author: SHEPHERD, C.J.

text:
    Osmany Anthony PEREZ, etc., et al., Appellants, v. BELL SOUTH TELECOMMUNICATIONS, INC., etc., et al., Appellees.
    No. 3D11-445.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.

      Assouline & Berlowe and Peter E. Ber-lowe, Coconut Grove; The Law Offices of Anthony & Associates and Bradley A. Sil-verman, Coral Gables, for appellants.
    Mark R. Boyd, Scott A. Markowitz, and Mary M. Schneider, Fort Lauderdale, for appellees.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   SHEPHERD, C.J.

Osmany Anthony Perez, a minor, by and through his mother and next friend, Maria Franco Perez, appeals an adverse summary judgment in a negligence case rendered after the trial court struck the only medical expert testimony linking his premature birth, resulting surgeries, and developmental deficits to workplace stress. The workplace stress arose from the alleged failure of Maria’s employer, Bell South Telecommunications, Inc., to limit her work hours to forty hours a week and allow frequent bathroom breaks. The trial court found the testimony to be inadmissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Since then, the Florida Legislature has amended the Florida Evidence Code to employ the United States Supreme Court’s more recently promulgated “Daubert test,” to gauge the admissibility of expert testimony in the stead of the older “Frye test.” After obtaining supplemental briefing from the parties on the applicability of the Daubert test to the facts of this case, we find affirmance would be in order under either the former or more recently adopted statutory test. A brief summary of the factual and procedural background of the case is necessary to explain our decision.

Factual and Procedural History

Maria Franco Perez became pregnant with her first child, Osmany Anthony Perez, while employed as a call center operator by appellee, Bell South. She was twenty-six years old at the time, and her treating physician, Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez’s pregnancy as “high risk” at the time of her first visit to his office on May 5, 2004. The visit concluded with Dr. Cardella recommending a week of bed rest, owing to Ms. Perez’s report of vaginal spotting.

Ms. Perez’s prior medical history indicated several conditions and procedures which contributed to her high-risk pregnancy. In the years before, she had undergone gastric surgery due to obesity, which included the placement of gastric bands around her stomach to reduce intake. Despite the gastric surgery, Ms. Perez remained obese. Additionally, Ms. Perez had suffered two herniated discs, had back surgery, and had her gall bladder removed prior to her pregnancy with Os-many Perez.

At Ms. Perez’s office visit on July 80, 2004, Ms. Perez reported being “put[ ] under a lot of stress” at work. Dr. Cardella gave her a note for her employer stating “Patient can only work a max of 40 hours a week due to high risk pregnancy” and “[pjlease allow frequent bathroom breaks.” On August 11, 2004, Ms. Perez was fired for non-performance. Two days later, on August 13, 2004, Ms. Perez suffered a placental abruption and delivered her child, Osmany Anthony, twenty weeks early. Dr. Cardella opined in his deposition that workplace stress, exacerbated by Bell South’s alleged refusal to accommodate Ms. Perez’s medical condition, was the causal agent of the abruption and early delivery of her son with medical consequences., Dr. Cardella’s testimony is the only testimony linking Osmany’s premature birth to Bell South.

However, Dr. Cardella testified there was no way of ever knowing for sure what caused Maria’s placental abruption. In fact, Dr. Cardella testified that his conclusions were purely his own personal opinion, not supported by any credible scientific research:

Q. Have there been any studies that you’re aware of that have shown stress to be a factor in determining the likelihood of a placental abruption?
A. Studies, no, but I have my opinion about that.
Q. All right, and we’ve talked about that.
A. Correct.
Q. My question is have there been any, do you know of any studies that have shown a connection between stress and placental abruption?
A. No, sir.
Q. Do you know of any medical literature that shows a correlation between stress and placental abruption?
A. No, sir.
Q. Do you know of any individual in your field that has spoken at a medical meeting or society or convention and has stated that stress causes placental abruption?
A. No, sir.
Q. You taught at the University of Miami?
A. Yes, sir. I did.
Q. Medical school?
A. During the residency program I was an attending physician and I taught the residents. Once in awhile [sic] we’d give a lecture to the medical students.
Q. Okay. So the teaching you did was to?
A. Residents.
Q. Fellow residents?
A. No, no, no. I had already graduated and I was the attending physician.
Q. When you were giving those talks, did you ever give a talk where you said there’s a correlation between stress and placental abruption?
A. No, sir.
Q. Have you ever heard of anybody making that statement?
A. I don’t recall.
Q. Okay. You said you have an opinion?
A. Yes, sir.
Q. What is your opinion? This is your personal opinion?
A. Yes, sir. It is; after 21 years of practice, absolutely. If stress can cause a cardiac arrest, causing your blood pressure to go up, to go high, I’m sure there may very well be a correlation between placental abruption and stress,

(emphasis added).

When asked to explain the basis of his opinion in this case, the only rationale Dr. Cardella could muster was that Ms. Perez worked during her first pregnancy, but did not work during the pregnancy leading to the birth of her second child on October 26, 2007. This analysis, argue the appellants, comprises an admissible differential diagnosis supporting Dr. Cardella’s workplace stress theory of placental abruption.

The trial court disagreed. It struck Dr. Cardella’s opinion as inadmissible under Frye. A few months thereafter, the trial court granted Bell South’s motion for summary judgment for failure of the plaintiff to proffer admissible evidence to prove causation. Ms. Perez asserts on appeal that the testimony is admissible as “pure opinion” testimony under Marsh v. Va-lyou, 977 So.2d 543 (FIa.2007).

Analysis

The admissibility of expert testimony in this state is governed by section 90.702 of the Florida Evidence Code. Until recently, there were two avenues under this rule to the admissibility of expert testimony under Florida law. First, if the proposed expert testimony espoused a “new or novel” scientific theory, principle or discovery, then “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.” See Marsh, 977 So.2d at 546 (quoting Frye, 293 F. at 1014) (emphasis added). This path to admissibility is commonly known as the “Frye test.” In Frye, the “thing” the D.C. Circuit found to lack “general acceptance” in its field was the result of a “systolic blood pressure deception test,” an early polygraph. Id.

The second path to admissibility of expert testimony until recently was the “pure opinion” path. Under this path, if the proposed testimony is not “new or novel,” but instead is based upon the expert’s personal experience, observation, and training, the Frye test does not apply to the ultimate opinion of an expert, so long as the methods used to reach the opinion were generally accepted scientific methods under Frye. See Marsh, 977 So.2d at 548-49. Examples of expert testimony found admissible as “pure opinion” include: testimony of a neurologist, based upon clinical experience alone, that the failure of physicians to perform a caesarian operation on a mother in labor caused brain damage to her child at birth, Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005); testimony of an ophthalmologist, based on experience and training, that the exposure of an eye to polychlorinated biphenyles (PCB’s) causes cataracts, Florida Power & Light Co. v. Tursi, 729 So.2d 995, 996-97 (Fla. 4th DCA 1999); testimony of medical experts of recognized relationship or association between trauma and the onset of fibro-myalgia, based on clinical experience, State Farm Mut. Auto. Ins. Co. v. Johnson, 880 So.2d 721, 722-23 (Fla. 2d DCA 2004); see generally 24A Fla. Jur. Evidence, § 1104.

In 2013, the Florida legislature amended section 90.702 of the Florida Evidence Code “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)” and as “reaffirmed and refined” by both General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Ch. 2013-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). In so doing, the Legislature expressed its intent to “prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla.2007).” Id. On July 1, 2013, these revisions to section 90.702 went into effect, changing Florida from a Frye jurisdiction to a Daubert jurisdiction.

