author: PER CURIAM. DONALDSON, Judge,

text:
    S.O. and N.O. v. K.B.
    2120415.
    Court of Civil Appeals of Alabama.
    July 26, 2013.
    See also 85 So.3d 460.

      Shannon L. Millican, Gadsden, for appellants.
    No brief filed by appellee.
    Stephanie Gillilan, Gadsden, guardian ad litem.
   PER CURIAM.

S.O. and N.O. (“the maternal grandparents”) appeal a February 5, 2013, judgment awarding visitation with A.B. (“the child”), of whom the maternal grandparents have custody, to the child’s father, K.B. (“the father”).

This child has been the subject of a previous appeal involving the maternal grandparents and C.O., the child’s mother. In C.O. v. S.O., 85 So.3d 460 (Ala.Civ.App. 2011), this court reviewed a judgment awarding custody of the child to the maternal grandparents and denying the mother’s request for visitation with the child; that appeal is discussed later in this opinion. We note that the Etowah Juvenile Court (“the juvenile court”) ordered that the record from the action in C.O. v. S.O., supra, be incorporated into the record on appeal in this case. The record reveals the following facts.

In September 2008, the Etowah County Department of Human Resources (“DHR”) filed a dependency petition seeking to remove the then two-month-old child from the custody of the parents because of domestic violence by the father against the mother. In October 2008, the juvenile court entered a judgment finding the child dependent as a result of domestic violence in the home. The juvenile court awarded custody of the child to DHR, which placed the child with the maternal grandparents. Shortly thereafter, the father was arrested on charges of manufacturing methamphetamine and possession of a controlled substance.

In January 2011, the mother filed a petition seeking the return of custody of the child; the maternal grandparents asserted a claim for custody during the hearing on the merits in that action. The juvenile court conducted an ore tenus hearing; the father was not present at that hearing because he was in prison. On May 16, 2011, the juvenile court entered a judgment awarding the maternal grandparents custody of the child, denying the mother visitation at that time, and ordering that DHR close its supervision of the matter.

On appeal from the May 16, 2011, judgment, the mother did not contest the award of custody of the child to the maternal grandparents; she argued only that the juvenile court had erred in failing to award her visitation with the child. C.O. v. S.O., supra. This court reversed, concluding that, although the facts supported the juvenile court’s determination that the mother’s conduct had had a negative impact on the child, given the facts, the mother’s visitation should not have been suspended entirely. C.O. v. S.O., 85 So.3d at 466. On remand, the juvenile court awarded the mother one hour of supervised visitation on alternating weeks.

On August 24, 2012, the father, who had been released from prison on August 13, 2012, filed a verified petition stating that he was on parole and seeking visitation with the child. In that verified petition, the father stated that the maternal grandparents “have exhibited such a routine pattern of denial of visitation that the development and nurturing of the father’s loving relationship with his daughter is threatened.” The father requested an ex parte visitation order; in requesting that ex parte relief, the father did not allege that the child was in danger or that an emergency existed. See Ex parte Norlan-der, 90 So.3d 183, 185 (Ala.Civ.App.2012) (the only exception to the rule that a custodial parent or custodian can be deprived of custody, even temporarily, without notice is when there is an allegation that the child is in danger).

On August 24, 2012, the same day the father requested ex parte relief, the juvenile court entered an ex parte order awarding the father five hours of visitation at a mall on alternating Saturdays and ordering that visitation begin the next day, Saturday, August 25, 2012. The August 24, 2012, order made no provision for any supervision of the father’s visitation and, instead, specified that “[t]he maternal grandparents of the minor child are to allow the parties privacy during the visit” and that the father is to timely return the child to a specified meeting place in the mall at the end of the visitation period.

It is undisputed that the maternal grandparents were served with the father’s petition for visitation and the juvenile court’s ex parte August 24, 2012, visitation order on the afternoon of Friday, September 7, 2012. On September 10, 2012, the father filed a motion seeking to have the maternal grandparents held in contempt for their failure to bring the child to visitation on September 8, 2012. Also on September 10, 2012, the juvenile court entered an order scheduling the contempt motion for a hearing on October 19, 2012, and ordering the maternal grandparents to comply with the August 24, 2012, ex parte order in the interim.

On September 14, 2012, the maternal grandparents filed a response to the father’s petition for visitation and a motion to stay enforcement of the August 24, 2012, ex parte visitation order pending an evidentiary hearing. In their response and motion to stay, the maternal grandparents detailed the father’s past conduct, which formed the basis for their concerns for the child’s safety. In addition, the maternal grandparents argued that the father had made no attempt to contact them for visitation before filing his petition and his request for ex parte relief, that the father had provided no reason for failing to provide them notice of his petition before seeking the ex parte order, and that no emergency situation existed warranting an ex parte order. The maternal grandparents also argued that the father had had no contact with the child since she was one year old and that the now four-year-old child did not know the father; therefore, they contended, the visitation arrangement established in the August 24, 2012, ex parte order was not in the child’s best interests.

On September 18, 2012, the juvenile court entered an order specifying that the father was to receive visitation for one hour on alternating Thursday nights at a local mall and that that visitation was to be supervised by the maternal grandparents. The October 19, 2012, hearing was rescheduled, and the juvenile court eventually heard ore tenus evidence on the merits on January 16, 2013.

The evidence from that hearing indicates the following. Monica Frazier, the DHR social worker assigned to the child’s case between October 2008 and October 2010, testified that the child had been removed from the parents’ custody because of domestic violence by the father. The father had not cooperated with DHR’s offer of reunification services and had not visited regularly with the child. Further, the mother’s testimony from the record in the 2011 appeal indicated that issues of domestic violence between the parents had continued after the child was removed from their custody. C.O. v. S.O., 85 So.3d at 462.

Frazier testified that, when she initially began to work with the parents in 2008, the father had informed her that personnel of the Veterans Administration (“VA”) hospital wanted to hospitalize him for some undisclosed psychological condition. Frazier stated that the father refused hospitalization but began attending counseling at the VA hospital. The father refused to allow DHR access to his records through the VA, so, Frazier said, DHR was unable to determine the nature of the counseling or the condition for which the father was treated. The father attended counseling for only a few months before his arrest in late 2008.

At the hearing in this matter, the father denied that anyone at the VA hospital had wanted to hospitalize him for any condition other than when he had had a bad reaction to the prescription medication Paxil or Prozac. The father testified that he was “going to the VA [for counseling] to get a diagnosis” but that he was arrested before any diagnosis was reached.

The father was arrested in December 2008 on charges of manufacturing methamphetamine and possession of a controlled substance. The father testified that he was initially sentenced to an 18-month split sentence on those charges. However, while serving that sentence, the father escaped from the Etowah County jail in February 2010 and remained at large for several days. Frazier testified that, when he escaped from jail, the father telephoned her and made threats against her and two other DHR employees. Therefore, Frazier stated, the DHR employees filed a motion seeking a restraining order. On February 17, 2010, the juvenile court entered a restraining order prohibiting the father from “annoying, telephoning, intimidating, molesting, interfering with or menacing,” or attempting to engage in that conduct, with regard to the DHR employees, the maternal grandparents, and the child. That order also specified that the father was prohibited from being within 500 feet of the DHR office, the homes of the DHR employees mentioned in the restraining order, and the home of the maternal grandparents and the child.

It is undisputed that the father spent several days during his escape in the home of the mother. The mother initially informed DHR workers that the father had held her against her will. However, the father disputed that allegation and testified that the mother had informed him that DHR was pressuring her to press charges against him but that she had refused to do so.

The father testified that, upon his capture, he was not charged with a criminal count of escape. The father explained that, because he had escaped after jail personnel had let him leave jail to obtain an identification card, the escape was considered a “breach of trust.” Regardless, the father was charged and convicted of resisting arrest and domestic violence, and his previous split sentence was revoked; the father was then sentenced to a 10-year prison sentence on the original felony drug charges and on the new charges that arose as a result of the escape.

The father testified that, while he was in prison, he had completed a long-distance parenting class but that he had not contacted the child from prison; the father represented that the February 17, 2010, restraining order prevented him from contacting the child or the maternal grandparents in any way.

The father also testified that he had completed a substance-abuse program in prison. The father had been charged with driving under the influence (“DUI”) in 2007, but he was arrested on the felony drug charges that resulted in his prison sentence before he was tried on that DUI charge. As a part of a delayed prosecution of that 2007 DUI charge, upon his release from prison, the father agreed to participate in random drug testing; the father stated that doing so would “erase” the DUI charge from his record. The father testified that the drug testing had started in November 2012 and that he had not tested positive for the use of any illegal drugs.

