author: ROTHENBERG, J.

text:
    FLORIDA DIVERSIFIED FILMS, INC., Appellant, v. SIMON ROOFING AND SHEET METAL CORP., Appellee.
    No. 3D12-389.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.

      Katz Barron Squitero Faust, and John R. Squitero, H. Eugene Lindsey III, and Mathai Jacob, Miami, for appellant.
    Rumberger, Kirk & Caldwell, and M. Stephen Smith and Manu Leila Davidson, Miami, for appellee.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   ON MOTION FOR REHEARING GRANTED

ROTHENBERG, J.

The appellee, Simon Roofing and Sheet Metal Corp. (“Simon Roofing”), seeks rehearing of this Court’s opinion issued on March 20, 2013. Upon further review, we grant rehearing, withdraw our previous opinion, and substitute the following opinion in its place.

Florida Diversified Films, Inc. (“FDF”), which was the plaintiff below, appeals from the trial court’s order denying its motion for attorney’s fees based on its proposal for settlement, which the defendant below, Simon Roofing, did not accept. We affirm.

In prior consolidated appeals from this same underlying case, Simon Roofing appealed a final judgment entered in favor of FDF for $1,492,000 following a bench trial before Judge Victoria Platzer, and FDF cross-appealed the denial of its request for prejudgment interest (Case Nos. 3D10-2379 and 3D10-2455). This Court affirmed the final judgment in favor of FDF, but reversed the trial court’s denial of FDF’s request for prejudgment interest, and remanded with instructions to award prejudgment interest to FDF in a specific amount. Simon Roofing & Sheet Metal Corp. v. Fla. Diversified Films, Inc., 84 So.3d 1086 (Fla. 3d DCA 2012).

Thereafter, this Court addressed FDF’s motion for appellate attorney’s fees, in which FDF asserted it was entitled to an award of appellate attorney’s fees because the final judgment was at least twenty-five percent greater than the $370,000 proposal for settlement; the proposal for settlement complies with section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442; the proposal for settlement was made in good faith; and Judge Jose M. Rodriguez had already ruled that FDF was entitled to recover attorney’s fees based on the proposal for settlement. Simon Roofing objected to FDF’s motion for appellate attorney’s fees, raising several arguments. On March 9, 2012, this Court granted FDF’s motion for appellate attorney’s fees and costs, and remanded “to the trial court to fix amount.”

However, prior to this Court issuing its opinion in the prior appeals and granting FDF’s motion for appellate attorney’s fee, Judge Platzer agreed to rehear the issue of FDF’s entitlement to attorney’s fees. Following a hearing, Judge Platzer entered a “Final Order Denying Attorney’s Fees to Plaintiff, Florida Diversified Films, Inc.” While the prior appeals were still pending, FDF appealed Judge Plat-zer’s order denying FDF’s entitlement to attorney’s fees, which is the subject of the instant appeal.

In the instant appeal, FDF contends that Judge Platzer’s order denying FDF’s entitlement to attorney’s fees must be reversed pursuant to the law of the case doctrine. Specifically, FDF argues that this Court’s March 9, 2012 order in the prior appeals, which granted FDF’s motion for appellate attorney’s fees and remanded to the trial court to fix the amount, constitutes the “law of the case,” entitling FDF to an award of trial level attorney’s fees and costs. As we conclude that a manifest injustice has been demonstrated sufficient to overcome the law of the case doctrine, we conclude we are not bound in this separate appeal regarding entitlement to trial level attorney’s fees.

“Where successive appeals are taken in the same case ... the doctrine of the law of the case applies.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). This doctrine “requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Id.; see also Suffolk Constr. Co. v. First Sealord Sur., Inc., 63 So.3d 18, 19 (Fla. 3d DCA 2011) (“When an appellate court has decided a question of law, the decision of the court becomes law of the case. This doctrine prevents reconsideration of all issues necessarily decided in the former appeal.”). However, the law of the case doctrine “provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a ‘manifest injustice.’ ” Juliano, 801 So.2d at 106 (citing Strazzulla v. Hendrick, 177 So.2d 1, 5 (Fla.1965)); see also Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So.3d 543, 545 n. 1 (Fla. 5th DCA 2011) (citing Juliano, 801 So.2d at 106; Strazzulla, 177 So.2d at 1) (“An appellate court does have the power to reconsider and correct an erroneous ruling if necessary to prevent a manifest injustice.”); Suffolk Constr. Co., 63 So.3d at 19; Tiede v. Satterfield, 870 So.2d 225, 229 (Fla. 2d DCA 2004) (“[T]o alter the law of the case, we must look to see if the ‘strict adherence to the rule would result in ‘manifest injustice.’ ”); Allstate Ins. Co. v. De La Fe, 647 So.2d 965, 965 (Fla. 3d DCA 1994).

In the prior appeals, this Court on March 9, 2012, granted FDF’s motion for appellate attorney’s fees and remanded to fix the amount. We recognize that, if Simon Roofing cannot demonstrate that strict adherence to that ruling would result in a “manifest injustice,” the law of the case doctrine is applicable, and this Court must reverse Judge Platzer’s ruling based solely on that doctrine. However, based on the unusual circumstances of this case, we conclude that to reverse Judge Plat-zer’s order denying FDF’s entitlement to trial level attorney’s fees would result in manifest injustice.

First, when this Court issued its March 9, 2009 order granting FDF’s motion for appellate attorney’s fees and remanding to fix the amount, FDF’s appeal of Judge Platzer’s order denying FDF’s entitlement to attorney’s fees was pending before this Court. At that time, this Court did not have the transcript of the hearing before Judge Platzer or the initial brief addressing the merits of Judge Platzer’s ruling. Thus, this Court’s March 9, 2012 order granting FDF’s motion for appellate attorney’s fees should have been conditioned upon FDF ultimately prevailing in the instant appeal of Judge Platzer’s order denying FDF’s entitlement to attorney’s fees. See De La Fe, 647 So.2d at 965.

Second, we conclude that Judge Platzer did not abuse her discretion by determining that FDF is not entitled to attorney’s fees based on its proposal for settlement. Therefore, if we reversed Judge Platzer’s order based solely on the law of the case doctrine, manifest injustice would occur as Simon Roofing wrongfully would be required to pay trial level attorney’s fees in the amount of $770,000 to FDF.

In ruling on whether FDF was entitled to attorney’s fees based on its proposal for settlement, Judge Platzer made the following findings of fact, which are supported by competent substantial evidence.

5. On October 30, 2006, Plaintiff, [FDF] filed a complaint against Simon Roofing alleging negligence during a roof repair.
6. The Complaint alleges that as a result of Simon Roofing’s negligence, FDF’s machines would probably need to be re-cleaned and its other business losses have been exacerbated.
7. FDF sought compensatory, incidental, and consequential damages in the Complaint.
8. On April 6, 2007, Plaintiff served a proposal for settlement in the amount of Three Hundred Seventy Thousand Dollars ($370,000.00). As of that date, Plaintiff had not produced any documents nor responded to any discovery from the defendants. No depositions had been taken.
10.The proposal for settlement was rejected by Simon Roofing.
11. Approximately one month prior to serving the proposal for settlement, FDF made the decision to discontinue operations. However, FDF remained in business until approximately June 2007. Simon Roofing first learned that FDF was alleging damages related to the destruction of FDF’s business in September 2007 when FDF served discovery responses.
12. FDF admitted at [a] hearing on January 13, 2012, that no written or verbal notice of FDF’s intent to discontinue operations was provided to Simon Roofing prior to the expiration of the proposal for settlement on May 21, 2007.
13. During trial on May 11, 2010, FDF filed an Amended Complaint.
14. The Amended Complaint alleged that the “failure of FDF’s equipment ultimately resulted in the production of defective product by FDF and the subsequent loss of FDF’s customers, forcing FDF to sell its equipment, shutdown its manufacturing operations and move out of the premises.”
15. The Amended Complaint sought damages, in part, for lost business valuation or alternatively lost profits....
16. On August 6, 2010, this Court entered a final judgment against Simon Roofing for $1,492,000.00.
17. The Final Judgment included destruction of business damages.
18. Absent damages associated with destruction of business damages, FDF’s proposal for settlement would not have reached the 125% threshold required for entitlement to fees.

Based on these facts, Judge Platzer denied FDF’s entitlement to attorney’s fees, relying on this Court’s decision in Segundo v. Reid, 20 So.3d 933 (Fla. 3d DCA 2009). In Segundo, the plaintiff, Cedric Reid, filed a negligence action in August 2004, for injuries he sustained on March 30, 2003, when the defendant, Eucenda Segundo, failed to stop at a stop sign and collided with the plaintiffs vehicle. Id. at 934. The day after the accident, the plaintiff sought treatment from a chiropractor, complaining of shoulder, back, and neck pain. The plaintiffs “Automobile Accident History Form” reflects that the accident caused the plaintiffs “arm to slip out of joint,” and that he was experiencing shoulder pain in addition to lower and upper back pain. Id. at 934 n. 1. The chiropractor, however, treated the plaintiff only for back and neck pain. Id.

Approximately two months after the automobile accident, the plaintiff was treated for a shoulder dislocation following a slip and fall accident. Id. at 934. In 2005, the plaintiff suffered from a second shoulder dislocation as he was turning over in his bed. Id. at 934 n. 2.

As the defendant admitted liability, discovery related primarily to the plaintiffs damages. During discovery, the plaintiff did not refer to his shoulder injury, his slip and fall, or his treatment for any shoulder injury. Id. at 934.

