author: WARNER, J.

text:
    Benjamin ERGAS and Beth Ergas, Appellants, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D11-3803.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Rehearing Denied June 7, 2013.

      Paul B. Feltman of Alvarez, Carbonell, Feltman, Jimenez & Gomez, P.L., Coral Gables, for appellants.
    Richard B. Doyle, Jr. and Colleen A. Brannelly of Loughren and Doyle, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The insured dropped a hammer on his tile floor, causing it to chip. He filed a claim for the damage with his homeowner’s insurance company which denied coverage, because it claimed that the damage constituted “marring” which was excluded from coverage. After the homeowner filed suit, the trial court entered summary judgment, agreeing with the insurance company that the damage was not covered by the policy. We affirm, because marring is not covered under the policy, and the damage to the tile floor constitutes marring.

Benjamin and Beth Ergas were insured under a homeowner’s insurance policy with Universal. Mr. Ergas dropped a hammer on the tile floor in the home and chipped it. The chip was about the size of the hammer head, which appears from the pictures in the record to be the size of a quarter. The Ergases then filed a claim to recover for this damage under their homeowner’s policy. Universal denied the claim on grounds that the policy excluded coverage. Section I of the policy provides: ‘We insure against risk of direct loss to property ... We do not insure, however, for loss: ... 2. Caused by: ... (e) Any of the following: (1) Wear and tear, marring, deterioration....”

The Ergases filed suit against Universal. Universal moved for summary judgment on grounds that the policy excluded coverage for “marring,” and the damage to the tile constituted marring. Universal relied on the dictionary definition of the term “mar” to mean “detract from the perfection or wholeness of.” It argued that “marring” was not ambiguous because it could mean either a sudden act or one that took place over time. It interpreted the word to mean any damage at any time that made the property less than perfect.

The Ergases opposed the motion for summary judgment, arguing that the term “marring” was ambiguous because the policy did not define the term. As any ambiguity should be interpreted in their favor, it should be given a construction that gave them the greatest amount of coverage. They also argued that, under the doctrine of ejusdem generis, the term should be read in context. As it was found in the policy between the terms “wear and tear” and “deterioration” it suggests that marring was intended to refer to damage which was caused over time. Since the damage from the dropped hammer was sudden, they argued it came within coverage. The trial court agreed with Universal and entered summary judgment in favor of Universal, finding no coverage. The Ergases now appeal.

Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The standard of review is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The construction of an insurance policy is a question of law for the court and is subject to de novo review. Liebel v. Nationwide Ins. Co. of Fla., 22 So.3d 111, 114-15 (Fla. 4th DCA 2009).

The insurance policy in this case was an “all risk” policy. Relying on Phoenix Insurance Co. v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970), our supreme court explained in Fayad v. Clarendon National Insurance Co., 899 So.2d 1082 (Fla.2005), that an all risk policy covered all fortuitous losses but it does not cover all conceivable losses. Id. at 1085-86.

The Clarendon court applied “well-established principles of insurance contract interpretation” to construe an exclusion to the all risk policy:

We begin with the guiding principle that insurance contracts are construed in accordance with “the plain language of the polic[y] as bargained for by the parties.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 33 (Fla.2000) (quoting Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993)) (alteration in original). However, if the salient policy language is susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage, the policy is considered ambiguous. See Anderson, 756 So.2d at 34; Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). Ambiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured. See Anderson, 756 So.2d at 34; State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998); Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1138 (Fla.1998).

Id. at 1086. Nevertheless, “ ‘[ijnsurance contracts must be read in light of the skill and experience of ordinary people, and be given their everyday meaning as understood by the man on the street.’ ” Keen v. Fla. Sheriffs’ Self-Insurance Fund, 962 So.2d 1021, 1023 (Fla. 4th DCA 2007) (quoting Mason v. Fla. Sheriffs’ Self-Insurance Fund, 699 So.2d 268, 270 (Fla. 5th DCA 1997)).

The policy in question covers losses to the premises:

We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss:
2. Caused by:
e. Any of the following:
(1) Wear and tear, marring, deterioration;

None of the terms in subsection e.(l) are defined.

The definition of “mar,” the verb from which “marring” is taken, has multiple meanings. In its motion for summary judgment, appellee quoted two definitions: “the common, plain and ordinary meaning of the term ‘marring’ includes ‘to injure, spoil, damage, ruin, detract from’ (the Universal Dictionary of the English Language, 1939), or to ‘detract from the perfection or wholeness of (Miriam-Webster Online Dictionary, 2009)....”

Other definitions include: “1. To inflict damage, especially disfiguring damage, on; 2. To impair the soundness, perfection, or integrity of; spoil.” The American Heritage Dictionary of the English Language Online, (4th ed. 2000) (emphasis added). Appearing at www.thefree dictionary.com. Another definition is: “(tr): to cause harm to; spoil or impair; n. a disfiguring mark; blemish.” Collins English Dictionary — Complete and Unabridged Online; www.thefreedictionary. com. (emphasis added) Universal also quotes Black’s Law Dictionary (revised edition) for its definition of “mar”: “to make defective; to do serious injury to; to damage greatly; to impair, spoil, ruin; to do physical injury to, especially by cutting off or defacing a part; to mutilate; mangle, disfigure, deface.” (Emphasis added). Although it is of concern to us that the definitions cited by Universal include both doing great damage as well as the relatively minor blemishing of the appearance in this case, under either definition the damage to the floor would constitute marring.

The Ergases offer no alternative definition of marring but suggest that the principle of ejusdem generis applies and that the word “marring” must be interpreted in context of the “wear and tear, marring, deterioration” exclusion, thus rendering the term ambiguous and susceptible to an interpretation which would not exclude from coverage this accidental damage. Because the other two terms suggest ordinary damage to property occurring gradually or over time, the terms do not cover damage or injury caused by an accidental risk, such as dropping a hammer on the tile floor, which was sudden.

In support of this gradual damage argument the Ergases rely on Ehsan v. Ericson Agency, Inc., 2003 WL 21716345 (Conn.Super. July 3, 2003). In that case, a tenant moved into the insured’s rental property and by the time he left, the home had been damaged by animals and their excrement as well as the floors and counters having been damaged. The insurance company denied coverage based in part upon its exclusion for “wear and tear, marring, or deterioration.” The trial court rejected this argument, finding that the damage was not in the nature of wear and tear, marring or deterioration. It relied on the general understanding of wear and tear as well as deterioration as being “the gradual deterioration resulting from use, lapse of time and to a certain extent to the operation of the elements, but do not cover destruction in whole or in part of a structure by a sudden catastrophe.” Id. at *15 n. 18. As marring was included within these terms the court concluded that marring had to be understood within its context in the policy: “the term is meant to include that marring of appearance caused by wear and tear or deterioration resulting from the reasonable and normal use of an object over time.” Id. Nevertheless, the court also concluded that the extent of damage created by the tenant did not constitute marring even by a more general definition, because the damage exceeded mere wear and tear of the premises. We would disagree with the exact construction that the court placed on “marring” in Eh-san. If marring were so construed, there would be no difference between the three terms.

The principle of ejusdem generis literally means “of the same kind or class.” Black’s Law Dictionary 556 (8th ed. 2004) defines it as: “A canon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed.” It refers to an item of the same type as those in the list. As pointed out by Universal, there are no general terms or general words which require the application of the principle of ejusdem generis in the present contract. Rather, three specific causes are listed in the exclusion: wear and tear, marring, and deterioration. Each of these causes does not require interpretation by reference to the other. The principle of ejusdem generis does not apply.

As did the trial court, we conclude that the damage caused by the hammer dropping constituted marring and thus was excluded from policy coverage. We reject without further comment the other arguments for reversal made by appellant. We affirm the final summary judgment entered by the trial court.

