source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    Amie ESSEX, Appellant, v. Christopher B. DAVIS, a/k/a Nasim Al-Ameen Davis, Appellee.
    No. 4D11-3028.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Anne Lynch of Anne Lynch, P.A., Palm Beach Gardens, for appellant.
    Robert K. Lantz, North Palm Beach, for appellee.
   CONNER, J.

Amie Essex (“the mother”) seeks review of an order directing her to return the parties’ minor daughter to Palm Beach County pending a relocation hearing in conformity with section 61.13001, Florida Statutes (2010). The mother initiated appellate proceedings by filing a motion seeking a writ of prohibition. We treat the mother’s motion for writ of prohibition as an appeal of a non-final order.

As a threshold issue, Christopher Davis (“the father”) argues that this court lacks jurisdiction to review the Order on Father’s Motion for Return of Child to Jurisdiction because the order is not an appeal-able, non-final order. However, in Pate v. Pate, 777 So.2d 468 (Fla. 6th DCA 2001), the court treated a similar order as appeal-able pursuant to rule 9.130(a)(3)(C). Although the order at issue does not specify that custody must change to the father, the effect of the order is to change the daughter’s residence. Nevertheless, even if it were not technically within that rule’s ambit, we would treat this as a petition for writ of certiorari. We have jurisdiction.

Procedural History and Facts

The trial court proceedings were commenced by the father filing a petition to determine paternity and other relief (primarily custody) on October 12, 2010. On May 11, 2011, the parties entered into a “Partial Temporary Time Sharing Schedule” for the summer of 2011 at mediation. That agreement documented the agreed summer timesharing plan from May 21 through July 23, 2011. It provided the daughter would be picked up by the father in West Palm Beach, within an hour of her flight arrival there and returned to the mother in Louisiana “if mother has not relocated subject to further court order.” We also note that when the mother signed the agreement she wrote her Louisiana address below her signature.

The mediation agreement was approved by the court, and the parties were ordered to abide with its provisions on May 19, 2011. The father refused to return the daughter as agreed. Instead, he filed his Motion for Return of Minor Child to Jurisdiction on July 22, 2011, the day before the daughter was to be returned to the mother. The father’s refusal to return the daughter prompted the mother to file a Verified Emergency Motion for Child Pick-up Order on July 25, 2011. Her motion alleged that the father refused to return the daughter and the child was to begin a new school year in Louisiana. The motion suggested that the maternal grandmother was available to take custody of the daughter in Palm Beach County for the purpose of transporting the child to the mother’s home in Louisiana in accordance with the agreed order. The trial court granted the mother’s motion and entered a pick-up order the same day. The order notes that the mother has custody of the daughter and the court has jurisdiction under the UCCJEA. The order authorized law enforcement to pick up the daughter and “[p]lace the minor child in the physical custody of [L.B.], maternal grandmother, currently staying at [an address], West Palm Beach, FL....” The order did not prohibit the removal of the daughter from Palm Beach County or Florida.

Apparently, once the daughter was placed into the maternal grandmother’s physical custody, the mother had the daughter immediately returned to Louisiana. The father filed a motion for an expedited hearing on his motion seeking return of the daughter to Palm Beach County. On August 10, 2011, the trial court granted the father’s motion, ordering the daughter to be returned to Palm Beach County pending a relocation hearing. The trial court found that the mother had not filed a Notice to Relocate at the time of the temporary agreement, and the pick-up order did not authorize relocation of the child to Louisiana. The trial court also found that the mother had removed the child from Palm Beach County without prior court authorization.

The mother contends the trial court erred because this case is not subject to the relocation statute since she moved to Louisiana prior to the father filing paternity proceedings. She further contends the trial court was required to conduct an evidentiary hearing to determine if the relocation statute applied.

Legal Analysis

The standard of review for orders entered regarding section 61.13001, the relocation statute pertaining to time sharing of children, is abuse of discretion. Pate v. Pate, 777 So.2d 468, 469 (Fla. 5th DCA 2001) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). The findings of the trial court in support of its rulings will be upheld on appeal if there is competent substantial evidence to support the findings. Open Permit Servs., of Fla., Inc. v. Curtiss, 15 So.3d 822, 825 (Fla. 3d DCA 2009).

Section 61.13001 was amended effective October 1, 2009. Of significance to this appeal was the change in definition of “relocation.” How “relocation” is defined affects the applicability of the statute. Prior to October 1, 2009, “relocation” was defined in terms of a change of the primary residence of the child. Beginning October 1, 2009, “relocation” is defined as:

a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

§ 61.13001(1)(e), Fla. Stat. (emphasis added). The 2009 amendment to the statute also no longer provided for a “Notice of Intent to Relocate,” and instead, required a “petition to relocate.” § 61.13001(3), Fla. Stat. We also deem subsection 11(a) 2. of the statute to be significant for our analysis:

(11) Applicability.—
(a) This section applies:
2.' To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or access to the child entered on or after October 1, 2009.

§ 61.13001(11)(a)(2), Fla. Stat. (emphasis added).

Based on the language in the mediation agreement, “if mother has not relocated subject to further court order,” the trial court apparently drew an inference that the daughter was living in Palm Beach County at the time the agreement was signed and the parties agreed that the child would be relocated from Palm Beach County “only pursuant to a court order.” This inference is not supported by the agreement itself, which states that “the father is to pick up the daughter (within an hour of their flight arrival per itinerary).” Moreover, the father was to return the daughter to the mother in Louisiana. It can also be inferred from the language of the mediation agreement that the parties intended the child could not be relocated from the address where she was living in Louisiana without court approval. The order under review states, “[t]he Mother has since removed the minor child from Palm Beach County, Florida without prior court authority.” (emphasis added). It is clear the trial judge premised her ruling upon her conclusion that the mother had violated section 61.13001, Florida Statutes, by relocating the child to Louisiana. The question we must address on appeal is whether the evidence before the trial court supported the inference that the mother relocated her residence (and the child’s) to Louisiana after signing the partial temporary timesharing agreement.

In A.F. v. R.P.B., 100 So.3d 71 (Fla. 2d DCA 2011), the mother and father moved with their child from Florida to Pennsylvania. Six months later, the mother moved back to Florida with the child. Both parties petitioned the trial court for majority time-sharing. Id. at 71. The trial court awarded the father majority time-sharing in Pennsylvania after relying on the factors set forth in section 61.13(3), Florida Statutes. Id. The mother argued that the trial court should have relied on the relocation factors set forth in section 61.13001(7); the father asserted that section 61.13001 did not apply, as he already lived in Pennsylvania. The Second District noted that prior to October 1, 2009, relocation under section 61.13001 was defined as a change in the child’s principal residence; after October 1, 2009, relocation was defined as a change in the parent’s principal residence. Id. at 72. As the mother’s petition for majority time-sharing was filed after October 1, 2009, the relocation statute did not apply, because the father was not seeking a change of his primary residence. Id. at 72.

It appears from the wording of the order under review that the trial court determined that section 61.13001 had been violated by the mother relocating the child’s residence to Louisiana. By references to “Notice to Relocate,” it also appears the trial court was contemplating the earlier version of the statute. After October 1, 2009, the critical inquiry, as to the applicability of the relocation statute, is whether the mother relocated her principal residence. Based on section 61.13001(l)(e) and A.F., the mother is correct in arguing that if she had already moved to Louisiana prior to the father’s filing of the petition to determine paternity or any order establishing or modifying time-sharing, then she is not subject to the relocation statute.

The order under review states, “Based on a review of the court file, the Court finds ....” (emphasis added). It does not appear the court conducted an evidentiary hearing before making its ruling. A review of the documents mentioned in the order, which appear to be the sources of information from which the trial court made its findings, leads us to conclude that there was no competent substantial evidence before the trial court to find that the mother was living in Florida at the time the order approving a time sharing arrangement (the mediated agreement) was entered by the court. The mother clearly stated her address was in Louisiana when she signed the mediated agreement. Moreover, the finding in the order under review that “[t]he Mother has since removed the minor child from Palm Beach County” (emphasis added), appears to use the mediated summer time-sharing agreement as the temporal point of reference. We conclude the trial court erred in its determination. Without additional information gained from an evidentiary hearing, the trial court could not properly determine that the mother had violated the relocation statute.

For the reasons stated, we reverse the order directing the return of the child and remand the case for the trial court to conduct an evidentiary hearing as to whether the relocation statute applies and whether the parties agreed on a temporary relocation of the child to Louisiana. See § 61.13001(2), Fla. Stat.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.

      . “UCCJEA” is the acronym for the Uniform Child Custody Jurisdiction Enforcement Act, codified at section 61.501 et. seq., Florida Statutes.

      . The parties have not made a copy of the motion a part of the appellate record.

      . A copy of the father's initial petition was not made a part of the appellate record, so we are unable to review whether it was verified and whether it made statements as to the mother’s residence. The order entered on May 19, 2011, approving the time sharing arrangement for the summer of 2011 is the "the last order establishing or modifying time-sharing” in this proceeding.

      . We recognize that sections 44.401-44.406, Florida Statutes, provide that mediation communications are privileged and confidential. We are not suggesting that mediation communications are to be used in determining the intent of the parties if the mediation agreement is vague or ambiguous.


author: PER CURIAM.

text:
    Shernerd RICHARDSON, Petitioner, v. William CERVONE, State Attorney, by and on Behalf of D.O.C.: Michael D. Crews, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-5516.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    See also 70 So.3d 609.

