author: LOGUE, J.

text:
    ARISTECH ACRYLICS, LLC and Christopher Hyatt, Appellants, v. LARS, LLC d/b/a Hardware Imagination-Tech, Appellee.
    No. 3B12-1069.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Golden & Grimes LLP, and Yasir Billoo and John D. Golden, Miami, for appellants.

      Smoler & Associates, P.A., and Patrick Patrissi and Bruce J. Smoler, Hollywood, for appellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   LOGUE, J.

Aristech Acrylics, LLC and Christopher Hyatt appeal a final judgment entered in favor of Lars, LLC for $43,333. The primary issue on appeal is whether the trial court misconstrued Aristech’s obligations under a Distributorship Agreement between Aristech and Lars, in finding that, after Aristech terminated the agreement, Aristech breached its contractual duty to repurchase inventory held by Lars. Because we conclude the conditions required for the repurchase of inventory under the contract were not satisfied, we reverse on that issue. We affirm on all other issues.

FACTS AND PROCEDURAL HISTORY

On August 27, 2007, Aristech and non-party Tech Products, Inc. (“TPI”) entered into the agreement, under which TPI was appointed a distributor of certain Aristech products in Florida. The agreement provides both parties with a right to terminate and requires Aristech to repurchase inventory sold to the distributor under certain circumstances. It reads as follows:

17. GENERAL TERMINATION
(a) Either party may terminate this Agreement on sixty (60) days written notice to the other party.
(c) In the event that [Aristech] terminates this Agreement pursuant to paragraph 17(a) and the Distributor continues to fulfill all of the general obligations of the Distributor stated in paragraph 2 of this Agreement and Distributor’s account balance with Ar-istech is within the standard payment terms outlined in paragraph 6 of this Agreement, [Aristech] shall offer to purchase Distributor’s Product Inventory (hereinafter “Inventory”) at [Ar-istech’s] original invoice price under the following conditions:
(i) Inventory is in [Aristeeh’s] original packaging and has been unopened.
(ii) Inventory was purchased within 90 days prior to the termination notice.
(iii) Total value of the Inventory repurchase cannot exceed $125,000....
(iv) Distributor agrees to waive the 60 day period and give up their [Aris-tech] authorized distributorship status immediately.

Paragraph 6(a), regarding payment, provides:

(a) Standard Payment Terms: Distributor shall pay [Aristech] for all Products as invoiced within standard payment terms of Net Thirty (30) Days from date of invoice....

In January 2008, Lars purchased certain assets of TPI, and assumed the obligations of TPI under the agreement. Upon purchase of the TPI assets, Lars took possession of certain inventory of TPI on a consignment basis. On May 19, 2008, Lars placed an order for more inventory in the amount of $20,139, which became due on June 18, 2008, and remained unpaid. Lars placed an additional order for inventory in the amount of $30,961, on May 27, 2008, which became due on June 26, 2008, and similarly remained unpaid.

On May 30, 2008, Aristech sent Lars a letter terminating the agreement, effective August 1, 2008, after the expiration of the sixty-day termination period established in the agreement. After receiving the termination letter, on June 13, 2008, Lars purchased an additional $60,710 in inventory from Aristech. This invoice became owing on July 13, 2008, and remained unpaid.

In August 2008, Lars filed a complaint against Aristech stemming from the agreement and its termination. Aristech counterclaimed for the $118,810 in unpaid invoices. Lars eventually amended its complaint to allege that Aristech breached the agreement by failing to repurchase inventory from Lars. Following a bench trial, the trial court entered a final judgment, which made the following pertinent findings of fact:

10. The testimony in this case affirms that prior to Aristech’s termination of the Distribution Agreement, Lars continued to fulfill all the obligations as stated in paragraph 2 of the Agreement and its account balance was within the standard payment terms (not more than 30 days) as outlined in paragraph 6 of the Agreement after receipt of the termination notice.
11. According to the testimony of Paul Groll, [a managing member of Lars], at the time of the receipt of the termination notice Lars had Aristech inventory in original packaging and unopened, Aristech inventory purchased within 90 days prior to the termination and the total value of the Aristech inventory was at least $125,000.
12. Despite the “shall” language in the agreement between the parties, Ar-istech never offered to repurchase the [inventory] pursuant to paragraph 17(c) and Lars was never provided with the opportunity to waive the 60 day period.
13. At the time of the termination notice, Lars was indebted to Aristech for Invoice Number 252541 in the amount of $20,139, Invoice Number 252884 in the amount of $30,961 and Invoice Number 253724 in the amount of $60,710, for a total of $111,810. However, no invoice was more than 30 days overdue at the time of the termination and Lars, therefore, continued to “fulfill” the general obligations of the Distributor. Aristech did not.

The trial court awarded Lars $43,333 with respect to the breach of contract claim, and Aristech $118,810, on its counterclaim for unpaid invoices. Aristech appeals the judgment against it.

ANALYSIS

In interpreting a contract, “the words used by the parties must be given their plain and ordinary meaning.” Beans v. Chohonis, 740 So.2d 65, 67 (Fla. 3d DCA 1999). A contract “should be considered as a whole in determining the intention of the parties to the instrument.” Bucacci v. Boutin, 933 So.2d 580, 585 (Fla. 3d DCA 2006) (citation omitted). And “a court must construe a contract in a manner that accords with reason and probability; and avoid an absurd construction.” Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003).

Here, the trial court entered final judgment in favor of Lars on the inventory repurchase issue, based on the court’s interpretation of the agreement. Under the trial court’s reading of section 17(c) of the agreement, Aristech was required to repurchase the inventory because, at the moment that it provided Lars with notice of the termination, on May 30, 2008:(1) Lars had Aristech inventory in original packaging and unopened; (2) Aristech inventory was purchased within ninety days prior to the termination; and (3) the total value of that Aristech inventory was at least $125,000. The trial court noted that although Lars was indebted to Aristech for $111,810 for the three outstanding invoices at the time of the termination notice, Lars was not past the thirty-day repayment period under paragraph 6 on any of the invoices at that time. The trial court concluded Aristech therefore was obligated to offer to repurchase the inventory and Lars had to have been given an opportunity to waive the sixty-day termination period.

We conclude, however, that the contract language and the facts of this case dictate a contrary result. Section 17(c) of the agreement states that “[i]n the event that [Aristech] terminates this Agreement pursuant to paragraph 17(a) and the Distributor continues to fulfill all of the general obligations ... and Distributor’s account balance with Aristech is within the standard payment terms outlined in paragraph 6 of this Agreement, [Aristech] shall offer to purchase Distributor’s Product Inventory. ...” A proper reading of the contract language gives Aristech a reasonable period during which to execute any such duty and requires Lars to continue to fulfill all of its obligations, including remaining current on its payments.

Lars’ behavior following the notice of termination obviated any duty of Aristech to repurchase its inventory. In the weeks after the termination notice, Lars never attempted to invoke its right to resell the inventory back to Aristech. Instead, on June 13, 2008, less than two weeks after receiving notice of termination, Lars ordered additional inventory from Aristech. Lars could not have taken any clearer action evincing its intent that it did not wish to terminate the relationship with Aristech or waive the sixty-day period than by ordering additional inventory within the sixty-day termination notice period. And just five days later, on June 18, 2008, the first of the unpaid invoices become due, and was not paid. From that moment forward, Lars was not “within the standard payment terms,” and Aristech was under no obligation to repurchase the inventory. Lars subsequently acquired additional inventory of Aristech products from a third party. In fact, Lars successfully marketed and sold most of the inventory it had in stock at the time of the termination notice.

CONCLUSION

Because, within a reasonable period of time after Aristech gave notice of termination, Lars defaulted on its payment obligations and acted in a manner indicating that it intended to continue marketing and selling Aristech products, Aristech was under no obligation under the agreement to repurchase the inventory. Accordingly, we reverse the portion of the judgment entered on Count IV of the complaint awarding Lars $43,333 with interest. We find no merit in the other issues raised on appeal by Aristech and Hyatt and affirm the trial court’s rulings on those issues. The remainder of the judgment remains intact.

Reversed in part and affirmed in part.

      . As mentioned above, Lars inventory of Aris-tech products on the date of the termination letter was at least $125,000. By October 9, 2009, however, Lars had reduced its inventory of Aristech products to $11,000. Lars subsequently acquired additional inventory of Ar-istech products from third parties and sold most of that inventory as well. Lars could not, on the date of the trial, indicate how much, if any, of its inventory on-hand dated back before the termination letter.


source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    Ernesto VALLEJOS, as Personal Representative of the Estate of Ernesto Vallejos, Deceased, Appellant, v. LAN CARGO S.A., and Infinity Cargo Services, Inc., Appellees.
    No. 3D12-1259.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.

