author: SALTER, J.

text:
    BULL MOTORS, LLC, etc., Appellant, v. Alicia BORDERS, Appellee.
    No. 3D12-2223.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2013.
    Rehearing Denied March 6, 2014.

      Kirschbaum, Birnbaum, Lippman & Gregoire and Nancy W. Gregoire, Ft.Lauderdale; Richard A. Ivers, Coral Springs, for appellant.
    James M. Loren, Plantation, for appel-lee.
    Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   SALTER, J.

Bull Motors, LLC, doing business as Maroone Ford of Miami (Maroone), appeals an award of attorney’s fees and costs totaling $62,000.00 in a consumer arbitration case in which the appellee, Ms. Borders, was awarded $5,626.00. We affirm.

The arbitrator found that Maroone had violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and that Ms. Borders was the prevailing party for purposes of FDUTPA’s attorney’s fee provision. Ultimately, both parties retained and deposed opposing expert witnesses regarding Ms. Borders’ attorney’s billings, hourly rate, and results obtained. The trial court reviewed those transcripts and exhibits, and then considered legal memo-randa and argument regarding an appropriate award of attorney’s fees and costs at a one-hour hearing.

On appeal, Maroone argues that (1) Maroone prevailed on some of Ms. Borders’ claims, such that an evidentiary hearing and a reduction were required, and (2) the trial court erred in refusing to consider an early settlement proposal by Maroone that exceeded Ms. Borders’ ultimate recovery. On Maroone’s first point, however, the transcript of the attorney’s fee hearing demonstrates that the parties submitted, and the court considered, competent substantial evidence (expert witness deposition transcripts, hourly time records, and hourly fees for similar cases). The court reduced the claim for attorney’s fees by over one-half.

As Maroone did not assert any affirmative claims, and only Ms. Borders obtained a significant benefit sought in her lawsuit, she was the “prevailing party” under Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 809-10 (Fla.1992). FDUTPA’s attorney’s fee provision recognizes the policy of protecting consumers from unfair and deceptive trade practices and the need to attract private attorneys to take such cases by assuring them of a legal fee proportionate to their efforts if their clients prevail. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367-68 (Fla.2013). Such an award requires that the client prevail by recovering a judgment and, if there are counterclaims, by recovering a net judgment in the entire case. Id. at 368 (quoting Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266, 270 (Fla. 1st DCA 1985)). There is no express requirement of proportionality between the amount of the FDUTPA judgment and the attorney’s fees and costs incurred in obtaining that judgment.

Maroone’s second argument is also unpersuasive. Maroone’s offers of judgment addressed Ms. Borders’ claim for equitable relief as well as her claims for damages. The offer of judgment statute, section 768.79, Florida Statutes (2007), does not apply to cases that, as here, involve a general offer seeking release of all claims in the case, both equitable and monetary. Diamond Aircraft Indus., Inc., 107 So.3d at 374.

For these reasons, we affirm the trial court’s orders awarding attorney’s fees and costs to Ms. Borders.

      . §§ 501.201-.213, Fla. Stat. (2007).

      . § 501.2105, Fla. Stat. (2007).

      . For example, over 100 hours of Ms. Borders’ counsel’s tíme expended in opposing arbitration and in unsuccessfully appealing that issue to this Court (Borders v. Bull Mo

        tors, LLC, 998 So.2d 612 (Fla. 3d DCA 2008)) were excluded.


source: Caselaw Access Project

author: WELLS, Judge. SALTER, J.

license: Public Domain

text:
    Gabriel MOBLEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-1566.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.
    Rehearing Denied March 13, 2014.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant General Attorney, for respondent.
    Before SHEPHERD, C.J., and WELLS and SALTER, JJ.
   WELLS, Judge.

We have jurisdiction to review the instant petition for writ of prohibition seeking to preclude the court below from proceeding further in adjudicating criminal charges against petitioner, Gabriel Mobley, on the grounds that Mobley is immune from prosecution under the provisions of Chapter 776 of the Florida Statutes (Florida’s Stand Your Ground Law). See Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012) (“A writ of prohibition is the proper vehicle for challenging a trial court’s denial of a motion to dismiss a charge on the ground of immunity from prosecution pursuant to the Stand Your Ground Law.”); see also Little v. State, 111 So.3d 214, 216 n. 1 (Fla. 2d DCA 2013) (“We believe that the better avenue for review [of orders denying motions to dismiss asserting immunity under the Stand Your Ground Law] is a petition for writ of prohibition, which the supreme court has consistently held is an appropriate vehicle to review orders denying motions to dismiss in criminal prosecutions based on immunity.”).

The standard of review applicable to this case is the same as that which is applied to the denial of a motion to suppress. See Mederos, 102 So.3d at 11 (stating that “a review of a trial court’s order on a motion claiming immunity under the [Stand Your Ground] statute is governed by the same standard which applies in an appeal from an order denying a motion to suppress”); State v. Vino, 100 So.3d 716 (Fla. 3d DCA 2012) (citing Mederos for the applicable standard of review). Under this standard, the trial court’s findings of fact are “presumed correct and can be reversed only if they are not supported by competent substantial evidence,” while the trial court’s legal conclusions are reviewed de novo. Vino, 100 So.3d at 719. For the reasons that follow, we grant the petition but withhold issuance of our writ confident that the court below will comply with this court’s order.

Facts

Gabriel Mobley, the petitioner here, was charged with two counts of second degree murder following a shooting which took place outside a local Chili’s restaurant on February 27, 2008. The day of the fatal shooting, Mobley finished work around 3:00 pm at his pressure cleaning business, and after going home to shower and change, went to work at the tax preparation office of high school friend, Jose (Chi-co) Correa. After working several hours at Chico’s business, Mobley was invited by Chico to join him and his staff at a local Chili’s to unwind. Mobley agreed to join them but drove his own car intending to go home from the restaurant. When Mobley arrived at the restaurant, he removed the handgun that he was carrying and stowed the gun in the glove compartment of his car. He did so because he believed from the training that he had received to secure a concealed carry license that firearms could not be brought into any establishment where food and alcohol are served. By the time Mobley got to the restaurant, a number of Chico’s female employees had arrived and were sitting at a booth located near one end of the restaurant’s bar. Because the booth was crowded, Mobley, Chi-co, and another of Chico’s employees (another man) sat at the bar nearest the booth.

Sometime after food and drinks were ordered, Mobley and Chico went outside to smoke. They returned to the bar where they ate, drank and conversed without incident. However, things changed after Mobley and Chico went outside a second time for a smoke. This time when they reentered the restaurant, they found two men, later identified as Jason Gonzalez and Rolando (Roly) Carrazana, talking to Chico’s female employees. According to Chico, the women seemed to be uncomfortable so he told the men to leave. This sparked a verbal altercation between Chico and the two men which continued until the two men returned to their table at the other end of the bar. The altercation, which lasted only a few minutes, was loud enough to attract the attention of the restaurant’s security guard and its manager, who asked the guard to keep an eye on Jason and Roly.

Mobley was not involved in the argument but acted as peacemaker instead, going to Jason’s and Roly’s table to ask them to forget what he described as a petty misunderstanding. He even shook Jason’s hand and gave him a friendly pat on the back. Mobley also spoke to a third person seated at the bar who appeared to be with Jason and Roly about forgetting this petty disagreement.

Although the altercation appeared to have ended, Mobley testified that he began to feel uncomfortable after he noticed Roly staring in the direction of Chico’s party with a “mean, cold [look] on his face.” He decided it was time to leave. But before he left, he and Chico went to the restroom where he expressed his concerns to his friend. As Mobley and Chico were returning from the bathroom, they passed the front of the restaurant where Mobley saw Jason, with Roly nearby, banging aggressively on the restaurant’s window and pointing toward them. When Mobley and Chico reached their seats, Mobley suggested that after Jason and Roly left, they should all go home. Approximately ten to fifteen minutes later, after Jason and Roly appeared to have left, Mobley left the restaurant alone while Chico settled the check.

The events that transpired next were captured on a security camera recording made outside the restaurant, and, for the most part, are beyond dispute. The recording shows that at 23:52:15, Mobley, wearing only a sleeveless tee shirt, exited the Chili’s front door and went to his vehicle parked only feet away, but mostly outside the security camera’s viewing range. There, Mobley, as subsequent footage confirms, donned a sweat shirt, because, according to Mobley, it was chilly that night. He also retrieved his gun and put it in a holster that he wore around his waist. Less than a minute after Mobley left the restaurant, Chico and the third man in their party exited the front door. Chico was joined by Mobley who walked with Chico to his nearby car. There the two remained for approximately thirty seconds until, at 23:53:38, Mobley stepped onto the sidewalk near the front fender of Chico’s car. Approximately twenty seconds later, Chico joined him on the sidewalk where the two smoked a cigarette.