The father was released from prison on August 13, 2012, and he began residing with his mother and her husband. The mother and the father have a second child, a son (“the son”), who is younger than the child at issue in this case. The son was also removed from the parents’ custody, and he was placed in the home of the father’s sister. We note that S.O. (“the maternal grandfather”) testified that, while the father was incarcerated, the father’s sister had worked with the maternal grandparents to arrange visits so that the child could see her sibling. The father testified that his sister had recently returned custody of the son to him and that the son now lived with him in the paternal grandmother’s home; the father did not clearly answer whether he had notified DHR or the child’s mother about the purported change in custody of the son.

The father testified that, since his release from prison, he had worked “off and on” for a friend in the construction industry. The father admitted that he had not contributed to the support of the child.

The father testified at the hearing on this matter that, contrary to his statements in his verified petition for visitation, he had made no attempt to contact the maternal grandparents to notify them of his release from prison or to request visitation with the child before he filed his petition for visitation. In explaining his failure to request visitation with the child before filing his August 24, 2012, petition, the father cited the February 17, 2010, restraining order, which prohibits the father from harassing or intimidating the maternal grandparents or coming within 500 feet of their home, as prohibiting him from contacting them at all; the father did not explain the allegations in his verified petition asserting that the maternal grandparents had refused requests that he be allowed to visit the child.

The maternal grandfather testified that the maternal grandparents’ receipt of the service of the father’s petition and the ex parte visitation order was their first notice that the father had been released from prison. The maternal grandfather testified that, given the father’s past conduct and threats, he was frightened for the safety of the maternal grandmother, himself, and the child, who was four years old. For that reason, the maternal grandfather said, the maternal grandparents did not take the child to the visitation scheduled for September 8, 2012, and they immediately contacted their attorney. Comments by the juvenile court during the questioning of the maternal grandfather during the hearing on the merits indicate that the juvenile court believed that the August 24, 2012, ex parte visitation order required the maternal grandparents to supervise the father’s visitation with the child; the order contains no such provision. The maternal grandfather explained that because the ex parte visitation order specified that the father was to be afforded “privacy” with the child, he interpreted that order as requiring the maternal grandparents to leave the child alone with the father.

The maternal grandfather described the visitations that occurred pursuant to the September 18, 2012, order, which afforded the father one hour of supervised visitation with the child. The maternal grandfather stated that the child had not seen the father in more than three years and that she been hesitant to interact with the father during visitations. He stated, however, that the father had engaged the child more effectively at the last visit before the hearing on the merits. The maternal grandfather testified that the maternal grandparents usually allowed the father more than the 1 hour of visitation set forth in the September 18, 2012, order because it usually took the child 30 to 45 minutes to “warm up” to the father. When asked why he did not bring the son to any of the visits and whether having her sibling there might have made the child more comfortable, the father testified that he had not brought the son to his visitations with the child because “it is my time” with the child.

The maternal grandfather testified that the maternal grandparents oppose anything other than supervised visitation for the father. The maternal grandfather stated that he has concerns about the father’s truthfulness and potential safety concerns, not only based on the father’s history but also based on his current situation. The maternal grandfather cited as an example that the father, in requesting additional Christmas visitation with the child, had provided two different explanations regarding where he planned to take the child. The maternal grandfather also testified that the father kept from the maternal grandparents the fact that he had custody of the child’s sibling.

On February 22, 2013, the juvenile court entered a judgment noting that the father had lost custody of the child because of his criminal history and finding that the “[t]he father needs an opportunity to establish a relationship with his [child]. Such will never occur if his only access is supervised visitation for one hour every other week.” Therefore, the juvenile court awarded the father a standard schedule of unsupervised, alternating-weekend visitation from 6:00 p.m. on Fridays through 6:00 p.m. on Sundays. In addition, the father was awarded unsupervised’ holiday visitation with the child.

In its February 22, 2013, judgment on the merits, the juvenile court appointed a guardian ad litem for the child, and it ordered the father to pay $25 per month in child support. In addition, the juvenile court stayed the enforcement of the February 22, 2013, judgment for 14 days pursuant to Rule 62, Ala. R. Civ. P.

The father filed a postjudgment motion. On February 15, 2013, the juvenile court entered an amended judgment modifying some of the provisions pertaining to the scheduling of the father’s visitation periods. That amended judgment contained a provision again staying the enforcement of that order for 14 days pursuant to Rule 62.

The maternal grandparents timely appealed. The maternal grandparents successfully moved the juvenile court for a stay of its February 22, 2013, judgment, as amended, so that they could seek a stay in this court. On March 8, 2013, this court granted, pending further orders of the court, the maternal grandparents’ motion to stay visitation filed in this court. On March 14, 2013, this court entered another order extending the stay of the juvenile court’s judgment pending further order of this court and ordering that the briefing process and appeal be expedited.

On appeal, the maternal grandparents argue that the juvenile court erred in awarding the father unsupervised alternating-weekend and holiday visitation with the child. As this court noted in the previous appeal involving this child:

“The determination whether to grant visitation is a matter within the discretion of the juvenile court, and the juvenile court’s principle objective in determining visitation is the best interests of the child. § 12-15-314(a)(4), Ala.Code 1975; Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76 (Ala.Civ.App.2011); Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ.App.2010); and Minchew v. Mobile Cnty. Dep’t of Human Res., 504 So.2d 310, 311 (Ala.Civ.App.1987). This court has explained:
“ ‘[T]he guiding principle in determining visitation with a dependent child, or with a child who is the subject of a visitation dispute between parents, is the child’s best interests. Alabama statutory law and caselaw precedent establish that a juvenile court may suspend a parent’s rights of visitation with his or her dependent child if visitation with the parent is demonstrated to be not in the child’s best interests.’ ”

C.O. v. S.O., 85 So.3d at 465 (quoting Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76, 83 (Ala.Civ.App.2011)).

In this case, the evidence indicates that the child was removed from the parents’ custody when she was an infant because the father committed acts of domestic violence against the mother; the mother’s testimony in the record indicates that domestic violence continued after the child was removed from the parents’ custody. The October 2008 dependency judgment contained a finding that the child was dependent as a result of the father’s acts of domestic violence. As part of its reunification services, DHR offered the parents supervised visitation with the child, which the father attended only occasionally. While the child remained in protective custody, the father engaged in criminal activity that resulted in his being sent to prison. During a February 2010 escape from incarceration, the father engaged in threatening behavior such that the juvenile court imposed a restraining order on the father, prohibiting him from threatening DHR workers, the maternal grandparents, and the child.

In his August 24, 2012, verified petition for visitation, the father alleged that the maternal grandparents had denied him visitation with the child. At the hearing on the merits, the father admitted that he had made no attempt to contact the maternal grandparents or their attorney of record before filing his claim seeking visitation and making those allegations against them.

The maternal grandparents cite the Alabama Custody and Domestic or Family Abuse Act, § 30-3-180 et seq., Ala.Code 1975, as support for their arguments on appeal. Although the maternal grandparents did not expressly cite that act to the juvenile court, the maternal grandparents, in their arguments to the juvenile court concerning the best interests of the child, identified the same factors set forth in § 30-3-132, Ala.Code 1975, specifically, whether the child would be safe with the father, as well as the father’s history of committing domestic violence and of engaging in threats to others. Section 30-3-132 provides, in part:

“(a) In addition to other factors that a court is required to consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of domestic or family violence the court shall consider each of the following:
“(1) The safety and well-being of the child and of the parent who is the victim of family or domestic violence.
“(2) The perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.”

In response to the maternal grandparents’ arguments regarding the father’s past conduct and the possibility that the young child might not be safe with the father, the juvenile court observed that people do change and deserve second chances. We agree with that sentiment in general. Further, we recognize the discretion afforded a trial court in matters of visitation. Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994). However, “[ejvery case involving a visitation issue must be decided on its own facts and circumstances, but the 'primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.” Carr v. Broyles, 652 So.2d at 303 (emphasis added); see also Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010) (“A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.”).

We agree with the maternal grandparents’ arguments that the father’s mere assertions that he has changed and his two to three months’ worth of negative drug tests do not establish that the father has overcome and altered his past conduct such that a small child, who has little relationship with or recollection of him, should be turned over to the father for unsupervised, overnight weekend visitation. Under the facts of this case, that visitation award does not ensure the safety of the child.

“As always, the primary consideration in determining a noncustodial parent’s visitation rights is the best interests of the child; our supreme court has recently reiterated that ‘[a] trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.’ Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010).”

C.O. v. S.O., 85 So.3d at 466.

The juvenile court may fashion a visitation award that allows the father to demonstrate his suitability for visitation and a relationship with the child in a manner that does not place the child at risk of harm. Accordingly, we reverse the juvenile court’s judgment as to visitation and remand this cause for it to reconsider its award of unsupervised visitation to the father.