CIKLIN, J„ and BLANC, PETER, Associate Judge, concur.

      . While Universal maintains that marring means superficial damage to the appearance of the object, these definitions collectively form no bright line between superficial damage and more serious damage. The definitions of "mar” seem to include both concepts. These definitions of marring might thus cover almost all damage to property insured, whether slight or substantial. As this would cover most of what an insured would expect the policy to cover, a definition of "mar” which included serious injury would essentially gut coverage under the insurance policy. A term of an insurance policy should not be construed to reach an absurd result. See Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26 (Fla. 2d DCA 2004). Nevertheless, in this case the Ergases have not argued that the definition is ambiguous because it is over-inclusive of damage.

      . Black's Law Dictionary gives the following example of ejusdem generis: “[I]n the phrase horses, cattle, sheep, pigs, goats, or any other farm animal — despite its seeming breadth— would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tarvis WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4553.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Rehearing Denied June 7, 2013.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Alston v. State, 723 So.2d 148 (Fla.1998).

STEVENSON, DAMOORGIAN and CONNER, JJ., concur.


text:
    David Lee MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4350.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Rehearing Denied June 7, 2013.
    David Lee Moore, Jr., Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely motion for postconviction relief which attempted to challenge his 1996 conviction. Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), did not create any new fundamental constitutional right, and these decisions do not provide any exception to the time limitation for seeking postconviction relief. Fla. R.Crim. P. 3.850(b)(2); Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012).

Affirmed.

WARNER, STEVENSON and GROSS, JJ., concur.


author: CIKLIN, J.

text:
    Cecil L. TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-309.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Rehearing Denied June 7, 2013.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Cecil Tolbert was convicted of one count of armed kidnapping and two counts of sexual battery with the use or threatened use of a deadly weapon. The court sentenced Tolbert to life imprisonment for the kidnapping charge and thirty years each for the sexual battery charges, with all sentences to run concurrently. Tolbert appeals the trial court’s decision to allow an expert DNA analyst to testify that another DNA analyst found male DNA in a sample taken from the victim. We agree that this was inadmissible hearsay, but we find that the error was harmless.

On July 11, 1996, the victim was walking to a store at about 1:30 a.m. As the victim was walking, a man drove his car near the victim, threatened her with a gun, and told the victim to get into the car. The victim got into the car, and the man drove to an area behind a warehouse. The man forced the victim to perform oral sex on him and vaginally raped her. At some point, the back of the victim’s head was injured and she passed out or fell asleep. When the victim awoke, the man sexually assaulted her again. The man then released the victim.

The victim went to a hospital and was treated for the injury on the back of her head. The victim then went to a sexual assault treatment center, where a nurse practitioner took vaginal swabs. The swabs were sealed and sent to the Bro-ward Sheriffs Office (“BSO”).

Kevin Noppinger, a DNA analyst with the BSO, analyzed the swabs using restriction fragment length polymorphism (RFLP) testing. Noppinger found male DNA in the swabs taken from the victim, but the DNA profile did not match any known suspect.

By 2001, DNA technology had advanced to a method called short tandem repeat (STR). RFLP results and STR results cannot be compared, so older DNA samples that had been tested using the RFLP method had to be retested using the STR method. BSO had insufficient resources to retest the older samples, and in 2003 the federal government provided a grant to allow BSO to outsource the retesting of older DNA samples to reduce the backlog. BSO selected older DNA samples that had yielded RFLP results and outsourced the samples to Bowdy Technology (“Bowdy”) for STR testing. Bowdy tested the samples from the victim’s case. The Bowdy analysts found the victim’s DNA in the samples but, unlike BSO analyst Noppinger, the Bowdy analysts did not find male DNA in the portion of the victim’s samples they tested.

Bowdy reported its results to BSO. Lynn Baird, a BSO DNA analyst, hypothesized that there must have been male DNA in the samples taken from the victim because Noppinger had found it during the 1996 testing. Assuming that the STR testing performed by Bowdy may have simply failed to detect the male DNA, Baird herself retested the victim’s samples and, in fact, found male DNA. Using the STR method, Baird isolated the male DNA profile and provided it to the Combined DNA Index System (CODIS), a federal database of DNA profiles.

CODIS matched the male DNA profile from the victim’s sample to Tolbert’s DNA sample. BSO then located Tolbert and received a DNA sample from him, which Baird then compared to the male DNA sample she recovered from the victim’s sample. Baird determined Tolbert’s DNA was in the victim’s sample, leading to the state charging Tolbert in the instant case.

At the 2011 trial, the victim was unable to remember several portions of the 1996 incident. The victim was unable to identify Tolbert as the man who raped her and the state’s primary evidence of Tolbert’s involvement in the crime was the DNA evidence.

BSO DNA analyst Baird testified at trial. During her direct examination, the state asked her about Noppinger’s findings from the 1996 testing:

The state: Did you receive a sample of a DNA involving [the victim] and an unknown suspect?
Baird: I personally — it was submitted to the laboratory but I personally did not do the original analysis on this case.
The state: When — were you able to refer to the report that was done back then?
Baird: Yes.
The state: What was originally detected back in 1996?
The defense: Objection, hearsay.
The court: I’m gonna overrule that.
Baird: The analysis in 1996 was originally performed by Kevin Noppinger ... he was able to detect spermatozoa, that’s the male reproductive cell, on the vaginal swabs submitted as being in [the victim]. He did the RFLP DNA analysis on that item and he obtained a foreign DNA profile that was foreign to [the victim]. So at that point that was basically where the case stopped. We knew we had a foreign DNA profile there but we had no one to compare it to.

Baird then went on to describe how the samples were sent to Bowdy and that Bowdy did not find male DNA in the samples. Baird explained that the manner in which Bowdy tested the samples could account for the failure to find the male DNA in the sample. An analyst from Bowdy who tested the samples testified that occasionally a DNA profile was missed when only a portion of the samples were tested. The Bowdy analyst also testified that she herself had missed such samples in the past.

Baird explained to the jury that she retested the samples, found male DNA, and isolated the male DNA profile. Baird also testified that after Tolbert’s DNA profile was provided to her, she compared Tolbert’s DNA to the male DNA in the sample taken from the victim. Baird testified that Tolbert’s DNA was in the sample taken from the victim.

Martin Tracey, a biology professor specializing in population genetics, testified that the odds of “reaching into the human population and pulling out another individual with the same genetic sequence as Cecil Tolbert” were “approximately one in four hundred and eighty-seven quadrillion.”

On appeal, Tolbert argues the trial court reversibly erred by allowing Baird to testify regarding the 1996 DNA testing results. “The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence. Whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (citations, alteration, and quotation marks omitted).

“ ‘Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2011). Written reports are statements within the meaning of the hearsay rule. See Rivera v. State, 917 So.2d 210, 211 (Fla. 5th DCA 2005). A party may not evade the hearsay rules by having the witness summarize the statement rather than relay the statement verbatim. See Diaz v. State, 890 So.2d 556, 558 (Fla. 5th DCA 2005). Although an expert may rely on hearsay in reaching the expert’s opinion, “an expert’s testimony may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.” Linn v. Fossum, 946 So.2d 1032, 1037-38 (Fla.2006) (citations and quotation marks omitted).

We find that Baird’s testimony was hearsay. Baird clarified that she lacked personal knowledge of the 1996 testing and that she was relying on Noppinger’s written report. Baird summarized Noppinger’s findings from his written report, which was likewise hearsay.

We turn now to the pivotal issue of whether the error was harmless. In assessing whether an error is harmless, “[t]he question is whether there is a reasonable possibility that the error affected the verdict.” Bunche v. State, 5 So.Bd 38, 41 (Fla. 4th DCA 2009) (citation and quotation marks omitted).