Four seconds after Chico joined Mobley on the sidewalk, Jason Gonzalez can be seen rapidly approaching from Mobley’s and Chico’s right. Four seconds after that, Jason delivered a vicious punch to Chico’s face which fractured Chico’s eye socket. Jason then can be seen to dance backward, hands raised in a fighter’s pose, and within four seconds of landing the punch on Chico advance forward toward Mobley. Mobley reacted by raising his arm and hand to ward Jason off. Two seconds later, as Jason steps back from Mobley, Roly can be seen rushing up from the rear of the restaurant to join Jason in what Mobley testified he believed to be a renewed attack on both himself and Chico. At this juncture, as Roly neared Jason, who was only feet from both Mobley and Chico, Mobley testified that he saw Roly reach under his long, baggy shirt. Believing that Roly was reaching for a weapon to use in an attack, Mobley drew his gun and shot at Roly hitting both Roly and Jason.

This entire series of events, from the time Jason first comes into view on the sidewalk until the first shot was fired, took only twelve seconds. After being shot, Jason turned and fled toward his (or Roly’s) car to collapse with a gunshot wound to the chest and die. Roly, hit four times, fell to the ground near the restaurant’s door where he was assisted by the third man in their party who had been sitting at the bar. Roly later died at a local hospital. Although no weapons were found on Roly’s body, two knives were found on the ground near where he fell.

Following the shooting, Mobley remained at the scene and had the other members of his party, who by then were leaving in their cars, return to wait for the authorities. When police officers arrived only minutes later, Mobley told them that he was armed and otherwise fully cooperated with them. After being held in a police car for a number of hours, he was transported to the police station where he was read and waived his Miranda rights. While there, he gave both an un-sworn and a sworn statement. He was then released but not charged.

Several weeks later, after a new lead investigator had been assigned to the case, Mobley agreed to be and was re-interviewed. While there is no indication that his version of the events changed in any manner during this interview, he subsequently was arrested and charged with two counts of second degree murder. Mobley claimed below and now claims here that these facts are undisputed and demonstrate that he is immune from prosecution as provided by sections 776.012 and 776.032 of the Florida Statutes. We agree in part that the pertinent facts are not in dispute and that Mobley is entitled to immunity from prosecution.

Analysis

Florida law confers immunity from criminal prosecution and civil liability, without the obligation to retreat, on those who use deadly force reasonably believing that the use of such force is necessary to either prevent imminent death or great bodily harm to self or others or to prevent the imminent commission of a forcible felony. See § 776.032, Fla. Stat. (2013) (providing that a “person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force”); see also § 776.012(1), (2), Fla. Stat. (2013) (providing that a “person is justified in the use of deadly force ... and does not have a duty to retreat if: (1) [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) [ujnder those circumstances permitted pursuant to s. 776.013”).

An objective standard is applied to determine whether the immunity provided by these provisions attaches. See Montanez v. State, 24 So.3d 799, 803 (Fla. 2d DCA 2010) (confirming that in determining whether the immunity accorded by section 776.032 attaches, “the objective, reasonable person standard by which claims of justifiable use of deadly force are measured” should be applied). That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. See Toledo v. State, 452 So.2d 661, 663 (Fla. 3d DCA 1984) (“[A] person in the exercise of his right of self-defense may use ‘only such force as a reasonable person, situated as he was and knowing what he knew, would have used under like circumstances.’ ” (quoting People v. Moody, 62 Cal.App.2d 18, 143 P.2d 978, 980 (1943))); see also Chaffin v. State, 121 So.3d 608 (Fla. 4th DCA 2013) (confirming that the standard to be applied for determining whether a person is justified in using deadly force in self-defense is not a subjective standard as to the defendant’s state of mind, but an objective standard as to a reasonably prudent person’s state of mind); Price v. Gray’s Guard Service, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974) (“The conduct of a person acting in self defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self defense.”).

Here, the court below determined that Mobley did not “reasonably” believe that deadly force was “necessary” to prevent “imminent” death, great bodily harm, or commission of a forcible felony. In doing so, the court discounted the totality of the circumstances facing Mobley and concluded that the use of deadly force was not reasonable, first, because Mobley “never saw a weapon and did not know anything about the possibility of a weapon,” with him only seeing “the second attacker appear to be reaching for something under his shirt,” and second, because Mobley should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun. We disagree for the following reasons.

As a preliminary matter, Mobley was not required to warn that he had a gun. Section 776.012(1), (2), clearly states where the danger of death, great bodily harm or the commission of a forcible felony is “imminent,” the use of deadly force is justified. The statute contains no warning requirement. See T.P. v. State, 117 So.3d 864, 866 (Fla. 4th DCA 2013) (quoting McWhorter v. State, 971 So.2d 154, 156 (Fla. 4th DCA 2007)) (“... [U]nder section 776.013, a person who is attacked is allowed to stand his or her ground and ‘meet force -with force.’ It appears that the new law places no duty on the person to avoid or retreat from danger, so long as that person is not engaged in an unlawful activity and is located in a place where he or she has a right to be. § 776.013(3), Fla. Stat. (2005) (Internal citation omitted).”).

As to the primary reason given by the court for rejecting Mobley’s “Stand Your Ground” defense — that Mobley did not see a weapon, this likewise cannot be deemed determinative. The record reflects that Mobley observed Jason viciously attack his friend Chico outside the Chili’s. Mobley then saw Jason’s friend Roly approach and reach under his shirt. It was then that Mobley became afraid for his safety and life and for that of his friend and he pulled his gun:

Q. Okay. So, as soon as he [Roly] was coming towards you, you shot?
A. Yes.
Q. Why did you first pull your firearm?
A. Why[?]
Q. Yes.
A. By this time, you know, I didn’t know what they had done — I didn’t know what Chico had got hit with, and it was so much blood, I freaked, I was scared and I seen [sic] this other guy coming up from the back.
And he reached up under his shirt. So, I was scared, I thought, they were going to shoot or kill us or stab us or something. So I was scared.

The shooting at issue did not occur in a vacuum. Mobley did not shoot two innocent bystanders who just happened upon him on a sidewalk. The record — as corroborated by a video of the events — is that (1) Mobley found himself in the middle of a ■violent, unprovoked attack on a companion who was standing right next to him, by one of two men who earlier had engaged in an altercation to which he was a witness; (2) after the initial violent attack on Mobley’s friend, the attacker immediately turned his attention to Mobley; (3) less than four seconds after that, the first attacker was joined by the second man involved in the altercation inside the restaurant; and (4) when the second man reached under his shirt after rushing up to join his companion who had not abandoned the field, Mob-ley believed the second man was reaching for a weapon to continue the attack. With these facts at hand, and with Mobley’s knowledge of these two assailants, the issue for determination was not whether Mobley knew a weapon was possible or whether he actually saw one, but whether a reasonably prudent person in those same circumstances and with the same knowledge would have used the force Mobley used.

Rather than applying the objective standard required, the court below instead focused on the events that transpired inside the Chili’s to entirely discount Mobley’s “expressed beliefs or intentions” about what occurred outside the Chili’s. The court found that because Mobley was not directly involved in the earlier altercation inside the restaurant between Chico and Jason/Roly, but had acted as peacemaker, he could not have feared for his own life during the events which happened later outside the restaurant. However the events that occurred inside the Chili’s are relevant only insofar as they provide the context for Mobley’s actions when the attack outside the restaurant occurred.

It may have been more prudent for Mobley and Chico to skitter to their cars and hightail it out of there when they had the chance; however, as even the State concedes and the court below recognized, Mobley and Chico had every right to be where they were, doing what they were doing and they did nothing to precipitate this violent attack. The only relevant inquiry was whether, given the totality of the circumstances leading up to the attack, the appearance of danger was so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of deadly force.

Because the preponderance of the evidence demonstrates that had the proper standard been applied, Mobley’s use of deadly force was justified, the motion to dismiss should have been granted. See Dennis v. State, 51 So.3d 456, 460 (Fla.2010) (confirming that, where a defendant claims immunity from prosecution under sections 776.012, 776.013 and 776.032, the court below must determine whether that defendant has shown by a preponderance of the evidence that the immunity attaches); Vino, 100 So.3d at 717 (“When a defendant invokes the statutory immunity, the trial court must hold a pre-trial eviden-tiary hearing to determine if the preponderance of the evidence warrants immunity.”).

In so holding, we are mindful that, under our standard of review which is akin to that applied to the trial court’s ruling on a motion to suppress, the trial court’s ruling comes to this court “clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” See R.J.C. v. State, 84 So.3d 1250, 1254 (Fla. 4th DCA 2012) (quoting Terry v. State, 668 So.2d 954, 958 (Fla.1996)); Smith v. State, 719 So.3d 1018, 1021 (Fla. 3d DCA 1998) (same). Nevertheless, considering the entire record and reasonable inferences derived therefrom in a manner most favorable to the trial court’s ruling, we nonetheless find there is no basis to support the trial court’s decision to deny immunity in this case.

Petition granted.

SHEPHERD, C.J., concurs.

SALTER, J.

(dissenting).