The Daubert Test

Although there has been a healthy debate among courts and commentators over whether the Daubert standard for admissibility of expert testimony is more lenient or more strict than the Frye standard which it displaced two decades ago in the federal courts and in some state courts thereafter, the Florida Legislature has settled that debate for the trial and appellate courts of this state. It is the express intent of the Legislature that the courts of this state interpret and apply the principles of expert testimony in conformity not only with Daubert v. Merrell Dow Pharmaceuticals, but also with General Electric Co. v. Joiner and Kumho Tire Co., Ltd. v. Carmichael as well. Ch. 2013-107, § 1, Laws of Fla. (2013). Thus, the Dau-bert test applies not only to “new or novel” scientific evidence, but to all other expert opinion testimony. See Kumho Tire, 526 U.S. at 147-49, 119 S.Ct. 1167 (“The initial question before us is whether this basic gatekeeping obligation applies only to ‘scientific’ testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony.”). Expert testimony that might otherwise qualify as “pure opinion” testimony is expressly prohibited. Ch. 2013-107, § 1, Laws of Fla. (2013). The legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.

Moreover, section 90.702 of the Florida Evidence Code indisputably applies retrospectively. See Window, v. State, 656 So.2d 432, 439 (Fla.1995) (holding that a statute which only relates to the admission of evidence is procedural in nature and does not violate the prohibition against ex post facto laws); Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (“Procedural or remedial statutes ... are to be applied retrospectively and are to be applied to pending cases.”). Although the revisions to section 90.702 came into force after the filing of this appeal, we apply them retrospectively to the facts of this case. We are not the first district court to do so. See Conley v. State, 129 So.3d 1120, 1121 (Fla. 1st DCA 2013).

Under Daubert, “the subject of an expert’s testimony must be ‘scientific knowledge.’” 509 U.S. at 590, 113 S.Ct. 2786. “[I]n order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. (emphasis added). The touchstone of the scientific method is empirical testing — developing hypotheses and testing them through blind experiments to see if they can be verified. Id. at 593, 113 S.Ct. 2786; see also Black’s Law Dictionary 1465-66 (9th ed. 2009) (“[Scientific method [is][a]n analytical technique by which a hypothesis is formulated and then systematically tested through observation and experimentation.”). As the United States Supreme Court explained in Daubert, “This methodology is what distinguishes science from other fields of human inquiry.” Id. at 593, 113 S.Ct. 2786. Thus, “a key question to be answered” in any Daubert inquiry is whether the proposed testimony qualifies as “scientific knowledge” as it is understood and applied in the field of science to aid the trier of fact with information that actually can be or has been tested within the scientific method. Id. “General acceptance” [from the Frye test] can also have a bearing on the inquiry, as can error rates and whether the theory or technique has been subjected to peer review and publication. Id. at 593-594, 113 S.Ct. 2786. Thus, there remains some play in the joints. However, “general acceptance in the scientific community” alone is no longer a sufficient basis for the admissibility of expert testimony. It “is simply one factor among several.” Marsh, 977 So.2d at 547 (citing Daubert, 509 U.S. at 594, 113 S.Ct. 2786). Subjective belief and unsupported speculation are henceforth inadmissible. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786.

Dr. Cardella’s proposed testimony is inadmissible under Daubert. Dr. Car-della had never before related a placental abruption to workplace stress and knew of no one who had. There is no scientific support for his opinion. The opinion he proffers is a classic example of the common fallacy of assuming causality from temporal sequence. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1243 (11th Cir.2005). In logic, the error is known as the post hoc, ergo propter hoc fallacy. See Id. “Here, as elsewhere in the law, propter hoc must be distinguished from post hoc.” Hennigan v. Ouachita Parish Sch. Brd., 749 F.2d 1148, 1152 (5th Cir.1985).

We affirm the decision of the trial court.

      . See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . See Mortimer v. State, 100 So.3d 99, 104 (Fla. 4th DCA 2012) (finding a remand unnecessary where trial court under a newly adopted procedural statute would reach the same result).

      .In a placental abruption, the placenta breaks away prematurely from the uterine wall depriving the baby of nourishment and oxygen.

      . Appellants do not assert a claim for relief based upon Ms. Perez’s termination of employment by Bell South, or that the termination contributed to the premature delivery of Osmany.

      . By separate order, the trial court held that Ms. Perez’s individual claim would be limited to derivative damages by virtue of worker’s compensation immunity. Our disposition of this case makes it unnecessary to consider this limitation.

      . He testified as follows during inquiry by defense counsel:
      Q. So there's really no way of ever knowing what caused this condition to occur in Maria, correct?
      Mr. Anthony: Objection to the form.
      The Witness: No, but I'll tell you what. If you compare this pregnancy—
      Q. No, I was not correct, or no, I was—
      A. No, you are correct. But I will tell you this, if I can add to that. It’s interesting that this pregnancy, when she was working, she made it to 25 or four or seven weeks with placental abruption.
      (emphasis added).

      . Dr. Cardella admitted that there are, in fact, known causes of placental abruption in the literature. These include cocaine abuse, smoking, hypertension, advanced maternal age, multiparity (someone who has had more than one child), placentation (placement of the placenta), uterine fibroids, and, of course, physical trauma such as spousal abuse. Workplace stress is not recognized in the field of medical science as one of the recognized causes of placental abruption.

      . Ms. Perez’s second pregnancy was by no means a perfect comparator. By the time of her second pregnancy, she had contracted a sexually transmitted disease; she had vaginal bleeding with signs of a miscarriage at six and a half weeks; she suffered an infectious disease during the course of the pregnancy, probably food poisoning; and she remained obese — approximately 245 pounds.

      . The pure-opinion testimony exception to the Frye test is not limited to medical expert testimony. See Jones v. Goodyear Tire & Rubber Co., 871 So.2d 899, 902-03 (Fla. 3d DCA 2003) (applying pure-opinion exception to expert testimony regarding tire defects).

      . Section 90.702, as amended, reads as follows:
      If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
      (1) The testimony is based upon sufficient facts or data;
      (2) The testimony is the product of reliable principles and methods; and
      (3) The witness has applied the principles and methods reliably to the facts of the case.
      (revisions emphasized).

      .That this is so is further confirmed by an amendment made to section 90.704 of the Florida Statutes by the same chapter law. As of July 1, 2013, section 90.704 was amended to read:
      The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
      (emphasis added).

      . We recognize the Florida Supreme Court, not the Florida Legislature, is vested by the Florida Constitution with the right and obligation to adopt rules of practice and procedure for the courts of this state. Article V, § 2(a), Fla. Const. We take comfort here in the fact that the Florida Supreme Court periodically adopts all legislative changes to the Florida Evidence Code to the extent they are procedural, see In re Amendments to the Florida Evidence Code, 825 So.2d 339, 341 (Fla.2002), and has already stricken all references to the Frye test from the Florida Rules of Juvenile Procedure and adopted the amendments to section 90.702. See In re Amendments to the Florida Rules of Juvenile Procedure, 123 So.3d 1128, 1129-30 (Fla.2013).

      . This methodology is similarly described as "falsification.” See K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability or testability.”).

      . Translated from the Latin, post hoc ergo propter hoc literally means "after this, therefore because of this." Black's Law Dictionary 1285 (9th ed. 2009).


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    D.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1125.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.

      Carlos J. Martinez, Public Defender, and Robert Kalter and Natasha Baker-Bradley, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

D.L., a juvenile, appeals the trial court’s order denying his motion for judgment of dismissal and conviction for trespass. We reverse because the State’s evidence was insufficient to support an adjudication for trespass.

The State charged D.L. with multiple counts related to the theft of an automobile. On November 27, 2012, Miami-Dade Police identified the location of a stolen Volkswagen Jetta and set up surveillance in the surrounding area. Officer Mario Del Los Santos testified that he observed four individuals enter the vehicle. As Officer Del Los Santos approached the vehicle from the rear with his police cruiser, the driver of the Jetta put the vehicle in reverse and collided with the police cruiser. Officer Del Los Santos then saw D.L. exit the driver’s side of the vehicle and run past his police cruiser.

