author: GROSS, J.

text:
    Patrick Wells KNIGHT, individually and as Personal Representative of the Estate of Lisa Merhige Knight, Muriel Sitton and Jimmy Sitton, as Co-Personal Representatives of the Estate of Makayla Sitton, and Antoine Joseph, M.D., as Personal Representative of the Estate of Raymonde joseph, Appellants, v. Michael G. MERHIGE and Carole Merhige, Appellees.
    Nos. 4D12-3701, 4D12-3703.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.
    Rehearing Denied March 26, 2014.

      Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and H. Joshua Diamond of H. Joshua Diamond, P.A., Coral Gables, for appellants Patrick Wells Knight, individually and as personal representative of the estate of Lisa Merhige Knight.
    Julie H. Littky-Rubin of Clark, Fountain, LaVista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for appellants Muriel Sitton and Jimmy Sitton, as co-personal representatives of the estate of Makayla Sitton, and Antoine Joseph, M.D., as personal representative of the estate of Raymonde Joseph.
    Daniel M. Bachi and Dina M. Contri of Sellars, Marion & Bachi, P.A., West Palm Beach, for appellees.
   GROSS, J.

These appeals arise from a tragic event — Michael and Carole Merhige’s 35-year-old son, Paul, shot and killed family members at a Thanksgiving gathering in Jupiter, Florida. Following the shooting, representatives of the victims’ estates sued the Merhiges, collectively alleging negligence. The circuit court dismissed the complaints for failure to state a cause of action. We affirm the ruling of the circuit court that the Merhiges owed no legal duty to their family members in this case, so that an essential element of a negligence cause of action is missing.

In reviewing an appeal from an order granting a motion to dismiss for failure to state a cause of action, we accept the factual allegations of the operative complaints as true and consider them in the light most favorable to the plaintiffs/appellants. See Fla. R. Civ. P. 1.140(b)(6); Seminole Tribe of Fla. v. Times Pub. Co., 780 So.2d 310, 311-12 (Fla. 4th DCA 2001).

On November 26, 2009, appellants Muriel and Jimmy Sitton hosted a yearly Thanksgiving dinner for sixteen family members. While the Merhiges regularly attended the gathering, their son Paul did not; in fact, just one year prior, the event’s then-host, Dr. Antoine Joseph, told the Merhiges that he would cancel the dinner if they brought their son with them.

Such intrafamily strife derived from Paul’s history of irrational violence. By 1994, when Paul was twenty years old, he began showing signs of “chronic violence,” including “display[s of] aggressive behavior” and “social disfunction.” He performed “extremely violent and aggressive acts” and communicated “threats of violence ... toward members of his immediate and extended family.” Two years later, as Paul’s “violent and aggressive behavior” continued to manifest, he was deemed “legally disabled.”

From 1994 through 2006, Paul lived with the Merhiges in their home and became financially dependent upon them. During this period, law enforcement officers were called to the Merhiges’ residence on at least ten separate occasions, each time the result of Paul’s “extremely violent and aggressive acts and expressed threats of violence.” Many of these encounters with law enforcement included incidents where Paul “verbally threatened violence against another, physically attacked another, discharged or threatened to discharge a firearm, [and] refused to take his prescribed psychotropic medications.”

Paul’s inner turmoil boiled over to such an extent that he was involuntarily committed under Florida’s Baker Act three times. In 1999, he attempted suicide by shooting himself in the chest.

An aspect of Paul’s hostility was his repeated acts of actual or threatened violence against certain family members. Notably, Paul felt a great “hatred and grudge” toward his uncle, appellant Dr. Joseph, on the deranged belief that Dr. Joseph “somehow caused him illness, injury or damage.” Similarly, Paul “harbored deep resentment and jealousy” toward his sisters, resulting in repeated episodes of violence so significant that one of his sisters obtained a restraining order against him, although it was later revoked.

Due to Paul’s propensity for violence, the Merhiges “supervised, controlled, directed and managed the manner in which [Paul] lived, including ... providing for and controlling [Paul’s] accommodations, mental health treatment, transportation, ... and available spending money.” Nevertheless, despite knowing of Paul’s deficiencies and his previous suicide attempt, the Merhiges did nothing to prevent him from purchasing firearms with the money they provided for him.

Because of Paul’s behavior, the Merhig-es, in early 2009, “excluded” Paul from their home and procured a condominium unit for him in Miami. In the ensuing months, Paul “became extremely reclusive, avoiding contact with others and refusing” to allow anyone other than a housekeeper to enter the condominium. The housekeeper monitored Paul’s actions and reported to the Merhiges that Paul had ceased his mental health treatment and had otherwise stopped taking his “heavy doses of prescribed medication.”

Despite Paul’s recent reclusiveness, his well-documented history of violence, and the rejection of his company just one year prior, the Merhiges invited their son to the Sittons’ Thanksgiving dinner without warning the hosts or Dr. Joseph. Upon being told of the event, Paul expressed interest and repeatedly asked for the party’s details, including who would be in attendance and when everyone would be leaving. Specifically, Paul asked whether his sisters and his uncle, Dr. Joseph, would be attending.

In the moments before the Thanksgiving dinner, appellee Carole Merhige expressed concern regarding Paul’s attendance. In one instance, she told an unnamed witness that she hoped Paul “would not kill everyone” at the dinner party. Likewise, she told her daughter, Lisa, “I hope he [Paul] doesn’t come and Mil us all tonight”; Lisa responded by telling her mother not to tell her father because he “would get upset that [they] had such ideas.”

On the fateful Thanksgiving night, after the Merhiges arrived, Paul called his father, appellee Michael Merhige, to ask for directions; Michael complied. Shocked by this unanticipated predicament, appellant Muriel Sitton immediately confronted her mother, Mrs. Joseph, and asked whether she knew Paul was attending; Mrs. Joseph, however, was equally surprised.

When Paul arrived, neither Dr. Joseph nor any of the guests impeded his entry into the home. Initially, everything seemed fine. The family ate dinner together. Paul innocuously left to get something from his car.

Upon returning to the gathering, Paul brandished a firearm and shot Mrs. Joseph, killing her instantly. He then opened fire on his direct relatives, killing both of his sisters, Carla and Lisa, while seriously wounding his brother-in-law, Patrick Knight. After unjamming his gun, Paul left the dining room and went upstairs, where he shot the Sittons’ six-year-old daughter point blank, killing her as she slept in her bedroom.

Procedural Posture

A criminal prosecution was resolved by a plea bargain and Paul was sentenced to life imprisonment. The appellants, representing the victims’ estates, brought separate negligence suits against the Merhiges. The first case was initiated by the Sittons, on behalf of their six-year-old daughter, and Dr. Joseph, on behalf of his wife. The second was brought by Patrick Knight, for the injuries he personally sustained and as personal representative for the estate of his late wife, Lisa. Although the parties were represented by separate attorneys, both suits were premised upon similar legal theories.

Through eight counts, the Knight complaint, in essence, attempted to base the Merhiges’ negligence upon two predicates. First, the complaint alleged that the Mer-higes created a “foreseeable zone of risk,” and failed to exercise prudent foresight, by surreptitiously inviting Paul to the Thanksgiving dinner, all the while knowing that their son had made “specific threats of violence against those in attendance.” Second, invoking the “undertaker’s doctrine,” Knight alleged that the Merhiges “assumed a duty to serve as [Paul’s] custodian and had a special relationship with” Paul, which they breached by failing to provide adequate “supervision, guidance, control, direction, security, monitoring and management of his person.”

Similarly, the Sitton complaint alleged that the Merhiges created a “foreseeable zone of risk” by purposefully concealing their dinner invitation to Paul despite having such “superior knowledge of [his] likelihood to do harm” that they could “specifically fores[ee] the type of ... harm which ultimately occurred.” Alternatively, the complaint posited that the Merhiges maintained a “special relationship” with Paul given their “familial ties” and the fact that they completely supported him.

Dismissal of the Complaints

After the filing of amended complaints, the circuit court, upon proper motion, dismissed the complaints with prejudice, finding that the Merhiges had no legal duty to control the actions of their emancipated son. In so ruling, the trial court held that since the allegations failed to adequately establish either a “special relationship” with the victims or the Merhiges’ ability to “control” their son’s behavior, the appellants could not overcome the general rule that “there is no duty to control the conduct of a third person to prevent him from causing physical harm to another.” Furthermore, the court held, as a matter of law, that the Merhiges “did not create a dangerous situation by inviting their son to the gathering” since Paul was not under their control and “had his own free will.”

I

As their primary issue on appeal, the appellants argue that the trial court erred in dismissing their complaints since the Merhiges’ invitation to Paul to the family gathering “created” a foreseeable zone of risk, given his propensity for violence toward certain family members. In making this argument, the appellants characterize the issue of a legal duty as one of foreseeability and nothing more, that a plaintiffs interests are entitled to legal protection whenever a personal injury is a foreseeable consequence of a defendant’s conduct.

Recognizing that this is a case where plaintiffs seek to impose liability upon defendants for the criminal acts of a third party, we reject this approach for two reasons. First, the imposition of a legal duty in this type of case is tied to either a special relationship between the plaintiff and defendant or the defendant’s control over the premises where the injury occurred, the instrumentality causing the injury, or the person causing the injury. Second, even assuming that the issue of legal duty is one of foreseeability alone, untethered to any special relationship or issue of control, public policy reasons warrant a denial of liability where a defendant’s conduct involves the inclusion of an adult family member into the extended family circle.

“[W]hether a complaint is sufficient to state a cause of action is an issue of law subject to de novo review.” Vaughn v. Boerckel, 20 So.3d 443, 445 (Fla. 4th DCA 2009) (citing Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002)). While we are limited to the complaints’ four corners and must accept all allegations as true, see Someplace New, Inc. v. Francois, 51 So.3d 1215, 1216 (Fla. 4th DCA 2011), we are “not required to defer to the trial court’s conclusions regarding the legal sufficiency of the allegations.” Aguila v. Hilton, Inc., 878 So.2d 392, 395 (Fla. 1st DCA 2004).

