author: GROSS, J.

text:
    Eric WILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4483.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, J.

Eric Wiley, a habitual felony offender, appeals his sentence for third-degree murder to life imprisonment, with a twenty-five (25) year mandatory minimum, pursuant to Florida’s 10/20/Life statute. We affirm, holding that the sentence was both constitutional and in conformity with the applicable statutes.

Wiley was charged by information with (1) the second-degree murder of Dwight Starks, (2) the third-degree murder of Dwight Starks, (3) aggravated battery with a firearm on Aaron Stoudemire, (4) aggravated assault with a firearm on Aaron Stoudemire, and (5) possession of a firearm by a convicted felon. At trial, two eyewitnesses testified that Wiley, during a heated exchange, hit Stoudemire on the head with his gun, causing the gun to discharge and kill Starks. Wiley v. State, 60 So.3d 588, 589-90 (Fla. 4th DCA 2011). Wiley contended, in a statement to the police, that “while he and Stoudemire were fighting, the gun fell out, and when he retrieved the gun, it discharged while Stoudemire was trying to take the gun from him.” Id. at 590.

Following a jury trial, Wiley was convicted of all five counts and sentenced to life imprisonment for second-degree murder pursuant to the 10/20/Life statute. Id.

On appeal, this court held that the evidence demonstrated only an accidental shooting, thereby negating the necessary depraved mind required for second-degree murder. We vacated his “conviction for second-degree murder and remand[ed] for resentencing on Wiley’s conviction for third-degree murder.” Id. at 589.

Resentencing

On remand, the trial'court conducted a resentencing hearing for the third-degree murder conviction. Defense counsel agreed that, based on the findings from the previous sentencing hearing, Wiley qualified as a habitual felony offender. The State additionally requested that the trial judge impose a life sentence pursuant to the 10/20/Life statute since Wiley had fired a gun and taken Starks’ life.

In response, defense counsel argued that such a sentence would be inappropriate since the shooting “was an accident” and “there was no evidence put forth at trial to say that he had any intent to shoot Mr. Starks.” Under defense counsel’s view, section 775.087(2)(a)3., Florida Statutes (2009), should not apply since an accidental shooting falls outside of the statute.

The trial judge rejected the defense argument, finding that, since Wiley’s decision to bring a gun escalated the encounter, “an accidental discharge while hitting somebody in the commission of that felony, aggravated battery ... [is] exactly why the 10-20-Life was enacted.” In conjunction with the determination that Wiley was a habitual felony offender, the trial judge, pursuant to the 10/20/Life statute, sentenced Wiley to life in prison with the requirement that he serve a mandatory minimum imprisonment of 25 years.

I

In his first issue on appeal, Wiley contends that Florida’s 10/20/Life statute is intended to apply to “violent criminals who use (that is intentionally discharge firearms) not for accidental discharges.” This argument misconceives the primary purpose of the 10/20/Life statute, which is to induce criminals to leave their guns at home.

Standard of Review

The construction and application of a statute is an issue of law subject to de novo review. See Boca Airport, Inc. v. Fla. Dep’t of Revenue, 56 So.3d 140, 142 (Fla. 4th DCA 2011) (citations omitted). In construing a statute, the goal of the appellate court is to “give effect to the Legislature’s intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). However, when the statute is clear and unambiguous, the appellate court “-will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Id.

Florida’s 10120/Life Statute

Section 775.087(2)(a), Florida Statutes (2009), also known as Florida’s 10/20/Life statute, sets forth the minimum penalties for defendants convicted of enumerated offenses where the defendant has possessed and/or discharged a firearm or destructive device. Actual possession of a firearm requires a ten-year or three-year mandatory minimum sentence depending on the type of offense. See § 775.087(2)(a)l., Fla. Stat. (2009). Discharge of a firearm requires a twenty-year mandatory minimum sentence. See § 775.087(2)(a)2., Fla. Stat. (2009). Section 775.087(2)(a)3., the section at issue here, provides as follows:

3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

(Emphasis added).

Under this statute, regardless of whether the underlying crime is a first, second, or third degree felony, once a defendant falls within the purview of the statute, “the trial court has discretion ... to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.” Mendenhall v. State, 48 So.3d 740, 742 (Fla.2010).

By enacting the 10/20/Life statute, the Legislature “clearly mandated that it is the policy of this State to deter the criminal use of firearms.” McDonald v. State, 957 So.2d 605, 611 (Fla.2007). From the plain language of the statute, enhanced punishments are not limited to persons who use guns to perpetrate a crime; rather, as stated in subsection (1), heightened sentences are to be enforced, without discretion, to every person “charged with a felony” who “during the commission of such felony ... carries, displays, uses, threatens to use, or attempts to use any weapon or firearm.” § 775.087(1), Fla. Stat. (2009). Consistent with subsection (1), section 775.087(2)(a)3. does not require an intentional or knowing discharge but merely a “discharge” that resulted in death or great bodily harm to any person.

Since a defendant may be subjected to a heightened sentence for carrying a firearm during the commission of the felony, it is clear that the Legislature sought not only to prevent the intentional use of guns during the commission of crimes, but also to divorce firearms from criminal conduct altogether. This legislative approach to guns and criminal conduct derives from the capacity of a firearm to turn any altercation deadly:

Guns make killing immensely easier. Guns make killing far less direct and personal. Because most humans are incapable of choking, knifing or beating anyone to death, guns significantly increase the universe of possible killers. Guns make more killings more likely.

Collazo v. State, 966 So.2d 429, 434 (Fla. 4th DCA 2007) (Farmer, J., dissenting).

Section 775.087(2)(a)3. does not call for the sentencing judge to evaluate the level of a defendant’s culpability when a firearm has discharged “during the course of the commission of a felony.” Wiley’s conduct fell within the purview of the statute, so the court’s sentence was proper.

II

In his second issue, Wiley contends that Florida’s 10/20/Life statute, on its face, violates the federal and state constitution’s prohibition on cruel and unusual punishment, since it “authorized] excessive mandatory LIFE sentences without parole without regard to the nature of the prior offenses, the wishes of the victim, mitigation circumstances concerning the defendant’s background, or concerning all the circumstances of the present offense.” Additionally, Wiley argues that the statute is unconstitutional as applied to this case, since “the Florida Legislature’s indication of the maximum sentence for” third-degree murder is fifteen years in prison, not life imprisonment. Both arguments are without merit.

Standard, of Review

“The standard of review for the legality of a criminal sentence is de novo.” State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011) (citing Grosso v. State, 2 So.3d 362, 364 (Fla. 4th DCA 2008)).

Wiley’s Life Sentence Was Constitutional

As recognized by the Florida Supreme Court, “[t]he Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution have' historically provided protection relative to the mode and method of punishment, not the length of incarceration.” Hall v. State, 823 So.2d 757, 760 (Fla.2002) (footnote omitted); see also Lightbourne v. McCollum, 969 So.2d 326, 335 (Fla.2007) (“The Eighth Amendment has historically been the vehicle used to measure whether a particular method of execution was permissible.”) As such, “Florida courts have been reluctant to declare a prison sentence unconstitutional because of its length.” Andrews v. State, 82 So.3d 979, 984 (Fla. 1st DCA 2011) (citing Adaway v. State, 902 So.2d 746, 748 (Fla.2005)).

Likewise, unlike general judicial concerns regarding the legality of a sentence within a statutory framework, “[t]he length of the sentence actually imposed is generally said to be a matter of legislative prerogative.” Hale v. State, 630 So.2d 521, 526 (Fla.1993) (quoting Leftwich v. State, 589 So.2d 385, 386 (Fla. 1st DCA 1991)) (alteration in original). Reviewing courts “should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (footnote omitted); see also Lightbourne, 969 So.2d at 336 (“[C]ourts cannot require the legislature to select the least severe penalty so long as the penalty is not inhumane or disproportionate to the crime.” (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976))).

The sentence in this case does not violate the federal or state constitution. The “Florida Supreme Court has held that in order for a prison sentence to constitute cruel and unusual punishment solely because of its length, the sentence must be grossly disproportionate to the crime.” Andrews, 82 So.3d at 984 (citing Adaway, 902 So.2d at 750); see also Lightbourne, 969 So.2d at 336 (“A punishment [will be] excessive [only] if: (1) the punishment involves the ‘unnecessary and wanton infliction of pain’; or (2) the punishment is grossly out of proportion to the severity of the crime.” (quoting Gregg, 428 U.S. at 173, 96 S.Ct. 2909)). In making this evaluation, reviewing courts must consider three objective factors:

First, a court must consider the “gravity of the offense and the harshness of the penalty.” [Solem, 463 U.S. at 292, 103 S.Ct. 3001.] Second, a court may examine “the sentences imposed on other criminals in the same jurisdiction.” Id. Third, a court may examine “the sentence imposed for the commission of the same crime in other jurisdictions.” Id.

Andrews, 82 So.3d at 984.

