text:
    David M. PRICE, Appellant, v. Jennifer P. PRICE, Appellee.
    No. 5D12-32.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Rehearing Denied May 22, 2013.

      William S. Graessle of William S. Graes-sle, P.A., Jacksonville, and Carol A. Caldwell, St. Augustine, for Appellant.
    Catherine G. Swain of Catherine G. Swain, P.A., Daytona Beach, for Appellee.
   PER CURIAM.

David M. Price (“Former Husband”) appeals from the trial court’s order approving and incorporating the general magistrate’s report of findings and recommendations, which denied his supplemental petition to terminate child support to Jennifer P. Price (“Former Wife”). On appeal, he argues the general magistrate erred in interpreting the parties’ marital settlement agreement, which conditioned Former Husband’s continued child support obligation on the parties’ son’s full-time college attendance.

We find no competent substantial evidence to support the lower court’s finding that the parties’ son attended college on a full-time basis during the fall 2008 semester. Accordingly, Former Wife shall reimburse Former Husband for the child support paid during that time frame. We affirm in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

LAWSON and COHEN, JJ., and MENDOZA, C.E., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FUTRELL CUSTOM POOLS, INC., Appellant, v. SUNSHINE CUSTOM BUILDERS, INC., et al., Appellees.
    Nos. 5D12-2730, 5D12-3346.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Rehearing Denied May 21, 2013.
    Christopher M. Sprysenski and Dominick J. Salfi, of Salfi & Sprysenski, Alta-monte Springs, for Appellant.
    Jeffry R. Jontz and Eric B. Jontz, of Swann, Hadley, Stump, Dietrich & Spears, P.A., Winter Park, for Appellee Hancock Bank.
    No Appearance for Appellee, Sunshine Custom Builders, Inc.
   PER CURIAM.

In these consolidated mortgage foreclosure cases, Futrell Custom Pools, Inc. appeals non-final orders that vacated in part final judgments of foreclosure pursuant to Cone Brothers Construction Co. v. Moore, 193 So. 288 (Fla.1940). Concluding that Cone Brothers is still good law, we reject Futrell’s arguments. See Citimortgage, Inc. v. Henry, 24 So.3d 641 (Fla. 2d DCA 2009).

AFFIRMED.

SAWAYA, PALMER and EVANDER, JJ., concur.


author: WARNER, J.

text:
    Chalunda BOSTON, as Personal Representative of the ESTATE OF Keith L. JACKSON, Sr., Appellant, v. PUBLIX SUPER MARKETS, INC., and Edgar Javier Ramos, Appellees.
    No. 4D11-1521.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

      Bard D. Rockenbach of Burlington and Rockenbach, P.A., West Palm Beach, and Paul M. Adams of Young & Adams, Boca Raton, for appellant.
    Katherine E. Giddings, Thomas A. Range and Kristen M. Fiore of Akerman Senterfitt, Tallahassee, and Gerald B. Cope, Jr. of Akerman Senterfitt, Miami, for appellees.
   WARNER, J.

Appellant, Chalunda Boston (“Boston”), as personal representative of the estate of Keith L. Jackson, Sr. (“the decedent”), appeals the trial court’s final summary judgment in favor of appellee, Publix Super Markets, Inc., and Edgar Javier Ramos, Publix’s employee, finding that both Publix and Ramos were covered by worker’s compensation immunity for the death of Jackson, a Publix employee. We agree that Publix, the employer, is entitled to immunity under section 440.11 because the employer’s conduct was not virtually certain to produce injury or death, thus failing to meet the statutory exception to immunity. We reverse, however, as to the employee, Ramos, as material issues of fact remain as to whether Ramos was grossly negligent and thus cannot assert statutory immunity.

Appellee Ramos was employed by appel-lee Publix as a spotter driver in the Deer-field Distribution Center. His job was to use Ottawa tractors to move trailers to loading bays to load and unload merchandise at the center. On the morning of the accident, Ramos, operating the Ottawa 934 tractor, was called to a loading dock. The decedent was next to him in a different Ottawa tractor and was called to the same dock. Ramos drove toward the loading dock, backed up the Ottawa 934 into position, and exited the tractor. The decedent also approached the area in his tractor, parked in the neighboring loading dock, and got out of the tractor. Ramos thought the decedent was going to talk to another driver nearby. Ramos went back into the tractor after hooking up to the trailer, looked in his mirrors, and released the air brakes. He backed the trailer flush with the warehouse door, felt a “bump against what [he] thought were the dock pads,” and set his brakes. Another driver began yelling at Ramos to pull forward, because the decedent had been crushed between the rear of the trailer and the warehouse dock pad. The decedent had apparently walked behind the trailer, of which Ramos had no knowledge. The decedent was pinned behind the trailer for two to three minutes, according to another witness, who also stated that with such trailers, the driver would have no way of seeing what was happening directly behind his trailer. The decedent died shortly after the incident.

Although the Ottawa tractors are equipped with backup alarms, an inspection after the incident revealed that the backup alarm on the Ottawa 934 was not working. Ramos testified that he knew the backup alarm was inoperable and had not been working for months. He did not report it to Publix maintenance, nor did he fill out inspection reports designed to call attention to any maintenance problems. Publix’s policy for safety inspections and maintenance would have required that the Ottawa 934 be taken out of service to repair the backup alarm, but the Ottawa 934 was overdue for safety inspections. Nevertheless, it had been in for other maintenance, and the maintenance staff should have checked the backup alarm and taken the tractor out of service to repair it.

No prior accidents had occurred at the distribution center involving Ottawa tractors, with or without a failed backup alarm, in which an employee was pinned between the back of the trailer and the loading dock or where a tractor-trailer backed into an employee. Publix knew of three prior accidents at the distribution center, but none involved a tractor, and none occurred in backing up a vehicle.