The maternal grandparents also contend that the juvenile court failed to comply with the Rule 32, Ala. R. Jud. Admin., child-support guidelines in ordering the father to pay $25 per month in child support for the child. There are no child-support forms in the record on appeal. Rule 32(E), Ala. R. Jud. Admin., requires that the record contain the Rule 32 child-support forms and that the forms be deemed incorporated into the juvenile court’s judgment. Bradford v. James, 879 So.2d 1184, 1187 (Ala.Civ.App.2003) (citing Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998)); Wilkerson v. Wal-drop, 895 So.2d 347, 348^49 (Ala.Civ.App. 2004). Therefore, this court is unable to determine the manner in which the trial court determined the father’s child-support obligation. Accordingly, we reverse the juvenile court’s judgment as to child support and remand this cause for compliance with the Rule 32 child-support guidelines.

REVERSED AND REMANDED.

THOMPSON, P.J., and THOMAS, J., concur.

MOORE, J., concurs in the result, without writing.

DONALDSON, J., concurs in part and dissents in part, with writing, which PITTMAN, J., joins.

DONALDSON, Judge,

concurring in part and dissenting in part.

I concur in that portion of the main opinion reversing the juvenile court’s judgment as to child support and remanding the case for a determination of the amount of child support to be paid pursuant to Rule 32, Ala. R. Jud.' Admin. I respectfully dissent from that portion of the opinion reversing the order of visitation between K.B., the father, and A.B., his minor child.

In this case, the trial court conducted an evidentiary hearing to determine whether visitation should be established between the father and the child, personally observed and heard sworn testimony from the adult parties, judged the credibility of the witnesses, considered the impact of a visitation order upon the child, and rendered a decision finding that the father should have limited unsupervised visitation with his child. In the written order establishing the specific visitation schedule and terms, the trial court acknowledged the arguments against unsupervised visitation but declined to accept those arguments. I agree that the guiding principle in a case such as this one is to determine what is in “ ‘the child’s best interests.’ ” C.O. v. S.O., 85 So.3d 460, 465 (Ala.Civ.App.2011) (quoting Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76, 83 (Ala.Civ.App.2011)). From my review of the record, including the transcript of the hearing, I disagree with the trial court’s decision because supervised visitation would seem to be in the best interest of the child. But that is a finding of fact for the trial court to make, and a finding that an appellate court is prohibited from making. Ex parte R.T.S., 771 So.2d 475, 476-77 (Ala.2000) (noting that the appellate court must not engage in fact-finding or “reweigh the evidence and substitute its judgment for that of the trial court”). A trial court’s discretionary ruling must be affirmed if it is supported by “any credible evidence.” Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998). To reverse that ruling, we must determine that the trial court “ ‘ “committed a clear or palpable error, without the correction of which manifest injustice will be done.” ’ ” D.B. v. J.E.H., 984 So.2d 459, 462 (Ala.Civ.App.2007) quoting in turn Clayton v. State, 244 Ala. 10, 12, 13 So.2d 420, 422 (1942), (quoting 16 C.J. 453). I cannot hold that the decision to permit limited unsupervised visitation between the father and his child was clearly and palpably wrong and creates a “manifest injustice” based on the record before us. The trial court took into consideration the father’s past and weighed the arguments advanced by the maternal grandparents regarding the child’s behavior around the father, and the trial court decided that limited unsupervised visitation was consistent with the best interests of the child. Permitting the father to have this visitation does not “ ‘exceed[ ] the bounds of reason, all the circumstances ... being considered.’ ” Id. (quoting Clayton v. State, 31 Ala.App. 106, 110, 13 So.2d 411, 415, rev’d on other grounds, 244 Ala. 10, 13 So.2d 420 (1942)).

Our law places the responsibility of making difficult decisions regarding child custody and visitation squarely on the shoulders of the trial judge, “who has actually seen and heard the parties and the witnesses [and] is infinitely more qualified to make a decision than an appellate court.” Ex parte D.W.W., 717 So.2d at 796-97. Because I find the trial court’s visitation order to be within the discretion afforded to that court, I respectfully dissent from the reversal of the visitation order.

PITTMAN, J., concurs.

      . The father’s petition for visitation was supported by his affidavit in which he testified that the allegations in his petition were true and correct.

      . The guardian ad litem has filed in this court a response to the maternal grandparents' appeal. However, the juvenile court did not appoint the guardian ad litem until after the hearing on the merits and its resolution of the parties’ positions on the issue of visitation. Therefore, this court, because it cannot determine upon what information the guardian ad litem bases her response, may not consider her recommendation. Further, because the juvenile court first appointed the guardian ad litem in its judgment on the merits of the visitation dispute, it is clear that it could not have relied on any recommendation of the guardian ad litem in reaching its judgment. This court may not consider facts, evidence, or arguments not presented to the trier of fact. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

      . The record indicates that the previous judgments removing the child from the father’s custody, and maintaining that arrangement, contained no express provision regarding the father's visitation with the child. Before the father's incarceration, while DHR had legal custody of the child, DHR afforded the father only supervised visitation, which he exercised occasionally. The May 16, 2011, judgment, entered while the father was in prison, did not address the father's visitation rights. Given those unique facts, and because none of the parties has alleged that the father's action amounts to an action seeking a modification of visitation, we decline to review the father’s claim as one seeking a modification of a previous judgment pertaining to visitation. See H.HJ. v. K.T.J., 114 So.3d 36, 41 (Ala.Civ. App.2012) (explaining that visitation may be modified only upon a showing of a material change in circumstances).


source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    David Lee GAINES v. STATE of Alabama.
    CR-11-0919.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.

      Douglas H. Scofield, Chelsea, for appellant.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   WELCH, Judge.

The Jefferson County grand jury indicted David Lee Gaines on August 5, 2010, for two counts of capital murder. Count one charged Gaines with the intentional murder of Ericka Jean by shooting her with a pistol while she was inside a vehicle, see § 13A-5-40(a)(17), Ala.Code 1975. Count two charged Gaines with the intentional murder of Ericka Jean by shooting her with a pistol while he was inside a vehicle, a violation of § 13A-5^áO(a)(18), Ala.Code 1975. The State dismissed count two before trial.

The case was tried before a jury, and, on March 11, 2011, the jury convicted Gaines of the lesser-included offense of manslaughter. The trial court sentenced Gaines to 20 years in prison. Gaines now appeals.

FACTS

Gaines and Ericka Jean met approximately one year before Jean’s death. They began dating, and Jean and her two children moved into Gaines’s house. After Jean had moved into Gaines’s house, they began fighting. They argued because Gaines did not want to discipline Jean’s son, and they argued because Gaines often gave money to the mother of his son, when Jean thought he should spend the money on her children. Jean planned to leave Gaines and move into a shelter with her children.

On the night before Jean was killed, she and Gaines argued about money, specifically as it related to her children and Gaines’s son. The argument continued the next day. On that day, Shalicia Persons, the owner of the day-care center where Jean took her children, was in her car and stopped at a railroad crossing. Several cars were stopped behind her. Persons saw the man in one of the cars behind her and then heard gunshots — one before he got out of his car, and several after he got out of the car. Persons saw the man pointing the gun inside the car and firing. She recognized Gaines as the man shooting the gun, and she also recognized his car.

After shooting into the car, Gaines got back inside the car and closed the door. Persons turned her car around and got behind Gaines’s car. The train had passed, and Persons and others inside her car were telephoning emergency 911.

An emergency-room nurse at St. Vincent’s Hospital, where Gaines drove himself and the victim after the shooting, testified that when Gaines arrived at the hospital’s emergency room, he signed in, said he had been shot in the right leg, and began undergoing treatment. He did not say anything about Jean until someone asked whether anyone was with him. Gaines responded by pointing toward the window and said that she was in the car and that she had been shot, too. The nurse immediately went out into the parking lot and found Jean, who was not moving or breathing.

The medical examiner testified that Jean had been shot six times. All but one of the gunshot wounds were to the back of her body and were fired from at least three feet away. Several of the gunshot wounds were fatal, and others would have paralyzed her.

Gaines testified on his own behalf at trial. According to Gaines, he argued with Jean about money, but he denied hitting or slapping her. Gaines said that when they were arguing he would grab her to keep her from attacking him. He said Jean was the violent one in their relationship. Although Jean had moved out of his house several times, she had always returned.

Gaines testified that on the day before the shooting, he and Jean were arguing because she was mad that he had given the mother of one of his children extra money. He said that they continued to argue the following day.

On the day of the shooting, Gaines was driving and had stopped his car at a railroad crossing waiting for a train to pass. Jean was in the front passenger seat. Gaines kept his gun on the driver’s side floorboard, in a holster and partially under the driver’s side floor mat. Gaines said that while they were stopped, he and Jean were arguing and Jean slapped him two times with her left hand. When she tried to slap him a third time, Gaines grabbed her hand and opened his door.

Then, Gaines testified, Jean tried to get the gun. According to Gaines, when he grabbed her hand with both of his hands, she fired the gun and a bullet struck his right leg. As they struggled over the gun, Jean fired it two more times.

When Gaines got the gun away from her, he fired as he was getting out of the driver’s side door. He said that he feared for his life after Jean shot him and acted in self-defense. Gaines testified that did not remember shooting into the car while he was standing outside the car.