In this regard, this court has considered and rejected a similar challenge as to the severity of mandatory minimum sentencing under the 10/20/Life statute. See Nelson v. State, 811 So.2d 761, 764 (Fla. 4th DCA 2002) (“[W]e are not persuaded by appellant’s argument that his twenty-five year minimum prison sentence for discharging a firearm, killing one person and seriously injuring another, constitutes cruel or unusual punishment.”).

Here, Wiley, a habitual felony offender, was sentenced to life in prison after inadvertently shooting and killing a person while in the process of committing another felony, aggravated battery. It can hardly be said that this sentence is “grossly disproportionate,” as Wiley’s actions resulted in the taking of a human life. Given the severity of the crime and the deference this court must give to the Legislature’s decisions regarding the length of a sentence, we find no constitutional violation in the sentence.

III

In his final issue on appeal, Wiley asserts that “the trial court illegally sentenced [him] for count II, third degree murder, to Life in prison plus a twenty five (25) year mandatory minimum sentence, pursuant to the 10/20/life statute.” Wiley states that “[t]he 10/20/life statute provides for a mandatory sentence of twenty five (25) years in prison up to life but not both.” This argument, however, misconstrues the trial court’s sentence imposition.

“Section (1) of the 10-20-life statute mandates reclassification of felonies committed with a firearm to a higher degree where use of a firearm is not an essential element of the underlying felony.” Dallas v. State, 898 So.2d 163, 165 (Fla. 4th DCA 2005); § 775.087(1), Fla. Stat. (2009). Here, Wiley was convicted of third-degree murder, a second degree felony punishable by a maximum sentence of fifteen (15) years in prison. § 775.082(3)(c), Fla. Stat. (2009). Applying the reclassification portion of the statute, Wiley’s offense was properly reclassified as a first degree felony, punishable by up to 30 years in prison. § 775.082(3)(b), Fla. Stat. (2009).

In addition to reclassification, the 10/20/Life statute also “requires the imposition of a mandatory minimum sentence where a firearm is possessed or used during the commission of certain enumerated crimes, including murder.” Mendenhall, 48 So.3d at 746. Section 775.087(2)(a)3. provides that a “convicted person” who falls within it is purview

shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

In Mendenhall, the Florida Supreme Court construed this provision to provide “the trial court [with] discretion ... to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.” 48 So.3d at 742. However, while Mendenhall pertained to the trial court’s discretion to set a mandatory minimum sentence, it did not address whether the trial court might impose a sentence longer than the mandatory minimum and in excess of the statutory maximum sentence as provided in section 775.082.

In this regard, section 775.087(2)(b) provides that the mandatory minimum sentence in subsection (2)(a)3. does “not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence.” (Emphasis added). From a literal reading of the statute, it appears that while a trial judge may sentence a defendant pursuant to section (2)(a)3. to a mandatory minimum sentence between twenty-five years to life, the trial judge may give a sentence over the mandatory minimum selected only if “authorized by law.”

Here, Wiley’s conviction for third-degree murder was properly reclassified pursuant to the 10/20/Life statute as a first-degree felony, punishable by a maximum of 30 years in prison. However, the trial court also found Wiley to be a habitual felony offender, which, pursuant to section 775.084(4)(a)l., provided that “[t]he court ... may sentence the habitual felony offender as follows: (l)[i]n the case of a ... felony of the first degree, for life.” § 775.084(4)(a)l., Fla. Stat. (2009). Therefore, because Wiley was determined to be a habitual felony offender and the 10/20/ Life reclassification applied, the life sentence was “authorized by law.” See Walker v. State, 473 So.2d 694, 698-99 (Fla. 1st DCA 1985) (finding that a defendant charged with a second degree felony may be sentenced to life imprisonment under the combined reclassification provisions of both section 775.087 and 775.084).

Affirmed.

POLEN, J„ and STONE, BARRY J., Senior Judge, concur.

      . Subsection (1) provides:
      (l) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
      (a) In the case of a felony of the first degree, to a life felony.
      (b) In the case of a felony of the second degree, to a felony of the first degree.
      (c) In the case of a felony of the third degree, to a felony of the second degree.
      § 775.087(1), Fla. Stat. (2009).

      . As such, in Mendenhall, the supreme court affirmed a defendant’s sentence of thirty-five (35) years imprisonment with a mandatory minimum of thirty-five (35) years, despite that the statutory maximum for the defendant's core conviction was thirty (30) years imprisonment.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    G.P., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D12-3361.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.

      Antony P. Ryan, Director, and Andrea H. Dueñas, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Deborah Schroth, Department of Children and Families, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND REQUEST FOR WRITTEN OPINION

PER CURIAM.

We deny G.P.’s motion for rehearing, but withdraw our previous per curiam opinion dated January 22, 2013, and substitute the following opinion in its place.

G.P., the father, appeals an adjudication of dependency as to his two biological children, J.P. and S.P. Citing In re M.F., 770 So.2d 1189 (Fla.2000), DCF conceded that evidence that G.P. had sexually abused his stepdaughter, standing alone, was insufficient to prove that there was a substantial risk of imminent abuse or neglect to his two biological children.

Here, however, evidence that G.P. sexually assaulted his stepdaughter was not the sole evidence relied upon by the trial court in finding that G.P. presented an imminent risk of harm to his two biological children. Through a combination of lay and expert witnesses, DCF presented evidence that there was a significant risk that G.P. would commit the same sexual acts on his biological children that he committed upon his stepdaughter. This evidence was sufficient to meet the burden set forth by our supreme court in M.F. See B.A.L. v. Dep’t of Children & Families of State of Fla., 824 So.2d 241, 244 (Fla. 4th DCA 2002) (“The prior incidents of abuse were but one piece of relevant evidence, and the trial court properly considered all other facts and circumstances. The children were found dependent as to both parents, not solely because of the earlier acts of abuse, but instead because of the unreasonable risk of danger currently existing to the children.”). We therefore affirm the dependency order.

Affirmed.

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


author: WARNER, J.

text:
    Yves NOEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1630.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Yves Noel, South Bay, pro se.
    No appearance required for appellee.
   WARNER, J.

Yves Noel appeals an order summarily denying his rule 3.800(a) motion. He claims that his sentence for delivery of cocaine within 1000 feet of a school is illegal, because the jury failed to make an essential finding to support the increased punishment under section 893.13(l)(c)l. We affirm, as appellant is seeking a retroactive application of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Following a jury trial, appellant was convicted of several offenses committed in May 1995, one of which was the first degree felony of delivery of cocaine within 1000 feet of a school, for which he was sentenced to thirty years in prison with a three-year mandatory minimum sentence. On direct appeal, this court reversed one of his other convictions, but otherwise affirmed. Noel v. State, 705 So.2d 648 (Fla. 4th DCA 1998). Since then, he has challenged his conviction and/or sentences by filing below a timely rule 3.850 motion and at least three prior rule 3.800(a) motions, as well as an untimely rule 3.850 motion and a petition for writ of habeas corpus, all unsuccessful and the denials of which this court affirmed. It does not appear he raised the issue he raised in the instant motion in any of the prior filings.

In the instant motion, filed in January 2012, appellant pointed out that, with respect to count III, the statute requires that the offense occur between 6:00 a.m. and 12:00 a.m. § 893.13(l)(c)l., Fla. Stat. (1993). He acknowledges that he was so charged, but he claims there was no clear jury finding as to whether the offense occurred between 6:00 a.m. and 12:00 a.m. Therefore, he claims that the jury found him guilty in that count only of the second degree felony of delivery of cocaine and asked that his sentence for that offense be corrected to a maximum of fifteen years. The trial court summarily denied the motion.

The element of time of the offense is an essential element of the crime. Nevertheless, even if we were to agree that the element of the time of delivery is a sentencing factor as opposed to an element of the crime, his claim that the jury must make the finding beyond a reasonable doubt arises from Apprendi, in which the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. However, Apprendi does not apply retroactively to a sentence which became final before Apprendi was decided. Hughes v. State, 901 So.2d 837, 848 (Fla.2005).

Furthermore, any error in failing to submit the issue to the jury is subject to a harmless error analysis. See Galindez v. State, 955 So.2d 517, 522-23 (Fla.2007). Galindez recognized that certain pre-Apprendi decisions — State v. Estevez, 753 So.2d 1, 7 (Fla.1999); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997); and State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984)— have been superseded by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (holding that failure to submit factual issues to the jury is subject to harmless error analysis). Appellant has failed to demonstrate that the alleged error in this case was not harmless.

In recognition of his numerous prior frivolous filings, by separate order we are warning appellant that abusive, repetitive, malicious, and/or other frivolous filing may result in sanctions, such as a bar on pro se filing in this court, and/or referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2012).

Affirmed.

LEVINE and CONNER, JJ., concur.


author: MAY, C.J.

text:
    Robert F. OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3742.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his consecutive life sentences for lewd and lascivious molestation and capital sexual battery of a child under the age of twelve. Relying on our decision in McLaughlin v. State, 79 So.3d 226 (Fla. 4th DCA 2012), the defendant argues the trial court erred in allowing a screen to be placed between the victim and the defendant in the courtroom during the victim’s testimony. We agree and reverse.