      Bennet Lapidus, New Jersey; Sallato & Associates and Maria Teresa Sallato, Miami, for appellant.
    Fowler White Burnett and Esther E. Galicia and J. Michael Pennekamp, Miami, for appellee Lan Cargo, S A.; Cole Scott & Kissane and Scott A. Cole and Anne Sullivan Magnelli, Miami, for appellee Infinity Cargo Services, Inc.
    Before WELLS, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

Ernesto Vallejos worked for Professional Aviation Management, Inc., a subcontractor that supplied personnel to general contractor Lan Cargo, S.A., the owner of the warehouse at Miami International Airport. Infinity Cargo Services, Inc., was another subcontractor that supplied personnel to Lan. Vallejos was a forklift operator. His duties did not include taking hoppers (small dumpsters) outside to dump in a larger dumpster. On the day of his accident, Vallejos was asked to do so by Pablo Robaina, an Infinity employee. Robaina was not Vallejos’ supervisor. Ro-baina did not have the security clearance necessary to go out and dump the hopper himself. Robaina showed Vallejos how to dump the hopper using a makeshift rope that allowed the operator to dump the hopper from the cab of the forklift so that the operator did not have to exit the forklift. The rope did not come attached to the hopper but was added later by employees at the warehouse. As Vallejos was returning the hopper, the hopper started to move around. Vallejos wrapped the rope around his hand to steady it. The unattached end of the rope was long and dragged on the ground. It got wrapped around one of the forklift’s tires and jerked Vallejos out of the cab and onto the ground. He suffered minor shoulder and back injuries, but four fingers had to be amputated. He also suffered some psychological injuries and was unable to return to work. Vallejos applied for workers’ compensation benefits. He settled his workers’ compensation case with Professional and its carrier and signed a broad release.

Two years later, he filed the instant case against Lan and Infinity (“appellees”). He alleged two counts of negligence and gross negligence against each and one count of intentional tort against Lan. In general, Vallejos alleged that appellees wrongly modified the hopper, failed to provide adequate safeguards and warnings, and should not have asked him to dump the hopper because he was not trained. Additionally, Vallejos argues that Robaina did not properly instruct Vallejos how to dump the hopper.

The trial court granted summary judgment in favor of the appellees after a hearing. The trial court reasoned that Vallejos had elected the remedy afforded by the workers’ compensation statutes and had not shown that a genuine issue of material fact existed to support a case against the appellees based on exceptions to the workers’ compensation statute. This appeal followed.

ANALYSIS

Workers’ compensation immunity applies to all statutory employers, such as Lan, and subcontractors that provide services in conjunction with a contractor on the same project, such as Infinity. Fla. Stat. §§ 440.10-.il (2003). Vallejos argues that Lan and Infinity are not immune because he did not elect workers’ compensation as his remedy.

Vallejos argues that even if he did elect his remedy, the following exceptions to workers’ compensation immunity apply: 1) Lan committed an intentional tort, 2) Ro-baina, his fellow-employee, was grossly negligent, 3) Robaina was negligent while operating in the furtherance of the same employer’s business but assigned primarily to unrelated works, and 4) Infinity, a subcontractor that shares statutory immunity under section 440.10, was grossly negligent. Fla. Stat. §§ 440.10-.il. All of Val-lejos’ arguments fail; therefore, the trial court properly granted summary judgment as to all of these counts.

This Court’s standard of review is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

I. Vallejos elected workers’ compensation as his remedy; therefore, Lan and Infinity are entitled to workers’ compensation immunity as to Valle-jos’ negligence claims.

Vallejos argues that he did not express a conscious intent to elect workers’ compensation as his remedy and that his case did not reach a conclusion on the merits. Therefore, he argues, he did not elect his remedy. The cases which examine whether a plaintiff evinces a conscious intent to elect a remedy or whether a case reaches a conclusion on the merits can be divided into two groups: 1) cases where compensability or the injured party’s status as an employee is at issue and 2) cases where the defendant claims that liability under an exception to the statute was either waived or resolved in the workers’ compensation case. Neither of these circumstances apply in the instant case.

a. Compensability is not an issue.

Vallejos elected his remedy by filing a petition for benefits, receiving payments, and negotiating a settlement. All of the following cases that Vallejos cites can be distinguished because they deal with workers’ compensation claims where the compensability of the claim or the status of the employee at the time of the injury was contested: Vasquez v. Sorrells Grove Care, Inc., 962 So.2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernandez’s employment, there was no conclusion on the merits); Lowry v. Logan, 650 So.2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So.2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So.2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case).

There was no question that Vallejos was injured during the scope of his employment. The signed release states that Val-lejos “represents and affirms that all accidents, injuries, and occupation diseases known to have occurred or have been sustained while employed by the Employer have been revealed.” Vallejos admits that his entitlement to workers’ compensation benefits was not a contested issue. Unlike many of the aforementioned cases, Professional and its carrier never denied Valle-jos’ claim.

There are numerous cases which hold that when an employee is injured on the job and then applies for and receives workers’ compensation benefits, a subsequent negligence suit is barred. Yero v. Miami-Dade Cnty., 838 So.2d 686, 687 (Fla. 3d DCA 2003); Townsend v. Conshor, Inc., 832 So.2d 166, 167 (Fla. 2d DCA 2002); Delta Air Lines, Inc. v. Cunningham, 658 So.2d 556, 557 (Fla. 3d DCA 1995); Coney v. Int’l Minerals & Chem. Corp., 425 So.2d 171, 171-72 (Fla. 2d DCA 1983).

Not only did Vallejos file an initial petition, but he filed six supplemental petitions. Professional and its carrier paid all of his medical bills. Vallejos received a total of $267,279.84, including the lump sum settlement. Lan and Infinity should not be held liable in a negligence action for the same injury already fully compensated by Professional.

Lastly, Vallejos’ release did not contain a clause stating that the release should not be construed as an election of remedies, unlike the release in Vasquez. Vasquez, 962 So.2d at 414. Therefore, Vallejos did not reserve his right to elect another remedy. Vallejos argues that this does not matter because his signed release contained the following clause: “[T]his release is in no way to be construed as an admission of any wrongdoing or liability on the part of the Releasees.” However, all this statement means is that there has been no determination on the merits as to neglect or intent for purposes of determining whether a claim can be made under an exception to statutory immunity. See infra section I.b. In a workers’ compensation case, liability is irrelevant if the employee is covered.

Florida’s workers’ compensation system was designed ... for workplace injuries that have occurred in the course and scope of employment.... [It] provides employees ... benefits, without regard to fault, for losses resulting from workplace injuries in exchange for the employee relinquishing his or her right to seek certain common law remedies from the employer....

Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1104 (Fla.2006) (emphasis added). “Where an injury is suffered in the course and scope of employment, worker’s compensation is the exclusive remedy for recovery against the employer.” Wishart, 573 So.2d at 184 (citing Fla. Stat. § 440.11).

[W]hether the injury to the employee is caused by “gross negligence”, “wanton negligence”, “simple negligence” passive or active, or no negligence at all of the employer, is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer’s immunity is concerned and we see no reason or logic in any distinction.

Seaboard Coast Line R.R. v. Smith, 359 So.2d 427, 429 (Fla.1978).

b. Vallejos did not waive his right to sue under exceptions to the statute.

Vallejos relies heavily on Jones for the proposition that workers’ compensation immunity does not apply at all if the workers’ compensation case was not litigated to a conclusion on the merits or the plaintiff did not show a conscious intent to waive his remedies. He misapplies Jones ’ holding:

[W]e hold that an employee who is injured in the workplace during the course and scope of his or her employment and receives workers’ compensation benefits, but does not pursue a compensation claim to a conclusion on the merits, may file an action against an employer for that workplace injury under these circumstances if the employer’s conduct is to the level of intentional conduct substantially certain to result in injury for which workers’ compensation immunity is not available.

Jones, 932 So.2d at 1105 (emphasis added). Vallejos improperly relies on Jones because Jones dealt with waiving the right to pursue an action under an intentional tort theory. All Jones means for Vallejos is that he can still pursue a civil action based upon an exception to the exclusivity of the workers’ compensation statute because none of those claims were litigated in the workers’ compensation case. See Petro Stopping Ctrs., L.P. v. Gall, 23 So.3d 849, 852 (Fla. 5th DCA 2009) (holding that Gall waived her right to sue for an intentional tort because her mediated settlement was a conclusion on the merits due to the fact that the settlement agreement provided that Petro accepted Gall as permanently and totally disabled); Vasquez, 962 So.2d at 413-14 (emphasis added) (characterizing Jones’ holding as simply meaning that “an employee who had received workers’ compensation benefits for a workplace injury but who had no pursued the compensation case to a conclusion on the merits was not estopped from later filing a civil tort claim if he could show that an exception to the workers’ compensation statute existed”).

Although Vallejos was able to pursue a civil action based upon exceptions to the workers’ compensation statute, the trial court correctly granted summary judgment in favor of the appellees because the “gross negligence” and “unrelated works” exceptions do not apply as a matter of law, and taking the facts in the light most favorable to Vallejos, he cannot prove that Infinity was grossly negligent or that Lan committed an intentional tort.

II. The “gross negligence” and “unrelated works” exceptions under section 440.11(l)(b)(2) do not apply because Vallejos did not sue Robaina, the fellow-employee, and any negligence on the part of Robaina is not imputed to Lan or Infinity.

The “gross negligence” and “unrelated works” exceptions found in section 440.11(l)(b)(2) are inapplicable to Vallejos’ suit as a matter of law because the statute expressly states that the exceptions apply only to fellow-employees. Vallejos does not cite any case law in support of imputation. The statute does not mention any imputation of liability onto the employer and specifically states that immunity includes vicarious liability. Because Robai-na was not included in the lawsuit, there is no reason to analyze whether he was grossly negligent or involved in unrelated works.

III. Taking the facts in the light most favorable to the plaintiff, Vallejos cannot prove that Infinity was grossly negligent under section 440.10(l)(e)(2).

A subcontractor that does not employ the plaintiff but is employed by the same general contractor as the plaintiff also enjoys immunity under the workers’ compensation statute unless “[t]he subcontractor’s own gross negligence was ... the major contributing cause of the injury.” Fla. Stat. § 440.10(1)(e) (2).