Tolbert argues that Baird’s discussion of Noppinger’s findings was harmful because she improperly bolstered her finding that there was a male profile in the sample. “Bolstering” can be harmful error when the expert indicates that another expert reached the same conclusion as the testifying expert, or when the testifying expert testifies that the expert relied on a non-testifying expert’s opinion. See Miller v. State, — So.3d -, 2012 WL 6028048, 37 Fla. L. Weekly D2780, *5-6 (Fla. 4th DCA Dec. 5, 2012) (determining error was harmful when handwriting expert testified that non-testifying expert also determined handwriting belonged to defendant); Potts v. State, 57 So.3d 292, 294 (Fla. 4th DCA 2011) (determining error was harmful when fingerprint analyst testified that another fingerprint expert determined fingerprints belonged to defendant); Telfort v. State, 978 So.2d 225, 226-27 (Fla. 4th DCA 2008) (determining error was harmful when handwriting expert bolstered his testimony).

In contrast to Miller, Potts, and Telfort, in this case the discussion of the non-testifying expert’s findings did not directly implicate Tolbert. Baird’s discussion of Noppinger’s findings established why Baird chose to retest the victim’s sample after Bowdy did not find male DNA in the sample; Noppinger’s findings did not independently establish Tolbert’s guilt. Baird did not consult with Noppinger to reach her conclusion or rely on any of his conclusions; she independently tested the victim’s sample and determined that the male profile matched Tolbert. Baird’s discussion of the 1996 testing bolstered her expert opinion only to the extent that it supported her finding that there was male genetic material in the sample taken from the victim. The more important portion of Baird’s testimony was that the male profile in the victim’s sample matched Tolbert, and the 1996 test results were never matched to Tolbert.

Tolbert argues the hearsay evidence was harmful because the DNA evidence was essentially the only evidence of Tolbert’s guilt and because Bowdy did not find a male profile in the victim’s sample. Tol-bert argues that if the jury had not heard that Noppinger found male DNA in the victim’s sample in 1996, the jury would have disbelieved Baird’s assertion that there was male DNA in the sample or the jury would have believed the victim’s sample was contaminated.

Baird testified that she tested the samples taken from the victim, she found and isolated male DNA in the sample, and she determined that the male DNA from the victim’s sample matched Tolbert’s DNA. Baird and the analyst from Bowdy both testified that it was possible to miss a male DNA profile in a sample, they offered explanations for how the male profile was missed in this case, and the Bowdy analyst testified that she had missed such profiles in the past. Most importantly, Noppinger’s findings did not implicate Tolbert because Noppinger only found an unmatched DNA profile. We determine, under the facts of this case, that the error in admitting the hearsay evidence was harmless.

Affirmed.

MAY, C.J., and STEVENSON, J., concur.

      . Lynn Baird, a BSO DNA analyst, described the STR method as a technique that detects DNA fragments and makes millions of copies of the fragments, which allows the DNA analyst to compare very small amounts of DNA to a suspect's DNA.

      . CODIS includes the National DNA Index System (NDIS), which is a database of DNA profiles contributed by federal and state forensic laboratories that was implemented in 1998. See 42 U.S.C. § 14132 (2006) (authorizing establishment of DNA index system).

      . We note that the state did not lay a foundation for the business records exception or any other hearsay exception. See § 90.803(6), Fla. Stat. (2011).


author: DAMOORGIAN, J.

text:
    Brandon HOLLOWAY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-4264, 4D09-4265.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Rehearing Denied June 7, 2013.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

In this consolidated appeal, Brandon Holloway appeals his judgment and sentence for first degree murder and violation of probation. We affirm.

Holloway argues that the trial court erred by: (1) denying his motion for judgment of acquittal on the murder charge; (2) admitting a witness’s statement as past recollection recorded; (3) admitting a box of ammunition found in Holloway’s home; (4) admitting Holloway’s statement to police without redacting statements made by the interrogating officer; and (5) taking judicial notice of the fact that Holloway was on probation. Concluding that none of these claims have merit, we write only to address the admission of the box of ammunition.

“The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence.” Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009). Appellant argues that the court erred when it allowed the State to introduce evidence that a half box of .32 caliber bullets was found in Holloway’s home because the evidence was irrelevant and prejudicial.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401 Fla. Stat. (2009). Generally speaking, evidence that a defendant was in possession of a gun or ammunition is admissible so long as it is sufficiently tied to the crime charged. For example, in Herman v. State, 896 So.2d 222, 229 (Fla. 4th DCA 1981), we considered the trial court’s decision to admit evidence that the defendant in a murder case — where the victim was killed with a shotgun — owned a shotgun. The defendant’s shotgun was the same caliber as the shell casings found at the scene of the murder, but a ballistics expert testified that he could not say one way or the other whether the shotgun was the murder weapon. Id. We held that the evidence was relevant and admissible, reasoning:

The matching caliber was a circumstance of some probative value. The expert’s testimony that he could not say one way or the other whether the shotgun admitted was the murder weapon, was not conclusive or binding on the jury which was free to determine credibility and weight to be ascribed. Under those circumstances, the jury would be entitled to consider the shotgun and give whatever weight was due in light of the expert’s testimony.

Id. (internal citations omitted). See also Delhall v. State, 95 So.3d 134, 155 (Fla.2012) (holding that the trial court did not err admitting evidence of a 9mm cartridge found in a backpack owned by a murder defendant where the victim was shot with 9mm bullets, although not made by the same manufacturer as the cartridge found in the backpack).

Conversely, when the nexus between the weapon or ammunition and the crime is too tenuous, such evidence is generally not relevant. In Cooper v. State, the Third District held that evidence of ammunition found on a murder defendant nine months after the murder which could not be definitively matched to the ammunition used in the murder was too tenuous to the crime to be admissible. 778 So.2d 542, 544 (Fla. 3d DCA 2001). See also Sosa v. State, 639 So.2d 173, 174 (Fla. 3d DCA 1994) (holding that court erred in allowing .380 caliber cartridges found in murder defendant’s vehicle into evidence when there was no evidence connecting them to the crime, especially in light of the fact that the investigating officer testified the bullet holes he discovered were consistent with .22 caliber ammunition).

Here, there was an adequate nexus between the ammunition found in Holloway’s home and the crime to establish relevancy. The bullets found were the same caliber and material as those used to kill the victim. This in itself is probative. Herman, 396 So.2d at 229. Further, the bullets were for a revolver or pistol, and the evidence established that the murder weapon was most likely a revolver. Finally, unlike Cooper, where the evidence was not discovered until nine months after the murder, here the bullets were found on the day of the murder. 778 So.2d at 544. These facts created a sufficient nexus to the crime to establish relevance.

Holloway relies on the fact that the ballistics expert could not definitively state that the bullets found in the victim came from the case of bullets found in his home. However, as we held in Herman, this went to the weight of the evidence, not its relevancy. 396 So.2d at 229. Accordingly, the trial court properly admitted evidence of the ammunition found in Holloway’s home.

Affirmed.

STEVENSON and CONNER, JJ., concur.

      . At the time of his trial, Holloway was on probation for an unrelated offense. Accordingly, the court found that by committing murder, Holloway violated his probation.


text:
    Luz and Richard GARLAND, Appellants, v. The TJX COMPANIES, INC., etc., Appellee.
    No. 3D12-390.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Fox, Wackeen, Dungey, Beard, Bush, Goldman, Kilbride & McCluskey, and Shelly J. Stirrat, Stuart, for appellants.
    Kubicki Draper, P.A., and G. William Bissett, Jr., Miami, for appellee.
    Before SUAREZ, LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Kenz v. Miami-Dade Cnty., 116 So.3d 461 (Fla. 3d DCA 2013).


author: SHEPHERD, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant/Cross-Appellee, v. Enrique PADRON, et al., Appellees/Cross-Appellants.
    Nos. 3D12-80, 3D12-147.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Methe & Rockenbach and Kara Berard Rockenbach and David A. Noel, West Palm Beach, for appellant/cross-appellee.
    Mariano R. Gonzalez and Aylin Morales, Miramar, for appellees/cross-appellants.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   SHEPHERD, J.