The State charged the defendant with lewd and lascivious molestation and capital sexual battery of a child under the age of twelve. The State moved, pursuant to section 92.54, Florida Statutes (2010), to place a projector screen between the witness stand and the defendant in the courtroom to block the victim’s view of the defendant. The defendant would remain in the courtroom, but would view the victim’s testimony through a television monitor while the jury viewed the victim directly. The State supported its motion with testimony from the victim’s mother and a detective.

The defense objected on the basis that the State did not establish emotional or mental harm to the victim without the use of the screen, and that the use of the screen would violate the Confrontation Clause. The trial court found “at least a substantial probability that at least moderate physical and emotional trauma” would result if the victim testified in front of the defendant. The defense renewed the objection prior to the victim’s testimony. The trial court granted the State’s motion. The defendant was permitted to observe the victim’s testimony through use of a television monitor. The defendant was convicted, and he now appeals to this Court.

On appeal, the defendant argues that the conditions under which the victim testified violated his right of confrontation and otherwise deprived him of a fair trial. Our decision is controlled by our earlier opinion in McLaughlin. There, we relied on State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008), where the Supreme Court of Nebraska wrote:

[T]he screen unduly compromised the presumption of innocence fundamental to the right to a fair trial. The presence of the screen in the courtroom, in an obvious and peculiar departure from common practice, could have suggested to the jury that the court believed [the victim]' and endorsed her credibility, in violation of [the defendant’s] right to a fair trial.
[T]he inherently prejudicial practice in this case cannot pass close scrutiny, because the court had available another equally effective method of protecting [the victim] while procuring her testimony that would not have been inherently prejudicial to [the defendant’s] due process rights. Section 29-1926 specifically provides for various means of obtaining the victim’s testimony through pretrial videotaping or closed-circuit video from another room. It does not, actually, make any reference to using a screen in the courtroom.

Parker, 757 N.W.2d at 18.

We agreed with the Parker analysis and concluded “that section 92.54 does not authorize the use of a screen in the manner employed.” McLaughlin, 79 So.3d at 228-29. “The proper procedure would have been to have the witnesses testify outside the courtroom via closed circuit television. ...” Id. at 229.

The State attempts to distinguish McLaughlin and argues that any error was harmless because here, the defendant admitted to the commission of the acts unlike the defendant in McLaughlin. We disagree. Although innovative, this method of shielding the child victim is not authorized by statute and violates the defendant’s right to a fair trial. See Parker, 757 N.W.2d at 18-19.

Reversed and Remanded for a new trial.

TAYLOR and CONNER, JJ., concur.

      . The trial court did not have the benefit of McLaughlin when the issue arose.

      . Defendant did not object in the trial court on the grounds that the screen was inherently prejudicial. However, no objection is required where — as here — a trial court commits fundamental error, an error which is “equivalent to a denial of due process.” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994).


author: CIKLIN, J.

text:
    LaCrise MOODY and Julius C. Wilson, III, Individually, and as Parents and Natural Guardians of S.A.W., a minor child, Appellants, v. LAWNWOOD MEDICAL CENTER, INC., Appellee.
    No. 4D11-3879.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Mark Miller of Mark Miller, P.A., Stuart, for appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford,. P.A., Fort Laud-erdale, for appellee.
   CIKLIN, J.

LaCrise Moody and Julius Wilson, individually, and as parents and natural guardians of their minor child, S.A.W., (collectively “the Moodys”), appeal the trial court’s entry of final summary judgment against the Moodys in their medical malpractice action against Lawnwood Medical Center, Inc. (“Lawnwood”). The first issue we address is whether the trial court erred by determining that the releases of two doctors who treated S.A.W. also released Lawnwood from vicarious liability for the acts of the two doctors. We determine that the releases explicitly did not release Lawnwood; thus Lawnwood’s motion for summary judgment should not have been granted on that basis. The second issue before us concerns the imposition of a non-delegable duty upon Lawn-wood to provide competent emergency care to S.A.W. Because there was a disputed issue of fact regarding the existence and content of a hospital admissions form which purportedly discharged Lawnwood from liability,' summary judgment was inappropriate.

Factual Background

S.A.W. was injured in a playground accident. S.A.W.’s mother, LaCrise Moody (“the mother”), brought S.A.W. to a pediatric doctor (“the pediatrician”) at a pediatric health clinic. The pediatrician evaluated S.A.W. and ordered x-rays. A radiologist determined that S.A.W. had a possible right-hip fracture and the pediatrician diagnosed a right-hip fracture based on the x-rays and his evaluation of S.A.W. The pediatrician recommended that the mother bring S.A.W. to Lawn-wood, where the pediatrician had staff privileges.

S.A.W. was admitted to Lawnwood through the emergency department and the pediatrician was the admitting physician. At the time of admission, the mother signed a “Conditions of Admission” form indicating that, among other things, Lawn-wood would provide medical services in exchange for payment. Lawnwood asserts that the mother also agreed to contractual terms contained on the reverse side of the form purportedly limiting Lawnwood’s liability for the acts of independent contractor physicians. The Moodys dispute that the mother ever viewed, received, signed, initialed or otherwise assented to the additional contractual terms allegedly printed on the reverse side of the form.

After S.A.W. was admitted to Lawn-wood, the pediatrician ordered a consultation with an orthopedic physician (“the orthopedist”), who was the on-call orthopedist for Lawnwood when S.A.W. was admitted. The orthopedist evaluated S.A.W. and concluded that she did not have a hip fracture. The orthopedist recommended that S.A.W. be discharged, and the pediatrician discharged S.A.W.

After her discharge from Lawnwood, S.A.W.’s condition worsened. The mother brought S.A.W. to Palms West Hospital. The staff at Palms West diagnosed S.A.W. with a number of conditions, including a fractured right hip, septic arthritis, septic shock, right heart failure, MRSA, and infections throughout S.A.W.’s' body. S.A.W. was hospitalized for ten weeks and had significant long-term health complications.

The Moodys filed suit against Lawn-wood, the pediatrician, the pediatrician’s clinic, the orthopedist, and the orthopedist’s practice. The Moodys’ suit against Lawnwood alleged direct liability for Lawnwood’s negligence and vicarious liability for the acts of its employees, agents, apparent agents, nurses, physicians, and support staff.

The Moodys settled their lawsuits with the pediatrician, the pediatrician’s clinic, the orthopedist, and the orthopedist’s practice, leaving only Lawnwood in the litigation. The Moodys signed two settlement agreements which contained releases: the first with the pediatrician and his clinic, and the second with the orthopedist and his practice. With the exception of the names of the parties, the settlement agreements were identical in the portions relevant to this appeal. Both agreements stated:

The Complaint and pleadings in [this] case are incorporated herein by reference for the purpose of fully, finally and completely releasing any and all claims which have been' asserted and/or which could have been asserted against the Releasees in [this] action.
This Release and Discharge shall also apply to this Defendants’ [sic] past and present officers, directors, stockholders, attorneys, agents, alleged apparent agents, heirs, executors, administrators, principals, employers, servants, -representatives, and employees, including, but not limited to, subsidiaries, affiliates, partners, predecessors and successors-in-interest, and assigns these Defendants can be held vicariously responsible for any claims asserted or that could be asserted by the Plaintiffs in this civil action. Additionally, Plaintiffs’ [sic] release any and all persons or entities that can be held vicariously responsible for these Defendants to the extent of liability for the acts or omissions of these Defendants only in their care and treatment of minor child, [S.A.W.]. Specifically, this release does not release Co-defendants, LAWNWOOD MEDICAL CENTER, INC. ... for their potential negligence.
This Release is not intended to and shall not operate to release any party other than the specifically designated Releas-ees. Specifically, this Release is not intended to and shall not operate to release LAWNWOOD MEDICAL CENTER, INC .... or any other person or entity affiliated therewith from any claim that is or could be asserted in Civil Action [the lawsuit’s case number]. The Plaintiffs specifically reserve all rights to pursue their claims against LAWNWOOD MEDICAL CENTER, INC....

(All emphasis shown included in original).

After the releases were executed, Lawn-wood moved for partial summary judgment on the Moodys’ claims of vicarious liability against Lawnwood for the actions of the pediatrician and the orthopedist. After a series of hearings and the presentation of extrinsic evidence to show the parties’ intent in executing the releases, the trial court entered partial summary judgment in favor of Lawnwood on the Moodys’ claims of vicarious liability for the acts of the pediatrician and the orthopedist. The trial court also entered partial summary judgment in favor of Lawnwood on the Moodys’ claims that Lawnwood breached a non-delegable duty to provide competent medical care to S.A.W. Final judgment was entered in'the ease, and the Moodys now appeal the trial court’s rulings regarding the releases and the non-delegable duty.