Officer Danny Fals testified that he saw D.L. drive the Jetta, and that after the crash, D.L. exited the vehicle and fled. Officer Fals also testified that he may have told the fellow officer who compiled the report that D.L. sat in the rear behind the driver’s seat. He explained, alternatively, that he might have stated that D.L. was the driver, but that the officer who wrote the report may have mixed up the facts.

The State introduced evidence of damage to the interior of the Jetta. Officer Kevin Williams testified that the keyhole in the ignition was “punched,” meaning that someone tampered with the ignition as a means of starting the vehicle without its key. The keyhole was enlarged to approximately twice the size of a normal keyhole. Daniel Gonzalez testified that when the police returned his vehicle to him, he observed that the original seat covers were missing and some of the upholstery was damaged.

The defense moved for judgment of dismissal on all counts arguing that the State failed to prove D.L. was the driver, and that D.L. lacked knowledge of the vehicle’s stolen nature. The State argued there was consciousness of guilt because of D.L.’s flight, the damaged upholstery and the punched ignition. The trial court granted the motion in part, dismissing two counts of criminal mischief, stating “I have no idea who broke the upholstery or the steering column.” The trial continued as to the other counts.

Defense witness Acel Franco testified that he was also a passenger in the Jetta on the night of November 27, 2012. He stated that D.L. sat next to him in the backseat behind the driver. Franco said he was aware the vehicle was stolen from a conversation he had with the driver named Franklin. D.L. was not present during that conversation.

The trial court ultimately found D.L. not guilty on all counts associated with being the driver, namely: aggravated battery, aggravated assault, burglary and fleeing and eluding. The trial court nevertheless found D.L. guilty of trespass, stating that “his flight convinces me that he had knowledge of the stolen nature of this vehicle, and that his entry into the vehicle would be trespass.” D.L. argues on appeal that the trial court erred when it denied his motion for judgment of dismissal and found him guilty of trespass because the State failed to prove that he knew the vehicle was stolen.

We review the trial court’s denial of D.L.’s motion for judgment of dismissal de novo. L.J. v. State, 971 So.2d 942, 943 (Fla. 3d DCA 2007). We view the evidence and all reasonable inferences in a light most favorable to the State. J.W.J. v. State, 994 So.2d 1223, 1224 (Fla. 1st DCA 2008). So long as competent, substantial evidence supports the verdict, the denial of a motion for judgment of dismissal will not be reversed on appeal. Id. at 1225.

We disagree with the State that D.L.’s conviction for trespass was supported by competent, substantial evidence. Section 810.08(1), Fla. Stat. (2012), provides: “Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance ... commits the offense of trespass in a structure or conveyance.” Where, as here, the trespass involves a stolen vehicle, the State is required to prove the defendant’s knowledge of the vehicle’s stolen nature. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003); J.D. v. State, 604 So.2d 936, 937 (Fla. 3d DCA 1992)(upholding a conviction for trespass when the trial court was entitled to believe based on the evidence that the defendant had knowledge the vehicle was stolen and willfully entered the vehicle with that knowledge).

The State failed to present any evidence to establish that D.L. knew or should have known that the vehicle was stolen. Furthermore, it is unclear whether D.L. was the driver or a backseat passenger due to Officer Fals’ conflicting testimony, and although the State presented additional evidence of the punched ignition, the State did not present evidence that one could see the ignition from the backseat. Moreover, the trial court, as trier of fact, made a specific finding that D.L. was not the driver.

While evidence of flight is admissible and relevant to demonstrate a defendant’s consciousness of guilt, see Escobar v. State, 699 So.2d 988, 995 (Fla.1997), flight, standing alone, is insufficient to warrant a verdict of guilty. R.M. v. State, 763 So.2d 1060, 1062 (Fla. 4th DCA 1999). Thus, D.L.’s conviction was not supported by competent, substantial evidence sufficient to support an adjudication for trespass.

Accordingly, the trial court erred when it denied D.L’s motion for judgment of dismissal, and we reverse D.L.’s conviction for trespass.


author: PER CURIAM.

text:
    Phillip ROSENFELD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1486.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.
    Rehearing Denied May 28, 2014.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

We affirm Phillip Rosenfeld’s judgment of conviction and sentence in all respects, but remand for the trial court to correct the order of probation to reflect Rosenfeld was found guilty by jury verdict.


text:
    Hilda IZQUIERDO, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-3405.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.
    Hilda Izquierdo, in proper person.
    Amanda L. Neff, Senior Attorney, (Tallahassee), for appellee Reemployment Assistance Appeals Commission.
    Before LAGOA, SALTER, and LOGUE, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Appellant, Hilda Izquierdo, appeals an order of the Commission. The Appellee Commission concedes that the referee’s decision finding that Appellant’s actions were fraudulent are erroneous and that the elements of fraud have not been met. See Grover v. Brumell Investigations, Inc., 915 So.2d 750 (Fla. 2d DCA 2005); Dawkins v. Florida Indus. Comm’n, 155 So.2d 153 (Fla. 2d DCA 1963). Based on this proper confession of error, we find that there was insufficient evidence for the referee to conclude that Appellant knowingly falsified her wage reports. Accordingly, the Commission’s order affirming the referee’s finding that Appellant was disqualified on the basis of fraud is reversed, and the cause is remanded for a recalculation of Appellant’s remaining overpayment, if any.

REVERSED AND REMANDED.


text:
    Aleida Martinez MOLINA, Appellant, v. Andrew S. YAGODA, Appellee.
    No. 3D13-1040.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.

      Maria L. McMillan, P.A.; Law Offices of Greene Smith & Associates, P.A., and Cynthia L. Greene, Sonja Jean, and Lissette Gonzalez, for appellant.
    Lisa A. Baird, P.A., and Lisa A. Baird, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   PER CURIAM.

We affirm because competent, substantial evidence supported the general magistrate’s findings. See Rodriguez v. Reyes, 112 So.3d 671, 674 (Fla. 3d DCA 2013) (“Witness credibility, like all disputed issues of fact, is a determination left to the finder of fact.”).


author: COHEN, J.

text:
    Donald COLVIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1555.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2014.
    Donald E. Colvin, Satsuma, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Donald Colvin appeals from the Corrected Order of Modification of Sex Offender Probation entered after he pleaded no contest to violating his probation. We affirm.

In 2008, Colvin pleaded no contest to three counts of lewd or lascivious conduct and was sentenced to nine years’ imprisonment followed by three years of sex offender probation. Within a year of Col-vin’s release from prison, the State charged him with violating his probation. Colvin subsequently entered a no contest plea to the violation of probation charge. Pursuant to the plea, the trial court entered an Order of Modification of Sex Offender Probation, which extended Colvin’s probation for an additional two years. Ten days later, the court entered a Corrected Order of Modification of Sex Offender Probation. The only difference between the two orders is the addition of paragraph 5, which requires Colvin to submit to electronic monitoring “as required by the Jessica Lunsford Act.” Colvin timely appealed.

Colvin raises several issues on appeal, only one of which merits discussion. He argues that the trial court’s imposition of electronic monitoring pursuant to section 948.063, Florida Statutes — the Jessica Lunsford Act — violates the constitutional prohibition against ex post facto laws because the underlying offenses were committed before that statute’s enactment. He cites Witchard v. State, 68 So.3d 407 (Fla. 4th DCA 2011), for support. In Witchard, the Fourth District held that the trial court violated the constitutional prohibition against ex post facto laws by imposing electronic monitoring on a probationer whose offenses were committed pri- or to the passage of the Jessica Lunsford Act. Id. at 410. The Witchard court noted that its holding was inconsistent with this Court’s decision in State v. Petrae, 35 So.3d 1012 (Fla. 5th DCA 2010). We disagree with that assessment, however, because unlike in Witchard, the appellant in Petrae did not raise an ex post facto challenge.

