author: LAGOA, J.

text:
    Estrella ESTRADA and Carlos Estrada, Appellants, v. MERCY HOSPITAL, INC., South Florida Medical Imaging, P.A., and Amisha Agarwal, M.D., Appellees.
    No. 3D12-1529.
    District Court of Appeal of Florida, Third District.
    April 10, 2013.

      Grossman Roth and Neal A. Roth, Coral Gables; Joel S. Perwin, for appellants.
    Wolpe & Leibowitz and Mark A. Lei-bowitz, Miami, and Blake H. Fiery, for appellee Mercy Hospital, Inc.
    Before LAGOA, SALTER and LOGUE, JJ.
   LAGOA, J.

Estrella Estrada (“Estrada”) and her husband, Carlos Estrada, appeal from an arbitration award in a medical negligence claim. The single issue raised on appeal concerns the interpretation of section 766.207(7)(a), Florida Statutes (2012), which provides for an award of loss of earning capacity in voluntary binding arbitration of medical negligence claims. Because we conclude that the arbitration panel erroneously applied the law of damages for loss of earning capacity, we reverse and remand for the arbitration panel to award Estrada damages for her loss of earning capacity based upon her pre-injury life expectancy.

I. FACTUAL AND PROCEDURAL HISTORY

In September 2007, Estrada underwent a routine mammogram at Mercy Hospital. Dr. Amisha Agarwal interpreted the results of Estrada’s mammogram, and did not report evidence of microcalcifications. Two-and-a-half years later, Estrada was diagnosed with stage 3C breast cancer. Estrada has undergone extensive treatment, but currently works full time in the same profession as she did prior to her diagnosis.

Under the alternative arbitration procedure for medical negligence claims set forth in section 766.207, Estrada and her husband Carlos, and Mercy Hospital, Inc., South Florida Medical Imaging, P.A., and Amisha Agarwal, M.D. (collectively, “Mercy”), voluntarily agreed to have the issue of damages arising from “the medical malpractice incident regarding a mammography performed on September 5, 2007, involving Estrella Estrada and a delay in diagnosis of breast cancer” determined by an arbitration panel. See § 766.207(2), Fla. Stat. (2012).

The parties were in disagreement over the issue of damages for loss of earning capacity. As a result, Estrada filed a motion to determine the scope of recoverable economic damages, seeking an order establishing that she “is entitled to present evidence ... regarding her loss of future wage earning capacity based on her severely curtailed life expectancy.” Mercy Hospital filed a response and a motion in limine, arguing that under Florida law Estrada was not entitled to measure her damages for loss of earning capacity based on her pre-injury life expectancy. South Florida Medical Imaging and Argawal also filed a response and motion in limine, arguing that Estrada was “essentially trying to craft a way of having a personal injury claim survive death of the injured party.” The Chief Arbitrator denied Estrada’s motion, and the matter proceeded to arbitration.

Despite the fact that Estrada’s motion was denied, the arbitration panel permitted argument on the issue at the start of the arbitration hearing. After hearing argument, the panel stated that it would allow evidence on both theories of damages and issue its final decision in the arbitration award. Mercy argued that the award of the damages for loss of earning capacity should be limited by Estrada’s shortened, post-injury life expectancy. To that end, Mercy presented testimony regarding Estrada’s loss of earning capacity measured from the date she would have to stop working because of a recurrence of cancer, to her presumed date of death from the recurrence. Estrada claimed that the damages should be based on her pre-inju-ry life expectancy, and presented testimony as to her loss of earning capacity measured from the point at which she would have to stop working because of a recurrence of cancer, to her otherwise normal life expectancy of 82.8 years. Estrada’s calculation of her damages therefore included a time period after her presumed, premature death.

Both Estrada and Mercy presented evidence that the delay in diagnosis resulted in a reduction of Estrada’s future life expectancy. Estrada presented testimony that there is a ninety percent chance that she will have a recurrence of cancer within three to eight years. Mercy presented testimony that there is, at best, a fifty percent chance of recurrence in the next ten years. It was undisputed that a recurrence of cancer will be fatal for Estrada.

The arbitration panel ultimately awarded Estrada and her husband a total of $1,000,608.00 in both economic and non-economic damages. Of that amount, $365,000.00 was awarded to Estrada for present value of loss of earning capacity and household services. In the award, the arbitration panel stated that “[t]he above award rejects Claimants’ request for an award inclusive of future loss of earning capacity beyond the anticipated death of Estrella Estrada.” Estrada appeals from the panel’s award. See § 766.212(1), Fla. Stat. (2012); § 120.68, Fla. Stat. (2012).

II. STANDARD OF REVIEW

In a medical negligence claim, an arbitration panel’s award of economic damages is governed by section 766.207(7). That section states, in relevant part:

(7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law, including the Wrongful Death Act, subject to the following limitations:
(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.

§ 766.207(7)(a), Fla. Stat. (2012). Furthermore, “economic damages,” as used in section 766.207, is defined as follows:

“Economic damages” means financial losses that would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.

§ 766.202(3), Fla. Stat. (2012).

An award made pursuant to section 766.207(7) is treated as final agency action. See § 766.212(1), Fla. Stat. (2012). In an appeal from final agency action, an appellate court reviews an agency’s conclusions of law de novo. See § 120.68(7)(d), Fla. Stat. (2012) (“The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when ... [t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action.”); see also U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139 (Fla. 3d DCA 2012); Dorcely v. State Dep’t of Bus. & Prof'l Regulation, 22 So.3d 834 (Fla. 4th DCA 2009). Because the only issue before us concerns a legal determination made by the arbitration panel, we review the arbitration award de novo.

III. ANALYSIS

We find that the arbitration panel erred in measuring Estrada’s loss of future earning capacity by her post-injury life expectancy. The essence of Mercy’s argument is that Estrada’s claim for loss of earning capacity beyond the date of her “presumed future death” is impermissible because the true beneficiaries of such an award would be her survivors and estate. This argument is erroneous as a matter of law. It is true that in a wrongful death action the decedent’s survivors may recover the value of future loss of support and services and the decedent’s estate may recover loss of prospective net accumulations. See § 768.21(1), (6), Fla. Stat. (2012). However, in Florida, a subsequent wrongful death action is barred when the personal injury litigation results in a judgment favorable to the injured person. Variety Children’s Hosp. v. Perkins, 445 So.2d 1010 (Fla.1988). Once Estrada obtains a judgment in her favor during her lifetime, neither her survivors nor her estate would be entitled to bring a wrongful death action. Estrada therefore is entitled to damages for her entire loss of future earning capacity based on her pre-injury life expectancy in the present medical negligence claim because her survivors and estate will be precluded from recovery for Mercy’s negligence after her death. See In re Joint E. & S. Dist. Asbestos Litigation, 726 F.Supp. 426, 433 (E.D.N.Y.1989) (concluding that since New York courts hold that there can be no wrongful death cause of action where the decedent has obtained a personal injury judgment in his lifetime, the personal injury award must be based on pre-injury work-life expectancy because “[a]ny other rule would result in gross under-compensation”).

Our determination on this issue is consistent with that of the majority of American courts, which calculate an award of loss of earning capacity based on the injured person’s pre-injury life expectancy. As the Supreme Court stated in Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573, 594, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), “[ujnder the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery ‘on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.”’

This principle was applied in Moattar v. Foxhall Surgical Associates, 694 A.2d 435 (D.C.1997), a case analogous to the instant case. In Moattar, the plaintiff sued her physician for medical negligence, alleging that a delay in diagnosing and treating her breast cancer caused her permanent injuries and damages and would probably result in her premature death. Id. at 436. The trial court precluded the plaintiff from presenting testimony regarding the present value of her future loss of earnings, concluding that the issue was not ripe for consideration until the cancer recurred or until the plaintiffs death. Id. The Court of Appeals reversed, concluding that the trial court erred in precluding the plaintiff from presenting her claim for future economic losses. Id. at 440. In reaching its conclusion, the court stated:

A claim for damages for loss of future earnings resulting from injuries suffered due to the negligence of others is a cognizable element of damages during the life of the injured party. District of Columbia v. Barriteau, 399 A.2d 563, 567 (D.C.1979). Here, we are dealing with loss of earnings recoverable by the injured party in a medical negligence case, not in a survival action. See Monias v. Endal, 330 Md. 274, 623 A.2d 656, 659 (1993). The prevailing view is to allow recovery for economic losses based on a plaintiff’s lifespan if unaffected by the injury resulting from the defendant’s negligence. Burke v. United States, 605 F.Supp. 981, 989 (D.Md.1985) (citations omitted). As this court stated in Barriteau, this element of damages represents “the amount that the injured party would have earned but for the injury.” 399 A.2d at 567 n. 6. The allowance for such recovery is consonant with the principal purpose for compensatory damages in such cases, which is to make the victim whole. See id. at 566.
The allowance of future economic losses resulting from diminished life expectancy is not a premature attempt to recover wrongful death and survival damages, as Dr. DeRosa and Surgical Associates contend, but an element of damages recoverable by the injured party during her lifetime where properly proved. See Sear-Land, Servs., Inc. v. Gaudet, 414 U.S. 573, 594, 94 S.Ct. 806, 819, 39 L.Ed.2d 9 (1974).

Id. at 438 (emphasis added).