I respectfully dissent. Under the Stand Your Ground (SYG) immunity statute and applicable case law, the trial court is the initial fact finder regarding a defendant’s claim of immunity. The SYG hearing is nothing more or less than a mini-trial conducted by the court without a jury on the fact-intensive issues framed by the statute: in the present case, did the defendant reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony? The defendant bears the burden of proving these elements by a preponderance of the evidence, and the trial court’s findings of fact are presumptively correct for purposes of our review. Those findings can be reversed here only if they are not supported by competent substantial evidence. The trial court’s legal conclusions are reviewed de novo. State v. Vino, 100 So.3d 716, 719 (Fla. 3d DCA 2012) (“In conducting its review, an appellate court must restrain itself from the natural human impulse to consider that its own Anew of the facts is superior to that of a trial judge.”).

Regarding the facts, four judges have now split evenly on whether the defendant’s decisions to 1) take his Glock .45 out of the glove compartment of his truck, folloAving a verbal altercation within the restaurant, and 2) fire five shots into the two decedents, after a single punch was thrown outside the restaurant, met the requirements for SYG immunity. One was the trial judge who actually heard and observed thirteen -witnesses under oath and subjected to cross-examination. This Court was of course required to conduct its review of the testimony by reading it and -without observing the witnesses as they testified.

The facts are also ambiguous when it comes to the surveillance video recorded by the camera affixed to the outside of the restaurant. Did deceased victim Carraza-na appear to be reaching for a weapon, as the defendant testified? The video has only two frames per second (human vision is equivalent to 60 frames per second), and the camera caught the action from above and behind the incident. As described below, the few video freeze-frames of the incident seem to me to disprove, rather than prove the defendant’s testimony. These uncertainties confirm that the defendant’s claim is a classic, fact-based issue for the jury at trial.

Nor do I agree that the trial court committed any error of law in ruling on the defendant’s motion. The trial court’s reference to the defendant’s conflicting statements regarding the fear that purportedly caused him to shoot both decedents— whether a fear of imminent death or great bodily harm to (a) himself, (b) Chico Cor-rea, or (c) both of them — is a reflection (and not the only one) on the defendant’s disparate accounts of the incident, going to credibility, and not a legal error (application of a “subjective” standard regarding the defendant’s state of mind as opposed to an “objective” standard regarding a reasonably prudent person’s state of mind), as characterized by the majority. For these reasons, we should deny the defendant’s petition without prejudice to his right to present SYG immunity and self-defense as affirmative defenses at trial.

Additional Facts

A number of additional facts in the record before us warrant specific consideration. The first is that the defendant and his friend Mr. Correa went outside to smoke cigarettes three times during their visit to the restaurant on the evening in question. During the first and second of those cigarette breaks, the defendant was unarmed — his firearm was inside the glove compartment of his truck — and he was wearing a sun shirt. Only at the time of his third exit from the restaurant (after the verbal exchanges inside the restaurant, and after the defendant had told others that he planned to return home to his pregnant wife), did he instead unlock his truck, put on a sweatshirt, retrieve his firearm and holster from the glove compartment, and tuck the holstered firearm into his belt under the sweatshirt. Instead of going home to his wife as he had said, the defendant lingered on the sidewalk with Mr. Correa for a third, fateful smoke.

It was a cool February evening in Miami when the defendant had first arrived at the restaurant (well after 9:00 p.m.), but he had not put on his sweatshirt for the first and second cigarette breaks. He did not unlock his truck and put on his sweatshirt until the sweatshirt was used to cover his holster and Glock .45.

A second factual point for consideration is the punch thrown by Mr. Gonzalez at Mr. Correa’s right eye. The testimony established that: Mr. Correa did not fall to the ground; his injury was treated with an ice pack at the scene; his vital signs were normal when he was checked by a fire rescue lieutenant at the scene after the incident; and he declined to be transported to an emergency room or other medical provider for treatment that night. Mr. Gonzalez’s blow drew blood and, according to Mr. Correa’s description of a later diagnosis, fractured his eye socket, but ordinarily an assessment of “great bodily harm” is a jury issue. Cloninger v. State, 846 So.2d 1192 (Fla. 4th DCA 2003). Classification of Mr. Correa’s injury as a forcible felony would also turn on whether the single punch intentionally or knowingly caused “great bodily harm, permanent disability, or permanent disfigurement.”

A third factual consideration involves the surveillance video of the incident and freeze-frame images from that video. The images do not corroborate the testimony by Mr. Correa and the defendant that the second decedent, Mr. Carrazana, seemed to be reaching under a jacket as if for a weapon. To the contrary, Mr. Carrazana is not fully visible in the images until time stamp label 23:54:09. In that image, the defendant was off the sidewalk, three feet or so into a vacant parking place, and Mr. Carrazana had both hands well away from his waistline, extended as in a normal gait. Both hands were visible and neither held a weapon. His sleeves were rolled up.

In the next frame, stamped 23:54:10, the defendant’s line of sight to Mr. Carrazana was blocked by Mr. Gonzalez. In the very next frame, 23:54:11, both Mr. Gonzalez and Mr. Carrazana are staggering from the first gunshot or gunshots that hit them. The evidence at the SYG hearing did not establish that either decedent carried a knife, displayed a knife, or that Mr. Correa or the defendant ever saw a knife before the defendant opened fire. The two restaurant knives later found outside the door (after the incident) were not shown by the defense to have been obtained, displayed, or held by either decedent at any time.

The fourth and final factual point warranting additional discussion is also pertinent in self-defense and SYG cases — the relative size and weight of the parties involved in an attack claimed to justify the use of deadly force. In the present case, the decedents were five feet, eight inches, and 217 pounds (Mr. Gonzalez), and five feet, six inches, and 156 pounds (Mr. Car-razana). Mr. Correa, punched by Mr. Gonzalez, was six feet, one inch, and 285 pounds, while the defendant was six feet, two inches, and weighed 285 pounds.

Having addressed these four additional factual points that were part of the record before the trial court, I next turn to the majority’s conclusion that the trial court applied the incorrect legal standard to the evidence. As noted at the outset, the trial court’s rulings on matters of law are subject to de novo review here.

Montanez and the “Objective, Reasonable Person" Standard

While I agree with the majority that the “objective, reasonable person” standard applies to an assessment of whether the use of deadly force is justifiable (under Montanez v. State, 24 So.3d 799, 803 (Fla. 2d DCA 2010), and Fla. Std. Jury Instr. (Crim.) 3.6(f)), I disagree with the majority’s further conclusions regarding the trial court’s adherence to that standard and the remedy applicable to the alleged failure to apply that standard.

As to the argument that the trial court erroneously applied a subjective, state-of-the-defendant’s mind standard, it must be remembered that the “objective, reasonable person” is not a hypothetical, unknowing stranger dropped into the altercation and the defendant’s shoes a microsecond before Mr. Gonzalez punched Mr. Correa. The “objective, reasonable person” is a person situated in the same circumstances as the defendant and knowing what the defendant knew. Montanez at 803 n. 6; Slip Op. at 1164.

In the present case, the trial court correctly assessed those circumstances and the defendant’s state of knowledge; the trial court did not otherwise dwell on the defendant’s subjective state of mind or intentions. The fact-intensive determination of whether a reasonable and prudent person in the defendant’s shoes might have perceived that Mr. Carrazana was reaching for a deadly weapon turned on the court’s assessment of the defendant’s credibility. The defendant and his friend of 17 years were the only living eyewitnesses to that important fact. The video and freeze-frame images did not definitively prove or disprove the reasonableness of that alleged perception — an alleged perception which turned out to be erroneous.

Simply stated, the justifiability of this defendant’s use of force, or of a hypothetical “reasonably prudent person’s” use of force, turns on a fact dependent on the defendant’s credibility. The majority disagrees with the trial court regarding the trial court’s assessment of the defendant’s credibility, but that is an assessment to which we should defer. There is competent, substantial evidence in this record to support the trial court’s determination that the defendant failed to prove his entitlement to immunity. In such a case, the petition should be denied. Mederos v. State, 102 So.3d 7, 10 (Fla. 1st DCA 2012).

My second departure from the majority’s analysis involves the remedy that would be appropriate if it were established (though it has not been) that the trial court committed legal error by applying the wrong standard. The majority would grant the petition and thereby mandate the discharge of the defendant on grounds of immunity. However, since jeopardy never attached — the SYG hearing is a mini-bench trial on a jurisdictional issue— the correct remedy based on the majority’s conclusion would be a remand to the trial court to apply the allegedly-correct legal standard and rule accordingly. That is the result when, for example, the trial court erroneously grants a motion to dismiss in a criminal case and we reverse and remand for reinstatement of the information. State v. Gomez, 103 So.3d 258 (Fla. 3d DCA 2012).

Conclusion

For these reasons, I respectfully dissent. I would deny the defendant’s petition for prohibition without prejudice to his rights to raise self-defense and SYG immunity as affirmative defenses and issues for resolution by a jury. I would also vacate this Court’s order of August 15, 2013, which stayed criminal trial proceedings in this case pending further order of this Court.

      . Mobley testified that he was temporarily working two jobs to earn extra money because his wife, a school teacher, was soon to go on maternity leave following the birth of the couple’s second child.