While Witchard provides support for Colvin’s argument, his failure to preserve this issue is fatal to his appeal. Florida Rule of Appellate Procedure 9.140(e) provides that “[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” In Brannon v. State, 850 So.2d 452, 456 (Fla.2003), the supreme court held that “for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.” Because Colvin failed to provide a transcript of the violation of probation hearing, we are unable to determine whether he objected to the alleged error. Moreover, it appears that Colvin has not filed a rule 3.800(b) motion. Accordingly, we must affirm. We note that our affirmance is without prejudice to Colvin’s right to seek relief through a motion filed pursuant to either Florida Rule of Criminal Procedure 3.800(a) or 3.850.

AFFIRMED.

WALLIS, J., concurs.

EVANDER, J., concurs in result only.

      . In his brief, Colvin alludes to the filing of a motion to correct illegal sentence pursuant to rule 3.800(a). No such motion is contained within the record on appeal, however.


text:
    J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2989.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2014.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant was charged with and adjudicated delinquent of three counts of possessing with intent to transmit or show obscene matter, in violation of section 847.011(l)(a) & (c), Florida Statutes (2012). He argues on appeal that his adjudication on all three counts violates double jeopardy because he only possessed one obscene video. The State counters that the three separate adjudications should be affirmed because Appellant displayed the video on three occasions to three different individuals. We agree with Appellant. The possession of the obscene material was the unit of prosecution. Because possession is a continuing crime, only one adjudication can be sustained. Lints v. State, 643 So.2d 689, 690 (Fla. 5th DCA 1994). This is not a case where Appellant possessed the same item on several occasions due to a break or interruption, such as in Bailey v. State, 637 So.2d 333 (Fla. 2d DCA 1994).

REVERSED AND REMANDED.

TORPY, C.J., and EVANDER and COHEN, JJ., concur.


text:
    Mikhail FOUNTAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5043.
    District Court of Appeal of Florida, First District.
    April 28, 2014.
    Mikhail Fountain, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Tommy GREEN, Sr., Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D14-0297.
    District Court of Appeal of Florida, First District.
    April 28, 2014.
    Tommy Green, Sr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

DISMISSED. Sprint v. Florida Parole Comm’n, 933 So.2d 1218 (Fla. 1st DCA 2006).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Clarence Christopher O’NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0920.
    District Court of Appeal of Florida, First District.
    April 28, 2014.
    Clarence Christopher O’Neal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Clarence PERKINS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1085.
    District Court of Appeal of Florida, First District.
    April 28, 2014.
    Clarence Perkins, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Joseph Christian FONTANA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1585.
    District Court of Appeal of Florida, First District.
    April 28, 2014.
    Joseph Christian Fontana, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Keith Eric LANCASTER, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-1623.
    District Court of Appeal of Florida, First District.
    April 28, 2014.
    Keith Eric Lancaster, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Johnathan EDWARDS-FREEMAN, Joseph Baldino, Doreen Baldino, Franchilor Devalon, Thomas Barnard, Ashley N. Minton, Jasper Dempsey, and Armando Cuevas, Petitioners, v. STATE of Florida, Respondent.
    No. 4D14-431.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2014.

      Ashley N. Minton of Minton Law, P.A., Fort Pierce, for petitioners.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for respondents.
   PER CURIAM.

Seven defendants with pending felony cases and their defense counsel petition for a writ of prohibition seeking a blanket disqualification of Judge Belanger from all cases involving defense counsel. We grant the petition as to the motions for disqualification filed by these petitioners. But we deny the request for a blanket disqualification of the judge.

In October 2010, defense counsel filed a complaint against Judge Belanger with the Judicial Qualifications Commission (“JQC”) regarding events in different cases that occurred over a few years. After filing the complaint, defense counsel moved to disqualify the judge in all cases that she had before him. He granted motions to disqualify in seven cases between October 2009 and June 2013. He then sua sponte recused himself in four additional cases between September 24, 2013 and January 2, 2014 where defense counsel noticed her appearance.

On January 13, 2014, the judge was reassigned to another criminal division that handles a large volume of felony cases. On January 21, 2014, the judge’s judicial assistant informed defense counsel that the judge would no longer automatically recuse himself, and that defense counsel needed to move for disqualification of the judge.

Defense counsel filed motions for the seven petitioners in this case on the same basis as the motions the judge had previously granted. He denied the current motions stating “a trial judge’s comments of mere frustration, admonishment, or annoyance with counsel’s mannerisms, tactics, or abilities is usually not sufficient to infer or impute prejudice toward the defendant or a party” and that “adverse rulings are not grounds for recusal.”

We agree with petitioners that the motions for disqualification were not based on adverse rulings and that the judge’s comments were not mere frustration or admonishment of counsel. Among other grounds, the motions referred to comments the judge made about defense counsel to a pro se litigant in an unrelated case on September 24, 2010, after defense counsel had not appeared before the judge for some time.

A judge reporting an attorney to the Bar or an attorney reporting a judge to the JQC alone is insufficient to require disqualification. 5-H Corp. v. Padovano, 708 So.2d 244, 248 (Fla.1997). But, a judge’s animosity towards counsel may require disqualification. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). “[A] judge may be disqualified due to prejudice towards an attorney where the prejudice ‘is of such degree that it adversely affects the client.’ ” Id. (quoting Ginsberg v. Holt, 86 So.2d 650, 651 (Fla.1956)). Disqualification may also be required where the judge has previously granted disqualification on the same grounds. State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005)).

The judge’s comments about defense counsel to a pro se defendant were inappropriate and gave the petitioners and defense counsel reason to fear that the judge was biased. The remarks appear to comment on defense counsel’s character and were not related to any action that could reasonably have provoked the judge or warranted admonishment.

“Whether disqualification is required depends on the nature of the dispute and the length of time which has transpired since the dispute.” Jarp v. Jarp, 919 So.2d 614, 615-16 (Fla. 3d DCA 2006).

A judge’s gratuitous remarks about counsel or her character undermine respect for the judiciary and the proceedings and leave an impression that the judge is not fair and impartial. The motions contained allegations sufficient for disqualification. The trial judge attempted to characterize these as simply an expression of annoyance at counsel, but such a characterization in effect challenges the facts as set forth in the sworn motion, which a trial judge may not do. See Fla. R. Jud. Admin. 2.330(f).

This petition demonstrated a preliminary basis for relief, and we issued an order to show cause why it should not be granted. The attorney general’s response indicated that the state contacted the judge for comment on this petition. The judge informed the state that he was granting the motions before January 2014 when he was handling only violation of probation cases, but he denied them after he was reassigned to a felony division because he was concerned that a blanket recusal would affect the other judges in the division and lead to forum shopping.

Petitioners reply that the state’s recent ex parte communication with the judge and his explanation for why he denied these motions are not a proper basis to deny this petition. In fact, they provide an additional reason to fear the judge is prejudiced against defense counsel. The petitioners stress that the judge, until recently, found the motions for disqualification facially sufficient. They seek blanket disqualification of the judge, a remedy that is disfavored. R.M.C. v. D.C., 77 So.3d 234, 237 (Fla. 1st DCA 2012) (citing Ginsberg, 86 So.2d at 651-52).

We agree with petitioners that the state should not rely on ex parte communication with the judge to try to refute the motions. See Valltos v. State, 707 So.2d 343 (Fla. 2d DCA 1997). As the Second District warned in J & J Industries, Inc. v. Carpet Showcase of Tampa Bay, Inc., 723 So.2d 281 (Fla. 2d DCA 1998):

Trial judges should exercise extreme caution attempting to defend their actions in prohibition actions such as this, either pro se, through the offices of the attorney general, or through counsel of their own choosing.... A response filed on behalf of the trial judge may create an intolerable adversary atmosphere between the trial judge and the litigant which itself may serve as the basis for disqualification.

