text:
    Michael HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2892.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG and LOGUE, JJ.
   LOGUE, J.

On September 24, 2008, a jury found Michael Hernandez guilty of the first-degree murder of a fourteen-year-old middle school student and the attempted first-degree murder of a thirteen-year-old student. At the time of his crimes, Hernandez was fourteen years old. The trial court sentenced Hernandez to life without the possibility of parole for first-degree murder and to a consecutive term of thirty years for attempted first-degree murder.

On direct appeal, Hernandez raises four issues: (1) whether his sentence for first-degree murder violates the prohibitions against cruel and unusual punishments under the Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution; (2) whether competent, substantial evidence supports his conviction for attempted first-degree murder; (3) whether the prosecutor’s statutory discretion to “direct file” the indictment in criminal court, rather than juvenile court, violates his right to due process; and (4) whether sufficient evidence supports the trial court’s finding that he was competent to stand trial. In light of the recent decision of the United States Supreme Court in Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), we remand the case for resentencing on the first-degree murder conviction. As to the remaining issues on appeal, however, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On February 3, 2004, Michael Hernandez was an eighth grade student in a gifted program at Southwood Middle School. That morning, a fellow student walked into a bathroom on the second floor of the school and saw Hernandez washing his hands. The student also saw in the reflection of a mirror another student collapsed in a toilet stall with blood on the floor. The student asked Hernandez if he had seen the body and Hernandez replied, “Yes, we should tell somebody.” Hernandez then left the bathroom and went to class. The other student hurriedly notified school officials.

The resulting investigation revealed that the student in the stall, J.G., had died. His throat had been cut and he had been stabbed in the neck and face. J.G. was a fourteen-year-old male in the eighth grade who was a friend of Hernandez. Police investigators were called to the scene and quickly discovered a bloody windbreaker and a latex glove in Hernandez’s book bag. In the early evening, Hernandez waived his Miranda rights and confessed to J.G.’s murder.

According to his videotaped confession, and the evidence admitted at the trial, Hernandez planned for over a week to murder both J.G. and another male student, A.M., who was thirteen years old.

Regarding the murder of J.G. on February 3, 2004, Hernandez first convinced J.G. to join him in the bathroom. Hernandez normally did not wear a hat or jacket. Once inside the bathroom that morning, however, he donned a hat, jacket, and latex gloves. Hernandez later explained that the hat was intended to keep hair follicles from falling on the crime scene; the jacket, which could easily be removed and hidden, was intended to keep blood off his shirt; and the gloves were intended to prevent palm prints and fingerprints. He coaxed J.G. into the handicapped stall. He locked the stall door. He turned J.G., so that he was facing away from him. He drew a gravity knife with a four-inch serrated blade from his right front pocket. As J.G. began to protest, Hernandez placed his left hand over J.G.’s mouth. At some point, J.G. pushed the edge of the knife away with his right hand, opening wounds in the pads of his index and middle fingers. Hernandez made several cuts across J.G.’s throat from left to right, finally making an incision four to five inches long that opened J.G.’s windpipe and severed both jugular veins. To determine if J.G. was alive, Hernandez poked the knife into his face and scalp. When he finally checked J.G.’s eyes, they were motionless. He flushed one pair of latex gloves down the toilet and put on another pair. He washed blood off his hands, jacket, and face.

Hernandez also confessed that he tried to kill A.M. the day before. Hernandez explained that, on February 2, 2004, he had lured A.M. into the same second-floor bathroom, but the thirteen-year-old balked at entering the stall. Regarding his plan, Hernandez said:

DETECTIVE: And what were your intentions yesterday?
HERNANDEZ: My intentions yesterday were to kill [A.M.] the same way I killed [J.G.] today, except for the fact that I was going to stab him in the back, and stab here. And that would have been it.

According to Dr. Steven Hoge, the defense’s psychiatrist, Hernandez decided to kill J.G. and A.M. because they knew he intended to kill others when he turned eighteen.

Shortly after confessing, Hernandez was indicted for first-degree murder and attempted first-degree murder. The defense raised the issue of whether Hernandez was competent to stand trial. At the first competency hearing, held in November 2004, the court-appointed experts, Dr. Vanessa Archer, a psychologist, and Dr. Jon Shaw, a psychiatrist, testified that Hernandez did not suffer from paranoid schizophrenia or any mental illness that impacted his competency. After reviewing the relevant factors, they concluded he was competent to stand trial. The defense’s expert, Dr. Barry Rosenfeld, a psychologist, testified that Hernandez’s symptoms strongly indicated that he was suffering from paranoid schizophrenia, which impaired his ability to meet some of the competency criteria. But Dr. Rosenfeld did not render an ultimate opinion on Hernandez’s competency. After hearing the testimony, the trial court entered an order finding that, although Hernandez suffered from mental illness, he was competent to stand trial.

As trial approached, the defense moved for an updated review of Hernandez’s competency. The court appointed Dr. Ralph Richardson, a psychologist, and again appointed Dr. Archer to conduct updated evaluations. In September 2008, a second competency hearing was held. At the hearing, the court took judicial notice of Dr. Rosenfeld’s prior testimony. It also heard from Dr. Richardson, who acknowledged that Hernandez had an obsessive compulsive disorder, but who testified that Hernandez was competent to stand trial. Dr. Archer testified that her second evaluation indicated that Hernandez suffered from a severe obsessive compulsive disorder, chronic depression, and a dysthymic disorder. Nevertheless, Hernandez remained, in her opinion, competent to stand trial. At the conclusion of the hearing, based upon the testimony of the experts and his own observations, the trial court deemed Hernandez competent.

Although the indictment was originally filed in the Eleventh Judicial Circuit in Miami-Dade County, the case was transferred to the Ninth Judicial Circuit in Orange County, due to pretrial publicity. At the trial, after the conclusion of the State’s case-in-chief, defense counsel moved for a judgment of acquittal on the attempted first-degree murder charge, arguing that there was no overt act done toward the commission of the crime. The motion was denied. Hernandez then presented evidence which focused on his defense that he was legally insane at the time of the crimes. The jury rejected Hernandez’s insanity defense and returned a guilty verdict on both counts. Venue was then transferred back to the Eleventh Judicial Circuit, where Hernandez was sentenced to life without the possibility of parole for first-degree murder and to a consecutive term of thirty years for attempted first-degree murder. This appeal followed.

DISCUSSION

Life Without Parole Sentence

Hernandez first argues that a sentence of life imprisonment without the possibility of parole for juveniles is unconstitutional, if it is imposed under a statutory scheme that makes the sentence mandatory. Under Florida’s sentencing statutes, Hernandez’s sentence of life without the possibility of parole was mandatory. The governing sentencing statute provides:

A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

775.082(1), Fla. Stat. (2004) (emphasis added). In Florida, first-degree murder is a capital felony. As indicated above, the sentence for a capital felony is either death or life without parole. Because Hernandez was a juvenile at the time he committed the murder, he could not be sentenced to death. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding that the death penalty for juveniles constitutes a cruel or unusual punishment that violates the Eighth Amendment to the United States Constitution). The only remaining sentence was life without parole.

While this case was pending on appeal, the United States Supreme Court in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), agreed with Hernandez’s argument that mandatory life sentences for juveniles are unconstitutional. Miller is the latest in a line of recent Supreme Court eases that address the constitutional limits on punishing juveniles. The Court first held that the Eighth Amendment prohibits the death penalty for juveniles. Roper, 543 U.S. at 568, 125 S.Ct. 1183. It next held that a juvenile can be sentenced to life without parole only when the juvenile is convicted of murder. Graham v. Florida, 560 U.S. 48, -, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010).

In Miller, the Court held that the Eighth Amendment’s prohibition against cruel and unusual punishments forbids the sentence of life without parole for a juvenile convicted of murder, if the imposition of the sentence is mandatory. 132 S.Ct. at 2469. Although Miller does not bar a trial court from imposing a sentence of life without the possibility of parole, it requires the sentencer “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. The Court explained:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Id. at 2468 (citations omitted).

The Court also noted that appropriate occasions for sentencing juveniles to life without the possibility of parole will be “uncommon” given the great difficulty in “distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (internal quotation omitted).

Because this case is on direct appeal, we are compelled to apply Miller in this case. State v. Fleming, 61 So.3d 399, 403 (Fla.2011) (“When the Supreme Court announces ‘a new rule for the conduct of criminal prosecutions,’ the rule must be applied to ‘all cases, state or federal, pending on direct review or not yet final.’ ”) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)); but cf. Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012) (holding that Miller does not apply retroactively in collateral review cases).

Under Miller, Hernandez’s sentence of life without parole was unconstitutional because it was mandatory: the trial court did not have the opportunity to consider mitigating circumstances, such as age and age-related characteristics, under the sentencing statute. 132 S.Ct. at 2475. On remand, the trial court must take an individualized approach to sentencing Hernandez if the State again seeks imposition of a life sentence without parole. Id. at 2469; Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012).

Unfortunately, Miller provides little guidance on how to proceed with resen-tencing juveniles convicted under mandatory sentencing schemes. Under Miller, while a sentence of life without parole remains constitutional in homicide cases, the sentencing court must be free to impose a lesser sentence when the defendant’s youth or the circumstances of the crime so indicate. Florida Statutes, however, do not currently provide for lesser sentences in first-degree murder cases. Miller has thus opened a breach in Florida’s sentencing statutes.