Enrique Padrón and Marisela D. Padrón appeal from a summary final judgment entered in favor of State Farm Florida Insurance Company in this action for breach of contract; State Farm appeals from an order denying its motion for attorney fees. We affirm the final judgment pursuant to 1500 Coral Towers Condominium Ass’n, Inc. v. Citizens Property Insurance Corp., 112 So.3d 541 (Fla. 3d DCA 2013). Finding no abuse of discretion, we also affirm the order denying State Farm’s motion for attorney fees. See Event Servs. Am., Inc. v. Ragusa, 917 So.2d 882 (Fla. 3d DCA 2005).

Affirmed.


text:
    Lasedrick ROSS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0591.
    District Court of Appeal of Florida, First District.
    May 1, 2013.
    Rehearing Denied June 11, 2013.

      Lasedrick Ross, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Danielle NEUTELEERS and Ariel Silberschatz, Appellants, v. PATIO HOMEOWNERS ASSOCIATION, INC., a Florida non-for-profit corporation, Appellee.
    Nos. 4D11-3585, 4D11-3860.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Rehearing Denied June 7, 2013.

      David A. Geller of The Geller Law Group, P.A., Hollywood, for appellants.
    E.J. Generotti of Frank, Weinberg & Black, P.L., Plantation, for appellee.
   WARNER, J.

In this action for injunctive relief to compel compliance with insurance purchase provisions of a declaration and protective covenants of a homeowners association, the trial court denied appellants’ motion for relief from final judgment. The appellants claimed that the complaint failed to state a cause of action, and, therefore, the judgment is void and should have been vacated. We 'affirm, as the complaint stated a cause of action on its face.

The appellee, Patio Homeowners Association (“Association”), filed a complaint for injunctive relief and other relief against appellants, Danielle Neuteleers and Ariel Silberschatz. The complaint alleged that the declaration and protective covenants for the Association requires proof of property and hazard insurance for all customers of the Association, and that appellants had accordingly failed to provide a copy of said insurance. The Association sought an injunction to compel the appellants to provide proof of insurance, and also sought attorney’s fees and costs in connection with bringing the complaint. A copy of the declaration and its terms was not attached to the complaint. Only the provision requiring insurance was reproduced in the complaint.

Appellant Silberschatz filed an answer to the complaint, but appellant Neuteleers did not and was defaulted. The Association moved for summary judgment, and appellants filed no affidavits or papers in opposition. The trial court entered final summary judgment against both appellants, enjoining them from their continued violation of the insurance provisions and compelling them to provide proof of insurance to the Association.

Nine months later, the Association’s president filed an affidavit stating that the appellants had failed to comply with the terms of the final judgment by providing proof of insurance. Nearly a year after the final judgment was entered, the appellants moved to vacate the final judgment on the grounds that it failed to state a cause of action, that the Association did not have authority to bring the action, and that the Association was violating the declarations by failing to provide notice to the appellants prior to filing suit. The Association moved to strike the motion, and the matter was set for hearing. The trial court denied the motion to vacate the final judgment and subsequently entered an order assessing attorney’s fees against the appellants. These orders are the subject of this appeal.

Failure to state a cause of action may be fatal to a complaint and render void a default final judgment based upon the complaint. Lee & Sakahara Assocs., AIA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394, 396 (Fla. 4th DCA 1996); Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989). In this case, however, appellant Silberschatz filed an answer to the complaint and failed to raise failure to state a cause of action either in the answer or at any time prior to final judgment. Thus, he has waived this defense. See Fla. R. Civ. P. 1.140(h)(1) & (2); Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140, 146 (Fla. 4th DCA 1985), receded from on other grounds, Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011). He is not entitled to relief from final judgment on the ground that the complaint failed to state a cause of action.

On the other hand, appellant Neuteleers was defaulted, and courts have granted relief from a judgment on the grounds that the complaint failed to state a cause of action as rendering a judgment void as against a defaulted defendant. See Lee & Sakahara; Becerra. Neuteleers claims that the complaint failed to state a cause of action in this case, because it failed to allege compliance with all conditions precedent. She points to a provision in the declaration requiring the association to purchase insurance and charge the owner when the owner refuses to purchase it, but the declaration was not attached to the complaint. A complaint fails to state a cause of action when the defect or facts defeating the claim appear on the face of the complaint. See Hawkins v. Williams, 200 So.2d 800, 802 (Fla.1967). In this case, the complaint on its face stated a cause of action for an injunction to compel compliance with the provisions of the declaration cited in the complaint.

Moreover, section 720.305(l)(b), Florida Statutes, provides that “[ajctions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association ... against: ... (b) A member[.]” Thus, there is authority for the Association to bring an equitable action to enforce the declarations, and nothing in the record provides that purchase of insurance for the owner by the Association is the exclusive remedy where an insured fails to provide proof of insurance.

Appellant Neuteleers also claims that the complaint failed to state a cause of action for equitable relief of injunction, because the Association had an adequate remedy at law, citing Alorda v. Sutton Place Homeowners Association, Inc., 82 So.3d 1077 (Fla. 2d DCA 2012). The facts of Alorda are remarkably similar to this case, as both involve an association attempting to obtain an injunction to require proof of insurance coverage of an owner when the declarations contained a provision authorizing the association to place insurance on the owner’s unit and charge the owner for the insurance. The court held that the association had failed to state a cause of action for injunctive relief, because “by its own pleadings,” to which the declaration of the association was attached, the association had an adequate remedy at law to purchase the insurance and charge the owner. In this case, however, the declaration was not attached to the complaint, and it was not raised in any pleading. As such, the complaint stated a cause of action, and appellants should have raised the provision allowing the Association to purchase the insurance in an answer to the complaint. It is not a ground to vacate a properly entered summary judgment where none of these issues appeared on the face of the complaint or in the record before the trial court at final summary judgment.

As another issue, appellants complain that they did not receive proper notice that their motion for relief from judgment would be heard, and it does appear that them motion was not noticed for hearing. The Association’s motion to strike their motion was noticed, and the substance of that motion was a defense against the motion itself. There is no transcript of hearing, and it appears that the court heard argument of counsel and denied the appellants’ motion while determining that the motion to strike was therefore moot. From this, it appears that the parties argued both motions, but in any event without a record which would show whether an objection was made on the ground of lack of notice, we cannot reverse on this issue. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Finally, we affirm the order granting attorney’s fees. While appellants claim that it imposes a lien against their homestead property, there is nothing in the record to prove that this is the appellants’ homestead. It appears that this claim is being raised for the first time on appeal. More importantly, no lien as yet has been created, as the court merely reserved jurisdiction “to enter further orders that are proper to affect a lien upon the real property owned by Ariel Silberschatz and Danielle Neuteleers including the subject real property....” Therefore, appellants will be entitled to raise their homestead claim, if viable, if and when the Association seeks to impose a claim of lien on appellants’ property.

Affirmed.

CIKLIN, J„ and BLANC, PETER, Associate Judge, concur.


author: SALTER, J.

text:
    MIDGARD MANAGEMENT, INC., et al., Appellants, v. PARK CENTRE MED-SUITES, LLC., et al., Appellees.
    No. 3D12-2669.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.