Id. at 283. It is safer for the judge to remain silent and let the opposing party respond to the petition. Ellis v. Henning, 678 So.2d 825, 828 (Fla. 4th DCA 1996).

We therefore grant the petition in part and quash the orders denying the motions for disqualification as to these petitioners only.

Petition granted in part.

WARNER, GROSS and MAY, JJ„ concur.


author: FORST, J.

text:
    Nathan BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1225.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Nathan Brown, East Palatka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Nathan Brown appeals an order summarily denying his rule 3.850 motion. We affirm in part and reverse in part.

On April 16, 2010, Brown entered an open guilty plea to three drug offenses and was sentenced concurrently to ten years for each of counts I and II, along with a three-year mandatory minimum for count I, and to time served for count III. In his rule 3.850 motion, he raised three claims of ineffective assistance of counsel, which he later supplemented with a fourth ground for relief. The trial court summarily denied the motion, and Brown appealed. This court issued an order to show cause as to the first and third grounds. We now affirm as to the first, second, and fourth grounds without further discussion, but we remand for an evidentiary hearing on the third ground for relief.

With respect to the third ground, Brown claimed his defense counsel was ineffective in conveying a plea offer. He alleged that approximately a month before his mid-April 2010 trial date, his attorney visited him in jail to inform him the state had offered a sentence of forty months in prison if Brown would plead guilty. In weighing this offer, Brown questioned counsel as to whether he had any defenses. Counsel told him to call him at Ms office if he wished to accept the offer; he did not tell Brown that the offer would be available for only a certain amount of time. Brown testified that he thought about the offer the rest of the day and concluded it was in his best interest to accept the offer. The next day, he phoned his attorney “all day” to tell him he wanted to accept the offer, but was never able to speak with him. Brown left several messages to return his call, but counsel never did. One or two weeks before the trial date, counsel advised him he would have no defenses if he went to trial. Brown told him he wanted to accept the state’s offer of forty months — but counsel told him it no longer was available. Brown asserts that, if counsel had merely returned his calls, he would have been sentenced to forty months. Furthermore, if there was a time limit on the offer, Brown maintains that counsel should have told him what it was. He argued that the failure to give him an opportunity to accept the offer was equivalent to failing to convey it.

The state argued Brown failed to meet the pleading requirement that he allege counsel either failed to convey a plea offer or misinformed the defendant concerning the sentence he faced, citing Morgan v. State, 991 So.2d 835 (Fla.2008).

In his motion for rehearing, Brown emphasized that his factual allegations must be taken as true and they entitled him to relief under Malespin v. State, 873 So.2d 596 (Fla. 3d DCA 2004). In Malespin, the court reversed the trial court’s summary denial of a post conviction claim that counsel failed to inform defendant that the state’s fifty-month plea offer would be available for only one day. The court found that the defendant’s allegation that, had he known the offer was available for one day only, he would have accepted it, was legally sufficient to remand for a hearing to determine whether the offer was to be withdrawn after one day and, if so, whether defendant was so informed. Id. at 596-97. Brown argues similarly on appeal, noting he did all he could to advise counsel he wanted to accept the state’s offer but was unable to do so.

In its response to this court, the state argues this is not a case of failure to convey a plea offer and that Brown’s claim was speculative, Malespin is of no value, and that a lost offer is not actionable, citing Hurt v. State, 82 So.3d 1090, 1093 (Fla. 4th DCA 2012) (“[T]he lost plea offer has no impact whatsoever on the defendant’s subsequent voluntary and intelligent plea.... A lost plea offer should not be an actionable basis for an ineffective assistance of counsel claim.”). However, Hurt issued in January 2012. In March 2012, the United State Supreme Court issued Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (concerning defendant who goes to trial after rejecting a plea offer due to ineffective assistance of counsel), and Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (concerning counsel’s failure to convey a plea offer before it expires). These opinions establish that a lost plea offer can be an actionable basis for a claim of ineffective assistance of counsel.

After the issuance of Lafler and Frye, in Alcorn, 121 So.3d at 422, the Florida Supreme Court receded from Cottle v. State, 733 So.2d 963 (Fla.1999) (concerning failure to convey a plea offer or misadvising defendant about possible sentence), and Morgan (extending Cottle to misadviee of counsel to reject a plea offer). Alcorn concerned a claim that counsel failed to inform the defendant of the maximum penalty he faced before he rejected a plea offer. Based on Lafler and Frye, the Florida Supreme Court held that now, to show prejudice when a defendant alleges counsel failed to correctly inform the defendant of the maximum penalty that he/she faced before rejecting the plea offer, the defendant must demonstrate a reasonable probability, sufficient to undermine confidence in the outcome, that the defendant would have accepted the offer had counsel advised the defendant correctly, the prosecutor would not have withdrawn the offer, the court would have accepted the offer, and the conviction or sentence yrould have been less severe than under the judgment and sentence that were imposed. Alcorn, 121 So.3d at 430.

We agree with Brown that his counsel’s conduct in allegedly telling him to call his office if he wished to accept the plea offer, but then neither taking nor returning his calls the next day, without telling him there was a deadline for accepting, may be tantamount to failing to communicate a plea offer. See Malespin, 873 So.2d at 596-97. We thus remand for an evidentiary hearing on this ground. If Brown’s allegations are found to be supported, the Alcorn test must then be applied. In all other respects, we affirm.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR and CIKLIN, JJ., concur.

      . After the state had filed its response below, the Florida Supreme Court receded from Morgan in Alcorn v. State, 121 So.3d 419 (Fla.2013).


author: SALTER, J.

text:
    Dominic James DIODATO, etc., Appellant, v. ISLAMORADA ASSET MANAGEMENT, INC., etc., et al., Appellees.
    Nos. 3D12-2276, 3D12-3393.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Thomas A. Culmo; Elizabeth K. Russo, Miami, for appellant.
    Steven G. Schwartz and Mark A. Hrus-ka, Boca Raton, for appellees.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SALTER, J.

Dominic Diodato, as personal representative of the estate of his late wife, Aviva Diodato, appeals a final summary judgment in favor of the defendants/appellees, owners and participants in a recreational scuba diving operation known as “Key Dives” in Monroe County, Florida. Mrs. Diodato drowned on April 15, 2010, returning to a dive boat off Islamorada. This occurred at the very beginning of what was to have been an advanced open water dive to the wreck of the Eagle.

The final summary judgment in favor of the defendants was based on printed releases signed by Mr. and Mrs. Diodato during a prior visit to the Keys in 2009 and again for a shallow reef dive the day before the tragedy. The trial court rejected Mr. Diodato’s argument and evidence that the dive operators had failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day of the tragedy.

Applying well-settled Florida law disfavoring and narrowly construing exculpatory clauses, we reverse and remand for further proceedings. The scope and duration of the “activity” to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.

Facts

The trial court’s order recounts the primary elements of Mrs. Diodato’s tragic accidental drowning:

It was the practice of Key Dives to require their customers to sign a release immediately prior to a day’s dive. Each of the Diodatos signed a release in favor of Key Dives, and those connected with Key Dives, on August 29, 2009. On the reverse side of the releases, they initialed boxes stating, “[t]his release is valid for one year from the date of this release.” On April 14, 2010, again before a dive, the Diodatos signed other releases; this time they did not initial the box providing for the one-year operative period. They dove that day. On the morning of the April 15, 2010, dive, the dive fatal to Aviva, the Diodatos were late in arriving, and did not sign a release. This final dive was to be a wreck dive to a ship called the Eagle. It was to be an advanced open water dive, a dive for which, according to the Plaintiff, dive industry standards dictated a particular form of release must be used.
On the morning of the dive, Aviva Diodato showed apprehension about diving. Though the reason for her apprehension will never be known, ocean swells were estimated to be between four and five feet. Dive instructor, now defendant, Leslie Peaker, and Dominic Diodato entered the water first. Aviva followed, but, after only submerging to a depth of approximately ten feet, she signaled to Peaker that she wanted to surface. She surfaced with Peaker accompanying her. He did not help her on board. Aviva reached for and held on to the boat’s granny line, but lost her hold and drifted away from the boat. The boat’s captain, and now defendant, Scott Alan Lorenc[e], sounded an alarm. After a brief search, she was found floating, but drowned.