II

A traditional analysis of a defendant’s liability in negligence for the criminal acts of another links the existence of a legal duty to the defendant’s special relationship to the injured party or to the defendant’s ability to control some aspect of the criminal act. Under this traditional analysis, the circuit court correctly determined that the Merhiges violated no legal duty owed to the appellants.

A negligence cause of action is comprised of four elements; the first is a “duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (citation omitted). With regard to this element, whether a duty exists is a question of law for the court. Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Crucial to the duty inquiry is “whether the defendant’s conduct foreseeably create[s] a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992). “[T]he zone of risk created by a defendant defines the scope of the defendant’s legal duty and the scope of the zone of risk is in turn determined by the foreseeability of a risk of harm to others.” Smith v. Fla. Power & Light Co., 857 So.2d 224, 229 (Fla. 2d DCA 2003).

“Generally, there is no duty to control the conduct of a third person to prevent [that person] from causing physical harm to another.” Carney v. Gambel, 751 So.2d 653, 654 (Fla. 4th DCA 1999); see also Boynton v. Burglass, 590 So.2d 446, 448 (Fla. 3d DCA 1991) (“Florida courts have long been loathe to impose liability based on a defendant’s failure to control the conduct of a third party.”).

However, there are limited exceptions to this general rule. A defendant’s liability for the criminal acts of third parties is often linked to a “special relationship” with the plaintiff. See T.W. v. Regal Trace, Ltd., 908 So.2d 499, 503 (Fla. 4th DCA 2005); Estate of Rotell ex rel. Rotell v. Kuehnle, 38 So.3d 783, 790-91 (Fla. 2d DCA 2010) (Altenbernd, J., concurring) (observing that in a negligence action, it is a “relationship” that justifies “the creation of a legal duty”). These “relationships are protective by nature, requiring the defendant to guard his charge against harm from others.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 383 (5th ed. 1984); see also Dan B. Dobbs, The Law of Torts §§ 322-329 (2000). For example, a common carrier has a legal duty toward its passengers to exercise reasonable care to prevent physical attacks by third persons. See Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, 153-54 (1921). A “landlord has a duty to protect a tenant from reasonably foreseeable criminal conduct.” Salerno v. Hart Fin. Corp., 521 So.2d 234, 235 (Fla. 4th DCA 1988). A rental car company has a duty to warn its customers of “foreseeable criminal conduct.” Shurben v. Dollar Rent-A-Car, 676 So.2d 467, 468 (Fla. 3d DCA 1996). Other examples of recognized special relationships include businesses toward their customers, employers toward their employees, jailers toward their prisoners, hospitals toward their patients, and schools toward their pupils. See Gar rison Ret. Home Corp. v. Hancock, 484 So.2d 1257, 1261 (Fla. 4th DCA 1985); Prosser and Keeton on the Law of Torts § 56, at 383.

In this case, there was no recognized special relationship between the Merhiges and the plaintiffs that gave rise to a legal duty to protect them from Paul’s conduct. In general, family members owe no heightened obligation to protect other adult family members from each other.

Absent a special relationship between a defendant and a plaintiff, a duty to protect a plaintiff from “the conduct of a third party may [also] arise if the defendant is in actual or constructive control of: (1) the instrumentality of the harm; (2) the premises upon which the tort is committed; or (3) the person who committed the tort.” Aguila, 878 So.2d at 398; Daly v. Denny’s, Inc., 694 So.2d 775, 777 (Fla. 4th DCA 1997); Vic Potamkin Chevrolet, Inc. v. Horne, 505 So.2d 560, 562 (Fla. 3d DCA 1987) (en banc), approved, 533 So.2d 261 (Fla.1988); see also Dobbs, §§ 329-332. Neither appellant contends that the Merhiges maintained control over the instrumentality (firearm) or the premises (the Sittons’ home).

Focusing on parents’ control over their adult children, we held in Carney that parents “may not be held legally responsible for the conduct of their emancipated, adult child.” 751 So.2d at 654. We observed that where liability has been imposed on the parent for the conduct of a child, “the duty to exercise control is limited to a minor child.... Certainly, where there is no legal right to control a child, there can be no liability imposed on the parent.” Id. (citations omitted); see also Lott v. Goodkind, 867 So.2d 407, 408-09 (Fla. 3d DCA 2003) (holding that an adult murderer was not in the “custody” of his mother, who therefore owed no legal duty to the victim with respect to her son’s conduct). “No Florida decision has imposed liability upon the parents of an adult child for intentional acts simply because the child may be financially dependent on, or needs to reside with, his or her parents.” Carney, 751 So.2d at 654.

Appellant Sitton posits that Carney left open the possibility “that parents of an emancipated adult could be held responsible for an adult child’s actions” when it cited to Thorne v. Ramirez, 346 So.2d 121, 122 (Fla. 3d DCA 1977), as holding that “absent allegations that [the] adult child was insane or mentally deficient, a complaint that sought to hold the parents of the child liable for an intentional tort was properly dismissed.” Id. (emphasis added).

Although addressed in neither Carney nor Thorne, such liability is controlled not by parental status but by the Restatement (Second) of Torts § 319 (1965), which imputes a “special relationship” when “[o]ne ... takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled.” See Garrison, 484 So.2d at 1261 (adopting section 319); United States v. Comstock, 560 U.S. 126, 142, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010) (clarifying that this exception derives as a common law principle). Given the law’s reluctance to impose a duty for nonfeasance, the “take charge” requirement of section 319 has generally been limited to “the context of professional custodians with special competence to control the behavior of those in their charge.” Kaminski v. Town of Fairfield, 216 Conn. 29, 578 A.2d 1048, 1051 (1990). Accordingly, in Florida, such liability has “typically been imposed on persons having someone committed to their legal custody, such as a jailer or superintendent of a residential institution which has the ability to control the actions of its residents.” Lott, 867 So.2d at 408.

While the depraved nature of Paul’s mind is unquestioned, there were no allegations that the Merhiges exhibited sufficient “control” over Paul’s actions so as to place him within the functional equivalent of their “legal custody.” That the Merhig-es financially provided for Paul and could “control” whether to invite him to family gatherings is insufficient to generate a legal duty on their part to protect those attending the Thanksgiving dinner from Paul. Holding otherwise would stack an untenable burden upon the already difficult lives of parents trying to assist their mentally defective, yet otherwise independent, adult children.

III

The appellants read McCain to apply an analysis unburdened by concepts of a special relationship or control. Rather, they contend that post-McCain, the issue of legal duty is solely determined by whether a defendant’s conduct foreseeably created a broader zone of risk that poses a general threat of harm to others, untethered to any consideration of a special relationship or control. Under this approach, foreseeability is everything and legal duty is but a minimal legal threshold requirement for opening the courthouse door. Even if, under McCain, the tragedy that befell the appellants was a foreseeable result of the Merhiges’ conduct, we would decline to find the existence of a legal duty for public policy reasons.

There is some authority for this focus on the creation of a foreseeable zone of risk as the sole trigger of a legal duty. The Restatement (Second) of Torts § 302B (1965) “recognizes the possibility of a duty to guard another person against a foreseeable risk of harm caused by a third person,” Robb v. City of Seattle, 159 Wash.App. 133, 245 P.3d 242, 244 (2010), reversed on other grounds by 176 Wash.2d 427, 295 P.3d 212 (2013), providing in full:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

Id. at 245.

Crucial to the case at hand, section 302B’s Comment e. posits two situations when an actor “ ‘is required to anticipate and guard against the intentional, or even criminal, misconduct of others’: (1) ‘where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account,’ or (2) where the actor is under a special responsibility to the victim.” United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008) (quoting Restatement (Second) of Torts § 302B cmt. e (1965)) (emphasis added). The Third Restatement has since expounded upon the impact of Comment e. when taken in conjunction with the “special relationship” exceptions outlined in section 315, stating:

Section 315 of the Restatement Second of Torts contributed to frequent judicial pronouncements ... that absent a special relationship an actor owes no duty to control third parties. Section SI 5, however, must be understood to address only an affirmative duty to control third parties. It did not address the ordinary duty of reasonable care with regard to conduct that might provide an occasion for a third party to cause harm. The Restatement Second of Torts § 302B, Comment e, provides for a duty of care when “the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such [third-party] misconduct.” Section 449 of the Second Restatement also contemplated liability, without regard to any special relationship, for acts that are negligent because of the risk of the third party’s conduct.

Restatement (Third) of Torts: Phys. & Emot. Harm § 37 cmt. d. (2012) (emphasis added). Thus, since section 302B is “concerned only with the negligent character of the actor’s conduct, and not with his duty to avoid the unreasonable risk,” a defendant who creates an “unreasonable risk” through his or her own misfeasance is still “under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.” Restatement (Second) of Torts § 302 cmt. a (1965) (emphasis added); Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1246 (Pa.2012).

Creation of Risk

A duty is not, however, transposed through mere assertions of misfeasance. As the Third Restatement explains:

An actor’s conduct creates a risk when the actor’s conduct or course of conduct results in greater risk to another than the other would have faced absent the conduct.

Restatement (Third) of Torts: Phys. & Emot. Harm § 7 cmt. o. (2010) (emphasis added); see also Lee v. Clorox Int’l Co., 854 F.Supp.2d 1311, 1315 (S.D.Ga.2010), aff'd, 466 Fed.Appx. 826 (11th Cir.2012) (“[F]or a defendant’s conduct to create a risk, the defendant must take an affirmative step that goes directly and necessarily to the creation of a foreseeable risk.”). While such conduct may include “exposing another to the improper conduct of third parties,” Restatement (Third) of Torts: Phys. & Emot. Harm § 7 cmt. o., the third party’s criminal conduct will be foreseeable only if “the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a ... crime.” Restatement (Second) of Torts § 448 (1965).