Similarly, in Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993), the plaintiff sued her physician for negligently failing to diagnose and treat her breast cancer. In affirming the award of “‘post-premature death’ loss of future earnings” the Court of Appeals stated:

In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort. Adams v. Benson, 208 Md. 261, 271, 117 A.2d 881, 885 (1955). We do not discard this fundamental rule of damages where the defendant’s tort shortens the plaintiffs life expectancy.
... We hold, in accord with the majority of other jurisdictions, that the proper measure of lost earnings damages in a personal injury action for a plaintiff whose life expectancy is reduced by the defendant’s negligence is the plaintiffs loss of earnings based on the plaintiffs life expectancy had the tortious conduct not occurred, rather than loss of earnings based on the plaintiffs post-tort shortened life expectancy. “If the injury shortens plaintiffs life expectancy, the weight of American authority nevertheless computes future earning loss on the basis of the life expectancy plaintiff would have had without the injury.” 4 F. Harper et al., The Law of Torts § 25.8, at 552 n. 9 (2d ed. 1986) and cases cited therein; Sear-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974)....

330 Md. at 280-81, 623 A.2d at 659; accord Edgar v. Sec’y of Dep’t of Health & Human Servs., 989 F.2d 473 (Fed.Cir.1993); Lozada v. United States, 140 F.R.D. 404 (D.Neb.1991), aff'd, 974 F.2d 986 (8th Cir.1992); In re Joint E. & S. Dist. Asbestos Litig., 726 F.Supp. at 426; Burke v. United States, 605 F.Supp. 981 (D.Md.1985); Morrison v. State, 516 P.2d 402 (Alaska 1973); Roers v. Engebretson, 479 N.W.2d 422 (Minn.Ct.App.1992); Hall v. Rodricks, 340 N.J.Super. 264, 774 A.2d 551 (App.Div.2001); Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (App.Div.1993). See also Restatement (Second) of Torts § 924, cmts. d, e (1979); 2 J. Stein, Stein on Personal Injury Damages § 6.3 (3d ed.) (“In the case of permanent injuries or injuries causing death, it is necessary, in order to ascertain the damages, to determine the plaintiffs pre-tort life expectancy and pre-tort work-life expectancy because it is pre-tort expectancies, not post-tort, that are relevant to the computation of lost earning capacity.”).

IV. CONCLUSION

In addressing an award of damages for loss of earning capacity, the Supreme Court of Florida explained: “It is the function of an award of damages to place the injured party in an actual, as distinguished from a theoretical position, financially equal to that which he would have occupied had his injuries not occurred.” Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97, 98 (Fla.1950). Mercy can cite to no Florida case in support of the proposition that this statement is not true where the plaintiffs life expectancy is affected by the tortfeasor’s negligence. It is uncontested that Mercy’s failure to timely diagnose and treat Estrada’s cancer is the reason for her shortened life expectancy. Accordingly, her damages for loss of future earning capacity must be based upon her pre-inju-ry life expectancy. To rule otherwise would result in under-compensation for Estrada, and in essence reward Mercy for its negligence.

For the above reasons, we reverse the award of loss of earning capacity, and remand with directions for the arbitration panel to recalculate the award based upon Estrada’s pre-injury life expectancy.

      . “In a proceeding under section 766.207, the liability of the defendants is admitted. The only issue is damages. Those are set by a panel of three arbitrators, one selected by the claimant, one selected by the defendant, and an administrative law judge designated by the Division of Administrative Hearings who serves as the chief arbitrator.” Deno v. Lifemark Hosp. of Fla., Inc., 45 So.3d 959, 960 (Fla. 3d DCA2010).

      . At oral argument, counsel for Mercy Hospital argued that it was not true that the testimony below was undisputed that a recurrence would be fatal to Estrada. A review of the medical experts’ testimony reveals that indeed, this assertion was undisputed by all the experts.

      . One member of the three-member panel, W. Andrew Haggard, dissented to the decision, writing that the majority’s decision to limit Estrada's award for loss of earning capacity to her shortened, post-injury life expectancy was unsupported by Florida law.

      . As stated in the Restatement (Second) of Torts, section 924, comments d and e:

        A. Loss or impairment of earning capacity for the future. The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm. This difference is the resultant derived from reducing to present value the anticipated losses of earnings during the expected working period that the plaintiff would have had during the remainder of his prospective life, but for the defendant’s act. (On the determination of the prospective length of life, see Comment e). Accordingly, the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff probably would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined. In this computation, there are considered the type of work that the plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life, together with all other matters reasonably relevant.
      On the requirement to reduce an award for loss of future earnings to present worth, see § 913A.

        e. The determination of length of life. In the case of permanent injuries or injuries causing death, it is necessary, in order to ascertain the damages, to determine the expectancy of the injured person’s life at the time of the tort. For this purpose it is permissible to use mortality tables and other evidence as to the average expectancy of a large number of persons. If the plaintiff’s physical condition was not that of the average person of that age, or if the plaintiff was or is likely to be in a peculiarly safe or peculiarly hazardous occupation, this additional fact is relevant as indicating a modification of the result that would be derived from an average of all persons. In determining the physical condition of the plaintiff at the time of the tort, all relevant facts known at the trial are considered, including facts not known at the time of the tort. (See § 910). Thus if the injured person was, unknown to him, suffering from a serious malady at the time of the accident, his life expectancy includes a consideration of that fact.
      If the person harmed is alive at the time of trial, ordinarily the opinion of experts on the probable diminution of the plaintiff’s life expectancy as a result of the tort is admissible as bearing upon the impairment of future earning capacity. If he has died before trial from a cause for which the defendant is not responsible, the damages are limited to the elements of loss arising before his death. (On the survival of actions and actions for causing death, see §§ 900, 925, and 926). The reduction of life expectancy is not in itself a compensa-ble element of damages, as distinguished from reduced earning capacity.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    BENGAL MOTOR COMPANY, LTD., d/b/a Maroone Honda of Miami, Appellant/Cross-Appellee, v. Michelle CUELLO, Appellee/Cross-Appellant.
    No. 3D11-1336.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Rehearing Denied Sept. 4, 2013.
    Rehearing Denied Sept. 6, 2013.

      Kirschbaum, Birnbaum, Lippman & Gregoire and Nancy W. Gregoire, Fort Lauderdale; Richard A. Ivers, Coral Springs; Kurkin Forehand Brandes and Alex Kurkin, Aventura, for Bengal Motor Company as amicus curiae, for appellant/cross-appellee.
    Timothy Carl Blake, Miami; Raymond G. Ingalsbe, Palm Beach Gardens, for Michelle Cuello as amicus curiae, for appel-lee/cross-appellant.
    Before SUAREZ, CORTINAS and EMAS, JJ.
   SUAREZ, J.

Appellant/Cross-Appellee Bengal Motor Company, d/b/a Maroone Honda (“Ma-roone”) appeals from a final summary judgment in favor of Appellee/Cross-Ap-pellant Michelle Cuello (“Cuello”) on count two of Cuello’s First Amended Complaint, while Cuello cross-appeals from the final summary judgment in Maroone’s favor on counts one, three, four and five of the First Amended Complaint. Our standard of review on final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). We affirm, on Cuello’s cross-appeal, the trial court’s grant of final summary judgment in favor of Maroone on counts one, three and four of the Complaint. We address only the issue raised in count two of Cuello’s First Amended Complaint and presented on Maroone’s appeal from final summary judgment. On this issue, we affirm that part of the final judgment, limited to the specific facts of this case, finding that Maroone’s use of conditional language in its Bailment Agreement and Retail Buyers Order violated the “finality” requirement of the Truth in Lending Act (“TILA”), as applied to its separate offer of credit terms, and was thus, as a matter of law, a violation of the Florida Motor Vehicle Retail Sales Finance Act (“FMVRSFA”). We reverse, however, that part of the final summary judgment granting monetary damages to Cuello as a result of that violation.

Cuello sought to buy a car from Ma-roone. She signed three documents at the dealership: 1) the Retail Buyer’s Order (“RBO”), which states that on a credit transaction the purchaser’s offer is not accepted until approved by the dealer and a bank or finance company, that Maroone retains title until all funds owed are paid, and if financing is not approved, Maroone can terminate the agreement at its option; 2) the Retail Sales Installment Contract (“RISC”), subject to TILA, and which contains financing terms to be submitted to the financing company for approval; and 3) the Bailment Agreement for Spot Delivery, which allowed Cuello to drive the vehicle off the dealer’s lot that same day. The Bailment Agreement states that the car remains dealer property pending financing approval and provides that, if financing is not approved, the purchaser may either sign a new RISC agreement with new finance terms or return the vehicle. The Bailment Agreement also states that it is attached to and forms part of the sales agreement. The RBO indirectly references the other documents.

After signing all three documents, the dealership allowed Cuello to leave with the car that day (a practice widely referred to as “spot delivery”). Subsequently, Cuello was not approved for financing at the terms recited in the RISC. The dealership notified her that she could sign a second RISC with different financing terms and a higher annual percentage rate, or she could return the vehicle to the dealership. Cuello did neither, and Ma-roone repossessed the vehicle.

Cuello sued Maroone, alleging 1) damages for common law fraud in the inducement; 2) damages for violation of the FMVRSFA; 3) damages for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”); 4) injunctive and declaratory relief under FDUTPA; and, 5) damages for wrongful repossession. The trial court granted summary judgment in Maroone’s favor on all five of Cuello’s claims. On motion for rehearing, however, the trial court allowed Cuello to re-plead count two under FMVRSFA in light of preemptive TILA requirements.,

The case was then reassigned to a different circuit court judge, who heard arguments on both parties’ motions for summary judgment based solely on the allegations in count two of the Second Amended Complaint. The trial court held that, as a matter of law, the conditional language contained in the Buyer’s Order and Bailment Agreement negated the finality requirement in TILA for the financial disclosures made in the RISC, constituting a TILA violation and, consequently, a per se violation of FMVRSFA. Although Cuello incurred no actual monetary damages, the trial court granted to Cuello the amount of finance fees authorized by section 520.212(2) charged by reason of Maroone’s “violation.”