There are additional facts in the record, including the specific language of the three forms of printed release (August 25, 2009; April 14, 2010; and the form Key Dives intended to obtain before the wreck dive on April 15, 2010), that affect the analysis. The Diodatos were residents of Arizona and obtained their initial PADI certification there. Their scuba training and four open water certification dives were in an Arizona lake in August 2009, a few days before their first reef dives in the Florida Keys.

The August 25, 2009, release was signed by Mrs. Diodato in connection with a series of six open water dives over a period of four days:

LIABILITY RELEASE & EXPRESS ASSUMPTION OF RISK
Please read carefully, fill in all blanks and initial each paragraph before signing.
I, (printed name) Aviva Diodato, HEREBY DECLARE THAT I AM A CERTIFIED SCUBA DIVER, TRAINED IN SAFE DIVING PRACTICES, AND AM AWARE OF THE INHERENT HAZARDS OF SKIN AND SCUBA DIVING.
[Initials ] I understand and agree that neither Islamorada Asset Mgmt., Inc. dba KEY DIVES; nor the dive supervision staff; nor International PADI, Inc., nor any of their respective employees, officers, agents or assigns (hereinafter referred to as “Released Parties”), may be held liable or responsible in any way for any injury, death or other damages to me or my family, heirs, or assigns that may occur as a result of my participation in this activity, or as a result of product liability or the negligence of any party, including the Released Parties, whether passive or active.
[Initials ] I understand that diving with compressed air involves certain inherent risks, including but not limited to, air expansion injuries, decompression sickness, embolism and drowning. Hyper-baric injuries can occur that require treatment in a recompression chamber. I further understand that this activity may be conducted at a site that is remote, either by time or distance or both, from such a recompression chamber. I still choose to proceed with such activity in spite of the possible absence of a recompression chamber in proximity to the dive site.
[Initials ] I declare that I am in good mental and physical fitness for diving, and that I am not under the influence of alcohol, nor am I under the influence of any drugs that are contra-indicatory to diving. If I am taking medication, I declare that I have seen a physician and have approval to dive while under the influence of the medication/drugs.
[Initials ] I understand that skin and scuba diving are physically strenuous activities and that I will be exerting myself during this activity and that if I am injured as a result of heart attack, panic, hyperventilation, etc., that I assume the risk of said injuries and that I will not hold the Released Parties responsible for the same.
[Initials ] I will inspect all of my equipment prior to the activity. I will not hold the Released Parties responsible for my failure to inspect my equipment prior to diving.
[Initials ] In consideration of being allowed to participate in this activity, I hereby personally assume all risks in connection with the dive(s) for any harm, injury or damage that may befall me while I am a participant, including all risks connected therewith, whether foreseen or unforeseen.
[Initials ] I further save and hold harmless said activity and Released Parties from any claim or lawsuit for personal injury, property damage, or wrongful death, by me, my family, estate, heirs, or assigns, arising out of my participation in this activity, including both claims arising during the activity or after I complete the activity.
[Initials ] I further declare that I am of lawful age and legally competent to sign this liability release, or that I have acquired the written consent of my parent or guardian.
[Initials ] I understand that the terms herein are contractual and not a mere recital, that this instrument is a legally binding document, and that I have signed this document of my own free act.
I, (printed name) Aviva Diodato, BY THIS INSTRUMENT DO HEREBY EXEMPT AND RELEASE ISLAMO-RADA ASSET MGMT., INC. d/b/a KEY DIYES, AND THE DIVE SUPERVISION STAFF, AND INTERNATIONAL PADI, INC., AND ALL RELATED ENTITIES AS DEFINED ABOVE, FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO PRODUCT LIABILITY OR THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.
I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS LIABILITY RELEASE AND ASSUMPTION OF RISK BY READING IT BEFORE I SIGNED IT ON BEHALF OF MYSELF AND MY HEIRS.
(Aviva Diodato signature) 8/25/09
Signature of Participant Date

As already noted, Mrs. Diodato also initialed a provision on the reverse side of the form which stated: “This release is valid for one (1) year from the date of this release.” Although the record on this point is not explicit, it appears that the “activity,” referred to ten times in the body of the release, contemplated and paid for by the Diodatos in August 2009, was a series of six open water reef dives (maximum depths ranging from twenty to thirty-five feet) over four days, August 25-28, 2009. There is no summary judgment evidence indicating that, at the time the Dio-datos signed the 2009 form, they contemplated (much less made payment for) the 2010 advanced open water dive.

Following the August 2009 dives, Mrs. Diodato’s dive manual next recorded three more lake dives in Arizona. On April 14, 2010, the Diodatos returned to Key Dives and Islamorada for additional dives. The April 14, 2010 release signed by Mrs. Dio-dato was the same printed form as she had signed on August 25, 2009, but this time she did not sign or initial the “valid for one year” provision on the back of the form. According to the instructor, the dive in question was a recreational “shallow reef’ dive to prepare them to participate in an advanced open water, much deeper dive the following day.

For the April 15, 2010, wreck dive, Key Dives procedures required a different form of release. The caption of the form included “boat travel,” and the scope of the release referred to an “Excursion” (consisting of “scuba diving including those hazards occurring during boat travel to and from the dive site”) rather than an “activity.” The April 15 form included specific reference to additional hazards that were not a part of the August 25, 2009, or April 14, 2010, releases: “slipping or falling while on board, being cut or struck by a boat while in the water; injuries occurring while getting on or off a boat, and other perils of the sea; all of which can result in serious injury or death.” The form also included spaces to indicate whether the passenger/diver had diver accident insurance and, if so, the policy number.

The parties are on common ground that the Diodatos’ instructor for the April 15 advanced open water dive intended to have the Diodatos sign the “Excursion” form of release, but did not do so because they were twenty minutes late arriving at the dock. The instructor testified that two other participants in the dive were waiting on the boat, and “It takes about half an hour to go through the knowledge review, plus the paperwork.” He intended to have the Diodatos sign the papers “when we got back.” And in contrast to the “recreational” reef dive the preceding day, the April 15 wreck dive was characterized by the instructor as a “deep dive.” The instructor testified at his deposition that “There is no reference, except for the [descent] line. Sometimes people get a little bit unnerved by that, and that is what I felt happened to [Mrs. Diodato].”

The trial court granted the defendants’ motion for final summary judgment based on the language of the August 25, 2009, release (including the “valid for one year” provision on the back of the form) and the April 14, 2010, release. These appeals followed.

Analysis

Under Florida Rule of Civil Procedure 1.510(c) and Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), the appellees were entitled to summary judgment only if the pleadings, affidavits, depositions, discovery responses, and other evidence in the record establish that there is no genuine issue of material fact, such that the appellees were entitled to such a judgment as a matter of law. Our review is de novo.

We review the exculpatory provisions in the August 25, 2009, and April 14, 2010, releases under the well-settled principle that such clauses are disfavored and are narrowly construed:

Exculpatory clauses are disfavored and are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away. Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001).

Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006).

In the case at hand, another aspect of contract interpretation comes into play as well. A release containing exculpatory language is part of a commercial transaction having a discernible scope and term. “Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity.

A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck dive, for example. The pre-activity “knowledge review” described in the instructor’s testimony in this case was plainly calculated to communicate the risk of an advanced activity to the participant about to be asked to initial and sign a form of release. The textual question is whether a particular exculpation clause extends to any and all scuba dives, irrespective of risk and skill level, or whether that clause is limited to the instruction and activity for which payment has been made and risks disclosed.