Within this spectrum, Comment e. provides four examples of affirmative acts sufficient to sustain liability for the criminal acts of another. Among these illustrations, Paragraph D. provides that a duty may arise “[w]here the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.” (Emphasis added). In assessing the applicability of this principle, factors to be considered include:

[T]he known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take.

Restatement (Second) of Torts § 302B cmt. f. (1965). As pleaded, the allegations of the complaint fall within the scope of Comment f.

Florida courts have yet to apply Paragraph D. in this context. Shurben cited to section 302B, but the case can also be read as one where a duty arose out of a business relationship — that of a car rental agency and a customer. 676 So.2d at 468. In Shurben, a British tourist sued a rental car dealership after she was accosted and shot by unknown criminals while driving her rental car in Miami. The defendant dealership knew that the plaintiffs rental car bore a license plate that readily identified it as a rental vehicle; it was alleged that there had been “repeated instances of criminal activity directed at tourists in rental cars in certain areas of Miami and that [the defendant] was aware of those instances.” Id. In finding that the defendant dealership had a duty to warn the plaintiff of the foreseeable criminal conduct, the third district discussed section 302B and held that, “[b]ased on the knowledge it had on hand, [the defendant] should have realized that criminals were targeting tourist car renters in certain areas of Miami and that a reasonable rental company in possession of those facts would understand that its customers would be exposed to unreasonable risk of harm if not warned.” Id. (footnote omitted).

Application of Public Policy

Even if we were to apply section 302B in the way urged by appellants, for public policy reasons we would nonetheless hold that the Merhiges violated no legal duty toward the appellants.

The issue of legal duty in a negligence case asks “whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct.” Prosser & Keeton on the Law of Torts § 53, at 357. A court’s decision as to whether a legal duty in negligence exists necessarily involves questions of public policy. As the Florida Supreme Court recognized pre-McCain, the duty inquiry in a negligence case involves weighing ‘the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’” Rupp v. Bryant, 417 So.2d 658, 667 (Fla.1982) (quoting W. Prosser, The Law of Torts § 53, at 325-26 (4th ed. 1971)); see also Gross v. Family Servs. Agency, Inc., 716 So.2d 337, 338 (Fla. 4th DCA 1998). We explained in Biglen v. Florida Power & Light Co., 910 So.2d 405 (Fla. 4th DCA 2005):

Finding that a legal duty exists in a negligence case involves the public policy decision that a “defendant should bear a given loss, as opposed to distributing the loss among the general public.” Levy v. Fla. Power & Light Co., 798 So.2d 778, 780 (Fla. 4th DCA 2001), rev. den. 902 So.2d 790 (Fla.2005). A legal “[d]uty is an allocation of risk determined by balancing the foreseeability of harm, in light of all the circumstances, against the burden to be imposed.” Id. (quoting Vaughan v. Eastern Edison Co., 48 Mass.App.Ct. 225, 719 N.E.2d 520, 528 (1999)).

Id. at 409.

Considerations of public policy are appropriate in determining whether a negligence cause of action will lie. For example, in Raisen v. Raisen, 379 So.2d 352, 354-55 (Fla.1979), the Supreme Court relied upon public policy reasons to hold that the doctrine of interspousal tort immunity was still viable in Florida. Similarly, the Court evaluated policy considerations in Ard v. Ard, 414 So.2d 1066, 1067 (Fla.1982), to hold that in a negligence action brought by an unemancipated minor child against a parent, “the doctrine of parental immunity is waived to the extent of the parent’s available liability insurance coverage.” It is highly unlikely that, in McCain, the Supreme Court silently abandoned the common law function of a court to consider public policy in deciding whether a legal duty in negligence exists. See Puryear v. State, 810 So.2d 901, 905 (Fla.2002) (holding that the Supreme Court “does not intentionally overrule itself sub silentio”).

Public policy considerations may operate to limit legal duty under Restatement (Third) of Torts: Physical & Emotional Harm § 7(b) (2010), which provides:

In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Section 7(b) contemplates that a rule limiting duty for public policy reasons is appropriate “only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.” Restatement (Third) of Torts: Phys. & Emot. Harm § 7, cmt. a. Comment j to section 7 explains:

A no-duty ruling represents a determination, a purely legal question, that no liability should be imposed on actors in a category of cases. Such a ruling should be explained and justified based on articulated policies or principles that justify exempting these actors from liability or modifying the ordinary duty of reasonable care. These reasons of policy and principle do not depend on the foreseeability of harm based on the specific facts of a case. They should be articulated directly without obscuring references to foreseeability.

(Emphasis added).

Here, a public policy reason militates for a finding of no legal duty even assuming that a McCain/section 302B foreseeability analysis leads to the conclusion that the shootings were a foreseeable result of the Merhiges’ conduct. In Raisen and Ard, the Supreme Court considered public policy when confronting tort issues in the family context, and in Ard the Court expressed its great concern that litigation between family members was an intrusion “that might adversely affect the family relationship.” 414 So.2d at 1067. Here, the essence of the negligence claim is that the Merhiges invited their deeply troubled child to a family gathering, knowing of his difficulties with family members. Family members with psychological or behavioral problems are a common occurrence in Florida and elsewhere. Families should be encouraged to include a troubled family member in the family circle. A holding that the Merhiges owed a legal duty to the members of their family and extended family in this case would discourage families from providing a haven to troubled relatives for fear of civil liability. The result would be to foist those most in need of family interaction on the governmental and charitable social service networks, thereby thrusting a family problem into the hands of society at large, where unhappy outcomes are all too common. Difficult and tragic cases such as this one should not set the standard for the entire universe of family interaction. Cf. Alva v. Cook, 49 Cal.App.3d 899, 123 Cal.Rptr. 166, 170 (1975) (“[I]t would be unjust and morally wrong and against public policy to discourage humane and natural relationships between members of a family who are sensitive to and generous in the treatment of less fortunate members of their family.”).

Affirmed.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

      . We sua sponte amend the order of February 8, 2013, consolidating these two cases for oral argument purposes only and further consolidate the two cases for all purposes.

      . In obtaining the injunction, the sister's mother-in-law stated that Paul’s sister told her "she was afraid that [Paul] was one day going to kill both her and her [other] sister.”

      . Winn-Dixie Stores, Inc. v. Johstoneaux, 395 So.2d 599, 599 n. 1 (Fla. 3d DCA 1981); Stevens v. Jefferson, 436 So.2d 33, 34-35 (Fla.1983) (tavern owner); Adika v. Beekman Towers, Inc., 633 So.2d 1170, 1170-71 (Fla. 3d DCA 1994) (innkeeper-guest).

      . Lillie v. Thompson, 332 U.S. 459, 460, 68 S.Ct. 140, 92 L.Ed. 73 (1947) (employer could be liable for sending female employee "to work in a place he knew to be unsafe”); Bardy v. Walt Disney World Co., 643 So.2d 46, 47—48 (Fla. 5th DCA 1994) (negligence available where the defendant’s security guard ejected a drunken employee from its premises and ordered him to remove his car, where the employee stated he was too drunk to drive); K.M. ex rel. D.M. v. Publix Super Mkts., Inc., 895 So.2d 1114, 1117 (Fla. 4th DCA 2005).

      . Sams v. Oelrich, 717 So.2d 1044, 1048 (Fla. 1st DCA 1998) (special relationship between sheriff and prisoner); Frett v. Gov’t of Virgin Islands, 839 F.2d 968, 975-76 (3d Cir.1988), abrogated on other grounds by Ngiraingas v. Sanchez, 495 U.S. 182, 186 n. 4, 110 S.Ct. 1737, 109 L.Ed.2d 163 (1990) (prison warden); Taylor v. Slaughter, 171 Okla. 152, 42 P.2d 235, 236-37 (1935).

      . Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 296 S.E.2d 693, 696 (1982) (private mental health hospital held civilly liable for murder by patient under the hospital’s control); White v. United States, 780 F.2d 97, 103 (D.C.Cir.1986) (mental hospital and its personnel); Sylvester v. Nw. Hosp. of Minneapolis, 236 Minn. 384, 53 N.W.2d 17, 20-21 (1952).

      . Nova Se. Univ., Inc. v. Gross, 758 So.2d 86, 89-90 (Fla.2000) (university liable for student assaulted while doing a mandatory, off-campus internship); Concepcion v. Archdiocese of Miami, 693 So.2d 1103, 1104-05 (Fla. 3d DCA 1997); Schultz v. Gould Acad., 332 A.2d 368, 370-71 (Me.1975).

      . Section 302B is a "special application” of Restatement (Second) of Torts § 302(b), which provides that "[a] negligent act or omission may be one which involves an unreasonable risk of harm to another through ... the foreseeable action of the other, a third person, an animal, or a force of nature.” Restatement (Second) of Torts § 302(b) (1965) (emphasis added).

      . The other three examples include:
      (1)"Where the actor’s affirmative act is intended or likely to defeat a protection which the other has placed around his person or property for the purpose of guarding them from intentional interference,”
      (2) “Where the actor entrusts an instrumentality capable of doing serious harm if misused, to one whom he knows, or has strong reason to believe, to intend or to be likely to misuse it to inflict intentional harm,” or
      (3)"Where the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct.”
      Restatement (Second) of Torts § 302B, cmt. e, para. C, E, H (1965).