Although Maroone provided in the RISC all TILA disclosures required by federal law, the trial court’s concern was that the RISC did not refer to or mirror the conditional language of the RBO and Bailment Agreement, i.e., that absent from the RISC was language notifying the buyer that the consummation of the deal was contingent on the buyer being approved for third-party financing at the rates disclosed in the RISC. Cuello argued, and the trial court agreed, that the conditional language of the other two documents compromised the “finality” of the RISC agreement pursuant to TILA, thus it was not a “final” statement of the deal under TILA and the consumer was thus not contractually obligated. Such a lack of finality under TILA, Cuello argued, is a per se violation of the Florida FMVRSFA statute. We agree.

Regulation Z of TILA requires that the creditor disclose the identity of the creditor, the amount being financed, the annual percentage rate, the total sale price, and the total amount of payment. 15 U.S.C. § 1638(a); 12 C.F.R. § 226.18. These disclosures must be made “before credit is extended,” see 12 C.F.R. § 226.17(b); see also 15 U.S.C. § 1638(b)(1), a point known as “consummation.” “Consummation” refers to the time that a consumer becomes contractually obligated on a credit transaction. 12 C.F.R. § 226.2(a)(13). Regulation Z also provides that, when determining the point at which a consumer becomes contractually obligated to a credit agreement, state law should govern. See 12 C.F.R. § 226, Official Staff Commentary 2(a)(13). However, although state law is determinative of when a contractual relationship is created it has nothing whatsoever to do with how the transaction is to be characterized for TILA purposes; that question is governed by federal law. And the federal courts have held that TILA’s disclosure requirements become effective at the point in the transaction at which the buyer signs a credit agreement and becomes obligated to pay on it, regardless of the level of the creditor’s commitment. Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1066 (11th Cir.2004).

Here, two of the three documents that Cuello signed, the Buyer’s Order and the Bailment Agreement for spot delivery, were unambiguous that the sale transaction was contingent upon her securing financing at the rates provided in the RISC. It is true that when parties execute two or more documents concurrently in the course of one transaction concerning the same subject matter, the documents must be read and construed together; and where one or more provisions of a contract conflict, “they should be construed so as to be reconciled, if possible.” Dodge City, Inc. v. Byrne, 693 So.2d 1033, 1035 (Fla. 2d DCA 1997). But in this particular case, the RISC did not contain any of the language of contingency, nor did it reference the other two documents. See Hunter v. Bev Smith Ford, LLC, 2008 WL 1925265, *1 at *5 (S.D.Fla. Apr.29, 2008), which states,

Section 520.07 [FMVRSFA] does not expressly or implicitly prohibit financing contingencies. Since the statute directly links this legislation to TILA, the principles of law established for interpreting TILA should instruct the interpretation of FMVRSFA. Since courts in this district have already held that conditions precedent that are conspicuously stated in the RISC do not violate TILA, the same should be true for FMVRSFA.

The RISC in Hunter also contained language notifying the buyer that, “[t]his Lease and/or Retail Installment Sales Contract is conditioned pending financial institution (Bank, Sales Finance Company, Credit Union, etc.) funding. This selling motor vehicle dealership DOES NOT LEND MONEY OR ACCEPT MONTHLY PAYMENTS.” Hunter, 2008 WL 1925265 at *3. The Hunter court concluded that

[m]ultiple courts in this district have held that consummation occurs upon the purchaser’s signature of the RISC or sales contract. See, Bragg at 1066-68; Muro v. Hermanos Auto Wholesalers, Inc., 514 F.Supp.2d 1343, 1349-50 (S.D.Fla.2007); Cannon v. Metro Ford, Inc., 242 F.Supp.2d 1322, 1329-30. Each of those cases, however, is distinguishable because, here, defendant specifically stated in the RISC that the consummation of the contract was conditional upon third party financing. Specifically including such a disclaimer is critical and fundamentally changes the point when consummation occurs from the moment the customer signs the RISC to the point where the third party accepts the terms of the financing agreement. As the Muro court explained:
CQt bears emphasizing that this decision does not prevent car dealers like Defendant from conditioning car sales on the later acceptance of a potential buyer’s credit. “If Defendant wants to engage in such a conditional credit agreement in the future, however, it must, as it could have here, clearly indicate that fact in the credit agreement documents.”
Muro at 1350; see also, Bragg at 1067 (“no condition precedent set forth in the RISCs themselves”); Cannon at 1330 (“RISC was not made contingent upon plaintiffs’ obtaining financing”). Thus, the parties entered into a conditional contract, which is permitted by law. Since the condition precedent never occurred, the contract was never consummated and defendant could not have violated TILA.

Hunter, 2008 WL 1925265 at *3, *4 (emphasis added). In Cuello’s case, the TILA disclosures in the RISC were made before credit was extended by the third-party lender, but the RISC did not contain any language notifying Cuello that the deal was contingent on securing financing. Thus, the federal cases on this narrow TILA issue indicate that the sale was consummated when Cuello signed the RISC, not when a third party lender approved financing (or not) at the stated rates. The language of contingency set forth in the RBO and Bailment Agreement, not mirrored in the RISC, negated the TILA requirement of finality. We agree with the trial court’s conclusion that this results in a TILA violation, and, thus, a per se violation of FMVRSFA.

We disagree, however, with the trial court’s award of damages to Cuello based on section 520.12(2), as she did not suffer any actual damages as a result of Maroone’s conduct. Section 520.12(2), Florida Statutes (2011), states:

(2) In the case of a willful violation of this part with respect to any retail installment sale, the buyer may recover from the person committing such violation, or may set off or counterclaim in any action against the buyer by such person, an amount equal to any finance charge and any fees charged to the buyer by reason of delinquency, plus attorney’s fees and costs incurred by the buyer to assert rights under this part.

§ 520.12(2), Fla. Stat. (2011) (emphasis added).

Regardless of whether Maroone’s conduct was willful, the court erred in awarding Cuello damages because, unlike TILA’s penalty provisions, which allow a party to collect damages for technical violations of that statute even when no actual damages have been incurred, Chapter 520 does not contain such a penalty provision. Indeed, the record reflects that Cuello did not seek damages under TILA. Cuello paid no finance charges and no fees were charged to her pursuant to that statute by reason of the delinquency. Because Cuel-lo suffered no compensable damages under Chapter 520, Maroone was entitled to summary judgment on this issue. We therefore reverse that portion of the final judgment awarding damages to Cuello and remand for proceedings consistent with this opinion.

Affirmed in part, and reversed in part.

      .Cuello does not appeal from the summary judgment in favor of Maroone on count five of the Complaint.

      . 15 U.S.C. 1601 etseq.

      . Ch. 520, Fla. Stat. (2011).

      . Chapter 501, Fla. Stat. (2011).

      . Chapter 679, Fla. Stat. (2011).

      . See 15 U.S.C. 1601, etseq.

      . The trial court's order granting rehearing and accepting Cuello’s Second Amended Complaint reiterated its dismissal of Counts 1, 3, 4, and 5, and specifically stated that it was limited to hearing only Count 2, alleging a cause of action under FMVRSFA based on alleged failure to comply with TILA and Regulation Z.

      .We limit our holding to the specific facts of this case, which might well have resulted in a different outcome had the RISC included language specifically indicating that the consummation of the contract was conditional upon third party financing. See, e.g., Muro v. Hermanos Auto Wholesalers, Inc., 514 F.Supp.2d 1343, 1349 (S.D.Fla.2007) ("[T]his decision does not prevent car dealers ... from conditioning car sales on the later acceptance of a potential buyer’s credit.... [HJowever, it must ... clearly indicate that fact in the credit agreement documents.”).

      . See 15 U.S.C. § 1640.

      . See, e.g., Chastain v. N.S.S. Acquisition Corp., 2009 WL 1971621 (S.D.Fla. Jul. 8, 2009) (holding that where plaintiff alleged no cognizable damages under chapter 520, FMVRSFA, dismissal was appropriate and no damages could be awarded); Jones v. TT of Longwood, Inc., 2007 WL 2298020 (M.D.Fla. Aug.7, 2007) (finding no damages under FMVRSFA because the buyer was never charged any fees or finance charges by the dealer).


author: SHEPHERD, C.J.

text:
    Katracy DAWSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-749.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.

      Katracy Dawson, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   ON ORDER TO SHOW CAUSE

SHEPHERD, C.J.

On March 20, 2013, Katracy Dawson filed a Petition For Writ of Habeas Corpus. Subsequently, we ordered Dawson to show cause why we should not prohibit him from filing further pro se pleadings with this court regarding the conviction and sentence imposed on him in lower tribunal number F97-32589. After carefully considering Dawson’s response to this court’s show cause order and reviewing the record, we are compelled to prohibit Dawson from filing any additional pro se appeals, pleadings, motions, or petitions that concern these convictions and sentences. See State v. Spencer, 751 So.2d 47 (Fla.1999).