On November 29, 2005, at a time when the plaintiff was claiming damages for injuries only to his back and neck, he served a proposal for settlement on the defendant, pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79 of the Florida Statutes, offering to settle the negligence action for $10,000. Id. at 934-35. The defendant rejected the settlement proposal, and countered with a $1,500 offer, which the plaintiff rejected. Id. at 935.

On May 15, 2006, the plaintiffs attorney moved to continue the trial date to determine whether the shoulder dislocations were causally related to the March 2003 automobile accident. The trial court granted the continuance. Thereafter, in July 2006, the plaintiffs physician issued a report, opining that the March 2003 automobile accident either caused the initial shoulder dislocation or “weakened his shoulder to the extent that it became susceptible to dislocation,” and recommending shoulder surgery to prevent future dislocations. Id. at 935. Based on this report, the plaintiff amended his complaint to add the shoulder injury to his claimed damages. Id.

The action proceeded to trial before a jury. During closing argument, the plaintiffs counsel argued that the plaintiff had pain due to a herniated disc, but that “not much can be done for a herniated disc,” and that the plaintiff was not seeking future medical expenses for his back and neck injuries. Id. The plaintiffs counsel requested that the jury award $13,755 for past medical expenses and $25,000 for future medical expenses for the recommended shoulder surgery. The jury awarded $13,755 for past medical expenses, $5,000 for future medical expenses, zero for past pain and suffering, and $5,000 for future pain and suffering, and thereafter, the trial court entered final judgment in favor of the plaintiff for $13,755 after applying a $10,000 personal injury protection setoff. Id.

Following the entry of final judgment, the plaintiff moved for attorney’s fees pursuant his proposal for settlement served on November 29, 2005, which the defendant did not accept. Id. In response, the defendant argued that the proposal for settlement was not made in good faith because prior to the expiration of the proposal for settlement, the plaintiff did not put the defendant on notice that he would be seeking damages for an alleged injury to his shoulder or provide the defendant with sufficient information to evaluate the proposal for settlement. Id. The trial court granted the plaintiffs motion for attorney’s fees, awarding over $29,000. Id.

On appeal, this Court reversed the award of attorney’s to the plaintiff, noting that “section 768.79(1) serves as a sanction for an unreasonable rejection of a good faith offer of settlement.” Id. at 936. In reversing, this Court held:

Although we conclude that the November 2005 proposal for settlement was made in good faith based upon what the plaintiff believed his injuries and damages were at the time, we nonetheless conclude that pursuant to section 768.79(7)(b), the trial court abused its discretion by not completely disallowing an award of attorney’s fees as that would be the only reasonable award under the circumstances of this case.

Id.

The facts in the instant case are similar to, but more compelling than, those in Segundo. In Segundo, when the plaintiff, Reid, served his proposal for settlement, he did not know that his shoulder dislocations were causally related to the automobile accident, and therefore, he believed that the requested damages in his proposal for settlement pertained only to his neck and back injury, not his shoulder injury.

In contrast, FDF’s initial complaint sought damages for its business income losses due to Simon Roofing’s negligence. However, by the time FDF served its proposal for settlement, it knew that it would be closing its business, and, therefore, also knew that it would be seeking damages for destruction of its business, not merely for its business losses. Despite this knowledge, FDF failed to inform or notify Simon Roofing as to the change in the nature of its claimed damages. Judge Platzer concluded that, because “FDF made no attempt to place Simon Roofing on notice of the destruction of business claim as it should have done in serving its proposal in good faith,” “there is no entitlement to attorneys’ fees in this matter.” In fact, it was during trial that FDF filed an amended complaint to add its claim for destruction of business damages, as those damages were not pled in the initial complaint, and FDF was seeking those damages at the bench trial that was in progress before Judge Platzer.

Based on these facts, we agree with Judge Platzer’s conclusion that “[sjimilar to the facts in [Segundo ], in this case it was not unreasonable for [Simon Roofing] to reject the proposal for settlement.” We also agree with Judge Platzer, who conducted the bench trial, that “[ajbsent damages associated with destruction of business damages, FDF’s proposal for settlement would not have reached the 125% threshold required for entitlement to fees” pursuant to section 768.79 or rule 1.442. Therefore, under these circumstances, Judge Platzer did not abuse her discretion by determining that FDF was not entitled to attorney’s fees because requiring Simon Roofing to “pay attorney’s fees as a sanction for ‘unreasonably’ rejecting [FDF’s] proposal for settlement would penalize [Simon Roofing] for damages not pled nor proven until after the proposal for settlement was rejected and permit [FDF] to benefit from the changing nature of [its] claim after the proposal for settlement expired.” Id. at 938.

Because we conclude that Judge Platzer did not abuse her discretion in denying FDF’s motion for attorney’s fees, and because to award FDF $770,000 for trial attorney’s fees would result in manifest injustice, we affirm Judge Platzer’s order denying FDF’s motion for trial level attorney’s fees.

Affirmed.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Angel ACOSTA, et al., Appellants, v. HEALTHSPRING OF FLORIDA, INC., etc., et al., Appellees.
    No. 3D12-1340.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.
    Ralph George Patino, Coral Gables, and Jose Menendez; Ralph O. Anderson, for appellants.

      Holland & Knight, and Christopher N. Bellows, Marie Lefere, and Joshua R. Le-venson, for appellees.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SALTER, J.

Angel and Maria Acosta appeal a summary final judgment entered in favor of HealthSpring of Florida, Inc. (doing business as “Leon Medical Centers Health Plans, Inc.”), in a circuit court lawsuit relating to a stroke suffered by Mr. Acosta in May 2009. The issue presented is whether the Acostas’ claims against HealthSpring are subject to Florida’s medical malpractice statute and, if so, whether their claims were barred by the two-year statute of limitations and their failure to provide a timely statutory presuit notice to HealthSpring. We reverse, concluding that (1) the Acostas’ claims against HealthSpring were not “claims for medical malpractice” as defined in section 766.106(l)(a), Florida Statutes (2009), and (2) even if the claims are characterized as a matter of law as claims for medical malpractice, the claims related back to the first amended complaint (which had a filing date within the applicable statute of limitations), and HealthSpring waived the statutory presuit notice requirement in its response to that pleading.

Background and Procedural History

Mr. Acosta suffered his stroke in May 2009 and was initially seen at North Shore Medical Center. HealthSpring provided Medicare health insurance benefits to Mr. Acosta. The Acostas’ initial circuit court complaint in 2010 alleged that HealthSpr-ing breached its contract with Mr. Acosta (Count I) and negligently performed that contract (Count II). Count III was Ms. Acosta’s claim for loss of consortium. HealthSpring moved to dismiss the complaint for a failure to attach exhibits, and it removed the case to federal court. There the Acostas filed an amended complaint attaching the pertinent exhibits. HealthSpring filed an answer and affirmative defenses that did not include any specific allegation that the Acostas were required to provide, or had failed to provide, a statutory medical malpractice presuit notice. The federal court then remanded the case to the circuit court in 2011, finding that the Acostas’ state law claims “raise no substantial federal question.”

The Acostas then filed a second amended complaint in which they joined as additional defendants the North Shore Medical Center (where Mr. Acosta was first seen for the stroke) and Dr. Rehan Naqui, a physician who reviewed Mr. Acosta’s case while he was at North Shore. The new counts against North Shore and Dr. Naqui were medical malpractice claims. The Acostas served statutory presuit notices as to North Shore and Dr. Naqui, and they included an allegation to that effect in the second amended complaint. HealthSpr-ing’s answer and affirmative defenses to the second amended complaint alleged that the Acostas “failed to comply with Section 766 et seq., by failing to provide [HealthSpring] with a notice of intent to initiate medical malpractice within the two (2) year statute of limitations for HealthSpring’s alleged failure to render medical care and services to Angel Acosta.”

HealthSpring moved for a summary final judgment regarding the Acostas’ failure to serve a presuit notice and the expiration of the two-year limitations period for medical malpractice claims. The Acos-tas filed a response that included pleadings and deposition testimony. The trial court granted HealthSpring’s motion, and this appeal followed.

Analysis

“We review the summary judgment de novo to determine whether, after viewing every inference in favor of [the non-mov-ant], there is any genuine issue of material fact. If not, we must determine whether [the movant] is entitled to judgment as a matter of law.” Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)).

Because the presuit requirements of Florida’s Medical Malpractice Act limit claimants’ constitutional rights of access to the courts, we narrowly construe the pre-suit notice requirements in favor of such access. Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493 (Fla. 5th DCA 2013).

I. “Medical Malpractice” versus “Ordinary Negligence"

The allegations relating to HealthSpring in the Acostas’ second amended complaint did not address traditional medical assessments, professional judgment, and medical services. The Acostas alleged that Healthspring’s administrative personnel— not medical staff — failed to provide contractual authorization for Mr. Acosta to be transported promptly to the University of Miami hospital for an urgent carotid en-darterectomy to prevent a second major stroke. Dr. Naqui and North Shore allegedly provided diagnosis and initial care— but Healthspring’s administrative delay in authorizing Mr. Acosta’s transfer allegedly resulted in his second stroke four days after the first. The Acostas alleged that one or more administrative employees at HealthSpring belatedly authorized transfer to Mercy Hospital instead of the University of Miami Hospital because HealthSpring enjoyed a lower “preferred provider” rate at Mercy Hospital for the services in question.