Gaines did not telephone emergency 911 for an ambulance, and he did not drive to the nearest hospital; instead, he drove approximately 30 minutes to another hospital. When he arrived at that hospital, he did not immediately tell the hospital staff that the other shooting victim was outside in his car.

ANALYSIS

Gaines claims on appeal that the trial court committed reversible error by giving a jury instruction regarding self-defense that was incorrect, misleading, and prejudicial. Gaines asserts: (1) that the instruction improperly substituted the phrase “created the controversy” for the statutory term “initial aggressor,” and (2) that the instruction improperly stated that Gaines had a “duty to retreat.”

The trial court’s instruction on self-defense provided, in relevant part:

“The Defendant does not have the burden of proving that he acted in self defense. To the contrary, once the issue of self defense becomes an issue, the State has the burden of proving that or prove beyond a reasonable doubt that the Defendant did not act under circumstances amounting to self defense. So in conclusion, to prevail in self defense— and there are three things. One, the Defendant must not have created the controversy. Now, when you think about it that makes sense, because it wouldn’t make sense if you could start a controversy and then say, oh, I killed this person in self defense; that wouldn’t make sense at all, would it? Okay. So the Defendant would not have created [the] controversy. Second, at the time of the shooting, the Defendant must have reasonably believed that his life or body was in danger of serious physical injury or death. Thirdly, the Defendant must retreat without using deadly force if he can do so safely.”

(R. 570-71.) (Emphasis added.)

Before the jury retired to deliberate, Gaines made the following objection to the self-defense instruction:

“Judge, relative to the instructions that the Court gave the jury, the Defendant takes exception to a portion of the self-defense charge that the Court gave. The Defendant believes that the law in Alabama uses the terminology, ‘aggressor,’ in that part of the instruction where it refers to a Defendant not being able to claim self defense if he or she were the initial aggressor. I think that’s the language that the law has in it. This Court used the language, ‘he must not have initiated the controversy.’
“The Defendant believes that those two things could mean something totally different especially in a circumstance like this where there is testimony of arguments over a course of time. This jury could easily believe that initiating the controversy may be about starting an argument, but it is clear when you say ‘the initial aggressor,’ you talk about one who is the first to cause or to act in a physical or violent way. And so, for that reason, I think the — we take exception to the instruction that you gave them, and we ask that you go back after lunch and let them — instruct them relative to the issue of him being or not being the initial aggressor.”

(R. 577-78.)

The trial court did not give an additional instruction to the jury on self-defense.

“ ‘A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case.’ ” Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002), quoting Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986). “A trial judge may explain to the jury the legal terms involved in his instructions where his explanation does not qualify, limit, or modify them.” Brackin v. State, 417 So.2d 602, 605 (Ala.Crim.App.1982). “While the better practice is to use the identical language of the statute, the judge need not precisely follow the statutory language in reading the law to the jury.” Id. at 604.

Alabama law defines self-defense in § 13A-3-23, Ala.Code 1975, which states, in relevant part:

“(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose.
“(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
“(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
“(1) With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
“(2) He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.”

(Emphasis added.)

The circuit court’s instruction that self-defense was not available if the defendant “created the controversy” did not accurately reflect the law expressed in the statutory phrase requiring that the defendant not have been “the initial aggressor.” “Aggressor” is defined as “one that commits or practices aggression,” Merriam-Webster’s Collegiate Dictionary 25 (11th ed. 2003), and “aggression” is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Id. at 24. “Controversy,” on the other hand, is defined as “a discussion marked esp. by the expression of opposing views: dispute.” Merriam-Webster’s Collegiate Dictionary 272 (11th ed. 2003). (Emphasis added.) The jury instruction given by the trial court vastly limited the scope of the statute, and it did not accurately reflect the legal principles governing self-defense. The charge was erroneous.

Furthermore, the circuit court’s improper self-defense instruction was not harmless. As Gaines argued at trial, and as he continues to argue on appeal, the instruction could have led the jury to reject Gaines’s defense of self-defense if the jury believed that Gaines “initiated the controversy” by starting an argument with Jean, even if the argument began in the days or weeks preceding the fatal shooting. The statute clearly indicates that self-defense is not available to the initial aggressor, but does not limit the defense to one who might have started an argument or controversy. Therefore, we cannot find that the error in the jury instruction was harmless, and we are compelled to reverse the circuit court’s judgment.

Because we are reversing the judgment for the reasons discussed above, we pre-termit discussion of Gaines’s other claim of error regarding the instruction on the duty to retreat.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

      . In Williams v. State, 46 So.3d 970, 971 (Ala.Crim.App.2010), this Court recognized that the amendment to § 13A-3-23(b), Ala. Code 1975, which removed from the defense of self-defense the duty to retreat and which allows an individual to stand one’s ground, became effective June 1, 2006.


author: PERRY, J. POLSTON, C.J.,

text:
    Robert FRIEDRICH, et ux., Petitioners, v. FETTERMAN AND ASSOCIATES, P.A., Respondent.
    No. SC11-2188.
    Supreme Court of Florida.
    Oct. 24, 2013.
    Rehearing Denied April 16, 2014.

      Rebecca Mercier Vargas and Jane Rreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., West Palm Beach, FL; Scott B. Smith and Margaret M. Bidder of Lytal, Reiter, Smith, Ivey & Fron-rath, West Palm Beach, FL, for Petitioner.
    Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, FL; Daniel C. Methe and Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, FL, for Respondent.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, FL, for Amicus Curiae, Florida Justice Association.
   PERRY, J.

The Petitioners seek review of the decision of the Fourth District Court of Appeal in Fetterman & Assocs., P.A. v. Friedrich, 69 So.3d 965 (Fla. 4th DCA 2011). In this negligence case, the key issue is whether the Fourth District Court of Appeal imper-missibly reweighed the testimony of expert witnesses during trial. We conclude that by reweighing the evidence, the Fourth District’s decision below expressly and directly conflicts with this Court’s decisions in Cox v. St. Joseph’s Hospital, 71 So.3d 795 (Fla.2011), and Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984), and the decisions of other district courts of appeal in Fontana v. Wilson World Maingate Condominium, 717 So.2d 199 (Fla. 5th DCA 1998), Yuniter v.A&A Edgewater of Florida, Inc., 707 So.2d 763 (Fla. 2d DCA 1998), and Schneider v. K.S.B. Realty & Investing Corp., 128 So.2d 398 (Fla. 3d DCA 1961). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

On December 10, 2003, Robert Friedrich was in a car accident and as a result he contacted the personal injury firm of Fet-terman & Associates, P.A. (“Fetterman”), and scheduled a consultation to discuss the possibility of legal representation. On December 19, 2003, Friedrich met with an associate of the firm, and was sitting in the firm’s conference room when his chair collapsed. Friedrich fell backward, hit his head, and landed on the floor. A few minutes after the incident, Friedrich was informed that the firm had a conflict and would not be able to represent him in his auto collision case.

After the chair collapse incident, Fried-rich complained of worsening headaches and neck pain, severe back pain, extremity numbness, and sleep disturbances. Fried-rich was seen by multiple doctors for these symptoms for almost two years. Then in 2006, Friedrich underwent a spinal fusion surgery, which alleviated a majority of the symptoms.

Subsequently, Friedrich sued Fetterman for negligence on the grounds that Fried-rich was a business invitee and that Fet-terman had negligently failed to warn Friedrich of the chair’s dangerous condition.

Evidence produced at trial established that the chair was purchased new as part of a set in 1998 and was used daily without incident in the firm’s conference room until Friedrich’s accident in 2003. During that time, no one at Fetterman performed a physical inspection of the chairs, but the chairs were used daily and there was no indication that any of the chairs were not sturdy or had any problems. Engineering experts for both parties agreed that there was á manufacturing defect in the right rear joint which was internal and would not be visible to the naked eye. Specifically, both experts testified that the chair collapsed because parts of the chair joint— specifically, the mortise (square hole) and the tenon (square peg) did not fit together properly and the glue used for bonding them eventually failed.

Tony Sasso, the plaintiffs expert, testified that he inspects his own chairs every six months by performing a “flex test” on the chairs. Regarding the chair in question, he testified that “a hands-on inspection of the chair before the accident should have found this weak joint.” Fetterman’s expert, Farhad Booeshaghi, testified that the best inspection or test for a chair is for someone to sit on it and that any inspection, including a flex test, would not have revealed the defective joint.

Fetterman moved for a directed verdict at various points during the trial, alleging that the evidence did not establish that the firm had breached any duty and that the plaintiff had failed to establish causation. The trial court denied the motions. The jury determined Fetterman was liable for Friedrich’s injuries. Fetterman moved to set aside the verdict in accordance with prior motions for directed verdict or, in the alternative, for a new trial. These motions were denied. The trial court then issued a final judgment against Fetterman for a substantial amount.