Both the State and Hernandez have offered solutions to fill this gap in Florida’s statutory sentencing scheme. The State, relying on B.H. v. State, 645 So.2d 987 (Fla.1994), and Waldrup v. Dugger, 562 So.2d 687 (Fla.1990), advocates for reviving a previous version of section 775.082(1), which mandated life with the possibility of parole after twenty-five years. At least one district court of appeal judge has embraced this approach. Partlow v. State, — So.3d -(Fla. 1st DCA 2013) (Makar, J., concurring, in part, and dissenting, in part) (supporting statutory revival). Another district court of appeal judge has suggested that a sentencing scheme that would allow sentences for a term of years up to life without possibility of parole can be implied. Washington, 103 So.3d at 920-22 (Wolf, J., concurring). Hernandez, on the other hand, requests that he be resentenced under the second-degree murder sentencing scheme.

Without reaching these issues, we adopt the measured approach of the majority in Washington:

Under Miller, a sentence of life without the possibility of parole remains a constitutionally permissible sentencing option. A discourse by this Court on other sentencing options is premature.... The better course calls for this Court to exercise restraint and for the parties to make their case before the trial court, where testimony may be taken, evidence presented, and argument made on all material issues to include the potential range of sentencing options.

Id. at 920.

Miller did not categorically ban life sentences without parole for juvenile homicide offenders, or foreclose a trial court from considering aggravating factors in its sentencing determination. Instead, it “mandate[d] only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing [life without parole].” Miller, 132 S.Ct. at 2471. “[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at 2475. We, accordingly, vacate Hernandez’s life sentence and remand for re-sentencing.

Attempted First-Degree Murder Conviction

In the second issue raised on appeal, Hernandez contends that the trial court erred in denying his motion for judgment of acquittal on the attempted first-degree murder charge because the State failed to establish that he committed an overt act toward the commission of the murder.

In Florida, two elements comprise an attempt to commit a crime: (1) a specific intent to commit the crime, and (2) an overt act toward its commission. Williams v. State, 967 So.2d 735, 755 (Fla.2007); State v. Ortiz, 766 So.2d 1137, 1143 (Fla. 3d DCA 2000). An overt act, for the purpose of establishing criminal attempt, is an act that must go beyond mere preparation. Wiggins v. State, 816 So.2d 745, 747 (Fla. 4th DCA 2002); Webber v. State, 718 So.2d 258, 259 (Fla. 5th DCA 1998); State v. Coker, 452 So.2d 1135, 1136 (Fla. 2d DCA 1984). But drawing the distinction between a preparatory act and an overt act is often difficult, and depends on the facts of each case. Bist v. State, 35 So.3d 936, 941 (Fla. 5th DCA 2010); Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999).

In Coker, the court explained the distinction:

Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are completed. The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attemptor’s will.

452 So.2d at 1136 (citations omitted); see also Hudson, 745 So.2d at 1000. The overt act, however, “does not have to be the ultimate or last possible act toward consummation of the crime.” Wiggins, 816 So.2d at 747 (citing Coker, 452 So.2d at 1137).

We are reviewing the denial of a motion for acquittal. The purpose of the motion is to test the legal sufficiency of the evidence presented by the State. Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). “In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’ ” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). “If, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Therefore, in reviewing the denial of a motion for acquittal in this case, this Court must determine whether the record contains evidence that would allow a jury to fairly and reasonably infer beyond a reasonable doubt that Hernandez had gone beyond mere preparation to kill A.M. and had actually made a direct movement towards the commission of the murder.

On the day before the murder of J.G., Hernandez convinced A.M. to follow him into the same upstairs bathroom where he later killed J.G. Once inside, Hernandez entered a handicapped stall, had on a jacket, placed a hat on his head, put on gloves, and repeatedly insisted that A.M. join him in the stall. All of these actions Hernandez himself identified as the steps he planned to take in order to accomplish the murders of A.M. and J.G. And these actions were the same steps that Hernandez took the next day when he murdered J.G. These steps went beyond mere planning and preparation. The chain of events had progressed to the point where Hernandez was only a few seconds and feet away from committing the crime.

Based on these facts and Hernandez’s statement that his intention was to kill A.M. that morning, a jury could infer beyond a reasonable doubt that Hernandez would have murdered A.M. on February 2, 2004, but for A.M.’s refusal to enter the stall. Sufficient evidence, therefore, supports Hernandez’s conviction of attempted first-degree murder.

Constitutional Challenge to Charging Hernandez as an Adult

In the third issue raised on appeal, Hernandez urges us to hold that section 985.557(1), Florida Statutes (2004), violates due process because it grants prosecutors the discretion to direct file indictments of juveniles in criminal, rather than juvenile, court. Although the direct file statute has been amended over the years, State v. Cain, 381 So.2d 1361 (Fla.1980), remains dispositive and mandates rejection of Hernandez’s claim, as he had no absolute right to be processed and charged as a juvenile. Reyna v. State, 866 So.2d 214, 215 (Fla. 3d DCA 2004); Brazill v. State, 845 So.2d 282, 287-89 (Fla. 4th DCA 2003); Grier v. State, 605 So.2d 503, 504 (Fla. 2d DCA 1992); Jones v. State, 443 So.2d 434, 435 (Fla. 5th DCA 1984).

Competency to Stand Trial

Finally, Hernandez maintains that he was incompetent to stand trial. “A trial court’s decision regarding competency will stand absent a showing of abuse of discretion.” McCray v. State, 71 So.3d 848, 862 (Fla.2011). The testimony of the State’s experts constituted competent, substantial evidence that directly supported the trial court’s determination that Hernandez was competent to stand trial. Even if we conclude that the defense expert’s testimony conflicted with the testimony of the State’s experts, conflicting evidence alone is insufficient to overturn a trial court’s resolution of a factual dispute that is supported by sufficient evidence. Id. (“[E]ven where conflicting evidence on an issue exists, this Court will not disturb the trial courts resolution of that factual dispute so long as it is supported by competent, substantial evidence.”); see also Hernandez-Alberto v. State, 889 So.2d 721, 727 (Fla.2004). We, therefore, uphold the trial court’s competency determination.

CONCLUSION

Hernandez’s sentence of life without the possibility of parole for first-degree murder is unconstitutional because it was man-datorily imposed. Accordingly, we vacate his sentence for first-degree murder and remand for resentencing on the first-degree murder conviction in accordance with Miller. In all other respects, we affirm.

Affirmed in part, vacated in part, and remanded for resentencing.

      . Florida's prohibition against cruel and unusual punishments must be interpreted in conformity with decisions of the United States Supreme Court interpreting the Eighth Amendment's prohibition against cruel and unusual punishments. Art. I, § 17, Fla. Const.

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

      . The test for competency to stand trial focuses on the defendant's slate of mind around the time of trial. It concerns whether the defendant comprehends the trial proceedings and is able to consult counsel and assist in his defense. Fla. R.Crim. P. 3.211. The insanity defense focuses on the defendant’s state of mind at the time he committed the offense. It concerns whether the defendant had a mental infirmity that prevented him from understanding that his actions were morally wrong. § 775.027(1), Fla. Stat. (2004).


source: Caselaw Access Project

author: MAY, C.J.

license: Public Domain

text:
    JANIE DOE 1, a minor child, by and through Silvania MIRANDA, her Parent and Natural Guardian, and Silvania Miranda, Individually, Janie Doe 2, a minor child, by and through Alexander Guimaraes, her Parent and Natural Guardian, and Alexander Guimaraes, Individually, Janie Doe 3, a minor child, by and through Adalberto Andino, her Parent and Natural Guardian, and Adalberto Andino, Individually, Janie Doe 4, a minor child, by and through Gabriela Olsak, her Parent and Natural Guardian, and Gabriela Olsak, Individually, Appellants, v. Blake SINROD and Palm Beach County School Board, a/k/a School District of Palm Beach County, Appellees.
    No. 4D11-3004.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Rehearing Denied Aug. 9, 2013.

      Marc A. Wites and Jonathan S. Burns of Wites & Kapetan, P.A., Lighthouse Point, for appellants.
    Shannon P. McKenna of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appel-lee, Palm Beach County School Board.
   MAY, C.J.

Allegations of sexual abuse by a teacher lie at the heart of this dispute. The plaintiffs — a group of four children and their parents — appeal an order dismissing a newly-added claim for violation of Title IX as to the children and a claim for negligent infliction of emotional distress as to the parents. The plaintiffs argue that the new Title IX claims relate back to the filing of the original Complaint. We agree and reverse the dismissal of the children’s Title IX claims. We affirm in all other respects.

The plaintiffs filed a Complaint against the children’s teacher and the Palm Beach County School Board in July 2006. The Complaint alleged that the teacher sexually molested the children. The children alleged negligence against the school board. The parents alleged that they suffered emotional distress as a result.

Nearly five years later, in 2011, the plaintiffs filed their Third Amended Complaint, alleging specific causes of action for negligent supervision, negligent retention, intentional infliction of emotional distress, negligent infliction of emotional distress, and added a claim for violation of Title IX. The plaintiffs sought compensatory damages, attorneys’ fees, and costs pursuant to 42 U.S.C. § 1988.

