(a) & (b), Florida Statutes, to Defendants, WILLIAM J. KEARNEY (“Kearney”), THE WILLIAM J. KEARNEY IRREVOCABLE FAMILY TRUST DATED AUGUST 22, 2011 (the “Kearney Trust”) and THE CAMILLE FAMILY HOLDING TRUST DATED AUGUST 26, 2011 (the “Holding Trust”), to wit:
i. On August 5, 2011, the Kearney Trust purchased home furniture and a boat for $100,000.00 using funds Okaloo-sa transferred to LD Projects. See copy of Bill of Sale attached hereto as Exhibit “B”;
ii. On August 22, 2011, the Kearney Trust purchased a personal residence at 516 Navy Cove Blvd. in Gulf Breeze, Florida (hereinafter “Navy Cove Residence”), for the price of $1,313,306.29 using funds Okaloosa transferred to LD Projects. See copy of Warranty Deed attached hereto as Exhibit “C”;
iii. On August 26, 2011, the Holding Trust purchased a personal residence at 114 Gilmore Drive in Gulf Breeze, Florida (hereinafter “Gilmore Residence”) for $148,545.87 using funds Okaloosa transferred to LD Projects. See copy of Warranty Deed attached hereto as Exhibit “D”;
iv. On September 27, 2011, Kearney received a $40,000.00 cash disbursement from funds Okaloosa transferred to LD Projects. See Authorization attached hereto as Exhibit “E”; and
v. On October 6, 2011, Kearney received a $40,000.00 cash disbursement from funds Okaloosa transferred to LD Projects. See Authorization attached hereto as Exhibit “F.”
4. OKALOOSA hired Broad and Cas-sel to pursue this action and is obligated to pay the firm a reasonable fee for its services. OKALOOSA requests that this court award it the attorneys’ fees and costs incurred in this action pursuant to § 56.29(11), Florida Statutes and § 57.115(1), Florida Statutes.
WHEREFORE, OKALOOSA respectfully requests that this Court:
a. Order that Defendants, LD PROJECTS, LLC, THE WILLIAM J. KEARNEY IRREVOCABLE FAMILY TRUST DATED AUGUST 22, 2011 and THE CAMILLE FAMILY HOLDING TRUST DATED AUGUST 26, 2011 appear and be examined, in the presence of a Special Magistrate, concerning the following transfers of property:
i. On August 5, 2011, the Kearney Trust purchased home furniture and a boat for $100,000.00 using funds intended by Okaloosa for the purchase of the Wells Fargo Loans; See copy of Bill of Sale attached hereto as Exhibit “B”;
ii. On August 22, 2011, a few days after receiving Okaloosa’s last wire transfer, the Kearney Trust purchased a personal residence at 516 Navy Cove Blvd. in Gulf Breeze, Florida (hereinafter “Navy Cove Residence”), for the price of $1,313,306.29 using funds Okaloosa transferred to the Matthews Trust Account. See copy of Warranty Deed attached hereto as Exhibit “C”;
iii. On August 26, 2011, the Holding Trust purchased a personal residence at 114 Gilmore Drive in Gulf Breeze, Florida (hereinafter “Gilmore Residence”) for $148,545.87 using funds Okaloosa transferred to the Matthews Trust Account on behalf of LD Projects. See copy of Warranty Deed attached hereto as Exhibit “D”;
iv. On September 27, 2011, Kearney received a $40,000.00 cash disbursement from the funds Okaloosa transferred to the Matthews Trust Account on behalf of LD Projects; See Authorization attached hereto as Exhibit “E”; and
v. On October 6, 2011, Kearney received a $40,000.00 cash disbursement from the funds Okaloosa transferred to the Matthews Trust Account on behalf of LD Projects. See Authorization attached hereto as Exhibit “F”.
b. Appoint a Special Magistrate to make findings of fact and conclusions of law about the disposition of the above-referenced assets, as well as any other assets belonging to LD PROJECTS or shown to have been fraudulently transferred from LD PROJECTS to WILLIAM J. KEARNEY, THE WILLIAM J. KEARNEY IRREVOCABLE FAMILY TRUST DATED AUGUST 22, 2011 or THE CAMILLE FAMILY HOLDING TRUST DATED AUGUST 26, 2011, and report such findings of fact and conclusions of law back to the Court;
c. Order that any property thereon shown to be belonging to LD PROJECTS, LLC or shown to have been fraudulently transferred from LD PROJECTS to WILLIAM J. KEARNEY, THE WILLIAM J. KEARNEY IRREVOCABLE FAMILY TRUST DATED AUGUST 22, 2011 or THE CAMILLE FAMILY HOLDING TRUST DATED AUGUST 26, 2011 be applied to the satisfaction of the judgment debt, including the imposition and foreclosure of an equitable lien on real property; and
d. Award OKALOOSA costs and attorneys’ fees for these proceedings under § 56.29(11), Florida Statutes and § 57.115(1), Florida Statutes. '

A supporting affidavit was also filed.