Gross negligence requires: 1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences. Kline v. Rubio, 652 So.2d 964, 965-66 (Fla. 8d DCA 1995). Summary judgment was appropriate because Vallejos did not present evidence that a genuine issue of material fact exists as to these three elements.

a. Imminent or clear and present danger.

Vallejos did not establish that the circumstances surrounding the incident constituted an imminent or clear and present danger. The conduct in this case might possibly result in injury; however, it cannot be said that the conduct would probably and most likely result in injury. See Carraway v. Revell, 116 So.2d 16, 22-23 (Fla.1959) (comparing negligence and gross negligence). Robaina testified in his deposition that Lan forklift operators have been dumping the hoppers at issue with makeshift ropes multiple times a day for at least five years without incident. Vallejos provided no evidence of any prior accidents or injuries at Lan. Using a makeshift rope to dump the hopper “may have been more dangerous than another method. On the other hand, it was a procedure that had been successfully performed on many occasions over many years.” Fleetwood Homes of Fla. v. Reeves, 833 So.2d 857, 867-68 (Fla. 2d DCA 2002), rev’d on other grounds, 889 So.2d 812 (2004). “[T]he numerous successful performances of the challenged procedure show that a risk of accident ... was far from imminent. This is not a case in which the employer continued to use the procedure after earlier mishaps....” Id. at 868. See also Sullivan v. Streeter, 485 So.2d 893, 895 (Fla. 4th DCA 1986) (reversing summary judgment because the plaintiff provided evidence that the employer had been robbed several times).

Case law does not support Vallejos’ argument that modifying a piece of machinery in such a way as to increase its dangerousness always amounts to gross negligence. For example, in Kline, 652 So.2d at 965, the plaintiff sued her supervisor for gross negligence under a different subsection of the statute. See Fla. Stat. § 440.11(1)(b)(2) (excluding from immunity supervisors who are grossly negligent in the course of his or her managerial duties). The plaintiff was injured while using a meat tenderizer that was not bolted down as it was designed to be. The safety cover and the manufacturer’s warnings had been removed, and the machine had been repaired in a way that bypassed the emergency cut-off switch. Kline, 652 So.2d at 965. We held that “although the corporate defendant was certainly negligent in its cavalier attitude toward the safety of its employees,” the allegations were not sufficient to meet the standard of gross negligence. Id. at 965-66.

In Merryman v. Mattheus, 529 So.2d 727 (Fla. 2d DCA 1988), another case that dealt with section 440.11(1)(b)(2), the plaintiff, the crane operator, was killed when a load of steel dropped on him after the crane’s cable broke. Id. at 728. The cable broke because the plaintiff lifted the crane higher than necessary, and the limit switch, which was designed to prevent the crane from being lifted too high, malfunctioned. The defendants had been advised previously that the limit switch was malfunctioning, and the crane’s load had even dropped once before. Id Nevertheless, the Second District held that the defendants’ conduct amounted to nothing more than negligence because if the plaintiff had operated the crane properly, there would have been “no clear and present danger. ... The danger was, therefore, no more than a possibility....” Id. In the instant case, Vallejos knew he had never before emptied the hopper and that he was not trained to do so. Robaina was not his supervisor. Vallejos testified in his deposition that he was just doing Robaina a favor and that he regretted doing something he was not meant to be doing. Had Vallejos said no, or not wrapped the rope around his hand, the accident would not have occurred. The likelihood of danger was no more than a possibility.

b. Knowledge of the imminent danger.

Vallejos presented no evidence to support his claim that Infinity had knowledge or awareness of the alleged imminent danger. Villalta v. Cornn International, Inc., 109 So.3d 278, 279 (Fla. 1st DCA 2018), is instructive because it shows the lack of evidence submitted by Vallejos in the instant case. Villalta worked for a drywall subcontractor. The defendant, an HVAC subcontractor, cut holes in the floor where Villalta was working and failed to cover them up. Villalta was working on a scaffold when the wheel of the scaffold went into one of the holes, causing the scaffold to topple over, and Villalta fell to his death. Id. The HVAC subcontractor’s manager testified that he knew the holes created a risk of serious injury or death if not properly covered. Id. at 280. There was also evidence that the general contractor had contacted the HVAC subcontractor about the holes. Id. at 279. The First District reversed summary judgment and held that the plaintiff had presented a prima facie case of gross negligence sufficient to create a jury question. Id. The evidence demonstrated that the subcontractor knew about the imminent danger.

In the instant case, depositions show that Infinity did not purchase the hopper, and there was no evidence submitted that Infinity was aware that additional safety features were available for purchase if a rope was added. There is no evidence that Lan gave Infinity instructions to make the hopper safer. Additionally, the fact that the hopper had been dumped with a makeshift rope on prior occasions without injury creates an element of doubt as to Infinity’s knowledge of the likelihood of injury. See Courtney v. Fla. Transformer, Inc., 549 So.2d 1061, 1065 (Fla. 1st DCA 1989). See also Marquez, 632 So.2d at 85 (reversing summary judgment because the plaintiff presented evidence that the defendant was responsible for the machine’s maintenance and knew that other employees had been injured due to the lack of a guard on the machine).

c. Act or omission that evinces a conscious disregard of the consequences.

Vallejos argues that Infinity’s conduct constituted a conscious disregard for his safety because Robaina never should have asked Vallejos to dump the hopper in the first place, as he had never done so before. Vallejos also argues that Robaina failed to properly advise him how to dump the hopper and not to wrap the rope around his hand or use it to hold the hopper steady.

However, these acts do not demonstrate a conscious disregard for Vallejos’ safety. It was nothing more than an accident or simple negligence that Robaina happened to ask Vallejos, who did not object to dumping the hopper. Vallejos testified that he knew a long length of rope was hanging down from the hopper and dragging on the floor. Robaina’s failure to warn of such an obvious hazard cannot be said to demonstrate a conscious disregard of Vallejos’ safety.

Lastly, Vallejos argues that Infinity, as the business that controlled the hopper, had a duty to maintain the hopper in a safe condition and provide warnings of dangerous conditions. However, as previously stated, dumping the hopper with the makeshift rope was not an imminently dangerous condition. See Merryman, 529 So.2d at 728 (permitting the continued use of machinery that creates the risk of a possible injury does not show a conscious disregard for safety). Furthermore, this argument is not supported by the record, which shows that Lan was responsible for the repair and maintenance of the hoppers. Lan purchased the hopper, so it was Lan that failed to purchase the safety retaining chain, rope cleat for storage, rope trip instruction label, and general warning labels in Spanish.

IV. Lan’s conduct did not rise to the level of an intentional tort.

Workers’ compensation immunity applies to every employer unless the employee can prove, by clear and convincing evidence, that:

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

Fla. Stat. § 440.11(1)(b).

Vallejos did not present clear and convincing evidence that Lan engaged in conduct that it knew was virtually certain to result in injury. This standard is very hard to meet because liability under section 440.11 “was intended to be the rarest of exceptions to the immunity granted to the employer.” List Indus. v. Dalien, 107 So.3d 470, 473 (Fla. 4th DCA 2013). Therefore, “this issue is amenable to being decided on summary judgment.” Id.

The only evidence Vallejos submitted in support of Lan’s knowledge of the dangerousness of the hopper was the affidavit from the employee of the hopper manufacturer who stated that safety parts and warning labels for the hopper were available for purchase. Vallejos’ own expert merely stated that Lan failed to maintain a safe workplace. See C.W. Roberts Contracting, Inc. v. Cuchens, 10 So.3d 667, 670 (Fla. 1st DCA 2009) (noting the lack of expert opinion as to the virtually certainty); Cabrera v. T.J. Pavement Corp., 2 So.3d 996, 1001 (Fla. 3d DCA 2008) (noting that the plaintiffs two experts concluded that the conditions were such that injury or death was substantially certain); Pendergrass v. R.D. Michaels, Inc., 936 So.2d 684, 693 (Fla. 4th DCA 2006) (noting that the expert’s affidavit merely opined that the defendants were negligent). However, the test is not whether the injury was preventable. Bourassa v. Busch Entm’t Corp., 929 So.2d 552, 559 (Fla. 2d DCA 2006). Lan’s knowledge of possible risks and its failure to make the hopper “more safe” is not sufficient to establish than Lan committed an intentional tort. Id.

The possibility of injury in the instant case does not satisfy the “virtually certain” standard. “Virtually certain” means “that a plaintiff must show that a given danger will result in an accident every — or almost every — time.” List Industs., 107 So.3d at 471. In List, the employee was injured on a negligently maintained machine that was missing safety guards. Also, the employee did not receive adequate training. Nevertheless, the Fourth District held that the employer’s conduct did not rise to the level of an intentional tort because the employee did not submit evidence that there had been prior accidents on that particular machine. Id. at 473. Likewise, Vallejos did not submit any evidence of prior accidents. In fact, the record shows that Lan’s forklift operators have been using these hoppers modified with makeshift ropes daily for at least five years without incident. Using an objective test, continued use of makeshift ropes is not virtually certain to result in injury. If not wrapped around a hand and dragged on the floor, use of makeshift ropes is relatively safe. See Turner v. PCR, Inc., 754 So.2d 683, 688 (Fla.2000) (analyzing likelihood of danger under an objective test).