The school board moved to dismiss the parents’ claims for negligent infliction of emotional distress and the children’s Title IX claims. The school board argued that the parents’ claims failed to state a cause of action because they failed to demonstrate a loss of filial consortium and were barred by the impact rule. The school board argued that the statute of limitations barred the children’s new Title IX claims because they did not relate back to the filing of the original Complaint. It also argued that section 95.11(7), Florida Statutes (2006), does not toll the statute of limitations and that the plaintiffs failed to file a Notice of Claim, pursuant to section 768.28(6)(a), Florida Statutes (2006), within three years of the teacher’s alleged wrongful conduct.

The trial court dismissed the parents’ claims for negligent infliction of emotional distress based on the impact rule. The trial court dismissed the children’s Title IX claims, concluding that: (1) they did not relate back to the filing of the original Complaint; (2) section 95.11(7) did not toll the Title IX claims; and (3) the Title IX claims should be dismissed because they were subject to the pre-suit notice requirements of section 768.28(6)(a), and the plaintiffs did not file a Notice of Claim within three years of the alleged wrongful conduct. From this final partial judgment of dismissal, the plaintiffs now appeal.

The Parents’ Negligent Inñiction of Emotional Distress Claims

The parents argue the trial court erred in dismissing -their claims for negligent infliction of emotional distress because the facts they alleged should fit within an exception to the impact rule. The school board responds that there is currently no exception that would permit recovery under the facts alleged. We agree with the school board.

We have de novo review of dismissal orders for failure to state a cause of action. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002).

In Florida, the prerequisites for recovery for negligent infliction of emotional distress differ depending on whether the plaintiff has or has not suffered a physical impact from an external force. If the plaintiff has suffered an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself. If, however, the plaintiff has not suffered an impact, the complained-of mental distress must be “manifested by physical injury,” the plaintiff must be “involved” in the incident by seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff must suffer the complained-of mental distress and accompanying physical impairment “within a short time” of the incident.

Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850 (Fla.2007) (quoting Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985)). Our supreme court has created very narrow exceptions to this rule. Rowell v. Holt, 850 So.2d 474, 478 (Fla.2003).

Here, the parents do not, and cannot, allege that they suffered an impact from an external force. Nor do they allege that they saw the sexual abuse, heard the sexual abuse, or arrived on the scene as it was occurring. The parents’ negligent infliction of emotional distress claims do not survive the impact rule, nor can we create an exception to the impact rule which would permit recovery. We therefore affirm the trial court’s dismissal of these claims.

The Children’s Title IX Claims

The children argue that the trial court erred in dismissing their Title IX claims because the claims were not time-barred. They first argue the Title IX claims relate back to the filing of the original Complaint. The school board responds that the Title IX claims do not relate back because they state a new cause of action. On this argument, the law supports the children’s position.

We have de novo review of a trial court’s finding that a new claim does not relate back to the original complaint. See Flores v. Riscomp Indus., Inc., 35 So.3d 146, 148 (Fla. 3d DCA 2010).

If a party amends a pleading, “the amendment shall relate back to the date of the original pleading” so long as the “claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fla. R. Civ. P. 1.190(c). “Amendments generally do not relate back if they raise a new cause of action.” Dailey v. Leshin, 792 So.2d 527, 532 (Fla. 4th DCA 2001). However, a new cause of action — and even a new legal theory — can relate back to the original pleading so long as the new claim is not based on different facts, such that the defendant would not have “fair notice of the general factual situation.” Id.

Recently, the Fifth District held that a subsequently-filed battery claim related back to the plaintiffs original negligence claim. See Fabbiano v. Demings, 91 So.3d 893, 896 (Fla. 5th DCA 2012). Because the battery claim “was based upon the same conduct, transaction, or occurrence[ ] as alleged in the original complaint,” it related back to the filing date of the original complaint even though it alleged a different cause of action. Id. at 894. In support of its holding, the Fifth District quoted our opinion in Associated Television & Communications, Inc. v. Dutch Village Mobile Homes of Melbourne, Ltd., 347 So.2d 746 (Fla. 4th DCA 1977):

If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought.

Fabbiano, 91 So.3d at 895 (quoting Associated Television & Commc’ns., Inc., 347 So.2d at 748).

Here, the trial court erred in finding that the children’s Title IX statutory claims did not relate back to the negligence claims alleged in the original pleading. Both claims arose from the same conduct and resulted in the same injury. This renders the children’s two remaining arguments moot. We therefore reverse the dismissal of the children’s Title IX claims.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR and CONNER, JJ., concur.

      . The parents set forth their claims for emotional distress within a negligence framework. We refer to them as claims for negligent infliction of emotional distress for a clearer understanding of the issue.

      . 20 U.S.C. § 1681. “Title IX prohibits sex discrimination by recipients of federal education funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).

      . This case presents something of an anomaly. If the new Title IX claims relate back to the original Complaint, they must arise out of the same conduct, transaction, or occurrence. As such, they would be intertwined with the remaining negligence claims and present us with a piecemeal appeal of intertwined claims. See Mendez v. W. Flagler Family Ass'n., 315 So.2d 7, 8 (Fla. 3d DCA 1975). However, if the Title IX claims are truly independent, then their dismissal is appealable. Id. Because that is the precise issue presented, we cannot rule on the Mendez issue before we ultimately dispose of the appeal. Although our holding that the Title IX claims should relate back to the original Complaint will theoretically turn what was an appealable order into a piecemeal appeal over which we lack jurisdiction, we may properly review this issue now in light of the sensitive nature of the case and in the interest of allowing the case to proceed as expeditiously as possible. See Fisher v. Tanglewood at Suntree Country Club Condo. Ass'n., 669 So.2d 1050, 1051 (Fla. 5th DCA 1995) (permitting a piecemeal appeal where there are countervailing policy concerns).

      . Furthermore, claims for federal law violations can relate back to pleadings which previously alleged only violations of the common law. See Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 410 (7th Cir.1989) (finding that Title VII claims related back to the original complaint filed in state court and alleging state law violations).

      . Although unnecessary to our decision, we address the plaintiffs' two remaining arguments. We reject the plaintiffs’ argument that section 95.11(7) tolls the statute of limitations under these facts. See Doe v. Sinrod, 90 So.3d 852, 856 (Fla. 4th DCA 2012) (finding that section 95.11(7) is inapplicable in a nearly identical context). Further, because we find the Title IX claims relate back to the original Complaint, the pre-suit notice gave the school board sufficient notice of the newly-alleged claim. See Magee v. City of Jacksonville, 87 So.2d 589, 591-92 (Fla.1956) (explaining that pre-suit notice is designed to make the government entity aware of the claims alleged); see also City of Miami v. Cisneros, 662 So.2d 1272, 1274 (Fla. 3d DCA 1995) (using the relation back analysis to determine if the plaintiff complied with the pre-suit notice requirements).


author: GROSS, J.

text:
    STERLING FINANCIAL & MANAGEMENT, INC., Appellant, v. Mariusz GITENIS, Dorothy Kowal, Moss Development Corporation, Incog, Inc., and European Interior And Exterior, Inc., Appellees.
    No. 4D11-2583.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Rehearing Denied July 26, 2013.

      George P. Roberts, Jr., Benjamin L. Be-dard, and Danna P. Clement of Roberts Reynolds Bedard & Tuzzio, P.A., West Palm Beach, for appellant.
    Timothy H. Crutchfield of Mintz Trupp-man, P.A., North Miami, for appellees Mariusz Gitenis and Dorothy Kowal.
   GROSS, J.

In this personal injury action, the plaintiff below, Mariusz Gitenis, was injured after he separated a two-part extension ladder owned by his employer. Using the part of the ladder that did not have traction feet, he gained access to a roof. On the way down the ladder, Gitenis fell after the ladder, which was neither secured to the building nor being held by another person, slipped. Although the plaintiff brought suit against the owner of a condominium conversion project, the general contractor, the independent contractor that hired him, and the property manager, this ease concerns just the judgment he obtained against the property manager, Sterling Financial & Management, Inc. The plaintiff recovered from Sterling, the only defendant participating in the trial below, on the theory that the company directed and controlled the manner in which the plaintiff performed his work. We reverse for the entry of a directed verdict in favor of Sterling because the evidence at trial demonstrated that Sterling did not participate in the details of the work to the extent necessary to make it liable to an employee of an independent contractor for the negligence of the contractor.

RAK Delray Limited Partnership, based in New York, owned Verano in Delray Beach, a project under construction renovations to convert its apartments into condominiums. To effectuate the project, the owner entered into a construction contract with Moss Development Co. to perform and supervise the project. Moss Development then hired INCOG, Inc. to be the construction supervisor and to hire the subcontractors. The plaintiff worked as an independent contractor of European Interiors & Exteriors, Inc., which was a subcontractor hired by INCOG to work on the interiors of units. European received its instructions on the Verano job from Moss Development or INCOG; both dealt with Piotr Zawadski, an owner of European, who communicated with the plaintiff in Polish because the plaintiff did not speak English.

Through the condominium association that it controlled, the owner entered into a garden variety condominium management agreement with Sterling “to manage and operate the Community’ on the owner’s behalf pursuant to all applicable “laws, regulations and requirements” and the association’s articles of incorporations, bylaws, and declaration of condominium. Article 2.05 of the agreement generally required Sterling to maintain the property, stating as follows:

Subject to the direction and at the expense of the Association, and in accordance with the Budget, [Sterling] shall during the term of this Agreement cause the Association Property to be maintained according to appropriate standards of maintenance consistent with the character of the Community, the Florida Statutes and the Association Documents and will make or install, cause to be made and installed, or do or cause to be done at Association’s expense all necessary or desirable repairs, interior and exterior cleaning, painting and decorating, plumbing, alteration, replacement, improvement and other normal maintenance and repair work on and to the Property in accordance with the standards and conditions reasonably specified by Association from time to time. Agent will not make unbudgeted expenditures for such purposes without the prior approval of Association, unless emergency repairs are necessary for the preservation of the Property or for the safety of the occupants, or are required to avoid the suspension of any necessaxy service to the property.