Following this incident, Publix was cited by OSHA for having an inoperative backup alarm on the Ottawa 934. The OSHA report stated that Publix “did not furnish to each of [its] employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees.... ”

Boston filed suit against Publix and Ramos for the death of Jackson. In her complaint, Boston alleged that Publix had committed an intentional tort and that Ramos was grossly negligent in the accident. In their answers and affirmative defenses, both Publix and Ramos claimed that they were entitled to worker’s compensation immunity, as worker’s compensation benefits constituted the plaintiffs exclusive remedy. After extensive discovery, both defendants filed motions for summary judgment. Publix argued that Boston could not “establish the extremely high burden required to overcome the workers’ compensation immunity afforded Publix under the 2003 amendments to Section 440.11.” The parties filed extensive affidavits and depositions in support and opposition to the motion. The court granted summary judgment in favor of both defendants, concluding:

After reviewing the facts and circumstances of the instant case, the Court finds that even taking the facts in the light most favorable to Plaintiff, the evidence fails to establish that Publix engaged in conduct that Publix knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the decedent. The Court further concludes that there was no concealment of the risks involved, and the danger should have been obvious to the decedent. Thus, this tragic accident is just that, an act of simple negligence. There are no factual issues to disturb the legislative protection afforded employers under Chapter 440 and both Publix and Ramos are protected by the immunity provision of Chapter 440.

From this judgment, Boston appeals. We review de novo this final summary judgment which finds worker’s compensation immunity. Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (citing Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)).

The worker’s compensation statutes provide a strict liability system of compensation for injured workers in which the worker receives the guarantee of rapid compensation for work related injuries but in return is precluded from bringing a common-law negligence action. The employer is provided immunity from common law negligence suits by the employee. See Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000). Section 440.11, Florida Statutes, provides the limitations on immunity for employers:

The liability of an employer ... shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee ... except ... [w]hen an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that ... [t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

§ 440.11(l)(b)2., Fla. Stat. In two recent cases we have extensively discussed the immunity afforded by this statute. See Gorham v. Zachry Indus., 105 So.3d 629 (Fla. 4th DCA 2013), and List Indus. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013). We noted in both cases that the statute adopts a “virtual certainty” standard for an exception to immunity, requiring that the employer’s conduct be virtually certain to result in injury or death in order to overcome immunity. Gorham, 105 So.3d at 632-34; List, 107 So.3d at 471. This is “a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time.” Id. In Gorham, we noted that our supreme court has explained that the statute provides an exceptionally narrow exclusion from immunity, requiring intentional, deceitful conduct on the part of the employer. 105 So.3d at 633-34 (citing Travelers Indem. Co. v. PCR Inc., 889 So.2d 779 (Fla.2004)).

We also noted in List that these cases are particularly suitable for determination on summary judgment given the extraordinarily high standard to overcome statutory immunity:

The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and coworkers. The goal of this policy is to avoid lawsuits at the outset, not simply to prevent adverse verdicts against employers and coworkers at the end of lengthy litigation. If the trial courts are to foster these legislative policies, they must serve as gatekeepers at the initial stages of litigation.

107 So.3d at 473-74 (quoting Fleetwood Homes of Fla., Inc. v. Reeves, 833 So.2d 857, 864-65 (Fla. 2d DCA 2002), rev’d on other grounds, 889 So.2d 812 (Fla.2004) (emphasis added in List)).

Based upon these authorities, the summary judgment in favor of Publix must be affirmed. In order to overcome the immunity, three elements must be proved:

1. the employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee; and
2. the employee was not aware of the risk because the danger was not apparent; and
3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

Gorham, 105 So.3d at 632-33. Failure to prove any one of them will prevent the exception from applying. See id. at 633.

In this case, the evidence fails to support any of the elements, although we need to address only the first element. First, there is no evidence that prior similar accidents occurred. The accidents described-by Boston as being.similar were in fact not similar to the accident here. The accidents did not concern the same danger — that is, the non-functional backup alarm, which caused the harm in this case — or even a similar danger. Second, lack of a backup alarm does not with virtual certainty result in injury. While it may make injury more likely, the statute demands far more. As we noted in List, it means that “a given danger will result in an accident every — or almost every— time.” 107 So.3d at 471. The evidence here shows that the backup alarm on tractor 934 had not operated for some period of time.

We specifically reject Boston’s contention that the virtual certainty standard is met, because it may be certain that at some time an accident will occur as a result of the lack of a backup alarm. We adopt Judge Altenbernd’s analysis of this argument in Fleetwood:

[A]ny modestly dangerous activity at a workplace that is repeated often enough or long enough will eventually result in an accident. Although the concept of “gross negligence” examines the combination of circumstances to evaluate the relevant risk, it does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high. The tortfeasor’s conduct must be evaluated in the context of the particular occurrence. In this case, if anything, the numerous successful performances of the challenged procedure show that a risk of an accident on April 1, 1991, was far from imminent. This is not a case in which the employer continued to use the procedure after earlier mishaps or after it received warnings from other governmental or nongovernmental entities.

833 So.2d at 868 (emphasis added).

The court correctly entered summary final judgment on behalf of Publix. Publix was entitled to statutory immunity for the accident.

The standard for immunity is different for the employee, Ramos. Section 440.11(1), Florida Statutes, provides:

The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when the employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, until respect to a fellow employee, with willful and wanton disregard or ... with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death....

(emphasis added). The statute does not adopt the same virtual certainty standard for injury as applies to the employer directly.

The parties do not contest that Ramos was acting in furtherance of Publix’s business when the decedent was killed. The only issue was whether Ramos acted with gross negligence, causing the decedent’s death.

“Gross negligence ... is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another.” Eller v. Shova, 630 So.2d 537, 541 n. 3 (Fla.1993) (citing Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970)). In contrast, “ ‘simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons. ...”’ Carraway v. Revell, 116 So.2d 16, 22 (Fla.1959) (quoting Bridges v. Speer, 79 So.2d 679, 682 (Fla.1955)).

In Hoyt v. Corbett, 559 So.2d 98 (Fla. 4th DCA 1990), this Court addressed gross negligence in the context of worker’s compensation immunity. There, the decedent’s estate was awarded a verdict after the appellant, the employee, electrocuted the decedent at the workplace. This Court explained, quoting Glaab, 236 So.2d at 183-84, that:

[A] finding of gross negligence requires the following:
[FJirst of all, gross negligence presupposes the existence of a “composite” of circumstances which, together, constitute an “imminent” or “clear and present” danger amounting to more than normal and usual ... peril....
Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of.
And thirdly, the act or omission complained of must occur in a manner which evinces a “conscious disregard of consequences,” as distinguished from a “careless” disregard thereof (as in simple negligence) or from the more extreme “willful or wanton” disregard thereof (as in culpable or criminal negligence).

Hoyt, 559 So.2d at 100.