Finally, Vallejos did not prove by clear and convincing evidence that he was unaware of the risk because the danger was not apparent or that Lan deliberately concealed or misrepresented the danger so as to prevent Vallejos from exercising informed judgment about whether to perform the work. First of all, Vallejos testified that he knew a long length of rope was hanging down from the hopper and dragging on the floor, so he was aware of the risk. See List Indus., 107 So.3d at 473 (noting obviousness of danger as a factor to consider). Secondly, Lan’s failure to train or warn of obvious dangers does not amount to concealing or misrepresenting the danger so as to prevent Vallejos from exercising informed judgment. In Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879, 880 (Fla.1986), receded from, by Turner, 754 So.2d at 691 n. 8, the Florida Supreme Court held that an employer who ignores manufacturer’s warnings, does not provide safety guards, and does not train operators about the machine’s dangers may be grossly negligent but does not commit an intentional tort.

Vallejos did not establish by clear and convincing evidence that Lan engaged in conduct that it knew was virtually certain to result in Vallejos’ injury or that Vallejos was unaware of the risk. Therefore, the trial court properly granted summary judgment in Lan’s favor.

CONCLUSION

We affirm the trial court’s order granting summary judgment in favor of appel-lees as to all counts. The negligence claims were barred due to workers’ compensation immunity. Summary judgment was proper as to the other claims because Vallejos did not demonstrate that an issue of material fact existed as to whether Infinity was grossly negligent or Lan committed an intentional tort.

Affirmed.

      . The fourth amended complaint substituted Vallejos’ son as the plaintiff. Vallejos passed away during the case due to causes not related to his workplace injuries.

      . Vallejos filed an affidavit of an employee of the hopper manufacturer. The affidavit states that a factory-made rope was available for purchase, as well as a safety chain, rope cleat, and warnings to be affixed to a hopper that had a rope attachment. Lan did not purchase these additions when it bought the hopper.

      . Vallejos also argues that the release, by its terms, releases only Professional and its carrier from liability. However, the workers’ compensation statute applies to all statutory employees, not just those that were a party to the workers’ compensation case. Fla. Stat. § 440.10.

        . An election of remedies presupposes a right to at least two viable options. Velez v. Oxford Dev. Co., 457 So.2d 1388, 1391 (Fla. 3d DCA 1984). However, if the plaintiff is not an employee or is injured outside the scope or course of employment, he does not have a right to workers’ compensation. Fla. Stat. § 440.09 (2003). Thus, there is a need for a determination as to the injured party's status.

      . Apparently, no party argued that Vallejos was not covered because he was injured while performing a task that was not part of his normal job duties.

      . Vasquez and Hernandez can be distinguished on these grounds. The reservation of liability in the settlement agreements was crucial in those cases because the employers contested whether Vasquez and Hernandez were covered employees.

      . The Florida Supreme Court held that there was no conclusion on the merits because "[t]he issue of whether the incident which resulted in Mr. Jones's injuries was compen-sable or caused by neglect or intent was not litigated pursuant to this petition.” Id. at 1107. Additionally, the Court held that Jones’ conduct “did not amount to such a clear overt act evincing a waiver of all common law intentional tort remedies.” Id. (emphasis added).

      .The record reflects that Vallejos did not litigate whether statutory exceptions applied in his workers' compensation case. Vallejos submitted evidence that he had hired an attorney to pursue the tort action in civil court while the workers’ compensation case was ongoing. Furthermore, Vallejos’ settlement released Professional and its carrier “from any and all liability for the payment or provision of any class of benefits, of whatever kind or classification available under the Florida Workers’ Compensation Law.”

      . Vallejos argues that Holmes County School Board v. Duffell, 651 So.2d 1176 (Fla.1995), allows for imputation of liability to the employer. However, Vallejos seems to ignore one of the key reasons for the holding in Holmes: sovereign immunity. The plaintiff was allowed to pursue his claim against the school board due to the negligence of his fellow-employee, despite the fact that he had received workers’ compensation from the school board, because Florida’s sovereign immunity statute immunized the public fellow-employee from personal liability. Therefore, the school board acted as a surrogate defendant. Id. at 1179. Holmes is inapplicable to the instant case.

      . See Taylor v. Sch. Bd. of Brevard Cnty., 888 So.2d 1, 7 (Fla.2004) (Lewis, J., concurring in result) (noting that the "unrelated works exception to the rule of general immunity applies only in the co-employees context, and application of the provision does not result in the loss of general immunity by an employer”).

      . Vallejos’ own expert did not state in his affidavit that use of the makeshift rope, without the safety features or warnings, constituted an imminent or clear and present danger. The affidavit simply stated that Infinity failed to maintain a safe workplace. This is not helpful in distinguishing between negligence and gross negligence. See, e.g., Marquez v. Heim Corp., 632 So.2d 85, 85 (Fla. 3d DCA 1993) (reversing summary judgment because plaintiff’s expert testified that using the machine without a guard created a clear and present danger to the operator).

      . See Bakerman v. Bombay Co., 961 So.2d 259, 265 (Fla.2007) (holding that concealment is just one factor to consider and is not a mandatory element).

      . When Lawton was decided in 1986, the statute used the "substantially certain” standard. The Lawton court announced that "substantially certain” was the same as "virtually certain.” Turner receded from this holding and held that the facts in Lawton were sufficient to support an allegation of substantial certainty of injury. However, in 2003, the legislature amended the statute and changed the standard to "virtually certain.” Because Lawton used the "virtually certain” standard, this Court can compare the facts of that case to the instant case. Vallejos, on the other hand, cites numerous cases that apply the less strict "substantially certain” test. See, e.g., Casas v. Siemens Energy & Automation, Inc., 1 So.3d 294, 301 n. 6 (Fla. 3d DCA 2009).


author: SALTER, J.

text:
    MAGGOLC, INC., Appellant, v. Robert ROBERSON, Appellee.
    No. 3D12-2001.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Fowler White Burnett, and June Galko-ski Hoffman, Fort Lauderdale, for appellant.
    Kenneth J. Carusello and Lyudmila Karlina, Coral Gables, for appellee.
    Before WELLS, C.J., and SALTER and EMAS, JJ.
   SALTER, J.

A highway paving contractor, Maggolc, appeals a portion of the jury award and final judgment obtained by a personal injury plaintiff, Robert Roberson. We affirm the denial of Maggolc’s motions for judgment in accordance with motion for directed verdict, remittitur, and new trial, all directed to Mr. Roberson’s jury awards for past earnings and lost earning capacity.

Facts and Proceedings Below

While riding his motor scooter at around 9:00 p.m. at night in Miami Beach, Mr. Roberson traversed an area of pavement being resurfaced by Maggolc, struck a projecting manhole pipe, was thrown from his scooter, and was injured on the jagged surface of the roadway. At trial, the jury determined that Maggolc was negligent and that Mr. Roberson should recover a total of $532,294.54, consisting of: (a) past medical expenses of $17,294.54, (b) future medical expenses of $20,000.00, (c) pain and suffering, and other non-economic damages, of $250,000.00, (d) past lost earnings of $85,000.00, and (e) future lost earning capacity of $160,000.00.

Maggolc filed post-trial motions for judgment in accordance with its prior motions for directed verdict, for new trial, and in the alternative, for remittitur, each of which was denied. This appeal followed.

Analysis

On appeal, Maggolc does not challenge liability or the damage awards in three of the five categories. Maggolc seeks a directed verdict, remittitur, or a new trial only as to the awards of past lost earnings and future lost earning capacity.

Maggolc argues that Roberson’s skimpy testimony regarding past earnings and future earning capacity, unsupported by financial records of any kind, must have impermissibly pinned his claims for those losses on sympathy and speculation. Mr. Roberson, a personal trainer, was the only witness providing numerical evidence regarding his earnings history and future prospects. Though claiming an annual income before the accident of “approximately” $80,000, Roberson conceded that he had not filed tax returns, had no receipts or appointment records, had no bank records, had no information regarding expenses, and had no client testimony about hourly rates, numbers of training sessions, or similar details. An acupuncturist who worked out of an adjacent area at the Standard Hotel in Miami Beach testified that she, like Mr. Roberson, had been one of the “original staff’ of the hotel from 2005 to 2009, and that she had seen him training clients, including celebrity and well-to-do clients, and giving them workouts. But the acupuncturist did not know how many clients Mr. Roberson had, and she did not provide any estimate of his charges or income.

The evidence in the record regarding Mr. Roberson’s claim for past lost earnings and loss of future earning capacity consisted of:

1. Mr. Roberson’s testimony estimating that he made approximately $80,000 per year before the accident.

2. His testimony that he was paid $90 to $150 “per session,” earning between $1500 and $2000 per week before the accident, and working long hours six or seven days a week.

3. His testimony that after the accident his annual earnings had dropped to $15,000 (2010) and $20,000 (2011 and projected 2012).

4. His testimony that he expected to work as a trainer another eight years.

5. The acupuncturist’s testimony that she saw him at the hotel working long hours six or seven days a week, and that they cross-referred clients to each other, including celebrities, models, and professional athletes.

6. Mr. Roberson’s medical expert testified that Mr. Roberson had a seven percent permanent physical disability rating, ascribing five percent to his neck and two percent to his knees. No occupational or other expert testified that Mr. Roberson was precluded from other work, or estimated the income Mr. Roberson might attain based on his age, education, and experience.

Analysis

Our review of the denial of the motion for directed verdict is de novo, viewing all of the evidence presented and all available inferences from that evidence in the light most favorable to Mr. Roberson. Boulton Agency, Inc. v. Phoenix Worldwide Indus., Inc., 698 So.2d 1248, 1250 (Fla. 3d DCA 1997). We review the trial court’s denial of Maggolc’s post-trial motions for remittitur and new trial under the abuse of discretion standard. SDG Dadeland Assocs., Inc. v. Anthony, 979 So.2d 997, 1001 (Fla. 3d DCA 2008).