      Shernerd Richardson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges petitioner’s judgments and sentences in Levy County Circuit Court case number 38-2005-CF-00252. The petition is dismissed on the authority of Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

We also find that the filing of the petition violates a prior opinion of this court. In Richardson v. State, 70 So.3d 609 (Fla. 1st DCA 2011), this court barred petitioner from any future pro se filings concerning Levy County Circuit Court case number 38-505-CF-00252 and required that any future pleading challenging the judgment and sentence must be signed by a member in good standing with The Florida Bar. Petitioner was warned that any filings which violated the terms of the opinion could result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2012). Although petitioner has attempted to circumvent the sanction opinion by having an inmate “friend” sign the petition, the petition is filed on behalf of petitioner and is not signed by a member in good standing of The Florida Bar as required by the sanction opinion. The petition fails to satisfy the requirements of the “next friend” standing outlined in Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). In Whitmore, the Court addressed the standing of a death row inmate to challenge Arkansas’ authority to carry out a death sentence imposed on another capital defendant. The Court held that the petitioner did not have standing as the “next friend” of the other capital defendant because he had failed to satisfy the prerequisite that the real party in interest was unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability. Id. at 164, 110 S.Ct. 1717. The Court also outlined two other requirements to assert “next friend” status: (1) “the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litígate,” and (2) the “ ‘next friend’ must have some significant relationship with the real party in interest.” Id. at 163-64, 110 S.Ct. 1717. The burden is on the “next friend” to clearly establish the propriety of his status and thereby justify the jurisdiction of the court. See Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F.2d 1050, 1053 (8th Cir. 1987); Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 952 (M.D.Tenn.1984). No such showing has been made by this petitioner’s “next friend.”

Because this petition violated the terms of the sanction opinion, petitioner was directed to show cause why further sanctions should not be imposed against him. See Fla. R.App. P. 9.410; State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner failed to file a response to the show cause order on sanctions. Instead, a notice of voluntary dismissal was filed on petitioner’s behalf. The filing of a voluntary dismissal does not divest an appellate court of jurisdiction to enter an order authorizing sanctions in accordance with section 944.279. Coney v. State, 995 So.2d 1038, 1044 (Fla. 4th DCA 2008); see also Van Meter v. State, 726 So.2d 388 (Fla. 1st DCA 1999) (holding that the filing of a notice of voluntary dismissal does not divest a trial court of the requisite jurisdiction to enter an order authorizing sanctions in accordance with section 944.279).

As such, because petitioner’s continued and repeated attacks on his convictions and sentences have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning the judgments and sentences in Levy County Circuit Court case number 38-2005-CF-00252. The Clerk of the Court is directed not to accept any future filings concerning that case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a prohibition against any further filings in this court and another referral to the appropriate institution for disciplinary procedures. A certified copy of this opinion shall be provided to the Florida Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in section 944.279.

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


author: CASANUEVA, Judge.

text:
    Andy CLAUDIO a/k/a Andy Ortiz, Appellant, v. Misael REGALADO, Sr., Personal Representative of the Estate of Ismelys Regalado, deceased; Ismerai Regalado; Misael Regalado, Jr., a minor, by and through his natural father and legal guardian, Misael Regaldo, Sr.; Lourdes Regalado-Falcon; Misael Regalado, Sr., individually and jointly, Appellees.
    No. 2D11-1073.
    District Court of Appeal of Florida, Second District.
    March 1, 2013.
    Rehearing Denied May 17, 2013.

      See also 113 So.3d 57, 2013 WL 765008.
    John P. Joy, Kelly M. Corcoran, and Sara M. Sandler of Walton Lantaff Schroeder & Carson LLP, Ft. Lauderdale, for Appellant.
    Henry G. Gyden of Swope, Rodante P.A., Tampa (withdrew after briefing); Dale M. Swope, Lisha Bowen, and Stephanie Miles of Swope, Rodante P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

This appeal arises from a final judgment resulting from a jury’s multi-million dollar verdict for damages from a fatal auto collision occurring on October 9, 2006. Appellant Andy Claudio a/k/a Andy Ortiz (hereinafter Mr. Claudio) owned an auto that was jointly titled with his father, Dolores Claudio Ortiz. While driving this auto, Mr. Claudio was involved in a fatal collision with appellee Lourdes Regalado Falcon (“Mrs. Regalado”) who was transporting her three minor children: Ismelys Regalado, who was killed in the crash; ap-pellee Ismerai Regalado; and appellee Mi-sael Regalado Jr. Mrs. Regalado is married to appellee Misael Regalado Sr. (“Mr. Regalado”), the father of her children. Mr. and Mrs. Regalado were the joint lessees of the auto Mrs. Regalado was driving when she and Mr. Claudio collided. The Regalados instituted the lawsuit underlying this appeal against Mr. Claudio for negligence and against his father as vicariously liable by reason of their joint ownership of Mr. Claudio’s auto. The jury found that Mr. Claudio and Mrs. Re-galado were each 50% negligent. It is only the apportionment of the jury’s damage award in the final judgment that Mr. Claudio challenges in this appeal.

I.The Final Judgment For Damages

The final judgment required Mr. Claudio and Mr. Ortiz to pay the following amounts: $793.76 to Mr. Regalado as the personal representative of the estate of Ismelys Regalado for uncovered medical expenses; $1,000,000 to Mr. Regalado Sr. for past and future pain and suffering; $500,000 to Mrs. Regalado for past and future pain and suffering; $110,000 to Is-merai Regalado for past and future pain and suffering and her future medical expenses; and $112,500 to Misael Regalado, Jr. for past and future pain and suffering and his future medical expenses. The awards to Mrs. Regalado and the two surviving children reflect the 50% reduction the trial court made from the jury’s verdict due to Mrs. Regalado’s comparative negligence.

II.Jurisdiction

As a threshold issue, we deal with the Regalados’ pending motion to dismiss in which they argue that this court is without jurisdiction to hear Mr. Claudio’s appeal because it was untimely filed. We disagree and deny their motion to dismiss without further discussion.

III.Issues on Appeal

Mr. Claudio presents two issues in this appeal: first, that the initial judge erred in denying his motion for leave to file a counterclaim for contribution against Mrs. Regalado; and second, that he should not be required to pay damages to Mr. Regala-do that exceed his percentage of fault. We reverse on both issues.

IV. Denial of Leave to File a Counterclaim for Contribution Issue

A. Pretrial Proceedings

Subsequent to filing his initial answer to the Regalados’ complaint, Mr. Claudio timely sought leave of court to amend his answer to include a claim for contribution against Mrs. Regalado pursuant to section 768.31, Florida Statutes (2006), the Uniform Contribution Among Tortfeasors Act. The initial judge denied him this leave, considering Mrs. Regalado more properly a Fabre defendant, but allowed the issue of contribution to remain pending for later determination. The initial judge did allow Mr. Claudio leave to file an affirmative defense and a Fabre defense. After trial and the fifty/fifty verdict as to liability between himself and Mrs. Regalado, Mr. Claudio again raised the contribution issue before the initial judge and the two successor judges. Despite these repeated requests via properly filed motions, the final judgment was rendered without his contribution claim being addressed.

B. A Counter-Defendant versus a Fabre Defendant

There is no dispute about the timeliness of Mr. Claudio’s attempt to file an amended answer to the Regalados’ complaint. He moved for leave to amend his answer to the complaint to add a counterclaim against Mrs. Regalado for contribution pursuant to section 768.31. As noted above, the initial judge denied him this leave, erroneously stating that Mrs. Rega-lado was a Fabre defendant. But what Mr. Claudio was attempting to do was not to add her as a Fabre defendant or to assert a Fabre defense. Cf. Kay’s Custom Drapes, Inc. v. Garrote, 920 So.2d 1168, 1171 n. 2 (Fla. 3d DCA 2006) (holding that trial court should have allowed a defendant leave to amend its answer to add a Fabre defendant who was the co-defendant who had just been dismissed from the suit, saying “[sjection 768.81(3)(d) of the Florida Statutes requires a defendant seeking to impute fault to a negligent non-party to plead such a defense.” (emphasis added)).

In Mr. Claudio’s case, Mrs. Regalado was not a nonparty; she was a central, if not the most important, party/plaintiff. Cf. Nash v. Wells Fargo Guard Servs. Inc., 678 So.2d 1262, 1264 (Fla.1996) (holding “that in order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty ” (emphasis added)). Precisely because Mrs. Regalado was a party, the initial judge erred in not allowing amendment of Mr. Claudio’s answer to add a counterclaim against her. This error could have been resolved in later proceedings in the trial court but, unfortunately, was not.

V. Mr. Claudio’s Percentage of Fault vis-á-vis Mr. Regalado’s Award

Mr. Claudio approaches this issue in two ways: through a claim for contribution and by statute. Under either of these methods, Mr. Claudio’s monetary liability to Mr. Regalado will be halved, Mr. Regala-do’s award will not be affected, but Mrs. Regalado’s award will be reduced to zero.

A. The Uniform Contribution Among Tortfeasors Act Section 768.31, Florida Statutes

The relevant portions of the statute are the following:

(2) RIGHT TO CONTRIBUTION.—
(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(b) The right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, and the tortfea-sor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share. No tortfeasor is compelled to make contribution beyond her or his own pro rata share of the entire liability.
(8) PRO RATA SHARES. — In determining the pro rata shares of tortfeasors in the entire liability:
(a) Their relative degrees of fault shall be the basis for allocation of liability.
(b) If equity requires, the collective liability of some as a group shall constitute a single share.
(c) Principles of equity applicable to contribution generally shall apply.
(4) ENFORCEMENT.—
(a) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.
(b) When a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants, by motion upon notice to all parties to the action.
(c) If there is a judgment for the injury or wrongful death against the tortfea-sor seeking contribution, any separate action by her or him to enforce contribution must be commenced within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.