The circumstances in this case raise a material issue of fact as to whether Ramos acted with gross negligence as defined in Glaab and Hoyt. Viewing the evidence in the light most favorable to the plaintiff, Ramos knew that the backup alarm was not functioning; knew that it had been non-functional for several months; knew that Ottawa tractor drivers could not see the area directly behind the tractor; and, prior to crushing Jackson to death, knew that at least one other worker was in the area of the loading dock. Taking the plaintiffs allegations as true, Ramos did not tell the Publix maintenance department about the broken alarm and frequently failed to complete Ottawa tractor safety reports, which would tend to show a conscious disregard of the consequences. Finally, taking all possible inferences in the light most favorable to the plaintiff, Ramos regularly disregarded the known risks by operating the tractor in reverse without the backup alarm and frequently ignored vitally important safety rules without regard to the potentially fatal consequences.

As this court has recently noted, “ ‘[sjummary judgment may not be used as a substitute for trial. If the affidavits and other evidence raise any doubt as to any issue of material fact then a summary judgment may not be entered.’ ” E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, 59 So.3d 347, 350-51 (Fla. 4th DCA 2011) (quoting Cummins v. Allstate Indem. Co., 732 So.2d 380, 382-83 (Fla. 4th DCA 1999)); see also 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 [or her] decision to be influenced by the chance of success which he [or she] considers either party,may have on the trial.”). Here, the evidence raises material issues of fact on the claim of gross negligence of the Publix employee.

For the foregoing reasons we affirm the final judgment in favor of Publix based upon worker’s compensation immunity, but we reverse the summary judgment in favor of Ramos and remand for further proceedings on the claim of gross negligence.

Affirmed in part; reversed in part.

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

      . We note that the order on summary judgment never addresses gross negligence, but the court still entered a summary final judgment in favor of Ramos.


text:
    Kelly Anne LASSONDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-289.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

During the trial of appellant for third-degree grand theft, the court permitted a part-time store clerk to testify regarding how a store receipt showing the value of the goods stolen was generated. The defendant objected based upon the clerk’s lack of personal knowledge, but the trial court admitted the receipt as a business record. Because the clerk was not qualified to testify concerning the receipt, the court erred in admitting the receipt as a business record. We reverse.

Lassonde was arrested and later charged for stealing $384.82 worth of merchandise from a Publix Supermarket, in violation of section 812.014, Florida Statutes (2010). At trial, the state called three Publix employees as witnesses. The first two employees were inventory specialists who observed Lassonde in the store pushing her cart and engaging in suspicious conduct.

The third Publix employee witness was a part-time customer service clerk. He tes-tiffed that he encountered and spoke to Lassonde several times on the evening of the alleged theft. Eventually, the customer service clerk witnessed Lassonde walk out of the store with the bagged merchandise and head out into the parking lot towards the road. The manager on duty at the time then went out and intercepted Lassonde and the cart.

The prosecutor presented the clerk with a receipt and asked the clerk to identify it. Over the objection that the clerk lacked knowledge both as to the generation of that particular receipt as well as the business practices of Publix, the clerk was allowed to testify that when a theft occurs, the stolen goods are re-rung on a closed register. This generates a normal sales receipt. Each employee who is operating a register has a number which is recorded on the receipt, so the clerk was able to identify the number of the employee on the receipt as being a person named Travis, not himself. The receipt indicates that it was generated around the time Las-sonde was in the store. The testifying clerk did not himself scan the items taken from Lassonde’s cart, and he did not testify that he observed the items being scanned. The court nevertheless admitted the store receipt as a business record. That receipt provided the evidence of the value of the goods taken by Lassonde.

In her defense, Lassonde testified that she was on medication and did not remember going to the Publix. When she realized that she was in the store with groceries but no means to pay for them, she tried to call her boyfriend to bring her some money. She could not reach him on a cell phone, so she went looking for a pay phone. While she was doing this, she was stopped by the manager. She claimed that she did not leave the store with the groceries.

The jury found Lassonde guilty of theft, and the court convicted her and sentenced her to thirty days in jail followed by two years of probation and ordered her to pay $18.35 in restitution to Publix. She appeals.

Lassonde claims on appeal that the trial court erred in overruling her objection to the admission of the receipt as a business record through the testimony of the part-time customer sendee clerk. “The standard of review for admissibility of evidence is abuse of discretion. However, a trial court’s discretion is limited by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) (citation omitted).

Section 90.803(6)(a), Florida Statutes (2011), provides that the following business records are admissible regardless of the availability of the person who created the record:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

Accordingly, “[t]o secure admissibility under this exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Yisrael v. State, 993 So.2d 952, 956 (Fla.2008). Additionally, the proponent is required to present this information in one of three formats: having a records custodian testify to the predicate requirements; by stipulation of the parties to the admissibility of the document as a business record; or, by a statutory certification that complies with sections 90.803(6)(e) and 90.902(11), Florida Statutes (2011). Id.

The customer service clerk’s testimony does not meet the requirements of Yisrael. While the clerk was able to testify as to how the store re-rings merchandise stolen from the store, this was not his duty nor within his responsibilities. He did not operate the register on that date and did not observe that this receipt was a record of the merchandise in Lassonde’s cart. He also stated that it was a receipt like any other sales receipt. While he could identify the employee who generated the receipt, he could not and did not testify as to whether this was a receipt of the merchandise in Lassonde’s cart.

“In order to prove a fact of evidence of usual business practices, it must first be established that the witness is either in charge of the activity constituting the usual business practice or is well enough acquainted with the activity to give the testimony.” Alexander v. Allstate Ins. Co., 388 So.2d 592, 593 (Fla. 5th DCA 1980); see also Cooper v. State, 45 So.3d 490, 492-493 (Fla. 4th DCA 2010). In Alexander, the court found that an Allstate insurance adjuster who testified that he was familiar with Allstate’s procedures and how sales agents send out policies was not qualified to testify as to the business practices of the sales agents to prove delivery of an insurance policy. Relying on Alexander, the court in Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So.2d 1121, 1121-22 (Fla. 2d DCA 1988), held that a general manager of a product division was not qualified to introduce a computerized billing statement sent to its customers. The manager was not the custodian of the statement; was not in charge of the business activity (billing) to which he was testifying; did not prepare the billing statements; and was not familiar with any transaction on any particular billing statement. In contrast, in Cooper, a general manager of a Verizon store who was trained in all matters with respect to the methods of cell phone transmission and accounts maintained by Verizon, including how cell phone transmissions were tracked on Verizon records, was allowed to testify as a qualified person to admit Verizon’s records of defendant’s cell phone. 45 So.3d at 493.