      Jeffrey R. Mazor, Hollywood, for appellants.
    Preston J. Fields, Sr., Palm Beach Gardens, for appellee Park Centre Med-Suites, LLC; Andrew A. Holness, West Palm Beach, for appellee/cross-appellant Design Neuroscience Centers, LLC.
    Before SHEPHERD, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Midgard Management, Inc., a commercial property manager at a Miami Gardens multi-tenant office property, appeals a circuit court order granting summary judgment and monetary relief to one of the tenants (appellee Park Centre Med-Suites, LLC) on the grounds that Midgard lacked standing to prosecute an eviction action against Park Centre. A cross-appellant, Design Neuroscience Centers, LLC, also appeals that judgment. We reverse.

Facts and Procedural History

In 2006 and 2007, the owner of the office park conveyed its interests to twenty-eight limited liability companies as tenants in common. All of the tenants in common entered into a “Tenants in Common Agreement” (the TIC Agreement) and a Property Management Agreement with a non-party, Mariner Property Management Services, LLC. Acting as an agent for the tenants in common, Mariner Property Management entered into a lease with Park Centre in June 2010. The term of the lease was to be five years, commencing in September 2010, and the rent was to be $10,792.00 per month. Section 11.1 of the lease prohibited assigning, subletting, transferring, or encumbering the lease, “or any interest therein,” without the prior written consent of the landlord. The same provision also required that, in the event of a written consent to an assignment or sublet, Park Centre would be required to pay any positive rent differential (a “Transfer Premium”) to the landlord. Upon any default in payment by Park Centre, the landlord was given the right to collect rent directly from a subtenant or assignee.

The same day the lease was entered into by Mariner Property Management and Park Centre, Park Centre entered into a “Management Services and License Agreement” whereby Park Centre granted rights of occupancy and use of all of Park Centre’s leased premises to cross-appellant, Design Neuroscience Centers (DNC), also for a term of five years (commencing on the same day as the Park Centre lease). The “management fee” payable by DNC was $17,625.00 per month — $6,833.00 per month more than Park Centre was to pay the owners for the premises. That same day, Mariner Property Management, Park Centre, and DNC also entered into a “Subordination, NonDisturbance and Attornment Agreement” (SNDA), identified in the introduction as a “sublease subordination, nondisturbance and attornment agreement.” At various points in the SNDA, the “license agreement” was referred to as a “sublease,” and an attachment referred to the premises as the “Sublet Premises.” The “license agreement” also acknowledged that it “specifically overrides and cancels the prior lease agreement between [DNC] and [Mariner Property Management].” A sworn affidavit from one of the tenants in common stated that the actual DNC “license” agreement was not provided as required for review and approval.

Shortly after the commencement date of the Park Centre lease and the license (or sublease) agreement with DNC, Mariner Property Management resigned from its duties as property manager because it had not been paid. Within a few months (by April 2011), the office park’s multi-million dollar mortgage loan was in default. At that point, a group of the tenants in common proposed the appellant, Midgard, as successor property manager. Midgard sent a written request for approval of its management contract to (a) all tenants in common, under the TIC Agreement, and (b) the mortgage lender, as contemplated in the mortgage loan and lease subordination provisions. None of the tenants in common objected before Midgard commenced the eviction against Park Centre and DNC in July 2011. The mortgage lender consented in writing to Midgard’s service as property manager.

Midgard filed an action in county court to evict Park Centre as tenant and DNC as subtenant in possession for non-payment of over $96,000 in rent and “Transfer Premium” due under the lease. Upon motion by Midgard, the court ordered DNC to deposit its monthly payments into the registry of the court.

In August 2011, the eviction case was transferred to the circuit court. There, Midgard’s lawsuit was met with affirmative defenses and counterclaims including, among others, a declaratory judgment action alleging that Midgard lacked standing to prosecute the eviction action.

Park Centre then moved for summary judgment on the standing issue. The motion alleged that Midgard had not obtained the unanimous written consent of all twenty-eight tenants in common regarding its management agreement, with the result that Midgard lacked authority to commence the eviction action against Park Centre and DNC. The trial court granted Park Centre’s motion for a declaratory judgment, finding that: “unanimous con-sentís] of all Tenants in Common were required before Midgard could be hired as the new property manager in order to become the landlords’ agent;” unanimous consent was not obtained; and “Midgard was not properly hired as the property manager under the TIC Agreement, and thus Midgard did not become the landlords’ agent.” The court’s summary judgment further determined that Midgard lacked authority to send a default notice to Park Centre and to file suit against Park Centre.

Based on these rulings, the trial court directed the clerk to disburse to Park Cen-tre’s counsel those “surplus funds” above the Park Centre rent that had accumulated in the court registry, and the court directed DNC to make all future payments (though these were not characterized as either “license fees” or “rent under a sublease”) directly to counsel for Park Centre, who was then to remit the base rent for deposit into the registry. After the denial of a motion for rehearing by Midgard and a motion by DNC for relief under Florida Rule of Civil Procedure 1.540, Midgard filed a timely notice of appeal and DNC cross-appealed. The notices of appeal invoked this Court’s jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), because the order determined the right to immediate possession of property.

Analysis

Park Centre’s right to the funds in the registry (and to subsequent monthly payments by DNC) turns on Midgard’s authority to enforce the Park Centre lease. With a threshold acknowledgment that the trial court did its best to interpret a tangled web of agreements and legal authorities — documents written in type so small and language so obtuse as to make appellate judges and their law clerks reach for headache remedies — we conclude that Midgard validly obtained and exercised its authority on behalf of the tenants in common/owners and the mortgage lender for the office park. We concur with the trial court’s conclusion that there were no genuine issues of material fact concerning Mid-gard’s authority, but we reach a different legal conclusion that follows from the pertinent undisputed facts.

Park Centre’s motion and argument focused on certain provisions of the TIC Agreement. Section 2.2.1 of that Agreement specified that the unanimous consent of all tenants in common was required for “the approval of any property management agreement or any extension, renewal or modification thereof.” The same section provided:

Wherever in this Agreement the consent or approval of the Tenants in Common is required or otherwise requested, with respect to any modification or renewal of any property management agreement, the Tenants in Common shall have 30 days after the date the request for consent or approval is received pursuant to Section 10.8 to approve or disapprove the matter.

A “deemed consent” provision further stated:

If a Tenant in Common does not disapprove of such matter within the specified response period described above, the Tenant in Common shall be deemed to have approved the matter.

Park Centre argued successfully below that Midgard failed to establish unanimous consent to its appointment as successor property manager, and that the “deemed consent” provision applied only to “modification or renewal” of an existing property management agreement — not to the execution of a new property management agreement (because that consent lacked a “specified response period”).

However, the affidavits and contractual provisions filed by Midgard in opposition to the motion for summary judgment established without dispute that:

1. Under section 12.1 of the TIC Agreement, the rights and remedies of the tenants in common were expressly subordinate to the rights and remedies of the office park’s mortgage lender following a mortgage default. The tenants in common were the successors in title to the original mortgagors.

2. The mortgage went into default in early 2011. The mortgage and original (pre-Midgard) property management agreement, executed by the original tenants in common and binding on all successors, specified that, after default, the mortgage lender had the right “to replace Property Manager with a management company acceptable to Lender.” Paragraph sixty-four of the mortgage reiterated the subordination of the TIC Agreement to the mortgage, confirming that the mortgage “shall govern, control and super-cede any contrary or inconsistent provisions of [the TIC Agreement].”

3. Although the tenants in common took the initiative to identify Midgard as a successor property manager, they submitted information about Midgard’s experience and a copy of the proposed Midgard property management agreement to the mortgage lender for approval. The mortgage lender consented in writing to Mid-gard’s service as property manager, well in advance of the date Midgard commenced its action against Park Centre and DNC.