B. Discussion

Based on section 768.31, Mr. Claudio argues that because Mrs. Regala-do was a joint tortfeasor, she was also liable for Mr. Regalado’s damages, and she should be required to contribute her share. Her share would be $500,000 of Mr. Rega-lado’s one million dollar award because of her 50% comparative negligence instead of Mr. Claudio and his father being required to pay that entire monetary award. Subsection 4(b) of the statute allows the contribution to be enforced either in the same action or by a separate action. Mr. Claudio wanted to raise the issue of contribution in the instant action, as the statute allowed him to do, but he was wrongly denied this avenue. A separate contribution action vests the court with personal jurisdiction over the contribution defendant just as a counterclaim will if made in the same suit because contribution is limited to a party who is alleged or has been found to be jointly liable in tort for the same injury or wrongful death. See § 768.31(2)(a). Although a jury might “find” a Fabre defendant jointly negligent, because the Fabre defendant was not a party to that suit, and thus not under the jurisdiction of the court, no judgment can be entered against him or her because of due process concerns.

The case law supports Mr. Claudio’s right to submit a contribution claim in these circumstances. See Chinos Villas, Inc. v. Bermudez, 448 So.2d 1179 (Fla. 3d DCA 1984) (reversing an order dismissing a defendant’s counterclaim against the plaintiffs/parents for the wrongful death of their child, holding that the defendant could, by counterclaim, seek contribution from the parents for their alleged negligence as contributing cause of their child’s death); Ryder Truck Lines, Inc. v. Pough, 392 So.2d 590 (Fla. 3d DCA 1981) (reversing an order dismissing a defendant’s counterclaim for contribution in an auto negligence suit filed by the injured child’s parents and reinstating the counterclaim against the child’s parents for contribution); Orlando Sports Stadium, Inc. v. Gerzel, 397 So.2d 370 (Fla. 5th DCA 1981) (in a suit for a child’s injuries at a racetrack, reversing the dismissal of the defendant’s counterclaim for contribution from the allegedly also negligent parents).

Although the initial judge erred in denying Mr. Claudio leave to amend his answer to add a claim for contribution, he mitigated this error by allowing Mr. Claudio to raise the issue of contribution post-trial. When the contribution issue was ripe for determination posttrial — because the jury had determined that Mrs. Rega-lado was a joint tortfeasor — the initial judge held a hearing on the contribution issue but reserved ruling on it. But before the judge could right his earlier error and decide Mrs. Regalado’s contribution responsibility, a second judge entered the proceedings but failed to resolve the pending issue. The second judge granted the Regalados’ motion for entry of a final judgment and rendered the final judgment without ruling for or against the setoffs for contribution. Then a third judge, who heard Mr. Claudio’s motion to reconsider entry of final judgment or to alter the final judgment, refused to change the final judgment entered by the second judge because he was told that the contribution issue had been mentioned to his predecessor. We understand why the third judge had refused to disturb the second judge’s ruling; however, the third judge heard only the fact that a contribution issue was mentioned at the hearing before the second judge, not that it had yet to be resolved. It was error to enter final judgment in favor of Mr. Regalado, individually, without accounting for Mrs. Regalado’s contribution to his damages as a joint tortfeasor with Mr. Claudio.

We recognize that a contribution issue can be determined in a separate action. See § 768.31(4)(a), (c). The Regala-dos submit that under the posture of this case, Mr. Claudio’s claim for contribution must be determined in a separate action. We reject the Regalados’ argument based on a plain reading of the permissive language of the statute in subsection (4)(a): “[wjhether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.” (Emphasis added.) But Mr. Claudio, with good reason and as allowed by statute, wanted it determined in this suit. This is the preferred method:

The most orderly and logical manner in which necessary “common liability” can be established should be in a single action, which is amply set forth in the opinion in New Hampshire Insurance Co. v. Petrik, 343 So.2d 48 (Fla. 1st DCA 1977):
The logic is recognized that to allow such a procedure efficiently conserves the court’s time, effort, expense, and provides consistency of result wherein the action which establishes the plaintiffs right to recovery also establishes against whom that recovery should be made.
343 So.2d at 50.

Chinos Villas, 448 So.2d at 1180. We agree with Mr. Claudio that the better course of action is to have the issue decided as part of this same suit. Deciding the issue of contribution in this action was not only a savings of judicial resources, it reduced the risk that after paying Mrs. Re-galado her full, precontribution damages, she might no longer be able to contribute; she might soon be judgment proof either because her damage award was spent or because she might have removed herself from the jurisdiction. The Regalados’ concern about their ability to present affirmative defenses to the counterclaim or determine indemnification issues will be alleviated when the trial judge on remand addresses Mr. Claudio’s counterclaim in the ordinary processes of the court. We anticipate that one or more hearings will be necessary to effect a mini-trial of the counterclaim.

C. The Statutory Requirement of Section 768.81 That Reduces Mr. Claudio’s Liability

We note before continuing our discussion, and as Mr. Claudio has hastened to point out to us, that this case presents no conflict between section 768.20 and section 768.81. Section 768.20, part of Florida’s Wrongful Death Act (sections 768.16-.26), provides that “[a] defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.” See Frazier v. Metro. Dade Cnty., 701 So.2d 418, 420 (Fla. 3d DCA 1997) (construing the statutory language to mean that “under the wrongful death statute, a non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence”). We adhere to the proviso of section 768.20 because our disposition does not in any manner reduce the award to Mr. Regalado, the other and non-negligent statutory survivor of the decedent, Ismelys. Our disposition only reconfigures the apportionment of Mr. Regalado’s award to the negligent parties.

Section 768.81(3) is the guide to setting the parameters of Mr. Claudio’s responsibility for Mr. Regalado’s award: “In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” In support of his argument, Mr. Claudio relies on three cases: Frazier, 701 So.2d 418; Hudson v. Moss, 653 So.2d 1071 (Fla. 3d DCA 1995); and Gurney v. Cain, 588 So.2d 244 (Fla. 4th DCA 1991). These three cases support his argument and guide our analysis.

In Frazier, a child drowned in a county-owned pool and her father filed a wrongful death suit against Metro-Dade County. Metro-Dade counterclaimed against the child’s mother. The jury found that Metro-Dade (through its lifeguards at the pool) was 14.7% negligent in the child’s death, the child’s mother was 45.8% negligent, the child’s aunt was 39.5% negligent, and the father was not negligent. Although there was a sovereign immunity cap at play in the case, not present in the case we review, the manner in which the district court corrected the trial court’s apportionment of responsibility among the various tortfeasors is persuasive.

The Third District first addressed the father’s appeal in which he contended that Metro-Dade should be responsible for his full award without regard to the fact that other persons were also found negligent. The district court concluded that Metro-Dade could not be responsible for that part of the father’s award that was attributable to the aunt. 701 So.2d at 420. But the district court went on to explain that because section 768.20 had priority over section 768.81 where the two conflict, as it did in relation to the father’s award, the father’s award could not be reduced because of the mother’s negligence and “[ljikewise, the provisions of section 768.81 that eliminate joint and several liability do not apply.” Id. at 421 (citing Gurney, 588 So.2d at 246). Therefore, the district court concluded that Metro-Dade and the mother were jointly and severally liable for that part of the father’s award that was attributable to the mother’s negligence. The Third District enforced that finding by setting off as a contribution from the mother her percentage of negligence vis-a-vis the father’s award from her award. Id.

Thus, not only was Mrs. Regalado’s award properly reduced by her own comparative negligence, but, like the negligent parent in Frazier, it must also be reduced by necessary contribution to her joint tort-feasor to account for her share of the non-negligent parent’s award. This must be done to fully compensate Mr. Regalado and avoid Mr. Claudio’s paying more than his 50% liability.

Similarly in Gurney, 588 So.2d 244, the Fourth District discussed the proper application of sections 768.81, 768.31, and 768.20. Gurney was a case of a drowned child that resulted in a wrongful death action between two couples, the Cains, who lost their daughter, and the Gurneys, in whose pool she drowned. The jury apportioned the fault one-third to the Gurneys and two-thirds to Mr. Cain. The trial court awarded Mrs. Cain as the non-negligent parent her full award of $150,000 and reduced Mr. Cain’s award of $150,000 by two-thirds, down to $50,000, to account for his comparative negligence. But the Gurneys complained on appeal that Mr. Cain’s award should have been further reduced to account for contribution to help them pay Mrs. Cain’s award. The Fourth District agreed, saying that “for a negligent parent not to have to account for his or her share of the wrongdoing to the other parent would be unfair to the third party and a windfall to the negligent parent.” Id. at 246. The Fourth District reversed, relying on Johnson v. School Board of Palm Beach County, 537 So.2d 685 (Fla. 4th DCA 1989). The Gurney court noted that in Johnson, the jury had found each parent 20% negligent and the school board 60% negligent, and each parent’s award was reduced not only by their own negligence but further by their contribution toward the other parent’s damages under section 768.31. 588 So.2d at 246. The award to Mr. Cain in Gurney was reversed and remanded for the trial court to enter a judgment against Mr. Cain on the contribution claim.

In Hudson, another drowning accident resulted in a wrongful death action that the child victim’s parents, Mr. and Mrs. Moss, instituted against Mr. and Mrs. Hudson, the owners of the pool in which the child drowned. 653 So.2d at 1072. The Hudsons filed a contribution claim against Mr. Moss but the trial court dismissed it. The jury found Mr. Moss 90% negligent and the Hudsons each 5% negligent. The jury assessed $500,000 in damages to Mr. and Mrs. Moss each. The trial court entered a judgment requiring that Mr. Hudson and Mrs. Hudson each pay $250,000 to Mrs. Moss, thus awarding Mrs. Moss 100% of her damages. On appeal, the total judgment in favor of Mrs. Moss, the non-negligent parent and surviv- or, was affirmed due to the interplay between the comparative fault statute and the Wrongful Death Act because section 768.20 controlled and required that the non-negligent parent’s award not be reduced because of the negligent parent’s fault. But the Fourth District concluded that the trial court had erred in dismissing the Hudsons’ contribution claim against Mr. Moss, relying on Gurney, 588 So.2d at 246, and Johnson, 537 So.2d 685. The Fourth District reasoned:

Requiring a third-party tortfeasor to bear more than their pro rata share of liability by denying them contribution under these circumstances is, as the judge pointed out below, unfair. To do so would mean that a tortfeasor who is only responsible for 10% of the damages would have to pay 100% of the damages to a tortfeasor who is responsible for 90% of the damages. Under the facts of this case, and the case law cited above, that is legally impermissible.