On behalf of the owner, Sterling inspected the renovation work for proper completion. Nothing in the contract obligated Sterling to supervise the work of Moss Development, or any subcontractor, or to take responsibility for the safety of workers on the project. Rather, the contract authorized Sterling to act on behalf of the association to “expend any amount or incur contractual obligation in any amount reasonably required to deal with emergency conditions which may involve a danger of life or property or may threaten the safety of the Community or the owners or occupants.”

On October 24, 2005, Hurricane Wilma hit South Florida, resulting in substantial damage to the Verano project’s landscaping and roofing systems. For the cleanup, Moss Development, INCOG, and the subcontractors worked on an oral contract with the owner to clean up the property on a time and materials basis plus 10%. A Sterling employee instructed Moss Development to have European’s people assess the damage to the roofs and take photos; Moss Development and INCOG told Za-wadski to have European’s people stop working in the apartments to deal with roof problems. Zawadski had supervised roofing work since 1995 and he and the plaintiff had the necessary experience to work on the roofs. Zawadski then instructed the plaintiff and the other workers to clear debris from the roads and remove the mess from the roofs.

On the day of the accident, the plaintiff removed European’s extension ladder from his truck. The plaintiff and another worker determined they needed only eight feet of ladder to access the roof, so they divided the extension ladder into two parts; the plaintiff testified that his boss, Zawadski, ordered him to take the extension ladder apart and that he would have been fired if he refused. Each half of the ladder was used to access the roof. A third worker warned the plaintiff not to put the part of the ladder without rubber feet on cement, so it was placed on asphalt. Just before the accident, as the plaintiff was preparing to descend from a roof, someone yelled for him to wait because no one was holding the ladder. The plaintiff ignored the warning and the ladder slipped, causing the plaintiff to fall to the ground.

No one from Sterling spoke Polish, so no one from Sterling communicated directly with the plaintiff. Likewise, no one from Sterling told the plaintiff or European how to gain access to the roofs. Rather, Sterling’s role, as the property manager, was to assist, facilitate, and coordinate the work done on the property, which it did by identifying the types of jobs to be completed for the post-hurricane clean-up without telling the contractors how to do them or hiring its own subcontractors. Thus, as with any construction project, it was the obligation of the general contractor, not Sterling, to hire subcontractors, oversee the work performed by subcontractors, and maintain the safety of the project.

To pin legal responsibility for the accident on Sterling, the plaintiff relied on skillfully and carefully phrased general questions about Sterling’s responsibility for safety at Verano. For example, one Sterling witness, (1) agreed that “if there was something hazardous or amiss on the property,” it was her “responsibility to report” it; (2) agreed that one duty of a property manager was “to make sure that everything on the property was safe”; (3) agreed at her pretrial deposition that a property manager should “make sure that whoever is working on the property is doing so in a safe manner;” (4) indicated that if she saw something on a job that was unsafe, she would have spoken to Moss Construction or the particular contractor in charge; and (5) answered “Yes” at her deposition to the question of whether it would “be fair to say that ... the licensed property manager for Verano at the time of this accident, would be involved in supervising the means, methods, and procedures for the contractors on the job site.”

The general rule is that “ ‘one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work.’ ” Morales v. Weil, 44 So.3d 178, 176 (Fla. 4th DCA 2010) (quoting Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 595 (Fla. 4th DCA 2008)); see Restatement (Second) of Torts § 414 (1965). An exception to this general rule of non-liability, which the plaintiff seeks to apply in this case, occurs where the employer of an independent contractor actively participates in or interferes with the job “ ‘to the extent that he directly influences the manner in which the work is performed.’ ” Morales, 44 So.3d at 176 (quoting Johnson, 985 So.2d at 595-96).

The rationale for the general rule is that since the employer of an independent contractor “has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise,” and it is the contractor that is the “proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.” Restatement (Second) of Torts § 409, cmt. b (1965); see Armenteros v. Baptist Hosp. of Miami, Inc., 714 So.2d 518, 522 (Fla. 3d DCA 1998) (recognizing that the person “who exercised control of the work” was in the best “position to prevent the harm that occurred”). The purpose of the exception is not to spread a cost among many actors, but to allocate risk to the entity best situated to prevent the loss. A meddlesome employer “forfeits his immunity from liability under the general rule by so insinuating himself into his independent contractor’s performance of the contract that the performance becomes his own.” Indian River Foods, Inc. v. Braswell, 660 So.2d 1093, 1097 (Fla. 4th DCA 1995).

To prove the requisite control over an independent contractor in the absence of a written contract, the plaintiff must show that the employer “ ‘actually exercised control over the manner in which the independent contractor’s work was performed.’ ” Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 252 (5th Cir. 2005) (quoting Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002)). Merely exercising “ ‘a general right to recommend a safe manner for the independent contractor’s employees to perform their work’ is insufficient to subject a party to liability.” Id. (quoting Dow Chem. Co., 89 S.W.3d at 606). To impose liability in a case like this one, a plaintiff must establish actual facts demonstrating the exercise of control before the accident causing injury.

The amount of control needed to pierce the general rule’s “shield of liability must be extensive.” Morales, 44 So.3d at 176. Comment c to Section 414 of the Restatement (Second) of Torts establishes the parameters of the “retention of control” concept, stating:

It is not enough that [the employer of an independent contractor] has merely a general right to order the work stopped or resumed, to inspect the progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his oum way.

(Emphasis added); see also Van Ness v. Indep. Constr. Co., 392 So.2d 1017, 1019 (Fla. 5th DCA 1981) (citing comment c for the same proposition). The key inquiry is whether the independent contractor is controlled “ ‘as to his methods of work, or as to operative detail.’ ” Morales, 44 So.3d at 176 (quoting Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 448 (Fla. 5th DCA 1999)). As the third district has explained,

an owner has a right to inspect the work of an independent contractor to determine that the work conforms to the contract and to reject unsatisfactory work and demand that it be made satisfactory. Moreover, this reservation is not a usurpation of control and does not change an owner from a passive non-participant to an active participant in the construction. To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way.

City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987) (citations omitted); see also Van Ness, 392 So.2d at 1019.

This case is similar to those cases that have found an inadequate retention of control to impose liability on the employer of an independent contractor for the contractor’s negligence. In Cecile Resort, Ltd., the defendant hired an independent contractor to paint the defendant’s flag pole. 729 So.2d at 447. While the plaintiff/independent contractor “climbed up the pole using a steel cable attached to the pole,” the cable broke, causing the plaintiff to fall to the ground. Id. On appeal, the third district reversed the plaintiffs verdict, holding in part that there was no evidence that the defendant “exercised control” over the plaintiffs work, even though the defendant “insisted that the work be completed the next day” and the plaintiff was injured climbing the defendant’s flag pole. Id. at 448.

Similarly, in St. Lucie Harvesting & Caretaking Corp. v. Cervantes, 639 So.2d 37, 38 (Fla. 4th DCA 1994), the defendants were orange grove owners, and the plaintiff was a fruit picker employed by an independent contractor “to remove the fruit from the trees and get it to the edge of the orange grove.” To perform this job, the independent contractor used a special dump truck called a “goat,” which was designed to be used in citrus groves but not on highways. Id. The plaintiff was injured while driving a goat on the highway from one grove to another after “he turned a corner too fast and caused the goat to roll over.” Id. We reversed the plaintiffs verdict after a jury trial, holding that there was no evidence that the grove owner actively participated in the work of the independent contractor to the extent that he directly influenced the manner in which the work was performed. Id. at 39-40. In so ruling, we observed that the

plaintiff was not injured because of any condition of the defendants’ premises or equipment. Nor were defendants exercising any control over the manner in which this crew was performing its work. Defendants’ foreman told the independent contractor’s foreman when the crew had picked enough fruit at one grove, and where the crew should begin picking thereafter, but exercised no control over how the crew got to the next grove, what equipment was used, what route the crew took, how fast the crew went, or who drove the goat. The goat, which was allegedly dangerous, was owned by the independent contractor, not the defendants. The plaintiff, who was not experienced in driving the goat on the highway, was told to drive the goat by the foreman of the independent contractor, not the defendants.

Id. at 40.

Finally, in Strickland v. Timco Aviation Services, Inc., 66 So.3d 1002, 1005 (Fla. 1st DCA 2011), the owner of an airplane hangar hired an independent contractor to pressure wash the roof of the hangar and to perform repair and maintenance on the roof skylights. The plaintiff, an employee of the independent contractor, fell through a skylight while pressure washing the roof. Id. The plaintiff sued the owner and the trial court granted summary judgment in favor of the owner. Id. at 1006. In affirming, the first district held that there was no evidence that the owner had actively controlled the manner in which the independent contractor performed the work, even though it had provided the contractor with a safety harness and a man lift to do the job. Id. The court observed that “mere inspection by a property owner of an independent contractor’s work does not amount to control of the work or active participation by the property owner.” Id. The court noted that the owner’s providing the contractor with a safety harness did not amount to participation in or direct control over the work performed by the independent contractor and its employees. Id. at 1006-07; see also Morales, 44 So.3d at 178 (where court observed that owners “did not tell the workers how to get on the roof, where to stand on the roof, what tools to use, or what safety equipment to either use or not use”); Indian River Foods, 660 So.2d at 1097-98; Armenteros, 714 So.2d at 522-23.