Park Centre’s interpretation of these contractual provisions and actions is that the mortgage lender did not directly “replace” Mariner Property Management with Midgard (for example, by signing on as a party to the new property management agreement). Instead, the mortgage lender merely “approved” the new Mid-gard property management agreement signed by almost all of the tenants in common. Park Centre overlooks several controlling points. First, any tenants in common who did not sign the Midgard agreement had subordinated their rights to withhold consent (under the TIC Agreement) to the right of the mortgage lender to designate the successor manager. Second, Park Centre signed a lease whereby it, too, subordinated its rights as tenant to the rights of the mortgage lender (which includes the mortgage lender’s right to designate a successor manager). Third, Park Centre is not a third-party beneficiary entitled to invoke objections to the arrangements made among the tenants in common, their mortgage lender, and Mid-gard.

Midgard has thus demonstrated “a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy,” otherwise known as “standing.” Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Florida Rule of Civil Procedure 1.210(a) underscores that entitlement, authorizing the prosecution of claims in the name of a representative party or agent. In the case at hand, Midgard serves as property manager and rent collection agent for the tenants in common and for the post-default mortgage lender, a “real” party in interest in the truest sense of that term. The mortgage lender, tenants in common as owners, and Midgard have an obvious and unitary interest in collecting defaulted rent.

Addressing the trial court’s release to counsel for Park Centre of the rent payments deposited into the court registry, those payments were mandatory under section 83.232, Florida Statutes (2011), if DNC wished to retain possession pending the final adjudication of the claims and counterclaims. The rent to be deposited under that statute would necessarily include the “Transfer Premium” payable by DNC. The Park Centre-DNC agreement is, as noted above (and in at least three provisions within the agreement itself), a sublease.

Of course, the mere fact that an agreement is entitled a “license” or contains a conclusory provision that the parties have a relationship of licensor and licensee, is not determinative. Rather, the proper characterization of the agreement is discerned by the actual terms, conditions, rights and obligations expressly set forth in the agreement. See e.g., Jabour v. Toppino, 293 So.2d 123 (Fla. 3d DCA 1974); Napoleon v. Glass, 229 So.2d 883 (Fla. 3d DCA 1969).

Ryan v. Nat’l Marine Mfrs. Ass’n, 103 So.3d 1001, 1005 n. 5 (Fla. 3d DCA 2012).

Conclusion

Ultimately, Park Centre’s attacks on Midgard’s “standing” are based on a clever interpretation of a subordinate contract (the TIC Agreement) and unmitigated chutzpah. Park Centre stopped paying rent, while continuing to pocket the differential paid by DNC to Park Centre (but required to be paid to the property manager as a “Transfer Premium” because of the provisions of the Park Centre lease). Without the rental income, the original property manager did not stay current on the office park’s mortgage payments. When the mortgage went into default and a new property manager selected by most (if not all) of the tenants in common/owners, with the consent of the mortgage lender, brought an eviction action against Park Centre and the court required statutory payments of rent into the registry of the court pending the outcome, Park Centre challenged Midgard’s right to commence the lawsuit.

Under Park Centre’s analysis, the failure or refusal of a single tenant in common, holding as little as a two-percent undivided interest, to grant consent would be sufficient to preclude the appointment of a successor property manager with authority to commence and prosecute the eviction of a lessee defaulting on rent. But we conclude that the mortgage lender controlled the designation of a successor property manager under the applicable documents. When most, if not all, of the tenants in common suggested Midgard as the new manager, the mortgage lender agreed. Midgard then commenced its efforts to manage the property out of its slump. One part of any such effort is the enforcement of the lease documents and the collection of rent. The summary judgment determining that Midgard lacked standing to bring the eviction action, and on that basis releasing deposited funds (and ongoing rent payments) to counsel for Park Centre, is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . In each case, the applicable monthly rent amount was to include an additional amount for sales tax.

      . The significance of these features of the Park Centre-DNC agreement is that the correct legal characterization of the agreement as a sublease (rather than a "license” to use the same space for the same term at a higher rent) affects the determination of the amount to be deposited into the registry to retain DNC’s rights of possession of the premises during the pendency of the case.

      . DNC continuously made its monthly payments as directed. In the present appeal, it joins Midgard in seeking reversal of the summary judgment and monetary relief obtained by Park Centre. A balance of DNC's deposits into the registry totaling $90,315.72, and the $17,625.00 per month payable by DNC for rent beginning in October 2012, have been paid to counsel for Park Centre pursuant to the order under review. DNC’s initial brief observes that these payments have been made as required despite the fact that "Park Centre does not have an ownership interest in the property, does not appear to have a valid lease, is not the landlord, is not the property manager, and does not provide any service to DNC in exchange for the funds received.”

      . These funds, some $90,315.72, represent the higher amount (the "Transfer Premium” as defined in the Park Centre lease) otherwise payable every month by DNC in excess of the rent payable by Park Centre under its prime lease.

      . Hayes v. Guardianship of Thompson, 952 So.2d 498, 509 n. 14 (Fla.2006); Zabrani v. Riveron, 495 So.2d 1195, 1197 n. 2 (Fla. 3d DCA 1986).

      . § 83.232, Fla. Stat. (2011).

      . In response, counsel for Park Centre has suggested that the remedy is for one or more of the tenants in common to partition the property, a solution fraught with obvious drawbacks and delays when the mortgage loan on the property is already in default and a lessee is withholding rent.

      . Although we do not reach the merits of the remaining and untried issues among the parties, we note that section 83.232 will require Park Centre's counsel to restore all rent (including “Transfer Premium”) to the court registry if a summary writ of possession against Park Centre is to be avoided. Mid-gard and DNC may also seek disgorgement of those amounts released by the registry to counsel for Park Centre pending trial of the remaining claims and counterclaims.


text:
    Jean PREDVIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2447.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012).

DAMOORGIAN, CIKLIN and CONNER, JJ., concur.


text:
    Michael L. PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3557.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his convictions for kidnapping and armed sexual battery and his sentence to life in prison. He alleges that the trial court reversibly erred by (1) assisting the prosecutor in admitting evidence, (2) denying appellant’s motion for judgment of acquittal for kidnapping, and (3) allowing a DNA expert to bolster his own testimony. We find these issues to be without merit, and as such, we affirm.

Affirmed.

WARNER, GROSS and LEVINE, JJ„ concur.


text:
    STATE of Florida, Appellant, v. E.I., a child, Appellee.
    No. 4D12-1371.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State of Florida appeals the trial court’s order dismissing a petition for delinquency against E.I. under section 985.0301(6), Florida Statutes (2012), which allows a juvenile court to end jurisdiction over any child at any time. E.I. reached his 19th birthday on May 11, 2012. Unless a child is already under commitment, in a transition program, or subject to a restitution order, the jurisdiction of a juvenile court ends at age 19. V.I. v. State, 667 So.2d 439, 440 (Fla. 4th DCA 1996); see also § 985.0301(5), Fla. Stat. None of these apply to E.I. Thus, we And that this case has become moot because the trial court would no longer have jurisdiction if we remanded this case for further proceedings. “A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief.” Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). A moot case will generally be dismissed unless the questions raised are of great public importance or are likely to recur, or if collateral legal consequences that affect the rights of a party flow from the questions raised. Godwin v. State, 593 So.2d 211, 212 (Fla. 1992). We find none of these exceptions apply; therefore, we dismiss this case as moot.

Dismissed as moot.