      . Interestingly, the Third Restatement disapproves of the practice of using foreseeability in no-duty determinations. Restatement (Third) of Torts: Phys. & Emot. Harm § 7, cmt. j (2010). The Third Restatement "limits no-duty rulings to articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.” Id.; see generally W. Jonathan Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005).


source: Caselaw Access Project

author: DAMOORGIAN, C.J. GERBER, J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Ariel MONTANEZ, Appellee.
    Nos. 4D12-3815, 4D12-4180.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
   DAMOORGIAN, C.J.

The State appeals the trial court’s downward departure sentences for the defendant in two cases. The State argues that: (1) the court’s ground for granting the downward departure sentences was unlawful; and (2) competent, substantial evidence did not support the court’s ground for the downward departure sentences. We agree with the State’s second argument and reverse.

The defendant was charged with a third DUI within ten years of his second DUI and refusal to submit to testing. Approximately nine months later, the defendant was charged with a fourth DUI, aggravated fleeing and eluding, refusal to submit to testing, and driving with a suspended license. The defendant’s third DUI was set for trial. On that charge, a jury found the defendant guilty.

The court conducted a sentencing hearing on the defendant’s third DUI. At the hearing, the defendant’s sister testified on his behalf. She stated that the defendant is a good father to his seven-year-old son and eleven-year-old daughter and that they, and other family members, miss him. She also stated that the defendant takes care of their mother and the family home. Upon the court’s questioning, the defendant’s sister further stated that around the time of his third DUI, the defendant went through a “very rough” divorce which was hard on him and his children.

The trial court, after acknowledging that the defendant scored a minimum sentence of 12.45 months in state prison, offered to impose downward departure sentences if the defendant pled to his remaining charges, including his fourth DUI. The court reasoned, in pertinent part:

I heard the facts of this case and I did hear testimony from his sister and I find his sister to be a very credible witness, and if anyone knows the inside of your family affairs it is your sister.
So realistically, I consider it to be, if you will, a potential mitigator that he is going through a difficult time in his personal life, specifically a separation and divorce. It is affecting him, it is affecting his family. It is affecting his children, and that as a result of this he turns to substance abuse, and it has come back to haunt him, and no one was injured in either one of these cases.
So, if he is willing to plead to the [remaining charges], foregoing any appeal, if you will, in the present case, I would consider a departure sentence.

The court’s proposed downward departure was concurrent sentences on each case of two years of community control followed by three years of probation with no early termination, plus the required conditions of probation for a third and fourth DUI.

The state objected to the court’s downward departure offer. The state argued that the court’s basis for the downward departure sentences was unlawful and that the facts of the two cases did not reasonably justify downward departure sentences.

The defendant accepted the court’s downward departure offer and pled no contest to the remaining charges in both cases.

The court entered a sentencing order which mirrored its downward departure offer. The order stated that the downward departure sentences were “justified under Fla. Stat. 921.0026 as the [defendant was experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse.” This appeal followed.

We apply a mixed, two-part review when analyzing a downward departure sentence. State v. Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012). First, we must “determine whether the trial court applied the correct rule of law, and whether competent, substantial evidence supports” the downward departure sentences. Id. Second, we must determine whether the trial court abused its discretion in finding that the downward departure sentences were the defendant’s best sentencing option. Id.

Applying this mixed, two-part review, we conclude that the trial court erred in imposing the downward departure sentences. Section 921.0026(1), Florida Statutes (2011), provides:

A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to [the criminal punishment code], is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).

921.0026(1), Fla. Stat. (2011) (emphasis added). The trial court’s ground for the downward departure sentences—that the defendant was “experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse”—is not one of the mitigating factors listed in section 921.0026(2). However, “the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” Simmons, 80 So.3d at 1092. While no case has permitted a downward departure sentence based on the trial court’s reason here, such a reason is not otherwise prohibited by case law or the plain language of the statute. Thus, the trial court applied the correct rule of law. Cf. id. at 1092-93 (imposition of downward departure based on enticement was not prohibited and may have been upheld if the record contained competent, substantial evidence to support the departure).

However, on the record evidence before us, we conclude that there was no competent, substantial evidence to support the downward departure sentences. At the sentencing hearing, the defendant’s sister stated that around the time of his third DUI, the defendant went through a “very rough” divorce that was hard on him and his children. The trial court found the defendant’s sister to be a “very credible witness,” thus supporting the trial court’s finding that the defendant was “experiencing great difficulty in his personal life due to his divorce.” However, the defendant’s sister did not testify, as the trial court found, that this “great difficulty ... made him more susceptible to substance abuse.” Moreover, the trial court’s finding plainly ignores that before the defendant’s third DUI, he committed a first and second DUI, both of which occurred before his divorce, i.e., the “great difficulty in his personal life.”

Based on the foregoing, we reverse the trial court’s downward departure sentences and remand for resentencing.

Reversed and Remanded.

LEVINE, J., concurs.

GERBER, J., concurs in part and dissents in part with an opinion.

GERBER, J.,

concurring in part and dissenting in part.

I concur with the majority opinion’s conclusion that there was no competent, substantial evidence to support the downward departure sentences.

However, I respectfully dissent from the majority opinion’s conclusion that the trial court applied the correct rule of law in recognizing as a lawful ground for a downward departure that the defendant was “experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse.” I recognize that under section 921.0026(1), Florida Statutes (2011), a downward departure sentence is permitted if “there are circumstances or factors that reasonably justify the downward departure” and that the mitigating factors to be considered for a downward departure “are not limited to ... those listed” in section 921.0026(2), Florida Statutes (2011). I also recognize that “the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” State v. Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012) (citation omitted). However, affirming the trial court’s recognition of this extremely vague and low standard for a downward departure sentence opens the door to a countless number of similar requests, almost as if the statutorily-enumerated grounds for a downward departure sentence did not exist.


author: SCALES, J.

text:
    Brian P. KEANE, Appellant, v. The PRESIDENT CONDOMINIUM ASSOCIATION, INC., et al., Appellees.
    No. 3D13-746.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2014.
    Rehearing Denied April 2, 2014.

      Newman & Tempkins, P.A., and Harry Tempkins, Miami Beach, for appellant.
    Becker & Poliakoff, P.A., and Lilliana M. Fariñas-Sabogal, and Michael C. Gon-gora, Coral Gables, for appellees.
    Before WELLS, SUAREZ, and SCALES, JJ.
   SCALES, J.

Appellant, plaintiff below, Brian Keane (“Keane”), appeals from the trial court’s summary final judgment in favor of appel-lee, defendant below, The President Condominium Association (“the Association”). We affirm the trial court’s final judgment as to Count II (removal of board members), Count III (intentional interference with a contract), and Count IV (civil conspiracy) without further discussion. Additionally, for the reasons stated below, we affirm the trial court’s summary final judgment as to Count I (seeking a declaratory judgment).

FACTS AND PROCEDURAL BACKGROUND

In 1998, Keane purchased a Miami Beach condominium unit for $50,000.00. Shortly after purchasing the unit, Keane paid the Association an additional $5,000.00 for an extra parking space. To memorialize Keane’s parking space arrangement, Keane and the Association entered into a license agreement, which reads, in its entirety, as follows:

PARKING SPACE LICENSE
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, as agent for AMERICAN AMBASSADOR CORP., a Florida Corporation, for $10.00 and other goods and valuable consideration, the sufficiency and receipt of which are hereby acknowledged by each of the parties, does hreby [sic] grant a License unto BRIAN KEANE, for the use and all rights benefit of the parking space specifically delineated and described in the attached Exhibit “A,” which License shall run with the ownership of Unit 4A of the President Condominium and is specifically for the use of the Owner, subject to all of the rules and regulations of the President Condominium Association as may from time to time exist.

The parking space license was signed by the property manager on behalf of the Association. Nearly ten years later, in 2009, the Association, through its attorney, sent written notice to Keane purporting to revoke the license.

Keane filed a lawsuit in the Circuit Court seeking, inter alia, a declaratory judgment against the Association, essentially alleging that the Association had wrongfully revoked Keane’s parking space license. The trial court entered a summary final judgment for the Association, holding that no genuine issue of material fact existed. The trial court determined that “[t]he parking license was properly revoked by the Association. Said revocation was proper as any rights [Keane] had pursuant to the parking license were personal to him and revocable by the Association.” Keane timely appealed.

ANALYSIS

Our review of the trial court’s summary final judgment is de novo. Casino Invs., Inc. v. Palm Springs Mile Assocs., Ltd., 128 So.3d 98 (Fla. 3d DCA 2013).

At oral argument and in their briefs, the parties stipulated that the “Parking Space License” is a license as opposed to an easement or a lease. The law is well established in Florida that a license is generally revocable at the pleasure of the licensor/grantor. See Dance v. Tatum, 629 So.2d 127, 128 (Fla.1993); Seaboard Air line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759, 761 (1932); Homestead-Miami Speedway, LLC v. City of Miami, 828 So.2d 411, 413 (Fla. 3d DCA 2002). Unlike a lease or an easement, a license is not an interest in real property; it merely gives one the authority to do a particular act on another’s land. See Seaboard Air Line Ry., 149 So. at 761; Dupont v. Whiteside, 721 So.2d 1259, 1263 (Fla. 5th DCA 1998). Therefore, the parking space license was revocable at the will of the Association, and the Association properly revoked it.

The trial court correctly found that the Association met its burden of establishing the absence of any genuine issue of material fact regarding the revocability of the license.

Affirm.

      . Florida has recognized a narrow exception to this revocability rule when (i) permission is granted to use the property for a particular purpose, and (ii) in the execution of that use the permittee has expended large sums or incurred heavy obligations for its permanent improvement. Dance, 629 So.2d at 128. Here, while Keane paid considerable consideration for the subject license, there is no record evidence that Keane expended a substantial sum of money to improve the parking space so as to implicate this exception.


author: PER CURIAM.

text:
    Torrance BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2539.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.
    Torrance Bell, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Torrance Bell challenges a circuit court order that summarily denied his motion for jail time credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm that portion of the circuit court’s order that rejected Bell’s claim of entitlement to jail credit on the second count of two consecutive sentences. See Daniels v. State, 491 So.2d 543 (Fla.1986); Faircloth v. State, 50 So.3d 788 (Fla. 1st DCA 2010).