Fetterman appealed the denial of the motion to set aside the verdict or, in the alternative, for a new trial. The Fourth District Court of Appeal reversed the trial court and ordered that a directed verdict be entered in favor of Fetterman because Friedrich had not established causation. Fetterman, 69 So.3d at 968.

Friedrich now seeks relief from this Court, asserting that the decision of the Fourth District is in express and direct conflict with this Court’s decision in Cox, Gooding, and Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001), and the decisions of other district courts of appeal in Fontana, Yuniter, and Schneider. For the reasons that follow, we find that the Fourth District erred in holding that the motion for a directed verdict should have been granted and quash the decision on review.

ANALYSIS

The issue before this Court is whether the district court reweighed legally sufficient evidence of causation from the plaintiffs expert witness that a reasonable inspection of the chair, more likely than not, would have revealed the defect of the chair prior to its collapse. In this case, the Fourth District recognized that in Florida a plaintiff seeking to establish a negligence action must demonstrate that the negligence “probably caused” the plaintiffs injury and that the plaintiffs expert testified that periodic inspections of a chair are reasonable and that an inspection of the chair should have detected the defect. Fetterman, 69 So.3d at 968 n. 2. However, the district court determined that “the jury had no basis from which to conclude that Fetterman would have discovered the defect in the chair without receiving evidence as to how long before the accident flex-testing would have revealed the defect.” Id. at 968.

“[Under Florida law, all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.” Owens, 802 So.2d at 330. Friedrich was Fetterman’s business invitee. As such, Fetterman owed to Friedrich a duty “(1) to use reasonable care to maintain [its] premises in a reasonably safe condition and (2) to warn the invitee of any concealed dangers that the owner knows or should know about, which are unknown to the invitee and cannot be discovered by the invitee through due care.” Morales v. Weil, 44 So.3d 173, 178 (Fla. 4th DCA 2010); see also Yuniter, 707 So.2d at 764.

In order to establish causation in a negligence action, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Gooding, 445 So.2d at 1018.

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Id. (quoting Prosser, Law of Torts § 41(4th ed. 1971)).

Here, the issue is whether the Fourth District erred in holding that Fet-terman’s motion for a directed verdict should have been granted. In Florida, “[a]n appellate court .. •. must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Owens, 802 So.2d at 329. A defendant is entitled to a directed verdict when “the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury,” but a directed verdict is improper “[i]f the plaintiff has presented evidence that could support a finding that the defendant more likely than not caused the injury.” Cox, 71 So.3d at 801 (emphasis in original). A directed verdict “is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation.” Id. When determining whether a directed verdict is appropriate, the reviewing court may not reweigh the evidence or substitute its judgment concerning credibility of the witnesses for that of the trier of fact. Id. at 801 (“It was within the jury’s province to evaluate [the witness’s] credibility and weigh her testimony”).

Turning to the case at hand, the Fourth District correctly recognized that, in order to establish a negligence action, Florida follows the “more likely than not” standard in proving causation, i.e., that the negligence “probably caused” the plaintiff’s injury. Fetterman, 69 So.3d at 968 n. 2. In applying the standard to this case, however, the Fourth District held that even though the plaintiffs’ expert testified that a hands-on inspection should have detected the defect, his testimony was legally insufficient to meet causation because he also testified on cross-examination that it was possible to perform an inspection and not find the defect. Id. at 968.

Based on the plaintiff’s expert’s testimony the Fourth District explained:

Even if the jury concluded that due care required Fetterman to inspect its chairs at regular six-month intervals, the jury had no basis from which to conclude that Fetterman would have discovered the defect in the chair without receiving evidence as to how long before the accident flex-testing would have revealed the defect. In this case, the lack of evidence establishing when the flex-test would have revealed the defect in the chair prior to the injury was an indispensable factor in determining liability.

Id. (internal citations and footnote omitted).

A review of the district court’s opinion and the record demonstrates that the district court impermissibly reweighed the evidence and substituted its own evaluation of the evidence in place of that of the jury. The parties presented expert witnesses who provided different opinions regarding whether Fetterman should have or could have discovered the defect of the chair upon reasonable inspection.

Friedrich presented an expert witness, Tony Sasso, who testified that a “hands-on inspection of the chair before the accident should have found” the “weak joint” in the rear, right side of the chair. Sasso testified that he performs inspections on his chairs every six months, and that in the case at hand, an inspection should have revealed the defect. He stated that people should inspect their chairs even when there is no indication of a problem and that periodic inspections are reasonable. When asked “how often” he does so, Sasso stated that “[wjhenever I — probably every six months or so. Actually me and [my] wife just bought a table and chairs and I did an inspection of those chairs.” On cross-examination, Sasso stated that a hands-on inspection would have found that the right side was more flexible than the left side of the chair. He testified that he did not agree that the best way to inspect a chair was to sit on it and that sitting on a chair was not a way to inspect the chair. On cross-examination, Sasso acknowledged that it was possible to inspect a chair today, find no problem, and have it fail tomorrow. He stated that the right side of the chair in question had a slow failure but that he did not know how slow.

Fetterman’s expert, Farhad Booeshaghi, testified that the best inspection or test for a chair is for someone to sit on it and that any inspection, including a flex test, would not have revealed the defective joint. He testified that the right side of the chair was a fast failure, and that because there was no visual evidence of a problem, since the tenon and mortis are internal components, a reasonable inspection of the chair would not have revealed the defect. He stated that the best test for the stability of the chair was daily usage and that flexing the chair would not have revealed this particular defect.

As stated above, a directed verdict is not proper where there is conflicting evidence regarding causation. Cox, 71 So.3d at 801. Here, the jury was presented with conflicting testimony as to whether the negligence probably caused the injury and whether the injury would not have occurred but for the negligence. Evidence was presented that could serve as a basis to support a finding that the defendant’s negligence caused the injury, i.e., Friedrich’s expert testified that a hands-on inspection should have revealed the defect.

Based on the conflicting testimony above, whether the weak joint in the chair would have been discovered if Fetterman had a procedure in place to inspect the chair was ultimately an issue to be determined by the jury. In this case, there is sufficient “proof that the negligence probably caused the plaintiffs injury,” such that the trial court did not err in denying Fet-terman’s motion for a directed verdict. Gooding, 445 So.2d at 1018. The Fourth District reweighed the evidence and substituted its judgment concerning credibility of the witnesses for that of the trier of fact. Therefore, the reversal of the trial court’s judgment and an order for a directed verdict was improper under these circumstances.

CONCLUSION

For the reasons explained above, we quash the decision of the Fourth District and remand this case for reinstatement of the trial court’s final judgment in accordance with this opinion. We also approve the decisions in Fontana, Yuniter, and Schneider, to the extent that they are consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.

POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.

POLSTON, C.J.,

dissenting.

I respectfully dissent because I conclude that the Fourth District’s decision does not conflict with any of the cases cited by the majority. Therefore, there is no basis for this Court to exercise jurisdiction.

In Cox v. St. Josephs Hospital, 71 So.3d 795, 801 (Fla.2011), this Court set forth the standard for a directed verdict, explaining that a defendant is entitled to a directed verdict when “the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury.” This Court has explained that this means the plaintiff

must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984) (quoting Pros-ser, Law of Torts § 41(4th ed. 1971) (footnotes omitted)).

In this case, the Fourth District applied the directed verdict standard and found that Friedrich had failed to establish that a six-month inspection more likely than not would have prevented the injury because there was no “evidence establishing when the flex-test would have revealed the defect in the chair prior to the injury.” Fetterman & Assocs., P.A. v. Friedrich, 69 So.3d 965, 968 & n. 2 (Fla. 4th DCA 2011). Although the majority states that Fried-rich’s expert testified that “a ‘hands-on inspection of the chair before the accident should have found’ the ‘weak joint’ in the rear, right side of the chair,” the majority fails to mention that this same expert explained on cross-examination that he had no opinion as to how quickly the failure in the chair joint occurred and that the weakened condition could have manifested in a matter of seconds, minutes, hours, days, or weeks prior to the accident. See majority op. at 8-9. Further, this expert conceded that the defect may not have been detectable by an inspection until just before the collapse and offered “no time frame concerning how long before the accident such testing would have been effective.” Fetterman, 69 So.3d at 968. As a result of this testimony, the Fourth District found, that “[e]ven if the jury concluded that due care required Fetterman to inspect its chairs at regular six-month intervals, the jury had no basis from which to conclude that Fetterman would have discovered the defect in the chair without receiving evidence as to how long before the accident flex-testing would have revealed the defect.” Id.

Because the Fourth District simply applied the directed verdict standard to the unique circumstances of this particular expert’s testimony and said nothing that expressly and directly conflicts with this Court’s decisions in Cox and Gooding, this Court does not have jurisdiction. The majority appears to extrapolate conflict between the Fourth District’s decision and this Court’s decisions in Cox and Gooding because it would have reached a different result, which is not a proper basis for this Court’s jurisdiction.