I. Facts

Dawson was sentenced to life imprisonment after being convicted of two counts of attempted first-degree murder of a law enforcement officer. Dawson since has filed over fifteen meritless petitions or motions for post-conviction relief arising from lower tribunal case number F97-32589.

In his current petition, Dawson argues two grounds entitle him to habeas corpus review. First, Dawson contends the information and jury instruction’s use of the conjunction “and/or” constitute fundamental error, when the use of that conjunction was set between the victims’ names. The defendant, however, concedes he “discharge[d] two shots at [the] officers” and that he later discharged another shot “at them.” Consequently, even if the conjunction “and/or” made the jury instructions defective in some way, under the totality of the circumstances, such error does not reach down into the validity of the trial because Dawson’s concession provides overwhelming evidence he attempted to murder either Officer McCue, Officer Goldberg, or both. See Croom v. State, 36 So.3d 707, 710-11 (Fla. 1st DCA 2010) (holding use of “and/or” between the names of the victims did not constitute fundamental error when overwhelming evidence demonstrates the defendant’s guilt); see also Wilson v. State, 933 So.2d 598, 599-600 (Fla. 3d DCA 2006) (explaining the “and/or” conjunction in no way prejudiced the defendant when the conjunction is placed between the names of two officers who the defendant resisted during an arrest).

Second, Dawson asserts the jury instruction was defective because it did not possess an essential element, i.e., that the defendant knew the victim was a law enforcement officer. Dawson is correct that attempted first-degree murder against a law enforcement officer requires the element of knowledge. See Thompson v. State, 695 So.2d 691, 692 (Fla.1997). However, such a claim of judicial error is procedurally barred if not raised on direct appeal. See Robinson v. State, 913 So.2d 514, 524 n. 9 (Fla.2005); see also Ponton v. State, 971 So.2d 813, 814 (Fla. 3d DCA 2007). Accordingly, this claim is procedurally barred. Like previous petitions and motions, we conclude Dawson’s current petition is wholly frivolous.

II. Frivolous Appeals by Prisoners

As we have stated before, “incarcerated persons have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012) (quoting Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005)). Because there is “no constitutional right to file a frivolous lawsuit,” frivolous post conviction motions and petitions are not among an incarcerated person’s procedural vehicles. See Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except perhaps the punishment of ... sanctions.”). Indeed, there comes a point when enough is enough. After careful review of Dawson’s filings in this court, we believe that Dawson has reached that point.

III. Conclusion

We, therefore, deny Dawson’s Petition for Writ of Habeas Corpus on the merits. We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions, or other papers relating to Dawson’s conviction and sentence in lower court case number F97-32589 unless they are filed by a Florida Bar member in good standing.

In addition, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Dawson pursuant to Florida Statutes Sections 944.279(1) and 944.28(2)(a). See Pettway v. McNeil, 987 So.2d 20 (Fla.2008).

      . Dawson v. State, 50 So.3d 612 (Fla. 3d DCA 2010); Dawson v. State, 19 So.3d 318 (Fla. 3d DCA 2009); Dawson v. State, 9 So.3d 628 (Fla. 3d DCA 2009); Dawson v. State, 7 So.3d 1110 (Fla. 3d DCA 2009); Dawson v. State, 3 So.3d 333 (Fla. 3d DCA 2009); Dawson v. State, 995 So.2d 501 (Fla. 3d DCA 2008); Dawson v. State, 986 So.2d 612 (Fla. 3d DCA 2008); Dawson v. State, 980 So.2d 1209 (Fla. 3d DCA 2008); Dawson v. State, 974 So.2d 1076 (Fla. 3d DCA 2008); Dawson v. State, 937 So.2d 671 (Fla. 3d DCA 2006); Dawson v. State, 933 So.2d 533 (Fla. 3d DCA 2006); Dawson v. State, 861 So.2d 38 (Fla. 3d DCA 2003); Dawson v. State, 848 So.2d 325 (Fla. 3d DCA 2003); Dawson v. State, 825 So.2d 1080 (Fla. 3d DCA 2002); Dawson v. State, 819 So.2d 775 (Fla. 3d DCA 2002); State v. Dawson, 766 So.2d 1109 (Fla. 3d DCA 2000); Dawson v. State, 743 So.2d 522 (Fla. 3d DCA 1999).

      . Additionally, even if this claim were asserted pursuant to Florida Rule of Criminal Procedure 3.850, it is time barred. See Ponton, 971 So.2d at 814.


author: EMAS, J.

text:
    UNITED AUTOMOBILE INSURANCE CO., Petitioner, v. DOCTOR REHAB CENTER, INC., a/a/o Jose Hernandez, Respondent.
    No. 3D13-1730.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.
    Michael Neimand, for petitioner.
    Stuart Lee Koenigsberg, for respondent.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

United Automobile Insurance Company (“United Auto”) seeks certiorari review of an order rendered by the circuit court, in its appellate capacity, which awarded appellate attorneys’ fees to Respondent, Doctor Rehab Center, Inc., a/a/o Jose Hernandez (“Doctor Rehab Center”). We grant the petition and quash the order awarding attorneys’ fees to Doctor Rehab Center.

The case was originally filed in county court by Doctor Rehab Center against United Auto for breach of contract on a PIP policy. Alleging the lawsuit was frivolous, United Auto sought attorneys’ fees under section 57.105, Florida Statutes (2011). On October 12, 2011, Doctor Rehab Center took a voluntary dismissal, and the county court denied United Auto’s motion for section 57.105 fees. United Auto appealed the denial to the appellate division of the circuit court.

During the pendency of that appeal, Doctor Rehab Center filed a motion for appellate attorneys’ fees under section 627.428, Florida Statutes (2013). At oral argument before the circuit court, United Auto argued Doctor Rehab Center was not entitled to appellate attorneys’ fees under section 627.428, because there was no recovery under the insurance policy. The circuit court subsequently affirmed per cu-riam the county court’s order denying United Auto’s motion for attorneys’ fees. The circuit court also issued an order awarding Doctor Rehab Center its appellate attorneys’ fees. The order awarding fees provided no findings and cited no statutory or other basis for the award, but Doctor Rehab Center asserts that the circuit court was authorized to award fees, on its own initiative, under section 57.105, Florida Statutes (2013). However, if the circuit court awarded fees based on section 57.105, it failed to comply with the notice requirement of Florida Rule of Appellate Procedure 9.410(a). Rule 9.410(a) provides:

After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. . Such sanctions may include reprimand, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.

The circuit court was acting in its appellate capacity; therefore a sua sponte award of attorneys’ fees as a sanction under section 57.105 must comport with the notice requirement of rule 9.410(a). In failing to provide the requisite notice, the circuit court departed from the essential requirements of the law.

We therefore grant the petition, quash the order awarding appellate attorneys’ fees, and remand this cause to the circuit court, appellate division, for further proceedings consistent with this opinion.

      . Neither party contends that the circuit court awarded fees under section 627.428, Florida Statutes (2013). In fact, Doctor Rehab Center concedes that it was not entitled to appellate attorneys' fees under that section, and further concedes that it filed no written motion for appellate attorneys’ fees under section 57.105.

      . We note that, while we have treated this as a petition for second-tier certiorari, it is in actuality a ''first-tier” appellate review: the circuit court’s order at issue served as an initial ruling, rather than an order (or opinion) following a review of the order of the county court. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011). Regardless, the failure of the circuit court to comply with the notice provision of rule 9.410 is a departure from the essential requirements of law, warranting relief even under the more restrictive scope of second-tier certiorari review.


author: ROTHENBERG, J.

text:
    Timothy FRANCIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1132.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.

      Timothy Francis, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

Timothy Francis appeals the trial court’s order summarily denying his motion for postconviction relief. We affirm.

On January 11, 2011, the defendant pled guilty to attempted first degree premeditated murder with a deadly weapon. Based on his plea, the defendant was classified as a habitual violent felony offender, and he was sentenced to fifteen years’ imprisonment. Almost two years later, the defendant moved to vacate or set aside his conviction, or to correct his sentence, alleging that the trial court failed to determine at the time he entered his plea that there was a factual basis for his plea. Subsequently, the defendant added a claim that the trial court also erred by not sua sponte requiring a competency hearing to determine the defendant’s mental state at the time of the plea. The trial court denied the defendant’s motion to vacate, set aside, or correct his sentence. On appeal, the defendant claims the trial court erred by failing to: (1) conduct a competency hearing at the time of his plea; (2) conduct an evidentiary hearing on his motion for postconviction relief; and (3) provide record support for its denial of his motion.

The defendant’s claims are without merit. No evidentiary hearing was required as the record reflects that the trial court determined there was a factual basis for the plea at the time the plea was entered. The State’s proffer during the plea colloquy and defense counsel’s stipulation that there was a factual basis for the plea satisfied the factual basis requirement of Florida Rule of Criminal Procedure 3.172(a). See Williams v. State, 316 So.2d 267, 273 (Fla.1975) (holding that a court may satisfy the factual basis requirement by “statements and admissions made by the defendant, his counsel, and the prosecutor .... ”). Thus, contrary to the defendant’s claim, the trial court complied with Florida Rule of Appellate Procedure 9.141(b)(2)(D) and no evidentiary hearing was required to refute the defendant’s claim.