The question is whether the evidence described above, uncorroborated by any income tax returns (because he had filed none), bank records, receipt books, credit card slips, Social Security earnings history, client lists, appointment records, expenses, or other documents, is collectively sufficient to prove past lost earnings and loss of earning capacity with “reasonable certainty.” Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla.1995). Florida law has long specified that reasonable certainty as to the facts of injury and causation is more critical than reasonable certainty as to the computation of the resultant losses. Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936). Plainly there was competent substantial evidence regarding the fact of Mr. Roberson’s injury and the causal connection between the injury and its adverse effect on his vocation as a personal trainer.

No Florida court has determined that a claim for an individual’s lost past earnings must be supported by documentary evidence, or that the failure to file income tax returns for those earnings (at an annual level that clearly requires a return) precludes recovery. These issues are, as they were here, for the jury to weigh in their assessment of Mr. Roberson’s credibility.

Affirmed.

      . Although Mr. Roberson testified that he included massage therapy in his training programs, he had no occupational license. He said that he had a "national license” from the National Council of Strength and Fitness, and that although that license did not authorize him to practice massage in Florida, he was an ordained minister allowing him to take money for putting his hands on people for healing.

      . See Eagle Atl. Corp. v. Maglio, 704 So.2d 1104 (Fla. 4th DCA 1997).


author: SCHWARTZ, Senior Judge.

text:
    Piesus REYNOLDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2296.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.

      Baker & McKenzie and Angela Vigil, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nikole Hiciano, Assistant Attorney General, Miami, for appellee.
    Before WELLS, C.J., and LOGUE, J„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant seeks reversal of the adverse aspects of the following decision:

I
After a jury found him guilty, the then trial judge in January of 2002 sentenced Mr. Reynolds to life in prison on count one of the information, for robbery with a firearm. As noted in the Graham opinion, under Florida law a life sentence gives a defendant in Mr. Reynold’s position “no possibility of release unless he is granted executive clemency.” See [Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2020, 176 L.Ed.2d 825 (2010) ]. As a result, under Graham, I hereby vacate Mr. Reynold’s life sentence as unconstitutional. This case is to be reset for resentencing only on that count. At that resentencing hearing, along with whatever evidence, argument, and authorities the parties deem it necessary to present at such hearing, the parties should be prepared to discuss Judge Padovano’s concurring opinion in Smith v. State, 93 So.3d 371, 2012 WL 2345119 (Fla. 1st DCA June 21, 2012), and its implications for the resentencing of Mr. Reynolds on count one in this case.
II
The jury in this case also found Mr. Reynolds guilty of counts two and three of the information, respectively, carjacking with a firearm and conspiracy to commit armed robbery. At the same sentencing hearing in January of 2002, the trial judge sentenced Mr. Reynolds to 50 years on count two and 30 years on count three. Mr. Reynolds asks that I also vacate those sentences because, he argues, they are “intertwined” with or were imposed “in consideration of’ the life sentence. I decline his request.
The trial judge in this case ordered that the life, 50, and 30 year sentences on each of the counts be served concurrent with on another. Preliminarily, it is important to note that Mr. Reynolds (correctly) does not challenge the legality of his 50 and 30 year sentences on counts two and three. Such term of years sentences have been held to be constitutional post-Graham. See Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), and cases cited therein (90, 70, and 50 year sentences for juveniles at the time of the nonhomicide offenses not unconstitutional).
The legality of the sentences on counts two and three in this case is important because it distinguishes this case from that line of cases where a trial court has been allowed to “restructure” sentences on various counts or cases so as to achieve an “original sentencing intent.” The latter situation only applies, however, where the sentences to be restructured have been successfully challenged at the trial or appellate court level. See De La Cosa v. State, 784 So.2d 452 (Fla. 3d DCA 2000). The De La Cosa opinion explains the difference between these two “lines of cases.” See id. at 454.
In that case, Mr. De La Cosa was originally sentenced to life in prison for grand theft of the first degree. See id. at 453. He was also sentenced to 5 years in prison on multiple counts of grand theft of the second and third degree, each of those sentences to run concurrent with his other sentences, including the life sentence. See id. On direct appeal of his original convictions and sentences, the appeals court reversed only his conviction and sentence for the grand theft of the first degree; his “remaining convictions and sentences were unaffected.” See id. At a resen-tencing hearing on remand, the trial judge resentenced Mr. De La Cosa to 30 years on the grand thefts of the second degree, and 10 years on the third degree grand thefts. See id. at 454. The Third District Court of Appeal held that the trial court erred because these convictions and sentences were not affected by its reversal of only the count of grand theft of the first degree.
In Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982), this court distinguished between two lines of cases. The first line of cases, applicable to De La Cosa, hold that “a trial court is not free to change a valid and unchallenged sentence.” Id., at 967, and cases cited therein; Fasenmyer v. State, 457 So.2d 1361 (Fla.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1407, 84 L.Ed.2d 796 (1985). The Herring court explored this scenario at length and explained that where a defendant does not challenge a sentence on appeal and the court of appeal does not alter that sentence, the trial court cannot, on remand, change the sentence. The second line of cases, relied on by the state, addressed scenarios where the trial court is addressing, on remand, sentences that have been challenged successfully on appeal. To that end, Herring expressed that “no violation of due process occurs when sentences vacated at the defendant’s instance are changed to accomplish the trial court’s previously declared sentencing goal.” Id., at 971. Obviously, De La Cosa does not fall under the second line of cases.

Id. (footnote omitted).

In this case, I am not “free to change a valid and unchallenged sentence” of Mr. Reynolds. His only invalid sentence in this case is his sentence on count one of life in prison without parole. As in De La Cosa, I am not free to resentence Mr. Reynolds on his other counts. See also Suarez v. State, 974 So.2d 451 (Fla. 3d DCA 2008) (resentencing judge could resentence only on counts where sentence was illegal); Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007) (explaining Florida law in detail and holding trial court “lacked authority” to modify legal sentence on a count not challenged by the defendant); Pitts v. State, 935 So.2d 634 (Fla. 2d DCA 2006) (noting that a “motion to correct an illegal sentence does not authorize the trial court to modify a legal sentence on another count”); Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005) (holding trial court “lacked jurisdiction” to resentence defendant in two later cases not implicated in his motion to correct sentencing error); Gordon v. State, 635 So.2d 1017 (Fla. 1st DCA 1994) (order remanding for resentencing on counts II and III did not permit trial court to modify legal sentences on counts I and IV); Seago v. State, 627 So.2d 1316 (Fla. 2d DCA 1993) (reversing trial court which resen-tenced on counts not affected by vacation of one count of the judgment).
Ill
As I noted earlier, this case is also plainly not a case where a court is permitted to restructure a vacated sentence to change it from concurrent to consecutive so as to achieve an original sentencing goal or intent. See Sands v. State, 899 So.2d 1208 (Fla. 5th DCA 2005) (approving change of illegal sentence on remand for resentencing from concurrent to consecutive); Buchanan v. State, 781 So.2d 449 (Fla. 5th DCA 2001) (same); Cerkella v. State, 687 So.2d 367 (Fla. 3d DCA 1997) (concurring opinion notes that vacated sentence on count one may on remand be changed from concurrent to consecutive to count two, but “it would be inadvisable to disturb the sentencing order” on count two); Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982) (where all sentences vacated, concurrent could be changed to consecutive to achieve original declared sentencing goal).
IV
In addition to the apparently overwhelming authority in Florida which indicates I am without power to change legal, unchallenged sentences, there is also nothing in the record which I have reviewed or which has been presented to me to indicate that the then trial judge imposed the 50 and 30 year sentences on counts two and three “in consideration of’ the life sentence or that they were “intertwined” with it. As I have already noted, the judge ordered each of these sentences to run concurrent with each other. So, they are not “intertwined” in the sense that one sentence was to run consecutive to another. Moreover, this is not a case where an erroneous classification of an offense, or some other error in the sentencing guidelines scoresheet, affected all counts of an information or judgment. See, e.g., Senterfitt v. State, 515 So.2d 411 (Fla. 1st DCA 1987) (erroneous classification of two counts affected guidelines on other counts).
In support of his argument that I should vacate his legal sentences on counts two and three in this case, Mr. Reynolds cites to certain Federal appellate decisions which address the concept under Federal sentencing law of a “sentencing package.” See, e.g., United States v. Klopf, 423 F.3d 1228. 1244-45 (11th Cir.2005). Assuming for the sake of this argument that the record in this case supports the idea that the sentences in this case were part of a “package,” existing precedent appears to foreclose the possibility that this could be the basis for modifying legal, undisturbed sentences. See Fasenmyer v. State, 457 So.2d 1361 (Fla.1984).
In Fasenmyer, the Florida Supreme Court identified the issue as “whether, when an appellate court reduces the severity of a criminal conviction because of lack of evidence and orders resentencing accordingly, the trial court may change the sentences previously imposed on other convictions not affected by the appellate court judgment.” See id. at 1362. The Court answered that question in the negative. In so doing, the Court addressed the issue of “aggregate sentencing”:
We conclude that the concept of aggregate sentencing on interdependent offenses as it relates to a trial judge’s desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court.
Id. at 1366. As a result, even if we had in this case “aggregate sentencing on interdependent offenses” (which as I have noted the record reflects we do not), under Fasenmyer that still would not provide a basis for modifying lawful sentences on convictions.
V
Lastly, I have not found — nor have the parties presented to me — any legal decisions squarely addressing this issue after the United States Supreme Court issued its opinion in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). There are, however, several opinions post-Graham which in general support the result that where a life sentence is vacated under Graham, resen-tencing should be limited to only that count. See Smith v. State, 93 So.3d 371, 2012 WL 2345119 (Fla. 1st DCA June 21, 2012) (trial judge resentenced only vacated life sentences and ordered new term of years sentences to run consecutive to existing undisturbed sentences); Kleppinger v. State, 81 So.3d 547 (Fla. 2d DCA 2012) (vacating life sentence on kidnapping count and remanding for re-sentencing on that “count only”); Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012) (approving trial court’s vacation of only life sentences on sexual battery counts and resentencing to term of years consecutive to remaining counts); Cunningham v. State, 74 So.3d 568 (Fla. 4th DCA 2011) (reversing and remanding for resentencing only the counts where life sentences were imposed); Guzman v. State, 68 So.3d 295 (Fla. 4th DCA 2011) (reversing life sentence on a violation of probation and remanding to the “trial court for resentencing on the violation only”); Manuel v. State, 48 So.3d 94, 98 n. 3 (Fla. 2d DCA 2010) (noting specifically in the multi-count case that the defendant was “not entitled to be resentenced” on a count that carried a sentence of 40 years).
VI
In his memoranda in support of his request that I vacate the sentences on all counts in this case, Mr. Reynolds argues that the “U.S. Supreme Court has condemned the sentencing process in Florida for failure to consider relevant evidence.” I do not read Graham to stand for that proposition. Graham specifically provides that a “State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 130 S.Ct. at 2030. In other words, a life sentence for a juvenile offender convicted of a nonhomicide crime is not unconstitutional. What is unconstitutional, however, is for the State not to give juvenile offenders like Mr. Reynolds “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” See id. In this case, there was nothing unconstitutional about the process that the then trial judge used in January of 2002 to sentence Mr. Reynolds to life in prison. What the Court has held is unconstitutional is the result that offenders such as Mr. Reynolds who are sentenced to life in prison have no right to parole or any other realistic way to “obtain release based on demonstrated maturity and rehabilitation.” That is not a condemnation of the process which led to the sentences in this case of life, 50, and 30 years in prison.
VII
One final observation is in order. My review of the opinions with regard to resentencing defendants where one or more, but not all, of the counts or sentences involved are successfully challenged, indicates that in most — if not all — of those reported decisions the courts were concerned with the trial court being vindictive or imposing harsher sentences than the original sentencing judge. In other words, the law prohibiting trial courts from disturbing lawful sentences on counts not affected by a decision to vacate illegal sentences on other counts arose in a factual context which benefitted the defendants in those cases.
In this case, in seeking to vacate all of the sentences he received in this and other cases, it is safe to assume that Mr. Reynolds believes that after a resentenc-ing hearing he will receive a more favorable sentence on each count. Of course, I have not made any decision as to any sentence Mr. Reynolds may receive as I have not yet held a resentencing hearing where the parties are entitled to present all information they deem appropriate under Florida law. Certainly, he will no longer be sentenced to life in prison without parole.