STEVENSON, DAMOORGIAN and CONNER, JJ., concur.


text:
    Alan Dale WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2534.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

DAMOORGIAN, GERBER and CONNER, JJ., concur.


text:
    Miguel RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-877.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.
    Miguel Rivera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: MORRIS, Judge. ALTENBERND, Judge,

text:
    EAST COAST METAL DECKS, INC., Appellant, v. BORAN CRAIG BARBER ENGEL CONSTRUCTION CO., INC., and Safeco Insurance Company of America, Appellees.
    No. 2D12-1013.
    District Court of Appeal of Florida, Second District.
    May 15, 2013.

      Paul J. Kneski, Miami, for Appellant.
    John D. Kehoe of Cheffy Passidomo, P.A., Naples, for Appellees.
   MORRIS, Judge.

East Coast Metal Decks, Inc., appeals a nonfmal order denying its motion to transfer venue. We affirm.

The underlying litigation involves a breach of contract action initiated in Collier County by the appellee, Boran Craig Barber Engel Construction Co., against East Coast. Boran was the general contractor and East Coast was the subcontractor on two public works projects located in Brevard and Sarasota Counties. In the underlying action, East Coast filed a third-party claim against Boran’s surety, Safeco Insurance Company of America, which provided the bonds on the projects. East Coast sought to transfer the Collier County action to Brevard County where litigation involving the projects had been initiated by material suppliers.

The trial court denied East Coast’s motion to transfer on the basis that a contractual venue selection provision in the subcontract constituted a waiver of any challenge to venue based on inconvenience or location of the property. The trial court also determined that East Coast’s third-party claim against Safeco was a claim against a payment bond and that section 255.05(5), Florida Statutes (2010), did not require that the action be brought in Brevard County. Finally, the trial court determined there was an insufficient likelihood of inconsistent results occurring between the Collier County and Brevard County actions.

The denial of the motion to transfer was correct. “[Pjarties may provide by their agreement where suit may be brought to enforce it.” Interval Mktg. Assocs. v. Sea Club Assocs. IV, 468 So.2d 262, 263 (Fla. 2d DCA 1985). Here, that is exactly what Boran and East Coast did by specifying in the subcontract that venue would lie in Collier County. Thus, we agree that the contractual venue provision constituted a waiver of venue based on inconvenience or location of the property. See Se. Office Supply & Furniture Co. v. Barley, 427 So.2d 1139, 1140 (Fla. 5th DCA 1983).

We acknowledge that courts are not bound to abide by contractual venue provisions if there are compelling reasons not to enforce them. See id.; Carlson-Se. Corp. v. Geolithic, Inc., 530 So.2d 1069, 1072 (Fla. 1st DCA 1988). However, this case does not present such facts and the cases relied on by East Coast are factually distinguishable from this case. While the two surety bonds on each of the public works projects contained their own venue provisions mandating venue in Brevard and Sarasota Counties, that fact does not nullify the venue provision in the subcontracts. Further, the existence of the other litigation in Brevard County does not require a transfer of the Collier County action. Although the Brevard County action is related to the underlying dispute, it is smaller in scope and deals with a much smaller amount in controversy than the Collier County action. A transfer of the Collier County action would thus consume and overrun the Brevard County action.

Finally, we agree with the trial court that statutes dealing with lien transfer bonds are not applicable. Rather, it is section 255.05(5) which deals with payment bonds, that is applicable to this case. Section 255.05(5) provides in relevant part that “any action authorized under this section may be brought in the county in which the public building or public work is being constructed or repaired.” (Emphasis added.) Consequently, we are not persuaded that the Collier County action was required to be brought in Brevard or Sarasota counties where the public works projects were located. See Carlson-Se. Corp., 530 So.2d at 1073; see also Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000) (explaining that statute which used word shall was mandatory whereas statute which used word may was permissive).

Under the facts of this case then, the motion to transfer venue was properly denied.

Attorneys’ Fees

Both parties moved for prevailing party appellate attorneys’ fees pursuant to the contract. There are two provisions within the subcontract that provide for prevailing party attorneys’ fees. One provision that appears to apply to either party and deals generally with dispute resolution provides in relevant part: “[i]n addition to any other remedies contained in this Subcontract or available by law, all costs of resolving disputes under this Subcontract including a reasonable attorney’s fee for services provided in litigation ... shall be paid to the prevailing party.” The other provision would appear to apply only to Boran, and it provides that the “Subcontractor shall be liable to Contractor for all costs the Contractor incurs as a result of Subcontractor’s failure to perform this Subcontract in accordance with its terms.... Subcontractor’s liability shall include ... (6) attorney’s fees and related costs.”

In Moritz v. Hoyt Enterprises, 604 So.2d 807, 810 (Fla.1992), the Florida Supreme Court held “that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Because we have determined that the trial court properly denied the motion to transfer, Boran is the prevailing party on appeal. However, it is unknown who will ultimately prevail on the significant issues in the action below. Accordingly, we conditionally grant Boran’s motion subject to Boran’s ultimately prevailing on the significant issues in the action below. See id.

East Coast, on the other hand, did not prevail on appeal, and as with Boran, it is unknown whether East Coast will prevail on the significant issues in the action below. We recognize that in Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000) (en banc) (on motion for rehearing of order granting attorney’s fees), the Fourth District interpreted the Moritz test to be applicable to a party who loses on appeal but ultimately prevails in the action below. The Fourth District reached this conclusion in part on the premise that public policy — as expressed in certain statutes— was to make a party whole. Aksomitas, 771 So.2d at 544. The Fourth District also noted that denying fees to a party who ultimately prevailed in the action below would be inconsistent with the intent of the parties who had agreed in their contract that the prevailing party should be reimbursed. Id.

Subsequently, the Florida Supreme Court rejected the Aksomitas approach to conditionally awarding fees to a party who loses on appeal. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252 (Fla.2006). However, the Brass & Singer case dealt with the proper interpretation of section 627.428(1), Florida Statutes (2004), which contained specific language regarding when fees may be awarded to an insured or beneficiary in an insurance dispute. Id. at 254. Thus the Brass & Singer holding must be limited to that context.

Despite the limitation of the Brass & Singer holding, East Coast is still not entitled to a conditional award of appellate attorneys’ fees under this court’s case law. In Sabina v. Dahlia Corp., 678 So.2d 822, 822 (Fla. 2d DCA 1996), a pre-Aksomitas case, this court reversed an order awarding attorneys’ fees to a party who had prevailed on appeal but ultimately lost in the action below, noting that “[bjeeause this is basically a contract action, there can be only one prevailing party.” We adhered “to the general rule that, in an interlocutory appeal, the party prevailing on the interlocutory appeal must also be the ultimately prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal.” Id. at 822-28 (emphasis added) (citing Cline v. Gouge, 587 So.2d 625 (Fla. 4th DCA 1988)).

The fact that this court referred to a party’s prevailing on appeal indicates that prior to Aksomitas we would refuse to conditionally award appellate fees to a party who loses on appeal. Yet even after Aksomitas was decided, this court has, as evidenced by published orders, adhered to the traditional approach of only conditionally awarding fees to a party which prevails on appeal. See Dienstl v. Castle Builders U.S. Inc., 49 So.3d 1272, 1272 (Fla. 2d DCA 2010); Sherwood Partners, LLC v. Wickman, 26 So.3d 590, 590 (Fla. 2d DCA 2010). East Coast has cited no authority requiring us to stray from that approach — at least in the context of an interlocutory appeal involving a breach of contract action. Accordingly, we continue to adhere to the traditional approach of conditionally awarding prevailing party appellate attorneys’ fees only to the party who prevails on appeal. East Coast’s motion is therefore denied.

Affirmed.

NORTHCUTT, J„ Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in both the affirmance of the order denying the motion to transfer venue and in the denial of the motion for attorneys’ fees in this case.