The central issue, therefore, was whether the Acostas’ claims against HealthSpr-ing required evidence that HealthSpring’s acts and omissions deviated from accepted standards of medical care. Mere delay, albeit ultimately-critical delay, in arranging transportation to a different hospital to save money, may have involved negligence by clerical personnel of HealthSpring, not medical personnel. In its motion for summary judgment, HealthSpring candidly acknowledged that the distinction between ordinary negligence and medical negligence “is fundamentally fact dependent.” HealthSpring did not provide summary judgment evidence sufficient to conclusively refute the Acostas’ claims that the negligence was contractual and “ordinary” in character rather than “medical negligence.”

In Quintanilla v. Coral Gables Hospital, Inc., 941 So.2d 468 (Fla. 3d DCA 2006), a nurse allegedly spilled hot tea on a patient hospitalized for respiratory difficulties. The hospital raised the patient’s failure to comply with the statutory presuit notice as an affirmative defense. We reversed a summary judgment based on that defense, holding:

This is simply a claim that arises out of the act of serving a cup of hot tea. This is not a claim that arises out of the nurse’s medical judgment in giving Quintanilla the hot tea. The process of serving tea did not involve medical skill or judgment. The injury is not a direct result of receiving medical care from the provider.

Id. at 470. In the case at hand, the undisputed delay in administration — whether caused by telephone tag in the calls from HealthSpring to the two hospitals to check on rates, mere processing delay because of the volume of similar authorizations needed for other claimants those days, or otherwise — creates a triable issue of fact. Administrative delays and refusals in the authorization of medical care have been characterized by the Fourth District as ordinary contract or negligence claims rather than claims for medical malpractice. Solomon v. Well Care HMO, Inc., 822 So.2d 543 (Fla. 4th DCA 2002); Lane v. Health Options, Inc., 796 So.2d 1234 (Fla. 4th DCA 2001).

In response, HealthSpring argues that the 2003 statutory amendment that included health maintenance organizations (HMOs) in the definition of “health care provider” alters the reasoning and result in Solomon and Lane. We disagree. The fact that the organization is a “health care provider” does not talismanically transform every decision (or non-decision) made by a clerk or administrative staffer into a medical judgment.

II. Waiver of the Statutory Presuit Notice Requirement

If we characterized the Acostas’ claims against HealthSpring as “claims for medical malpractice” subject to the statutory presuit statute notice requirement— which we do not — we would then be required to address the Acostas’ second issue on appeal. The Acostas argue that any affirmative defense or denial of a condition precedent based on their failure to provide a statutory presuit notice to HealthSpring was waived because HealthSpring did not plead such an issue in its response to the first amended complaint. HealthSpring maintains that the second amended complaint is the controlling pleading, and HealthSpring did raise the presuit notice issue in its response to the Acostas’ second amended complaint. At that point, however, the applicable two-year statute of limitation had passed, such that a curative statutory presuit notice would have been ineffectual.

The Acostas’ argument is well taken, because the allegations against HealthSpr-ing in the second amended complaint were not materially different than the counterpart allegations in the first amended complaint. The new allegations in the second amended complaint pertained to the additional defendants, North Shore Medical Center and Dr. Naqui. The Acostas had provided a timely statutory presuit notice to each of those defendants.

This scenario falls squarely within the Supreme Court of Florida’s analysis in Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991), which held that the defendant’s failure to timely and specifically raise statutory presuit notice condition until after applicable statute of limitation had run constituted a waiver of the issue. To the extent that Healthspring’s motion and summary final judgment are grounded on the Acostas’ failure to provide a timely presuit notice to HealthSpring, we reverse the summary final judgment on that basis as well.

Conclusion

For these reasons, the summary final judgment for HealthSpring is reversed, and the case is remanded to the trial court for further proceedings.

Reversed and remanded.

      . § 766.202(4), Fla. Stat. (2009).


author: WELLS, Judge.

text:
    LANTANA INSURANCE, LTD., Petitioner, v. Joseph C. THORNTON, III; Jean Thornton; Markhamat (Mya) Abdujalalova; and Robert Dean, Respondents.
    No. 3D13-583.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.
    Quintarnos, Prieto, Wood & Boyer, Jay D. O’Sullivan, Hector R. Rivera and Justin D. Siegwald, for petitioner.
    Richard A. Sherman, Sr., Fort Lauder-dale; Fulmer, LeRoy, Albee Baumann & Glass, and Richard Fulmer, Fort Lauder-dale; Garcia & Smith and Ronald E. Solomon, Key West, for respondents.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   WELLS, Judge.

Lantana Insurance, LTD, seeks certio-rari review of an interlocutory order denying its motion to dismiss a third-party complaint for declaratory judgment. Because the conditions mandated by section 627.4136 of the Florida Statutes have not been met, we grant the writ and quash the order denying dismissal.

Lantana is one of two insurance companies providing homeowners’ insurance to Jean Thornton who allegedly, while walking a friend’s dog, “clothes-lined” Markha-mat Abdujalalova with the dog’s leash as Abdujalalova rode by on a motor scooter. Abdujalalova and her husband, Robert Dean, sued Thornton for negligence. Both Lantana and Thornton’s other insurer, Alfa Insurance, denied coverage and Alfa brought a separate action to secure a declaration regarding coverage. When Lan-tana failed to join in this action or to bring a separate declaratory judgment action, Abdujalalova and her husband filed a third party complaint against Lantana in Alfa’s declaratory judgment action.

Lantana moved to dismiss the third party complaint arguing that section 627.4136 barred such third party claims absent a settlement or verdict against an insured. That provision expressly provides:

It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

§ 627.4136(1), Fla. Stat. (2011).

The motion was denied and the action abated instead.

Generally, certiorari will not lie to address an order denying a motion to dismiss. See S. Owners Ins. Co. v. Mathieu, 67 So.3d 1156, 1158 (Fla. 2d DCA 2011); see also Universal Sec. Ins. Co. v. Spreadbury, 524 So.2d 1167, 1167 (Fla. 2d DCA 1988). However, when an insurer demonstrates that the pre-suit requirements of section 627.4136 have not been met, certiorari review of an order denying a motion to dismiss is appropriate. Mathieu, 67 So.3d at 1158 (“[Wjhere an insurer asserts that the presuit requirements of section 627.4136 have not been met, certio-rari review is appropriate. ... [T]he irreparable harm in such cases arises from the fact that an insurer is being forced to litigate an action brought by a third-party plaintiff which would be barred if, in fact, the requirements of section 627.4136 have not been met.”); see Spreadbury, 524 So.2d at 1167 (confirming that certiorari was appropriate to review an order denying a motion to dismiss a complaint where the conditions precedent to accrual of a cause of action set forth in the predecessor to section 627.4136 had not been met); accord Cincinnati Ins. Co. v. Moffett, 513 So.2d 1345, 1346 (Fla. 1st DCA 1987).

It is undisputed that Abdujalalova and her husband have not obtained a settlement with or verdiet against Thornton. They therefore have no beneficial interest in Thornton’s policy with Lantana and no cause of action against Lantana has accrued. See Mathieu, 67 So.3d at 1158-59; Gen. Star Indem. Co. v. Boran Craig Barber Engel Constr. Co., 895 So.2d 1136, 1138 (Fla. 2d DCA 2005). The third party complaint should, therefore, have been dismissed.

Accordingly, the petition for writ of cer-tiorari is granted and the trial court’s order denying Lantana’s motion to dismiss and abating that action is quashed.


author: SUAREZ, J.

text:
    REGIONS BANK, etc., et al., Appellants, v. MAROONE CHEVROLET, L.L.C., Appellee.
    No. 3D10-1656.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.

      Garbett, Stiphany, Allen & Roza, Philip A. Allen, III, and David S. Garbett, Miami, for appellants.
    Colson Hicks Eidson, Roberto Martinez, and Barbara A. Silverman, Coral Gables, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and FERNANDEZ, JJ.

       Judge Fernandez did not participate in oral argument.

   SUAREZ, J.

Regions Bank, formerly known as Union Planters Bank, N.A., First Source Bank, Peninsula Bank, and Ocean Banks (collectively “the banks”) appeal from a final judgment entered in favor of Maroone Chevrolet, L.L.C. We reverse in part and affirm in part.

This case arose from a business relationship between InterAmerican Car Rental, Inc. and Maroone Chevrolet for the purchase of InterAmerican’s fleet of rental vehicles. The relationship existed from August 1999 until September 2002, when InterAmerican ceased operations. The parties’ practice followed the norm in the industry. Maroone would receive an order for a group of vehicles from InterAmeri-can, and would place an order for the vehicles with the manufacturer. The manufacturer would ship the vehicles directly to InterAmerican but invoice Maroone. Maroone would in turn invoice InterAmeri-can for the amount due on the vehicles delivered. Additionally, Maroone would prepare applications for certificates of title on the vehicles, including any financing lien holders designated by InterAmerican. Upon InterAmerican’s receipt of the vehicles, it would submit a draw request to a financing bank, which would issue a check for the purchase money loan on the subject vehicles payable solely to Maroone or payable jointly to Maroone and Inter American. The checks now at issue were then delivered to InterAmerican.