The Releases

We review an order granting summary judgment de novo. E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, 59 So.3d 347, 350 (Fla. 4th DCA 2011) (citation omitted). “Settlement agreements are to be interpreted by the same principles governing the interpretation of contracts.” Pratt v. Weiss, 92 So.3d 851, 854 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted). “It is fundamental that in construing a contract, the intention of the parties must be determined from examination of the whole contract and not from the separate phrases or paragraphs.” Cali v. Meadowbrook Lakes View Condo. Ass’n B Inc., 59 So.3d 363, 367 (Fla. 4th DCA 2011) (internal citation and quotation marks omitted).

We determine that the settlement agreements containing the releases were not ambiguous in any way. These documents plainly did not release Lawn-wood for its potential liability for the acts of the pediatrician and the orthopedist. The provision purportedly releasing Lawn-wood is followed immediately by a sentence stating, “Specifically, this release does not release Co-defendant[ ], Lawn-wood Medical Center, Inc.” (Emphasis removed). Further, and most significantly, the releases state that Lawnwood was not released “from any claim that is or could be asserted” in the Moodys’ suit. The Moodys’ complaint, which was incorporated by reference into the settlement agreement and releases, alleged that Lawnwood was vicariously liable for the acts of the pediatrician and the orthopedist. Thus, these releases specifically stated that Lawnwood was not released “from any claim,” including the vicarious liability claims that the Moodys brought against Lawnwood.

Non-Delegable Duty

The second issue presented in this case is whether Lawnwood had a non-delegable duty to provide competent medical care to S.A.W. The Moodys argue that Lawnwood owed S.A.W. a non-delegable duty and further that there existed no agreement by the mother that the delegation of duty in question also operated to dischai’ge Lawnwood from liability to S.A.W. for any negligence.

In Wax v. Tenet Health System Hospitals, Inc., this court held that the hospital’s admission consent form, signed by the patient, created a contractual duty on the part of the hospital to provide “non-negligent, competent surgical anesthesia services to its patient.” 955 So.2d 1, 11 (Fla. 4th DCA 2006) (citing Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 191 (Fla. 5th DCA 2006)). In Wax, we noted: “The critical fact ... is that there is no express agreement by the patient that the delegation of the duty in question also operated to discharge the hospital from liability to the patient for any negligence in its provision.” Id. at 10.

In the instant case, an issue of fact exists regarding the hospital admission form and particularly whether the mother viewed, received, signed or otherwise acquiesced to certain provisions purportedly discharging Lawnwood from liability for the acts of independent contractor physicians. Indeed, the mother specifically denies any such consentaneity. The contractual language in question provides:

Legal relationship between hospital and physicians! Most or all of the health care professionals performing services in the hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions, and the hospital should not be liable for the acts or omissions of any.

In light of our holding, we find it unnecessary to address the remaining issues raised by the parties in this appeal.

Reversed and remanded for further proceedings.

GROSS and LEVINE, JJ., concur.

      . We note that extrinsic evidence of the parties’ intent is unnecessary to resolve this case because the releases were unambiguous. See Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995).

      . "The independent contractor/nondelegable duty analysis that inevitably dominates most of the cases in the context of hospital liability is confusing and somewhat misleading because duties that arise under the law of tort and duties that may arise under contract are often intertwined.” Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006).

      .We note that the copy of the reverse side of the hospital admissions form included in the record before us was illegible. The source of this quoted contractual language originates from Lawnwood in its answer brief.


author: CIKLIN, J. DAMOORGIAN, J.,

text:
    Ari SHAHAR and Daphna Shahar, husband and wife, Appellants, v. GREEN TREE SERVICING LLC, Appellee.
    No. 4D11-1111.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Neil Bryan Tygar of Neil Bryan Tygar, P.A., Delray Beach, for appellants.
    Heidi J. Weinzetl of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee.
   CIKLIN, J.

Ari and Daphna Shahar (the “Homeowners”) appeal the trial court’s entry of final summary judgment of foreclosure in favor of Green Tree Servicing (“Green Tree”). The Homeowners asserted affirmative defenses and filed various counterclaims, which they argue precluded the entry of summary judgment. The counterclaims did not set forth viable causes of action. Thus, without further discussion we affirm that portion of the summary judgment that found in favor of Green Tree as to the Homeowners’ counterclaims. However, we reverse the remainder of the summary judgment because Green Tree neither factually nor legally refuted the Homeowners* affirmative defense of unclean hands, thereby precluding the entry of a final judgment of foreclosure.

In verified form, the Homeowners specifically alleged the following to have expressly occurred throughout the course of the loan process. The Homeowners went to the lender for the purpose of refinancing two adjustable-rate mortgages on two different properties. Without the Homeowners’ knowledge, the lender altered the income information On the loan application which the Homeowners provided in order to qualify them for the loan. Also without the Homeowners’ knowledge, the lender altered the type of loan sought to a “stated income” loan, in which the borrower’s income is not verified independently, so that the income deception would not be detected. The Homeowners provided documentation of their income and assets, which the lender destroyed. At the closing, the lender presented the altered loan application to the Homeowners, along with “dozens upon dozens” of other documents, and explained to the' Homeowners that they were required to sign the application at closing, without revealing to the Homeowners that the application had been altered by the lender. The lender informed them that if they did not sign the new loan application, all fees associated with, the refinance would remain due and payable. The Homeowners were not provided an opportunity to review the lengthy paperwork. The Homeowners, relying upon the lender’s representation that the information in the new loan application was taken from the Homeowners’ verbal interview with the lender and the documentation the Homeowners originally provided, signed the new application, unaware of any changes. Finally, the Homeowners alleged that as a result of this premeditated scheme, their payments on the two loans actually increased by fifty percent. These sworn allegations formed the factual basis of the unclean hands defense asserted by the Homeowners.

In support of its motion for summary judgment, Green Tree submitted an affidavit by its vice president, stating that it was the owner and holder of the note and that the Homeowners had stopped making payments. The affidavit did not — in any manner whatsoever — address the Homeowners’ elaborate allegations pertaining to their unclean hands defense. Instead, attached to the affidavit, with only a tenuous reference to the unclean hands defense, was a cursory and unsophisticated letter (the “Letter”) apparently written and signed by the Homeowners and sent to the lender. Aside from this vague and ambiguous attachment, Green Tree, in its motion for summary judgment, simply .advanced a bare legal argument that the unclean hands defense was legally insufficient. Now, on appeal, Green Tree abandons any reference or discussion pertaining to the Letter.

The trial court granted the motion for final summary judgment, which the Homeowners have timely appealed.

“Review of an order granting summary judgment is de novo.” Gomez v. Fradin, 41 So.3d 1068, 1071 (Fla. 4th DCA 2010). “ ‘A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with, counter-evidence sufficient to reveal a genuine issue.’ ” Id. (quoting Landers v. Milton, 370 So.2d 368, 370 (Fla.1979)). Additionally, “in order for a plaintiff to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, 59 So.3d 347, 352 (Fla. 4th DCA 2011) (citation omitted). Further, “[t]he burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.” Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (citation and quotation marks omitted).

This court has previously concluded that unclean hands, if sufficiently pled, may be asserted as an affirmative defense to a mortgage foreclosure action. See, e.g., Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009); cf. Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So.3d 602 (Fla. 4th DCA 2013) (finding that an unclean hands affirmative defense in a mortgage foreclosure case was not pled with sufficient facts).

This court has described unclean hands as follows:

It is certainly beyond question that “one who comes into equity must come with clean hands else all relief will be denied him regardless of the merits of his claim. It is not essential that the act be a crime; it is enough that it be condemned by honest and reasonable men.”

Ocean View Towers, Inc. v. First Fid. Sav. & Loan Ass’n, 521 So.2d 325, 326 (Fla. 4th DCA 1988) (quoting Roberts v. Roberts, 84 So.2d 717, 720 (Fla.1956)). Recently, this court found that unclean hands is tantamount to “[Unscrupulous practices, overreaching, concealment, trickery or other unconscientious conduct.” Congress Park Office Condos II, 105 So.3d at 609 (citation omitted).

Under the unique facts of this case and the record before us, the Homeowners’ allegations were legally sufficient to properly assert the defense of unclean hands. See, e.g., Monetary Funding Grp., Inc. v. Pluchino, 87 Conn.App. 401, 867 A.2d 841 (2005) (finding that where the borrower was unsophisticated and the lender misled the borrower about the terms of the loan and failed to conduct a bona fide evaluation of the borrower’s ability to repay the loan, the trial court was correct to conclude that the borrower’s unclean hands defense precluded foreclosure). Green Tree failed to present any meaningful evidence rebutting the allegations underpinning this defense. Therefore, summary judgment was prematurely granted.

While this defense' might ultimately be rendered fruitless or unprovable, we must avoid any temptation to enter summary judgment merely because the non-moving party’s chances for success may be minimal at best. Fischer v. Bernard’s Surf, 217 So.2d 576, 577 (Fla. 4th DCA 1969) (“In passing upon a motion for summary judgment, the trial judge may not permit his decision to be influenced by the chance of success which he considers either party may have on the trial”). Granting summary judgment “brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the litigant from the benefit of and right to a trial on the merits of his or her claim.” Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (emphasis added) (citation omitted). “It is for this very reason that caution must be exercised in the granting of summary judgment....” Id.