We also reverse that portion of the order that summarily denied Bell’s motion seeking additional jail credit on the first count. His motion was legally sufficient because it contained the dates he served time in jail up to sentencing, and pointed to the sentencing hearing as being that portion of the record demonstrating his entitlement to additional credit. Haygood v. State, 872 So.2d 444 (Fla. 4th DCA 2004); Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998). Bell alleged that the circuit court orally pronounced credit in an amount more than the 281 days awarded in his written sentence. He attached one page of the sentencing transcript, but it does not resolve the matter. It showed the judge awarding the 281 days of credit that appeared in his written sentence. However, neither Bell nor the circuit court attached the entire sentencing hearing transcript.

Our review of Bell’s allegations reveals that he may be entitled to 284 days rather than the 281 days credited or the 285 days he claims. The record does not refute his entitlement to that amount of credit. The State has conceded this in its response filed in this court, even though it argued that the claim was facially insufficient. We remand for the circuit court to consider Bell’s claim and alleged dates of jail time served.

Reversed and remanded.

STEVENSON, MAY and LEVINE, JJ„ concur.


text:
    Roderick JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3425.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.
    Roderick Johnson, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Hayden LEASON, Petitioner, v. Scott FARESE, Respondent.
    No. 4D13-3893.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.

      John H. Pelzer, Beth-Ann E. Krimsky and Stacey Schulman of Greenspoon Marder, P.A., Fort Lauderdale, for petitioner.
    Thomas W. Tierney and Jason D. Slater of Rossway Moore Swan, Vero Beach, for respondent.
   PER CURIAM.

This matter is before us on a petition for writ of certiorari. Petitioner Hayden Lea-son seeks review of an order allowing a punitive damages amendment to one count of respondent Scott Farese’s complaint for fraudulent misrepresentation. See § 768.72, Fla. Stat. (2013). We deny the petition and write to clarify.

The record reflects that the trial court conducted an evidentiary hearing and considered evidence in addition to the allegations petitioner raised in the fraud count. At the conclusion of the hearing, the court made the following comment: “[f]acts, however, have been alleged that support a claim for fraud in Count I. The rule now seems clear in Florida that a claim of fraud sufficient to justify compensatory damages is also sufficient to support an award of punitive damage.” The petitioner argues that the court based its decision on its belief that a claim for fraud without evidentiary support can alone support a claim for punitive damages. While we agree with the petitioner that this is an inaccurate statement of law, the record establishes that the court, in fact, considered the evidence presented by the respondent in reaching its decision to allow the amendment to the complaint. See Espirito Santo Bank v. Rego, 990 So.2d 1088, 1090 (Fla. 3d DCA 2007) (explaining that allegations of fraud, alone, cannot support a punitive damages claim and must be supported by a reasonable evidentiary basis). We reiterate that allegations of fraud contained in a complaint cannot, standing alone, support a request to amend a complaint to include a claim for punitive damages. Such a request must be supported by a reasonable evidentiary basis. Id. Because the trial court followed the proper procedural requirements of section 768.72, Florida Statutes, we deny the petition. See Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995).

Petition Denied.

DAMOORGIAN, C.J., MAY and CIKLIN, JJ., concur.


author: ROTHENBERG, J.

text:
    Brandon BRATTON, Petitioner, v. Timothy RYAN, etc., et al., Respondents.
    No. 3D14-0351.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2014.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for respondents.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Brandon Bratton, who was charged with aggravated assault with a firearm and released on a $7,500 bond pending trial, petitions this Court for a writ of habeas corpus based on his current “no bond” status. Although the defendant does not dispute, and we do not find, that the trial court erred by revoking his bond when he failed to appear for a pretrial sounding after receiving both oral and written notice, he contends he is entitled to a full hearing and findings by the trial court pursuant to sections 907.041 and 903.046, Florida Statutes (2014), before pretrial detention may be required based on the motion he filed under Florida Rule of Criminal Procedure 3.131(d).

In State v. Paul, 783 So.2d 1042, 1051 (Fla.2001), the Florida Supreme Court held that when a defendant breaches a bond condition and his bond is revoked, the trial court may deny the defendant’s subsequent request for a new bond, but the trial court’s discretion is limited by Florida statutes. Section 907.041(4)(c)(7) provides that:

(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial[.]

Among the criteria in section 903.046 that the trial court may consider is “[t]he defendant’s past and present conduct, including ... failure to appear at court proceedings.” § 903.046(2)(d).

The record reflects that although the trial court conducted the hearing requested by the defendant, it failed to make the requisite findings. We, therefore, grant the petition and remand to the trial court to conduct another hearing wherein the defendant and the State may present additional evidence and/or arguments relevant to the defendant’s pretrial detention, and for the trial court to address and make the requisite findings. The trial court must conduct this hearing within a reasonable time or release the defendant. See Ginsberg v. Ryan, 60 So.3d 475, 477 (Fla. 3d DCA 2011); see also Roby v. State, 795 So.2d 189, 190 (Fla. 3d DCA 2001). This Court’s ruling does not preclude the filing of a motion or presentation of evidence by the State to seek pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132(b).

Petition granted.


author: KLINGENSMITH, J.

text:
    Robert Eric SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2773.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2014.

      Carey Haughwout, Public Defender, and Patrick B. Burke, 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.
   KLINGENSMITH, J.

The Defendant, Robert Eric Santiago, appeals from the trial court’s denial of his motion to suppress, and the court’s failure to adhere to its oral pronouncement issued at the conclusion of his violation of probation hearing. We agree with Defendant on both issues, and reverse.

Defendant pled guilty to robbery and was given a sentence that included probation. Under the terms of his probation, Defendant was ordered to comply with Florida’s standard conditions of supervision that included a requirement that he report to his probation officer every month. He was also informed that while on probation he could not violate any law, use intoxicants in excess, or use drugs or narcotics unless prescribed. The instant case arises from Defendant’s purported violations of those conditions.

One month later, a police officer made a traffic stop on the car Defendant was driving after the officer smelled marijuana emanating from the vehicle. Another officer who responded to the scene after the stop believed Defendant was impaired and ordered him to perform field sobriety tests. When Defendant refused to take a breathalyzer, he was arrested for DUI and for driving without a valid driver’s license.

Three days after the DUI arrest, police received an anonymous phone call about a car parked at the end of a dead end street at 2:00 a.m. with its headlights periodically flashing on and off. When officers arrived at the location, they found Defendant and a female passenger inside the vehicle. The keys were in the ignition so music could play, but the engine was not running. One officer detected the odor of alcohol on Defendant’s breath. Defendant stated he had consumed a couple beers, but he was not driving. When asked about his presence at that location, he gave the officers a vague explanation. Defendant was ordered to step out of the car, and when he did, a small plastic bag containing cocaine dropped from his lap onto the ground. The officers then searched the car and located a short plastic straw that they deemed to be drug paraphernalia. The female passenger, who owned the vehicle, told the officers that both the cocaine and paraphernalia belonged to Defendant. Defendant was arrested for possession of cocaine and drug paraphernalia.

The State subsequently charged Defendant with six violations of probation for committing a DUI, operating a motor vehicle without a valid license, possessing cocaine, possessing drug paraphernalia, failing to report to his probation officer, and changing his residence without the consent of his probation officer.

Defense counsel filed a motion to suppress both the cocaine and paraphernalia, claiming these items were obtained during the course of an unlawful detention. The motion argued that the initial report to dispatch came from an anonymous caller bereft of any facts that insinuated criminal activity was afoot. Further, it was alleged there was no legal justification for an investigatory stop because the officer merely smelled alcohol on Defendant’s breath with no indicia of intoxication. Counsel also argued this was not a consensual encounter because Defendant could not have objectively believed he was free to leave since the officers positioned themselves on both sides of the vehicle. The State responded that the officers were engaged in a consensual encounter with Defendant, and could reasonably detain him for further investigation because he was observed in the driver’s seat, smelling of alcohol, with keys in the car’s ignition.

The trial court denied the motion to suppress, finding that the interaction was consensual, and that had Defendant’s car been moving, the police would not have had reasonable cause to make a stop. The court also concluded that the officers had a reasonable basis to temporarily detain Defendant by ordering him out of the car for further investigation and officer safety based on the lateness of the hour, the suspiciousness of Defendant’s explanation for being there, and the odor of alcohol.

At the violation of probation hearing, Defendant conceded that he had failed to report to his probation officer as instructed. On the other alleged violations, his counsel argued that the arresting officer for the DUI charge did not see Defendant driving and could not verify that he was behind the wheel of the car. As a result, the DUI charge was never filed, and the driving with a suspended license charge was nolle prossed. Counsel also argued there was no evidence to suggest that the straw discovered during the vehicle search incident to the cocaine arrest was illegal paraphernalia, because it was never tested for drug residue. As for the allegation of cocaine possession, the defense argued that there were two people in the car and the cocaine could have belonged to his female passenger. Finally, as to Defendant’s alleged violation for an unauthorized change of residence, Defendant’s mother testified that he never moved from her house.

The trial court orally announced its finding that Defendant violated his probation by failing to report for supervision, possessing cocaine, and operating a motor vehicle with a revoked license. Defendant was sentenced to ten years in prison with credit for time served. Although the court orally pronounced Defendant guilty of only three counts from the affidavit, the subsequent written order of probation revocation found that Defendant violated all six conditions. This appeal followed.

The two issues presented are: 1) whether the trial court erred by denying Defendant’s motion to suppress; and 2) whether the trial court’s written order of probation revocation failed to conform to its oral pronouncement.