Furthermore, although the majority’s decision does not directly address how the Fourth District’s decision conflicts with the other alleged conflict cases it cites, there is no conflict with these cases because they are factually distinguishable. Specifically, none of the alleged conflict cases involve similar testimony from the plaintiffs expert. Additionally, in Fontana v. Wilson World Maingate Condominium, 717 So.2d 199, 200 (Fla. 5th DCA 1998), the defect in the chair “would have been discovered upon a reasonable inspection,” and there was some evidence which indicated that the chair had not been used for some time prior to the accident. Similarly, in Schneider v. K.S.B. Realty & Investing Corp., 128 So.2d 398, 399 (Fla. 3d DCA 1961), the district court held that whether the hotel’s inspection was reasonable and should have revealed the defect was a question for the jury given that it could be inferred that the chair was defective since it was brand new and “fail[ed] to bear the weight of its first user.” Likewise, in Yuniter v. A & A Edgewater of Florida, Inc., 707 So.2d 763, 764 (Fla. 2d DCA 1998), the district court held that “whether the motel’s inspection of the chair was reasonable was for a jury to determine” and noted that there was a “genuine issue of fact [as to] whether [the guest] could have discovered the danger the chair posed through the exercise of due care” since she had occupied the motel room for over a week. Here, the circumstances are entirely different because the defect was hidden, “a visual inspection would not have revealed the defect,” the chair was not brand new and had been used almost daily without incident prior to the accident, and there was testimony that the defect may not have been detectable until just before the collapse. Fetterman, 69 So.3d at 966, 967.

Accordingly, there is no express and direct conflict, and I would discharge the case.

CANADY, J. concurs.

      . The expert defined a flex test as follows: "[You] take the legs and also hand on the back rail and hand on the front and apply! ] pressure. This will test or flex and test the joint.” "[This] type of testing will test the flexibility of both joints and if one is significantly weaker than the other that would show a weaker joint.”

      . We do not find conflict between the Fourth District’s decision below and Owens.


author: PER CURIAM.

text:
    Jerome K. LOCKHART a/k/a Gregory Tyrone Harris, Petitioner, v. Michael D. CREWS, etc., Respondent.
    No. SC13-513.
    Supreme Court of Florida.
    Jan. 23, 2014.
    Rehearing Denied April 14, 2014.

      Jerome K. Lockhart a/k/a Gregory Tyrone Harris, pro se, Live Oak, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Christina Zuccaro, Assistant Attorney General, Tampa, FL, and Jennifer A. Parker, General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.
   PER CURIAM.

Jerome K. Lockhart A/K/A Gregory Tyrone Harris, an inmate in state custody, filed a pro se petition for a writ of habeas corpus with this Court challenging his conviction and sentence. We dismissed the petition in this case by way of an unpublished order, determining that it was unauthorized pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004). Lockhart v. Crews, 2013 WL 3388380, *1 (Fla. Jun. 27, 2013). In disposing of the petition in this case, we expressly retained jurisdiction to pursue possible sanctions against Lockhart. Id.; see Fla. R.App. P. 9.410(a) (Sanctions; Court’s Motion).

Lockhart was convicted and sentenced to thirty years in prison for robbery by the Circuit Court of the Thirteenth Judicial Circuit, in and for. Hillsborough County, Florida (Case No. 01-CF-019518). Lock-hart appealed his conviction and sentence to the Second District Court of Appeal, which affirmed the judgment of guilt and the sentence imposed. Harris v. State, 873 So.2d 330 (Fla. 2d DCA 2004) (table decision).

Following his direct appeal, Lockhart filed numerous postconviction claims to no avail. Because the petition filed in this case was Lockhart’s twenty-seventh petition for review or extraordinary writ petition pertaining to his criminal case filed in this Court, we issued an order directing Lockhart to show cause why he should not be prohibited from filing any further pro se filings in this Court related to case number 01-CF-019518. Lockhart did not file a response explaining why the Court should not impose sanctions or expressing remorse for his substantial abuse of the Court’s resources. Instead, he used his opportunity to explain his actions to the Court to file multiple handwritten “motions” in which he again asserts the same challenges to the legality of his conviction and sentence that he has presented in other filings that have been repeatedly denied, dismissed, or transferred. All of these motions are hereby denied. After considering Lockhart’s response, we conclude that it fails to show cause why sanctions should not be imposed. We further conclude that Lockhart’s procedurally barred petition filed in this case is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2013).

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Jerome K. Lockhart A/K/A Gregory Tyrone Harris that are related to case number 01-CF-019518, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Lockhart’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, because we have found Lockhart’s petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2013), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where Lock-hart is incarcerated.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

        . See id. at 1238 ("We further conclude that we should not continue denying [] petitions [that attack the results of a petitioner’s criminal case(s) ] either on the merits or on grounds that the claims raised are procedurally barred from being considered in collateral postconviction relief proceedings. Instead, we conclude that we should dismiss such petitions as unauthorized.”).

      . Lockhart v. Crews, No. SC13-513, 2013 WL 3388380 (Fla. order filed June 27, 2013) (dismissing the petition and ordering petitioner to show cause why sanctions should not be imposed and why the petition should not be deemed frivolous).

      . See Lockhart v. State, 114 So.3d 935 (Fla. 2013) (table decision) (all writs petition dismissed); Lockhart v. Crews, 109 So.3d 781 (Fla.2013) (table decision) (habeas corpus petition dismissed); Lockhart v. Crews, 108 So.3d 655 (Fla.2013) (table decision) (habeas corpus petition dismissed); Lockhart v. State, 104 So.3d 1085 (Fla.2012) (table decision) (petition for review dismissed); Lockhart v. State, 103 So.3d 140 (Fla.2012) (table decision) (petition for review dismissed); Lockhart v. Tucker, 72 So.3d 746 (Fla.2011) (table decision) (habeas corpus petition dismissed); Lockhart v. State, 69 So.3d 278 (Fla.2011) (table decision) (petition for review dismissed); Lockhart v. State, 49 So.3d 1266 (Fla.2010) (table decision) (mandamus petition denied); Lockhart v. State, 55 So.3d 1287 (Fla.2010) (table decision) (mandamus petition dismissed); Lockhart v. State, 49 So.3d 236 (Fla.2010) (table decision) (mandamus petition denied); Harris v. State, 47 So.3d 1288 (Fla.2010) (table decision) (mandamus petition denied); Lockhart v. State, 44 So.3d 581 (Fla.2010) (table decision) (petition for review dismissed); Lockhart v. State, 43 So.3d 690 (Fla.2010) (table decision) (petition for review dismissed); Harris v. McNeil, 5 So.3d 668 (Fla.2009) (table decision) (petition for review dismissed); Lockhart v. McNeil, 4 So.3d 1220 (Fla.2009) (table decision) (mandamus petition denied); Lockhart v. State, Case No. SC08-839 (Fla. May 6, 2008) (mandamus petition dismissed); Harris v. State, 991 So.2d 387 (Fla.2008) (table decision) (petition for review dismissed); Harris v. McDonough, 941 So.2d 1171 (Fla.2006) (table decision) (habeas corpus petition dismissed); Harris v. Crist, 939 So.2d 93 (Fla.2006) (table decision) (petition for review dismissed); Harris v. Crist, Case No. SC06-540 (Fla. July 12, 2006) (quo warranto petition transferred to the district court); Harris v. State, 935 So.2d 499 (Fla.2006) (table decision) (petition for review dismissed); Harris v. Crist, 930 So.2d 621 (Fla.2006) (table decision) (quo warranto petition dismissed); Harris v. State, 924 So.2d 808 (Fla.2006) (table decision) (mandamus petition denied); Harris v. State, 917 So.2d 193 (Fla.2005) (table decision) (petition for review dismissed); Hairis v. State, 915 So.2d 1196 (Fla.2005) (table decision) (petition for review dismissed); Harris v. State, 871 So.2d 873 (Fla.2004) (table decision) (petition for review dismissed).

      . See State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (stating that prior to the imposition of sanctions, a court must afford the litigant a meaningful opportunity to show cause why the sanctions are inappropriate).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing scarce judicial resources in this Court. See, e.g., James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Tate v. McNeil, 983 So.2d 502 (Fla.2008).

      . See, e.g., James, 75 So.3d at 232; Johnson, 59 So.3d at 1080; Steele, 14 So.3d at 221.


author: PARIENTE, J. POLSTON, C.J.,

text:
    Peguy DELVA, Petitioner, v. The CONTINENTAL GROUP, INC., Respondent.
    No. SC12-2315.
    Supreme Court of Florida.
    April 17, 2014.
    Travis Robert Hollifield of Hollifield Legal Centre, Winter Park, FL, for Petitioner.
    Andrew Lawrence Rodman and Bayardo E. Aleman of Stearns Weaver Miller Weis-sler Alhadeff & Sitterson, P.A., Miami, FL, for Respondent.
    Phillip Daniel Williams of Magid & Williams, P.A., Jacksonville, FL, for Ami-cus Curiae The National Employment Lawyers Association, Florida Chapter.
   PARIENTE, J.