We glean from these cases that a qualified person to introduce business records, other than the records custodian, must be a person who, by the very nature of that person’s job responsibilities and training, knows and understands the business records sought to be introduced.

Here, the court allowed a part-time customer service clerk who had no responsibilities regarding the business practices of Publix to become the qualified witness to introduce the receipt as a business record. We conclude that the court erred in admitting the receipt through this witness. Not only was he not qualified, but he had no personal knowledge that this was the receipt for the goods in Lassonde’s cart.

We recognize that the state was in a difficult position, because the manager of the store did not appear to testify, and the state undoubtedly intended to use him to identify the receipt and testify as to how it was created. The manager had apprehended Lassonde, and we assume was the one to direct the creation of the receipt. Nevertheless, the rules of evidence must be observed.

We thus reverse the conviction and sentence and remand for a new trial.

GERBER and LEVINE, JJ., concur.

      . The manager did not show up to trial to testify and was held in contempt of court.


author: STONE, BARRY J., Senior Judge.

text:
    NATIONAL CITY BANK successor by merger to Harbor Federal Savings Bank, Appellant, v. Ronetta J. WHITE, a/k/a Ronetta J. Johnson, et al., Appellees.
    No. 4D12-469.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

      Michelle N. Shupe-Abbas of Weltman, Weinberg & Reis Co., L.P.A., Fort Laud-erdale, for appellant.
    John D. Cassels of Law Office of Cassels & McCall, Okeechobee, for appellee Okeechobee County.
   STONE, BARRY J., Senior Judge.

Appellant/plaintiff, National City Bank (the “Bank”), appeals a sanction order dismissing this foreclosure action with prejudice. As there was a default taken against the homeowner, the only active respondent on appeal is Okeechobee County, a judgment lienor. The dismissal order was entered following a series of unsuccessful attempts by the Bank’s new attorneys to obtain an order allowing a substitution of trial counsel, each of which the trial court found insufficient. We reverse.

The foreclosure complaint was filed in 2007 by David J. Stern, P.A. (DJS). At one point in 2008, the suit was voluntarily dismissed, but it was later reinstated. In March 2010, DJS filed a motion for summary judgment and in July 2010 filed an amended motion for summary judgment.

Then in .March 2011, a Joint Stipulation for Substitution of Counsel signed by DJS and attorneys, Weltman, Weinberg & Reis Co., L.P.A. (WWR) was sent to the Court. Stern’s signature on the Joint Stipulation appears to be a copy. A copy of a letter of consent from the Bank was attached to the Joint Stipulation. The letter of consent, addressed to DJS from PNC Mortgage (the Bank’s named predecessor in the action), was signed by Donna Burge, Senior Vice President, advising that DJS was terminated as counsel for the Bank and instructed that he transfer his files to WWR. A proposed order was not signed by the Court.

Subsequently, on July 22, 2011, another Stipulation for Substitution of Counsel, signed in ink by attorneys for both offices was submitted. It enclosed a document entitled Checklist for Attestation Verification, with the PNC logo, on which was checked a statement that the document verified was the Substitution of Counsel. The document contained the correct loan number and was signed by Jason Holstein without any identification of his title. Also attached was a letter to the trial judge stating that DJS had been terminated as counsel for the Bank and WWR had been retained. It was signed “Jason Holstein Authorized Representative of PNC”; his title was “Authorized Signer.” Another proposed order was enclosed but the court, again, did not sign it.

In December 2011, the trial court entered an Order to Show Cause outlining numerous mistakes and delays that had occurred to that point, including those involving a jurisdiction issue, the untimely filing of affidavits, improper notices, all resulting in entry of the following Order to Show Cause why the suit should not be dismissed for wasting the court’s time and resources:

THIS CASE came before the court on August 5, 2010 on a motion for summary judgment filed by the plaintiff. On June 2, 2008 the plaintiff filed a notice of voluntary dismissal. On September 3, 2008 the plaintiff filed a motion to vacate the dismissal and to reinstate case. No evidence or affidavit was presented to establish a factual basis to vacate the dismissal. Further, it is unclear whether legally it could be vacated. In any event, a predecessor judge granted the motion by order dated September 3, 2008. On March 24, 2010, a year and one half later, the plaintiff filed a notice of hearing setting their motion for summary judgment for April 1, 2010. The notice fails to comply with the requirements of Florida Rule of Judicial Procedure 2.540.
On April 1, 2010 counsel for the plaintiff and for Okeechobee County appeared for the hearing. The plaintiff filed their affidavits less than twenty days prior to the hearing in violation of Florida Rule of Civil Procedure 1.510. As a result, the plaintiff was given the option of denial or resetting the motion. The plaintiff opted to reset the hearing.
On July 26, 2010 the plaintiff filed a notice of hearing scheduling the motion for summary judgment a second time for August 5, 2010. Once again the notice of hearing failed to contain the required verbiage required by Rule 2.540. On August 5, 2010 the case was called. Counsel for the county appeared again. The bank asked to strike the hearing. Counsel for the bank did not have the necessary affidavit, and this time the amended summary judgment itself was served less than twenty days prior to the hearing. Once again court time was unnecessarily wasted. As a result, it is hereby
ORDERED that the plaintiff must show cause in writing within twenty days why this action should not be dismissed for confiscatory wasted use of the court’s precious and limited resource — time. Failure to respond will result in an order of dismissal without further notice.

Copies of the order were sent to WWR and to DJS. A footnote to WWR’s name and address stated:

New counsel for the plaintiff filed a joint stipulation for substitution of counsel on March 7, 2011. It was not acted on. It was filed in violation of Florida Rule of Judicial Administration 2.515(c)(2) in that the only signature that appears for attorney David Stern appears to be some sort of electronic transfer. Further, attached to the motion was a multi-generation photocopy of a nonspecific consent of client. New counsel filed another stipulation for substitution on July 22, 2011. This one was not acted on either. Attached to that motion is a photocopy of a letter signed by someone who purports to be an “authorized representative” for the plaintiff whose title is “authorized signer.” It is unclear what that means or the authority that person holds with the bank. This office has received a significant number of these stipulations in a variety of cases from this fern that remain unacted on. The court recently returned a number of them to this firm.

Exactly twenty days later on January 10, 2012, the Order of Dismissal was entered by the trial court.