As the trial court correctly noted, a police officer may approach a citizen to ask questions without a founded suspicion of criminal activity. Thus, the interaction between the Defendant and the officers on the dead end street began as a consensual encounter. Popple v. State, 626 So.2d 185, 187 (Fla.1993). However, in distinguishing between different levels of police-citizen encounters, the Florida Supreme Court in Popple characterized an order to exit a vehicle as a “seizure,” thus converting the consensual encounter into a detention that required a well-founded ar-ticulable suspicion of criminal activity. Id. at 187-88.

In making reasonable-suspicion determinations, appellate courts must look at the “totality of the circumstances” in each case to determine whether the detaining officer has a “particularized and objective basis” for suspecting criminal activity. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); see also State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003). In the instant case, the trial court pointed to three factors which it believed established the officer’s reasonable suspicion of criminal activity: the suspiciousness of Defendant’s explanation for being at that location, officer safety, and “perhaps” the alcohol and driving. However, the record before us does not support the court’s conclusion that those factors created reasonable suspicion to justify an investigatory stop of Defendant.

First, the court noted that Defendant’s explanation that he and the female passenger were just “hanging out” seemed “a little suspicious.” But, a mere suspicion or hunch is not enough to justify temporary detention. As Florida courts have explained, “the officer must be able to articulate the supporting facts, and the suspicion must be well-founded” to support an investigatory stop. Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004) (citing Love v. State, 706 So.2d 923, 924 (Fla. 2d DCA 1998)). In a similar case decided by this court, Miranda v. State, 816 So.2d 132, 133 (Fla. 4th DCA 2002), the defendant was observed inside a legally parked car, with the engine off and windows partially rolled down. The officer testified that she knew the car did not belong there, the area was high in crime, and area residents did not “hang out” in their vehicles with the windows rolled down. Id. When the officer became suspicious and approached the car, the defendant was seen making furtive movements while holding an object in his hand that she could not identify. Id. Because she did not know whether the object was a weapon, she ordered the defendant out of the car for her safety. Id. at 134. As he was getting out of the vehicle, the officer discovered contraband. Id. Given those facts, this court reversed the trial court’s denial of the defendant’s motion to suppress, holding that the circumstances described did not give rise to a well-founded, articulable suspicion of criminal activity required for an investigatory stop. Id. at 135.

In the instant case, in addition to his statement to the officers that he was simply “hanging out,” Defendant also told them that he lived nearby and pointed to his residence “somewhere towards the middle of the street.” The testimony also showed that the Defendant was observed listening to music in his car along with the female passenger when the officers arrived on scene. No other facts were presented at the hearing to support a well-founded suspicion that Defendant was not “just hanging out,” nor did the trial court elaborate on why it found Defendant’s explanation suspicious. Viewed in their entirety, these facts are insufficient to form a particularized and objective basis for reasonable suspicion of criminal activity.

Second, the officer testified that he ordered the Defendant out of the car for “officer safety purposes.” In Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court found that temporary detention of an individual may be justified by an officer’s specific concern for his own safety. The Court noted that, in determining whether an officer acted reasonably under the circumstances, courts must give due weight to the specific reasonable inferences which officers are entitled to draw from the facts in light of their experience and ask whether a “reasonably prudent [person] in the circumstances would [have been] warranted in the belief that his safety or that of others was in danger.” Id. at 27, 88 S.Ct. 1868. According to the officer’s testimony, “when I interact with people that are in a vehicle ... I always ask them to step out of the vehicle most of the time.” Absent a reasonable suspicion that a crime has occurred, is occurring, or is about to occur, an officer may not convert a consensual encounter into an investigatory stop by ordering a citizen out of a parked car. Popple, 626 So.2d at 188 (defendant’s presence in a car parked in a desolate area, even though making furtive movements, did not provide the reasonable suspicion necessary to order the defendant out of the car).

Here, there was no indication that Defendant was involved in any criminal activity, nor was there any objective basis for the officer to conclude that his safety or that of the public was endangered. The area was not described as high in crime, and the officer did not describe seeing any furtive movements or illegal activity. See Gentles v. State, 50 So.3d 1192, 1198 (Fla. 4th DCA 2010) (finding no evidence was presented to show a specific concern for officer safety where there were “no furtive movements, nervous reactions, or any circumstances to warrant a belief that the officer’s safety was in danger”). Other than a comment on the lateness of the hour, the officer never testified about a specific concern for his own safety; to the contrary, the testimony suggested he had no specific reason to believe his safety was at risk and ordered him from the car based in part on his own standard practice. See, e.g., Ippolito v. State, 789 So.2d 423 (Fla. 4th DCA 2001) (officer lacked a well-founded suspicion of criminal activity to justify ordering the defendant out of his legally parked vehicle merely because it was late at night, the defendant was parked at a gas station in an area of past criminal activity, and the officer believed the defendant was untruthful about his purpose for being there); Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978) (officer did not have sufficient reason for ordering the defendant to leave his car, where the officer observed the defendant at 1:30 a.m. in a sports car, legally parked, with the windows closed and engine off, and after seeing no unusual activity). Therefore, the court’s finding that “officer safety” was the reason for the instruction to Defendant to exit the vehicle was not supported by competent, substantial evidence. Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011).

Third, the officer testified that he also ordered Defendant out of the car because he smelled alcohol on Defendant’s breath while he was sitting in the driver’s seat. However, the officer testified that the odor of alcohol, coupled with Defendant’s admission that he had consumed a couple of beers, did not lead him to conclude that Defendant might be under the influence.

[Defense]: Okay. You did say that you did smell alcohol on his breath?
[Officer]: Yes, I did.
[Defense]: And at the deposition you acknowledged that it’s not illegal for someone to have a drink before driving?
[Officer]: That is correct.
[Defense]: You even stated that he was free to leave?
[Officer]: If he had said at the time I first made contact with him I’m going to get out of here, I’m going to leave. At that point he was free to leave, yes.
[Defense]: And you said even when he got out of the car he was free to leave.
[Officer]: Until the bag of cocaine dropped from his lap, yes.
[Defense]: So when you testified previously on the State[’]s cross — excuse me, on the State[’]s direct, that the reason for you pulling him out of the vehicle was because of the DUI or the suspicion that rose to the level of a DUI, that’s not what you said at the deposition.
[Officer]: Well, what do you mean? Can you rephrase that?
[Defense]: When the State was asking you questions before you stated that the reason why you pulled him out of the vehicle was because you smelled alcohol on his breath.
[Officer]: Right.
[Defense]: And he was sitting inside of the vehicle.
[Officer]: I believe I told you it was also for officer safety purposes. That when I interact with people that are in a vehicle, that I always ask them to step out of the vehicle most of the time.
[Defense]: Okay. And you even said that he would have been free to leave as long as he would have showed you his ID?
[Officer]: As long as he showed me he had a driver’s license, he would have been free to drive off.
[Defense]: And when asked about if he was able to walk away, you said he would have been free to leave?
[Officer]: Yes. Walk away, 100 percent.

(Emphasis added). This court and others have required more than the odor of alcohol to establish reasonable suspicion for an investigatory stop. See, e.g., State v. Castaneda, 79 So.3d 41 (Fla. 4th DCA 2011) (reasonable suspicion present where defendant was speeding, smelled of alcohol, and had bloodshot and watery eyes); State v. Ameqrane, 39 So.3d 339 (Fla. 2d DCA 2010) (reasonable suspicion existed where the defendant was speeding at four o’clock in the morning, had bloodshot, glassy eyes, and smelled of alcohol); Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005) (reasonable suspicion present where defendant was speeding, smelled of alcohol, and had bloodshot eyes); State v. Jimoh, 67 So.3d 240, 241 (Fla. 2d DCA 2010) (reasonable suspicion where defendant observed sitting in the driver’s seat of her parked car with the engine running and the headlights on, “slumped over” steering wheel, driver’s side window was open and the deputies detected a strong odor of alcohol coming from the car); State v. Taylor, 648 So.2d 701, 703 (Fla.1995) (factors creating reasonable suspicion of impairment include traffic violations, slurred speech, watery, bloodshot eyes, and a strong odor of alcohol).

From the testimony presented, even after speaking to Defendant, and despite smelling the alcohol on his breath, Defendant was always free to leave. If the officer had reasonable suspicion to believe Defendant was under the influence, or otherwise engaged in other criminal activity, he would not have been free to walk or drive away without further investigation.

Therefore, viewing the circumstances in their totality, the officer did not possess the requisite reasonable suspicion of criminal activity to order Defendant out of his parked car to conduct an investigatory stop. Because the detention of Defendant was improper, all the evidence resulting from this seizure should have been suppressed. Popple, 626 So.2d at 188. This exclusionary rule applies in probation revocation proceedings so that suppression of the fruit of the search in this case, i.e., the cocaine and paraphernalia, also prohibits that evidence from being considered on the issue of Defendant’s probation violation. See State v. Cross, 487 So.2d 1056 (Fla.1986); Lee v. State, 868 So.2d 577 (Fla. 4th DCA 2004); Morse v. State, 604 So.2d 496, 504 (Fla. 1st DCA 1992); Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989); Kelly v. State, 536 So.2d 1113, 1114 (Fla. 1st DCA 1988).

As to the second issue, at the conclusion of the violation of probation hearing, the trial court stated:

All right. Well, based on the evidence presented and considering the arguments the Court concludes that the defendant violated his probation by failing to report to the probation officer as instructed. By failing to make himself available for supervision. I mean I don’t think the — couldn’t find him and locate him. He failed to show up for a while. By possession of cocaine and by operating a motor vehicle without a license or a suspended or revoked license. So, in those respects we conclude that he violated his probation.