InterAmerican ultimately went out of business and was unable to repay money owed to Maroone. Consequently, Ma-roone sued InterAmerican’s depository bank and financing banks for statutory and common law conversion and negligence, alleging mishandling of the financing checks. Specifically, Maroone claimed Regions Bank accepted for deposit into InterAmerican’s operating account, and the financing banks issued payment on, nine financing checks made payable: 1) to Maroone; or, 2) to both InterAmerican and Maroone, but were not properly endorsed by Maroone. Five checks, issued by Peninsula Bank to both payees, were included in the latter category: Check No. 7005252 for $655,180.85, Check No. 7006426 for $446,297.87, Check No. 7006452 for $439,346.21, Check No. 7006454 for $387,767.66, and Check No. 7003036078 for $406,070.85. Four checks, issued solely to Maroone, were included in the first category. The first, Check No. 620761, issued by Ocean Bank for $72,361.65, and three other checks issued by First Source Bank: Check No. 67154 for $120,802.43, Check No. 70340 for $516,064.00, and Check No. 71337 for $25,803.20.

On its negligence claim, Maroone sought $4.8 million in consequential damages for InterAmerican’s outstanding receivables based on its claim that Maroone would have stopped doing business with Inter-American sooner if the banks had timely alerted Maroone to InterAmerican’s practice of forging Maroone’s endorsement.

After a bench trial, the lower court entered the final judgment appealed from which denied the consequential damages claim as speculative, but found that the banks breached their duty of ordinary care in their handling of the checks which included Maroone as a payee. It also found that InterAmerican had directly paid Ma-roone for some of the financed vehicles, and accordingly deducted that amount from the damages awarded. The final judgment awarded Maroone: $406,070.85, representing the face amount of Peninsula Bank Check No. 3036078; $25,803.20 for the face amount of First Source Bank Check No. 71337; and $72,361.65 for the face amount of Ocean Bank Check No. 620761. Additionally, the trial court awarded Maroone prejudgment interest on each of these awards at the rate of nine percent beginning in 2002.

The banks now appeal that judgment. They contend the trial court erred in entering judgment in favor of Maroone on the single-payee checks because Maroone never proved InterAmerican was its agent for purposes of delivery. As to the remaining checks, appellants raise several errors, all of which we conclude are merit-less. Lastly, appellants claim the trial court erred in the prejudgment interest award. We address the claims regarding the single-payee checks and prejudgment interest in this opinion.

The appellants do not challenge the lower court’s findings of fact. Thus, because appellants’ arguments rest on questions of law, our review is de novo. See Miami-Dade County v. Wilson, 44 So.3d 1266, 1270 (Fla. 3d DCA 2010).

We turn first to the argument that Maroone’s statutory conversion claim fails for lack of delivery. This claim is based on section 673.4201(l)(b), Florida Statutes (1997), which provides in relevant part: “An action for conversion of an instrument may not be brought by ... [a] payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a copayee.” The banks contend Maroone did not meet the requirements for statutory conversion because it did not prove the subject checks were delivered to either Maroone or its agent. The parties’ briefs concentrate on whether actual or merely constructive delivery is required to satisfy the statute. We conclude instead that application of the statutory exclusion turns on the existence of an agency relationship between Ma-roone and InterAmerican. The question is whether, in receiving the single-payee checks, InterAmerican was acting as Ma-roone’s representative.

It is well settled that an agency relationship may be express or implied from apparent authority, and the burden of proving the agency belongs to the party asserting it. See, e.g., City Nat’l Bank of Detroit v. Basic Food Indus., Inc., 520 F.2d 336, 337 (5th Cir.1975) (“[A]n agent’s authority need not be conferred in express terms, but may be implied under justifying circumstances.”); Roessler v. Novak, 858 So.2d 1158, 1162 (Fla. 2d DCA 2003) (“Although some agencies are based upon an express agreement, a principal may be liable to a third party for acts of its agent which are within the agent’s apparent authority.”); Robbins v. Hess, 659 So.2d 424, 427 (Fla. 1st DCA 1995) (“The party alleging the agency relationship bears the burden to prove it....”). Moreover, because “apparent authority is a form of estoppel [which arises] from ‘the authority a principal knowingly tolerates or allows an agent to assume, or which the principal by his actions or words holds the agent out as possessing,’ ” apparent agency exists only where the principal creates the appearance of authority. Jackson Hewitt, Inc. v. Kaman, 100 So.3d 19, 31 (Fla. 2d DCA 2011) (quoting Owen Indus., Inc. v. Taylor, 354 So.2d 1259, 1261 (Fla. 2d DCA 1978)). Therefore, the focus is on the conduct or words of the principal, not those of the purported agent or the understanding of the person dealing with the purported agent: However, “the third party’s reliance on the purported agent’s apparent authority must be reasonable.” Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998); see also Jackson Hewitt, 100 So.3d at 32; Roessler, 858 So.2d at 1161-62 n. 3.

Here, the allegations in Maroone’s complaint and the testimony at trial incorrectly focused on the understanding of the purported agent, InterAmerican, and the entity dealing with the purported agent, the financing banks, rather than the conduct of the principal, Maroone. The complaint alleges the financing banks delivered checks payable to Maroone to InterAmerican for the benefit and use of Maroone. Representatives of the financing banks and InterAmerican generally confirmed this fact. However, Maroone asserted below that it was unaware Inter-American was accepting financing checks on its behalf. Maroone could not have authorized InterAmerican to do something of which it was unaware. Thus, not surprisingly, the appellants presented no evidence that Maroone did anything to create an agency by placing apparent authority with InterAmerican. On the contrary, other than to avoid the statutory delivery exclusion, Maroone cannot claim InterAmerican as its agent because to do so would legitimize InterAmerican’s actions, including the forging of Maroone’s endorsements. This would be unreasonable.

Accordingly, we conclude Maroone’s claims on the single-payee checks fail for lack of delivery. We, therefore, reverse that part of the final judgment awarding Maroone $25,803.20 for the face amount of First Source Bank Check No. 71337 and $72,361.65 for the face amount of Ocean Bank Check No. 620761.

Maroone presented the following evidence at trial regarding the two-payee checks:

A. Peninsula Bank.

Check No. 7005252 for $655,130.85 — -In August 1999, InterAmerican ordered sixty-two Hyundai cars, naming Peninsula Bank as the lien holder. In September 1999, Peninsula Bank delivered to InterAmeri-can a check payable to InterAmerican and Maroone for sixty-one of the sixty-two cars. InterAmerican typed Maroone’s name on the back of the check and deposited it into InterAmerican’s operating account with Regions Bank. In December 1999, Peninsula Bank delivered to Inter-American another check payable to Inter-American and Maroone in payment of the final car. This time, InterAmerican endorsed the check and delivered it to Ma-roone along with InterAmerican’s check payable to Maroone for twenty-one of the sixty-two cars in the order. Between December 30, 1999, and April 1, 2000, Inter-American sent three checks to Maroone in payment for the remaining cars. This order, therefore, was paid in full.

Check No. 7006Í26 for $U6,297.87 — In March 2002, InterAmerican ordered twenty-three Chevrolet cars, naming Peninsula Bank as the lien holder. Later that month, Peninsula sent a check payable to InterAmerican and Maroone in the amount of $446,297.87 for the order. InterAmeri-can again typed Maroone’s name on the back of the check and deposited it into its account. In June 2002, InterAmerican sent a check to Maroone for eighteen cars from this order. Later that same month, it appears InterAmerican paid the manufacturer directly for two other cars. At trial, the banks’ expert testified that Ma-roone’s ledgers showed a credit for the balance owed on the remaining cars. Thus, the evidence demonstrated the order tied to this check was also paid in full.

Check No. 7006U52 for $¿39,34,6.21 — In April 2002, InterAmerican placed an order for an additional twenty-three Chevrolets with Peninsula Bank as the lien holder. Peninsula sent a check for that order to InterAmerican in the amount of $439,346.21 payable to InterAmerican and Maroone. InterAmerican negotiated the check by typing Maroone’s name on the back and depositing it. In June 2002, InterAmerican sent a check to Maroone that included payment for one of the cars in this order. InterAmerican later sent a second check to Maroone which included payment for another seventeen cars in this order. Additionally, two cars from this order were repaid by InterAmerican’s June check sent in payment for eighteen cars from the March order. The banks’ expert again testified that Maroone’s ledgers showed InterAmerican paid for the remaining three cars in this order. Thus, no outstanding balance remained in connection with this check.

Check No. 7006m for $387.767.66 — .In-terAmerican made a second order in April that consisted of twenty Chevrolet cars, naming Peninsula Bank as the lien holder. The same month, Peninsula gave a check to InterAmerican in the amount of $387,767.66, payable to InterAmerican and Maroone for the order. InterAmerican typed Maroone’s name on the back and deposited the check. InterAmerican then paid Maroone for two of these cars through the June check, which included payment for the initial April order. Inter-American sent another check in June to Maroone for another seven cars from this order. Maroone’s ledger showed full payment on the remaining balance of this order.

Check No. 7003036078 for $406,070.85— In June 2002, InterAmerican ordered nineteen Ford vehicles, naming Peninsula as the lien holder. Peninsula sent a check for this order to InterAmerican in the amount of $406,070.86, which was payable to Inter-American and Maroone. InterAmerican again negotiated the check by typing Ma-roone’s name on the back and deposited it into its account. There is no evidence in the record indicating Maroone received payment for any of these cars. Therefore, the full amount of $406,070.85 remained owing from this order.