The issue in this case is whether discrimination on the basis of pregnancy is prohibited by the provision in the Florida Civil Rights Act of 1992 (FCRA), section 760.10, Florida Statutes, that makes it “an unlawful employment practice” for an employer to discriminate based on an individual’s “sex.” § 760.10(l)(a), Fla. Stat. (2011). In Delva v. Continental Group, Inc., 96 So.3d 956, 957-58 (Fla. 3d DCA 2012), the Third District Court of Appeal held that Florida law does not prohibit pregnancy discrimination in employment practices, and therefore affirmed the trial court’s dismissal of the plaintiffs lawsuit, in which she alleges that her former employer took adverse employment actions against her, such as conducting heightened scrutiny of her work and refusing to allow her to change shifts in violation of company policy, after she revealed that she was pregnant. The Third District certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Carsillo v. City of Lake Worth, 995 So.2d 1118, 1120 (Fla. 4th DCA 2008), which held that the prohibition in the FCRA against sex discrimination in employment practices includes a prohibition on discrimination based on pregnancy. Delva, 96 So.3d at 957-58. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons that follow, we determine that the statutory phrase making it an “unlawful employment practice for an employer ... to discriminate ... because of ... sex,” as used in the FCRA, includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex. § 760.10(l)(a), Fla. Stat. We conclude that this construction of the statute is consistent with legislative intent, as expressed in the FCRA itself, that the FCRA “shall be liberally construed.” § 760.01(3), Fla. Stat. (2011). Accordingly, we quash the Third District’s decision in Delva, approve the result of the Fourth District’s decision in Carsillo consistent with the analysis we adopt in this opinion, and remand this case with directions that the trial court reinstate the plaintiffs complaint.

FACTS AND BACKGROUND

In 2011, Peguy Delva filed a lawsuit against her former employer, The Continental Group, Inc., alleging that Continental took adverse employment actions against her due to her pregnancy, in violation of section 760.10 of the FCRA. Specifically, Delva, a front desk manager who worked at a residential property managed by Continental, alleged that Continental conducted heightened scrutiny of her work, refused to allow her to change shifts and work extra shifts despite Continental’s policy permitting those actions, refused to allow her to' cover other workers’ shifts, and refused to schedule her for work after she returned from maternity leave.

The trial court dismissed Delva’s complaint for failure to state a cause of action, and the Third District affirmed even though “there was no doubt as to the sufficiency of the allegation that the plaintiff was discriminated against” on the basis of her pregnancy. Delva, 96 So.3d at 957. As the Third District explained, “[t]he discrete, single issue in this case is whether the Florida Civil Rights Act, section 760.10, Florida Statute[s], prohibits discrimination in employment on the basis of pregnancy.” Id. (footnote omitted).

The Third District acknowledged that the Fourth District in Carsillo, 995 So.2d at 1119, held that discrimination on the basis of pregnancy is prohibited by the FCRA. Delva, 96 So.3d at 958. However, instead of following Carsillo, the Third District adopted reasoning from O’Lough lin v. Pinehback, 579 So.2d 788 (Fla. 1st DCA 1991), in which the First District Court of Appeal stated as follows:

In General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII [of the federal Civil Rights Act of 1964, upon which the FCRA was patterned]. However, in 1978, in response to the Gilbert decision, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978(PDA). 42 U.S.C. § 2000e(k). The PDA specifies that discrimination on the basis of pregnancy is sex discrimination, and therefore violative of Title VII. Florida has not similarly amended its Human Rights Act to include a prohibition against pregnancy-based discrimination.

Delva, 96 So.3d at 958 (quoting O’Lough-lin, 579 So.2d at 791). Accordingly, the Third District held that the FCRA does not encompass pregnancy discrimination. Id. It also certified conflict with the Fourth District’s decision in Carsillo. Id.

In Carsillo, 995 So.2d at 1119, the Fourth District held that the FCRA prohibits pregnancy discrimination “because the Florida statute is patterned after the Federal Civil Rights Act, which considers pregnancy discrimination to be sex discrimination.” The Fourth District reasoned that it was not necessary for the Florida Legislature to amend the FCRA after Congress amended the federal act in response to Gilbert to specify that pregnancy discrimination is prohibited, since “Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination.” Id. at 1120. Therefore, according to the Fourth District, because the FCRA has always prohibited pregnancy discrimination, “it was unnecessary for Florida to amend its law.” Id. In support of its interpretation, the Fourth District cited to the statement of legislative intent found within the FCRA, which states that the FCRA “is to be liberally construed for victims of employment discrimination.” Id. at 1121 (citing § 760.01(3), Fla. Stat.). We granted review of Delva to address the conflict.

ANALYSIS

The conflict issue presented to the Court in this case — whether section 760.10, Florida Statutes, a provision of the FCRA, outlaws discrimination in employment practices based on pregnancy — is a matter of statutory interpretation. This is a pure question of law that we review de novo. See Maggio v. Fla. Dep’t of Labor & Emp’t Sec., 899 So.2d 1074, 1076 (Fla. 2005).

Section 760.10 provides in pertinent part as follows:

(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

§ 760.10, Fla. Stat. (2011).

“When construing a statute, this Court attempts to give effect to the Legislature’s intent, looking first to the actual language used in the statute and its plain meaning.” Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 439 (Fla.2013). Moreover, as to construing the FCRA specifically, this Court is guided by the stated statutory purpose in section 760.01(3), Florida Statutes, which provides that “[t]he Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved.” § 760.01(3), Fla. Stat. (2011); see also Maggio, 899 So.2d at 1077; Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 897 (Fla.2002). As to the purposes of the FCRA, section 760.01(2), Florida Statutes, explains that “[t]he general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status....” § 760.01(2), Fla. Stat. (2011).

Section 760.10 does not specifically include the word “pregnancy” in listing the classes of individuals that are protected from employment discrimination practices under the FCRA. The FCRA does, however, explicitly make it an “unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual’s ... sex.” § 760.10(1), Fla. Stat.

As the Massachusetts Supreme Court explained in determining whether its similar state law prohibiting an employer from discriminating on the basis of “sex” applied to employment discrimination claims based on pregnancy,

the initial inquiry necessarily involves determining whether distinctions based on pregnancy are sex-linked classifications. Pregnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus any classification which relies on pregnancy as the determinative criterion is a distinction based on sex.

Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, 375 Mass. 160, 375 N.E.2d 1192,1198 (1978).

We embrace the common-sense reasoning of the Supreme Court of Massachusetts that pregnancy is a natural condition unique to women and a “primary characteristic of the female sex.” Id. Indeed, the capacity to become pregnant is one of the most significant and obvious distinctions between the female and male sexes. For this reason, discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex and that arises “because of [an] individual’s ... sex.” § 760.10(l)(a), Fla. Stat.

Liberally construing the FCRA to further its purpose to ensure that the women of this state are free from discrimination based on their sex, § 760.01(2)-(3), Fla. Stat., we conclude that discrimination based on pregnancy is subsumed within the prohibition in the FCRA against discrimination based on an individual’s “sex.” As the Minnesota Supreme Court held regarding its state law that at the time “prohibited discrimination in employment on the basis of sex, but did not specifically mention pregnancy and childbirth,” pregnancy discrimination is subsumed within sex discrimination, as “[a] woman should be no more burdened than a man if she chooses to combine the roles of parent and employee, simply because the woman must bear the child.” Minn. Mining & Mfg. Co. v. State, 289 N.W.2d 396, 398, 400 (Minn.1979). To conclude that the FCRA does not protect women from discrimination based on pregnancy — a primary characteristic of the female sex — would undermine the very protection provided in the FCRA to prevent an employer from discriminating against women because of their sex.

Importantly, this interpretation would also be plainly inconsistent with legislative intent, as expressed in the FCRA itself, that the FCRA “shall be liberally construed” to further its purpose “to secure for all individuals within the state freedom from discrimination because of ... sex.” § 760.01(2)-(3), Fla. Stat. Accordingly, we hold that Peguy Delva stated a cause of action for sex discrimination under the FCRA when she alleged that adverse employment actions were taken as a result of her pregnancy, and her complaint therefore should not have been dismissed.

In reaching our conclusion, we reject the reasoning of the Third District that ascribed legal significance to the Florida Legislature’s failure to amend the FCRA to specifically state that it includes pregnancy discrimination after the United States Supreme Court issued its decision in Gilbert in 1976 and Congress amended the federal act in 1978 to specifically include discrimination based on pregnancy. See Delva, 96 So.3d at 958. We also reject Continental’s argument that the failure of the Florida Legislature to amend the FCRA after Gilbert to explicitly state that it includes pregnancy discrimination is an indication of the Legislature’s original intent not to include pregnancy within the meaning of sex discrimination.