Hudson, 653 So.2d at 1073.

Based on the reasoning of Frazier, Gurney, and Hudson, because Mr. Claudio was only 50% responsible for the death of Ismelys Regalado, he is entitled to contribution from his joint tortfeasor, the negligent parent/plaintiff Mrs. Regalado. See, e.g., Hudson, 653 So.2d at 1073 (reversing and remanding for new judgments to account for contribution from the negligent parent).

Finally, we find no merit to Mr. Claudio’s argument that he is entitled to a set-off from Mr. Regalado’s judgment based on a claim for vicarious liability because Mr. Regalado was the co-lessee of Mrs. Regalado’s vehicle. The record does not support his argument that the issue was preserved as to him.

VI. Conclusion

Because we conclude that Mr. Claudio should have been allowed to pursue his claim for contribution in this lawsuit, we reverse that part of the final judgment that awarded Mrs. Regalado $500,000 and remand for resolution of the contribution issue and apportionment of the damage award to Mr. Regalado as between Mr. Claudio and Mrs. Regalado.

Because of the minor difference in procedural posture between a counter-defendant such as Mrs. Regalado and a third-party defendant as discussed in T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, 11 So.3d 411 (Fla. 2d DCA 2009), we certify the following questions to the supreme court as ones of great public importance:

AFTER THE EFFECTIVE DATE OF CHAPTER 2006-6, SECTION 1, AT 191-92, LAWS OF FLORIDA, IS A DEFENDANT PRECLUDED FROM RAISING A CLAIM FOR CONTRIBUTION IN A SUIT ALLEGING NEGLIGENCE VIA A COUNTERCLAIM OR A THIRD-PARTY CLAIM?
IF THE ANSWER TO THE ABOVE QUESTION IS YES, AND UNDER THE CIRCUMSTANCES OF THIS CASE, MUST JUDGMENT FINDING THE DEFENDANT PARTIALLY AT FAULT BE PAID IN FULL BY THE 'DEFENDANT REGARDLESS OF THAT DEFENDANT’S PARTIAL FAULT BEFORE THE DEFENDANT IS ENTITLED TO CONTRIBUTION FROM THE PLAINTIFF/CO-TORT-FEASOR?

Affirmed in part, reversed in part, and questions certified.

KELLY and LaROSE, JJ., Concur.

      . Dolores Claudio Ortiz is the appellant in the companion case of Ortiz v. Regalado, No. 2D11-1071, which was consolidated with this case for record purposes only.

      . Mr. Regalado sought damages individually in his capacity as a statutory survivor of his deceased minor daughter under section 768.18, Florida Statutes (2006), part of Florida's Wrongful Death Act, sections 768.16-.26. Mrs. Regalado also sued as a statutory surviv- or as well as for her own injuries.

      . Mr. Claudio does not dispute the propriety of this $793.76 award to Mr. Regalado as the personal representative of the estate of Isme-lys Regalado.

      . Generally, before a case is perfected and assigned to a merits panel for disposition on the merits, a motions panel will hear a motion to dismiss such as the one the Regalados filed. However, in this case, the motions panel deferred the Regalados’ motion to dismiss to the merits panel.

      . This “initial judge” presided pretrial, at trial, and heard the immediate posttrial motions. A second and then a third judge heard subsequent posttrial motions.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993). “A ‘Fabre defendant' is a nonparty defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged." Salazar v. Helicopter Structural & Maint., Inc., 986 So.2d 620, 622 n. 1 (Fla. 2d DCA 2007).

      . Thus it can be said that in a single suit a person subject to contribution and a Fabre defendant are mutually exclusive.

      . We note that the doctrine of interspousal immunity has been abrogated in Florida. Cf. Fabre, 623 So.2d at 1186 n. 2 ("If the accident had happened today, Mrs. Marin could sue her husband [who was held jointly liable for her injuries] because the doctrine of inter-spousal immunity has now been abrogated. Waite v. Waite, 618 So.2d 1360 (Fla.1993).").

      . We also find no merit in the Regalados’ argument that the contribution claim was not ripe for resolution in this suit because Mr. Claudio had not yet paid the full damage award to Mrs. Regalado.

      . The Regalados argue that the initial judge correctly denied Mr. Claudio leave to amend his answer to add a counterclaim because the proposed counterclaim for contribution he submitted with his motion to amend was defective. We do not reach the merits of whether Mr. Claudio properly pleaded a counterclaim for contribution, only that he should have been allowed to amend his answer to add a counterclaim for contribution. If his contribution counterclaim is defectively pleaded, we are certain that counter-defendants' counsel will bring that to the attention of the trial court.

        .See § 768.18 (defining who is a survivor for purposes of the Wrongful Death Act).

      . It does not appear from our reading of Frazier that the child’s aunt was a named party; she may have been a Fabre defendant because she was not a named appellee.

      . The Third District's calculations were the following: As the starting point, the father must receive the full $100,000 the jury awarded him. Section 768.81 controlled as between Metro-Dade and the aunt in relation to the father’s award, because she was not a statutory survivor, so Metro-Dade should not be responsible for her part (39.5% or $39,500) of the father’s award, leaving Metro-Dade responsible (as a preliminary calculation) for the remainder, or $60,500. 701 So.2d at 420. As a separate calculation regarding for what portion of the mother’s award Metro-Dade was responsible, the district court had calculated that Metro-Dade owed the mother $73,500. Id. at 421. Turning back to the joint and several responsibility for the father’s award, the mother's negligence was determined to be 45.8% or $45,800 of the father’s award. Therefore, the Third District concluded that as a contribution to Metro-Dade, this $45,800 would be set-off from what Metro-Dade had to pay the mother, thereby reducing the $73,500 that Metro-Dade had to pay the mother to $27,700. Id.

      .In Frazier, the jury had awarded the mother $500,000 which in the judgment the trial court properly reduced by her 45.8% negligence to $271,000. Id. The Third District then further reduced her award by the aunt's percentage of negligence down to $73,500.

      . There was also a third party suit against the fence company that had enclosed the pool, 588 So.2d at 245, that is not relevant to our discussion.

      . The trial court entered judgment in favor of Mr. Moss for only $50,000, i.e., 10% of the jury's award due to his own negligence, to be paid $25,000 by Mr. Hudson and $25,000 by Mrs. Hudson. Although the opinion is silent as to whether there was any issue regarding this $50,000 judgment in favor of Mr. Moss, it is clear that no change was needed due to the application of the comparative fault act, section 768.81, Florida Statutes (1993).

      . In opposition, the Regalados cite T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, 11 So.3d 411 (Fla. 2d DCA 2009), for the proposition that Mr. Claudio’s claim for contribution was not ripe because he has not yet paid the full award to Mr. Regalado. We are not persuaded of this case’s applicability to Mr. Claudio's case inasmuch as T & S Enterprises examined the trial court’s dismissal of a third-party complaint for contribution against Wink Industrial, which was not a party to the underlying suit. In contrast, Mr. Claudio was attempting and was precluded from pleading a counterclaim against the plaintiff in his suit. Cf. Zurich Am. Ins. Co. v. Hi-Mar Specialty Chems., LLC, 2010 WL 298392, at *4 (S.D.Fla. Jan. 19, 2010) (interpreting T & S Enterprises to mean that "the current version of section 768.81 appears to have ‘rendered obsolete’ prior case law that a defendant could file a third-party claim against another in the same case brought by the plaintiff, even though the liability of the third-party plaintiff had not yet been established”).


author: LAGOA, J. SCHWARTZ, Senior Judge

text:
    Carrie KENZ, Appellant, v. MIAMI-DADE COUNTY and Unicco Service Company, Appellees.
    No. 3D12-571.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Rehearing Denied June 26, 2013.

      Bruce Botsford, Ft. Lauderdale, for appellant.
    Hunter, Williams & Lynch and Christopher J. Lynch; Angones, McClure & Garcia and Donna J. Hunter, for appellees.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Carrie Kenz (“Kenz”) appeals from a final summary judgment entered in favor of Miami-Dade County and Unicco Service Company (collectively “Appellees”). She alleges that the trial court erred in applying section 768.0755, Florida Statutes (2010), rather than section 768.0710, Florida Statutes (2002), to her slip-and-fall action. For the reasons expressed below, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 13, 2008, Kenz slipped on liquid and fell at Miami International Airport. In July 2009, she filed suit against Appel-lees, alleging permanent injuries as a result of the fall. Section 768.0710, Florida Statutes (2002), was in effect at the time of Kenz’s slip and fall. That statute provided, in part, that in a negligence action involving a transitory foreign substance in a business establishment, “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.” § 768.0710(2)(b), Fla. Stat. (2002).

On July 1, 2010, after Kenz filed suit but before trial commenced, section 768.0755, Florida Statutes (2010), took effect and superseded section 768.0710. For the purposes of this discussion, section 768.0755 effectively returned Florida law to its pre-Owens status, and provides that a person who slips and falls on a transitory foreign substance in a business establishment “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” § 768.0755(1), Fla. Stat. (2010).