Finally, Green Tree strenuously argues (and makes it a primary point in its answer brief filed with this Court) that the Homeowners’ failure to provide transcripts from the summary judgment hearing precludes appellate review of the final summary judgment. However, hearing transcripts ordinarily are not necessary for appellate review of a summary judgment. We agree with the Third District, which held:

[Wjhere the appeal is from a summary judgment, the appellant must [merely] bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion. See Romero v. All Claims Ins. Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). Those are the portions of the record essential to a determination whether summary judgment was properly entered. However, the hearing on the motion for summary judgment consists of the legal argument of counsel, not the taking of evidence. Consequently, it is not necessary to procure a transcript of the summary judgment hearing, see id., although it is permissible and often helpful to do so.

Gonzalez v. Chase Home Fin. LLC, 37 So.3d 955, 958-59 (Fla. 3d DCA 2010) (quoting Seal Prods. v. Mansfield, 705 So.2d 973, 975 (Fla. 3d DCA 1998)) (brackets in original).

Therefore, we reverse the summary judgment granted in favor of Green Tree on its foreclosure complaint. However, we also affirm the summary judgment insofar as it found in favor of Green Tree with respect to the Homeowners’ counterclaims.

Affirmed in part, reversed in paH, and remanded.

STEVENSON, J., concurs.

DAMOORGIAN, J., dissents with opinion.

DAMOORGIAN, J.,

dissenting.

I would affirm because Green Tree presented unrebutted evidence negating the basis of the defense. The Homeowners’ “Third Affirmative Defense” raising the unclean hands doctrine stated in its entirety:

THIRD AFFIRMATIVE DEFENSE UNCLEAN HANDS
Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. The Plaintiffs unclean hands result from the Plaintiffs actions in qualifying Defendants for a loan Plaintiff knew or should have known Plaintiff (sic) could not afford, using false information to qualify Defendants for the loan and as recited by and through all Affirmative and Counterclaims alleged herein. As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of the note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable.

It is well settled that a party claiming unclean hands as an affirmative defense must establish that it was injured by the conduct constituting the unclean hands. McCollem v. Chidnese, 832 So.2d 194, 196 (Fla. 4th DCA 2002). Although the Homeowners allege that Green Tree’s predecessor qualified the Homeowners for a loan they could not afford and that in order to qualify the Homeowners, the lender used false information, nowhere, do the Homeowners allege that they were not able to make payments because of Green Tree’s allegedly inequitable conduct. Indeed, the record establishes, by the Homeowners’ own admissions, that the Homeowners were not able to afford their payments because they were not able to generate as much rental income as they anticipated.

In a letter sent to Green Tree by the Homeowners, which was attached as an exhibit to an affidavit in support of Green Tree’s motion for summary judgment, the Homeowners state that they were unable to continue making mortgage payments because their tenants stopped paying the rent on the property. Moreover, they acknowledge that they “bought [the] property with good intentions of keeping it and making payments ... until the time is right to sell it.” These unrebutted statements belie the very defense that the Homeowners now assert. Put another way, the Homeowners represented that they could afford the mortgage as long as their tenants paid the rent.- The Homeowners cannot now be heard to complain that they should never have received the loan they requested and paid for because their business plan did not work out. They cannot have it both ways. Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (“[Ojnce [a movant] tenders competent evidence to support ... motion [for summary judgment,] ... opposing party must come forward with counterevidence sufficient to reveal'a genuine issue. It is not enough for the opposing party merely to assert that an issue does not exist.”).

The majority relies on the allegations contained in the Homeowners’ counterclaims to establish a factual basis for the Homeowners’ unclean hands affirmative defense, despite affirming the trial court’s ruling that the counterclaims did not set forth viable causes of action. I do not believe this is proper.' However, even considering the allegations contained in the disposed of ■ counterclaims, the Homeowners did not allege that the terms of the loan were onerous or illegal, that they were unaware of their payment amount, or that they attempted to reject the loan pri- or to receiving the loan proceeds. As the majority points out, the Hbmeowners did allege that their payments increased after they refinanced and obtained new loans with Green Tree, however, the Homeowners admitted that they refinanced on their own accord to avoid the consequences of their previous loans’ adjustable interest rates, and never once alleged that they were not aware of or objected to the amount they were required to pay under the Green Tree loans. Their silence on this point is deafening and negates any claim of injury.

Accordingly,, as the record establishes that the Homeowners’ were not injured by Green Tree’s allegedly inequitable conduct, the trial court correctly granted summary judgment and I would affirm.

      . While the unclean hands portion of the Homeowners’ affirmative defense is comprised of only a single paragraph, it incorporated by reference the lengthy allegations found previously in the same "Verified Amended Answer, Affirmative Defenses and Counterclaims” pleading under the "General Allegations” heading. See Fla. R. Civ. P. 1.130(b) ("Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion.”).

      . The Letter states, in its entirety:
      We are writing to you today after trying to avoid a situation which has been accelerating for the past year. We bought this property with good intentions of keeping it and making payments on it until the time is right to sell it. However due to the fact that out (sic) tenants are not paying their rent on time and many not paying at all we are unable to make the payments at this time. We are hoping that there is some kind of solution that will help us to keep and maintain the property as we have been doing. The payments are much higher than the rent that we receive from it. We cannot make up the difference at this time (We have been doing that since we refinanced it last year). It is now impossible and we are waiting to hear from you as to a possible solution.


author: LEVINE, J.

text:
    Gephtherson LOUISSANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1553.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Attorney General, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred by denying appellant’s motion to disqualify the trial judge before sentencing where the judge stated that appellant had committed perjury during the trial. We find the trial court erred by denying the motion to disqualify, and as such we reverse for resentencing. We find the other ground raised by appellant to be without merit and we affirm the convictions.

Appellant was charged and convicted of armed kidnapping, aggravated battery, and giving a false report of a crime. Appellant asked his girlfriend to contact the victim, whom she had previously dated. Appellant had a “beef’ with the victim, so the girlfriend found it strange when appellant asked her to invite the victim over. When the victim arrived, appellant sneaked out of the bedroom and struck the victim with a machete. Appellant told the victim to get on his knees near the door. Appellant then erased his girlfriend’s phone number from the victim’s cell phone. Appellant placed a knife in the victim’s hand and told the victim that he was doing it “so it could seem like [the victim] attacked him.” The victim later testified he was in the apartment “[a]t least for three hours.” Appellant pretended to call the police to tell the police that the victim tried to rob him.

Subsequently, the police responded to the scene. Initially, appellant claimed that the victim pushed his way into the apartment. However, deputy sheriffs determined the blood patterns at the scene to be inconsistent with appellant’s story. A few days later, appellant gave a second story, in which appellant admitted to luring the victim to the apartment. Appellant now admitted that the victim did not have a weapon, nor did the victim attack appellant with a knife at the front door. During the taped statement, appellant apologized for lying during the first statement. Appellant admitted to putting a knife in the victim’s hand and making his girlfriend call the victim to have the victim bring her food, while appellant hid in the bedroom. The trial court determined that a redacted version of the taped statement would be admissible, but that the version presented to the court had not been edited sufficiently and was therefore inadmissible.

At trial, appellant testified that he had no plan to lure the victim to the apartment. After hearing several knocks at the front door, he picked up a machete and opened the door, When he did, the victim charged him. Appellant testified that he told the deputy what she wanted to hear during the second interview, because she had threatened his girlfriend with criminal charges. Appellant denied telling the deputy that he put a knife in the victim’s hand and denied telling the deputy that appellant and his girlfriend planned to lure the victim to the apartment:

Q. Did [the detective] take the witness stand, sat in the same seat that you are sitting, and told us that you admitted to everything the state is trying to prove against you?
A. No. No.
Q. Did you, in fact, make any such admissions?
A. No.
Q. Did you tell the detective that you put the knife in [the victim’s] hand?
A. No.
Q. Did you tell the detective that you and [your girlfriend] had a plan to get [the victim] over to your apartment?
A. No.

At this point, while out of the presence of the jury, the trial court stated the following:

THE COURT: We have an additional problem. That is your client has now testified under oath to something that is completely contrary to what I saw on tape. He testified that he never told the detective certain things that are clearly on that tape. That is perjury, and your client was right here when the tape was played.
[DEFENSE COUNSEL]: Judge, I don’t believe we got that far in the tape.
THE COURT: Hello.
[DEFENSE COUNSEL]: Judge, I think we ended the tape right around—
THE COURT: Even if he wasn’t right here, it is clearly on the tape. We all watched it. I just heard him testify to something that is 180 degrees from what is on the tape.
State, if you can redact that tape, sir, it will be admissible in your rebuttal case. All right. I’m recessing this jury. You can inquire as you see fit at this time.
[DEFENSE COUNSEL]: The attorney advised him two different things, and I am about to get on the podium the answer.
THE COURT: It is not a question of whether you advised him one way or the other, it is a question of what is the truth, so.
[DEFENSE COUNSEL]: I don’t know what the truth is, Judge.
THE COURT: He does.
[DEFENSE COUNSEL]: He doesn’t, because he thinks he only has one.
THE COURT: Everybody knows what the truth is. You can ask the questions.