By contrast, in those cases imposing liability, the independent contractor’s employer occupied more than a mere supervisory role, typically by assuming extensive control over safety procedures or actively participating in the operation itself. In Cadillac Fairview, for example, the plaintiff, the employee of an independent contractor, suffered severe injuries at a construction site after falling through an opening that was unprotected by safety guard rails. 468 So.2d at 419. Following a trial, the jury awarded the plaintiff $750,000 after finding the defendant, who was the project’s owner and general contractor, 85% negligent for the injury. Id. at 420. In affirming the jury award, the third district found the defendant exercised sufficient control over supervision to warrant liability, since it “had a staff of field supervisors who oversaw, directed and coordinated the construction project”; “[t]he superin-tendant made daily progress reports to [the defendant] and sometimes became physically involved in the construction”; and the defendant had “obtained the necessary permits for the construction.” Id. at 421. From such measures, the court found the defendant, through its active participation in effectuating the project’s safety procedures, to have taken steps beyond its right of general inspection, thus availing itself of its immunity by accepting the “duty to keep its premises safe for all the workmen on the job.” Id.; see also, e.g., Aguirre v. Turner Constr. Co., 501 F.3d 825, 827, 830-31 (7th Cir.2007) (finding requisite participation to impose liability where the general contractor “promulgated an extensive 125-page safety program that all subcontractors were required to follow”; hired personnel to oversee development; “held monthly safety meetings”; had “personnel walk[] the work site daily to monitor compliance with these safety requirements”; and created a safety program, which included 23 rules pertaining to the erection of the scaffolding where the plaintiff was injured); Stephens v. Crown Equip. Corp., 22 F.3d 832, 835 (8th Cir.1994) (finding a warehouse owner to have availed itself of its immunity since the owner (1) provided the independent contractor’s employees with “pick cards,” detailing “all of the information needed for [the] employees to complete their daily assignments,” and (2) “owned and assumed maintenance responsibilities of all of the equipment in the warehouse”).

More analogous to the case at hand, in Sanna v. National Sponge Co., 209 NJ.Super. 60, 506 A.2d 1258, 1259 (1986), the defendant hired an independent contractor, JSC, to insulate its factory. As part of this duty, a JSC representative instructed the plaintiff, a JSC employee, to fix the factory’s faulty sprinkler system. Id-. To reach the ceiling, the plaintiff and a co-worker arranged makeshift scaffolding using a dismantled ladder, supplied by JSC, and a forklift and planks, supplied by the defendant. Id. Before the plaintiff finished the job, however, one of the defendant’s employees borrowed the forklift to use it at another location; the absence of the forklift, along with grease found on the ladder, rendered the scaffolding “shaky,” eventually causing it to collapse and injure the plaintiff. Id. On appeal, the New Jersey Superior Court found the defendant to have exhibited sufficient “control over and participation at the plaintiffs workplace” to warrant liability by:

first providing and then removing the forklift from the jerry-rigged scaffolding, not providing conventional scaffolding in the first place once it voluntarily had participated in the undertaking to help furnish scaffolding materials, and its general maintenance of the work area in the aspect of cleanliness.

Id. at 1261. In reaching this conclusion, the court noted that “[i]f the defendant had done nothing and plaintiffs employer JSC had assumed sole control over the ladders and scaffolding used to gain access to the work area, plaintiff would have no case against defendant on this theory.” Id. at 1262. However, once the defendant “undertook to supply parts of the scaffolding, especially in view of the past relations of defendant and JSC where defendant frequently provided equipment to its contractor, ... a jury could find that defendant exercised the requisite control over the jobsite to create a liability exposure.” Id. at 1263; see also, e.g., Titan Steel Corp. v. Walton, 365 F.2d 542, 546-47 (10th Cir. 1966) (finding a general contractor liable on the theory of “active participation” where the independent contractor requested the use of the defendant’s crane; the defendant’s superintendent discussed and approved the crane’s specific usage; and the defendant’s chief engineer made “daily inspections” of the project’s progression); Hirschbach v. Cincinnati Gas & Elec. Co., 6 Ohio St.3d 206, 452 N.E.2d 326, 329 (1983) (finding active participation where the defendant’s inspector specifically denied the request of the independent contractor’s employees to re-position a winch tractor, resulting in the plaintiffs injury).

In this case, there is even less of a basis than existed in Cecile Resort, Cervantes, Strickland, and Morales to find Sterling to have exercised control over the way European’s hiree, the plaintiff, accessed the roof. European owned the offending ladder. European told the plaintiff to split it apart to use it to get on the roof. The plaintiff and a coworker separated the ladder. None of the Sterling representatives on site ever communicated with the plaintiff, who spoke only Polish. None of the Sterling representatives told European workers “how to get on the roof, where to stand on the roof, what tools to use, or what safety equipment to either use or not use” to perform the jobs that they were assigned by European. Morales, 44 So.3d at 178. Sterling representatives did no more than identify the work that the independent contractor was to complete.

Imposing liability upon Sterling would do violence to the rationale behind the exception to the general rule that one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work; European was in total control of the ladder and how it was used, so it therefore had the “responsibility of preventing the risk, and bearing and distributing it.” Restatement (Second) of Torts § 409, Comment b (1965). The absence of actual facts showing how Sterling exercised control over the job cannot be overcome by vague, after-the-fact questions about general policy which make reference to legal code words. Careful vocabulary selection during litigation cannot overcome the absence of meddlesome conduct prior to the occurrence of an accident by one who employs an independent contractor. To place liability on Sterling in this case would open the door to liability for every Florida property owner hiring an independent contractor who negligently uses his own tools.

The final judgment is reversed and remanded to the circuit court for entry of a directed verdict in favor of the defendants.

LEVINE, J., and SHAHOOD, GEORGE A., Senior Judge, concur.

NOTE: Levine, J., did not participate in oral argument, but has had the opportunity to review the entire case, briefs, and oral argument proceedings.

      . Section 414 of the Restatement (Second) of Torts states:
      One who entrusts work to an independent contractor, but who retains the control over any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Comment a of section 414 emphasizes that it is when the employer of an independent contractor "retains control over the operative detail of doing any part of the work" that "he is subject to liability for the negligence of the employees” of the independent contractor.


author: CONNER, J.

text:
    PHILIP MORRIS USA INC., R.J. Reynolds Tobacco Company, and Liggett Group LLC, Appellants, v. Sharon PUTNEY, as personal representative of the Estate of Margot Putney, deceased, Appellee.
    Nos. 4D10-3606, 4D10-5244.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Rehearing Denied Aug. 9, 2013.

      Gary L. Sasso of Carlton Fields, Tampa, and Stephen N. Zack and Andrew S. Brenner of Boies, Schiller & Flexner LLP, Miami, for appellant Philip Morris USA Inc.
    John P. Wiederhold of Wiederhold & Moses, P.A., West Palm Beach, and Gregory G. Katsas of Jones Day, Washington, D.C., for appellant R.J. Reynolds Tobacco Co.
    Karen H. Curtis and Craig Salner of Clarke Silverglate, P.A., Miami, and Kelly Anne Luther of Kasowitz, Benson, Torres, Miami, for appellant Liggett Group LLC.

      Lincoln J. Connolly of Rossman, Baum-berger, Reboso, Spier & Connolly, P.A., Miami, for appellee.
   CONNER, J.

This is an Engle progeny case. Philip Morris USA, Inc. and R.J. Reynolds Tobacco Company, together with Liggett Group LLC (collectively “the Tobacco Companies”), appeal the trial court’s entry of an amended final judgment in favor of Sharon Putney, as personal representative of the estate of Margot Putney (“the Plaintiff’). The Tobacco Companies raise four grounds for reversing the final judgment. We affirm, without discussion, the Tobacco Companies’ claim that the trial court abused its discretion in denying a cause challenge to a juror. Regarding the verdict holding the Tobacco Companies liable for conspiracy, we hold the trial court properly denied the post-trial motion for judgment in their favor. We also hold the trial court erred in denying a motion for remittitur of compensatory damages for loss of consortium, as the compensatory damage award was excessive compared to similarly situated cases. Lastly, we hold the trial court erred in entering summary judgment on the Tobacco Companies’ affirmative defense regarding the statute of repose.

Factual Background

The Plaintiff brought suit against the Tobacco Companies for the wrongful death of her mother, Margot Putney. In her second amended complaint, the Plaintiff alleged Margot’s death was the result of small cell carcinoma of the lung and alleged claims of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The Plaintiff sought recovery for the estate and for loss of consortium for herself and her two adult siblings. The Plaintiff also sought punitive damages.

Prior to trial, the trial court granted the Plaintiffs motion for summary judgment and determined that all of the Tobacco Companies’ affirmative defenses, including the statute of repose, were not viable based on the preclusive Engle findings.

The jury returned a verdict finding for the Plaintiff on negligence, strict liability, and conspiracy to commit fraud by concealment. The jury found for the Tobacco Companies on the fraud by concealment claim. The jury found R.J. Reynolds 30% responsible for Margot’s death, Philip Morris 15% responsible, Liggett 20% responsible, and Margot herself 35% responsible. The jury awarded Margot’s estate $86,688.96 for medical and funeral expenses and five million dollars to each of Margot’s three surviving children for loss of consortium. Further, the jury found punitive damages were warranted against R.J. Reynolds and Philip Morris, but not Liggett, on the conspiracy claim and assessed $2.5 million against each of them.