      . It is conceded that Mobley was properly licensed to carry a concealed firearm.

      . The trial court expressly found that "[i]n accordance with Florida law, Mr. Mobley did not bring the firearm in to the Chili’s that night

      . These events were corroborated by a number of witnesses and are not disputed.

      . Alexandra Martinez, a server at the restaurant called by the State to testify, confirmed that Jason and Roly continued to be angry after the initial shouting match had ended and appeared to become angrier as the evening wore on.

      . Ms. Martinez also observed this as did Roberto Londono, the bartender at the restaurant.

      . The video recording confirms that Chico was wearing a coat and that most everyone else who appears on the recording was wearing either a sweat shirt or a long sleeved shirt.

      . The third man walked to his car parked next to Chico’s and remained there until after the shooting occurred.

      . According to Ms. Martinez, the man who went to Roly’s aid after he was shot took a knife with him when he left the restaurant.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . § 776.032, Fla. Stat. (2008).

      . Darling v. State, 81 So.3d 574 (Fla. 3d DCA), review denied, 107 So.3d 403 (Fla.2012).

      . “The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in ‘Stand Your Ground’ cases squarely upon the trial judge's shoulders.” State v. Gallo, 76 So.3d 407, 409 (Fla. 2d DCA 2011).

      . Compare § 784.03(1), Fla. Stat. (2008) (misdemeanor battery) to § 784.041(1), Fla. Stat. (2008) (felony battery) and § 784.045, Fla. Stat. (2008) (aggravated battery, also a felony).

      . The forensic evidence confirmed that one gunshot, fired from several feet away, hit Mr. Gonzalez (who had been in front of Mr. Car-razana and was closest to the defendant), who then turned and staggered several steps away from Mr. Mobley before collapsing and dying. Additional gunshots (also fired from several feet away) hit, and ultimately killed, Mr. Car-razana.


author: PER CURIAM.

text:
    Horace E. JENKINS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5911.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2014.
    Rehearing Denied March 3, 2014.
    Horace E. Jenkins, 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.

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


text:
    Arthur FALCONE, et al., Appellants, v. Edie LAQUER, et al., Appellees.
    Nos. 3D13-2122, 3D13-490.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 18, 2014.
    Berger Singerman, and Mitchell W. Berger, Anthony Carnudo, and Elaine Johnson, Ft.Lauderdale, for appellants.
    Paul Morris, for appellees.
    Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   SALTER, J.

These are consolidated appeals from non-final orders denying the appellants’ motions to compel arbitration of claims asserted in the appellees’ second and third amended complaints. We dismiss as moot the appeal taken from the order relating to the second amended complaint. We affirm the trial court’s order relating to the third amended complaint, and we provide this opinion simply to clarify that we have not in any way receded from our prior opinion requiring arbitration of certain specific cross-claims in four foreclosure cases, as detailed in 13 Parcels LLC v. Laquer, 104 So.3d 377 (Fla. 3d DCA 2012).

Parties and Claims

The underlying circuit court case (the “Joint Venture Lawsuit”) was brought by the appellees, Edie Laquer and two Florida companies controlled and managed by her (collectively, “Laquer”), against appellants, Palm Beach developers Arthur Fal-cone and Marc Roberts and some thirty-six companies controlled by them (collectively, “Developers”). The claims by La-quer arise out of work with the Developers to assemble a multi-million dollar, twenty-five acre parcel of real estate on the northern edge of downtown Miami for the “Miami WorldCenter” project. Miami World-Center was to include office, retail, hotel, and residential space as a “city within a city.”

Laquer’s third amended complaint in the Joint Venture Lawsuit alleges that in 2005 she, Falcone, and Roberts, for themselves and their respective limited liability companies, formed a partnership to assemble and develop the Miami WorldCenter. Under the alleged agreement, a discrete limited liability company (LLC) would be formed to acquire each of the component parcels of real estate assembled for the project, and Laquer was to have the right to acquire up to a ten percent interest in each such LLC. Laquer alleges that she was also entitled to acquire up to a five percent interest in additional LLCs that would be formed by the Developers to develop the project on the component parcels.

During 2005 and 2006, the third amended complaint alleges, six parcels were acquired in the name of Florida LLCs as contemplated by the partnership agreement. Laquer allegedly contributed 10% of the financial capital to the respective LLCs, which also obtained institutional mortgage loans from two banks. The banks required personal guarantees from Laquer and the other principals in the project. As to these six entities, detailed written LLC operating agreements for the entities were prepared and executed by Laquer’s company and the Roberts entity formed to hold his interest in that particular parcel. A “dispute resolution” provision in each of these LLC operating agreements specified: “In the case of any dispute between the parties which has not been resolved through negotiation between the parties, such dispute shall be settled and determined through arbitration in accordance with the Rules of Commercial Arbitration of the American Arbitration Association (‘AAA’).”

Other contract and option rights to acquire parcels, however, did not progress to the point that operating agreements were provided to Laquer for the LLCs intended to acquire the additional parcels. As to those parcels and anticipated additions to the WorldCenter project and partnership, therefore, the appellees maintain that the disputes were not subject to an arbitration provision.

The Prior Appeal

The six LLCs which acquired parcels and arranged for signed LLC operating agreements defaulted on their bank loans. Laquer and members of two of the LLCs ultimately settled their disputes regarding the loan defaults and the defense of the member/guarantors in two of the six foreclosure cases. Laquer asserted claims against the other four LLCs and their members in two different ways: (1) in the bank foreclosure cases, Laquer asserted cross-claims against the LLCs for failing to provide a defense to her in those cases, and (2) in the separate Joint Venture Lawsuit, she included those LLCs as part of a claim for a declaration of her equity interests and for damages for breach of the WorldCenter partnership agreement.

Those four LLCs and Falcone moved to compel arbitration of the “duty to defend” cross-claims based on the dispute resolution provisions of the LLC operating agreements. The trial court denied the motion, finding that the LLCs and Falcone had waived their right to demand arbitration by participating in the foreclosure lawsuits and the Joint Venture Lawsuit.

On appeal, we reversed. 13 Parcels LLC, 104 So.3d 377. We held that the arbitration provision in the operating agreements controlled the “duty to defend” cross-claims in the four foreclosure cases, and that actions taken in the continuing Joint Venture Lawsuit did not constitute a waiver of the cross-claim defendants’ right to demand arbitration in the four separate foreclosure suits. Id. at 380. We did not consider or decide whether the arbitration provisions in the four operating agreements then before us would mandate arbitration of any other dispute or claim asserted in the third amended complaint in the Joint Venture Lawsuit.

Thereafter, the defendants in the Joint Venture Lawsuit moved to compel arbitration in that case. The trial court denied the motion, and this appeal followed.

Analysis

The trial court’s ruling must be affirmed for two independently sufficient reasons. First, the Joint Venture Lawsuit is a much larger ease that includes claims, parties, and alleged agreements that are not governed by written dispute resolution provisions. As summarized in Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999):

Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.

With respect to the remaining claims under the Joint Venture Lawsuit (which do not include the “duty to defend” cross-claims in the four separate foreclosure cases), there is no valid written agreement to arbitrate those remaining claims.

Second, any limited right to arbitrate under the four LLC operating agreements (regarding only four of the thirty-seven defendants in the Joint Venture Lawsuit) was waived by the filing of the defendants’ motion to dismiss and memo-randa, the discovery sought and provided, the motion for summary judgment, and the counterclaims against the plaintiffs, all of which are inconsistent with the alleged right to compel arbitration. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707 (Fla.2005).

We thus affirm the trial court’s order denying the defendants’ motion to compel arbitration regarding the third amended complaint in the Joint Venture Lawsuit (Case No. 3D13-2122). We dismiss as moot the appellants’ earlier and separate appeal from the trial court order denying their motion to compel arbitration of the claims set forth in the second amended complaint in the Joint Venture Lawsuit (Case No. 3D13 — 490). This opinion does not in any way affect the prosecution of the arbitration claims between Laquer and the four LLCs on the “duty to defend” claims and as described in our 13 Parcels LLC opinion.

Affirmed.

      . Case No. 3D13-490 became moot when the third amended complaint was filed. We therefore dismiss that case. See, e.g., Vanderberg v. Rios, 798 So.2d 806, 807 (Fla. 4th DCA 2001). Case No. 3D13-2122 is an appeal from the circuit court’s denial of a motion to compel arbitration of the claims set forth in the appellees’ third amended complaint in the Joint Venture Lawsuit.

      . The dispute resolution provision contained additional details regarding the selection of the single arbitrator, confirmation of any award, and the recovery of attorney’s fees and costs by the prevailing party.

      . The four LLCs involved in these foreclosures were 13 Parcels LLC; 46 NE 10th LLC; 44 NW X 1th LLC; and 700 NE 1st LLC.


author: ROTHENBERG, J.

text:
    Cynethia L. JOHNSON, Appellant, v. GREAT EXPRESSIONS DENTAL CENTERS OF FLORIDA, P.A., et al., Appellees.
    No. 3D13-794.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.