State v. Reynolds, 2012 WL 2951226, 19 Fla. L. Weekly Supp. 835a (Fla. 11th Cir. Ct. July 18, 2012).

We entirely agree with the trial court and adopt the opinion as our own.

Affirmed.


author: EMAS, J.

text:
    Carlos MARQUEZ, Appellant, v. BLUECARE HOME HEALTH SVCS., INC., et al., Appellees.
    No. 3D12-3267.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.

      Stack Fernandez Anderson & Harris and Lazaro Fernandez, Jr., Miami, for appellant.
    Omar J. Arda, for appellees.
    Before CORTINAS, LAGOA and EMAS, JJ.
   EMAS, J.

Carlos Marquez (“Marquez”) appeals the trial court’s order vacating a clerk’s certificate of dissolution of a writ of garnishment. We reverse the trial court’s order, because the trial court’s action was in contravention of section 77.041(3), Florida Statutes (2012).

In the original proceeding below, Marquez filed an action against Appellees, BlueCare Home Health Services, Inc. and others (“BlueCare”) to recover monies allegedly owed to Marquez. BlueCare filed an answer and counterclaim. On November 17, 2011, final summary judgment was entered on BlueCare’s counterclaim against Marquez, in the amount of $417,000 plus pre-judgment interest. On February 1, 2012, BlueCare obtained a writ of garnishment against Wells Fargo, and on February 7, 2012, served Marquez with a Notice of Serving Writ of Garnishment.

On February 24, 2012, Marquez served a Claim of Exemption and Request for Hearing, pursuant to section 77.041, Florida Statutes (2012), asserting that the Wells Fargo bank account was exempt from garnishment because: (i) Marquez was the head of his household, and (ii) the bank account was marital property held by Marquez and his wife as tenants by the entire-ties.

On March 5, 2012, Marquez filed a motion to set aside the final summary judgment. At the same time, BlueCare served several notices of deposition in aid of execution, and a motion for an order to open and inventory Marquez’s safety deposit box. BlueCare set the motion for hearing to be held March 28, 2012.

On March 28, the trial court deferred ruling on the motion for an order to open and inventory the safety deposit box until the court ruled on Marquez’s motion to set aside the final summary judgment and Marquez’s claims of exemption from garnishment.

On October 9, 2012, the trial court denied Marquez’s motion to vacate final summary judgment, after which, on October 17, 2012, Marquez filed an affidavit of service and a request (pursuant to section 77.041(3)) for the clerk of court to dissolve the writ of garnishment. The clerk’s certificate dissolving the writ of garnishment was issued the same day.

On October 22, 2012, BlueCare filed a verified emergency motion for rehearing on the clerk’s dissolution of the writ of garnishment and filed an objection to Marquez’s February 24, 2012 claim of exemption. The court heard the motion on a non-evidentiary motion calendar on November 26, 2012, granted BlueCare’s motion, and vacated the clerk’s certificate of dissolution. This appeal follows.

We review de novo orders construing statutes such as those controlling garnishment and claims of exemption. Cadle Co. v. Pegasus Ranch, Inc., 920 So.2d 1276 (Fla. 4th DCA 2006).

We begin by acknowledging that garnishment statutes must be strictly construed, Williams v. Espirito Santo Bank of Fla., 656 So.2d 212, 213 (Fla. 3d DCA 1995), and statutory provisions regarding exemptions from garnishment must be strictly construed in favor of the debtor. Cadle Co. v. G & G Assocs., 757 So.2d 1278 (Fla. 4th DCA 2000). With regard to a claim of exemption, the relevant section of the garnishment statute provides:

Upon the filing by a defendant of a claim of exemption and request for hearing, a hearing -will be held as soon as is practicable to determine the validity of the claimed exemptions. If the plaintiff does not file a sworn written statement that contests the defendant’s claim of exemption within 3 business days after hand delivering the claim and request or, alternatively, 8 business days, if the claim and request were served by mail, no hearing is required and the clerk must automatically dissolve the writ and notify the parties of the dissolution by mail.

§ 77.041(3), Fla. Stat. (2012) (emphasis added).

Here, Marquez hand-delivered his claim of exemption to BlueCare on February 24, 2012. Accordingly, BlueCare had only three business days-until February 29, 2012 — to object to or contest Marquez’s claim of exemption. BlueCare did not file its sworn objection to Marquez’s claim until October 22, 2012, nearly eight months later. Under the plain language of the statute, no hearing was required and the clerk was required to “automatically dissolve the writ and notify the parties of the dissolution by mail.”

BlueCare argues that the proceedings, and its obligation to file an objection to the exemption, were stayed by the trial court’s March 28, 2012 order deferring BlueCare’s motion to require opening and inventory of the safe deposit box. This argument fails for several reasons:

—The March 28 order merely deferred ruling on BlueCare’s motion for an order to open and inventory the safety deposit box until the court had ruled on Marquez’s motion to set aside the final summary judgment and his claims of exemption from garnishment. The order did not stay the proceedings, and did not stay BlueCare’s statutory obligation to object timely to Marquez’s claims of exemption.
—BlueCare did not request or receive an extension of time to comply with the mandatory provisions of section 77.041(3), and BlueCare cites no legal authority to support its assertion that a stay of proceedings would extend its obligation to object within three days, as mandated by the plain language of the garnishment statute.
—More to the point, it is irrelevant how we characterize the action of the trial court at the March 28 hearing because, by that date, BlueCare’s objection was already thirty days overdue. As of February 29, Marquez was automatically entitled to a clerk’s certifícate dissolving the writ under section 77.041(3).
—Even if the March 28 order could be construed as having granted a stay, it was no longer in effect as of October 9, 2012, when the court denied Marquez’s motion to vacate the final summary judgment. BlueCare did not file its sworn objection within three business days of that date. It did not file its objection until October 22, 2012 — nine business days after the order was entered, by which time the clerk had already issued a certificate dissolving the writ.