On January 12, 2012, another Stipulation for Substitution of Counsel was filed which was dated October 13, 2011, and apparently properly signed. The certificate of service said it was mailed to the court on November 28, 2011, which was before the Order to'Show Cause was entered. Attached to it was a proposed order on which the trial court crossed through the signature line and wrote on January 11, 2012 (before it was docketed) that it was denied and “No idea what an authorized signer is.”

We are mindful of the frustration that the trial court has experienced over the delay in this matter and concern for the efficient administration of the court. Nevertheless, we conclude that it was error to fail to grant the substitution of counsel and to dismiss the action.

Florida Rule of Judicial Administration 2.505 (2011) provides in pertinent part:

(e) Appearance of Attorney. An attorney may appear in a proceeding in any of the following ways:
(2) By substitution of counsel, but only by order of court and with written consent of client filed with the court. The court may condition substitution upon ... terms as may be just....
(f) Termination of appearance of Attorney. The appearance of an attorney for a party in a proceeding shall terminate only in one of the following ways:
(2) Substitution of Attorney. By order of court, under the procedure set forth in subdivision (e)(2) of this rule....

Further, Rule 2.515(c) provides

(c) Form of Signature
(1) The signatures required on pleadings and papers by subdivisions (a) and (b) of this rule may be:
(A) original signatures;
(B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents; or
(C) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and papers with that signature format.
(2) An attorney, party, or other person who files a pleading or paper by electronic transmission that does not contain the original signature of that attorney, party, or other person shall file that identical pleading or paper in paper form containing an original signature of that attorney, party, or other person (hereinafter called the follow-up filing) immediately thereafter. The follow-up filing is not required if the Supreme Court of Florida has entered an order directing the clerk of court to discontinue accepting the follow-up filing.

A review of the stipulations filed indicate that the first one has what appears to actually be a photocopied signature of David J. Stern, which the trial court refers to as an electronic transfer under rule 2.515(c)(2), and a violation of that rule. The consent letter required by rule 2.505(e)(2) was a general letter from a senior vice president of PNC Mortgage which notifies DJS to send all its files on PNC’s cases to WWR because DJS’s services had been terminated. The court found the consent non-specific, probably because it did not have the specific mortgage number on it. Based upon these omissions, it does not appear that the trial court abused its discretion in refusing to sign the order on the first stipulation.

The second stipulation had original signatures of both attorneys. The problem the court had with the second stipulation was that the consent letter was signed by an “authorized representative” whose title was “authorized signer” and the trial court felt that it was “unclear what that means or the authority that person holds with the bank.”

There is no indication in rule 2.505(e)(2) that anything is required from the client other than a written consent. The trial court’s division procedure provides that the “signed consent of the client must be obtained and filed with the court, or a hearing must be held with notice to the client.” Here, WWR obtained a signed consent. The record is clear that the client was ridding itself of former counsel and had retained the new counsel which was necessary to move the case forward.

We conclude that it was also error to dismiss the action because of prior counsel’s mistakes in seeking summary judgment which the court concluded were a waste of the court’s time.

In Carr v. Dean Steel Buildings, Inc., 619 So.2d 392 (Fla. 1st DGA 1993), the court held:

Florida Rule of Civil Procedure 1.420(b) provides for involuntary dismissal for failure to comply with any rule or order of the court. The decision to impose the harsh sanction of dismissal of an action is a matter of trial court discretion.
Nevertheless, dismissal is a drastic remedy which should be used only in extreme situations. Generally, courts have been reluctant to uphold a dismissal where there has been no finding of willful non-compliance or bad faith. An express written finding of willful disregard of an order of the court is essential to justify the severe sanction of dismissal.

Id. at 394 (citations omitted). Since that decision, the supreme court has held:

This Court is vitally concerned with the swift administration of justice at both the trial and appellate levels. In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements. However, a fine, public reprimand, or contempt order may often be the appropriate sanction to impose on an attorney in those situations where the attorney, and not the client, is responsible for the error. To assist the trial court in determining whether dismissal with prejudice is warranted, we have adopted the following set of factors set forth in large part by Judge Altenbernd: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (footnote omitted).

In this case, the trial court dismissed this case for the Bank’s confiscatory wasting of the trial court’s time. Although the factors set forth above which apply to counsel may have been met as to DJS in this case, it does not appear that the client was personally involved in any act of disobedience or that there was any real prejudice to Okeechobee County for the delay. Delay after the second summary judgment hearing was primarily due to the trial court’s rejection of the stipulations for substitution of counsel. Because the trial court did not grant any of the three attempts by WWR to be substituted, the Bank was without counsel. Hub Fin. Corp. v. Olmetti, 465 So.2d 618, 619 (Fla. 4th DCA 1985).

Here, there is no contention that the client or its new counsel was involved in any wrongdoing or act of disobedience. Further, no prejudice to Okeechobee County appears in the record. The delay after the second summary judgment motion was, at least in part, a result of the delay in accepting the Stipulation for Substitution. The Bank had no way to represent itself until new counsel was accepted. Most essentially, however, the trial court failed to consider the Kozel factors in deciding to dismiss the case with prejudice. Clearly, there was no finding here of a deliberate disregard of court directives by either counsel or client and there is an insufficient record to support a sanction against the client of dismissal with prejudice.

Therefore, we reverse the Order of Dismissal and remand for further proceedings.

GROSS and DAMOORGIAN, JJ., concur.

      . This Rule is entitled “Requests for Accommodations by Persons with Disabilities.” Apparently the notices of hearing did not have the notice about providing accommodations for persons with disabilities.

      . The same date the Bank (plaintiff) filed its amended motion for summary judgment.


text:
    William E. McCOLMAN and Caridad McColman, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee In Trust for the Benefit of the Certificateholders for Asset-Backed Pass-Through Certificates, Series 2003-AR3, JPMorgan Chase Bank, N.A., Bank United Successor by Merger to BankUnited, FSB; Cypress Creek Property Owners Association, Inc., and Unknown Person(s) in Possession of the Subject Property, Appellees.
    No. 4D12-2188.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

      Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellants.
    H. Michael Muniz of Kahane & Associates, P.A., Plantation, for appellee Deutsche Bank National Trust Company.
   STONE, BARRY J., Senior Judge.

Defendants (McColmans) appeal a summary final judgment and an order denying rehearing in a mortgage foreclosure. We affirm.