After a hearing, the trial court entered an order denying Okaloosa’s motion for proceedings supplementary. The record on appeal does not contain a transcript of the hearing held on Okaloosa’s motion for proceedings supplementary, and the order denying Okaloosa’s motion for proceedings supplementary does not contain findings.

Section 56.29, Florida Statutes, governs “Proceedings supplementary.” Relying upon Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994), Biloxi Casino Corp. v. Wolf, 900 So.2d 734, 734 (Fla. 4th DCA 2005), and B & I Contractors, Inc. v. Mel Re Constr. Mgt., 66 So.3d 1035, 1038 (Fla. 2d DCA 2011), Okaloosa asserts that the statute creates an absolute entitlement. In Regent Bank, the Fourth District Court of Appeal addressed the process of impleading a third party under section 56.29, Florida Statutes: “The predicate for impleading a third party under section 56.29 is that the judgment creditor file an affidavit showing that the sheriff holds an unsatisfied writ of execution on a money judgment and that the unsatisfied execution is valid and outstanding.” 636 So.2d at 886. The court said: “The judgment creditor here filed such an affidavit. No other showing is necessary in order to implead the third party.” Id. “[B]ecause the judgment creditor made the required statutory showing, the trial court had no discretion to deny the application.” Id.

Subsequently, in Biloxi, the Fourth District said that an appellant was “entitled to proceedings supplementary pursuant to section 56.29, Florida Statutes,” where the “[a]ppellant ha[d] a valid outstanding judgment lien” and “filed an affidavit stating that the judgment remain[ed] unsatisfied.” 900 So.2d at 734. It explained: “Upon a showing of the statutory prerequisites, the court has no discretion to deny the motion.” Id.

More recently, in B & I, a case in which the trial court had denied the appellant’s motion for proceedings supplementary “after the initial, nonevidentiary hearing addressing [the] postjudgment proceeding,” “[t]he order [did] not explain the basis for the denial,” and “[t]here [was] no transcript of the hearing on [the] motion.” 66 So.3d at 1036-37. The Second District Court of Appeal “conclude[d] that the trial court erred in denying [appellant’s] entitlement to proceedings supplementary in light of the facial sufficiency of its pleadings and affidavit.” Id. at 1038. In reaching its conclusion, the Second District explained:

Section 56.29 provides for proceedings supplementary. The legislature enacted the statute in 1919, and it has remained largely unchanged throughout the last ninety years. See Ch. 7842, Laws of Fla. (1919). Although there are several rules of civil procedure addressing execution of judgments and collection thereon, see Fla. R. Civ. P. 1.550-1.570, there are no rules that assist an attorney with the filing of proceedings supplementary. The practitioner must rely on a limited body of cases discussing this statute and several treatises that provide assistance. See, e.g., Bruce J. Berman, Berman’s Florida Civil Procedure §§ 550.9-.10, 560.4 (2010-11 ed. 2010); Guy P. Coburn, Creditors’ & Debtors’ Practice in Florida § 11.6 et seq. (2007); Philip J. Padovano, Florida Civil Practice § 13:6 (2011 ed. 2010).
On the face of the statute, a party commences these proceedings not by filing a motion, but by filing an affidavit. In the affidavit, the affiant must attest that he or she holds an unsatisfied judgment obtained under chapter 55, identify the issuing court and case number, state the unsatisfied amount of the judgment, and confirm that the execution is valid and outstanding. By filing such an affidavit, the holder “is entitled to these proceedings supplementary to execution.” § 56.29(1).
Obviously, any lawyer today would be uncomfortable with the idea of obtaining action from a trial court by affidavit, and most judges would not expect to be required to take action based solely on an affidavit. Thus, the relevant treatises discuss commencing the proceeding by motion and provide sample motions. See, e.g., Coburn, Creditors’ & Debtors’ Practice in Florida § 11.9. In this case, B & I filed such a motion, attaching the affidavit that “entitled” it to proceedings supplemental.
At least in some circumstances, the existing case law allows a judgment holder to pursue a chose in action in proceedings supplementary even if it is necessary to implead third parties to obtain rights over the chose in action. See, e.g., Gen. Guar. Ins. Co. of Fla. v. DaCosta, 190 So.2d 211 (Fla. 3d DCA 1966). On its face, this statute allows the holder to pursue property that the debtor held within one year of the service of process. See § 56.29(6)(a). The statute also allows the holder to pursue property that the debtor transferred or conveyed in order to defraud creditors. See § 56.29(6)(b).

Id. at 1037-38 (Footnote omitted). Here, Okaloosa filed a motion, with an attached affidavit, sufficient to entitle it to proceedings supplementary. Accordingly, we reverse the order of denial.