We find BlueCare’s other arguments to be without merit, and accordingly, we reverse the trial court’s order vacating the clerk’s certificate dissolving the writ of garnishment and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . As of this date, BlueCare had still not filed any objection to Marquez's February 24, 2012 claim of exemption.


author: PER CURIAM.

text:
    Efrain GALVEZ and Nancy Martin, Appellants, v. US BANK, N.A., Appellee.
    No. 3D12-3050.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Efrain Galvez and Nancy Martin, in proper persons.
    Carlton Fields, P.A., and Alina Alonso Rodriguez and Michael K. Winston, West Palm Beach, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Following review of Appellants’ initial brief, we summarily affirm the order of the trial court. See Fla. R.App. P. 9.315.


text:
    CHASE HOME LOANS, LLC, Appellant, v. Jose SIXTO, et al., Appellees.
    No. 3D12-3372.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Arnaldo Velez, Coral Gables; Cristina L. Reynolds, for appellant.
    Toyne & Mayo and Michael Schimmel, Ross B. Toyne, Miami, and Alberto J. Al-onso, for appellees.
    Before WELLS, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The judgment below is reversed and the cause remanded for further proceedings on the authority of the later decided, contrary cases of Aventura Management, LLC v. Spiaggia Ocean Condominium Ass’n, 105 So.3d 637 (Fla. 3d DCA 2013) and Barnes v. Castle Beach Club Condominium Ass’n, 106 So.3d 86 (Fla. 3d DCA 2013). See also Waterfront Inv. Real Estate, LLC v. Bentley Bay Condo. Ass’n, 114 So.3d 347 (Fla. 3d DCA 2013).

Reversed and remanded.


text:
    Jesus D. PEREZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-3403.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Jesus D. Perez, in proper person.
    Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for appellees.
    Before WELLS, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The order of the Reemployment Assistance Appeals Commission denying relief because review of the adverse order of the appeals referee was untimely filed is affirmed. See § 443.151(3)(c) Fla. Stat. (2013); Quintana v. Fla. Unemployment Appeals Comm’n, 29 So.3d 446 (Fla 3d DCA 2010).

Affirmed.


author: SUAREZ, J.

text:
    BENTRUST FINANCIAL, INC., a Florida corporation, Petitioner, v. OCEAN AUTO CENTER, INC., a Florida corporation, Respondent.
    No. 3D13-424.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Aaron Behar and Jaclyn Bentley, Weston, for petitioner.
    Colson Hicks Eidson Colson Matthews Martinez Gonzalez Kalbac & Kane and Maureen E. Lefebvre and Ervin A. Gonzalez and Christopher Drury, Miami, for respondent.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

We conclude the trial court did not depart from the essential requirements of the law and that there is no showing of irreparable harm. The petition for certio-rari is denied.


text:
    Richard GOLDMAN, et al., Appellants, v. Jonathan and Pearl LEWIN, Appellees.
    Nos. 3D11-2189, 3D12-230, 3D12-225.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Billbrough & Marks and Geoffrey Marks, Coral Gables, for appellants.
    Pollack, Pollack & Kogan and Lyudmila Kogen and Gary W. Pollack; Carlton Fields and Marsha G. Madorsky and Jack Reiter, Miami, for appellees.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

In these consolidated appeals, Appellants seek review of four orders in which the trial court: granted Appellees’ motion to dismiss, with prejudice, Appellants’ petition for intestate administration; struck Appellants’ petition for revocation of trust as a sham; entered summary judgment against Appellants on the petition for revocation of trust; and granted Appellees’ motion to preclude Appellants from receiving further notices in a companion guardianship proceeding.

We dismiss the appeal of the order granting the motion to dismiss (Case 3D11-2189), as this is a non-fínal, non-appealable order. The order merely granted Appellees’ motion to dismiss, but did not actually dismiss the petition. Therefore, this court is without jurisdiction to entertain an appeal of that order. Gries Inv. Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Johnson v. First City Bank of Gainesville, 491 So.2d 1217 (Fla. 1st DCA 1986). The fact that the order granting the motion included the phrase “with prejudice” did not render the order final or appealable. Gries, 388 So.2d at 1282; Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 467 So.2d 746, 747 n. 1 (Fla. 3d DCA 1985).

We find no merit in the remaining issues raised and affirm without further discussion.

Dismissed in part and affirmed in part.


text:
    Dedan FAGINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-751.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

We find no fundamental error and therefore affirm the judgment and sentence. However, we note that comments on the credibility of counsel, such as those at issue in this case, are recurring in closing arguments at an alarming rate. We caution counsel for both the prosecution and defense to uphold their professional and ethical obligations and to be mindful of the line clearly established by the courts of this State. -See, e.g., Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982); Del Rio v. State, 732 So.2d 1100 (Fla. 3d DCA 1999). We also entreat the trial courts to be mindful of such misconduct and to respond accordingly with appropriate curative instructions and firm admonishment of counsel.

Affirmed.


text:
    Camilo SILVA, Appellant, v. KEYS GATE COMMUNITY ASSOCIATION, INC., Appellee.
    No. 3D12-2833.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Roniel Rodriguez IV, Aventura; Alvarez, Carbonell, Feltman & DaSilva and Paul B. Feltman, for appellant.

      Seipp & Flick and Douglas H. Stein; Ramon C. Palacio, Miami Beach, for appel-lee.
    Before WELLS, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Miami-Dade Cnty. v. Coral Bay Section C Homeowners Ass’n, 979 So.2d 318 (Fla. 3d DCA 2008).


text:
    Maria FARACH, Appellant, v. WELLS FARGO BANK, etc., Appellee.
    No. 3D12-395.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Maria Farach, in proper person.
    Choice Legal Group, P.A., and Karene Lynn Tygenhof and William David Newman, Jr., FtLauderdale, for appellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   PER CURIAM.

Affirmed. See, e.g., Dage v. Deutsche Bank Nat’l Trust Co., 95 So.3d 1021 (Fla. 2d DCA 2012) (holding that a bank’s alleged lack of standing at the time it filed a foreclosure action did not render default judgment void); accord Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893 (Fla. 4th DCA 2012); see also Stratton v. 6000 Indian Creek, LLC, 95 So.3d 334, 336 (Fla. 3d DCA 2012) (recognizing that the issue of standing is an affirmative defense that can be waived).


text:
    R.L.R., a child, Petitioner, v. The STATE of Florida and the Florida Department of Children and Families, et al., Respondents.
    No. 3D13-1025.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.

      Baker & McKenzie and Angela C. Vigil and Robert H. Moore, Miami, for petitioner.
    Karla Perkins, Miami, for respondent, Florida Department of Children and Families; Hillary Kambour, for respondent, Guardian Ad Litem Program.
    Marsha L. Levick and Riya Saha Shah and Kacey Mordecai and Michael J. Dale, Fort Lauderdale-Davie, for the Florida Association of Counsel for Children Juvenile Law Center, National Association of Counsel for Children, and the Youth Center, as amici curiae.
    Robin L. Rosenberg, Coral Springs; Co-lodny, Fass, Talenfeld, Karlinsky, Abate & Webb and Maria Elena Abate, Fort Laud-erdale, for Florida Children’s First, The Children’s Advocacy Program of Broward County, The Community Law Program, Lawyers for Children American, and the University of Miami School of Law Children and Youth Law Clinic, as amici curiae.
    Before SHEPHERD, SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

The Petitioner, R.L.R., seeks a writ of mandamus to compel the lower court to reverse its order directing the minor Petitioner’s Attorneys Ad Litem to disclose the Petitioner’s whereabouts, where the Petitioner had given the information to his attorneys and requested them not to disclose the information. The trial court’s order requiring the attorneys to disclose this information recognizes the attorney-client privilege but finds the disclosure is required “for the proper administration of justice.” We treat this as a petition for writ of certiorari, grant the writ, and quash the order on appeal.

The issue presented in the petition is whether a trial court may order attorneys to disclose a minor client’s location when the attorneys obtained that information from the client during the course of representation and were instructed that the information was to be kept confidential and was not to be disclosed. We find no exception to the attorney-client privilege that would support the trial court’s order to disclose.

In 2008, R.L.R. was adjudicated dependent and placed into the care of the Department of Children and Families (“DCF”). At that time, attorneys Angela Vigil and Robert Moore were appointed by the trial court as pro bono Attorneys Ad Litem (“AAL”) to represent R.L.R. The record indicates that the Guardian Ad Li-tem (“GAL”) program was not appointed to R.L.R.’s case until mid-2012. On April 11, 2013, the court (Lederman, J.) learned that R.L.R. had run away from yet another attempt to place him in DCF care. At that point, R.L.R. had a lengthy history of absconding from numerous DCF placements. DCF expressed a concern for the minor’s well-being and requested disclosure of the minor’s location. The trial court ordered the AAL to produce information on R.L.R.’s whereabouts. The AAL refused to disclose this information, asserting that, although they knew where R.L.R. was, he had expressly requested them not to disclose his location or cell phone number. The AAL asserted that R.L.R. disclosed his location to them in confidence, in connection with their ongoing representation of him in his dependency proceedings, and his disclosures to them were clearly encompassed by the attorney-client privilege. The lower court entered the order in question requiring the AAL to disclose the information, but stayed rendition of the order so that the AAL could appeal the issue. The trial court’s order specifically finds that the exceptions to the attorney-client privilege contained in Rule 4-1.6(b)(2) of the Rules Regulating the Florida Bar do not apply in this case. It found disclosure was not necessary to prevent a crime or death or bodily harm to another, which are the only exceptions for disclosure under the rule. The court recognized that there appeared to be no precedent in Florida’s child welfare law on this issue. The trial court nevertheless ordered the disclosure, finding it necessary because the minor is a danger to himself by virtue of being on the street and not in the protection of DCF. As such, the court reasoned it could compel disclosure in the interest of the proper administration of justice.