Post-trial, the trial court denied the Tobacco Companies’ motion for a judgment in their favor on the conspiracy count. The trial court also denied their motion for remittitur on the consortium award by the jury.

Conspiracy Award Despite No Liability for Fraudulent Concealment

The Tobacco Companies argue that the trial court erred in denying their post-trial motion for judgment on the conspiracy to commit fraudulent concealment claim because the Plaintiff presented insufficient evidence to support the claim. More particularly, the Tobacco Companies argue that because the jury found for them on the fraudulent concealment claim, the conspiracy to commit fraudulent concealment claim must also fall. Quoting Wright v. Yurko, 446 So.2d 1162, 1165 (Fla. 5th DCA 1984), the Tobacco Companies argue, “[a]n actionable conspiracy requires an actionable underlying tort or wrong.” They further argue, referencing our words from Palm Beach County Health Care District v. Professional Medical Education Inc., 13 So.3d 1090, 1096 (Fla. 4th DCA 2009), that when “the counts regarding the goals of the conspiracy ... fail, so too the conspiracy count must fail.” Additionally, the Tobacco Companies argue the Plaintiff failed to prove Margot relied upon any statements made by any of the co-conspirators.

“The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” Id. (citing Liappas v. Augoustis, 47 So.2d 582, 582 (Fla.1950)). However, in Palm Beach County Health Care District, we made reference to an exception to the general rule, citing Liappas and Snipes v. W. Flagler Kennel Club, Inc., 105 So.2d 164, 165 (Fla.1958). 13 So.3d at 1096 n. 3. In Liappas, our supreme court recognized an independent tort of conspiracy “where mere force of numbers acting in unison or other exceptional circumstances may make a wrong.” Liappas, 47 So.2d at 583 (citing DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 932 (1938)). The court said, “in order to prove an independent tort for conspiracy upon the basis of ‘mere force of numbers acting in unison,’ it must be shown that there was some ‘peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had.’ ” Id. (citation omitted).

Three Engle findings relevant to this case are entitled to res judicata effect: “(ii) ‘that nicotine in cigarettes is addictive;’ ... (iv) ‘that the [Engle] defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;’ (v) ‘that the [Engle] defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment^]’ ” Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 434 (Fla.2013). In combination, those Engle findings preclusively establish the Tobacco Companies engaged in a conspiracy to conceal or omit information regarding the health effects of cigarettes and their addictive nature with the intention that smokers and the public would rely on the information to their detriment. The Engle findings also establish there were other companies besides the Tobacco Companies involved in this case, including other companies producing tobacco products, who were co-conspirators. Id. Given the number of co-conspirators involving the major players in the tobacco industry, the breadth of the conspiracy, and the addictive nature of cigarettes, we conclude that the conspiracy sued upon in this case is an independent tort of conspiracy “where mere force of numbers acting in unison or other exceptional circumstances may make a wrong.” The unified actions of the conspirators, coupled with the addictive nature of cigarettes, resulted in the conspirators exerting a “peculiar power of coercion” over Margot, the decedent.

Regarding the contention that the Plaintiff failed to prove that Margot relied upon any statements made by any of the co-conspirators, the Plaintiff points out that the jury verdict included the following two questions:

3. Please state as to each defendant whether Margot Putney reasonably relied to her detriment on a statement by that defendant which concealed or omitted material information and, if so, whether such reliance was a legal cause of her death.
4. Please state as to each defendant whether Margot Putney reasonably relied to her detriment on a statement made in furtherance of that defendant’s agreement to conceal or omit material information and, if so, whether such reliance was a legal cause of her death.

(emphasis added). The Plaintiff then argues that R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), supports the denial of a judgment in favor of the Tobacco Companies on this issue of proof of reliance. We agree. Similar to the situation in Martin, the record in this case contains sufficient evidence from which the jury could decide that Margot relied (1) on pervasive misleading advertising campaigns for cigarettes in general and (2) on the false controversy created by the tobacco industry during the years she smoked (aimed at creating doubt among smokers that cigarettes were hazardous to health) without the necessity of proving Margot relied on any specific statement from a specific co-conspirator. See also Philip Morris USA, Inc. v. Kayton, 104 So.3d 1145 (Fla. 4th DCA 2012) (despite the plaintiffs inability to recall a specific statement by an Engle conspirator, her testimony that relied on billboard and magazine advertising was sufficient to deny a post-trial motion for directed verdict); Philip Morris USA Inc. v. Cohen, 102 So.3d 11, 14 n. 2 (Fla. 4th DCA 2012); R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012). Thus, we hold the trial court did not err in denying the Tobacco Companies’ motion for judgment in their favor on the conspiracy claim.

Remittitur on Consortium Damages

The Tobacco Companies argue that the trial court abused its discretion in not granting their motion for remittitur on the five million dollar awards to each of the three surviving children for loss of consortium. They contend the awards are excessive compared to those in similar cases and were improperly motivated by passion and prejudice. A trial court’s ruling on a motion for remittitur is reviewed for abuse of discretion. City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008). “Remittitur cannot be granted unless the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice.” Progressive Select Ins. Co. v. Lorenzo, 49 So.3d 272, 278 (Fla. 4th DCA 2010) (citations omitted) (internal quotation marks omitted).

“Under Florida law an award of non-economic damages must bear a reasonable relation to the philosophy and general trend of prior decisions in such cases.” Cohen, 102 So.3d at 14 (quoting Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.2008)). The Plaintiff argues the verdict is not excessive, relying on MaHin, in which the surviving spouse was awarded five million dollars in compensatory damages. Putney also cites to some unpublished jury verdicts, including an eight million dollar compensatory damages verdict awarded to the surviving daughter of a smoker in Webb v. R.J. Reynolds Tobacco Co., Case No. 382009CA001285 (Fla.2010). However, on appeal, the First District found that verdict excessive. Webb, 93 So.3d at 338. The court in Webb explained its reasoning:

Of the thirty-five Engle cases we examined in which the jury awarded compensatory damages, the juries awarded compensatory damages as great as $7 million in only eight cases. Of these eight cases, three were cases in which the plaintiff was the cigarette smoker and the verdicts included economic damage awards. In the others, the decedents died at a much younger age than Mr. Horner did, or were survived by a spouse, by spouse and child, or by two or more children. Our research has failed to uncover a single case in which an adult child received a wrongful death award of this magnitude that was affirmed on appeal (either in Engle progeny cases or other wrongful death actions).

Id. at 337-38.

As noted by the Tobacco Companies, all of Margot’s children were adults at the time of her diagnosis and death, and none of them testified that they lived with her or relied on her for support. Appellate decisions that have upheld large consortium awards in tobacco cases involve much closer relationships between the parties and the decedents during the decedent’s illness. For example, in R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307 (Fla. 1st DCA 2012), the First District upheld a 10.8 million dollar compensatory award to the wife of the deceased smoker. They had been married for 39 years. The wife had to stay in Florida while the husband traveled to Chicago for treatment in order to support the family and then had to personally care for him “as he lay dying during the final six months.” Id. at 312. The husband was diagnosed just as the wife was about to retire, so they could not “realize their life-long dream of traveling together.” Id.

The Plaintiff argues the loss of consortium awards were supported by the evidence presented at trial. One of Margot’s sons testified how he visited his mother as often as he could once he heard of her lung cancer diagnosis, but it was difficult to do because he had his own family. He further testified that his mother never forgot birthdays and she gave all three of her children a goodbye letter on her last birthday. Another of Margot’s sons testified that his mother’s diagnosis had an emotional impact on him, and he would visit or call every day. Not surprisingly, he misses his mother most on special occasions such as holidays and birthdays. The Plaintiff, Margot’s daughter, testified that when she learned of her mother’s diagnosis, she was too emotional to talk about it. She accompanied her mother to chemotherapy treatments, which “killed” her on the inside, because it made her think about losing her mother. The Plaintiff also told the jury how her mother was so ill on the Plaintiffs birthday that her mother could not say “happy birthday,” and she went into a coma soon after, dying nine days later. The Plaintiffs boyfriend testified how upset the Plaintiff had been since her mother’s death and how it devastated her.

While the above testimony may establish that Margot’s adult children are entitled to a consortium award, we agree with the Tobacco Companies’ argument that the loss of consortium awards were excessive compared to those in similar cases and shock the judicial conscience because none of them testified that they lived with her or relied on her for support. The trial court erred in failing to grant remittitur.

Statute of Repose Defense

Similar to arguments raised in Kayton, the Tobacco Companies argue in this case that the trial court erred in striking its statute of repose defense based on the generalized Engle Phase I findings. As we held in Kayton, the statute of repose is an individualized defense that can be adjudicated only based on the particular circumstances of each plaintiff. Kayton, 104 So.3d at 1150. Similar to Kayton, the entry of a partial summary judgment on the statute of repose defense deprived the Tobacco Companies of them right to defend on that issue and have the jury make the determination. Id. at 1151. Thus, we reverse the punitive damages award because it was based on the conspiracy claim. Like the situation in Kayton, the punitive damage award was not excessive, and we will allow the award to stand if on re-trial prevails on the statute of repose issue. Id.; see Cohen; see also Elmore v. Fla. Power Light Co., 895 So.2d 475, 479 (Fla. 4th DCA 2005) (holding that trial court erred by granting a directed verdict on statute of limitations defense and remanding for a new trial on the statute of limitations only).