      The Law Offices of Anthony & Associates, P.A., and Bradley A. Silverman, Coral Gables; Stanley Kiszkiel, P.A., Pembroke Pines, for appellant.
    DiBello, Lopez & Castillo, P.A., and Carlos B. Castillo and Clayton D. Hackney, Coral Gables; and Young Basile Han-lon & MacFarlane, PC, and Jeffrey D. Wilson, Troy, Michigan, for appellees.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

Cynethia L. Johnson (“Johnson”) appeals the trial court’s order granting summary judgment in favor of all three defendants on her Florida Civil Rights Act of 1992 wrongful termination claim. We affirm.

Great Expressions Dental Centers of Florida, P.A. (“GEDC”) hired Johnson as a patient coordinator in one of its dental offices in April 2009. Johnson indisputably had a rocky relationship from the inception of her employment with the primary dentist, Dr. Jessica Papir (“Dr. Pa-pir”), and the record reflects that Johnson also had various disputes with her coworkers and with GEDC’s patients. Johnson was issued two separate formal warnings regarding her conduct, and then was eventually terminated in December 2009 when she allegedly showed up to work late, dressed inappropriately, and with a bad attitude.

Johnson subsequently brought the underlying suit under the Florida Civil Rights Act of 1992, section 760.01 et seq., Florida Statutes (2009) (“FCRA”), claiming that she was terminated due to her race in violation of the FCRA. In support of her wrongful termination claim, Johnson primarily relies on (1) the fact that her supervisor refused to transfer her to another GEDC location after Johnson continued to have problems with Dr. Papir; and (2) her contention that three of the four black employees at that particular GEDC dental office either quit or were fired in 2009, and the fourth quit in 2011. Johnson claims these allegations are circumstantial evidence of racial discrimination upon which a reasonable jury could infer Johnson was fired due to her race.

ANALYSIS

The FCRA protects employees from racial discrimination in the workplace, and provides, in relevant part: “It is an unlawful employment practice for an employer ... [t]o discharge ... any individual ... because of such individual’s race 760.10(l)(a), Fla. Stat. (2009). Because the FCRA is patterned after Title VII of the federal Civil Rights Act of 1964, as amended, 42. U.S.C. § 2000e et seq., we look to federal case law as well as Florida decisions to interpret the statute. Valenzuela v. GlobeGround N. Am., LLC, 18 So.3d 17, 21 (Fla. 3d DCA 2009); Fla. Dep’t of Cmty. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991).

A plaintiff can establish a prima facie case for discrimination either by direct evidence, which requires actual proof that the employer acted with a discriminatory motive when making the employment decision in question, Scholz v. RDV Sports, Inc., 710 So.2d 618, 624 (Fla. 5th DCA 1998), or by circumstantial evidence, which typically requires a plaintiff to satisfy the four-prong test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here, Johnson’s claim is based solely on circumstantial evidence.

In McDonnell Douglas, the United States Supreme Court held that in order to establish a prima facie case of discrimination based on circumstantial evidence, a plaintiff must show that he or she: (1) belongs to a protected class; (2) was qualified to do the job; (3) was subjected to an adverse employment action; and (4) the employer treated similarly situated employees outside the class more favorably. Id. at 802, 93 S.Ct. 1817. If a plaintiff satisfies all four prongs of the McDonnell Douglas framework, then the burden shifts to the employer to produce evidence of a legitimate, non-discriminatory reason for the termination. Id. at 802-03, 93 S.Ct. 1817. If the employer is able to articulate legitimate reasons for terminating the employee, the burden then shifts back to the plaintiff to show that each of the reasons proffered is a pretext for unlawful discrimination. Id. at 804-05, 93 S.Ct. 1817. Additionally, a plaintiff who is unable to establish a prima facie case cannot survive summary judgment. See, e.g., Valenzuela, 18 So.3d at 22. The parties in this ease agree that the first three elements of the McDonnell Douglas test were satisfied. Thus, the issue on appeal is whether Johnson satisfied the fourth prong by identifying a comparator of another race that was treated more favorably.

Johnson has identified a white GEDC employee who was working at a different location, Ms. Colls (“Colls”), that Johnson contends is sufficiently similar to satisfy the fourth prong of McDonnell Douglas. Johnson claims that Colls is a relevant comparator because Colls and Johnson have the same regional supervisor, and Colls was also given two written warnings, but was not terminated. However, an adequate comparator must be “similarly situated ‘in all relevant respects.’ ” Valenzuela, 18 So.3d at 23 (quoting Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003)). In discussing the rigorous showing required to establish a comparator, this Court has stated:

Similarly situated employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiffs, without such differentiating conduct that would distinguish their conduct or the appropriate discipline for it.

Id. at 22-23 (internal citations and quotations omitted).

We agree with the trial court that Colls is not sufficiently similar, and thus, Johnson failed to satisfy her burden of presenting a prima facie case of racial discrimination. Colls had a different immediate supervisor for all times relevant to this action; the nature of Colls’ offenses was different; the warnings given to Colls were spread out over a longer period of time; and Colls accepted responsibility for her actions.

The record reflects that Johnson was terminated because she was the subject of frequent complaints from both patients and from Johnson’s coworkers regarding her conduct, lack of professionalism, and poor attitude. Johnson does not dispute that these complaints were made and received by GEDC. Johnson was a patient coordinator, and thus, her interaction with patients was of the utmost concern. It was reported that Johnson engaged in a shouting match with a patient which resulted in Johnson having to be restrained by a co-worker; Johnson does not dispute that she left work early the evening prior to her termination even after being told that she must stay until the end of her shift; and Johnson came to work late the following morning with a poor attitude. In general, Johnson’s overall work performance was poor although she was given several previous warnings to change her behavior. Despite these warnings, Johnson continued to behave unprofessionally and blamed her problems on Dr. Papir.

In contrast, Colls was disciplined on a total of three occasions spanning several years — not the relatively short few months of Johnson’s employment — for making clerical and billing procedure errors; Colls acknowledged her performance deficiencies and demonstrated a willingness to improve; no patient complaints have been filed against her; she gets along with her coworkers; and there is no evidence that she has an “attitude problem.” On the other hand, Johnson refused to take any responsibility for her actions and, on the day that she was fired, she came to the office late, with a bad attitude, and allegedly inappropriately dressed. Thus, Colls is insufficient as a comparator, and Johnson failed to satisfy her initial burden of establishing a prima facie case of discrimination under the McDonnell Douglas framework.

Johnson also contends that the four-prong McDonnell Douglas test is not the exclusive means by which a plaintiff can establish a prima facie case for discrimination. Some recent federal court decisions have recognized an alternative means of establishing a prima facie case through circumstantial evidence when there is not a sufficient comparator. For example, in Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011), the Eleventh Circuit, after holding that the plaintiff had not identified a sufficient comparator to satisfy the fourth prong of McDonnell Douglas, stated:

However, establishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case. Accordingly, the plaintiffs failure to produce a comparator does not necessarily doom the plaintiffs case.
Rather, the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent. A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the deci-sionmaker.

(internal citations, quotations, and footnotes omitted). Thus, Johnson argues she can survive summary judgment by presenting a “convincing mosaic” of circumstantial evidence that GEDC terminated her employment based on her race.

Whether the Lockheed-Martin “convincing mosaic” test is a viable alternative to the four-prong McDonnell Douglas test appears to be an unsettled question of federal law. It appears that only the Seventh and Eleventh Circuit Courts of Appeal have adopted this standard. Compare Smith, 644 F.3d at 1328 and Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir.2004) (both applying the “convincing mosaic” test in an employment discrimination case) with U.S. v. City of New York, 717 F.3d 72, 83-84 (2d Cir.2013); Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir.2013); Haire v. Bd. of Supervisors of Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363-64 (5th Cir.2013); Rachells v. Cingular Wireless Employee Servs., LLC, 732 F.3d 652, 661 (6th Cir.2013); Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir.2013); Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir.2013); Cruz v. Bristol-Myers Squibb Co., PR, Inc., 699 F.3d 563, 571 (1st Cir.2012); Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir.2012); and Weathers v. Univ. of N. Carolina at Chapel Hill, 447 Fed.Appx. 508, 510 (4th Cir.2011) (all utilizing some form of the traditional McDonnell Douglas test as the only circumstantial method of proof in a Title VII claim). Even in the Seventh and Eleventh Circuits, which have applied the “convincing mosaic” test, the test was applied under differing circumstances. Compare Smith, 644 F.3d at 1328 (utilizing the “convincing mosaic” test in an indirect circumstantial evidence employment discrimination case); with Rhodes, 359 F.3d at 504 (7th Cir.2004) (explaining that the “convincing mosaic” test is a method of direct proof of discrimination).