To the extent we are to indulge in any presumptions, it is equally notable that the Florida Legislature failed to amend the FCRA after the Fourth District in 2008 decided in Carsillo that the prohibition on sex discrimination in the FCRA included pregnancy discrimination. Carsillo, 995 So.2d at 1119. Ultimately, however, we conclude that it is unnecessary to ascribe any meaning to subsequent legislative inaction in this context. Instead, a liberal construction of the FCRA to effectuate its purposes, as specifically provided for in the statute itself, makes clear that discrimination based on pregnancy, a natural condition unique to females and a primary characteristic of the female sex, is subsumed within the prohibition in the FCRA against sex discrimination in employment practices.

CONCLUSION

For the reasons explained above, we quash the Third District’s decision in Del-va, approve the result of the Fourth District’s decision in Carsillo consistent with our analysis, and remand this case with directions that the trial court reinstate the plaintiff’s complaint. We emphasize, however, that this Court has not been called upon to review the merits of the plaintiffs employment discrimination claim.

It is so ordered.

QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

POLSTON, C.J., dissents with an opinion.

POLSTON, C.J.,

dissenting.

I respectfully dissent because the plain meaning of the Florida Civil Rights Act does not encompass pregnancy discrimination.

Specifically, section 760.10, Florida Statutes (2011) (emphasis added), of the Florida Civil Rights Act of 1992 provides the following:

(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment; because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

The plain meaning and fair import of the term “sex” as used in section 760.10 is gender, meaning whether one is female or male. See Merriam Webster’s Collegiate Dictionary 1073 (10th ed. 2001) (defining “sex” as “either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male”); Gamer’s Modem American Usage 789 (3d ed. 2009) (defining the noun “sex” by referring the reader to the definition of “gender”). On its face, the term “sex” does not refer to whether one is pregnant or not pregnant even though that status is biologically confined to one gender. See Boone v. Total Renal Labs., Inc., 565 F.Supp.2d 1323, 1325 (M.D.Fla. 2008) (“On its face, the FCRA does not cover pregnancy.”); see also Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) (concluding that pregnancy discrimination does not in itself constitute sex discrimination while interpreting Title VII of the federal Civil Rights Act, which at the time included language very similar to Florida’s current statute). Therefore, pursuant to the statute’s plain meaning, section 760.10’s prohibition against sex discrimination does not encompass discrimination on the basis of pregnancy.

Accordingly, I would approve the holding of the Third District, and I respectfully dissent. I also note that recourse for pregnancy discrimination unquestionably exists for Floridians under the plain meaning of current federal law. See Boone, 565 F.Supp.2d at 1326-27 (“Title VII, as amended by the PDA, provides a cause of action for pregnancy discrimination and thus is broader in its protections than the FCRA.”).

      . The National Employment Lawyers Association, Florida Chapter, which is an organization that consists of attorneys who represent employees in claims filed under the FCRA, filed an amicus curiae brief in support of the Petitioner.

      . The Human Rights Act of 1977 was the former name of the FCRA until the Legislature changed the name in 1992. See ch. 92-177, § 1, Laws of Fla. Although the name has been changed and the Legislature made several other statutory revisions in 1992, as well as in the late 1970s and early 1980s, Florida law has prohibited discrimination in employment practices based on an individual's “sex” since the Human Rights Act was first enacted. See ch. 77-341, § 6, Laws of Fla. (stating that "[i]t is an unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual’s ... sex”).

      . Although the Third District accurately quoted from O’Loughlin, it is not entirely clear whether the First District in O’Loughlin actually held that the FCRA does not encompass pregnancy discrimination. While the First District’s decision stated that the FCRA does not "recognize[] that discrimination against pregnant employees is sex-based discrimination,” the First District’s decision ultimately affirmed the appellant’s recovery for pregnancy discrimination based upon a claim she filed under only the FCRA. O’Loughlin, 579 So.2d at 791, 792, 796. As noted by the Fourth District in Carsillo, 995 So.2d at 1120, reliance on O’Loughlin has produced varying results over the years, as the case "has been interpreted differently by federal district courts in which pregnancy discrimination claims have been asserted under the Florida Act.”
      Some courts have recognized that O’Lough-lin actually affirmed an award of back pay for pregnancy discrimination under the FCRA, while others have interpreted O'Loughlin as construing the FCRA to prohibit recovery for pregnancy-based discrimination. See, e.g., Boone v. Total Renal Labs., Inc., 565 F.Supp.2d 1323, 1326 (M.D.Fla.2008) (acknowledging that "[cjourts have differed in their characterization of the O'Loughlin court's holding" and concluding that O’Loughlin stands for the proposition that the FCRA does "not cover pregnancy discrimination”); Jolley v. Phillips Educ. Grp. of Central Fla., Inc., No. 95-147-CIV-ORL-22, 1996 WL 529202, at *6 (M.D.Fla. July 3, 1996) (explaining that O'Loughlin "entertained a pregnancy-based discrimination suit” under the FCRA and recognizing a state law claim for pregnancy discrimination). Another federal court has recently acknowledged the confusion and inconsistency in the law in this area. See Wright v. Sandestin Invs., LLC, 914 F.Supp.2d 1273, 1281-82 (N.D.Fla.2012) (noting that the Florida district courts of appeal are not in agreement as to "whether pregnancy discrimination is actionable under the FCRA”; observing that federal district courts in Florida are "divided on the issue,” which has not been addressed by the Eleventh Circuit Court of Appeals; and anticipating this Court’s ruling in this case).


author: QUINCE, J.

text:
    Terrick M. CROSBY, Petitioner, v. STATE of Florida, Respondent.
    No. SC13-1193.
    Supreme Court of Florida.
    April 17, 2014.
    Terrick M. Crosby, pro se, Malone, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Susan Mary Shanahan, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

We have for review Crosby v. State, 125 So.3d 822 (Fla. 2d DCA 2013), in which the Second District Court of Appeal affirmed the trial court’s dismissal of a conviction of grand theft when the defendant was charged with both grand theft and dealing in stolen property in connection with one scheme or course of conduct. The Second District certified conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), and certified the same questions it had certified in Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), quashed, 121 So.3d 524 (Fla.2013). At the time that the Second District issued its decision below, Williams was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending disposition of Williams v. State, 121 So.3d 524 (Fla.2013). In Williams, we held that the defendant’s convictions for dealing in stolen property and grand theft violated section 812.025, Florida Statutes (2008); that the trial court erred in denying the defendant’s request for a jury instruction modeled after that section; and that the trial court erred in precluding defense counsel from arguing during closing arguments that the jury could find the defendant guilty of either offense. Id. at 534. We concluded that the errors were harmful and quashed the Second District’s decision. Id. We then issued an order in the instant case directing Respondent to show cause why this Court should not accept jurisdiction, summarily quash the Second District’s decision below, and remand for reconsideration in light of our decision in. Williams. Respondent filed a response conceding that it was “unable to show cause why this Court should not accept jurisdiction and remand for reconsideration in light of its opinion in Williams.” Petitioner agreed.

Accordingly, we grant the petition for review, quash the district court’s decision in Crosby, and remand this case to the Second District with instruction that the case be remanded to the trial court for further proceedings consistent with this Court’s decision in Williams.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.


text:
    Tonshad Levon CULPEPPER, Petitioner, v. STATE of Florida, Respondent.
    No. SC13-417.
    Supreme Court of Florida.
    April 17, 2014.
    Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Robert J. Krauss, Chief-Assistant Attorney General and Dawn A. Tiffin, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

We have for review Culpepper v. State, 107 So.3d 521 (Fla. 2d DCA 2013), in which the Second District Court of Appeal affirmed the trial court’s dismissal of a conviction of grand theft when the defendant was charged with both grand theft and dealing in stolen property in connection with one scheme or course of conduct. The Second District certified conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), and certified the same questions it had certified in Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), quashed, 121 So.3d 524 (Fla.2013). At the time that the Second District issued its decision below, Williams was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending disposition of Williams v. State, 121 So.3d 524 (Fla.2013). In Williams, we held that the defendant’s convictions for dealing in stolen property and grand theft violated section 812.025, Florida Statutes (2008); that the trial court erred in denying the defendant’s request for a jury instruction modeled after that section; and that the trial court erred in precluding defense counsel from arguing during closing arguments that the jury could find the defendant guilty of either offense. Id. at 534. We concluded that the errors were harmful and quashed the Second District’s decision. Id. We then issued an order in the instant case directing Respondent to show cause why this Court should not accept jurisdiction, summarily quash the Second District’s decision below, and remand for reconsideration in light of our decision in Williams. Respondent filed a response conceding that it was “unable to show cause why this Court should not accept jurisdiction and remand for reconsideration in light of its opinion in Williams.” Petitioner did not file a reply.

Upon consideration of Respondent’s response, we grant the petition for review, quash the district court’s decision in Cul-pepper, and remand this case to the Second District with instruction that the case be remanded to the trial court for further proceedings consistent with this Court’s decision in Williams.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.