Later, appellant stated the following in cross-examination:

Q. So which is it? Earlier you just stated you never told [the detective] in an interview that you placed a knife in [the victim’s] hand. Now you are saying you didn’t. I want to know which it is.
A. I apologize for whatever I have said prior to that because I just didn’t understand the question.
Q. I don’t understand at this point. Did you ever place a knife — did you ever tell [the detective] that you placed a knife in [the victim’s] hand during an interview?
A. Yes, I said so.
Q. So you did?
A. Yes.
Q. Did you not just say you didn’t? Did your attorney just ask you that question?
A. I didn’t understand.
Q. Who did you not understand me or your attorney?
[Appellant]: I didn’t understand when it was being translated to me.
Q. I’m still unclear about the answer, so I am going to ask once more. Did you ever tell [the detective] at any time and during an interview that you placed a knife in [the victim’s] hand in your apartment?
A. Yes.
Q. Okay. And did you not just in Direct Examination tell your attorney something completely different?
A. Yes. I think I did say something different because I didn’t understand the question.

Finally, on redirect examination appellant testified that not all things he told the deputy during the taped statement were true, but that he had said them because the deputy had threatened to put his girlfriend in jail.

The jury found appellant guilty as charged of all three counts. Two days later, appellant moved to disqualify the trial judge based on the judge’s comment that appellant had “committed perjury.” Appellant asserted that the judge’s corn-ments created in appellant a well-founded fear that he would not receive a fair and impartial sentencing. The trial court denied appellant’s motion to disqualify as legally insufficient. The trial court held a sentencing, hearing and sentenced appellant. This appeal ensues.

This court reviews de novo the legal sufficiency of a motion to disqualify a trial judge. Barnhill v. State, 834 So.2d 886, 843 (Fla.2002).

Under Florida Rule of Judicial Administration 2.330, a motion to disqualify must “allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification.” Fla. R. Jud. Admin. 2.330(c)(2). The motion must show “that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1).

“In considering a motion to disqualify, the trial court is limited to ‘determining the legal sufficiency of the motion itself and may not pass on the truth of the facts alleged.’ ” Riechmann v. State, 966 So.2d 298, 317 (Fla.2007) (citation omitted). “In determining legal sufficiency, the question is whether the alleged facts would ‘create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.’ ” Id. at 317-18 (citation omitted). The fear must be objeetivély reasonable, and not subjective. Parker v. State, 3 So.3d 974, 982 (Fla.2009). “If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.” Fla. R. Jud. Admin. 2.330(f).

In the present case, the trial court erred in failing to grant the motion to disqualify. Appellant’s motion and affidavit were legally sufficient, and as such, required the trial court’s granting of the motion to disqualify. “As a general proposition, a statement by a trial judge that he or she feels a party has lied in the case is generally regarded as indicating a bias against the party.” Campbell Soup Co. v. Roberts, 676 So.2d 435, 436 (Fla. 2d DCA 1995).

In City of Hollywood v. Witt, 868 So.2d 1214, 1217 (Fla. 4th DCA 2004), this court found that a party’s motion to disqualify was legally sufficient, where the party alleged in part that the trial judge had stated that he did not believe any of that party’s witnesses at trial and thought the party’s witnesses had lied. Further, in Simpson v. State, 103 So.3d 142 (Fla,2012), the supreme court recently found a motion to disqualify legally sufficient, based on statements by a trial judge which suggested that the judge had made a “credibility determination” as tó an officer. Specifically, in Simpson, in denying a defendant’s request to appoint a handwriting expert, the trial judge had stated he was “not going to find that the detective has committed perjury.” Id.

The proper “inquiry focuses on whether the defendant may reasonably question a judge’s impartiality rather than whether the judge perceives she is able to act fairly and impartially.” Siegel v. State, 861 So.2d 90, 92 (Fla. 4th DCA 2003). In this case, the trial judge’s statement that appellant had perjured himself would create a well-founded fear in a reasonably prudent person that the person would not receive a fair and impartial hearing.

In conclusion, we affirm the convictions and reverse and remand for resentencing on the counts of armed kidnapping and aggravated battery before another judge. See Lewis v. State, 530 So.2d 449, 450 (Fla. 1st DCA 1988).

Affirmed in part, reversed in part, and remanded with directions.

WARNER and CIKLIN, JJ., concur.

      . On the count for giving a false report of a crime, appellant received a sentence of time served. Appellant does not appeal this conviction.


text:
    Elexis Kim GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2431.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Carey Haughwout, Public Defender and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented for our review is whether the trial court erred in overruling appellant’s objection to the prosecutor’s statement in closing argument assuring the jury that it would not have heard appellant’s taped statement to police if it was not freely and voluntarily made. We find that the trial court erred in overruling appellant’s objection, as the prosecutor’s statement improperly implied that the vol-untariness of the confession had already been determined. We reverse and remand.

Appellant was charged and convicted of dealing in stolen property. Appellant was in a relationship with Bruce Wasserman. After the relationship ended, appellant and her new boyfriend, Gambino Delgado, would sometimes stay at Wasserman’s house. At some point, a rug was taken from Wasserman’s home. Appellant later brought a rug to a gallery to sell on consignment. The rug had the same identification numbers as Wasserman’s rug. A surveillance video showed appellant signing a consignment agreement using the name Elexis Gambino.

Subsequently, appellant spoke with a detective from the Broward Sheriffs Office, after being given her Miranda rights. Appellant claimed that her boyfriend, Delgado, committed the burglary. Appellant denied filling out the paperwork to put the rug on consignment. When the detective told appellant that she was on the surveillance tape, appellant stated that she did not steal the rug. The following exchange then ensued:

A. ... What is going to happen now?
Q. Tonight you are going to jail. Grand theft and dealing in stolen property. Tonight you are getting charged with them. There is .no way around that. I haven’t even—
A. You told me I wasn’t going to jail.
Q. Remember what I told you, if you are a hundred percent truthful. What I tell you at the beginning?
A. If I was truthful. And not.
Q. If you had a legitimate — let me tell you something Elexis, if you had a legitimate — if you would have told me, if you would have told me I would have told me over and didn’t tell the truth and it would have been a lie, but if the truth would have been this, that is my carpet, I also own it, I bought it with him together. I went to Kodner. I put it on consignment, because I need .to make money, and I don’t work.

At trial, appellant téstified that Wasser-man had purchased the rug for her. She admitted that she signed the consignment slip. When Wasserman told her about a reward for the stolen rug, she told him that the rug was at the consignment store. Appellant stated that she was not truthful with the detective because she was nervous and scared and because she had a drug problem. She admitted on cross-examination that she never told the detective that the rug belonged to her.

During closing arguments, appellant argued that the jury should disregard appellant’s statement to the police because it was not freely and voluntarily made:

Now, there was an exchange between the detective and Ms. Garcia where she says, he tells her she is getting arrested.
And she says, well, wait a second, you told me I wasn’t going to get arrested. You told me whether I told the truth or not, I was not going to get arrested.
And why that is pertinent, is because you have to consider whether a statement was knowing, voluntarily and freely made. And in making that determination you should consider the total circumstances including but not lim[it]ed to whether when the defendant made the statements she had been threatened in order to get her to make it, or whether anyone had promised her anything, whether anyone had promised her anything in order to get her to make a statement.
You are not going to get arrested if you talk to me. That is a promise.
And if you conclude that the Defendant’s out of court statement was not freely and voluntarily made, being based on a promise, you should disregard it.
What that means is if you don’t think this was a free and voluntary statement, if you think that she was either forced, pressured or lied to—
Ladies and gentlemen, let me make it clear. I’m simply pointing out to you the law that you are going to receive, and it is clear as day that if you conclude the defendant’s out of court statement was not freely or voluntarily made, you should disregard that.
What does that mean? If you feel she was threatened to make it, I will allow you, you are not going to get arrested or if you are promised anything, like you are not going to get arrested, then guess what, you should disregard it, regardless of the fact that you heard it and it is in evidence. You should disregard it, because why? It is not credible.

During a sidebar conference, the state objected to appellant’s argument, claiming that appellant was arguing issues for suppression. The court overruled the objection.

During the state’s closing argument, the prosecutor stated the following:

There is some talk, oh, the tape is a mistake, because the — all the statements weren’t freely and voluntarily made.
I assure you, you wouldn’t be listening to that tape if they were not freely and voluntarily made. That is an argument by the defendant.
I assure you that does not apply here.

During a sidebar conference, defense counsel objected to the prosecutor’s argument as improperly suggesting that the voluntariness of the confession should have been dealt with in a pretrial motion to suppress. Defense counsel contended that the jury instructions permitted him to argue to the jury that it should “disregard” the confession. The trial court noted defense counsel’s objection but found that the prosecutor’s argument had not “crossed the line.”