We also note that no Florida court has adopted or even mentioned the “convincing mosaic” standard. See, e.g., City of W. Palm Beach v. McCray, 91 So.3d 165, 171 (Fla. 4th DCA 2012); City of Miami v. Hervis, 65 So.3d 1110, 1117 (Fla. 3d DCA 2011). More importantly, we need not decide whether to adopt the “convincing mosaic” test because Johnson clearly fails under the “convincing mosaic” standard as well as the traditional McDonnell Douglas framework.

The record reflects that only one African American employee other than Johnson was terminated at the location where Johnson worked — the other two left voluntarily — and the record reflects that the turnover rate for employees in Johnson’s position is quite high. Additionally, Johnson was unable to transfer to another GEDC location because the available positions all required a bilingual patient coordinator, and Johnson admittedly does not speak Spanish. Accordingly, Johnson failed to present a prima facie case of racial discrimination and the trial court properly granted GEDC’s motion for summary judgment against Johnson’s FCRA claim for wrongful termination under either standard of proof.

Even if Johnson had been able to establish a prima facie case by either method of proof, the burden would merely have shifted to GEDC to produce a legitimate, non-discriminatory reason for the termination. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. GEDC has proffered several legitimate reasons for Johnson’s termination, all of which are supported by the record. Patients have complained about Johnson’s service and demeanor; other GEDC employees have testified that Johnson was difficult to work with and had a bad attitude; and Johnson left early when she was directly told not to, and then came in late the very next workday after she was reprimanded. Any of these actions provided a legitimate and sufficient justification for GEDC to terminate Johnson, and Johnson has produced no evidence that these reasons are pretex-tual. Thus, the trial court properly granted summary judgment.

Affirmed.


text:
    Terry D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5992.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 27, 2014.
    Terry D. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(5).

LEWIS, C. J., PADOVANO and MARSTILLER, JJ., concur.


text:
    Christopher J. MOSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6001.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Rehearing Denied March 3, 2014.
    Christopher J. Mosley, 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.

LEWIS, C.J., PADOVANO and MARSTILLER, JJ., concur.


author: EMAS, J.

text:
    Pilar PENA, etc., et al., Appellants, v. DESIGN-BUILD INTERAMERICAN, INC., et al., Appellees.
    No. 3D12-2654.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Rehearing Denied March 6, 2014.

      David M. Shenkman, Coconut Grove; Robert Rosenblatt; Hunter Williams and Lynch, and Christopher Lynch, Miami, for appellants.
    Eduardo Cosio and Julie Bork Glass-man, Coral Gables; Cole Scott & Kissane and Anne Sullivan Magnelli, Miami, for appellees.
    Before SUAREZ, LAGOA and EMAS, JJ.
   EMAS, J.

Pilar Pena, individually, as plenary guardian of the person and property of her husband, Alberto Zambrana, and as guardian of her children, Milena and Miledais Zambrana, (“Pena”) appeals from a final summary judgment entered in favor of Design-Build Interamerican, Inc. (“DBI”),

Manny Leon, Pedro Ramos, Sergio Ruiz (collectively, the “DBI Defendants”), Joel Gonzalez, Samuel Gonzalez, and Jose Cas-telnaux, a/k/a Jose Bonne (collectively, the “Royal Plumbing Defendants”). The trial court entered summary judgment in favor of these Defendants, finding there were no genuine issues of material fact, and that Defendants were entitled to worker’s compensation immunity under section 440.11(1), Florida Statutes (2008). We reverse, holding that a genuine issue of material fact remains in dispute whether, at the time of the accident and for purposes of worker’s compensation immunity, Zam-brana was employed by Royal Plumbing Corporation or One Stop Plumbing Supply, Inc.

BACKGROUND

A.The Parties

In April 2008, DBI served as the general contractor and construction manager on a construction project at a leased processing plant in Miami. Manny Leon was the president of DBI; Pedro Ramos was its vice-president; and Sergio Ruiz was an employee of DBI. Royal Plumbing Corporation (“Royal Plumbing”) was the plumbing subcontractor, and One Stop Plumbing Supply, Inc. (“One Stop Plumbing”) supplied plumbing parts to Royal Plumbing. Joel Gonzalez was the president of both Royal Plumbing and One Stop Plumbing, and the two companies operated out of a single location. Samuel Gonzalez and Jose Castelnaux a/k/a Jose Bonne (“Bonne”) were employees of Royal Plumbing. Alberto Zambrana worked as a plumbing supply deliveryman for either Royal Plumbing or One Stop Plumbing (or both).

B. The Facts and the Injury

On April 4, 2008, Zambrana, while in the course and scope of his employment, delivered a steel pipe to the construction site. Once at the site, he was told by Alberto Bogantes, a Royal Plumbing employee, to take the steel pipe to an upper level location. Zambrana helped carry the pipe up to the second level, and held the pipe in place while it was installed. As he was walking toward the lift to return to the lower level, Zambrana stepped on a false ceiling and fell from the upper level some twenty feet to the ground below. Zambra-na was seriously injured, leaving him in a persistent vegetative state. His wife, Pena, was appointed plenary guardian of Zambrana, and filed a lawsuit on his behalf against the DBI Defendants and the Royal Plumbing Defendants for negligence and for loss of consortium on behalf of herself and Zambrana’s two children.

C. Procedural History

Prior to filing the lawsuit, Pena received worker’s compensation benefits for her husband’s injuries from State Farm Florida Insurance Company, the worker’s compensation insurer for both Royal Plumbing and One Stop Plumbing. In their answers to the amended complaint, all of the Defendants asserted worker’s compensation immunity as an affirmative defense, and they later filed motions for summary judgment on this basis.

The issue presented at the motion for summary judgment was whether Zambra-na was an employee of Royal Plumbing or One Stop Plumbing. Pena asserted there remained genuine issues of disputed fact regarding whether Zambrana was employed by Royal Plumbing or by One Stop Plumbing, precluding summary judgment on the basis of worker’s compensation immunity, and further, that exceptions existed to any claim of worker’s compensation immunity. The trial court concluded there were no genuine issues of material fact, and found that Zambrana was a Royal Plumbing employee. The trial court entered final summary judgment in favor of the DBI Defendants and the Royal Plumbing Defendants. This appeal followed.

ANALYSIS

This court reviews orders granting summary judgment de novo. Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In doing so, we must review the record in a light most favorable to the non-moving party. Delandro v. America’s Mortg. Servicing, Inc., 674 So.2d 184 (Fla. 3d DCA 1996). Importantly, “[i]f the evidence raises any issue of material fact, ... is conflicting, [or] permit[s] different reasonable inferences, ... it should be submitted to the jury as a question of fact.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

There is no dispute that Zambrana was provided worker’s compensation benefits in this case. However, Pena contends the evidence is conflicting as to whether Zam-brana was employed by Royal Plumbing or One Stop Plumbing at the time of the accident, and thus, the jury must decide that issue before the court can determine whether Appellees are entitled to worker’s compensation immunity as a matter of law. After reviewing the record in the light most favorable to Pena, we agree.

A. Worker’s compensation immunity in Florida

Pursuant to Chapter 440, Florida Statutes, employers in Florida are required to provide worker’s compensation coverage for their employees. Deen v. Quantum Res., Inc., 750 So.2d 616 (Fla.1999). The Worker’s Compensation Law was enacted to “assure the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2008). Of significance, the Legislature has expressed the following legislative intent:

[T]he worker’s compensation system in Florida is based on a mutual renunciation of common-law rights and defenses by employers and employees alike.
[Disputes concerning the facts in workers’ compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or the employer on the other hand, and the laws pertaining to worker’s compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.

Id.

In construing the statutory worker’s compensation scheme, the Florida Supreme Court has observed:

“As a quid pro quo for requiring employers’ liability for payment of workers’ compensation benefits, the statute provides to such employers an immunity from tort lawsuits by employees” under certain circumstances. Deen, 750 So.2d at 618. This system “provides employees limited medical and wage loss benefits, without regard to fault, for losses resulting from workplace injuries in exchange for the employee relinquishing his or her right to seek certain common law remedies from the employer for those injuries under certain circumstances.” Jones v. Martin Elecs., Inc., 932 So.2d 1100 (Fla.2006). “It is the obligation to secure workers’ compensation that gives the employer immunity from suit as a third-party tortfeasor.” Cuero v. Ryland, Grp. Inc., 849 So.2d 326, 328 (Fla. 2d DCA 2003) (citing Jones v. Fla. Power Corp., 72 So.2d 285, 287 (Fla.1954)).

Section 440.10(l)(a), Florida Statutes (2008) provides:

Every employer coming within the provisions of this chapter shall be liable for, and shall secure, the payment to his or her employees ... of the compensation payable under ss. 440.13, 440.15, and 440.16. Any contractor or subcontractor who engages in any public or private construction in the state shall secure and maintain compensation for his or her employees under this chapter as provided in s. 440.38.

Section 440.10(l)(b) provides further:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engage on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

See also, Adams Homes of NW Fla. v. Cranfill, 7 So.3d 611, 613 (Fla. 5th DCA 2009) (noting statutory employer who ensures that subcontractor secures worker’s compensation coverage is immune from suit for the employees’ personal injuries.)