It is axiomatic that a plaintiff must prove damages resulting from the defendant’s wrongdoing to be entitled to recover. See, e.g., Bank of Miami Beach v. Neuman, 163 So.2d 333, 333 (Fla. 3d DCA 1964) (“It is fundamental that a person is not entitled to recover damages if he has suffered no injury.”). To prove a pri-ma facie case of conversion, the plaintiff must show evidence of damage, not just liability. See, e.g., Saewitz v. Saewitz, 79 So.3d 831, 833 (Fla. 3d DCA 2012); accord Star Fruit Co. v. Eagle Lake Growers, 160 Fla. 130, 33 So.2d 858, 861 (1948) (reversing because “[t]here was no evidence introduced concerning value” of the specific items allegedly converted). Moreover, the plaintiff must present evidence regarding a “reasonable certainty” as to its amount of damages, and a plaintiffs claim cannot be based upon “speculation or guesswork.” Saewitz, 79 So.3d at 833-34. The plaintiff seeking damages must “adduce evidence ... from which [the trier of facts] could properly determine” the extent of the plaintiffs alleged economic damages. See, e.g., U.S.B. Acquisition Co. v. Stamm, 660 So.2d 1075, 1079 (Fla. 4th DCA 1995).

Because the record here is devoid of evidence supporting damages attributable to the banks’ mishandling of the subject financing checks, with the exception of Peninsula Bank Check No. 7003036078, we affirm the award of damages only to the extent of the amount of this check, $406,070.85, plus any prejudgment interest on this amount. The remaining amount is reversed because there was no evidence to support it. We conclude the trial court properly rejected the claim for consequential damages as speculative.

Lastly, the trial court did not err in calculating prejudgment interest. The amount of prejudgment interest is an element of the plaintiffs damages, and thus is incorporated into the amount of the judgment in cases in which prejudgment interest is due. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985). The interest compensates the plaintiff for the loss of use of the amount awarded, and thus interest accrues from the date the money was due until the date of the judgment. Id. (“[T]he loss itself is a wrongful deprivation by the defendant of the plaintiffs property.”).

Under Florida law, the rate of both prejudgment and postjudgment interest is set by statute. § 687.01, Fla. Stat. (1994); § 55.03, Fla. Stat. (2003). Section 687.01 refers to section 55.03, Florida Statutes (2003), for the rate to be used for prejudgment interest where no contractual interest rate applies. The governing version of section 55.03 provides that Florida’s Chief Financial Officer shall set the interest rate on January 1 of each year and that “[t]he interest rate established at the time a judgment is obtained shall remain the same until the judgment is paid.” § 55.03(1), (3), Fla. Stat. (2003). The same should apply to prejudgment interest. Once the rate is obtained based on the date of loss, it should remain the same. See Genser v. Reef Condo. Ass’n, 100 So.3d 760, 762-63 (Fla. 4th DCA 2012) (applying a fixed rate to prejudgment interest calculations under section 55.03, Florida Statutes (2003)). Thus, the trial court properly determined prejudgment interest.

Accordingly, we reverse the final judgment award of $25,803.20 (for First Source Bank Check No. 71337) and $72,361.65 (for Ocean Bank Check No. 620761). We affirm the award of $406,070.85 (for Peninsula Bank Check No. 7003036078) and affirm the award of prejudgment interest, but remand for calculation of prejudgment interest consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . InterAmerican maintained its operating account at Regions Bank. Peninsula, Ocean, and First Source Banks provided InterAmeri-can with financing for their vehicle purchases.

      . It seems clear that constructive delivery to a payee’s agent or copayee is sufficient. See Attorney's Title Ins. Fund, Inc. v. Regions Bank, 491 F.Supp.2d 1087 (S.D.Fla.2007) (discussing why "delivery” encompasses both physical and constructive delivery); see also Racso Diagnostic, Inc. v. Cmty. Bank of Homestead, 735 So.2d 519, 520 (Fla. 3d DCA 1999).


author: NORTHCUTT, Judge.

text:
    Christopher PODOLSKY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2047.
    District Court of Appeal of Florida, Second District.
    July 17, 2013.
    Howard L. Dimmig, II, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Christopher Podolsky appeals from an order adjudicating him guilty of indirect criminal contempt and sentencing him to six months in county jail, contending that the trial court committed fundamental error by failing to comply strictly with the procedures set out in Florida Rule of Criminal Procedure 3.840. The State candidly concedes error.

The contempt trial stemmed from proceedings to enforce Mr. Podolsky’s compliance with a 2009 final judgment of paternity. In May 2011, a judgment of indirect civil contempt was issued, threatening an indirect criminal contempt action if Mr. Podolsky did not comply with its conditions. In February 2012, after the petitioner in the paternity action filed a motion for civil contempi/enforcement, Mr. Podol-sky appeared at a hearing to show cause why he should not be held in criminal contempt for his failure to comply with the court’s orders. Trial was scheduled for late March 2012.

When Mr. Podolsky appeared at the March 26, 2012, hearing without counsel, the court neither advised him that he was entitled to be represented by an attorney, as provided by rule 3.840(d), nor informed him that an attorney could be appointed for him if he could not afford one. See Cole v. State, 714 So.2d 479, 489 (Fla. 2d DCA 1998). Mr. Podolsky did not knowingly waive his right to counsel; nevertheless, the court proceeded to find him guilty of indirect criminal contempt and sentenced him to six months in jail. This was error. See Ensign v. State, 67 So.3d 353, 354-55 (Fla. 2d DCA 2011) (citing Ingram v. State, 933 So.2d 734, 735 (Fla. 2d DCA 2006)). Accordingly, the judgment and sentence for indirect criminal contempt must be reversed.

Reversed and remanded.

CRENSHAW and SLEET, JJ., Concur.


author: ROTHENBERG, J. EMAS, J.,

text:
    Mario ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-154.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.

      Mario Anderson, in proper person. Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Mario Anderson, who was convicted for having committed a first degree murder, armed burglary, and assault in 1996, when he was sixteen years old, and who received life sentences for the homicide and the armed burglary, appeals the trial court’s order denying his motion to correct what he contends is an illegal sentence under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). For the reasons that follow, we affirm.

First, we conclude that Graham does not apply to this defendant. The Graham court specifically limited its holding to juvenile offenders who do not commit a homicide. “This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonho-micide offenders who are not sufficiently culpable to merit that punishment.” Graham, 130 S.Ct. at 2030.

Second, the defendant’s sentence was final before Miller was decided. In Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), this Court held that Miller does not apply retroactively. See also Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012) (concluding that Miller does not apply retroactively).

Affirmed.

LOGUE, J., concurs.

EMAS, J.,

concurring in part and dissenting in part.

For the reasons expressed in my dissent to the denial of motion for rehearing en banc in Geter v. State, 115 So.3d 385 (Fla. 3d DCA 2013), I respectfully dissent from the majority opinion in the instant case to the extent it holds that the rule announced in Miller v. Alabama, — U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply retroactively to cases already final on direct appeal.


author: PER CURIAM.

text:
    Victor L. PARKER, Appellant, v. KEEFE COMMISSARY, INC., et al., Appellees.
    No. 1D13-0826.
    District Court of Appeal of Florida, First District.
    July 23, 2013.
    Victor L. Parker, pro se, Appellant.
    J. Breck Brannen, of Pennington, Moore, Wilkinson, Tallahassee, for Appel-lees.
   PER CURIAM.

DISMISSED. See Dawkins, Inc. v. Huff, 836 So.2d 1062, 1065 (Fla. 5th DCA 2003); Hemmerle v. Miceli, 445 So.2d 1151 (Fla. 2d DCA 1984).

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


text:
    Michelle SPENCE-JONES, City of Miami and Todd B. Hannon, Appellants, v. Richard P. DUNN, Appellee.
    Nos. 3D13-1182, 3D13-1136.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Bruce S. Rogow and Tara A. Campion, Fort Lauderdale, for Michelle Spence-Jones; Julie O. Bru, City Attorney, Kevin R. Jones and John A. Greco, Assistant City Attorneys, for City of Miami and Todd Hannon.

      Kurkin Brandes and Juan-Carlos “JC” Planas, Aventura, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

This appeal is taken from a declaratory judgment finding the City of Miami Charter precludes the appellant, City Commissioner Michelle Spence-Jones, from seeking reelection for a third consecutive term. On appeal, as below, the parties dispute the effect of the charter provision stating, “[N]o mayor or city commissioner elected and qualified for two consecutive full terms shall be eligible for reelection in the next succeeding term.” Miami, Fla. Charter, Part I.A. § 4(b). Commissioner Spence-Jones argues she is permitted to seek reelection for a third consecutive term because her temporary suspension from office rendered her unqualified for a portion of her second term. Thus, she argues she was not “elected and qualified for two consecutive full terms.”

Commissioner Spence-Jones was elected to the Miami City Commission for her first full term on November 29, 2005. She was re-elected for a second full term and sworn into office on November 12, 2009. The following day, she was temporarily suspended from office by executive order of the governor. She was elected to fill her own vacancy at the resulting special election but was again suspended by executive order. The City Commission then appointed the appellee, Richard Dunn, to fill the vacancy. On August 24, 2011, the governor restored Commissioner Spence-Jones to office following her acquittal of the subject charges. She received full back pay and the emoluments and allowances for the period of her suspension. Commissioner Spence-Jones is presently completing her second term and has filed a Statement of Candidacy for the November 2018 elections. Mr. Dunn brought the present action seeking to declare her ineligible for re-election, alleging it would constitute an impermissible third consecutive term. The trial court, in a well-reasoned order, determined the City Charter did, in fact, preclude Commissioner Spence-Jones from seeking re-election for the next succeeding term. We agree and affirm.