On June 7, 2011, Appellees filed a motion seeking a determination that section 768.0755 was applicable to Kenz’s case, arguing that the statute should apply retroactively because it is procedural in nature, rather than substantive. On October 28, 2011, the trial court granted the motion and ruled that section 768.0755 was to be given retroactive effect. On December 22, 2011, Appellees filed a motion for final summary judgment, which asserted that Kenz failed to prove Appellees had actual or constructive knowledge of the dangerous condition, as required by section 768.0755. Following a hearing, the trial court granted the motion for summary judgment, and on February 6, 2012, it entered a final summary judgment. This appeal followed.

II. STANDARD OF REVIEW

The standard of review for a summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

III. ANALYSIS

As the Florida Supreme Court explained in Smiley v. State, 966 So.2d 330, 334 (Fla.2007), the analysis of whether a change in the statutory law should receive retroactive application requires a determination whether the statute sought to be applied retroactively is substantive in nature, or procedural/remedial in nature. The distinction is important because “a substantive statute will not operate retrospectively absent clear legislative intent to the contrary.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187, 194 (Fla.2011) (quoting State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995)); Weingrad v. Miles, 29 So.Sd 406, 410 (Fla. 3d DCA 2010), review denied, 75 So.3d 1245 (Fla.2011). In contrast, a proceduraVremedial statute “should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Smiley, 966 So.2d at 334 (quoting Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994)); accord Yates v. Wal-Mart Stores, Inc., No. 5:10-cv-226/RS-GRJ, 2010 WL 4318795 (N.D.Fla. Oct. 27, 2010); Ziccardi v. Strother, 570 So.2d 1319, 1320-21 (Fla. 2d DCA 1990).

In determining whether a statute is procedural or substantive, this Court has stated that “[substantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights.” Weingrad, 29 So.3d at 409 (citing Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994)). Whether section 768.0755 applies to Kenz’s case, therefore, turns on whether the statute is substantive or procedural in nature.

Appellees argue that section 768.0755 is procedural in nature because it merely codifies a change to the plaintiffs burden of proof in a slip-and-fall case. Kenz, on the other hand, contends that the statute is substantive in nature, because it creates a new element the plaintiff must prove in a slip-and-fall case, namely, actual or constructive knowledge of the dangerous condition.

We begin our analysis by reviewing the requisite elements necessary to plead and prove a negligence cause of action. The three elements a plaintiff must plead and prove in a cause of action sounding in negligence are: (1) the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff; (2) a failure on the part of the defendant to perform that duty; and (3) an injury or damage to the plaintiff proximately caused by such failure. Tieder v. Little, 502 So.2d 923, 925 (Fla. 3d DCA 1987). Specifically, a business owner owes two duties to a business invitee: (1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn of perils that were known or should have been known to the owner and of which the invitee could not discover. Delgado v. Laundromax, Inc., 65 So.3d 1087, 1089 (Fla. 3d DCA 2011).

By requiring that the plaintiff prove “that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it,” section 768.0755(1) does not create any new element of a cause of action for negligence. Rather, by requiring that the plaintiff prove actual or constructive knowledge, the statute codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care. Cf. Delgado, 65 So.3d at 1089 n. 1 (stating in dicta that section 768.0755 defines “how a breach of duty is proven by requiring proof of actual or constructive knowledge”). In other words, the statute simply means that in establishing the element of breach of duty, the plaintiff has the burden of producing evidence of actual or constructive knowledge.

Indeed, under Florida case law, issues relating to a party’s burden of proof are generally procedural matters. In Shaps v. Provident Life & Accident Insurance Co., 826 So.2d 250, 254 (Fla.2002), the Florida Supreme Court addressed whether the burden of proof is procedural or substantive in the context of eonflict-of-laws. In concluding that the burden of proof is procedural, the Court stated:

Although no Florida case has squarely addressed this issue, generally in Florida the burden of proof is a procedural issue. See Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 243 (Fla.1977) (“Burden of proof requirements are procedural in nature.”); Ziccardi v. Strother, 570 So.2d 1319, 1321 (Fla. 2d DCA 1990) (modification of the burden of proof in a statute did not amount to substantive change in the law). This Court has explained, “[S]ubstantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994); see Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975). The burden of proof clearly concerns the means and methods to apply and enforce duties and rights under a contract and we find no reason to depart from this general rule for conflict-of-laws purposes.

See also Litvin v. St. Lucie Cnty. Sheriff’s Dep’t, 599 So.2d 1353, 1355 (Fla. 1st DCA 1992) (concluding that statutory amendment that affected an evidentiary vehicle to support a claim was “in the nature of a procedural burden of proof enactment”); Stuart L. Stein, P.A. v. Miller Indus., Inc., 564 So.2d 539, 540 (Fla. 4th DCA 1990) (holding that “increasing the burden of proof to a ‘clear and convincing’ standard did not amount to a substantive change in the statutory scheme” and therefore, may be applied retroactively); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984)(finding that statutory amendment which established what a claimant must show in order to obtain wage loss benefits was a procedural burden of proof enactment).

Finally, we note that, contrary to Kenz’s contention, this case is not controlled by American Optical Corp. v. Spiewak, 73 So.3d 120 (Fla.2011). In American Optical, the appellees filed actions for damages based on various degrees of asbestosis. Their actions were filed before the Legislature enacted the Florida Asbestos and Silica Compensation Fairness Act (the “Act”). Prior to the Act, “changes in the lung evidencing asbestos-related disease were sufficient to trigger a cause of action” and the common law did not require a particular “manifestation” of the asbestos injury. Id. at 127. Under the Act, however, in order to state a prima facie case, a plaintiff was required to plead and prove particular physical impairment symptoms, as set forth in the Act. See id. at 125,127. The appellees’ claims were subsequently dismissed for failing to meet the requirements of the Act. Id. at 123.

The Florida Supreme Court concluded that the Act could not be applied retroactively. In reaching this conclusion, the court stated that “it is clear that the main purpose of the Act is to alter the common law elements for an action arising from asbestos-related disease” and that “the Act is intended to reverse years of common law precedent ... holding that a diagnosis of asbestos-related disease and injury, without regard to any particular threshold level of impairment suffered, constitutes an accrued cause of action that provides citizens vested rights to file actions based on the injuries.” Id. at 130. In other words, by requiring a plaintiff to satisfy “a precise technical level or particular threshold of injury or impairment symptom” in order to file an action, id. at 127, the Act altered the common law element of harm. Therefore, “[wjhile claimants ... previously had an accrued cause of action, which is a form of constitutionally protected property, subsequent to the Act, their causes of action simply no longer exist.” Id. at 131 (emphasis added). Because “[rjetroactive application of the Act here would operate to completely abolish the [ajppellees’ vested rights in accrued causes of action for asbestos-related injury,” the Act could not be constitutionally applied retroactively to the appellees. Id. at 133.

In contrast, section 768.0755 does not operate to alter a prima facie case for a negligence claim. Here, a plaintiff who has an accrued cause of action under section 768.0710 because of an injury due to a transitory foreign substance or object in a business establishment, continues to have the same cause of action under 768.0755— unlike the claims discussed in American Optical, the cause of action continues to exist. Actual or constructive knowledge is not a “new” required element of a prima facie case under section 768.0755; rather, it concerns evidence, the burden of producing which is upon the plaintiff, that the jury must consider in determining whether there has been a breach of duty.

Accordingly, because we conclude that section 768.0755 is procedural in nature, and applies retroactively to Kenz’s claim, we affirm the entry of summary judgment in favor of Appellees.

Moreover, even if we were to accept Kenz’s suggestion, that section 768.0710 were applicable to this case, the Appellees would nevertheless be entitled to summary judgment, as the record here is devoid of any evidence suggesting that the Appellees had any notice — either actual or constructive — of the water on the floor. See Delgado, 65 So.3d at 1090 (affirming entry of summary judgment as patron failed to establish negligence claim). As such, in the alternative, we find that because Kenz failed to demonstrate that the Appellees negligently failed to exercise reasonable care in the maintenance of the premises, the entry of final summary judgment was proper and we affirm.

For the reasons set forth, we affirm the trial court’s entry of final summary judgment in favor of the Appellees.

AFFIRMED.

SHEPHERD, J., concurs.

SCHWARTZ, Senior Judge

(specially concurring).

Because it is clear, as the Court holds, that summary judgment is appropriate either way, simply because there is not a semblance of evidence of negligence, I would affirm without reaching the primary issue discussed by the Court. See Pub. Health Trust of Miami-Dade County v. Metellus, 948 So.2d 4, 5 (Fla. 3d DCA 2006) (Shepherd, J., specially concurring) (citing PDK Labs., Inc. v. U.S. DEA., 362 F.3d 786, 799 (D.C.Cir.2004)).

      . The Florida Legislature enacted section 768.0710 in response to the Florida Supreme Court’s decision in Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001). In Owens, the court changed the law in premises liability cases involving transitory foreign substances by shifting the burden to the premises owner or operator to establish by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises, “eliminating the specific requirement that the customer establish that the store had constructive knowledge” of the existence of the transitory foreign substance. Id. at 331. In doing so, the court specifically noted that the presumption was one "affecting the burden of proof.” Id. at 331 n. 10. In enacting section 768.0710, the Florida Legislature returned to the claimant the burden of proving that the premises owner or operator negligently failed to exercise reasonable care, but codified that part of Owens that a claimant was not required to prove actual or constructive notice of the transitory foreign substance. Section 768.0710 stated as follows:
      768.0710. Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises
      (1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
      (2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:
      (a) The person or entity in possession or control of the business premises owed a duty to the claimant;
      (b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and
      (c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

      . Section 768.0755 reads as follows:
      768.0755. Premises liability for transitory foreign substances in a business establishment
      (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that;
      (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
      (b) The condition occurred with regularity and was therefore foreseeable.
      (2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

      . Section 768.0710 was repealed by chapter 2010-08, section 2, Laws of Florida.


text:
    Janet PHILLIPS-HUTER, Appellant, v. AMSTAFF HUMAN RESOURCES/LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellees.
    No. 1D12-3342.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Rehearing Denied July 11, 2013.