REVERSED and REMANDED.

TORPY and JACOBUS, JJ., concur.


author: MARSTILLER, J.

text:
    The CALYPSO DEVELOPERS I, LLC, Appellant, v. PELICAN PROPERTIES OF SOUTH WALTON, LLC, A Florida Limited Liability Company, Appellee.
    No. 1D12-1075.
    District Court of Appeal of Florida, First District.
    March 28, 2013.

      Braden K. Ball, Jr. and Louis A. May-garden, III of Shell, Fleming, Davis & Menge, Pensacola, for Appellant.
    Dixon Ross McCloy, Jr. and Heather K. Hudson of Harrison Sale McCloy, Panama City, for Appellee.
   MARSTILLER, J.

The Calypso Developers I, LLC (“Calypso”), appeals the final judgment entered in an action for equitable reformation brought by Appellee, Pelican Properties of South Walton, LLC (“Pelican”). The judgment grants Pelican’s claims, based on mutual mistake, for reformation of a purchase and sale agreement and the concomitant special warranty deed to include a condominium unit not previously conveyed, but denies Calypso’s counterclaim for reformation of the agreement to also include an adjusted price. Calypso challenges only that portion of the final judgment denying the counterclaim. We affirm.

In 2006, Calypso and Pelican entered into two purchase and sale agreements under which Pelican was to buy from Calypso two commercial condominium units— 4-101 and 4-102 — located in a condominium development called Calypso Tower I (“Tower I”). The parties intended that Pelican would purchase all the commercial space in Tower I, and they believed both units comprised the commercial space. The purchase price for Unit 4-101 was $138,400, and the purchase price for Unit 4-102 was $796,800. The purchase prices were calculated at $200 per square foot, but neither contract included the unit’s square footage or expressly stated a price per square foot.

After the contracts were executed, but before closing, the parties determined that Unit 4-101 was common area and could not be sold. Thus, they canceled the purchase and sale agreement for Unit 4-101, and closed on Unit 4-102 at the agreed-upon price of $796,800. The purchase and sale agreement for Unit 4-102 (hereinafter “Agreement”) stated that Pelican was buying

Unit No. 4-102 (the “Unit”), together with its undivided share of the common elements and other appurtenant rights, of Calypso Towers I, a Condominium (the “Condominium”), all on the terms and subject to the provisions hereof.

Calypso executed a special warranty deed conveying title to Unit 4-102 to Pelican. The legal description in the deed read:

Condominium Unit No. 4-102, Calypso Towers I, a Condominium, according to the Declaration of Condominium thereof recorded in Official Records Book 2747, Page 1687, and re-recorded in Official Records Book 2750, Page 1378, all of the public records of Bay County, Florida, and all exhibits and amendments thereto; together with an undivided interest in the common elements appurtenant thereto, as set forth in the Declaration of Condominium.

Notwithstanding that Pelican did not buy or take title to Unit 4-101, Pelican, or its tenants, occupied both units after the December 2006 closing on Unit 4-102. In 2009, the parties discovered Unit 4-101 was not, in fact, common space. They agreed that the Agreement and the deed should be reformed to reflect their original intent. In addition, Pelican agreed to reimburse Calypso for the prior years’ real estate taxes and other assessments associated with Unit 4-101. As to reforming the Agreement to include the price of the additional unit, however, the parties disagreed.

Hence, Pelican filed a four-count complaint alleging mutual mistake and seeking to: (1) reform the special warranty deed to include the legal description for Unit 4-101; (2) reform the Agreement to include Unit 4-101; (3) quiet title to Unit 4-101 in Pelican; and (4) alternatively rescind the Agreement. Calypso asserted a counterclaim. In Count I, Calypso sought to reform the Agreement not only to include Unit 4-101, but also to include the “actual” square footage for both units, and to set a total purchase price at $200 per square foot, less the $796,800 Pelican previously paid for Unit 4-102. Count II alleged, “Should Pelican become the owner of Unit 4-101, then it would be unjustly enriched by receiving more square footage than it originally paid for when it paid $796,800.00 for Unit 4-102.”

Before trial, the parties stipulated that “Pelican has made a prima facie case for its claims for reformation of the contract and deed to include Unit 4-101.... ” Thus, in the final judgment, the trial court reformed the Agreement and deed “to include Unit 4-101- within the legal description, providing [Pelican] with legal title to both units ... as originally intended by the parties.”

The only disputed issue tried was whether the Agreement reformation also should include an adjusted price to cover the actual combined square footage for Units 4-101 and 4-102, less the $796,800 Pelican paid in 2006. On that issue, the trial court concluded there was no mutual mistake as to pricing or square footage in the commercial space. Noting there was “disagreement and conflicting evidence as to the agreed-upon purchase price and the manner of its calculation,” the court found that although Pelican understood the purchase price was based on $200 per square foot, it had “agreed to purchase the entire commercial space for a set price of $796,800.” The court further found neither a specific per-square-foot price nor actual square footage were essential terms of the parties’ agreement. As such, there was no basis for reforming the Agreement to adjust the purchase price.