Appellant was convicted of dealing in stolen property. This appeal ensues.

We review “[ijmproper prosecutorial arguments ... under an abuse of discretion standard.” Lucas v. State, 67 So.3d 382, 336 (Fla. 4th DCA 2011).

The prosecutor clearly made an improper argument by stating, “I assure you, you wouldn’t be listening to that tape if they were not freely and voluntarily made. That is an argument by the defendant. I assure you that does not apply here.” Appellant was justified in arguing to the jury that her confession was not freely and voluntarily made and therefore the jury could “disregard” it.

In fact, the trial court subsequently instructed the jury that it “must determine from the evidence that the defendant’s alleged statement was knowingly, voluntarily and freely made”:

A statement claimed to have been made by the defendant outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made.
Therefore, you must determine from the evidence that the defendant’s alleged statement was knowingly, voluntarily, and freely made.
In making this determination, you should consider the total circumstances, including but not limited to
1. whether, when the defendant made the statement, she had been threatened in order to get her to make it, and
2. whether anyone had promised her anything in order to get her to make it.
If you conclude the defendant’s out of court statement was not freely and voluntarily made, you should disregard it.

See Fla. Std. Jury Instr. (Crim.) 3.9(e).

Stephenson v. State, 645 So.2d 161 (Fla. 4th DCA 1994), is most instructive. In Stephenson, the defendant claimed his statement was the result of implied promises from the police and further claimed that police misstatements coerced him into giving the statement. The trial court ruled that, given the totality of circumstances, the confession was voluntary. At the trial, the defendant “argued to the jury that it should disregard the confession because the police ‘tricked’ appellant.... In rebuttal, the State argued that ‘[t]here is nothing wrong with the police doing what they did on that tape. It’s not illegal. If it was, you wouldn’t even be hearing this tape.’ ” Id. at 163. The Stephenson court recognized that the defendant has “two opportunities to attack a confession.” Id. The defendant can first attack the confession before the trial court and then later again attack the confession by having the jury make a determination regarding the voluntariness of a confession.

In the instant case, as in Stephenson,

[t]he prosecutor’s remark created the erroneous impression that the voluntariness of the confession had been resolved. It would be a cruel joke for the law to grant the defendant a right to have the jury redetermine the voluntariness of a confession, but at the same time allow the State to intimate that the admissibility of the confession had already been determined.

Id. Unlike Stephenson, where the defendant did not immediately object to the prosecutor’s statement, in the present ease, appellant objected immediately to the improper argument of the prosecutor. In this case, the prosecutor gave the jury the “erroneous impression” that the voluntariness of the confession had been already determined.

Finally, we cannot say the prosecutor’s argument, assuring the jury that appellant’s statement was “freely and voluntarily” given, constituted harmless error. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The last argument heard by the jury was the prosecutor’s assurance of the voluntariness of appellant’s statement, which was a key part of the state’s case due to the fact that the taped statement conflicted with appellant’s in-court testimony. As a result, we cannot say that the error in this case was harmless. Therefore, we reverse appellant’s conviction and remand for a new trial.

Reversed and remanded.

WARNER and CIKLIN, JJ., concur.

      1. Due to a problem with the tape, this statement was actually played twice for the jury. The wording of the second transcription differed slightly but was not materially different from the first transcription.


text:
    INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. PENNSYLVANIA LUMBERMENS MUTUAL INSURANCE COMPANY, Appellee.
    No. 4D11-3822.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Robert V. Fitzsimmons and Genny A. Castellanos of Rumberger, Kirk & Caldwell, P.A., Miami, for appellant.
    Stuart J. Freeman of Brasfield, Freeman, Goldis & Cash, P.A., St. Petersburg, for appellee.
   MAY, C.J.

Two insurance carriers take their corners and come out slugging over attorney’s fees. The losing carrier argues the trial court erred in denying it attorney’s fees, pursuant to section 627.428, Florida Statutes (2010). We agree and reverse.

The fee dispute arose from a homeowner’s insurance claim. In 2005, the homeowners sued the developer for damages from water intrusion. The developer filed a third-party complaint against the subcontractor, which had installed the exterior doors. The complaint sought indemnity and contribution based on the express terms of the subcontract.

Two insurance carriers, Indiana Lum-bermens Mutual Insurance Company (“ILM”) and Pennsylvania Lumbermens Mutual Insurance Company (“PLM”), provided general liability insurance coverage for the subcontractor. ILM’s coverage terminated on April 30, 2001. PLM’s coverage commenced on June 1, 2001 and continued through at least September, 2004.

The subcontractor tendered its defense to both ILM and PLM. PLM refused to provide a defense. ILM provided a defense under a reservation of rights.

The subcontractor and homeowners mediated their dispute. ILM paid $40,000 in settlement of the claim, contingent upon the subcontractor’s assignment of rights against PLM for failing to fulfill its duty to defend and indemnify. The assignment specifically provided:

2. [The subcontractor] agrees and does hereby assign without recourse, any and all of its rights and interest in coverage for the claims made in the Lawsuit provided under the policies.issued to [the subcontractor] by PLM.
3. In exchange for [the subcontractor’s] assignment of its rights to recovery under the PLM policies for any claims made in the Lawsuit, ILM hereby releases [the subcontractor] from any claims, causes of action or damages which it now has or may have.

ILM then sued PLM for breach of contract, declaratory relief, and equitable/contractual subrogation. It argued that PLM wrongfully denied the subcontractor a defense and indemnification in the underlying litigation. ILM alleged the subcontractor had assigned its rights against PLM.

The coverage dispute centered on when the property damage occurred. Pa. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So.3d 182, 185 (Fla. 4th DCA 2010). Both ILM’s and PLM’s standard policies provided that coverage under each policy applied “only if ... [t]he ‘bodily injury’ or ‘property damage’ occurs during the policy period.” Id.

ILM moved for summary judgment seeking a declaration that: (1) the ILM policy did not cover the subcontractor for the damages; (2) the PLM policy provided coverage; (3) PLM breached its duty to defend the subcontractor; (4) ILM, as as-signee of the subcontractor’s claim, is entitled to reimbursement of its costs of defending; and (5) ILM is entitled to recover its attorney’s fees for prosecuting the declaratory judgment action against PLM. Id.

The trial court entered summary judgment for ILM, awarded $172,482.06 in compensatory damages, and $40,710.74 in prejudgment interest. The trial court reserved jurisdiction to award ILM attorney’s fees. PLM appealed the summary judgment. We affirmed the summary judgment except for the award of defense costs. Id. at 189.

ILM, as assignee of the subcontractor’s claim, moved for an award of its attorney’s fees incurred in the prosecution of the coverage case under section 627.428, Florida Statutes (2010). The trial court denied ILM’s request for fees. From this order, ILM has now appealed.

ILM argues the trial court erred in denying its request for attorney’s fees, pursuant to section 627.428, Florida Statutes (2010). It argues that section 627.428 permits an award of attorney’s fees to an assignee of an insured’s rights under an insurance policy when the insurer denies coverage. PLM responds that ILM is not entitled to recover fees under section 627.428 because: (1) it did not obtain the type of assignment that would permit such an award; (2) fees cannot be awarded for attempting to establish the right to indemnification; and (3) it did not prevail on the “significant issues” in the litigation.

Because the issue involves a question of statutory interpretation, we have de novo review. Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 373 (Fla.2008).

Section,627.428(1), Florida Statutes provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2010). “A trial court should award attorney’s fees to an insured pursuant to section 627.428 when it appears as though the insurer ‘would not have paid the insured the proper amount of the loss without judicial intervention.’ ” Barreto v. United Servs. Auto. Ass’n, 82 So.3d 159, 162 (Fla. 4th DCA 2012) (quoting Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15, 18 (Fla. 5th DCA 2008)).

The fact that an insurer is the party seeking attorney’s fees under section 627.428 does not, by itself, preclude recovery. Cont’l Cas. Co., 974 So.2d at 374 n. 5. The Eleventh Circuit has also held that insurers are not precluded from recovering attorney’s fees under section 627.428 as a matter of law. United Educators Ins. v. Everest Indem. Ins. Co., 372 Fed.Appx 928, 932 (11th Cir.2010). “Despite the express limitations in section 627.428 as to the class of designated entities entitled to recover attorney’s fees, [our supreme court] has previously approved an award of attorney’s fees in situations where policy coverage was obtained through an assignment from an insured.” Cont’l Cas. Co., 974 So.2d at 375. “[A]n assignee of an insurance claim stands to all intents and purposes in the shoes of the insured and logically should be entitled to an attorney’s fee when he sues and recovers on the claim.”' All Ways Reliable Bldg. Maint., Inc. v. Moore, 261 So.2d 131, 132 (Fla.1972).

Here, the trial court erred in denying ILM attorney’s fees under section 627.428. As an assignee of the subcontractor’s claim, ILM fell within the class entitled to recover fees under the statute. To enforce its assigned rights, ILM had to file suit against PLM, and obtain a favorable judgment. This is all that section 627.428 requires.