The defendant’s claim that his plea and conviction should be set aside because the trial court failed to conduct a competency hearing at the time of the plea is also unavailing as this claim is procedurally barred. Claims involving a trial court’s obligation to sua sponte require a competency hearing may only be raised on direct appeal. See, e.g., Nelson v. State, 43 So.3d 20, 33 (Fla.2010) (holding that a trial court’s error in failing to conduct a competency hearing may only be brought on direct appeal) (citing James v. Singletary, 957 F.2d 1562, 1572 (11th Cir.1992)); Bundy v. State, 538 So.2d 445, 447 (Fla.1989) (holding that competency-based postcon-viction relief was procedurally barred because the defendant failed to raise the issue on direct appeal).

Because we conclude that the trial court correctly summarily denied the defendant’s motion for postconviction relief, we affirm.

Affirmed.


text:
    Johnny R. BODIFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1866.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.
    Johnny R. Bodiford, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

Johnny R. Bodiford (“the defendant”) appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Upon review of the trial court’s thorough and comprehensive order and the record attachments, we affirm.

Affirmed.


author: SCHWARTZ, Senior Judge.

text:
    Axel G. ALVAREZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 3D12-1810.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.

      Santiago J. Padilla, Miami, for appellant.
    Louis A Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for appellee.
    Before SHEPHERD, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The claimant in this unemployment compensation case, governed by the amendments to the worker’s compensation law that became effective on June 27, 2011, appeals from his disqualification for benefits for “misconduct.” We affirm.

While employed as a security guard assigned to a performing arts complex, Alvarez knowingly violated a policy or rule which precluded unauthorized access to a designated security area near the box office. While it may well be that this action did not constitute “misconduct” under the prior version of the statute, see Hernandez v. Am. Gen. Fin., 39 So.3d 476 (Fla. 3d DCA 2010) (holding that a single incident of not following an employer policy does not rise to the level of misconduct necessary to disqualify an employee from receiving unemployment benefits); Rosas v. Remington Hospitality, Inc., 899 So.2d 390, 391 (Fla. 3d DCA 2005) (same), we are unable to interfere with the finding below that it was disqualifying under the present statutory scheme, which expands the definition of “misconduct” to include the deliberate violation of an employer rule which has not been shown to be unreasonable or unfairly or inconsistently enforced. See § 443.036(30)(e), Fla. Stat. (2011); Critical Intervention Servs. v. Fla. Reemployment Assistance Appeals Comm’n, 106 So.3d 63 (Fla. 1st DCA 2013); Crespo v. Fla. Reemployment Assistance Appeals Comm’n, — So.3d -, 2012 WL 6027761, 37 Fla. L. Weekly D2771 (Fla. 3d DCA Dec. 5, 2012). Because the determinations below to that effect are supported by substantial evidence and the applicable law, they are therefore

Affirmed.

      . The amendments broadened the definition of "misconduct” to include:
      (a) Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.
      (b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
      (c) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.
      (d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.

        (e)A violation of an employer’s rule, unless the claimant can demonstrate that:

      a. He or she did not know, and could not reasonably know, of the rule’s requirements;

      b. The rule is not lawful or not reasonably related to the job environment and performance; or

      c. The rule is not fairly or consistently enforced.

      § 443.036(30), Fla. Stat. (2011) (emphasis added).

      . Because there is no doubt that his entry was improper, it is legally irrelevant — although interesting — that his purpose in doing so was to deliver an anonymous, otherwise unobjectionable complimentary note to a co-worker he admired.

      . We are not called upon to decide whether, under some circumstances, these provisions may be unconstitutional as applied because of their arguable departure from both (a) the rules against improper delegation of legislative authority to a private body, such as the employer in this case, see Tex. Boll Weevil Eradication Found., Inc., v. Lewellen, 952 S.W.2d 454, 465-475 (Tex.1997), and (b) the rights of a claimant to due process in the enforcement of a "rule” which does not reasonably relate to a cognizable interest of the employer or the violation of which does not rationally justify the effect of a total deprivation of otherwise available governmental benefits, see State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986) (holding that a statute must be enforced through means that reasonably relate to the object sought to be obtained and “shall not be unreasonable, arbitrary, or capricious”). Query: would it be permissible to enforce a rule that the operator of a vehicle not exceed the applicable speed limit by denying benefits entirely because he went 56 in a 55 miles per hour zone?
      In this case, however, the appellant has neither below nor in this court raised, and has therefore waived, any constitutional issue. See Trushin v. State, 425 So.2d 1126 (1982); Lamore v. State, 983 So.2d 665 (Fla. 5th DCA 2008). In any event, we find nothing obviously disproportional in punishing a security guard for violating a reasonable security regulation.


text:
    Gregory THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-0152.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.

      Clayton R. Kaeiser, Coconut Grove, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Magaly Rodriguez, Assistant Attorney General, Miami, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

The defendant, Gregory Thomas, appeals the summary denial of his motion for postconviction relief. Based on the trial court’s well-reasoned order, with record attachments supporting the trial court’s findings, we affirm.

Thomas was convicted after a jury trial of first degree murder, robbery by sudden snatching, and grand theft vehicle. This Court affirmed the convictions and sentences in Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010). The evidence established at trial was as follows. While the murder victim was unloading luggage at the airport, Thomas approached the murder victim and the murder victim’s family members under the pretext of selling them a CD player. When they declined to purchase the CD player, Thomas snatched the murder victim’s mother’s purse and jumped into the passenger seat of a stolen getaway car driven by another individual. The victim grabbed onto the passenger door of the vehicle, was dragged through the airport, and was fatally injured as the vehicle sped through a padlocked gate at the airport and at least one other fence. The vehicle was found abandoned not far from the airport. Thomas’ fingerprints were found in the vehicle, and he was positively identified by an eyewitness both from a photographic lineup and at trial.

In his supplemental motion for postcon-viction relief, Thomas raises five claims of ineffective assistance of counsel. Although we conclude that Thomas’ claims are successive and therefore procedurally barred; conclusively refuted by the record; or otherwise without merit, we have’ chosen to write on Thomas’ second claim in order to address the concerns raised in the dissent.

Thomas claims his trial counsel provided ineffective assistance of counsel by failing to call Craig Breedlove as a defense witness at trial. Thomas’ defense at trial was that he was involved in the theft of the vehicle, but he was not the individual who snatched the purse and he was not in the vehicle when the robbery and murder were committed. Multiple fingerprints were found in the vehicle. Most of the fingerprints belonged to Thomas, one set was identified as Breedlove’s prints, and the remainder were unidentified.

In support of his motion, Thomas submitted Breedlove’s affidavit, and Breedlove was available and willing to testify at trial. A review of the trial transcript, the evidence introduced at trial, and Breedlove’s sworn testimony, establish that: (1) Thomas’ defense counsel was fully aware of Breedlove’s availability and his potential testimony, as his sworn statement was obtained prior to trial; (2) Thomas’ defense counsel considered calling Breedlove as a witness; (3) the trial court recessed the trial to allow defense counsel to confer with Thomas regarding whether to call Breedlove as a witness; (4) Breedlove was waiting outside the courtroom in the event the defense decided to call him; (5) defense counsel’s decision not to call Breed-love as a witness was a strategic decision; and (6) by Breedlove’s own account, he was not present when the crimes were committed and he could not have shed any light as to who was in the vehicle when the crimes were committed. Based on this record evidence, the trial court did not err in denying Thomas’ motion without conducting an evidentiary hearing.

First, as we have already noted, Breed-love’s sworn statement was obtained prior to trial, and thus, what he would have testified to was known by the defense and Thomas prior to trial. Second, the record reflects that defense counsel (1) considered calling Breedlove as a witness; (2) had Breedlove brought to court in case he decided to call him as a witness; and (3) took a recess during the trial to discuss with Thomas whether to call Breedlove. Third, the record also reflects that after consulting with Thomas, defense counsel made the decision not to call Breedlove.

DEFENSE COUNSEL: What time are we starting?
THE COURT: 1:30.
DEFENSE COUNSEL: If they can get Breedlove over here we can have him available without any hiteh[e]s....
THE COURT: You are excused. You can go. Your next witness?
DEFENSE COUNSEL: Judge we need a sidebar.
[Thereupon, counsel for the respective parties approached the Bench and conferred with the court outside the hearing of the jury and the following proceeding was held].
DEFENSE COUNSEL: Judge we need a few minutes to chat with our client and deal with the issue of Mr. Breedlove.
THE COURT: Okay.
(Thereupon, the following proceeding was held within the hearing of the jury:)
THE COURT: Ladies and gentlemen, I need you to go into the jury room for a few minutes.
THE BAILIFF: All rise.
(Thereupon, the jury retired from the courtroom and the following proceeding was held:)
DEFENSE COUNSEL: Judge I’m trying to figure out how we can chat with Mr. Thomas in semi-privacy.
THE STATE: We’ll be happy to leave the courtroom.
(Thereupon a short recess was taken).
DEFENSE COUNSEL: Let’s do this first, judge, then we can do something else. At this time the defense is going to rest. We are done.
THE COURT: You are done?
DEFENSE COUNSEL: We are done.