The action was filed in mid-2009. The McColmans filed a motion to dismiss which was denied on May 9, 2011, the court giving the McColmans twenty days to answer. No answer or other paper was served or filed by the McColmans after the May 9 order. In July of 2011, the plaintiff (Bank) moved the court to enter a judicial default, based on the McColmans’ failure to comply with the May 9 order. Seven months later, the Bank also moved for a clerk’s default. The clerk filed a Notice of Default Not Entered, apparently based on the McColmans’ prior filing of the motion to dismiss.

On December 8, 2011, the Bank moved for summary final judgment, and noticed the motion for hearing. The notice was accompanied by a copy of the motion and the affidavits in support. There was also a Notice of Filing of the original note and mortgage. Neither the McColmans nor their counsel appeared for the hearing, and Summary Final Judgment was entered on February 29, 2012, nine months after the answer was due. There is no explanation in the record why the court failed to enter a default. The summary judgment hearing is not transcribed.

By a motion for rehearing, the McCol-mans asserted that the Bank failed to disprove all possible defenses and that there were issues of fact precluding entry of a summary judgment. In the motion, the McColmans noted numerous possible defenses that might have been raised by them had they elected to plead, or even file an affidavit, and which are not dispelled on the face of the complaint or the affidavits and documents filed by the Bank. Those potential defenses include whether they received a notice of acceleration called for in the mortgage, whether the Bank had standing to bring the suit, the unsupported possibility of fraud by counsel or the Bank in the course of this action, inconsistency in that the complaint contained a lost note count which was not dropped, and inaccuracy of the amount claimed to be due.

The McColmans assert that because a default had not been entered prior to the summary judgment hearing, the judgment could not have been properly entered because the Bank bore, and did not meet, the “unusually heavy” burden to disprove that there might be genuine issues of fact as to any possible defenses that could have been raised in an answer. They also assert that a review of the earlier filed motion to dismiss, which was rejected, would have alerted the trial court to some of their possible defenses. We are, however, aware of no principle of law or rule that requires a trial court at a summary judgment hearing to search the record in order to consider the substantive content of a previously denied motion to dismiss so as to determine whether it asserts matters that might have been raised in an answer had one been filed.

The McColmans rely on established law, clearly recognized by this Court, imposing a heavier burden on plaintiffs moving for summary judgment prior to an answer being served where no default has been entered. In such circumstance, the plaintiff must go a step further, and conclusively demonstrate that there is no genuine issue of material fact. See, e.g., Woodrum v. Wells Fargo Mortg. Bank, N.A., 73 So.3d 873 (Fla. 4th DCA 2011); Dominico v. Wells Fargo Bank N.A., 102 So.3d 696 (Fla. 4th DCA 2012). Such law is well stated in Dominico where we reversed a summary judgment because the plaintiff failed to establish that “no answer which the defendant might file could present a genuine issue of material fact” as to plaintiff providing pre-suit notice. Id. at 698. There, we recognized that “[a] plaintiff who moves for summary judgment before a defendant files an answer has a ‘difficult burden.’ Id. (citing Goncharuk v. HSBC Mortg. Servs., Inc., 62 So.3d 680, 681-82 (Fla. 2d DCA 2011)).” In other words, as stated in Goncharuk, “The plaintiff must essentially anticipate the content of defendant’s answer.... ” Goncharuk, 62 So.3d at 682. However, this Court has also recognized that “[although the burden is steep, it is not insurmountable.” Miles v. Robinson ex rel. Estate of Right, 803 So.2d 864, 865 (Fla. 4th DCA 2002). Where, for example, the defendant failed to answer hundreds of requests for admission, did not object to the requests or seek leave to file an untimely response, and failed to inject his version of the events into the record by answering and filing interrogatories or by swearing to an affidavit, a trial court does not err in granting summary judgment for the plaintiff. Id.

Dominico and Woodrum are factually distinguishable from the circumstances in this case, as are the other authorities relied on by the McColmans. In Dominico, the plaintiff failed to seek a default and the defendant, notwithstanding his failure to file an answer, actually filed his own motion for summary judgment affirmatively asserting that the plaintiff had failed to comply with the condition precedent of giving pre-suit notice and also filed a document signifying opposition to the plaintiffs motion. Similarly, in Woodrum, the plaintiff failed to seek a default and the defendant filed an affidavit in opposition to the motion for summary judgment raising affirmative defenses. There, we recognized that the rules allow a party to defend at any time before a default is entered and allow the court to consider affidavits when determining whether an issue of material fact exists. Woodrum, 73 So.3d at 874; Fla. R. Civ. P. 1.500(c). We have never held, however, nor should we, that where an answer has not been filed and no default entered, a defendant who has had ample time and opportunity to inject their version of the facts into the record but refuses to do so may, simply by raising the possibility of defenses in a motion for rehearing, avoid the consequences of the failure to act. The McColmans did not comply with the court’s order to file an answer, and have never sought leave to file an untimely answer.

The McColmans also raise an issue of due process concerning an irregularity in service of the Bank’s motion for summary judgment and the notice of hearing on that motion as well as of service issues earlier in the case. They claim, for the first time in their reply brief, that pleadings were not served on the suite number reflected on the McColmans’ attorney’s notice of appearance. However, the record reflects that in subsequent filings, the McColmans’ attorney used a different suite number, and this was the one relied on by the Bank for service. Additional arguments asserted in the McColmans’ brief and reply brief were not preserved and are not addressed. See Freeman v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1205 (Fla. 4th DCA 2010) (argument that affidavit was inadmissible hearsay was not preserved where it was raised for the first time on appeal); Pensacola Beach Pier, Inc. v. King, 66 So.3d 321, 326 (Fla. 1st DCA 2011) (argument not raised in response to motion for summary judgment or in motion for rehearing was not preserved for appeal). Therefore, summary judgment is affirmed.

WARNER and GROSS, JJ., concur.


author: LOGUE, J.

text:
    Eddy RODRIGUEZ, Appellant, v. Mayra REYES, Appellee.
    No. 3D12-1975.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Schweitzer-Ramras & Diaz, P.A., and Daniel H. Kent, for appellant.

      Kenneth M. Kaplan, for appellee.
    Before SUAREZ, FERNANDEZ and LOGUE, JJ.
   LOGUE, J.

A general magistrate issued a report recommending that Eddy Rodriguez (“the Father”) receive a reduction in his child support obligations. On reviewing exceptions to the general magistrate’s report filed by Mayra Reyes (“the Mother”), the trial judge rejected the general magistrate’s recommendation. Because the trial court engaged in re-weighing the evidence in its review of the magistrate’s findings, we reverse.