      John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.
    Colleen Cleary Ortiz of Colleen Cleary Ortiz, P.A., Pensacola, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying entitlement to permanent total disability (PTD) benefits. We reverse this ruling and write this brief opinion to give direction to the JCC for further proceedings on remand. In this particular case, the JCC performed a diligent and ordered analysis of the various methods by which a claimant may establish entitlement to PTD benefits, as set forth in section 440.15(1), Florida Statutes (2003), and Blake v. Merck & Co., 43 So.3d 882 (Fla. 1st DCA 2010). In so doing, the JCC investigated whether Claimant’s psychiatric condition, in conjunction with other factors, might establish her inability to “engage in at least sedentary employment” as the statute would require. As part of this investigation, the JCC considered whether Claimant had presented “clear and convincing” medical evidence that the compen-sable physical injury “remain[ed] the major contributing cause of the [psychiatric injury],” as required by section 440.093, Florida Statutes (2003). We agree with Claimant that the JCC erred in applying section 440.093 to this case because section 440.093 presents the test for compensability of psychiatric injuries, and, here, as the Employer/Carrier conceded at closing argument, the Employer/Carrier was not challenging compensability of Claimant’s psychiatric injury. This error effectively moots Claimant’s other point on appeal, a challenge to the JCC’s evidentiary rulings regarding doctors’ opinions on major contributing cause of the psychiatric injury.

REVERSED and REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


author: SWANSON, J.

text:
    PHILIP MORRIS USA INC. and R.J. Reynolds Tobacco Company, Appellants/Cross-Appellees v. Andy R. ALLEN, Sr., as Personal Representative of The Estate of Patricia Allen, Deceased, Appellee/Cross-Appellant.
    No. 1D11-6061.
    District Court of Appeal of Florida, First District.
    May 10, 2013.
    Rehearing Denied July 12, 2013.

      Robert B. Parrish and Jeffrey A. Yar-brough of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, and Gregory G. Katsas, Washington, D.C., and Chad A. Readier (admitted pro hac vice), Columbus, OH, of Jones Day, for Appellant/Cross-Appellee R.J. Reynolds Tobacco Co.; Gary L. Sasso and Joseph H. Lang, Jr., of Carlton Fields, Tampa, and Dana G. Bradford, II, of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellant/Cross-Appellee Philip Morris USA Inc.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa; Gregory D. Pry-sock and Katy M. Massa of Morgan & Morgan, P.A., Jacksonville, and Keith R. Mitnik of Morgan & Morgan, P.A., Orlando, for Appellee/Cross-Appellant.
   SWANSON, J.

Andy R. Allen (“appellee”), as personal representative of the estate of his wife, Patricia Allen, and joined below at trial by his daughter in her individual capacity, sued R.J. Reynolds Tobacco Company and Philip Morris USA Inc. (“appellants,” or “RJR” and “PM USA,” respectively), alleging appellants were liable for the wrongful death of Mrs. Allen at the age of sixty, from chronic obstructive pulmonary disease (“COPD”). The evidence established that Mrs. Allen had been a lifelong smoker of both RJR and PM USA’s cigarettes. Following a two-phase Engle trial, the jury found both appellants liable under theories of negligence; strict liability for placing defective and unreasonably dangerous cigarettes on the market; fraudulent concealment or omission of the health effects or addictive nature of smoking cigarettes; and conspiracy to conceal or omit material information concerning the health effects or addictive nature of smoking cigarettes. As a result, the jury awarded appellant $6 million in compensatory damages and $34 million in punitive damages. The trial court’s final judgment confirmed the compensatory damages awarded, but reduced the punitive damages to $8.1 million against RJR, and $2.7 million against PM USA. The parties now bring this appeal and cross-appeal from the final judgment, raising several issues and sub-issues, each serving as a potential basis for the reversal of all or a portion of the final judgment. We affirm without comment appellants’ Points I, III, and IV. We also affirm appellants’ Point V on the authority of the Florida Supreme Court’s recent decision in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla.2013). We reverse, however, on appellants’ Point II, which obviates the need to reach appellee’s issues raised on cross-appeal because, for the reasons that follow, our decision requires remand for a new trial.

Under Point II, appellants assert the trial court erred in directing a verdict in favor of appellee on the issue of appel-lee’s membership in the Engle class, by removing the “addiction causation” requirement from the Engle class definition. We review a ruling on a motion for directed verdict de novo, reading the evidence and inferences of fact in a light most favorable to the non-moving party. See Morales v. Weil, 44 So.3d 173, 178 (Fla. 4th DCA 2010). In other words, a trial court should grant a motion for directed verdict only “when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.” Meruelo v. Mark Andrew Of the Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009); see also Kowkabany v. Home Depot, Inc., 606 So.2d 716, 719 (Fla. 1st DCA 1992) (“[I]n reviewing the propriety of a directed verdict, an appellate court must weigh the facts and inferences to be drawn therefrom in the light most favorable to the person against whom judgment has been granted. A directed verdict can be upheld only if there is no evidence or inference from the evidence which will support the non-moving party’s position.”).

Early in Phase I of the trial, the trial court entered a partial summary judgment in which it found as a matter of law that Mrs. Allen had been addicted to cigarettes containing nicotine. Accordingly, near the close of the evidence, appellee moved for a directed verdict on the issue of Engle class membership, asserting that the combined effect of the partial summary judgment and appellants’ concession that smoking had caused Mrs. Allen’s COPD left nothing for the jury to decide on that issue. Appellants countered that Engle class membership requires more than the fact of addiction and evidence that smoking caused the disease; instead, Engle required appellee to produce evidence that Mrs. Allen’s addiction was the legal came of her COPD. Appellants pointed to evidence that Mrs. Allen’s COPD was first diagnosed in 1996, and the evidence was disputed on the issue of whether her addiction had manifested itself prior to that date and was the cause of her developing COPD, as opposed to other factors that explained her decision to smoke, such as her desire to lose weight and for reasons of stress relief. The trial court adopted appellee’s argument, but directed a verdict against RJR only, reasoning that the class membership issue remained a jury question insofar as PM USA was concerned because of evidence that Mrs. Allen had only used PM USA’s brand when she first began smoking.

As a result, the trial court instructed the jury, in pertinent part, as follows:

This action arises out of a case known as the Engle class action. I have determined that Patricia Allen is a member of the Engle class as a matter of law. Certain findings from that action are binding upon you, the court and the parties....
.... [Reading the eight Engle common liability findings.]
However, notwithstanding the foregoing, these findings will not be applicable to the plaintiffs claims against Philip Morris USA, Inc. if you find by the greater weight of the evidence that Patricia Allen’s smoking of Philip Morris USA Inc. cigarettes was not a legal came of her death.
The court has determined that Mrs. Allen was addicted to R.J. Reynolds Tobacco Company cigarettes containing nicotine and that her addiction was a legal cause of her death. The Engle findings will apply to plaintiffs claims against R.J. Reynolds Tobacco Company-

(Emphasis added.)

Thus, as to PM USA, the jury was instructed as follows:

The court has determined as a matter of law that at all times material to this case, Patricia Allen was addicted to cigarettes containing nicotine.
The first issue for your determination on the claim of Andy Allen, Sr., as the personal representative of the estate of Patricia Allen is whether Patricia Allen’s smoking of Philip Morris cigarettes containing nicotine was a legal cause of her death.
Smoking Philip Morris USA, Inc. cigarettes containing a [sic] nicotine is a legal cause of Mrs. Allen’s death if it directly and in a natural and continuous sequence produced or contributed substantially to producing her death so that it can be reasonably be said that, but for that smoking, her death would not have occurred.

We agree with appellants’ position that the trial court’s rationale for the directed verdict, and its above-quoted instructions, which emphasized smoking instead of addiction, reflect a critical misunderstanding of the supreme court’s definition of Engle class membership, which, in turn, resulted in fundamentally flawed instructions to the jury.

In order to gain the advantage of the res judicata effect of the Phase I Engle findings, a plaintiff first must produce suffi-dent evidence that he or she is an Engle class member. See Douglas, 110 So.3d at 427; R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1064-69 (Fla. 1st DCA 2010). In Engle, the supreme court clearly and concisely defined the plaintiff class as all Florida “ ‘citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’ ” Engle, 945 So.2d at 1256 (emphasis added). In Martin, when this Court was confronted with RJR’s assertion that “the trial court did not require Mrs. Martin to prove legal causation on her negligence and strict liability claims,” we expressly disagreed, observing, “[o]n the contrary,” the trial court instructed the jury that

[t]he first issue for your determination ... is whether Benny Martin was a member of the Engle class. In order to be a member of the Engle class, the plaintiff must prove that Benny Martin was addicted to R.J. Reynolds cigarettes containing nicotine, and, if so, that his addiction was the legal cause of his death .... Addiction is a legal cause of death if it directly and in a natural and continuous sequence produces or contributes substantially to producing such death ... so that it can reasonably be said that, but for the addiction to cigarettes containing nicotine, the death would not have occurred.

53 So.3d at 1064-65 (emphasis added). After reviewing the evidence adduced by Mrs. Martin at trial, we concluded that “Mrs. Martin was required to prove legal causation, and she produced sufficient evidence for a jury to find that Mr. Martin’s addiction to RJR’s cigarettes was the legal cause of his death.” Id. (emphasis added). Thus, contrary to appellee’s claim, class membership is far more than the fact of addiction and the fact that smoking caused the disease; it is, instead the fact that the addiction caused the disease.