According to this oral pronouncement, Defendant willfully and substantially violated only three of the six conditions alleged in the charging affidavit. Therefore, the court’s written order of revocation, issued almost two weeks later finding that Defendant violated each of the six conditions alleged in the affidavit, did not conform to the court’s oral pronouncement. Where a trial court’s written sentencing order conflicts with the oral pronouncement, the oral pronouncement controls. See, e.g., Smith v. State, 49 So.3d 833 (Fla. 1st DCA 2010); Dailey v. State, 791 So.2d 586, 588 (Fla. 3d DCA 2001); Tory v. State, 686 So.2d 689 (Fla. 4th DCA 1996); Williams v. State, 604 So.2d 8, 9 (Fla. 1st DCA 1992).

Because it is unclear from the record whether or not the trial court would have revoked Defendant’s probation and sentenced him to ten years of imprisonment based solely upon the violations for failing to report for supervision and driving without a license, we remand with instructions that the trial court reconsider Defendant’s probation revocation and subsequent sentence, and enter a written order consistent with this opinion. See Brown v. State, 12 So.3d 877, 879-80 (Fla. 4th DCA 2009); Oertel v. State, 82 So.3d 152, 157 (Fla. 4th DCA 2012).

Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.


text:
    Ethel SCHNEIDER, Appellant, v. Peter SPAETH, Appellee.
    No. 4D12-3614.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2014.

      Michael H. Wolf, Fort Lauderdale, for appellant.
    Meredith Chaiken-Weiss, Warren B. Kwavnick and David F. Cooney of Cooney Trybus Kwavnick Peets, PLC, Fort Laud-erdale, for appellee.
   PER CURIAM.

Appellant, Ethel Schneider, appeals the trial court’s entry of a default and default final judgment against her after she failed to attend a case management conference. Schneider argues that the court erred in entering the default without including the requisite findings that her conduct, upon which the default was based, was willful. We agree, and reverse.

Schneider was one of several defendants in a suit brought by appellee, Peter Spaeth. After approximately two years of litigation between the parties, Schneider failed to appear at a mandatory case management conference. As a result of her non-appearance, the trial court issued an order, wherein the court stated it had “specifically advised [her] that a failure to attend the Status Conference would amount to an abandonment of the defense in this matter and shall give rise to the entry of a Default Judgment.” In that order, the court also found notice of the conference was served on Schneider at her correct address, and noted that she failed to attend as required. Consequently, the trial court found that Schneider had abandoned her defenses in the case, and ordered a default judgment against her. Her subsequent motion to set aside default and default final judgment was denied following a hearing. This appeal followed.

Where a party fails to attend a properly noticed case management conference, “the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action.” Fla. R. Civ. P. 1.200(c). We have consistently held, however, that “[a] finding that the party’s conduct was willful and contumacious is necessary for entering a default under rule 1.200(c).” Giemme USA, LLC v. La Sala Group, Inc., 92 So.3d 920, 922 (Fla. 4th DCA 2012) (quoting Zeigler v. Huston, 626 So.2d 1046, 1047 (Fla. 4th DCA 1993)); see also Townsend v. Feinberg, 659 So.2d 1218, 1219 (Fla. 4th DCA 1995) (“Prior to exercising its discretion to grant dismissal based on failure to comply with a court order, the court must make a finding that the failure to comply was willful or contumacious.”).

The requisite written finding of willfulness is, in part, to provide assurance that “the trial judge has made a conscious determination that the noncompliance was more than mere neglect or inadvertence.” Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990). “[N]o ‘magic words’ are required but rather only a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Id. Moreover, the trial court must include written findings supporting its ruling in the subject order, and “failure to do so constitutes reversible error.” Petersen & Hawthorne, P.A. v. EMI Enters., Inc., 115 So.3d 1064, 1064 (Fla. 4th DCA 2013) (citation omitted); see also Kaufman ex rel. Yelnick v. FS Tenant Pool III Trust, 87 So.3d 1228, 1229 (Fla. 4th DCA 2012) (reversing a dismissal because the order failed to contain a finding that the failure to appear was willful and contumacious); Giemme, 92 So.3d at 922 (reversing default and final judgment based on trial court’s order, entered after defendants failed to appear at case management conference, because that order failed to make the requisite finding that defendants’ conduct was willful and contumacious).

Here, the trial court’s order merely stated that Schneider had been properly noticed, and that the court had previously advised her that non-appearance at the case management conference would amount to an abandonment of her defense and give rise to a default. This was not sufficient. The court failed to include any findings that she engaged in willful and contumacious behavior to justify the default’s entry. Therefore, we reverse and remand to give the trial court the opportunity, after reviewing the record, to make a determination on whether her failure to appear at the court-mandated case management conference was willful, or in the alternative, to allow the matter to proceed.

Reversed and Remanded.

STEVENSON, CIKLIN and KLINGENSMITH, JJ, concur.


author: EMAS, J.

text:
    Roy HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2530.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.

      Roy Harris, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   EMAS, J.

Roy Harris appeals from the trial court’s order transferring his petition for writ of habeas corpus to the Circuit Court, Second Judicial Circuit, in Leon County. We reverse.

Harris alleges he is currently serving a sentence in Miami-Dade County following a revocation of his parole. He filed a petition for a writ of habeas corpus with the Circuit Court in Miami-Dade County, alleging that the Florida Parole Commission issued a warrant and revoked his parole after his term of parole had already expired, that the Commission acted without jurisdiction, and that he is therefore being incarcerated illegally in Miami-Dade County.

The trial court declined to reach the merits of Harris’ claim, determining that the Clerk of the Miami-Dade Circuit Court had already transferred the petition to the Leon County Circuit Court. The trial court rendered an order determining that the transfer was proper. However, given the nature of the claim raised by Harris’ petition, we hold that the petition was properly filed in the Miami-Dade County Circuit Court, where Harris is currently incarcerated.

Historically, habeas corpus petitions are filed to test the legality of the petitioner’s detention and to secure immediate release from that detention if it is determined to be illegal. The general rule is that a petition for writ of habeas corpus must be filed in the circuit court of the county where the petitioner is located. See § 79.09, Fla. Stat. (2013) (providing that a petition for writ of habeas corpus “shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.”); Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814 (Fla.1996); Lewis v. Fla. Parole Comm’n, 697 So.2d 965 (Fla. 1st DCA 1997); Ruiter v. Wainwright, 249 So.2d 67 (Fla. 2d DCA 1971).

While there are exceptions to this general rule of proper venue, none apply to the instant case. Petitioner’s challenge to the jurisdiction of the Parole Commission to revoke parole, and his allegation that he is entitled to immediate release as a result of his unlawful detention, dictate that venue is proper in the circuit court of the county in which he is incarcerated. See Young v. Simmons, 506 So.2d 434 (Fla. 2d DCA 1987); State v. Sampson, 297 So.2d 120 (Fla. 4th DCA 1974). We therefore vacate the transfer order and remand for further proceedings on the petition. We express no opinion on the merits of the petition.

      . The record on appeal reveals that, according to correspondence from the Clerk of Courts in Leon County, the case has not been transferred to, nor the file received by, the Clerk of Courts in Leon County.

      . One exception to this general rule exists where the petition seeks to challenge the Parole Commission's determination of a petitioner's presumptive parole release date. The proper venue for such a claim is in the Leon County Circuit Court (Tallahassee), where the Commission is headquartered. See Sullivan v. Fla. Parole Comm’n, 920 So.2d 106 (Fla. 2d DCA 2006). A second exception exists where a habeas corpus petition attacks the validity of his underlying conviction by raising issues relating to the trial or the plea; under such circumstances, the petition must be filed in the circuit where the judgment of conviction was imposed. See Coakley v. State, 43 So.3d 790 (Fla. 1st DCA 2010); Collins v. State, 859 So.2d 1244 (Fla. 5th DCA 2003).


text:
    Darvin FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-783.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2014.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Darvin Floyd was convicted of attempted murder in the second degree. The trial court made a specific finding that Floyd possessed and discharged a firearm which had inflicted great bodily harm to the victim. Floyd filed a multi-point ineffective assistance of trial counsel motion pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied some issues, and others were the subject of an evidentiary hearing. This appeal concerns Floyd’s sole claim that defense counsel failed to investigate witness testimony that the victim, after having identified Floyd as the shooter, was asking people the identity of the person who had shot him. Charles Roberts’ testimony at the evidentiary hearing supported that claim. The trial court denied Floyd’s motion, but did not specifically address this point.

As we recently stated in Tyrell v. State, 107 So.3d 536, 537 (Fla. 4th DCA 2013):

The standard of review of the denial of a motion for postconviction relief after an evidentiary hearing requires deference to the trial court’s factual findings. See Brancaccio v. State, 27 So.3d 739 (Fla. 4th DCA 2010). An appellate court is not empowered to make findings of fact. See Hunter v. State, 87 So.3d 1273 (Fla. 1st DCA 2012). The trial court was required to set forth the findings and conclusions that showed why Defendant was not entitled to relief on his claims. Absent any such findings, we cannot review the sufficiency of its ruling.

As in Tyrell, we reverse and remand for further proceedings. On remand, the lower court is directed to make the necessary findings and conclusions of law as required by the rule. See Fla. R.Crim. P. 3.850(d); Jacobs v. State, 80 So.3d 440 (Fla. 4th DCA 2012).

Reversed and Remanded with instructions.

MAY, CIKLIN and FORST, JJ, concur.

      . Within its order denying relief, the judge ruled: "as to the claim based on newly discovered evidence, the Court finds there is lack of credibility of the witness.” The judge denied the other claims without comment. The newly discovered evidence claim concerned a different witness who testified that after Appellant had been sentenced, Appellant’s brother said that he was the shooter, not Appellant.