The sole issue on appeal is a question of statutory interpretation. We find no ambiguity in the charter provision. As such, we are required to interpret it according to its plain meaning. St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982). The phrase “elected and qualified” relates to a candidate’s qualifications to run for office. See Holley v. Adams, 238 So.2d 401, 405 (Fla.1970) (“[(Qualified means the performance of the acts which the person chosen is required to perform before he can enter into office.”). One cannot be lawfully elected without first qualifying for election.

This is the only reasonable interpretation upon review of the charter in its entirety. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (“Where possible, courts must give full effect to all statutory provisions.”). The charter specifically identifies the qualifications required to run for office. Section 4(c), titled “Qualifications of mayor and city commission,” states “candidates for the city commission shall have resided within the district at least one (1) year before qualifying and be electors in that district, and shall maintain residence in that district for the duration of their term of office.” Miami, Fla. Charter, Part I.A. § 4(c) (emphasis added). Thus, to qualify for election, the office seeker must have resided within the district for one year. Section 7, titled “Election of city commissioners and mayor,” states “[a]ny person qualified to run for mayor or city commissioner shall file an affidavit of candidacy in the form provided by the city clerk_” Miami, Fla. Charter, Part I.A. § 7 (emphasis added). Once again, the term “qualified” relates to qualifications for election. That section also provides “[t]he name of any person qualified as provided in section 4 of this Charter shall be printed upon the ballot as a candidate for the office.... ” Miami, Fla. Charter, Part I.A. § 7 (emphasis added). Again, “qualified” relates to qualifications to seek election.

Conspicuously absent from this list of qualifications is any mention of a gubernatorial suspension pursuant to section 112.51. Under the charter, such suspension does not disqualify a person from seeking election to the office of City Commissioner. Indeed, while suspended, Commissioner Spence-Jones qualified under the Charter and was elected to fill her own vacancy, only to be once again suspended by the governor. Thus, even though suspended, she was “qualified” to seek and obtain election. The term limitation cannot be read to permit a commissioner to seek election to a third consecutive term simply because, although elected and qualified for two full terms, the commissioner failed to serve each day of those terms.

We conclude Commissioner Spence-Jones was elected and qualified, within the meaning of the charter, to two full terms despite her temporary suspension. Accordingly, she is barred from seeking reelection for a third consecutive term.

Affirmed.

      . Section 112.51, Florida Statutes (2008), permits the governor, by executive order, to suspend from office "any elected or appointed municipal official ... arrested for a felony or for a misdemeanor related to the duties of office or ... indicted or informed against for the commission of a federal felony or misdemeanor or state felony or misdemeanor." § 112.51(2). Upon being cleared of the charges, the governor must restore the official to office with full back pay and other emoluments from the time of suspension. § 112.51(6).

      . Commissioner Spence-Jones encourages this Court to restrict application of the term limitation to candidates who, after election to two full-length terms, remained qualified for and served each day of those terms. Under this interpretation, had the Commissioner been reinstated after a one-week — or even a one-day — suspension, she would be eligible to seek a third consecutive term. We reject this contention. See Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000) ("A statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision.”). As we will explain herein, Commissioner Spence-Jones remained qualified under the charter to hold office during the period of her suspension. The fact that section 112.51(4) temporarily suspended her ability to perform the functions of her office does not alter this interpretation.

      . We note that we must assume a legislative body "know[s] the meaning of the words in the statute and [has] expressed its intent by use of those words.” Overstreet v. State, 629 So.2d 125, 126 (Fla.1993). If the drafters of the charter had desired to create the term limitation Commissioner Spence-Jones urges, they could have done so. See Tampa, Fla. Charter § 2.02 ("No person who has ... served as a member of the city council for two consecutive, full terms shall be elected as a council member for the succeeding term.”) (emphasis added).


text:
    The STATE of Florida, Appellant, v. Jonathan AIDEN, Appellee.
    No. 3D11-1780.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero and Jill Kramer, Assistant Attorneys General, for appellant.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellee.
    Before SHEPHERD, C.J., and SUAREZ, J., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The State of Florida appeals from the trial court’s grant of Jonathan Aiden’s motion to withdraw his plea and vacate his conviction. We affirm.

In June 2010, Aiden pled guilty to driving as a habitual traffic offender in violation of Section 322.34(5), Florida Statutes (2010). He testified that he pled pursuant to advice from the public defender. The trial court accepted his plea of guilty, adjudicated him and sentenced him to credit for time served. One year later, Aiden made an oral in-court motion to withdraw his plea. He asserts that as a result of the 2010 plea, he has been unable to get a driver’s license. The record indicates that at the time of the 2010 plea, there were other valid reasons for his license suspension, including a habitual traffic offender revocation dating from 2007.

Prior to Aiden’s plea in 2010, Bolware v. State, 995 So.2d 268 (Fla.2008), held that license suspension/revocation was a collateral consequence of a plea and that neither the court nor counsel were required to so advise the defendant. The Court also recognized the seriousness of this hardship and the following year, added license suspension/revocation to the plea advisements required by Florida Rule of Criminal Procedure 3.172. In In re Amendments to Florida Rules of Criminal Procedure 3.172 & 3.985 & Amendments to Florida Rule of Civil Procedure 1.985, 20 So.3d 376 (Fla.2009) (effective Oct. 1, 2009), the Court stated:

The proposed amendment to rule 3.172 derived from this Court’s decision in Bolware v. State, 995 So.2d 268 (Fla.2008), where we concluded that, while not a direct consequence of a guilty plea or plea of nolo contendere, the suspension or revocation of a driver’s license constitutes such a serious consequence that a defendant should be informed of it pursuant to rule. We adopt the Committee’s proposal with minor modification, thus amending rule 3.172(c) to require, pursuant to subdivision (10), that the trial judge determine whether the defendant understands that if the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is one for which automatic, mandatory driver’s license suspension or revocation is required by law to be imposed (either by the court or by a separate agency), the plea will provide the basis for the suspension or revocation of the defendant’s driver’s license.
[e.s.]

In Thompson v. State, 50 So.3d 1208, 1211 (Fla. 4th DCA 2010), the court explained application of the amendment to rule 3.172(a)10:

First, at the time the defendant entered the plea, our Supreme Court had held that neither defense counsel nor a trial court was required to inform a defendant about mandatory license suspension or revocation before entry of a plea, because such actions are not punishment and therefore not direct consequences of a plea. Bolware v. State, 995 So.2d 268, 275-76 (Fla.2008). Although the court in Bolware went on to direct that Florida Rule of Criminal Procedure 3.172 be amended to require that a trial court inform a defendant that a plea may result in mandatory license suspension or revocation, that amendment was to apply only prospectively. 995 So.2d at 276.
Second, even if a trial court had been required to inform a defendant about mandatory license suspension before entry of a plea, the record here conclusively shows that the court provided such information. The court told the defendant that if he entered a plea, he “will lose his driver’s license for two years.” The defendant replied “[t]hat’s fine” and entered his plea. After the defendant entered his plea, the court immediately stated, “He is going to lose his driver’s license privilege for two years.” The defendant then asked “is there any way I could [drive a vehicle]?” The court responded, “You shouldn’t be driving a vehicle. I’m sorry. Have someone drive you there.” The defendant replied, “I understand.” A defendant is bound by his sworn answers during a plea colloquy. Iacono v. State, 930 So.2d 829, 831 (Fla. 4th DCA 2006).

The record in Aiden’s case is devoid of any showing that the trial court so advised Aiden during the 2010 plea colloquy, as required by the rule in effect at the time of Aiden’s plea. This supports Ai-den’s claim on appeal that he was not properly advised by the trial court that one of the consequences of his plea might be ineligibility for a driver’s license. For this reason, the trial court correctly granted Aiden’s motion to withdraw his 2010 plea and vacated that conviction.

By affirming the trial court, the impediment to obtaining either a driver’s license or a hardship license that might have been directly attributed to the 2010 plea and conviction has been eliminated. Whatever ineligibility remains to Aiden can now only relate to Aiden’s other “multiple reasons” in his driving record, regardless of counsel’s advice or omission, which is now moot. Furthermore, withdrawing the plea and vacating the conviction may have no effect on Aiden’s inability to get a hardship license. Case law indicates that unavailability of a hardship license (as opposed to a driver’s license) is not a criminal punishment, but a civil regulatory remedy within the discretion of the Florida Department of Highway Safety and Motor Vehicles. See § 322.271, Fla. Stat. (2008) (suspension, cancellation, revocation of driving privileges and administrative remedies). See also Lescher v. Dep’t of Highway Safety & Motor Vehicles, 985 So.2d 1078 (Fla.2008) (holding that statutory amendment eliminating hardship licenses for drivers permanently revoked did not impose criminal punishment, was related to regulatory purpose, and loss of driving privilege was not an affirmative disability); Dep’t of Highway Safety & Motor Vehicles v. Fountain, 883 So.2d 300 (Fla. 1st DCA 2004) (holding that it is within the Department’s discretion to decide whether to reinstate the license of a petitioner who meets statutorily specified requirements).

Affirmed.

      . Any person whose driver's license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . The record is unclear whether this refers to eligibility for a driver's license or for a hardship license.


text:
    Enoch E. DINKENS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1884.
    District Court of Appeal of Florida, First District.
    July 24, 2013.
    Enoch E. Dinkens, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition filed in April 2013, Enoch E. Dinkens, Jr., seeks certiorari review of a January 2013 order of the circuit court prohibiting him from submitting any further pro se postconviction filings. Alternatively, he requests that the court grant mandamus relief and direct removal of the sanction so that he may file another pro se motion for postconviction relief. We DENY the request for mandamus relief, and concluding that he failed to invoke the court’s jurisdiction in a timely fashion, DISMISS his request for certiorari review.