Analysis

The equitable remedy of reformation is available where, because of a mutual mistake, a written instrument does not accurately express the parties’ true intent or agreement. See Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1369 (Fla.1987); Ayers v. Thompson, 536 So.2d 1151, 1154 (Fla. 1st DCA 1988). Applicable both to instruments conveying real property and to contracts, “reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached.” Providence Square, 507 So.2d at 1370. The party seeking reformation must present clear and convincing evidence of mutual mistake. See Ayers, 536 So.2d at 1154; Canal Ins. Co. v. Hartford Ins. Co., 415 So.2d 1295, 1297 (Fla. 1st DCA 1982).

We express some doubt as to whether, in the absence of the parties’ stipulation below, the facts would support reforming the Agreement and deed to include Unit 4-101. Although the parties intended that Pelican would purchase all the “commercial space” or “retail space” in Tower I, they nevertheless priced Units 4-101 and 4-102 individually and executed two separate purchase and sale agreements — one for each condominium unit. Upon determining — albeit mistakenly — that Unit 4-101 could not be sold, the parties canceled the contract for that unit. The surviving contract for Unit 4-102 does not appear subject to reformation to include Unit 4-101 because it “accurately reflected] the true terms of the agreement actually reached.” It is of no consequence that the parties were mutually mistaken about whether Unit 4-101 was a sellable unit or common space. See Providence Square, 507 So.2d at 1372 (“A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.”).

As to the deed, the parties characterized the error in the instrument as an incorrect legal description of the “commercial space” they intended Pelican to own. When executed, the deed conveyed title to Unit 4-102. A condominium unit is a single parcel of real property that is taxed ánd assessed separately from other units. See §§ 718.103(12), 718.120(1), Fla. Stat. (2006). Moreover, every condominium parcel has its own legal description. See § 718.109, Fla. Stat. (2006) (“[A] description of a condominium parcel by the number or other designation by which the unit is identified in the declaration, together with the recording identifying the declaration, shall be a sufficient legal description for all purposes.”). The deed here contained what appears to be the correct legal description for Unit 4-102. It comported with the purchase and sale agreement for Unit 4-102 — the only extant contract at the time — and excluded Unit 4-101 — a separate condominium parcel that was not purchased. Therefore, it appears the deed had no defect justifying reformation of the instrument. See Shell Creek Land Co. v. Watson, 101 Fla. 172, 133 So. 621, 622 (1931) (stating that equity will reform a conveyance “clearly shown” to mis-de-scribe the land intended to be conveyed).

Nevertheless, Calypso assented to reforming the Agreement and deed to include Unit 4-101, and our review is only of the trial court’s decision not to also adjust the purchase price. There is sufficient evidence in the record, particularly the testimony of Pelican’s owner, Julie Lawson, to support the court’s finding that the parties agreed to the sale and purchase of what they believed to be the available commercial space in Tower I for a flat price of $796,800, as opposed to a price per square foot. The evidence further supports the court’s determination that actual square footage was not an essential term of the parties’ agreement. “In determining whether or not a contract for the sale of real estate is one in gross or by the acre, the court must weigh all the circumstances which may serve as an indication as to whether or not it was the intention of the parties to make quantity the essence of the contract.” Worsham v. Pierce, 251 So.2d 896, 898 (Fla. 1st DCA 1971) (defining a “contract of sale by the tract or in gross” as “one in which the existence of the exact quantity specified is not material nor of the essence, each party taking the risk of the actual quantity to vary to some extent from what he expects it to be”). Calypso invites us to take a different view of the evidence, arguing that Pelican’s knowledge of the $200-per-square-foot multiplier is clear and convincing evidence that the parties intended a sale by the square foot. But it was within the province of the trial court, as the trier of fact, to interpret the evidence presented. “Though the evidence may be subject to varying interpretations, the [trial court’s] judgment resolving the evidentiary conflicts will not be disturbed on appeal unless it is shown to be clearly erroneous.” Providence Square, 507 So.2d at 1372. Because the evidence reasonably supports the trial court’s findings and conclusion, we affirm the final judgment.

AFFIRMED.

PADOVANO and SWANSON, JJ., concur.

         The figures from the Declaration of Condominium used to set the original purchase prices were 692 square feet for Unit 4-101 and 3,984 square feet for Unit 4-102, for a total of 4,676 square feet. Actual square footage, per a 2011 survey, is 1,239 for Unit 4-101 and 3,171 for Unit 4-102, for a total of 4,410 square feet.