Conclusion

We affirm the trial court’s denial of the Tobacco Companies’ motion to set aside the verdict and for judgment in their favor on the conspiracy claim. We hold the trial court erred in failing to grant the motion for remittitur as to the loss of consortium award and in striking the Tobacco Companies’ statute of repose affirmative defense. We remand the case for further proceedings consistent with this opinion.

Reversed, and remanded for further proceedings.

TAYLOR and LEVINE, JJ., concur.

      . Engle v. Liggett Group, 945 So.2d 1246 (Fla.2006).

      . We also affirm without discussion two issues raised separately by Liggett and by Put-ney's cross-appeal.

      . The recognition of an independent tort for conspiracy based on mere force of numbers was again discussed by the supreme court in Snipes.


author: PER CURIAM.

text:
    Rodney McGILL, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-1002.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Rodney McGill, Monticello, pro se.
    No appearance required for respondent.
   PER CURIAM.

Petitioner Rodney McGill seeks a writ of habeas corpus claiming that appellate counsel was ineffective for failing to raise on direct appeal his pro se objection to the giving of Fla. Std. Jury Instr. (Crim.) 14.1 during his trial for first degree grand theft. See § 812.014(2)(a), Fla. Stat. (2007). Petitioner represented himself at trial, but was represented by the Public Defender on direct appeal; counsel for petitioner raised two issues, neither involving jury instructions, and this court affirmed per curiam. See McGill v. State, 98 So.3d 581 (Fla. 4th DCA 2012).

We deny the writ because petitioner’s complaint involves the failure to challenge a standard jury instruction not disapproved by the Florida Supreme Court. Under these circumstances, the failure of counsel to object at trial and/or pursue the matter on direct appeal does not constitute ineffective assistance of counsel. See Lukehart v. State, 70 So.3d 503, 520-521 (Fla.2011); Rodriguez v. State, 919 So.2d 1252, 1272 (Fla.2005).

Petition for writ of habeas corpus denied,.

STEVENSON, GROSS and LEVINE, JJ., concur.


text:
    David F. MOSHIER, Appellant, v. STATE Of Florida, Appellee.
    No. 4D12-2777.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The motion to withdraw filed by defense counsel based on Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), is hereby granted. After having considered the entire record and the briefs filed by the parties, including appellant in proper person, we affirm appellant’s conviction and sentence entered after his open plea of no contest as charged. Burns v. State, 884 So.2d 1010 (Fla. 4th DCA 2004); Davis v. State, 652 So.2d 503, 504 (Fla. 4th DCA 1995).

Affirmed,.

TAYLOR, CIKLIN and FORST, JJ., concur.


text:
    Troy ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3331.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

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

STEVENSON, GROSS and CONNER, JJ., concur.


text:
    R.R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3728.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See P.W.G. v. State, 702 So.2d 488, 490-91 (Fla.1997) (juvenile court did not violate juvenile’s substantive due process rights in considering uncharged criminal activity in placement decision, given the differing goals of the juvenile delinquency and adult criminal systems).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    C.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2769.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

C.B., a fifteen year old boy, pleaded guilty to lewd and lascivious battery on an individual less than sixteen years of age. As a result, he was placed on probation. Subsequently, a petition was filed, alleging violation of his probation terms, including: (1) keep a curfew; (2) “perform (80) hours of community service work, as directed by the Court and by his Juvenile Probation Officer”; and (3) “comply with all instructions given to him by the Court and by his Juvenile Probation Officer ... to undergo Psychosexual Evaluation and complete any and all recommended treatment ... by not attending all scheduled appointments....” C.B. concedes to the curfew violation, but appeals the revocation of his probation based upon his failure to perform community service work and failure to attend the court ordered treatment. He argues that he did not willfully violate the terms of his probation for either and was not given notice of the terms associated with community service work.

We affirm the trial court’s finding that C.B. was on notice of the terms associated with community service and willfully violated them. We reverse the trial court’s finding that C.B. willfully violated his probation based upon his failure to participate in his treatment plan by attending scheduled treatment sessions. Because no sessions were ever scheduled with him, he could not have willfully failed to attend them.

Community Service Work

At the violation hearing, the probation officer acknowledged that in June 2010, C.B. submitted a letter from a business stating he had completed eighty-five hours of service. The probation officer testified that she could not accept these hours because they did not benefit a non-profit organization and C.B. had not sought pre-approval from her. She further testified that she told C.B about the non-profit restriction at the beginning of his probation and gave him a list of approved organizations.

To comport with due process, the trial court must provide adequate notice to the defendant of each special condition of his or her probation, specifying the conduct that is prohibited. Lawson v. State, 969 So.2d 222, 230-231 (Fla.2007). “Probation orders need not include every possible restriction so long as a reasonable person is put on notice of what conduct will subject him or her to revocation.” Id. at 235. “[A] condition of probation should provide reasonable individuals of common intelligence the basis to know and understand its meaning.” Id. (citation and internal quotation marks omitted). In Lawson, the court found that although a trial court failed to specify the parameters required in association with a drug program, the defendant was put on notice by a commonsense reading of the condition that the treatment program should be undertaken at the beginning of probation and discharge for nonattendance could immediately result in revocation of probation. Id.

Here, the condition of probation, which C.B. alleges was insufficient to apprise him of a proper understanding of the terms, was: “Community Service Hours 50 at a rate of 5/month & provide written proof each month.” C.B. argues that a commonsense reading of the words “community service” does not require that the organization be non-profit, and therefore, a probation officer’s request to perform court ordered community service hours at an approved non-profit organization amounts to a new condition of probation.

However, this argument contradicts the common meaning of “community service”, which implies volunteer work that provides a direct benefit to the general public. Logically, this is not the same thing as volunteer work that provides a direct benefit to a business earning a profit.

Moreover, even if the term itself were insufficient to put a person of ordinary intelligence on notice, a probation officer may give supervisory directions, which are necessary to carry out the conditions of probation. Bell v. State, 24 So.3d 712, 713 (Fla. 2d DCA 2009). This authority stops short of permitting a probation officer to create a new condition of the defendant’s probation. Id.

The distinction between a supervisory direction and a new condition is that a supervisory direction “simply effectuates the conditions already imposed by the court.” Miller v. State, 958 So.2d 981, 984 (Fla. 2d DCA 2007). In Miller, the Second District explained that requiring the defendant to stop contacting an individual by phone, in person, and by mail amounted to a new condition. The defendant in Miller was not previously ordered by the court to stop contact with that individual; rather, the defendant’s probation officer is the one who made the initial instruction. Id. at 981.

Unlike Miller, in the instant case, the community service hours were originally imposed by the trial court, rather than C.B.’s probation officer. The probation officer was merely explaining the definition of community service, which was reasonably expected procedure. As a result, C.B. received sufficient notice to apprise him of the terms of his probation, and his willful choice to refuse to perform according to those terms is consistent with willfulness, which is an appropriate basis for a violation. Therefore, the trial court did not abuse its discretion when it found him in violation of probation on this basis.

Treatment Plan Participation

The therapist testified that because C.B. lacked transportation, she agreed to provide individual therapy to him while at school twice a month. However, she refused to give notice of when she intended to meet with C.B. and instead showed up at C.B.’s school randomly. Logically, the missing of his therapy sessions could not have been willful as he did not know when they were to occur. Moreover, there was testimony from C.B. and his mother that C.B. missed school either because he was sick or because his mother kept him out of school. To be willful, a violation must be voluntary, rather than a result of being forced into the situation. Williams v. State, 896 So.2d 805, 806 (Fla. 4th DCA 2005). His failure to attend school was not voluntary. As a result, the trial court abused its discretion in finding that C.B. willfully violated his probation by failing to attend scheduled individual therapy sessions.

Because we reverse one, but not all of the trial court’s findings of violation, we must remand the case to the trial court to determine whether C.B.’s probation would have been terminated for the willful violations that he committed: curfew and community service. Cf. Davis v. State, 48 So.3d 176, 180 (Fla. 4th DCA 2010). Upon remand, the trial court should remedy its failure to specifically articulate the grounds for the violation in a written order, as mere disposition orders are insufficient. Mitchell v. State, 681 So.2d 891, 892 (Fla. 4th DCA 1996) (citation omitted).

Affirmed in part, reversed in part, and remanded.

MAY, C.J., TAYLOR and CONNER, JJ., concur.

      . The mother underwent back surgery and kept C.B. home to be her “right hand.”


text:
    T.D.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3534.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, a juvenile, challenges the trial court order withholding adjudication and sentencing him to probation for burglary and grand theft. He raises three issues on appeal, and we affirm the trial court with respect to the first two issues without further discussion. As for the remaining issue, we agree with the appellant that the trial court abused its discretion in imposing restitution without proof of fair market value, and we reverse and remand for further proceedings.

The appellant challenges only that portion of the restitution order awarding $265 for a Samsung netbook that was stolen and never returned. He argues that the award was based ■ on the purchase price of the netbook rather than its value at the time it was taken. We first address a preservation issue raised by the State. Contrary to the State’s claim that this issue was not preserved, the transcript of the hearing makes it clear that defense counsel did not agree with the court using the purchase price of the netbook as the basis for the restitution order.