FACTS AND PROCEDURAL BACKGROUND

On July 6, 2011, the Father filed the petition for modification of child support which is at issue in this appeal. He contended his child support obligation should be lowered because his income had been substantially reduced since the time when the obligation was last determined. The trial judge referred the matter to General Magistrate Yadira Pedraza, who conducted an evidentiary hearing on February 23, 2012.

At the hearing, the parties fiercely contested the issue of whether the Father had suffered a reduction in income. The Father, who is an officer on the City of Miami Police Force, testified his income was reduced because he retired from the Special Weapons And Tactics unit; he no longer worked in the Field Training Program or Crisis Intervention Program; the City changed its policies to require him to deduct more from his paycheck for retirement and certain gasoline expenses; the City cut back on overtime pay; and he was effectively prevented from working off-duty based on new City policies. He submitted financial affidavits showing that his net monthly income fell from $5,115.42 in 2008 to $3,985.96 in 2012.

The Mother, however, pointed to the existence of certain substantial deposits made into the Father’s checking account from sources other than the Father’s paycheck. A witness also testified for the Mother that he had seen the Father working off-duty. The Mother asserted that the deposits indicated that the Father’s income was not reduced. The Father responded that the deposits were the results of (1) transfers from his savings account; (2) money lent to him by his father; (3) an Internal Revenue Service refund; and (4) cash that his parents received from a dry cleaning business that they operated out of their home, which monies they deposited into the Father’s account because they were not permitted to earn money while collecting Social Security benefits.

After hearing the testimony of the witnesses and reviewing the evidence submitted, General Magistrate Pedraza issued a detailed, six-page report, which contained findings and recommendations. On the issue of the conflicting evidence with respect to the Father’s alleged reduction in income, she found for the Father, as follows:

8. The Court finds that the testimony of the Mother’s only witness to be unconvincing and the fact that the Mother met the witness a month before the hearing makes this Court even doubt more the credibility of the witness. The Court finds that even in the event that the witness testimony would have been convincing, the witness testified that the Father had not done any off duty work since June of 2011 which is consistent with the testimony presented by the Father in this case. Furthermore, no testimony was presented by the witness as to how much monies alleged paid by the Father and accordingly the witness had no actual knowledge of what monies were paid to the Father if any for his off duty work before June of 2011.
9. The Court finds the testimony of the Father to be credible as it pertains to his monthly gross income in the amount of $5,409.26 and his net income of $3,985.96 as reflected in Financial Affidavit of February 2nd, 2012 and Child Support Guidelines attached hereto.
10. The Court finds the testimony of the Father as it pertains to his parents having a small business of a dry cleaner’s on the side to help them support themselves to be credible. The Court finds the testimony of the Father as it pertains to the additional monies being deposited in his bank account being his parent’s money to be credible. The Court finds that said additional monies were not a gift from his parents and that the Father was simply depositing the monies on behalf of his parents and has had to borrow from those monies to cover his monthly expenses.

The general magistrate recommended the Father’s monthly child support obligation should be reduced from $927.00 to $377.24.

The Mother filed exceptions to the general magistrate’s report. The trial court conducted a hearing on the exceptions on April 30, 2012. Essentially, the Mother asserted error in the general magistrate’s order primarily by pointing to alleged inconsistencies in the Father’s testimony before the general magistrate and the Father’s failure to produce witnesses to corroborate his explanation for the deposits. The trial court subsequently issued an order granting in part the Mother’s exceptions to the general magistrate’s report, which states, in pertinent part:

The court finds that the testimony and evidence is insufficient to sustain a finding that the monthly child support should be lowered, as the record does not reflect a true reduction in income.

This appeal followed.

ANALYSIS

Although trial courts typically are charged with the task of making certain factual findings and legal determinations in the first instance, “[o]nce a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate.” Cerase v. Dewhurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006); see also Ward v. Dones, 90 So.3d 826, 827 (Fla. 3d DCA 2012), reh’g denied, (May 30, 2012). In such instances, a trial court reviewing a magistrate’s findings and recommendations takes on a role similar to that of an appellate court reviewing a trial court’s actions. Cerase, 935 So.2d at 578. Where, as here, exceptions to the magistrate’s report have been filed, “a trial court reviews the record to determine whether the magistrate’s factual findings and conclusions are supported by competent substantial evidence, and whether the magistrate’s legal conclusions are clearly erroneous or whether the magistrate misconceived the legal effect of the evidence.” Id.

In this case, the record reflects that the magistrate’s factual findings were supported by direct testimony. The financial affidavits submitted by the Father indicated that his income was reduced. The main evidence which arguably conflicted with the Father’s testimony in this regard concerned the deposits made into his checking account from sources other than his paycheck. On that issue, the parties presented conflicting testimony. The only way to conclude there is no “true reduction in income” here is to discredit the testimony of the Father. The general magistrate, however, fully credited the Father’s expía-nation. ■ Witness credibility, like all disputed issues of fact, is a determination left to the finder of fact. Boucicaut v. Fla. Unemployment Appeals, 929 So.2d 619, 620 (Fla. 3d DCA 2006) (“Credibility of a witness and the weight to be given to the evidence presented is, however, within the sound discretion of the fact finder.”).

CONCLUSION

While, based upon his years of experience, the trial judge may well have weighed the evidence differently if the testimony had been presented to him, his role in reviewing the general magistrate’s report was strictly limited. Because the general magistrate’s report and recommendation was supported by the Father’s testimony, it met the competent substantial evidence standard. For this reason, we reverse the decision and remand for further proceedings consistent with this opinion.

Reversed and remanded.


author: SALTER, J.

text:
    Stuart R. KALB, Trastee, Appellant, v. The SAIL CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D12-1334.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Michael I. Rose, Miami, for appellant.
    Keith D. Diamond, Weston, and Shutts & Bowen, and Aliette D. Rodz, Miami, for appellee.

      Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   SALTER, J.

Stuart Kalb, as assignee and trustee for the plaintiff, ThyssenKrupp Elevator Corp., appeals two non-final orders: (1) vacating a final default judgment, and (2) granting rehearing, but again vacating the default judgment and quashing the original service of process on the defendant. The defendanVappellee is The Sail Condominium Association, Inc. (Association). We reverse in part, affirm in part, and remand for further proceedings.

ThyssenKrupp sued the Association in March 2010 for breach of contract and breach of elevator repair orders. The process server served an employee of the Association’s registered agent at the office of the registered agent. The Association did not file a responsive pleading, and a final default judgment for damages and attorney’s fees was entered against it in May 2010.