The petition before the court is the latest in of a series of meritless, frivolous pro se petitions and appeals filed by petitioner. We therefore directed him to show cause why sanctions, including but not limited to a prohibition on any further pro se filings in this Court, should not be imposed upon him. Petitioner’s response does not set forth a legal basis that would preclude the imposition of sanctions, nor does it establish that the imposition of sanctions is not warranted.

Accordingly, we hereby prohibit Enoch E. Dinkens, Jr., from filing any further pro se papers in this court concerning his conviction and sentence in Nassau County Circuit Court case number 06-914-CF. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes.

PETITION DENIED in part and DISMISSED in part; SANCTION IMPOSED.

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


text:
    Vincent TAITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0142.
    District Court of Appeal of Florida, First District.
    July 24, 2013.
    Vincent Taite, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Marlin J. OUSLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1013.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Marlin J. Ousley, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Affirmed. Mendoza v. State, 93 So.3d 458 (Fla. 4th DCA 2012); Ross v. State, 82 So.3d 975, 976 (Fla. 4th DCA 2011); Maxwell v. State, 69 So.3d 1122 (Fla. 3d DCA 2011); Harricharan v. State, 59 So.3d 1162, 1163 (Fla. 5th DCA 2011); Rozzelle v. State, 29 So.3d 1141, 1142 (Fla. 1st DCA 2009).


text:
    George Robert SCOTT III, Appellant, v. Elizabeth DARLING, Appellee.
    No. 3D13-1031.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    George Robert Scott, III, in proper person.
    Cheri A Shapiro, Key West, for appellee.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

Appellant, George Robert Scott III, appeals from an Order denying his Motion to Set Aside Default and Vacate Final Judgment. Appellee, Elizabeth Darling, argues that this Court lacks jurisdiction as the appeal was not timely filed. We agree. The order appealed was rendered on June 11, 2012, and the notice of appeal was filed on April 10, 2013. “A timely notice of appeal must be filed within 30 days in order for this court to have jurisdiction; late filing is a defect no one can correct, not even the court.” Sherin v. State, Dep’t of Highway Safety & Motor Vehicles, 104 So.3d 391, 391(Fla. 3d DCA 2013) (quoting Hawks v. Walker, 409 So.2d 524, 525 (Fla. 5th DCA 1982)). Accordingly, this appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.


author: SCHWARTZ, Senior Judge.

text:
    SHYAM AHUJA PRIVATE, LIMITED, etc., Appellant, v. GARDEN ISLANDS INTERNATIONAL, LLC, Appellee.
    No. 3D13-396.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Rasco Klock Perez Nieto and Joseph P. Kloek, Jr. and Roberto E. Moran, Miami, for appellant.
    Hinshaw <& Culbertson and Douglas W. Swalina, Mitchell R. Bloomberg and Steven Carlyle Cronig, Coral Gables, for ap-pellee.
    Before WELLS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Affirmed. See Advanced, Bodycare Solutions LLC v. Thione Int’l, Inc., 514 F.Supp.2d 1326, 1331 (1999) (“Unless a product enters the Florida market by ‘fortuitous circumstances,’ a manufacturer who sells a product in Florida cannot reasonably contend that it should not reasonably foresee being haled into a Florida court in the event of a dispute over the quality of that product.”); Gillins v. Trotwood Corp., 682 So.2d 693, 694 (Fla. 5th DCA 1996) (“[B]y undertaking to specially manufacture equipment knowing its intended destination is a certain state, the manufacturer purposefully creates a connection with that state substantial enough to support in personam jurisdiction.... ”).


text:
    Joel R. KRUGER, Appellant, v. LINCOLN NATIONAL CORPORATION, Appellee.
    No. 3D12-3215.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Richard L. Katz, South Miami, for appellant.
    Kaplan Zeena, William Zeena, Jr., and Stephan Louviere, Miami, for appellee Lincoln National Corporation.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Pursuant to Florida Rule of Appellate Procedure 9.315(a), the order on appeal dismissing Lincoln National Corporation is affirmed.


text:
    W.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2356.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, and Michelle Burgess, Certified Legal Intern, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The appellant, a thirteen-year-old female, was adjudicated delinquent for possession of a firearm discovered after she allegedly gave consent to a police search of her backpack. The search followed a detention apparently based solely on her being in the company of what were described in a BOLO initiated by the victim as seven males involved in a robbery.

Because there was obviously no founded or reasonable suspicion to justify stopping and detaining a person of a different gender than those described, see A.V. v. State, 81 So.3d 587 (Fla. 3d DCA 2012), the confinement was unlawful, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and, as such, irremediably tainted the purported consent even if ar-guendo it actually took place. See Hill v. State, 39 So.3d 437, 440 (Fla. 3d DCA 2010) (“Because the officers’ contact with Hill amounted to a Fourth Amendment investigatory stop, and because the police did not have a well-founded, articulable suspicion that Hill was engaging in criminal activity, Hill’s consent to a search was tainted such that it was not voluntary. Therefore, we reverse the order dying Hill’s motion to suppress.”). Hence, the respondent’s motion to suppress the firearm should have been granted and the cause is remanded for dismissal of the petition.


author: ROTHENBERG, J.'

text:
    The STATE of Florida, Appellant, v. Latorya Latrice COOPER, Appellee.
    No. 3D12-1701.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.'

The defendant, Latorya Latrice Cooper, was charged with Unlawful Driving as a Habitual Traffic Offender, as defined in section 322.264, Florida Statutes (2012), in violation of section 322.34(5), Florida Statutes (2012), a third degree felony. Thereafter, the defendant filed a Motion to Reduce the Charge to a Misdemeanor, arguing that because her license suspensions relate to failures to appear for civil traffic infractions and she has never been convicted of a forcible felony, the offense must be punished as a misdemeanor under section 322.34(10), not as a felony under section 322.34(5). Following a hearing, the trial court granted the motion to reduce, ordering the State to file a misdemeanor information within thirty days. The State’s appeal followed.

The issue raised in this appeal was first addressed by this Court in State v. Wooden, 92 So.3d 886, 888 (Fla. 3d DCA 2012), and later followed by this Court in State v. Gomez, 103 So.3d 258 (Fla. 3d DCA 2012). Because the analysis set forth in Wooden is determinative, we reverse the order granting the defendant’s Motion to Reduce the Charge to a Misdemeanor.

Reversed.

      . We note that the trial court’s order was issued on June 15, 2012, prior to this Court’s issuance of Wooden on July 11, 2012, and Gomez on December 19, 2012. Thus, the trial court in the instant case did not have benefit of this Court’s rulings in Wooden and Gomez when it ruled on Ms. Cooper’s motion.


text:
    ATLANTIC CIVIL, INC., Appellant, v. Edwin O. SWIFT, etc., et al., Appellees.
    No. 3D12-1189.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Rehearing Denied Aug. 23, 2013.
    Shubin & Bass and Jeffrey S. Bass and Katherine R. Maxwell; Hershoff, Lupino, & Yagel, LLP and James S. Lupino, Tav-ernier, for appellant.
    Cole Scott & Kissane and Kristen A. Tajak, Miami, for appellees.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

As a matter of law, the defendants’ unjustified and deliberate denial of access to what all agreed was the plaintiff appellant’s property, a large quantity of “fill” used in road construction, which had been stored on the appellee’s land by mutual agreement, constituted a conversion of that material which required the entry of a judgment in the appellant’s favor for its established value. See Thomas v. Hertz Corp., 890 So.2d 448 (Fla. 3d DCA 2004); Warshall v. Price, 629 So.2d 903 (Fla. 4th DCA 1993); Seymour v. Adams, 638 So.2d 1044 (Fla. 5th DCA 1994). See also Restatement (Second) of Torts § 223 (1965); § 221 (“A dispossession may be committed by intentionally ... barring the possessor’s access to a chattel.”); § 221 cmt. e (“[Ojne who is under a duty to admit to his land a possessor of a chattel who is seeking to obtain it has effectively dispossessed the other of his chattel if he refuses him access to it.”); § 222 cmt. a. (“Normally any dispossession is so clearly a serious interference with the right of control that it amounts to a conversion; and it is frequently said that any dispossession is a conversion.”)

Accordingly, the judgment in the defendants’ favor rendered after a non-jury trial below is to that extent reversed and the cause remanded for entry of judgment for the plaintiff upon computing the amount of material converted at $25.75 per ton.

There is no other error.

Affirmed in part, reversed in part.


text:
    Charlain ST. CHARLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-452.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., SUAREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the judgment entered below, but remand for the trial court to enter a nunc pro tunc written order to reflect the oral finding of competency at the June 3, 2011, hearing. See Francis v. State, 65 So.3d 103 (Fla. 5th DCA 2011).


text:
    Manolo FIGUEROA, Appellant, v. DELANT CONSTRUCTION CO., and Master Construction of South Florida, Inc., Appellees.
    No. 3D12-198.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Marlene S. Reiss, Miami, for appellant.
    Cole Scott & Kissane, P.A., and Anne Sullivan Magnelli, for appellee Master Construction of South Florida, Inc.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Manolo Figueroa (“Figueroa”) appeals the trial court’s entry of final summary judgment in favor of his statutory employer, Master Construction of South Florida, Inc. (“Master Construction”), finding that Master Construction was covered by workers’ compensation immunity for the personal injuries sustained by Figueroa. We affirm.