Defense counsel’s strategic decision not to call Breedlove was not ineffective assistance of counsel. According to Breed-love’s sworn testimony, he would have testified that on the day of the robbery and murder, he had seen “Red” (a co-perpetrator) alone in the stolen vehicle. He did not see Red or the vehicle again until a day or two after the robbery arid murder. Therefore, Breedlove’s testimony, which suggests that Red was the driver of the stolen vehicle when the robbery and murder were committed, in no way exculpates Thomas, as it is clear that there were two individuals involved in the robbery and murder, and Thomas was identified by the eyewitness as the passenger who exited the vehicle and committed the robbery. Because Breedlove did not see the crimes being committed, and because only the driver was in the vehicle when he saw it earlier that day, Breedlove’s testimony would not have assisted Thomas in any way. Thus, Thomas’ defense counsel did not provide ineffective assistance by failing to call Breedlove as a witness. See Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring defendant who claims he is entitled to reversal of a conviction to establish that counsel’s performance was deficient and counsel’s deficient performance prejudiced the defendant, and concluding that strategic choices made after investigation of the facts, if reasonable, are virtually unchallengeable); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”); State v. Eby, 342 So.2d 1087, 1089 (Fla. 2d DCA 1977) (“[A] decision not to raise certain possible defenses or call certain defense witnesses is ordinarily a matter of personal judgment and strategy within the prerogatives of defense counsel.”).

Affirmed.

SALTER, J., concurs.

SUAREZ, J., dissents.

I agree with the majority’s affirmance of the trial court’s denial of relief on all but one claim, which I would reverse and remand for an evidentiary hearing.

Thomas was convicted after jury trial of first degree felony murder, robbery and auto theft. This Court affirmed his conviction and sentence. Thomas v. State, 47 So.3d 1291 (Fla. 3d DCA 2010). Thomas’s defense was that he was involved in the car theft, but was not in the car at the time of the robbery and felony murder, and was innocent of those charges. Multiple fingerprints were found in the car; most of the fingerprints belonged to Thomas, one set to Craig Breedlove, and the rest to an unknown person. Thomas raised five claims of ineffective assistance of counsel in his motion for postconviction relief, which the trial court denied without an evidentiary hearing. To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and that demonstrate a deficiency in performance that prejudiced the defendant; the failure to sufficiently allege both prongs results in a summary denial of the claim. Rhodes v. State, 986 So.2d 501 (Fla.2008); Morgan v. State, 991 So.2d 835 (Fla.2008); Kimbrough v. State, 886 So.2d 965 (Fla.2004); Jones v. State, 845 So.2d 55 (Fla.2003); 28A Fla. Jur.2d Habeas Corpus and Post-conviction Remedies § 171. And, of course, “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.” Fla. R.App. P. 9.140(i).

The record in this case fails to justify the denial of Thomas’s motion without an evidentiary hearing, but only as to the issue of whether trial counsel failed to call Craig Breedlove as an exculpatory witness. Thomas asserts in his petition that Breedlove’s fingerprints were found in the vehicle, that Breedlove was available to testify at trial, and that he would have testified that he was inside the car with another person — not the defendant — just prior to the crime, and that the other person had the specific intent to commit a robbery just before the robbery and felony murder occurred. Thomas’s petition sets forth a facially sufficient claim. See Jacobs v. State, 880 So.2d 548, 553 (Fla.2004) (reversing for evidentiary hearing where defendant specifically identified the alibi witnesses, stated the substance of their exculpatory evidence, and averred that they were known to counsel). Although eyewitnesses identified Thomas as one of the perpetrators, the record does not conclusively refute his contention that Breedlove was a critical exculpatory witness.

The trial court’s order denying this claim explains that defense counsel called a sidebar to speak with the defendant about witness Breedlove. The sidebar is not on the record. The court’s order states:

Whatever exchange took place between the Defendant and his attorneys, took place semi privately, outside the presence of the jury and the prosecutors but the trial judge was present. The exchange that took place was not transcribed. It can be reasonably concluded that the exchange that took place was on the subject of witness Breedlove and whether he should testify. There is a strong inference that the exchange took place in the presence of the Court, ... [defense counsel states that the defense rests, they are done],.... The record demonstrates that the decision to not have Mr. Breedlove testify was not one that was made unilaterally, as claimed by the Defendant, [e.s.].

Ordinarily, an evidentiary hearing is necessary to resolve the question of whether an act or omission claimed to be deficient performance by trial counsel, for purposes of a postconviction ineffective assistance claim, was a reasonable tactical strategy. See Romero v. State, 48 So.3d 971 (Fla. 3d DCA 2010) (holding that a trial court cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing); O’Neal v. State, 54 So.3d 1071 (Fla. 4th DCA 2011) (disagreeing with the state’s argument that defense counsel trial strategy was evident from the face of the record without necessitating an evidentiary hearing to resolve the question of whether the omission alleged to be deficient was reasonable trial strategy); Johnson v. State, 840 So.2d 369 (Fla. 1st DCA 2003) (finding that the attachments to the order denying relief did not conclusively negate the defendant’s allegation, and the possibility that counsel’s omission might have been a matter of trial strategy could not be determined without an evidentiary hearing); Gordon v. State, 608 So.2d 925 (Fla. 3d DCA 1992) (finding that when the trial court is confronted with a claim of ineffective assistance of counsel, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing; counsel should be heard from, and, if necessary, cross-examined as to whether a decision truly was tactical); Dauer v. State, 570 So.2d 314 (Fla. 2d DCA 1990) (holding that the determination of whether or not defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing).

Here, there is only speculation as to the substance of the sidebar as it related to witness Breedlove and there is nothing in the record that conclusively refutes Thomas’s claim on this point. I would reverse and remand for an evidentiary hearing only as to the specific issue of trial counsel’s decision not to call witness Craig Breedlove, where the record does not conclusively refute the defendant’s prima facie postconviction claim.


text:
    D.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2520.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.

      Carlos J. Martinez, Public Defender, and Vyacheslav Borshchukov and Brian Ellison, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

D.H. appeals the trial court’s order denying his motion to suppress a firearm and marijuana found in his possession after a pat-down search conducted during an investigatory stop. Because there was no reasonable suspicion to believe D.H. was armed with a dangerous weapon, or probable cause for an arrest when the pat-down was conducted, we reverse and remand with directions that D.H. be discharged.

BACKGROUND

Based on several recent gang-related shootings in the Cloverleaf area of Miami Gardens, a “high crime area,” the Miami Gardens Police Department began covertly monitoring the area to prevent criminal activity, particularly violent crime. At approximately eleven o’clock on the night D.H. was arrested, Officer Rosado was in a parking lot in the Cloverleaf area in an unmarked patrol car when he observed three or four juvenile males in the parking lot only a few feet from where Officer Rosado’s patrol car was located.

After observing the group for a while, Officer Rosado exited his vehicle, and immediately smelled what he recognized as burnt marijuana emanating from the area near the group of juveniles. Officer Rosa-do testified that he was familiar with the smell based on his years of training and experience in law enforcement. He did not see anyone smoking marijuana, passing marijuana, concealing baggies, or using a lighter, although he did notice a “puff of smoke” hanging in the air near the juveniles. As he approached the group, the smell of marijuana became stronger.

Without asking any questions or investigating the marijuana smell further, Officer Rosado requested back-up assistance and conducted a pat-down search of the individuals to check for weapons due to his safety concerns, which were primarily motivated by the area’s history of gun-related violence. During the pat-down, Officer Rosado felt a hard bulge in D.H.’s left front jacket pocket. Because Officer Ro-sado believed the object he felt was a firearm, he placed D.H. on the ground and detained D.H. and two other juveniles at gunpoint until backup arrived. When backup arrived, Officer Rosado continued the search, handcuffed D.H., and verified that the bulge in D.H.’s jacket pocket was in fact a .38 caliber revolver-style pistol. D.H. was arrested, and a search incident to the arrest revealed a small baggie of marijuana in D.H.’s pocket as well. D.H. was charged with (1) carrying a concealed firearm, (2) being a minor in possession of a firearm, and (3) possession of cannabis.

After conducting a hearing on D.H.’s motion to suppress the evidence, the trial court found that although the pat-down was not supported by reasonable suspicion that D.H. was armed, the search was lawful because Officer Rosado possessed probable cause to arrest D.H. for possession of marijuana. The parties stipulated that the motion to suppress was dispositive, and D.H. pled nolo contendere to the charges, reserving his right to appeal the trial court’s ruling denying his motion to suppress the evidence.

DISCUSSION

Although we agree with the trial court that there was insufficient evidence to justify a pat-down search of D.H. based on a reasonable suspicion that D.H. was armed and dangerous, we disagree that the search was otherwise lawful based on probable cause that D.H. was in possession of marijuana.

I. Standard of Review

“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002) (citing Murray v. State, 692 So.2d 157 (Fla.1997)). The appellate court should review findings of historical fact only for clear error and give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Jenkins v. State, 978 So.2d 116, 122 (Fla.2008) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Applying those facts to determinations of reasonable suspicion and probable cause, however, are reviewed de novo on appeal. Id.

II. Searches

The Florida Supreme Court has identified three basic categories of police-citizen encounters, each having its own specific burden of proof to justify a search or seizure. Popple v. State, 626 So.2d 185, 186 (Fla.1993). The first, and least onerous type, is a consensual encounter. Id. Consensual encounters involve minimal police contact and the citizen is free to leave of his own volition. Id. Because there is no detention during such encounters, constitutional safeguards do not apply. Id.

The second type of encounter is an investigatory stop. Id. This category of search arises from the seminal United States Supreme Court case Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and was codified by the Florida legislature in section 901.151 of the Florida Statutes. See State v. Webb, 398 So.2d 820, 821-25 (Fla.1981) (discussing the history of Florida’s stop and frisk statute, as well as its interpretation). Although investigatory stops are less intrusive than a full search incident to an arrest, they still require an officer to have reasonable suspicion that a suspect has committed, is committing, or is about to commit a crime before the stop can constitutionally occur. § 901.151(2), Fla. Stat. (2011); Popple, 626 So.2d at 186. An officer having reasonable suspicion “may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.” § 901.151(2).