Accordingly, because Royal Plumbing was DBI’s subcontractor, if Zambrana was employed by Royal Plumbing (rather than One Stop Plumbing), DBI would be considered Zambrana’s statutory employer and would also be entitled to worker’s compensation immunity.

Under section 440.11(1), Florida Statutes (2008):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:
(a) If an employer fails to secure payment of compensation as required by this chapter....
(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death.
The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082.

Thus, under Florida law, not only would Zambrana’s employer (and any statutory employer) be entitled to immunity, so too would his fellow employees and the employees of Zambrana’s statutory employer. Fla. Dep’t of Transp. v. Juliano, 864 So.2d 11 (Fla. 3d DCA 2003). If Royal Plumbing was Zambrana’s employer, all of the DBI Defendants and Royal Plumbing Defendants would be entitled to immunity, absent the application of any statutory exception. If however, Zambrana was employed by One Stop Plumbing, a supply company and not a subcontractor, none of the Ap-pellees would be entitled to immunity.

The trial court concluded that there were no genuine issues of material fact, and that Zambrana was a Royal Plumbing employee. Pena contends the trial court erred because genuine issues of material fact remain in dispute on this question.

B. Evidence that Royal Plumbing was Zambrana’s Employer

The following summarizes the evidence offered by Appellees to establish that Royal Plumbing was Zambrana’s employer:

- Zambrana’s employee file included: an employment application on Royal Plumbing letterhead; W-2 forms for 2006-2008 listing Royal Plumbing as Zambrana’s employer; a new hire reporting form for the State of Florida from Royal Plumbing referencing Zambrana’s hiring; weekly pay stubs from Royal Plumbing to Zambrana dated August 10, 2006 through April 9, 2008;
- Pena (Zambrana’s wife) testified at her deposition that Royal Plumbing employed her husband;
- The petition for worker’s compensation benefits signed by Pena listed Royal Plumbing as Zambrana’s employer;
- Pena named Royal Plumbing as Zam-brana’s employer in her answers to interrogatories served in this case;
- Yairis Gonzalez, the individual identified by Royal Plumbing as the person with most knowledge as to Zambra-na’s employment, testified in her deposition that Royal Plumbing was Zambrana’s employer on the date of the accident and for a couple of years prior. She also testified that Zambra-na delivered supplies for Royal Plumbing to its job sites and that One Stop Plumbing had its own separate driver for delivering supplies to other plumbers not employed by Royal Plumbing;
- Joel Gonzalez, President of both Royal Plumbing and One Stop Plumbing, averred in an affidavit that Zambrana was employed only by Royal Plumbing, and never by One Stop Plumbing.

C. Evidence that One Stop Plumbing was Zambrana’s Employer

The following summarizes the evidence offered by Pena to establish that One Stop Plumbing was Zambrana’s employer:

- Joel Gonzalez, the President of both Royal Plumbing and of One Stop Plumbing, testified in his deposition that Zambrana was employed by One Stop Plumbing;
- Nancy Hall, a representative from State Farm, the worker’s compensation insurance carrier, testified that based on auditor’s reports (prepared by an outside auditor) Zambrana was designated an employee of One Stop Plumbing;
- Bonne, an employee of Royal Plumbing, testified at his deposition that Zambrana made plumbing supply deliveries to job sites in a company truck with the Royal Plumbing logo and that Royal Plumbing and One Stop Plumbing were the “same thing;”
- Bogantes, another Royal Plumbing employee, testified that Zambrana was a “co-worker” hired as a driver to deliver plumbing materials, and that sometimes the delivery vehicle was a Royal Plumbing car or sometimes “it could have been One Stop Plumbing.”

Although there is certainly substantial evidence that Zambrana was a Royal Plumbing employee, we hold that, under our standard of review, and the standard to be applied by the trial court on a motion for summary judgment, a genuine issue of material fact remains in dispute and summary judgment was improperly granted.

D. Joel Gonzalez

As discussed above, because Joel Gonzalez is the president of both Royal Plumbing and One Stop Plumbing, and it is undisputed that Zambrana was employed by at least one of these entities, Joel Gonzalez would be entitled to immunity under either scenario unless one of the few exceptions, provided in section 440.11, applies. Those exceptions include where the employer, supervisor or manager “engages in an intentional act designed to cause, or substantially certain to cause, injury or death to an employee;” or where the employer/supervisor/manager is culpably or criminally negligent. Byers v. Ritz, 890 So.2d 343, 346-47 (Fla. 3d DCA 2004). See also, § 440.11(1), Fla. Stat. (2008). Florida courts have construed these statutory exceptions to apply “only if the conduct causing the injury was within the scope of [the employer’s supervisors, or manager’s] managerial or policy-making duties.” Goodman v. Hartigan, 862 So.2d 890, 893 (Fla. 5th DCA 2003). See also, Woodson v. Ivey, 917 So.2d 993 (Fla. 5th DCA 2005); Emergency One, Inc. v. Keffer, 652 So.2d 1233 (Fla. 1st DCA 1995). “In determining the immunity of managers and supervisors, the focus should be on the business purpose (or absence thereof) of the decision in question, not necessarily on the means utilized to accomplish that purpose.” Woodson, 917 So.2d at 993 (finding that although an owner’s decision to direct his unlicensed employee to drive a motorcycle from a job-site back to the office was a poor one, it was nonetheless a managerial decision for which he was immune from suit). Pena asserts that Joel Gonzalez’s decision to go on vacation instead of being present to supervise the job site did not constitute a managerial or policymaking function, and thus he was not entitled to-immunity. We disagree. Rather, we hold that the owner’s decision to leave other managerial staff in charge while he is himself unavailable serves a “business purpose,” and therefore, Joel Gonzalez’s actions in doing so do not exempt him from the immunity he was otherwise entitled to under section 440.11(1).

We therefore reverse the final summary judgment as to all defendants except for Joel Gonzalez and remand for proceedings consistent with this opinion.

      . The pipe was approximately twenty-one feet long by three inches in diameter and weighed 300-400 pounds.

      . Royal Plumbing was originally named as a defendant, but Pena voluntarily dismissed the company prior tb entry of the final summary judgment. The Architects Group, Inc., which was also named as (and remains) a defendant below, is not involved in this appeal.

      . The exception to this would be Joel Gonzalez, President of both One Stop Plumbing and Royal Plumbing. As an officer of both companies, he would be entitled to immunity under section 440.11(1) (absent any statutory exception to immunity), regardless of whether Zambrana was employed by One Stop Plumbing or Royal Plumbing.

      . Two months after his deposition was taken, Joel Gonzalez changed this testimony in an errata sheet prepared two months after his deposition, in which he stated that Zambrana was employed by Royal Plumbing, not One Stop Plumbing. Of course, both the deposition testimony and the errata sheet itself constitute admissible evidence. Motel 6, Inc. v. Dowling, 595 So.2d 260 (Fla. 1st DCA 1992).

      . Hall did testify, however, that if Royal Plumbing’s employee records showed that Zambrana was employed by Royal Plumbing, she would have no ability to dispute that fact.

      . When a defendant moves for summary judgment, it is not for the trial court to determine whether the plaintiff can prove her case, but only whether the record evidence establishes conclusively that the plaintiff cannot prove her case. If the record evidence raises even the slightest doubt, summary judgment is not appropriate. Williams v. Fla. Realty & Mgmt. Co., 272 So.2d 176 (Fla. 3d DCA 1973). Stated another way, the function of the trial court on a motion for summary judgment is to determine whether there exist any genuine issues of material fact, not to adjudicate those genuine issues of material fact. Trs. Of Internal Improvement Fund of Fla. v. Sutton, 206 So.2d 272 (Fla. 3d DCA 1968).


author: SUAREZ, J.

text:
    Richard SEWELL and WES Real Estate, Inc., Petitioners, v. Patrick COLEE and Diane Colee, husband and wife, and Nobel House Little Palm Island, Ltd., Respondents.
    No. 3D13-425.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Rehearing Denied March 13, 2014.

      Christopher B. Waldera, Marathon, for petitioners.
    Lee Robert Rohe, Summerland Key, for respondents.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

The petitioners seek a writ of certiorari to quash an order of the circuit court sitting in its appellate capacity, which affirmed the denial of the petitioners’ motion to vacate default judgment for lack of personal jurisdiction. We grant the petition for certiorari and remand for an evidentiary hearing. The trial court erred in applying Steeprow Enterprises, Inc. v. Lennar Homes, Inc., 590 So.2d 21 (Fla. 4th DCA 1991), which led to the court’s incorrect finding that it lacked jurisdiction to grant the Motion to Vacate. We conclude the trial court did have jurisdiction, as Steep-row is inapplicable to the facts of this case. The appellate division of the circuit court erred as a matter of law in affirming the trial court’s decision. Therefore, we remand for an evidentiary hearing as the allegations of defective service of process in the Verified Motion to Quash Service of Process, if proven, could void the judgment in question.