We find the supreme court’s analysis in Douglas highlights and confirms this conclusion. In Douglas, the court was not called upon solely to determine the certified question on due process. It also examined the defendants’ claim that the trial court “misapplied Engle by using the Phase I findings to establish the defect and conduct elements of the plaintiffs claims,” arguing that “because the Engle jury did not adopt a common theory of liability for why their cigarettes were defective or for why their conduct was tor-tious, the Phase I findings are too general to be binding in individual actions.” 110 So.3d at 427. In rejecting this claim, the supreme court explained:

[T]he Phase I common liability jury determined general causation (the connection between the Engle defendants’ addictive cigarettes and the diseases in question), which leaves specific or individual causation (the connection between the Engle defendants’ addictive cigarettes and the injury that an individual plaintiff actually sustained) to be determined on an individual basis. The En-gle defendants may defend against the establishment of individual causation, for example, by proving that the disease at issue was the result of a genetic predisposition, exposure to an occupational hazard, or something unrelated to the plaintiffs addiction to smoking the En-gle defendants’ cigarettes.

Id. (emphasis added). Of relevance to the present case, the supreme court referenced the trial court’s instruction to the jury, that it was to determine first whether Mrs. Douglas was a member of the Engle class, explaining, as did the trial court in Martin, that “addiction ... is a legal cause of a disease or medical condition if it directly and in natural and continuous sequence produces or contributes substantially to producing such disease or medical condition so that it can reasonably be said that but for an addiction to cigarettes containing nicotine, such disease or medical condition would not have been suffered.” Id. at 426, n. 4. With this in mind, the supreme court held the Second District “properly applied Engle when holding that legal causation for the strict liability claim was established by proving that addiction to the Engle defendants’ cigarettes containing nicotine was a legal cause of the injuries alleged.” Id. at 429. It went on to state, “When an Engle class member makes this showing, injury as a result of the Engle defendants’ conduct is assumed based on the Phase I common liability findings.” Id. (citing Martin, 53 So.Sd at 1069). More important, in finding that the record in Douglas “conclusively countered] the argument that the Engle defendants are being arbitrarily deprived of their property,” id. at 431, the supreme court emphasized that “individual plaintiffs do not simply walk into court, state that they are entitled to the benefit of the Phase I findings, prove their damages and walk away with a judgment against the Engle defendants.” Id. “Instead, to gain the benefit of the Phase I findings in the first instance, individual plaintiffs must prove membership in the Engle class,” which “often hinges on the contested issue of whether the plaintiff smoked cigarettes because of addiction or for some other reason (like stress relief, enjoyment of cigarettes, and weight control ...).” Id. (emphasis added). The supreme court continued, “Once class membership is established, individual plaintiffs use the Phase I findings to prove the conduct elements of the six causes of action this Court upheld in Engle[.]” Id. at 432. Thus, as illustrated by the jury instructions approved in Douglas and in Martin, addiction causation, not smoking causation, is key to Engle class membership.

In the present case, the directed verdict against RJR, and the instruction given to the jury regarding appellee’s class membership run counter to the analyses of class membership employed in Douglas and Martin. The evidence at the time of the trial court’s decision was mixed on the issue of when Mrs. Allen became addicted to cigarettes in relation to her diagnosis of COPD in 1996. The parties’ experts diametrically disagreed on that subject. Thus, it cannot be said “there is no evidence or inference from the evidence which will support the non-moving party’s position.” Kowkabany, 606 So.2d at 719; see also Phillips v. Van’s Elec. of Lake Worth, Inc., 620 So.2d 253, 253 (Fla. 4th DCA 1993) (observing that “[d]ireeted verdicts in negligence cases must be granted in an especially cautious manner”) Here, RJR introduced evidence sufficient to create a jury issue on whether Mrs. Allen’s addiction caused her COPD. Moreover, because of the improper instructions to the jury, we reject appellee’s claim that the erroneous entry of the directed verdict against RJR was harmless error as regards PM USA. In both instances, the trial court removed from the jury’s consideration the threshold issue on appellee’s class membership for reasons inconsistent with Engle as reaffirmed in Douglas.

In so holding, we also reject appel-lee’s suggestion that the error was harmless given the jury’s finding on the issue of comparative negligence. Douglas is clear that one of the essential components to protecting Engle defendants’ due process rights is the initial inquiry into a plaintiffs membership in the Engle class. Without a proper instruction and finding that Mrs. Allen was a member of the Engle class, appellee, again, was not entitled to rely on the Engle Phase I findings to establish the conduct elements of his claims. After that, the separate questions on comparative fault merely asked the jury to determine who was responsible, and to what degree, for Mrs. Allen’s death; but the Engle class definition makes addiction causation a necessary precursor to the question concerning the degree to which a defendant’s alleged misconduct caused a smoker’s disease. Comparative fault in this ease focused on an entirely different question. Therefore, the jury’s findings on that subject cannot cure the omission of any jury finding on the crucial addiction causation element.

Consequently, for the reasons stated, we reverse the final judgment in favor of ap-pellee, and remand the cause for a new trial to be conducted consistent with this opinion.

AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings.

VAN NORTWICK and LEWIS, JJ., concur.

      . See Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . The jury awarded $3 million in compensatory damages each to appellee and to his daughter. The award of punitive damages was likewise evenly split between the two plaintiffs.

      . In Douglas, the supreme court answered in the negative the following question certified by the Second District Court of Appeal: "Does accepting as res judicata the eight Phase I findings approved in Engle[ ] violate the [Engle defendants'] due process rights guaranteed by the Fourteenth Amendment of the United States Constitution?” See 110 So.3d at 422 (citing Philip Morris USA, Inc. v. Douglas, 83 So.3d 1002, 1011 (Fla. 2d DCA 2012)). The parties in the present case were given the opportunity to submit supplemental briefs addressing Douglas.

      . While our decision in Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012), might be read to suggest otherwise, where we held that "class definition requires only that the smoker is/was addicted to cigarettes containing nicotine, and contracted or died from a disease caused by cigarette smoking," id., we emphasized in the opinion that the "addiction causation” issue was undisputed, as evidenced by the trial court’s entry of a partial summary judgment on that point. Regarding the addicted decedent's continued smoking after learning of the "deleterious health effects” of cigarettes in Mrozek, we considered that fact to raise "a question of comparative fault, and thus, of liability to be determined at trial,” as indicated by the jury’s finding the decedent to be thirty-five percent responsible for her death. Id.


text:
    Kevin John KINGSBURY, Former Husband, Appellant, v. Diana Shance KINGSBURY, Former Wife, Appellee.
    No. 1D12-3188.
    District Court of Appeal of Florida, First District.
    May 14, 2013.
    Rehearing Denied July 10, 2013.

      Michael R. Gates of Cotton & Gates, Shalimar, for Appellant.
    Michael T. Webster, Shalimar, for Ap-pellee.
   PER CURIAM.

Appellant Kevin John Kingsbury (Mr. Kingsbury) appeals a final judgment of dissolution of marriage to Diana Shance Kingsbury (Ms. Kingsbury). Mr. Kings-bury raises numerous issues on appeal related to the trial court’s award of periodic permanent alimony and equitable distribution of marital assets. Because the trial court failed to make a finding of Mr. Kingsbury’s net income, we reverse the award of alimony and remand for further findings. The final order is affirmed in all other respects.

The parties were married in 1989 and Ms. Kingsbury filed a petition for dissolution of marriage in May 2011. The parties were self-employed by Kevin Roberts Entertainment Agency, Inc. (KREA), a booking agency that represented artists and provided entertainment to nightclubs, casinos, festivals, and bars. Ms. Kingsbury was the majority shareholder (51%) and Mr. Kingsbury was the minority shareholder (49%). Ms. Kingsbury maintained the books and Mr. Kingsbury was responsible for booking the acts. KREA was the sole source of income for both parties. After Ms. Kingsbury filed the petition for dissolution, Mr. Kingsbury assumed control of the bookkeeping and continued to operate KREA. Ms. Kingsbury, however, was only able to secure a job making minimum wage.

The trial court granted Ms. Kingsbury’s petition for dissolution of marriage in March 2012. In its final order, the trial court awarded, among other things, permanent periodic alimony to Ms. Kings-bury. The trial court found that Mr. Kingsbury’s “annual gross income [was] approximately $140,000” and that he “ha[d] the capacity of earn [sic] at least $150,000 per year.” The trial court also found that Ms. Kingsbury “ha[d] the ability to earn just a little more than minimum wage.” As such, Ms. Kingsbury was awarded $4,000 per month in alimony. Mr. Kingsbury argues on appeal that the trial court erred by failing to base the award of alimony on his net income. We agree.

The ability to pay alimony should be based on the party’s net income. See Vanzant v. Vanzant, 82 So.3d 991, 993 (Fla. 1st DCA 2011) (holding that trial court erred by using figures that represented gross income rather than net income); Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004) (noting that former spouse’s argument that alimony award should be based on gross income rather than net income was incorrect because “[i]n reality, the case law states that net income is the relevant benchmark”) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Lambertini v. Lambertini, 817 So.2d 942, 943 (Fla. 3d DCA 2002); Gandul v. Gandul, 696 So.2d 466, 468 (Fla. 3d DCA 1997); de Armas v. de Armas, 471 So.2d 185, 185 (Fla. 3d DCA 1985); Parham v. Parham, 385 So.2d 107, 108 (Fla. 3d DCA 1980); Blum v. Blum, 382 So.2d 52, 54 (Fla. 3d DCA 1980)).

Here, the only mention in the final judgment of Mr. Kingsbury’s income, and thus his ability to pay alimony, was his gross income. This is error. In Vanzant, this court recently reversed and remanded an award of alimony, explaining that the figures used “reflect[ed] the gross income shown on the former husband’s amended financial affidavit, not his net income.” 82 So.3d at 993 (emphasis in original). Although it appears that Mr. Kingsbury may have had the ability to pay $4,000 per month in alimony, it is impossible to know for certain without some indication of his net income. See McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) (“The trial court did not explain how it arrived at a net income amount of $4500 per month, and based on the record before us, we are compelled to reverse and remand for the trial court to reconsider this issue.”).