Figueroa’s action was brought under the intentional tort exception to workers’ compensation immunity as set forth in section 440.11(l)(b)2., Florida Statutes (2009). The intentional tort exception to workers’ compensation immunity is applicable when the employee proves by clear and convincing evidence the following three elements:

1. the employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee; and
2. the employee was not aware of the risk because the danger was not apparent; and
3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

Boston v. Publix Super Mkts. Inc., 112 So.3d 654, 657-58 (Fla. 4th DCA 2013) (citing Gorham v. Zachry Indus., Inc., 105 So.3d 629, 632-33 (Fla. 4th DCA 2013)).

In the instant case, the record conclusively demonstrates that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that Master Construction engaged in conduct it knew was “virtually certain to result in injury or death” to Figueroa. Further, the unrefut-ed evidence demonstrates that the danger or risk was apparent to Figueroa, and that there was no concealment or misrepresentation by Master Construction. Therefore, as Figueroa cannot establish as a matter of law that the intentional tort exception to workers’ compensation immunity is applicable, the trial court properly entered final summary judgment in favor of Master Construction. See Boston, 112 So.3d at 657 (affirming entry of final summary judgment on workers’ compensation immunity, noting that the intentional tort exception set forth in section 440.11(l)(b)2. “adopts a ‘virtual certainty5 standard ..., requiring that the employer’s conduct be virtually certain to result in injury or death in order to overcome immunity”); List Indus., Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013) (noting that based on the “stringent” virtual certainty standard required to overcome an employer’s statutory immunity under section 440.11(l)(b)2., the issue of whether the exception is applicable is “amendable to being decided on summary judgment”); see also Vallejos v. Lan Cargo S.A., 116 So.3d 545 (Fla. 3d DCA 2013). Accordingly, we affirm.

Affirmed.


text:
    Curtis V. EMANUEL, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-2852.
    District Court of Appeal of Florida, First District.
    July 25, 2013.
    Curtis V. Emanuel, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


author: WALLIS, J.

text:
    Timothy M. GARTNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1591.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Appellant, Timothy M. Gartner, challenges his conviction of robbery with a deadly weapon, under section 812.13(2)(a), Florida Statutes (2007), arguing that the trial court erred by: (1) admitting a BB gun into evidence without a sufficient nexus between the BB gun and the robbery; and (2) denying his motion for judgment of acquittal. We affirm.

On December 17, 2007, a man walked into a gas station and demanded the attendant, Danielle Smith, give him money. Ms. Smith originally thought the man was joking, which triggered the man to lift his shirt and expose the handle of a black gun in his waistband. Ms. Smith with the robber’s demand, and he escaped with the money. Though Ms. Smith initially misidentified another man as the robber, she later identified Appellant, in a photo pack and at trial, as the robber.

During the robbery investigation, Detective Philip Lakin determined that Appellant was a suspect based on the surveillance video of the robbery and Appellant’s fingerprints found at the scene of the crime. Two days after the robbery, Detective Lakin observed Appellant outside of a bar, wearing a similar shirt, necklace, hat, and watch as the robber in the surveillance video. As Detective Lakin approached Appellant’s vehicle, he saw part of a black pistol, later identified as a BB gun, under the driver’s seat. Officers arrested Appellant and seized the BB gun, a gas cartridge, and ammunition from his vehicle. When Detective Lakin showed Appellant the surveillance photos from the gas station, Appellant acknowledged his presence in the photos, but maintained that the detective had digitally enhanced the photo to include Appellant’s likeness.

At trial, during direct examination of Ms. Smith, the State did not elicit testimony that the BB gun was the exact weapon used during the robbery; however, defense counsel raised the issue on cross-examination attempting to exclude the BB gun as a potential robbery weapon. Defense counsel focused on a distinct characteristic of the BB gun — a wing nut on the butt of the gun. Ms. Smith testified that she did not recall seeing a wing nut on the robber’s gun; however, when she was pressed by defense counsel, she could not unequivocally state that the BB gun was not the robbery weapon. On redirect examination, the State asked Ms. Smith to compare the two weapons, and she testified that the BB gun handle had the same distinct grip and shape as the handle of the gun that Appellant showed her during the robbery. The State then waited until Detective Lakin’s testimony to proffer the BB gun, and defense counsel objected— arguing that the State failed to provide a proper foundation that the BB gun was the gun used during the crime. Defense counsel conceded that the BB gun was relevant, but argued that its probative value was outweighed by the danger of unfair prejudice. The trial court admitted the BB gun into evidence based on Ms. Smith’s testimony that she recognized the characteristics of the weapon’s handle.

At the close of the State’s case, defense counsel motioned for a judgment of acquittal, arguing that the State did not present evidence that Appellant used a deadly weapon during the robbery. The trial court denied the motion, and Appellant was later convicted of robbery with a deadly weapon. Appellant maintains that the trial court erred by admitting the BB gun into evidence and by denying his motion for judgment of acquittal. We disagree.

Generally, this Court reviews a trial court’s admission of evidence under an abuse of discretion standard. Hudson v. State, 992 So.2d 96, 107 (Fla.2008) (citing Williams v. State, 967 So.2d 735, 747-48 (Fla.2007)). The trial court’s discretion, however, is limited by the rules of evidence. Id. (citing Johnston v. State, 863 So.2d 271, 278 (Fla.2003)).

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2010). “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Id. § 90.403; see also Delhall v. State, 95 So.3d 134, 155 (Fla.2012) (stating general rule of admissibility of relevant evidence). Thus, for the trial court to admit a weapon into evidence, the weapon must be relevant to the alleged crime — evidenced by a sufficient nexus between the crime and weapon. See Jackson v. State, 25 So.3d 518, 528 (Fla.2009) (“In order for this evidence to be relevant, the State must show a sufficient link between the weapon and the crime.”); see also Downs v. State, 65 So.3d 594, 596 (Fla. 4th DCA 2011) (“Generally, where the evidence at trial does not link a seized gun to the crime charged, the gun is inadmissible in evidence.” (citing O’Connor v. State, 835 So.2d 1226, 1231 (Fla. 4th DCA 2003))). Otherwise, the weapon is solely evidence of bad character or propensity to commit the alleged crime, admission of which is an axiomatic error. See Agatheas v. State, 77 So.3d 1232, 1239-40 (Fla.2011).

In determining whether a sufficient nexus exists, the trial court can consider testimony identifying distinct similarities between the weapon used in the crime and the weapon proffered at trial. See, e.g., Council v. State, 691 So.2d 1192, 1194 (Fla. 4th DCA 1997). Likewise, the lapse of time between the crime and the discovery of the proffered evidence may be a considerable factor for the court. Compare Holloway v. State, 114 So.3d 296 (Fla. 4th DCA 2013) (considering temporal separation of one day between crime and seizure of evidence as contributing to sufficient nexus), reh’g denied (June 7, 2013), with Cooper v. State, 778 So.2d 542, 544 (Fla. 3d DCA 2001) (considering temporal separation of nine months between crime and seizure of evidence as significant reason to find connection too tenuous). A sufficient nexus does not, however, require testimony that the proffered weapon is definitively the weapon that was used during the crime. See Holloway, 114 So.3d 296 (citing Herman v. State, 396 So.2d 222, 229 (Fla. 4th DCA 1981)); see also Council, 691 So.2d at 1194 (opining that failure to elicit testimony concerning whether gun admitted was actual robbery weapon is not determinative on admissibility). Indeed, if it is inconclusive that the proffered weapon is the weapon used during the crime but a sufficient nexus exists, it is the jury’s province to determine the credibility and weight of the evidence. See Holloway, 114 So.3d 296 (citing Trolinger v. State, 300 So.2d 310 (Fla. 2d DCA 1974)).

Here, the State proffered the BB gun as evidence tending to prove the material fact that Appellant used the BB gun during the robbery. Thus, it had to show a sufficient nexus between the weapon displayed during the robbery and the BB gun found in Appellant’s vehicle. Ms. Smith testified that she recognized the distinct grips and shape shared by both handles of the pistols, and, when pressed by defense counsel, she was unwilling to testify that the BB gun was not the robbery weapon. In addition, Detective Lakin seized the BB gun from Appellant’s vehicle only two days after the robbery. As such, defense counsel’s attempt to distinguish the weapons, based on the BB gun’s wing nut, made the identification of the BB gun inconclusive but did not make the BB gun inadmissible. Therefore, the trial court did not abuse its discretion by admitting the BB gun into evidence because a sufficient nexus was created, and it was the jury’s province to weigh the physical evidence in relation to the testimony at trial.

Appellant’s argument on his motion for judgment of acquittal is equally unavailing. It is well-settled that whether a weapon is classified as “deadly” is a factual question for the trier of fact. E.g., Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) (holding that whether a BB gun is “likely to produce death or great bodily injury” is question of fact for jury). A jury can conclude that a weapon is either dangerous or deadly if it is implied by the defendant’s words or actions. Santiago v. State, 900 So.2d 710, 711 (Fla. 3d DCA 2005). Ms. Smith’s testimony alone — that Appellant showed her the butt of a gun to effectuate the robbery — is sufficient for the issue to reach the jury. See, e.g., Akins v. State, 838 So.2d 637, 639 (Fla. 5th DCA 2003) (“In the instant case, the victim’s testimony that she thought the weapon was a sawed off shotgun, coupled with Akin’s nonverbal implication that he would use it against the victim, sufficed to support a finding that Akins possessed a firearm during the robbery.”). Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

ORFINGER and EYANDER, JJ, concur.