The respondents filed an eviction action against petitioner Richard Sewell, individually and as the registered agent of petitioner WES Real Estate, Inc., the occupying tenant. Before the complaint was filed, Mr. Sewell retained attorney Christopher Waldera to represent him in resolving the dispute between the parties. Upon filing the complaint, the respondents served Mr. Waldera but did not personally serve Mr. Sewell or post notice on the property pursuant to section 48.183, Florida Statutes (2003). The record contains an affidavit by the process server attesting that Mr. Waldera took possession of the papers but advised he did not have his client’s consent to accept service of process. Mr. Waldera continued negotiations after service of the complaint but never filed a notice of appearance or a responsive pleading. A default final judgment was ultimately entered on February 1, 2010.

On February 11, 2010, Mr. Waldera filed a “Verified Motion to Quash Service of Process,” requesting an order vacating the final judgment and default and quashing the service of process. Mr. Sewell signed the motion, attesting that he never waived service of process on behalf of himself or WES Real Estate, Inc. The trial court denied this motion by order dated September 23, 2010, advising the petitioners to “re-caption the motion, re-fíle, and re-set the hearing.” The petitioners did not appeal this order but subsequently renewed the motion on August 10, 2011. The trial court orally granted the motion at hearing but, upon further reflection, entered a written order denying the motion. It based its ruling on Steeprow, 590 So.2d at 23, which holds “a trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief.” The circuit court affirmed this order on appeal.

Res judicata is limited to questions “actually litigated and decided.” Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1387 (Fla. 1st DCA 1992). The trial court’s September 23, 2010 order was not a ruling on the merits. The trial court advised the petitioners to “re-caption the motion, re-file, and re-set the hearing.” See id. at 1387 (concluding argument was raised but not decided where issue was not argued before the trial court and order was insufficient to indicate ruling on merits); see also Paul v. Wells Fargo Bank, 68 So.3d 979, 986 (Fla. 2d DCA 2011) (“Here, the issues [in first motion for relief from judgment] had not been settled at the first hearing; the trial court advised [movant’s counsel] that it was sympathetic to [mov-ant’s] plight and would be inclined to [grant relief] if she set another hearing and presented additional legal grounds.... ”). Therefore, the August 10, 2011 motion at issue was a renewed motion, over which the trial court had jurisdiction; it was not a second motion requesting the same relief, over which the trial court would not have had jurisdiction. Accordingly, the trial court erred in concluding it lacked jurisdiction to grant relief under the renewed motion.

The mere existence of legal error, however, is insufficient to invoke cer-tiorari review of a circuit court’s appellate decision. Combs v. State, 436 So.2d 93, 95 (Fla.1983). Rather, the question is whether the circuit court afforded procedural due process and applied the correct law. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995)). Florida courts have recognized a distinction between a judgment that is void for “total want of service” and one that is voidable based on “irregular or defective service.” Decker v. Kaplus, 763 So.2d 1229, 1230 (Fla. 5th DCA 2000) (citing State v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936)). A void judgment lacks legal force or effect and may be vacated at any time. Zitani v. Reed, 992 So.2d 403, 409 (Fla. 2d DCA 2008); Hayes v. Greenwald, 149 So.2d 586, 587 (Fla. 3d DCA 1963). By contrast, a voidable judgment must be attacked under Florida Rule of Civil Procedure 1.540(b) within one year and has legal force and effect unless and until it is vacated. Zitani 992 So.2d at 409.

Mr. Sewell alleges the judgment against him is void because he never authorized his attorney to accept service on his behalf. A complaint and summons may be served on a party’s attorney only if the party has “waived his right to personal service” by authorizing the attorney to accept service on his behalf. Anthony v. Rotella & Assocs., P.A., 906 So.2d 1205, 1208 (Fla. 4th DCA 2005). Here, the process server’s affidavit attests that Mr. Waldera told him he lacked authority to accept service of process. Additionally, the petitioners filed no pleadings that would indicate waiver and did not otherwise act to move the case forward. If Mr. Sewell did not waive service, then service on his attorney may constitute a “total want of service” rather than “irregular or defective service” and render the judgment void. The possibility that the judgment is void and not voidable compels us to grant the petition.

Accordingly, we issue a writ of certiorari to vacate the judgment. We remand the matter with instructions to the trial court to conduct an evidentiary hearing on the renewed motion dated August 10, 2011. See Leipuner v. FDIC, 860 So.2d 1027, 1028 (Fla. 5th DCA 2003) (“An evidentiary hearing is required where the allegations of an affidavit in support of a motion for relief from judgment, if proven, would establish that the judgment is void.”).


text:
    Manuel JOSE, Appellant, v. GOODWILL INDUSTRIES & Gallagher Bassett Services, Inc., Appellees.
    No. 1D13-1707.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Rehearing Denied March 3, 2014.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, and Mark A. Touby of Touby & Chait, P.L, Coral Gables, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waraneh & Westcott, P.A., Winter Park, and Mark Ingram, Sarasota, for Appellees.
   PER CURIAM.

Claimant appeals a final order denying his Petition for Benefits (“PFB”) filed after he fainted and fell at work. Although Claimant raises several issues on appeal, we conclude he failed to prove he suffered an objective injury caused by the fall suffered in the workplace. Specifically, Claimant did not establish existence of an injury through requisite medical testimony. For that reason, we affirm the order.

On July 28, 2011, Claimant was working as a helper at Goodwill Industries, loading bales of fabric or clothing into a machine and then operating a switch on the machine. At some point, while leaning forward to operate the switch on the machine Claimant fainted and fell to the ground.

An employer must provide workers’ compensation benefits if an employee “suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. (2011). To be com-pensable under chapter 440, “[t]he injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings [.] ” § 440.09(1), Fla. Stat. (emphasis added). This, Claimant failed to do.

Two independent medical examiners (“IME”) examined Claimant, and provided competing expert medical testimony regarding whether Claimant had suffered an objective injury resulting from his fall. Dr. Nicholas Suite, a neurologist and Claimant’s IME, diagnosed post-concussive syndrome, post-traumatic headaches, cervical myofascial syndrome, left shoulder derangement, mild lumbar myofascial syndrome, and left rib pain. Dr. Suite initially opined that all conditions were causally related to Claimant’s fall, based on Claimant’s description of the incident. When asked for objective medical findings supporting his diagnoses, Dr. Suite admitted that the headaches, the left shoulder derangement, and the rib pain all were based solely on Claimant’s subjective complaints. And he confirmed that the x-rays and CT scan, taken at the hospital after Claimant fell, detected no injuries. The remaining diagnoses he based on observing Claimant’s slow speech, unsteady gait, and range-of-motion assessment. Ultimately, however, Dr. Suite conceded there was no objective medical evidence connecting these conditions to any injury Claimant sustained in the workplace fall.

The Employer/Carrier’s IME, Dr. Paul Damski, found Claimant’s “main complaints” were “left rib pain and bilateral shoulder and right neck pain.” Although Dr. Damski’s medical report mentioned existence of “various hematomas” indicated in the hospital CT scan, the report stated, “No actual injury to his rib cage was noted on x-rays,” “no skull fracture,” and “no chest pathology on x-ray.” Moreover, Dr. Damski could not connect Claimant’s shoulder and neck pain to the fall (“... he supposably [sic] did not complain of that at the hospital and he couldn’t really tell me when it started.”). Although Dr. Damski affirmed that some of the pain Claimant was experiencing resulted from his fall, Dr. Damski did not identify a specific fall-related injury causing such pain.

Significant!y, although the record demonstrates that the hospital CT scan taken on the date of Claimant’s accident revealed a hematoma and some hemorrhaging, neither Dr. Suite nor Dr. Damski was asked whether these conditions constituted objective medical evidence of an injury related to Claimant’s fall. Consequently, Claimant presented no admissible medical testimony that, within a degree of medical certainty, the CT scan shows he suffered an injury from the workplace fall.

Because Claimant failed to produce objective medical findings substantiating an injury resulting from his fall at work, the JCC correctly denied Claimant’s PFB. Accordingly, we affirm the final order on appeal.

AFFIRMED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Rayl Lynn KELLAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5827.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2014.
    Rehearing Denied Feb. 27, 2014.
    Rayl Lynn Kellar, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    Eugene JACKSON, Appellant/Cross-Appellee, v. ATTORNEY’S TITLE INSURANCE FUND, INC., a Florida corporation, Cary A. Lubetsky and Krinzman, Huss and Lubetsky, LLP, Appellees/Cross-Appellant.
    No. 3D11-2889.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.
    Rehearing Denied March 12, 2014.
    Robert J. Paterno; John P. Hess; Sheridan K. Weissenborn; Arnaldo Velez, for appellant/cross-appellee.
    Cohen Ruiz and Mario M. Ruiz and Leonard C. Atkins, IV, for appellee/cross-appellant Attorney’s Title Insurance Fund, Inc.; Shendell & Pollock and Kenneth S. Pollock and Scott Wellner, for appellees Cary A. Lubetsky and Krinzman, Huss and Lubetsky, LLP.
    Before SHEPHERD, C.J., and LAGOA and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013).