The Attorneys Ad Litem are independent of the GAL program and were appointed to provide legal representation to R.L.R. pursuant to Florida Rule of Juvenile Procedure 8.217. Rule 8.217(c) specifically states that “the attorney ad litem shall have the responsibilities provided by law.” The comments to Rule 4-1.2 of The Florida Rules of Professional Conduct state that, as part of those responsibilities provided by law, “regardless of the circumstances, a lawyer providing limited representation forms an attorney-client relationship with the litigant, and owes the client all attendant ethical obligations and duties imposed by the Rules Regulating The Florida Bar, including, but not limited to, duties of competence, communication, confidentiality and avoidance of conflicts of interest.” Rule 4-1.2, Rules Regulating the Florida Bar (2012). Therefore, the attorneys appointed to represent R.L.R., even if such representation is limited, have an attorney-client relationship with R.L.R. and are bound by the rules of confidentiality of information which regulate all attorneys in the state of Florida.

Section 90.502, Florida Statutes (2012), states, “[A] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” There is no dispute that R.L.R. is the client and that, as part of the legal services being provided to him, R.L.R. divulged his location to his AALs and specifically instructed them that such information was not to be disclosed. R.L.R. did not disclose his location for any purpose other than giving his attorneys the ability to locate him in furtherance of their representation, and not in the usual course of retaining the attorneys or for mere informational purposes.

Rule 4-1.6 of the Florida Bar regulates the conduct of attorneys and client information. The rule states that a lawyer shall not reveal information concerning the representation of a client except as allowed by the rule or unless the client gives informed consent. R.L.R. has not given consent to his attorneys to divulge his location. The question, then, is whether one of the exceptions to the privilege applies. The Rule requires an attorney to reveal information where the attorney believes it is necessary to either prevent a client from committing a crime, or to prevent death or substantial bodily harm to another. The trial court, in its order, specifically stated that the disclosure of R.L.R.’s location was not necessary to prevent a crime, or death or bodily harm to another. Therefore, neither of those exceptions applies. The trial judge’s expressed reason to require the disclosure, that R.L.R. himself may be in danger, is not an exception recognized by the Rule.

We are mindful of the lower court’s, DCF’s and the GAL’s commitment to the safety and well-being of children within DCF’s care; there is no exception, however, statutory or otherwise, to the attorney-client privilege under the facts presented in this case. To find that there is a “dependency exception” or, as specifically put forth in this case, that there is an exception where the client may be a danger to himself, would require this court to carve out an altogether new exception to the attorney-client privilege. That, however, is the rule-making function of the legislature or, possibly, the Florida Bar — not of this Court.

We treat the petition for mandamus as a petition for writ of certiorari, grant the petition for certiorari and quash the order below, finding the order compelling the court-appointed Attorneys Ad Litem to breach their attorney-client privilege and disclose the whereabouts of their client, R.L.R., is a departure from the essential requirements of law for which there is no remedy on appeal.

PETITION GRANTED, ORDER QUASHED.

      . No argument was made that the privilege cannot be asserted by a minor or should be applied differently because the client is a minor.

      . R.L.R. is now 17 years old. In prior DCF proceedings before a predecessor trial court, that judge specifically found that R.L.R. was very intelligent and articulate; R.L.R. was able to coherently and eloquently articulate his concerns and desires and understood the nature of the proceedings, the role of DCF, the court, and the objectives of his dependency case.

      .The Supreme Court has noted that "[t]he privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The attorney-client privilege is the oldest confidential communication privilege known in the common law and is also, "perhaps, the most sacred of all legally recognized privileges, and its preservation is essential to the just and orderly operation of our legal system.” United States v. Bauer, 132 F.3d 504, 510 (9th Cir.1997). The privilege is codified by statute and contained in the Evidence Code, section 90.502, Florida Statutes (2012). See also, Charles W. Ehrhardt, Florida Evidence § 502.1 (2007). The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. It is an interest traditionally deemed worthy of maximum legal protection. See State Farm Fla. Ins. Co. v. Puig, 62 So.3d 23, 26-27 (Fla. 3d DCA 2011) (quoting W. Bend Mut. Ins. Co. v. Higgins, 9 So.3d 655, 657 (Fla. 5th DCA 2009)).

      . Section 90.502, Florida Statutes (2012), lists extraordinary circumstances where the attorney-client privilege does not apply. None of those circumstances is claimed as to R.L.R., and none is applicable here.

      . Those cases cited by the lower court for the proposition that the attorney-client privilege does not apply to an address are inapplicable. Those cases include, for example, Suarez v. Hillcrest Dev. of So. Fla., 742 So.2d 423 (Fla. 3d DCA 1999); Greenberg Traurig v. Bolton, 706 So.2d 97 (Fla. 3d DCA 1998); Mercado v. Parent, 421 So.2d 740 (Fla. 4th DCA 1982); in those and like cases, the courts held that in post-trial debtor-creditor matters the proper administration of justice required the disclosure of the debtor's address. In such a situation, the debtor cannot expect his address to remain confidential. R.L.R.’s is not a debtor-creditor case and there is more at stake here than mere financial interests. R.L.R. gave his location to his attorneys with the intent and instruction that his location remain confidential and not be disclosed.

      . To be sure, the original trial court acknowledged that R.L.R. would likely run away again if his current whereabouts were disclosed against his will, leaving no one with information about his location and well-being. R.L.R. is more likely to seek legal advice and be more willing to work towards a successful outcome if he can trust his AALs not to breach his confidences. In this circumstance it is altogether clear that protecting the attorney-client privilege protects the administration of justice.

      . We also commend the Attorneys Ad Litem for their ongoing dedication and commitment to R.L.R.'s safety and welfare.

      . Courts and legislatures in other jurisdictions have recognized and enforced the attorney-client privilege in dependency proceedings. See, e.g., In re Dependency of M.S.R., 174 Wash.2d 1, 271 P.3d 234, 244 (Wa.2012) ("[U]nlike a GAL, an attorney can maintain confidential communications with the child so the child is free to disclose the child’s deepest secrets and concerns and ensure that children know with whom and in what manner they can communicate.”); Ex parte R.D.N., 918 So.2d 100, 103-04 (Ala.2006) (providing that a lawyer in a dependency proceeding has the same professional and ethical obligations to keep client confidences); Mich. Comp. Laws § 712A.13a(1)(c) (2012) ("An attorney defined under this subdivision owes the same duties of undivided loyalty, confidentiality, and zealous representation of the child’s expressed wishes as the attorney would to an adult client.”); La. Sup.Ct. R. XXXIII, Part III, Subpart II, Standard 2 (2012) ("An attorney serving as independent counsel for a child owes the same duties of loyalty, confidentiality, advocacy and competent representation to the child as are owed to any client.”); Miss. Code Ann. § 43-21-201(4) ("The child’s attorney shall owe the same duties of undivided loyalty, confidentiality and competent representation to the child or minor as is due an adult client pursuant to the Mississippi Rules of Professional Conduct.”).

      .This Court thanks counsel for the parties, as well as amici, for their excellent and well-articulated briefs and arguments.


author: WALLACE, Judge.

text:
    Oscar BALCAZAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2218.
    District Court of Appeal of Florida, Second District.
    June 21, 2013.
    John Pierre Espinoza, Lakeland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Oscar Balcazar appeals the summary denial of his motion for postconviction relief, in which he raised two claims in accordance with Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of claim two without further discussion. However, because claim one was facially insufficient, the postconviction court should have struck the claim with leave to amend instead of summarily denying it.

After entering an agreed no-contest plea, Balcazar was convicted of driving under the influence, fleeing to elude, and resisting arrest with violence. The trial court sentenced him to eighteen months in prison followed by probation. Balcazar alleged in his rule 3.850 motion that trial counsel failed to inform him that his convictions would subject him to deportation. The claim is facially insufficient because Balcazar failed to allege that he would not have entered a plea if he had been properly advised by counsel of the immigration consequences. See State v. Burton, 63 So.Sd 854, 855 (Fla. 1st DCA 2011) (citing State v. Green, 944 So.2d 208, 218 (Fla.2006)); see also Cano v. State, 112 So.3d 646 (Fla. 4th DCA 2013) (listing the full set of pleading requirements for a claim of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)). Thus the postconviction court should have struck the motion with leave to amend in accordance with Spera v. State, 971 So.2d 754 (Fla.2007), rather than entering a summary denial.

Accordingly, we reverse the denial of claim one and remand for the court to strike the claim with leave to amend within a period of time not to exceed thirty days. If Balcazar files an amended motion on this claim, “the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.” Philip v. State, 14 So.3d 1243, 1244 (Fla. 2d DCA 2009). However, in light of the substantive basis of the postconviction court’s denial — that Balcazar could not demonstrate prejudice because the trial court had at the plea colloquy stated, ‘You understand if you’re not a United States [sic] your plea could result in. your being deported” — we note for the postconviction court’s reference on remand the Florida Supreme Court’s holding in Hernandez v. State, — So.3d -, 2012 WL 5869660, 37 Fla. L. Weekly S730 (Fla.2012). There the court ruled that a trial court’s “equivocal” warning that the defendant’s plea may subject him or her to deportation does not preclude a finding of ineffective assistance of counsel. Id. at-, S730-31 (referencing Padilla). If the postconviction court is unable to attach documentation to refute an amended claim, it must hold an evidentiary hearing. See Burton, 63 So.3d at 855.

Affirmed in part, reversed in part, and remanded.

LaROSE and MORRIS, JJ., Concur.

      . The postconviction court also indicated that claim one was successive to a motion filed earlier. However, although Balcazar did raise in general terms a similar claim in his previous postconviction motion, the court did not squarely rule on that claim in its earlier order. We conclude that the claim as raised in the motion underlying this appeal was not successive. See Fla. R. Crim. P. 3.850(f).