Reversed and Remanded for further proceedings consistent with this opinion.

TAYLOR and CONNER, JJ., concur.

      . PLM also argues that ILM is not entitled to attorney's fees under section 627.428 because it did not prevail on the significant issues on appeal. However, the "significant issues" test does not apply to an award of attorney’s fees under section 627.428. Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla.1994).


text:
    Charlotte TAYLOR, Appellant, v. CITY OF LAKE WORTH and City Commission of Lake Worth; Gary R. Nikolits, as Property Appraiser of Palm Beach County, Florida; Anne M. Gannon, as Tax Collector of Palm Beach County, Florida; and Lisa Echeverri, as Executive Director of the Florida Department of Revenue; Value Adjustment Board of Palm Beach County; and Palm Beach County, a political subdivision of the State of Florida, Appellees.
    No. 4D11-4209.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Charlotte Taylor, Lake Worth, pro se.
    Christopher Stearns and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees City of Lake Worth and City Commission of Lake Worth.
   PER CURIAM.

Appellant Charlotte Taylor, pro se plaintiff below, appeals a final order dismissing her complaint with prejudice against ap-pellee, the City of Lake Worth. We reverse because the order does not contain an express written finding of willful noncompliance for dismissal pursuant to Florida Rule of Civil Procedure 1.420(b). See Cummings v. Warren Henry Motors, Inc., 648 So.2d 1230, 1232 (Fla. 4th DCA 1995) (stating “a dismissal of an action as a sanction for violating an order of the court is error where the court fails to make an express written finding of a party’s willful or deliberate refusal to obey a court order”) (citing J.E.I. Airlines, Inc. v. Britton, Cassel, Schantz & Schatzman, P.A., 605 So.2d 1009 (Fla. 4th DCA 1992); Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990)); Johnson v. Skarvan, 27 So.3d 178, 179 (Fla. 5th DCA 2010) (reversing dismissal of pro se plaintiffs complaint when order did not contain explicit findings).

Reversed and remanded.

STEVENSON, CIKLIN, JJ., and MORGAN, DAVID C., Associate Judge, concur.


text:
    HECHT CONSULTING CORP., Appellant, v. The MANORS OF INVERRARY XI ASSOCIATION, INC., The Manors of In-verrary XII Association, Inc., and Pointe Management Group, Appellees.
    No. 4D11-3026.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Jerrod M. Paul and David Avellar Neb-lett of Perry & Neblett, P.A., Miami, for appellant.
    James K. Parker of Boyd Richards Parker & Colonnelli, P.L., Miami, for Appel-lees-The Manors of Inverrary XI Assoc., Inc., and The Manors of Inverrary XII Assoc., Inc.
   PER CURIAM.

The appellant/plaintiff below, Hecht Consulting Corporation, appeals a final judgment entered in favor of the defendants after the trial court granted the defendants’ motion for summary judgment on plaintiffs claims against Manors XI and XII for breach of contract and unjust enrichment, and against Pointe Management for civil theft. We agree with the trial court’s interpretation of the contracts and hold that, as a matter of law, the Manors defendants paid plaintiff everything it was owed under the contracts, thus defeating plaintiffs claims for breach of contract and unjust enrichment. Likewise, plaintiffs claim against Pointe Management for civil theft fails because, as a matter of law, Pointe Management could not be liable for the civil theft of funds to which plaintiff was not entitled under the contracts with the Manors defendants. The trial court properly entered judgment in favor of the defendants as to all of plaintiffs claims, and we affirm the final judgment. However, we write to discuss the effect of an interlocutory summary judgment order directing plaintiff to refund to the Manors defendants the portion of plaintiffs fee which, the trial court concluded, was in violation of the 10% cap set forth in rule 69B-220.201(5)(b) of the Florida Administrative Code.

To provide clarity to the parties going forward, we note that the final judgment was silent as to any requirement that plaintiff refund any portion of its fee to the defendants. From the four corners of the final judgment, there is no requirement that plaintiff pay anything to any of the defendants. We therefore hold that the final judgment did not require plaintiff to refund $89,226.92 of its fee to the Manors defendants. To the extent that the interlocutory order granting summary judgment was inconsistent with the final judgment, the interlocutory order did not survive the final judgment. See Skinner v. Skinner, 579 So.2d 358, 359-60 (Fla. 4th DCA 1991) (interlocutory order directing former husband’s payment of former wife’s medical bill did not survive final judgment into which all interlocutory matters merged; the trial court could have reduced the arrearage to judgment in the final judgment, but since the final judgment was silent as to the arrearage, the wife was not entitled to recover it).

In light of our conclusion that the final judgment does not require plaintiff to refund any money to the Manors defendants, we need not address plaintiffs arguments regarding whether rule 69B-220.201(5) can apply to claims arising out of states of emergency declared before September 3, 2006, whether plaintiffs fee of 9% for public adjusting services and 4% for appraisal services actually violated that rule, or whether the trial court improperly awarded relief that was not requested in the defendants’ pleadings.

Affirmed.

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

      . On September 3, 2006, Florida Administrative Code Rule 69B-220.201(5) went into effect. In this case, the insurance claims arose out of a state of emergency declared before the effective date of the rule, but the contracts for public adjusting services and appraisal services were entered into after the effective date of the rule. Our disposition of this case makes it unnecessary to decide whether the rule applies in such a situation.


author: POLEN, J.

text:
    Benito SAN PEDRO and Daisy San Pedro, Appellants, v. The CLARIDGES CONDOMINIUM, INC., a Florida non-profit corporation, and Harold Keeley, an individual, Appellees.
    No. 4D11-3494.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Richard W. Glenn of Law Office of Richard W. Glenn, Palm Beach Gardens, for appellants.
    John S. Penton, Jr., and Anika R. Campbell of Cole, Scott & Kissane, P.A., West Palm Beach, for appellee Harold Keeley.
   POLEN, J.

The plaintiffs filed a multi-count action against two defendants: (1) The Claridges Condominium, Inc. (“the Association”), and (2) the property manager. The plaintiffs alleged that the Association, through its employee, the property manager, improperly placed, installed, and operated an emergency power generator next to the plaintiffs’ unit. The plaintiffs eventually filed a Fourth Amended Complaint against both defendants. Counts II, III, and IV of this complaint respectively alleged causes of action against both defendants for (1) private nuisance, (2) trespass, and (3) negligence. The counts against the property manager allege that “[t]he actions of the ASSOCIATION ... were under the direction of the ASSOCIATION and [the property manager], and the actions of [the property manager] ... were all within the scope of his employment as property manager of the ASSOCIATION.”

The property manager moved the trial court to dismiss the counts against him based squarely on the holding of Greenacre Properties, Inc. v. Rao, 933 So.2d 19 (Fla. 2d DCA 2006). The trial court granted this motion, and the plaintiffs’ subsequent motions for rehearing and leave to amend were denied. On appeal, the plaintiffs argue that Greenacre does not apply to the theories of liability alleged in this case. We agree and reverse.

A trial court’s order granting a motion to dismiss is reviewed de novo. Gomez v. Fradin, 41 So.3d 1068, 1070 (Fla. 4th DCA 2010). “In reviewing an order granting a motion to dismiss, this court’s ‘gaze is limited to the four corners of the complaint.’ ” Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (citing Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008)).

In this case, both in his motion to dismiss and again on appeal, the property manager relies squarely on the holding of Greenacre to support the contention that a property manager cannot be liable for acts committed within the scope of his employment with the Association. The holding in Greenacre, however, was confined to very specific facts which involved a unit-owner/plaintiff suing the property management company on the following theories: (1) “that [the property management company] breached its contract with the ... Homeowners’ Association”; and (2) “that [the property management company] negligently performed its duties under the contract with the Association.... ” Greenacre, 933 So.2d at 21-22. In that case, our sister court held that the unit-owner/plaintiff could not recover against the property management company because:

[A] person who is not a party to a contract cannot sue for a breach of the contract even if the person receives some incidental benefit from the contract^ and]
... nothing in the indirect relationship between an association’s members and the agents performing the association’s duties under a written contract ... would create a fiduciary duty affecting the matters described in the complaint.

Id. at 23, 26 (emphasis added). The theories of liability alleged in this case are not based on breach of contract; therefore, it was an error for the trial court to dismiss the counts against the property manager based on the holding of Greenacre, as the theories of liability alleged in this case are not within Greenacre’s scope.

The four corners of the complaint in this case provide a basis for liability against both the Association and/or the property manager. The complaint, unlike that in Greenacre, does not allege liability based on the contractual relationship between the two defendants. Accordingly, the trial court erred in granting the defendant’s motion to dismiss because the motion was based solely on the holding of Greenacre-, the scope of which, as discussed above, does not apply to the theories of liability alleged in this case. Based on the foregoing, the order dismissing the counts against the property manager is reversed, and the cause remanded for further proceedings.

Reversed and Remanded.

STEVENSON and CONNER, JJ., concur.