      . Though renumbered, the current rule requires the findings. See Fla. R.Crim. P. 3.850(f)(8)(A) ("If an evidentiary hearing is required, the court shall grant a prompt hear-tag and shall cause notice to be served on the state attorney ... and shall determine the issues, and make findings of fact and conclusions of law with respect thereto.").


author: PER CURIAM. WARNER, J.,

text:
    Remo POLSELLI and Hanna Karcho, Petitioners, v. WICKER, SMITH, O’HARA, McCOY & FORD, P.A., Respondent.
    No. 4D13-4180.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2014.
    Chase A. Berger and Jennifer A. Chunn of Berger Firm, P.A., Hollywood, for petitioners.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for respondent.
   PER CURIAM.

The petitioners seek certiorari review of an order that compels them, as California residents, to travel to Broward County, Florida, for their depositions. We grant the petition and quash the order. Teledyne Indus., Inc. v. Mustang Ranch Aircraft, Inc., 753 So.2d 785 (Fla. 3d DCA 2000); Ayer v. Bush, 696 So.2d 1333 (Fla. 4th DCA 1997); Donahoo v. Matthews, 660 So.2d 391 (Fla. 5th DCA 1995); Fortune Ins. Co. v. Santelli, 621 So.2d 546 (Fla. 3d DCA 1993); see also CVS Caremark Corp. v. Latour, 109 So.3d 1232, 1234-35 (Fla. 1st DCA 2013) (citing Triple Fish Am., Inc. v. Triple Fish Int’l, L.C., 839 So.2d 913, 914 n. 1 (Fla. 5th DCA 2003)).

Respondent law firm sued the petitioners individually, together with the business entities with which they are involved, for unpaid legal services provided to those entities. Respondent noticed the petitioners to appear for deposition in their individual capacity. It is well-settled that a defendant must be deposed in the county of his or her work or residence unless the defendant has sought affirmative relief or extraordinary circumstances exist. See Fla. R. Civ. P. 1.410(e)(2); Dan Euser Waterarchitecture, Inc. v. City of Miami Beach, 112 So.3d 683, 684 (Fla. 3d DCA 2013); Ayer, 696 So.2d at 1333; Espana v. Redneris, 661 So.2d 1295 (Fla. 4th DCA 1995). Petitioners are not seeking affirmative relief and respondents have failed to demonstrate that extraordinary circumstances exist, which would require petitioners’ appearance in Florida for deposition.

Petition granted and order quashed.

GERBER and KLINGENSMITH, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would grant respondent’s motion to dismiss this petition as untimely. The trial court originally entered an order in August 2013, requiring the petitioners to appear for their depositions in Broward County. Rather than seek review of that order, petitioners failed to appear for the scheduled depositions, prompting a motion to compel and the order now before this court. Their failure to seek timely review of the August 2013 order resulted in a waiver of their right to contest their required appearance in Florida. I would, therefore, grant respondent’s motion to dismiss this petition as untimely. See Bensonhurst Drywall, Inc. v. Ledesma, 583 So.2d 1094 (Fla. 4th DCA 1991); see also Decktight Roofing Servs. Inc. v. Amwest Sur. Ins., 841 So.2d 667, 668 (Fla. 4th DCA 2003). Alternatively, I would deny the petition because petitioners have failed to demonstrate that they are not corporate representatives who can be deposed at the corporate place of business. CVS Caremark Corp. v. Latour, 109 So.3d 1232 (Fla. 1st DCA 2013). Based on the foregoing, I cannot conclude that the trial court departed from the essential requirements of law.

      . We deny respondent’s motion to dismiss as the previous directive that the petitioners appear "as scheduled” was issued within an order that permitted their attorneys to withdraw.


author: SALTER, J.

text:
    CORONADO CONDOMINIUM ASSOCIATION, INC., a not-for-profit Florida corporation, Appellant, v. JALUD REALTY, LLC, a dissolved Florida limited liability company, et al., Appellee.
    No. 3D13-1941.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Toyne & Mayo, P.A., Ross B. Toyne, Michael Schimmel, and Aberto J. Alonso for appellant.
    James Devaney and Mark Ricciardi; Nancy Wear, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   On Concession of Error

SALTER, J.

Coronado Condominium Association, Inc., appeals circuit court orders dismissing a statutory lien foreclosure case for lack of prosecution and denying a subsequent motion to vacate the order of dismissal. The appellee initially was precluded from filing an answer brief following our issuance of an order to show cause. Following a notice of appearance and a concession of error by co-counsel for the appellee, we reverse the orders below and remand this case to the circuit court for further proceedings. Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005) (reiterating purpose of Fla. R. Civ. P. 1.420(e) and the specification that “record activity” includes “filings of pleadings, order of court, or otherwise,” establishes a “bright-line test that will ordinarily require only a cursory review of the record”). For the avoidance of doubt, we further conclude that the Association’s pleading filed in response to the computer-generated “Notice of Lack of Prosecution” also demonstrated good cause why the action should not be dismissed for lack of prosecution.

Reversed and remanded.


text:
    Silvana ECHEGUREN, et al., Appellants, v. CITIBANK, N.A., Appellee.
    No. 4D13-2931.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2014.
    Silvana Echeguren, Fort Lauderdale, pro se.
    Kathleen E. Angione and Roy A. Diaz of SHD Legal Group, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This cause is summarily affirmed under Florida Rule of Appellate Procedure 9.315, as the initial brief fails to present a preliminary basis for reversal. Specifically, the issues raised in the appellants’ brief relate to the 2009 final judgment of foreclosure and appellants’ motion to vacate same. The issues do not relate to the order resetting foreclosure sale, which is the subject of appellants’ notice of appeal.

Affirmed.

STEVENSON, CIKLIN and KLINGENSMITH, JJ., concur.


author: SILBERMAN, Judge.

text:
    Nickolas EKONOMIDES, Appellant, v. Jeanne Abou SHARAKA, Diamond Gifts, E & A, Inc., and Elias Anastasopoulos, Appellees.
    No. 2D13-272.
    District Court of Appeal of Florida, Second District.
    March 5, 2014.
    Nickolas Ekonomides, pro se.

      David E. Platte of David E. Platte, P.A., Clearwater, for Appellee Jeanne Abou Sharaka.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

In an action for malicious prosecution brought by Jeanne Abou Sharaka (the Tenant), Nickolas Ekonomides appeals a final order denying entitlement to attorney’s fees on the basis that paragraph four of his proposal for settlement is ambiguous. We conclude that the subject paragraph is not ambiguous and reverse. We have also reversed the final summary judgment that was entered in Ekonomides’ favor in Abou Sharaka v. E & A, Inc., 135 So.3d 428 (Fla. 2d DCA 2014). Thus, the issue of whether Ekonomides is entitled to recover fees must await resolution of the malicious prosecution action.

For purposes of remand, if Ekonomides again prevails in the trial court and seeks fees under his proposal for settlement, the proposal will have to be evaluated in light of our determination that paragraph four of the proposal is not ambiguous. Paragraph four offers to pay the Tenant $100 to settle this action, “payable within ten (10) days of entry of the Order of Dismissal with Prejudice.” The Tenant argued, among other things, that paragraph four is ambiguous because the offer makes an illusory promise to pay only after the case is dismissed with prejudice. According to the Tenant, if Ekonomides fails to pay the $100, the trial court would not have jurisdiction to enforce the settlement agreement after entry of a final order of dismissal. The trial court concluded that paragraph four is ambiguous because the Tenant “shouldn’t have to guess as to whether” she would collect after dismissal of the case.

We agree with Ekonomides that paragraph four is not ambiguous and that the trial court would have continuing jurisdiction to enforce the settlement, had the proposal been accepted. Pursuant to the offer of judgment statute, “[u]pon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.” § 768.79(4), Fla. Stat. (2011); see also Mady v. DaimlerChrysler Corp., 59 So.3d 1129, 1133 (Fla.2011) (stating that “a settlement produced pursuant to Florida’s offer of judgment statute is subject to that court’s full continuing jurisdiction thereafter”). Thus, if the Tenant had accepted the proposal and Eko-nomides had failed to pay the $100, the trial court would have had jurisdiction to enforce the settlement agreement.

With respect to ambiguity, Florida Rule of Civil Procedure 1.442 requires that the proposal state all conditions and nonmone-tary terms with particularity. See Tran v. Anvil Iron Works, Inc., 110 So.3d 923, 925 (Fla. 2d DCA 2013) (recognizing that the rule “ ‘merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification’ ” (quoting State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006))). An ambiguous proposal is unenforceable. Id. at 926. In the context of the requirement for particularity, “an ambiguity is defined as ‘the condition of admitting more than one meaning’ ” Id. (quoting Mix v. Adventist Health Sys./Sunbelt, Inc., 67 So.3d 289, 292 (Fla. 5th DCA 2011)). The condition that the Tenant contends is ambiguous has only one meaning. Paragraph four provides that Ekonomides would pay the Tenant $100 within ten days of entry of the order of dismissal with prejudice. The fact that she was concerned that Eko-nomides might breach the agreement and fail to pay does not make the proposal ambiguous.

Accordingly, we reverse the final order denying entitlement to attorney’s fees and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ„ Concur.


text:
    STATE of Florida, Appellant, v. Jason Scott MILLER, Appellee.
    No. 2D13-1378.
    District Court of Appeal of Florida, Second District.
    March 5, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    Howard L. “Rex” Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appel-lee.
   PER CURIAM.

The State appeals an order suppressing physical evidence and statements. This court has jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(B). We reverse the trial court’s order under the authority of our decision in State v. Mitchell, 124 So.3d 1046 (Fla. 2d DCA 2013).

In the underlying trial court case, Mr. Miller is a codefendant of the appellee in Mitchell. The facts and legal rulings that gave rise to the order under review in this case are substantially identical to those in Mitchell. Accordingly, as we did in Mitchell, we reverse the trial court’s order granting the motion to suppress and remand this case to the trial court for further proceedings.

Reversed and remanded.

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.