Concerning the motion to transfer venue, I note that the body of East Coast’s motion is similar to a motion to transfer pursuant to section 47.122, Florida Statutes (2010), for the convenience of the parties or witnesses. However, the motion does not expressly rely on this statutory basis. Venue was proper in Collier County in light of the venue selection clause in the subcontract between Boran and East Coast. Thus, I conclude that our standard of review in this context is whether the trial court abused its discretion in denying the motion. See RJG Envtl., Inc. v. State Farm Fla. Ins. Co., 62 So.3d 678, 679 (Fla. 2d DCA 2011).

On the limited record before this court, I cannot conclude that the trial court abused its discretion. On the other hand, it is troubling that Boran entered into governmental contracts to perform work in Brevard and Sarasota counties and obtained statutory payment bonds that expressly require legal actions on the bonds to be filed in those counties and then entered into subcontracts that expressly require actions between Boran and East Coast to be litigated in Collier County. East Coast has a claim against Boran that is likely a compulsory counterclaim in Collier County. That counterclaim is apparently a proper claim against the bond. I would think that Boran should have a difficult time enforcing its contractual venue selection if an action in Collier County cannot provide an adequate forum to resolve the claim against the statutory payment bond. On this record, however, I cannot conclude that East Coast’s rights to payment under the bond will be prejudiced by the trial court’s decision to deny a change of venue.

As to the denial of attorneys’ fees, I recognize that a party who prevails in the trial court can often receive an award of fees for time spent unsuccessfully litigating various pretrial motions so long as the motions were filed and argued in good faith. Logically, it may be reasonable to extend that rule to allow a party to receive fees for an unsuccessful prosecution of an appeal from a nonfinal order so long as the party prevails. If that were the rule, there is no question that East Coast’s appeal was filed in good faith and that it would be entitled to an award of fees conditioned upon prevailing in the trial court.

Jurisdiction for appeals from nonfinal orders is established by the supreme court; there is no constitutional right to such an appeal. Such appeals tend to disrupt proceedings in the trial court and delay the entry of final judgments. Although it may not be the most efficient or effective method of review, issues resolved by nonfinal orders usually can be reviewed on direct appeal. Thus, there are reasons of judicial process that may explain our decisions to place an economic risk upon the party who chooses to commence an unsuccessful appeal from a nonfinal order. Our experience convinces us to continue to adhere to the traditional approach even if logic might suggest otherwise.

      . Although East Coast did not expressly seek a transfer of venue based on convenience to the parties or witnesses pursuant to section 47.122, Florida Statutes (2010), its motion was similar in scope. Consequently, we review the trial court’s order under an abuse of discretion standard. See RJG Envtl., Inc. v. State Farm Ins. Co., 62 So.3d 678, 679 (Fla. 2d DCA 2011).

      . Since this provision only provides fees to be awarded to the contractor, East Coast erred by citing to it in its motion. However, as previously noted, another provision of the subcontract appears to allow either party to be awarded fees if it prevails in the litigation


author: ALTENBERND, Judge.

text:
    Stuart CHERUBINI, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3108.
    District Court of Appeal of Florida, Second District.
    May 15, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

We affirm without discussion Stuart Cherubim’s judgments and sentences for dealing in stolen property and for providing false information on a pawnbroker form. For the reasons expressed in Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011) (recognizing conflict and certifying questions), review granted, Williams v. State, 70 So.3d 588 (Fla.2011), and its progeny, we certify conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010).

Affirmed.

CASANUEVA and VILLANTI, JJ., Concur.


text:
    Corey BOGART, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-226.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s conviction of second-degree murder. Appellant argues that the state failed to prove the necessary elements of the crime, and therefore, that the court should have granted his motion for judgment of acquittal. We disagree.

“Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. “A court should not grant a motion for judgment of acquittal unless ‘there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.’” DeAngelo v. State, 616 So.2d 440, 442 (Fla.1993) (quoting Taylor v. State, 583 So.2d 323, 328 (Fla.1991)).

Section 782.04(2), Florida Statutes (2008), supplies the definition of second-degree murder: “The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree.... ” Appellant disputes that his act was imminently dangerous and evincing of a depraved mind regardless of human life.

The victim, with whom the appellant was living and “kind of’ romantically involved, told her neighbor that she was going to ask appellant to leave the night of her murder. She died of strangulation, and appellant admitted that his hands moved down from the victim’s face to her neck and that he was choking her. He also admitted to a friend and an investigating detective that he killed the victim — he knew she was dead when he left her body. Appellant’s statement to another witness that “him and his girl got in a fight, an argument” is relevant to the element of ill will or depraved mind in second-degree murder. He made a similar statement to the detective, that he and the victim “had a confrontation.” All this is sufficient for a jury to find that he acted with a depraved mind. As our supreme court stated in Bigham v. State, 995 So.2d 207, 213 (Fla.2008) (quoting Hoefert v. State, 617 So.2d 1046, 1050 (Fla.1993)), “we find the evidence of strangulation sufficient to sustain a conviction for second-degree murder, which requires the finding of an ‘act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.’” See also Hoefert, 617 So.2d at 1050 (facts supported second degree murder when: victim was strangled and was found dead several days after defendant, who had strangled other women during sexual activity, accompanied her to her apartment; defendant failed to report the crime; and, defendant attempted to conceal the body).

Additionally, appellant’s actions of selling the victim’s phone and his efforts to conceal the body, as well as his refusal to call 911 or the police were relevant for the jury to infer consciousness of guilt. See Straight v. State, 397 So.2d 903, 908 (Fla.1981) (“When a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred from such circumstance.” (Emphasis added)).

Appellant also argues that the state failed to prove beyond a reasonable doubt that appellant was not acting in self-defense, citing the mainly circumstantial nature of the case. Once the defendant presents a prima facie case of self-defense, the state must disprove the defense beyond a reasonable doubt. Sneed v. State, 580 So.2d 169, 170 (Fla. 4th DCA 1991). See also Andrews v. State, 577 So.2d 650, 652 (Fla. 1st DCA 1991). “The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002). In seeking a motion for judgment of acquittal based upon self-defense, such a motion “should not be granted unless ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” Hernandez v. State, 842 So.2d 1049, 1051 (Fla. 4th DCA 2003) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

As the state proffered evidence inconsistent with appellant’s self-defense theory, the court properly denied the motion for judgment of acquittal. Appellant claimed in his statements made during his police interview that the victim attacked him with a knife first. While appellant’s version of events is suggestive of self-defense, and the jury could have believed his story, the state presented evidence to contradict appellant’s version of events. First, there are the events that transpired after the victim’s death: appellant moved her body to the bedroom and covered her with a sheet and stuffed animals; appellant washed the knife and placed it back in the drawer next to the sink; appellant fled the house without calling 911; and, appellant destroyed one cell phone and sold another cell phone. These facts are contrary to self-defense, as they suggest that appellant had a guilty conscience and the intent to flee after the fact, rather than a mind to call the police immediately to report the death and his version of the events. Second, the medical examiner testified that it takes more than a minute to strangle a person to death, providing sufficient time to withdraw from any legitimate acts of self-defense. Finally, appellant made multiple statements that he and the victim had a confrontation or fight prior to her death. A confrontation implies that both parties were involved in the argument, as opposed to a unilateral attack by the victim. The above evidence was sufficient to rebut appellant’s reasonable hypothesis of innocence, and the jury was free to weigh the evidence.

We reject appellant’s final argument that various other errors cumulated to create a need for a new trial, mainly because we find that all but one of the errors alleged were not error at all. The one which may have been error was harmless beyond a reasonable doubt. We also reject the appellant’s claim of trial court bias.

For these reasons, we affirm the conviction and sentence.

ROSS and LEVINE, JJ., concur.