During an investigatory stop, an officer may conduct a “stop and frisk” or pat-down of the suspect if the officer has a reasonable belief that the suspect “is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person....” § 901.151(5). A pat-down search conducted during an investigatory stop must be based specifically on the reasonable belief that the suspect is armed and dangerous, and not simply on the reasonable suspicion that justified the investigatory stop at the outset. Webb, 398 So.2d at 822.

The final category of encounter is an actual arrest, which requires probable cause that a crime has been or is being committed. Popple, 626 So.2d at 186. Officers may conduct a search of a suspect incident to a lawful arrest, which is per se constitutionally permissible and reasonable under the Fourth Amendment, because such searches are necessary to protect police officers and preserve evidence. Jenkins, 978 So.2d at 125 (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 494, 38 L.Ed.2d 427 (1973)). Searches incident to an arrest may be conducted contemporaneous with or prior to the actual arrest so long as probable cause for the arrest existed at the time of the search. Jenkins, 978 So.2d at 126 (citing Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)).

A. Whether the pat-down search of D.H. was supported by reasonable suspicion to believe he was armed and dangerous.

D.H. does not dispute, and we find, that the police encounter in this case was an investigatory stop supported by reasonable suspicion. Investigatory stops, however, are only for the limited purpose of discovering the suspect’s identity and briefly investigating the circumstances supporting the reasonable suspicion. Id. Should the detainee’s responses or actions during a limited investigatory stop give rise to heightened suspicion rising to the level of probable cause, the stop can blossom into an arrest and search based on that probable cause. § 901.151(3), (4); United States v. Sokolow, 490 U.S. 1, 12-13, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“The rationale for permitting brief, war-rantless seizures is, after all, that it is impractical to demand strict compliance with the Fourth Amendment’s ordinary probable-cause requirement in the face of ongoing or imminent criminal activity demanding ‘swift action predicated upon the on-the-spot observations of the officer on the beat.’ Observations raising suspicions of past criminality demand no such immediate action, but instead should appropriately trigger routine police investigation, which may ultimately generate sufficient information to blossom into probable cause.” (internal citations omitted)). Absent such exacerbating evidence though, the investigatory stop must terminate. § 901.151(4).

To justify a pat-down search during an investigatory stop, however, the officer must have reasonable belief that the suspect is armed. § 901.151(5). Such reasonable belief cannot be based on a mere suspicion or hunch, but must be supported by some objective basis such as aggressive activity or seeing a bulge prior to the pat-down. See Robinson v. State, 976 So.2d 1229, 1232-1233 (Fla. 2d DCA 2008) (finding no reasonable belief or probable cause based solely on the suspect’s location in a “high-crime area”).

Here, Officer Rosado approached the young men based on the smell of marijuana in the air. Although this observation constituted reasonable suspicion that someone in the group possessed marijuana justifying the investigatory stop, Officer Rosado exceeded the scope of the investigatory stop when he conducted a pat-down search of D.H. because a pat-down search during an investigatory stop may only be conducted based on an objectively reasonable belief that D.H. was armed and dangerous.

Whether or not an officer reasonably believes that a suspect is armed and dangerous must be determined by the totality of the circumstances. Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999) (citing Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). The relevant circumstances in the instant case are that: it was late at night; the area was dark; the location was known for gun-related crimes; and the officer was outnumbered by either three or four to one. However, the record also reflects that there was nothing about D.H.’s appearance, behavior, or manner, or about the situation itself that led Officer Rosado to believe that D.H. was armed, and it is undisputed that D.H. did not attempt to flee as Officer Rosado approached. D.H. was cooperative, he made no furtive movements, and Officer Rosado saw no “bulge” or any other indication that D.H. was armed or dangerous. Furthermore, at the time of the pat-down, the only crime Officer Rosado suspected the boys had committed was possession of marijuana, an activity that is not considered inherently dangerous or which would justify an inference that any of the juveniles was armed or dangerous.

Based on the totality of the circumstances, including that D.H. exhibited no suspicious behavior to justify a reasonable belief that he was armed or dangerous, a pat-down search conducted for officer safety was not justified in this case.

B. Whether the pat-down search of D.H. was justiñed based on probable cause that he had committed a crime.

“The existence of probable cause is measured by an objective standard, not based on an officer’s underlying intent or subjective motivation.” Hernandez v. State, 784 So.2d at 1128 (quoting State v. T.P., 588 So.2d 286, 287 (Fla. 3d DCA 1991)). If probable cause exists to arrest a suspect, an officer may conduct a search of the suspect incident to the lawful arrest. Jenkins, 978 So.2d at 125 (citing United States v. Robinson, 414 U.S. at 235, 94 S.Ct. 494). Searches incident to an arrest may be conducted prior to or contemporaneous with the actual arrest so long as probable cause for the arrest existed at the time of the search. Jenkins, 978 So.2d at 126 (citing Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)).

The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction, [but] more than bare suspicion: Probable cause exists where the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information are sufficient in themselves •to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

Jenkins, 978 So.2d at 121 (alteration in original) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Whether or not probable cause exists in a particular case is fact-specific, and there is no bright line for when it will be found:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfin-ders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. ... [Pjrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

Jenkins, 978 So.2d at 121-22 (alteration in original) (quoting Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

The State claims that there was probable cause to arrest D.H. based on the smell of burnt marijuana coming from the group of juveniles and the smoke lingering over their heads. We disagree. The mere scent of marijuana coming from a group of individuals does not by itself give an officer probable cause to arrest and search any particular individual in the group. A finding of probable cause must be particularized to a specific individual. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.... Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.”); Perry v. State, 916 So.2d 835, 838-39 (Fla. 2d DCA 2005).

The Second District reached the same conclusion in Robinson v. State, 976 So.2d 1229 (Fla. 2d DCA 2008). In Robinson, while patrolling behind a night club in a high-crime area, police officers smelled marijuana and observed four men loitering in a group. Id. at 1230-31. As the officers approached, the marijuana smell became stronger and the officers saw “a cloud [of smoke] hanging over them.” Id. at 1231. Three of the four men began to walk away; only Robinson remained. Id. The officers testified that as they got closer they did not smell the odor of marijuana specifically on Robinson himself. Id. One of the officers detained Robinson and asked if he would consent to a search. Id. Although Robinson initially replied in the affirmative, when the officer told Robinson to turn around, Robinson revoked his consent. Believing that Robinson was hiding marijuana behind his back, the officers searched Robinson and found marijuana and a handgun on his person. Id. The Second District concluded that “[t]he fact that Robinson was standing with a group of men surrounded by the odor of burned marijuana was insufficient to supply more than a ‘mere suspicion’ that Robinson was in possession of marijuana,” and the appellate court reversed the lower court’s denial of Robinson’s motion to suppress. Id. at 1233.

Similarly, in Green v. State, 831 So.2d 1243, 1246 (Fla. 2d DCA 2002), the Second District reversed a trial court’s order denying Green’s motion to suppress a baggie of marijuana and crack cocaine found tucked into Green’s underwear discovered during a pat-down search. The officers in Green observed four men outside an apartment building with a cloud of smoke lingering over their heads. Id. at 1244. One of the men, Brown, was seen smoking a marijuana cigarette and then discarding a baggie, which contained marijuana. Id. As the officers approached, they also saw one of the other members of the group, Cooper, discard a baggie of marijuana. Id. Although Green was not seen smoking or discarding anything, he was patted down and a small baggie of marijuana and crack cocaine was found in Green’s underwear. Id. In concluding that the pat-down search of Green was unlawful, the Second District distinguished the search of Green from the search conducted in State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998), where the pat-down search of Hernandez was upheld. The Second District noted that in Hernandez the police were able to follow and directly attribute the smell of marijuana to Hernandez, id. at 66-67, whereas in Green the officers saw two members of the group — but not Green himself — either smoking or discarding baggies containing marijuana. Green, 831 So.2d at 1244. Although recognizing that the smell of burnt marijuana on a person may establish probable cause for a search, the Second District found that because there was evidence directly linking the smell of marijuana to individuals other than Green, and no evidence directly linking Green, the officers lacked probable cause to believe that Green was also in possession of marijuana. Id. at 1245-46; see also A. T. v. State, 93 So.3d 1159, 1161 n. 1 (Fla. 4th DCA 2012) (“[T]he odor of marijuana emanating from the general area where appellant and two other individuals were standing did not provide the officer with reasonable suspicion to detain appellant.”).

Because the only facts justifying the search in this instance were the general smell of marijuana in the area and the sight of a puff of smoke lingering in the air around the group, there was insufficient justification for the search, and the search of D.H. was unlawful.

CONCLUSION

Although Officer Rosado had reasonable suspicion to conduct an investigatory stop based on the odor of marijuana emanating from the group of juveniles, he exceeded the scope of the investigatory stop when he conducted a pat-down search of D.H. The pat-down search was not justified by a particularized and articulable reasonable belief that D.H. was armed and dangerous, and was therefore unlawful. Additionally, without more, the odor of marijuana coming generally from the group did not give rise to probable cause to arrest and search D.H. or any other individual in the group. We therefore reverse the denial of D.H.’s motion to suppress the evidence and we remand with directions to discharge D.H. forthwith.