Examining the two releases signed by Mrs. Diodato in this case (and reprinted in full above), it is apparent that each refers to an “activity” ten times:

... any injury, death, or other damages to me.. .that may occur as a result of my participation in this activity, or as a result of product liability or the negligence of any party...
I further understand that this activity may be conducted at a site that is remote... I still choose to proceed with such activity in spite of the possible absence of a recompression chamber in proximity to the dive site.
I understand that skin and scuba diving are physically strenuous activities and that I will be exerting myself during this activity...
I will inspect all of my equipment prior to the activity...
In consideration of my being allowed to participate in this activity, I hereby personally assume all risks in connection with the dive(s) for any harm, injury or damage that may befall me while I am a participant....
I further save and hold harmless said activity and Released Parties from any claim or lawsuit ... arising out of my participation in this activity, including both claims arising during the activity or after I complete the activity.

“Activity” is not defined in the releases signed by Mrs. Diodato, but the record does demonstrate that the August 25, 2009, release was signed in connection with six open water reef dives over the course of four days. Similarly, the April 14, 2010, release involved a “shallow reef’ or “regular” dive led by an instructor to prepare for the following day’s deep water wreck dive.

The April 15 dive was to be a qualifying dive for the higher-level “advanced open water” PADI certification. Thus the “activity” that is the subject of the April 14 release is different from the definition of “Excursion” in the form of release that Key Dives procedure specified was to be executed by the Diodatos before the April 15 boat trip and offshore “deep dive.” The “Excursion” form also would have permitted the parties to state in writing whether “diver accident insurance” had been purchased.

Recognizing these differences in the signed and unsigned forms of release at issue here, we turn next to the case law relied upon by the parties. At the outset, we are unpersuaded by the “abandonment by conduct” case law advanced by Mr. Diodato. Cases such as Painter v. Painter, 823 So.2d 268 (Fla. 2d DCA 2002), and Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973), hold that a party may waive or abandon contract rights by taking action inconsistent with those rights, but in the case at hand there is no indication that Key Dives waived or abandoned the signed releases to the extent of the “activity” encompassed by each. Had the April 15, 2010, dive been a continuation of the basic open water instruction contracted for by the Diodatos in 2009 (and thus a part of the “activity” knowingly contracted for by the parties at that time), the scope and term (because of the one-year clause) of the 2009 release would apply. Had the April 15, 2010, advanced open water dive involved the same “activity” and level of risk inherent in the “regular” and “shallow reef’ dive of April 14, 2010, the scope and term of that release would apply.

Instead, the defendants’ April 15 form recognized a different activity and level of risk, expressly defining this activity as an “Excursion” and including within it the hazards of scuba diving as well as “injuries occurring while getting on or off a boat, and other perils of the sea,” a category of harm not addressed in the signed releases. And because the defendants’ prescribed form was not presented or signed, we will never know whether Mrs. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form.

We conclude that the analysis in this case turns on: the ambiguity in the term “activity” as used (in the singular) to cabin the scope of the signed releases; the appellees’ concession that a more extensive definition was necessary for the April 15 boat trip and dive; and the settled Florida law that such pre-claim exculpatory clauses “are disfavored and thus enforceable only to the extent that the intention to be relieved from liability is made clear and unequivocal.” Hackett v. Grand Seas Resort Owner’s Ass’n, Inc., 93 So.3d 378, 380 (Fla. 5th DCA 2012) (reversing summary judgment because the “level of ambiguity” in an exculpatory clause was simply “too great to permit enforcement”).

The trial court’s order granting final summary judgment cited Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 29 Cal.Rptr.2d 177 (1993). In that case, the decedent had signed a skydiving release approximately three years before a tragic accident in which he fell to his death in the Pacific Ocean. The decedent’s estate and daughter argued that the release made no reference to jumps involving heightened risk “over large bodies of water or in particular weather conditions.” The California Court of Appeal found the release to be enforceable. The exculpatory provisions in that case, however, involved “parachuting activities” (plural in each reference) without limitation, and the record demonstrated that the decedent was “a highly qualified and licensed skydiver who had made over 900 skydives prior to the fatal jump which gave rise to this action.” The record also showed he had jumped over the same area (near the coastline) a year before the fatal jump. There was no testimony or documentary evidence to suggest that the releasee in Paralifi required different forms for different types of jumps involving different levels of certification and risk.

Finally, it is apparent that the signed 2009 and 2010 releases in the present case could be slightly modified to be “clear and unequivocal,” using words “so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away,” Cain, 932 So.2d at 578, by expanding the scope from the “activity” at the time the release is executed to include, for example, any and all future courses of instruction, programs, scuba dives, certification levels, and dive-related boat travel, undertaken by the releasor.

Conclusion

Floridians and visitors to our State are generally free to engage in hazardous recreations such as jet-skiing, para-sailing, skydiving, scuba diving, rodeo competitions, and auto races (to name a few), and to assume contractually all risks associated with those recreations before engaging in them. It remains the case, however, that we disfavor and narrowly construe such pre-claim exculpatory terms. Applying that rule of construction to the record in this case, and under the rigorous standards applicable to our de novo review of a summary judgment, we are constrained to reverse the final summary judgment and the judgment for costs.

Reversed and remanded for further proceedings.

      . Though captioned and referred to as "releases,” the provisions at issue here are actually pre-claim exculpatory clauses.

      . The actual date on these releases was August 25, 2009.

      . PADI is the acronym for the Professional Association of Dive Instructors.

      . Mr. Diodato appealed the order granting the defendants’ motion for final summary judgment, Case No. 3D 12-2276, and later the final judgment itself, which included a provision taxing costs, Case No. 3D12-3393. The appeals were consolidated for all purposes.

      . This explains the logic or necessity for checking the "valid for one year” clause on the back of the form. That provision eliminated the necessity for signing a separate form for each of the six open water dives. It does not necessarily follow that it applied to any then-uncontracted-for, higher-risk, separately-purchased deep water dives ten months later. By inference (and inferences must be indulged in favor of the non-movant), this is why Key Dives required a new release on April 14, 2010, on the return visit within the one-year period, instead of relying on the "valid for one year” provision in the August 2009 release.

      . In those cases, the party entitled to enforce a contractual provision unequivocally revoked or waived its right to enforce the provision. In the present case, the appellees never suggested by word or deed that the signed releases had expired or been superseded. The question is whether those releases applied to every aspect of the Diodatos’ different "activity” on April 15th.

      . We must respectfully disagree with the conclusion in the order granting summary judgment that the form intended by the defendants to be obtained (but not obtained) for the April 15, 2010, boat travel and dive involves only "a distinction without a substantial difference" when compared to the earlier, signed releases. It is certainly a factual issue, and for a jury to consider, whether Mrs. Dio-dato's drowning actually occurred as a result of scuba diving alone, or from “getting on or off a boat, and other perils of the sea” (in this case, significantly-higher waves and current).


author: EMAS, J.

text:
    Luis Alfredo RODRIGUEZ, etc., Appellant, v. SECURITY NATIONAL INSURANCE CO., INC., Appellee.
    No. 3D13-1890.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.

      Jose M. Francisco; Joel S. Perwin, Miami, for appellant.
    Marlow, Adler, Abrams, Newman & Lewis and Michael C. Rotunno, Coral Gables, and Anthony S. Hearn, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Luis Alfredo Rodriguez, individually and as personal representative of the Estate of Alfred Rodriguez, and as assignee of Eduardo Olivera, appeals a final summary judgment entered in favor of Security National Insurance Company (“SNIC”). For the reasons that follow, we affirm.

On January 31, 2009, Alfred Rodriguez (“Alfred”) was killed while riding his motorcycle when he was struck by a vehicle owned by Eduardo Olivera. Alfred’s father, Luis Rodriguez (“Rodriguez”) was appointed personal representative of his son’s estate, and sued Olivera for wrongful death. Olivera entered into a Coblentz agreement with Rodriguez and agreed to a consent judgment of $2.5 million, in exchange for assigning his rights to a claim against his insurance company, SNIC. SNIC had refused coverage for the accident because Olivera’s policy expired on December 6, 2008, nearly two months prior to the accident.