In arriving at Mr. Kingsbury’s net income, the trial court must “make specific findings as to the former wife’s need for alimony and the former husband’s ability to pay. See § 61.08(2), Fla. Stat.” Vanzant, 82 So.3d at 993. On remand, because the record includes conflicting testimony as to what expenses are attributable to KREA and what expenses are attributable to Mr. Kingsbury’s personal responsibilities, the trial court must make specific findings as to how it arrives at Mr. Kingsbury’s net income. See Winney v. Winney, 979 So.2d 396, 400 (Fla. 1st DCA 2008) (explaining that statutory mandates as well as possibility of appellate review requires specific findings, and, “[w]hen awarding alimony, a trial court must make findings as to the recipient’s need and the obligor’s ability to pay, and these findings must reflect a consideration of all relevant economic factors as provided in section 61.08(2), Florida Statutes.”) (citation omitted).

Accordingly, the trial court’s award of alimony is reversed. On remand, the trial court is instructed to make specific findings as to Mr. Kingsbury’s ability to pay alimony based on his net income. If the trial court determines that, based on Mr. Kingsbury’s net income, he is unable to pay $4,000 per month in alimony, the trial court must also recalculate child support consistent with section 61.30(l)(a).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

LEWIS, CLARK, and RAY, JJ„ concur.

      . On remand, if the trial court amends the award of alimony, it must also recalculate child support consistent with section 61.30(1)(a), Florida Statutes. See Storey v. Storey, 979 So.2d 1057, 1058 (Fla. 2d DCA 2008) (instructing trial court to recalculate child support in light of amended alimony award) (citing Cornett v. Cornett, 713 So.2d 1083, 1085 (Fla. 2d DCA 1998)).

      . For example, Mr. Kingsbury listed his income in 2011 as $130,249.56, but Ms. Kings-bury testified that his income was at least $140,000 per year. In Ms. Kingsbury's financial affidavit she listed Mr. Kingsbury's 2010 income as $86,790 and her income as $67,710, but the parties’ 2010 joint income tax return listed a total income of $112,580 and adjusted gross income of $95,897. Ms. Kingsbury testified, without any supporting documentation, that KREA's gross profit from 2006 to 2010 was incorrectly calculated because half of the expenses that were written off as business expenses were actually personal expenses, and thus should be credited for purposes of calculating Mr. Kingsbury’s annual income.


author: LaROSE, Judge.

text:
    Patrick PYJEK, Appellant, v. VALLEYCREST LANDSCAPE DEVELOPMENT, INC., a foreign corporation d/b/a Valleycrest Landscape Companies, Appellee.
    No. 2D12-2999.
    District Court of Appeal of Florida, Second District.
    May 15, 2013.
    Rehearing Denied June 27, 2013.

      Jason Rafael Leonard of Morgan & Morgan, P.A., Fort Myers, for Appellant.
    Rodney J. Janis and Rachel M. Evert of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, West Palm Beach, for Appel-lee.
   LaROSE, Judge.

Patrick Pyjek appeals a final summary judgment disposing of his gross negligence lawsuit against ValleyCrest Landscape Development, Inc. As a matter of law, the trial court found ValleyCrest immune from liability under the exclusivity provision of Florida’s workers’ compensation statute. See § 440.10(1)(e)(2), Fla. Stat. (2007). We have jurisdiction. See Fla. RApp. P. 9.030(b)(1)(A). Our review is de novo. See Makryllos v. Citizens Prop. Ins. Corp., 103 So.3d 1032, 1033 (Fla. 2d DCA 2012) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)). We reverse because ValleyCrest has not established by this limited record that no issues of material fact remain.

Mr. Pyjek worked for a fencing company that was a subcontractor on a residential development project in Fort Myers. He and his crew installed aluminum fences throughout the project. ValleyCrest, another subcontractor on the project, also had a crew at the site planting palm trees. Mr. Pyjek was injured when a palm tree fell on him.

Mr. Pyjek alleged that Valley-Crest’s conduct in planting the palm trees amounted to gross negligence excepted from the workers’ compensation exclusivity provision. See § 440.10(1)(e)(2); see also § 440.11(1)(b)(2). To establish gross negligence, Mr. Pyjek must show (1) a composite of circumstances which, together, constitute a clear and present danger;

(2)an awareness of such danger by the subcontractor; and (3) a conscious voluntary act or omission by the subcontractor that is likely to result in injury. See Villalta v. Comm Int'l, Inc., 109 So.3d 278 (Fla. 1st DCA 2013) (citing Glaab v. Caudill, 236 So.2d 180, 185 (Fla. 2d DCA 1970)); cf. Merryman v. Mattheus, 529 So.2d 727, 729 (Fla. 2d DCA 1988) (explaining that mere knowledge of vulnerability of employee to the possibility of injury is insufficient to amount to gross negligence; there must be a likelihood of injury from employee’s vulnerability greater than mere danger, rising to a “clear and present danger”).

Recently, we reiterated our role in reviewing a final summary judgment:

A trial court may enter a summary judgment only when the record shows that no genuine issues of material fact remain and that the movant is entitled to judgment as a matter of law. Makryllos, 103 So.3d at 1033 (citations omitted). “If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979) (citing Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3d DCA 1977)). The burden on these points rested with ... the movant. See Fla. R. Civ. P. 1.510; Pinehot v. First Fla. Banks, Inc., 666 So.2d 201, 201-02 (Fla. 2d DCA 1995) (citing Snyder).

Competelli v. City of Belleair Bluffs, 2013 WL 1352480, 38 Fla. L. Weekly D773, D773 (Fla. 2d DCA Apr.5, 2013). Our review, of course, is limited to the record before the trial court. See Easterling v. Keels, 681 So.2d 744, 744 (Fla. 2d DCA 1996); Welch v. Celotex Corp., 951 F.2d 1235, 1237 n. 3 (11th Cir.1992).

Oür record contains deposition transcripts, a few exhibits, and a landscape expert’s affidavit submitted by Mr. Pyjek. We have no photographs of the site. The record includes a cryptic drawing that indicates the palm trees’ general location and that of the fence line where work occurred. We have no transcript of the summary judgment hearing. From this limited record, we can see only a blurred picture of what happened.

We know that ValleyCrest planted numerous palm trees, including the one that injured Mr. Pyjek, a week or more before the accident. On the day of the accident, Mr. Pyjek and his crew were installing fencing near the palm trees. Typically, the crew dug holes for the fence posts that were then anchored with concrete as the crew progressed with the fence installation. Mr. Pyjek’s task was to cut aluminum. Approximately two hours before the accident that injured Mr. Pyjek, a palm tree fell in the area where the fence crew was working. Although the tree was staked, some evidence indicates that persistent gusty winds toppled the tree. We note that a single deponent testified that it was not windy on the fateful day. When the tree fell, it caused damage to installed fencing and equipment. ValleyCrest righted the tree and restaked it. The parties dispute the manner in which the tree was replanted. The fence crew resumed its work in the area, focused on repairing damage to the fencing. Shortly thereafter, a palm tree fell, this time injuring Mr. Pyjek. Mr. Pyjek claims it was the same tree; ValleyCrest disagrees.

Mr. Pyjek rests his gross negligence theory on ValleyCrest’s knowledge of the windy conditions and its failure to replant the palm tree with sufficient care. These were no mere shrubs. The palm trees were approximately eighteen to thirty feet tall. The facts conflict on whether Valley-Crest replanted the felled palm in a deeper hole. The facts are also in conflict as to whether ValleyCrest securely restaked the tree with sufficient supports to guard against the wind.

As is typical in Florida, the soil around the trees was loose and sandy. The facts are disputed as to whether the fencing crew might have loosened the soil when digging to install or repair fencing. The holes that the fencing crew dug for posts were about fifteen inches wide and two feet deep.

Mr. Pyjek’s landscaping expert opined as follows:

After the palms fell one time, they should have been checked for any problems with the stakes, the wood battens, the soil conditions, or other possible damages that could have occurred from them falling over. Since at least one palm (the palm that is stated to have caused the injuries) was placed back into the same location, or planting hole, the backfilling of the soil around it and the supports should have been more closely inspected and reset to better assure it would not fall again. The contractor was forewarned of the possibility of the palm falling over (because it fell once), and should have better supported it.

According to Mr. Pyjek’s testimony, Val-leyCrest undertook none of these precautions. As this recitation of the record facts demonstrates, the parties agree on little. What is clear is that several unresolved issues of material fact preclude summary judgment. As we previously stated,

[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and that the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.

Competelli, 38 Fla. L. Weekly at D773 (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (internal citations omitted)); see also Bruno v. Destiny Transp., Inc., 921 So.2d 836, 839-40 (Fla. 2d DCA 2006) (citing Moore); Villalta, 109 So.3d at 278 (holding summary judgment improperly granted in gross negligence case where evidence was not properly viewed; evidence must be viewed in the manner most favorable to the opposing party, without resolving conflicts in the evidence). We must, therefore, reverse.

Reversed and remanded for further proceedings.

SILBERMAN, C.J., and ALTENBERND, J., Concur.

      . § 440.10. Liability for Compensation
      (l)(e) A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor ... and is protected by the exclusiveness of liability provisions of s. 440.11 from any action at law ... on account of injury to an employee of another subcontractor, or of the contractor, provided that:
      1. The subcontractor has secured workers’ compensation insurance for its employees ...; and
      2. The subcontractor's own gross negligence was not the major contributing cause of the injury.

      . Mr. Pyjek testified in his deposition that three or four other palms in the group of trees fell later on that same day.