Reversed.


text:
    AKERMAN SENTERFITT & EIDSON, P.A., a/a/o Procesadora De Alimentos Infal, S.A., Appellant, v. VALUE SEAFOOD, INC., Kristinn V. Blondal and Cache Medical Connections, LLC, Appellees.
    No. 3D12-1888.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.

      Akerman Senterfitt and A. Rodger Traynor, Jr, Miami, for appellant.
    Rumrell, Bate & McLeod and Andrew H. Bate, Naples; Seiden, Alder and Wayne M. Alder, Boca Raton, for appel-lees Kristinn V. Blondal and Cache Medical Connections, LLC.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   LAGOA, J.

Akerman Senterfitt & Eidson, P.A. (“Akerman”), as Assignee of Procesadora de Alimentos Infal, S.A. (“Infal”), appeals from an amended order dismissing garnishment writs issued against Kristinn V. Blondal (“Blondal”) and Cache Medical Connections, Inc. (“Cache”) (collectively, “Garnishees”). For the reasons discussed below, we affirm in part and reverse in part with instructions on remand.

I. FACTUAL AND PROCEDURAL HISTORY

In October 2009, Infal obtained a money judgment against Value Seafood, Inc., in the amount of $91,367.58. Infal assigned this money judgment to Akerman in June 2010. On August 2, 2011, in an attempt to collect on this money judgment, Akerman had the clerk of court issue writs of garnishment (“First Writs”) against Blondal and Cache Medical Connections.

In their Answer, the Garnishees denied any indebtedness to Value Seafood and denied possession of property belonging to Value Seafood. The Garnishees further demanded attorney’s fees. Akerman filed a reply. In its reply, Akerman denied the Garnishees’ allegations concerning their lack of indebtedness to Value Seafood and alleged that in early 2009 the Garnishees had been the recipients of fraudulent transfers from Value Seafood. Akerman then filed a Notice for Non-Jury Trial and trial was set for March 16, 2012.

In February 2012, the Garnishees filed a Notice of Dissolution of Writ of Garnishment pursuant to section 77.07(5), Florida Statutes (2012), in which they alleged that the First Writs were automatically dissolved by operation of law because of Ak-erman’s failure to comply with the requirements of the statute. Specifically, the Garnishees contended that because Aker-man failed to file a motion for final judgment or to seek an extension of the First Writs within six months of their issuance, the First Writs were automatically dissolved by operation of law effective on or about February 2, 2012, and they were discharged from further liability under the First Writs.

Akerman filed a response. In its response, Akerman stated that there was no basis for the First Writs to be automatically, or otherwise, dissolved as it had served a notice for trial, trial was scheduled, and the parties subsequently appeared at a calendar call. A hearing on the matter was held March 1, 2012, and on March 20, 2012, the trial court entered an order (the “March 20th Order”) finding that the automatic dissolution of the First Writs under section 77.07(5), discharged the Garnishees from further liability under the First Writs, and removed the case from the trial calendar “without prejudice to [Akerman] procuring new writs of garnishment to be served on the garnishees.”

New writs of garnishment (“Second Writs”) were subsequently issued by the clerk, and the Garnishees then moved to dissolve, abate or dismiss the newly filed Second Writs and to award attorney’s fees. Relying on Matthews v. First Federal Savings & Loan of Englewood, 571 So.2d 2 (Fla. 2d DCA1990), the Garnishees argued that the trial court’s prior dissolution of the judgment creditor’s First Writs was tantamount to a final judgment. The trial court agreed and entered an order entitled “Amended Order Clarifying Order Dated March 20, 2012,” (the “Amended Order”), in which it withdrew and replaced the March 20th Order and granted the motion to dismiss the newly filed Second Writs.

The Amended Order states that under section 77.07(5), Akerman’s failure to file a motion for final judgment within six months after filing the First Writs, or to seek an extension of the writs, resulted in dissolution of the First Writs and discharge of the garnishees from further liability under the First Writs. The trial court further found that it would be “circumventing the intent and meaning of § 77.07(5)” to allow “a plaintiff/judgment creditor ... to file another subsequent writ of garnishment after a prior writ of garnishment was dissolved pursuant to § 77.07(5),” and concluded that the March 20th Order should not have included “permissive language entitling the judgment debtor the opportunity to file a subsequent writ.” This appeal timely followed.

II. STANDARD OF REVIEW

“We review de novo orders construing statutes such as those controlling garnishment.” Marquez v. BlueCare Home Health Servs., Inc., 116 So.3d 563 (Fla. 3d DCA 2013).

III. ANALYSIS

“The statutory remedy of garnishment is governed by the procedures outlined in chapter 77, Florida Statutes [2012].” Gigliotti Contracting N., Inc. v. Traffic Control Prod. of N. Fla. Inc., 788 So.2d 1013, 1016 (Fla. 2d DCA 2001). “It is fundamental that garnishment statutes must be strictly construed.” Williams v. Espirito Santo Bank of Fla., 656 So.2d 212, 213 (Fla. 3d DCA 1995). Failure to adhere to the garnishment procedures is at the root of Akerman’s problem here, see Gigliotti Contracting N., Inc., 788 So.2d at 1016, as we agree with the trial court that Akerman’s failure to file a motion for final judgment or to seek an extension of the First Writs within six months after their filing resulted in the automatic dissolution of the First Writs pursuant to section 77.07(5).

However, we cannot agree with the trial court’s dismissal of the Second Writs. Akerman’s reply set forth facts that, if true, would make the Garnishees liable for the amounts fraudulently transferred to them by Value Seafood. Therefore, the pleadings before the trial court suggested that Akerman had a meritorious claim, and automatic dissolution of the writs without leave to comply with the statutory process effectively denied Akerman its due process rights to have its claim adjudicated on the merits. Gigliotti Contracting N., Inc., 788 So.2d at 1016.

We further find that there is no basis in the language of section 77.07(5) to support the trial court’s conclusion that it would be “circumventing the intent and meaning of § 77.07(5)” to allow “a plaintiff/judgment creditor ... to file another subsequent writ of garnishment after a prior writ of garnishment was dissolved pursuant to § 77.07(5).” “[Legislative intent is determined primarily from the text [of a statute].” Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 374 (Fla.2008). When a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See City of Miami Beach v. Galbut, 626 So.2d 192, 193 (Fla.1993).

Section 77.07 was amended in 2005 to add subsection (5), which states as follows:

If the plaintiff fails to file a dismissal or motion for final judgment within 6 months after filing the writ of garnishment, the writ shall automatically be dissolved and the garnishee shall be discharged from further liability under the writ. The plaintiff has the right to extend the writ for an additional 6 months by serving the garnishee and the defendant a notice of extension and filing in the underlying proceeding a certification of such service.

The language of this subsection is clear and unambiguous, such that its plain meaning should be used to determine legislative intent. It provides for the automatic dissolution of a writ of garnishment, and for the discharge of a garnishee, not from all further liability, but rather, from liability under the writ automatically dissolved. § 77.07(5), Fla. Stat. (“[T]he writ shall automatically be dissolved and the garnishee shall be discharged from further liability under the writ”) (emphasis added).

We cannot extend the express terms of section 77.07(5) to hold that a subsequent writ of garnishment is impermissible where a prior writ of garnishment was automatically dissolved pursuant to the terms of that subsection. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (Florida courts are without power to construe an unambiguous statute in a way that would extend its express terms or its reasonable and obvious implications because to do so would be an abrogation of legislative power.). To do so, would be to read language into the statute that is simply not there.

Matthews v. First Federal Savings & Loan of Englewood, 571 So.2d 2 (Fla. 2d DCA 1990), does not alter our conclusion, as that opinion is distinguishable. First, Matthews concerns the construction and application of section 77.28, Florida Statutes (1989), not section 77.07(5). Section 77.28 relates to attorney’s fees, costs and expenses in a garnishment proceeding, providing for reimbursement to a garnishee upon rendition of a final judgment. § 77.28, Fla. Stat. In applying section 77.28, our sister court in Matthews held that the trial court’s order granting the garnishees’ motion to dismiss and dissolving the writ of garnishment was a final judgment “within the meaning of section 77.28.” Matthews, 571 So.2d at 3.

Furthermore, there are insufficient facts in that opinion to apply it to the facts in this case. Matthews does not discuss the circumstances which led to the granting of the garnishees’ motion to dismiss and dissolve the writ of garnishment, as that order was previously affirmed without opinion. Thus, because the facts surrounding the dissolution in Matthews are unknown, we cannot similarly conclude that the dissolution here is also tantamount to a final judgment adjudicating the merits of Aker-man’s claim against the Garnishees.

IV. CONCLUSION

Accordingly, based on the foregoing, we find no error with the trial court’s conclusion that section 77.07(5) required automatic dissolution of the First Writs, and we affirm the Amended Order in this respect. We reverse, however, that portion of the Amended Order which granted the Garnishees’ motion to dismiss the newly filed Second Writs because neither section 77.07(5) nor Matthews bar the filing of successive writs of garnishment. We remand the matter to the trial court with directions to reinstate the Second Writs and reset the matter for trial on the issues presented.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: PER CURIAM.

text:
    Andre BISHRAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1929.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Andre Bishram, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Cordova v. State, 855 So.2d 216 (Fla. 3d DCA 2003).


text:
    Marie A. HOPKA and Marie F. Alexis, et al., Appellants, v. SUN TRUST BANK, Appellee.
    No. 3D12-1764.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Larry R. Fleurantin, North Miami Beach, for appellants.
    Kass Shuler and Melissa A. Giasi, Tampa, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

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