Rodriguez amended the complaint to add SNIC as a party, and added claims against SNIC for breach of contract, enforcement of judgment and bad faith in denying coverage to Olivera. Rodriguez alleged SNIC was required to place Oliv-era on notice that his policy was about to expire, and that SNIC failed to do so. Therefore, Rodriguez alleged, the policy was in full force and effect on the date of the accident, and SNIC breached the insurance contract and acted in bad faith in denying coverage.

In response, SNIC asserted it did mail expiration notices to Olivera twice before his policy expired, and also that it mailed him a notice of expiration after the policy expired. The notices had all been sent to the address listed on Olivera’s insurance application and on the policy declarations sheet — 5005 Collins Avenue, Miami Beach, Florida 33140. However, according to Olivera, the address was missing his apartment number, and therefore, Rodriguez asserted, Olivera did not receive any of the notices mailed by SNIC.

SNIC also filed a counterclaim for declaratory judgment, seeking a determination that no coverage existed under Oliv-era’s policy on the date of the accident.

SNIC later moved for summary judgment, arguing that under Florida law, SNIC was not required to provide written notice of the policy lapse, and thus, any defect in Olivera’s mailing address was irrelevant. Further, SNIC argued that even if it was required to send Olivera a pre-lapse notification, it complied with the requirement by mailing the notices to the address shown in the policy.

Following a hearing, the trial court granted SNIC’s motion for summary judgment, finding the policy had lapsed prior to the accident, and therefore, there was no coverage and SNIC did not act in bad faith in handling the claim and had no duty to pay the consent judgment, attorney’s fees or costs. Final judgment was thereafter entered and this appeal followed. We review de novo the trial court’s entry of final summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

Rodriguez claims SNIC was required to provide notice to Olivera, prior to the policy lapse date, that a premium was due. Rodriguez relies for this proposition upon sections 627.728(l)(c) and (4)(a), Florida Statutes (2009). Section 627.728(4)(a) provides:

No insurer shall fail to renew a policy unless it mails or delivers to the first-named insured, at the address shown in the policy, and to the first-named insured’s insurance agent at her or his business address, at least 45 days’ advance notice of its intention not to renew; and the reasons for refusal to renew must accompany such notice. This subsection does not apply:
1. If the insurer has manifested' its willingness to renew; or
2. In case of nonpayment of premium.
... Unless a written explanation for refusal to renew accompanies the notice of intention not to renew, the policy shall remain in full force and effect.
“Nonpayment of premium” is defined in section 627.728(1)(c) as a
failure of the named insured to discharge when due any of her or his obligations in connection with the payment of premiums on a policy or any installment of such premium ....

Rodriguez contends that the use of the phrase “when due” in defining “nonpayment of premium” (section 627.728(l)(c) above) means that nonpayment of a premium can occur only after the insurer has provided notice of when the payment is due and the amount of the premium. Thus, Rodriguez argues, the failure to provide notice of payment due negates the “nonpayment of premium” exception for the notice requirement of section 627.728(4)(a).

We need not reach this issue, however. Even if SNIC was statutorily required to provide reasonable notice of payment due in advance of the due date, the undisputed facts establish that SNIC did in fact send notice to Olivera prior to the policy lapse date, advising that a renewal premium was due in order to maintain his policy in force. Nevertheless, Rodriguez argues that SNIC’s mailing of the renewal offers and notice of expiration was insufficient to terminate the policy prior to the accident date. We do not agree.

Section 627.728(5), Florida Statutes (2009) provides:

United States proof of mailing or certified or registered mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation, or of the intention of the insurer to issue a policy by an insurer under the same ownership or management, to the first-named insured at the address shown in the policy shall be sufficient proof of service.

(Emphasis added).

The relevant provisions of the insurance policy provide:

NONRENEWAL
If we decide not to renew or continue this policy, we will mail notice to you at the address shown in our records. Notice will be mailed at least 45 days before the end of the policy period.
PROOF OF MAILING
We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice.

(Emphasis added).

On November 2, 2008, more than a month before the last day of the policy period (December 6, 2008), SNIC sent a renewal offer to Olivera at 5005 Collins Avenue, Miami Beach, Florida, 33140 — the very address listed on Olivera’s policy. It sent a “renewal reminder” to Olivera on November 24, 2008, to the same address. Ten days after the policy lapsed, SNIC sent Olivera a notice of policy expiration, once again to the same address. Rodriguez does not dispute that SNIC established proof of mailing of these notices to the address listed in the policy; he claims, however, that the notice was defective because the address did not contain Olivera’s apartment number. However, Olivera failed to include any apartment number in his insurance application, and no apartment number appears on his policy declarations page.

We hold that SNIC provided sufficient proof of notice by mailing the renewal offers and notice of policy lapse to the address provided by Olivera in his application, which was the very same address contained in the policy and on the declarations page. “The law is clear that an insurer’s proof of mailing of a notice of cancellation to the insured prevails as a matter of law over the insured’s denial as to its receipt.” Ruiz v. Fortune Ins. Co., 677 So.2d 1336 (Fla. 3d DCA 1996).

Affirmed.

      . All other parties involved in the litigation were either voluntarily dismissed or are not parties to this appeal.

      . Olivera's vehicle was driven with his consent by Robert Zaid Alsina, who was also named in the complaint, but was later voluntarily dismissed.

      . Coblentz v. Am. Surety Co. of New York, 416 F.2d 1059 (5th Cir.1969). A Coblentz agreement is a negotiated settlement in which the defendant agrees to a consent judgment and assigns, to the injured party, any cause of action the defendant had against the defendant's insurer. The injured party must thereafter "prove coverage, wrongful refusal to defend, and that the settlement was reasonable and made in good faith." Chomat v. Northern Ins. Co. of New York, 919 So.2d 535, 537 (Fla. 3d DCA 2006).

      . The policy contained limits of $10,000/$20, 000 for bodily injury.

      . The coverage period for the policy at issue was June 6, 2008 to December 6, 2008.

      . Rodriguez cites Hepler v. Atlas Mutual Insurance Co., 501 So.2d 681 (Fla. 1st DCA 1987) in support of this argument. In Hepler, the First District construed the “when due” language of section 627.728(l)(c) to “require that reasonable notice of the premium amount be given in advance of the due date before the insured may be deemed to have failed to discharge any obligation under the policy to pay the premium.” Id. at 686. The court noted that this construction “protects against the insured’s inadvertent failure to remember when premiums are due and prevents insurers from avoiding the notice requirements by withholding notification of the premium amount and allowing the policy to expire for nonpayment of the renewal premium.” Id. See also, Boman v. State Farm Mutual Auto. Ins. Co., 505 So.2d 445 (Fla. 1st DCA 1987)(released the same day as Hepler and reaching the same conclusion in construing this statutory provision).

      . Because we do not reach this issue, we need not decide whether, as SNIC contends, Hepler and Boman conflict with our decision in Williams v. Security Mutual Casualty Co., 377 So.2d 733 (Fla. 3d DCA 1979).

      . We reject Rodriguez’s argument that SNIC should have known Olivera's complete address (i.e., his apartment number), based on a document prepared by a property appraiser and found in the insurer’s policy file. We find without merit Rodriguez's argument that SNIC was required to glean from this property appraiser’s report that Olivera's address was incomplete. SNIC properly relied on the application information provided by Olivera, and the address listed on the policy, as the address to which notice was to be mailed. Moreover, a review of the property appraiser’s report (which was not generated by SNIC or Olivera and was not sent to SNIC by Oliv-era) reveals that the address contained thereon is of a different apartment number than the one claimed to be Olivera’s apartment number.