We review the trial court s determination of the amount of restitution for abuse of discretion. See Soriano v. State, 968 So.2d 112, 114 (Fla. 4th DCA 2007). “The amount of restitution must be supported by competent, substantial evidence. Generally, the amount of restitution is established through evidence of fair market value of the stolen items at the time of the theft. Fair market value is calculated by reference to four factors: (1) the original market cost; (2) the manner in which the items were used; (3) the general condition and quality of the items; and (4) the percentage of depreciation.” Thompson v. State, 68 So.3d 425, 426 (Fla. 4th DCA 2011) (citations omitted). “A trial court is not tied to fair market value (FMV) as the sole standard for determining the amount of restitution, and may, in fact, exercise discretion in determining that amount.” Domaceti v. State, 616 So.2d 1148, 1149 (Fla. 4th DCA 1993) (citation omitted). “Nevertheless, absent circumstances tending to show that FMV does not adequately compensate the victim or otherwise serve the purpose of restitution ... the amount of restitution should be established through evidence of FMV at the time of the theft.” Id.

The evidence at trial reflected that the netbook was purchased new for $265, was ten months old at the time it was stolen, and was in perfect condition, although it was used several times a week. During the restitution hearing, the State presented the purchase receipt for the net-book. The owner’s testimony acknowledged that it would cost less than the purchase price to replace the netbook, although he was unable to find the same model on eBay. The court stated that because the netbook was in new condition, the replacement cost would be the same as the original purchase price. Although the court was aware of the purchase price, purchase date, and condition of the net-book, it did not have any evidence of fair market value at the time of the theft, and it did not consider fair market value. Further, the court’s finding disregarded the property owner’s testimony regarding replacement cost. Although there may have been circumstances supporting use of a measure of value other than fair market value, no such circumstances were presented by the State. Accordingly, we find the trial court abused its discretion with respect to the issue of restitution for the netbook, and we reverse and remand for a hearing on this sole issue. Otherwise, we affirm the order of the trial court.

Affirmed in part, Reversed in part, and remanded for further proceedings.

GROSS, FORST, JJ., and ROSENBERG, ROBIN, Associate Judge, concur.


text:
    Michael MARCHETTI and Valarie Marchetti, Petitioners, v. SCHOOL BOARD OF BROWARD COUNTY, Respondent.
    No. 4D12-4166.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.

      William R. Amlong, Karen Coolman Am-long and Jennifer Daley of Amlong & Am-long, P.A., Fort Lauderdale, for petitioners.
    Michael T. Burke and J. Marcos Martinez of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for respondent.
   GROSS, J.

Because the circuit court improperly required the plaintiff below to meet the evi-dentiary standards for injunctive relief, we grant a petition for certiorari and remand this case to the circuit court for a new temporary reinstatement hearing under the Florida Whistle-blower’s Act.

This case was filed as an appeal from a non-final order denying the Mar-chettis’ motion for temporary reinstatement under section 112.3187(9)(f), Florida Statutes (2012). Concluding that we do not have jurisdiction to review this case as an appeal from a non-final order, we treat the appeal as a petition for writ of certio-rari. See Fla. R.App. P. 9.040(c) (stating that if a party seeks an improper appellate remedy, “the cause shall be treated as if the proper remedy had been sought”); Fla. R.App. P. 9.030(b)(2)(A) (2011) (“The certiorari jurisdiction of district courts of appeal may be sought to review ... non-final orders of lower tribunals other than as prescribed by rule 9.130.”). “For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.” Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000).

Valerie Marchetti was an employee of the School Board of Broward County. In 2009, she overheard a telephone conversation between two Board employees that she felt raised potential issues of conflict of interest and improper influence. Ultimately, these issues resulted in the filing of criminal charges against a school board member and her husband by the Broward County State Attorney’s Office. Mrs. Marchetti gave a sworn statement to the State Attorney pursuant to a subpoena.

On May 18, 2011, Mrs. Marchetti was notified that her position would not be renewed for the 2011-12 fiscal year. The Board concedes that at no time was Mrs. Marchetti “the subject of a performance or disciplinary action” and does not contend “that Mrs. Marchetti’s cooperation with the SAO was in bad faith or for a wrongful purpose.”

Mrs. Marchetti and her husband filed a lawsuit which included a claim under section 112.3187, Florida Statutes (2012), the “Whistle-blower’s Act.” See §§ 112.3187-112.31895, Fla. Stat. (2012). They moved for Mrs. Marchetti’s temporary reinstatement under section 112.3187(9)(f), which provides:

(9) RELIEF — In any action brought under this section, the relief must include the following: (f) Temporary reinstatement to the employee’s former position or to an equivalent position, pending the final outcome on the complaint, if an employee complains of being discharged in retaliation for a protected disclosure and if a court of competent jurisdiction ... determines that the disclosure was not made in bad faith or for a wrongful purpose or occurred after an agency’s initiation of a personnel action against the employee which includes documentation of the employee’s violation of a disciplinary standard or performance deficiency.

After a hearing on the motion for temporary reinstatement, the trial court entered an order denying the motion. At the hearing, the judge reasoned that the Marchet-tis must first establish the necessary elements of injunctive relief under Florida Rule of Civil Procedure 1.610 before being entitled to temporary reinstatement under the statute.

The trial judge erred in importing the requirements of Rule 1.610 into the “temporary reinstatement” authorized by section 112.3187(9)(f). The statute differentiates between the remedies of injunc-tive relief and temporary reinstatement. To require the elevated level of proof necessary for injunctive relief would undermine the purpose of temporary reinstatement, which is to keep a whistle-blower on the job during the pendency of the lawsuit unless the statutory requirements for termination are met.

Section 112.3187 is intended to “prevent agencies or independent contractors from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse ... of duty on the part of an agency, public officer, or employee.” § 112.3187(2), Fla. Stat. (2012).

Subsection 112.3187(9) sets forth the required relief in actions brought under the Act. The statute separates “temporary reinstatement” in subsection 112.3187(9)(f) from the “[ijssuance of an injunction, if appropriate” in subsection (9)(e), where the concept of “appropriateness” incorporates the requirements of Rule 1.610. When an employee complains of being discharged in retaliation for a “protected disclosure,” temporary reinstatement is required if a court determines that such a disclosure was (1) “not made in bad faith or for a wrongful purpose” or (2) “occurred after an agency’s initiation of a personnel action against the employee which includes documentation of the employee’s violation of a disciplinary standard or performance deficiency.” To qualify for relief under subsection 112.3187(9)(f), a plaintiff is required only to make the showing required under the statute and not under Rule 1.610.

The Fifth District noted this distinction in Lindamood, v. Office of the State Attorney, Ninth Judicial Circuit, 731 So.2d 829, 831, n. 2 (Fla. 5th DCA 1999). In Lindamood, an assistant state attorney sued the State Attorney pursuant to the Whistle-blower’s Act, and challenged - a non-final order which denied her temporary reinstatement to her former position. Id. at 830. The appellate court noted that

[a]lthough [the assistant state attorney] inartfully titled [her] motion as a motion for temporary injunction, a review of the motion reveals its substance concerned only temporary reinstatement under § 112.3187. We therefore review it as such, declining to elevate form over substance. See Babcock v. Whatmore, 707 So.2d 702, 703 n. 3 (Fla.1998); Moreno Const., Inc. v. Clancy & Theys Const. Co., 722 So.2d 976, 978 (Fla. 5th DCA 1999).

Id. at 831 n. 2. Reviewing the motion as one for temporary reinstatement, the appellate court reversed by holding “[t]he relief spelled out in the statute mandates temporary reinstatement” where the plaintiff meets all of the statutory requirements. Id. at 833; see also State, Dep’t of Transp. v. Fla. Comm’n on Human Relations, 842 So.2d 253, 255 (Fla. 1st DCA 2003) (“In order to get [temporary reinstatement] relief a complainant must demonstrate the following: 1) prior to termination the employee made a disclosure protected by the statute; 2) the employee was discharged; and 3) the disclosure was not made in bad faith or for a wrongful purpose, and did not occur after an agency’s personnel action against the employee.”).

Relied upon by the Board, Broward County v. Meiklejohn, 936 So.2d 742 (Fla. 4th DCA 2006), is distinguishable. In that case, the plaintiff alleged discrimination claims under the Florida Civil Rights Act of 1992 and also made a claim under section 112.3187. Id. at 744-45. The plaintiff “filed a motion for injunctive relief’ under the Civil Rights Act and argued to the trial court that it should adopt a “federal standard” to rule, an argument commonly made because of the similarity between state and federal discrimination statutes. Id. at 745. From this we conclude that the appeal in Meiklejohn was from a motion for temporary injunction filed under the Civil Rights Act, rather than a motion for temporary reinstatement under section 112.3187(9)(f).

This is a case that meets the requirements of certiorari jurisdiction. The departure from the specific prerequisites of section 112.3187(9)(f) was a departure from the essential requirements of law; such a departure cannot be remedied on appeal following final judgment, because by that time it would be too late for the plaintiff to obtain the temporary reinstatement contemplated by the statute.

For these reasons, we reverse and remand for a new hearing on the motion for temporary reinstatement, where the trial court shall require only that the Marchet-tis satisfy the requirements of section 112.3187(9)(f) and not Rule 1.610 for injunctions.

GERBER and FORST, JJ., concur.

      . Sections 760.01-.il, 509.092, Florida Statutes (2005).