Three months later, the Association filed the affidavit of Richard Layfield, an employee of the Association. Layfield swore, based on personal knowledge, that the lawsuit was received at the office of the Association and its registered agent. He swore further that the individual who received the lawsuit on behalf of the Association “failed to follow office procedure by not delivering the summons and complaint to our counsel.” Finally, he asserted under oath that “[tjhere are meritorious defenses to the instant action, including but not limited to the following: [ThyssenKrupp] failed to perform as alleged in the complaint, and there were material defects with the product and installation and maintenance of the product.”

But remarkably, the Association did not file its “verified motion to vacate default final judgment and quash service of process” until February 2012 (twenty-one months after the final judgment was entered, and over eighteen months after Layfield’s affidavit was filed).

On this record, the motion to vacate should not have been granted. The Association’s argument that the judgment was void is incorrect. Service on the registered agent’s employee was proper under section 48.081(3)(a), Florida Statutes (2010). Chapter 2004-273, section 2, Laws of Florida, amended section 48.081(3)(a) to add that “service of process shall be permitted on ... any employee of the registered agent.” Here, under the plain language of the statute, service on the employee was valid, and the resulting judgment was not void. See Seymour v. Panchita Inv., Inc., 28 So.3d 194 (Fla. 3d DCA 2010).

This conclusion renders the motion to vacate irremediably late. While a motion to vacate an order based on a void judgment can be filed at any time, motions to vacate on other grounds must be brought within one year of rendition. Fla. R. Civ. P. 1.540; Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969). Trial courts do not have jurisdiction to entertain a Rule 1.540(b) motion filed more than one year after rendition of the judgment where there is no basis to exempt the motion from that limitations period. Pilz v. Pilz, 395 So.2d 591 (Fla. 2d DCA 1981). Here, the one-year limitations period had run.

For these reasons, we reverse the orders vacating the final judgment after default, in all respects save one. We reinstate the final judgment (entered and recorded in May 2010), with the single exception (based on ThyssenKrupp’s commendable concession) that the portion of the orders vacating the attorney’s fee award in the final judgment is affirmed. On remand, and after notice by Thyssen-Krupp, the trial court shall conduct an evidentiary hearing on ThyssenKrupp’s unliquidated claim for attorney’s fees.

Reversed in part and remanded with directions; affirmed in part.

      . The motion to vacate would also have been fatally deficient regarding the "due diligence” requirement applicable to the motion, Gables Club Marina, LLC v. Gables Condo. & Club Ass'n, 948 So.2d 21, 23 (Fla. 3d DCA 2006), had it been timely under Rule 1.540. Here the Association's own affidavit established actual notice of the lawsuit by its employee over eighteen months before the verified motion to vacate was filed.

      . The trial court awarded attorney's fees based on an affidavit, and ThyssenKrupp has acknowledged that the Association must be given notice and an opportunity to be heard. Fla. R. Civ. P. 1.440(c); Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007).


author: DAMOORGIAN, J.

text:
    Jasmine L. BOONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2795.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Jasmine Louise Boone appeals from a restitution order following the court’s acceptance of her plea of no contest to one count of leaving the scene of an accident with personal injuries, one count of resisting arrest without violence, and two misdemeanor counts of leaving the scene of an accident. Boone argues that the restitution evidence was insufficient to support the trial court’s valuation as to the personal property lost by the victims and the cost of medical care provided to one of the victims. As for the lost personal property, we conclude there was no error. However, we reverse the portion of the restitution order requiring Boone to pay one of the victim’s medical bills because the only evidence of the cost of medical treatment was the victim’s own testimony. Crowley v. State, 710 So.2d 750 (Fla. 4th DCA 1998).

It is axiomatic for purposes of determining the amount of restitution to a victim for medical expenses incurred or to be incurred that the victim’s testimony must be corroborated with billing records. Id. at 750 (where the only evidence of medical expenses is the testimony of the victim that he or she incurred expenses and would incur expenses in the future, and the victim does not submit copies of his or her bills, the evidence is insufficient proof to support an award of restitution; but if the victim submits copies of such bills, the testimony of the victim is sufficient); State v. Schuette, 782 So.2d 935, 937 at n. 3 (Fla. 4th DCA 2001) (noting that victim’s testimony regarding the amount of medical bills incurred without any documentation of the bills would be insufficient to support a restitution order), quashed on other grounds, 822 So.2d 1275 (Fla.2002); M.J.T. v. State, 927 So.2d 1077, 1078 (Fla. 2d DCA 2006) (holding that State did not submit sufficient evidence to establish amount of restitution to victim for medical bills incurred when it did not introduce any medical bills). In this case, the only evidence of the medical expenses was the victim’s own uncorroborated testimony. Thus, the State failed to meet its burden with respect to the cost of medical treatment and the trial court should not have awarded restitution for the cost of medical treatment to that victim.

Accordingly, we remand for another restitution hearing so that the victim ■will have the opportunity to prove his past medical expenses. Crowley, 710 So.2d at 750.

Affirmed in part, Reversed in part and Remanded.

STEVENSON and CONNER, JJ„ concur.


text:
    Erica J. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2109.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Michael R. Hanrahan of Michael R. Hanrahan, P.A., for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. We remand to strike the designation of count one in case no. 2008CF001781BXX as a life felony, and direct that this offense be re-designated a first degree felony punishable by life. Porter v. State, 737 So.2d 1119 (Fla. 2d DCA 1999).

GROSS, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    D.W., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D13-77.
    District Court of Appeal of Florida, Fourth District.
    May 1, 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.
    Karla Perkins, Miami, for appellee.
   PER CURIAM.

D.W., the Mother, appeals the termination of her parental rights to her child, V.O.C., for (1) abandonment, (2) case plan noncompliance, and (3) continuing involvement in conduct that threatens the life, safety, well-being, or physical, mental or emotional health of the child primarily due to the mother’s continued substance abuse. While we And the evidence insufficient to support a finding of abandonment, the remaining two statutory grounds for termination were adequately supported by evidence in the record. Likewise, the record supports the trial court’s finding that termination of the mother’s parental rights was in the manifest best interest of the child.

Affirmed.

STEVENSON, DAMOORGIAN and CONNER, JJ., concur.


text:
    Rickey MITCHELL, III, and Dr. Rickey Mitchell, Appellants, v. Lorena Atwell OCE, Appellee.
    No. 4D12-247.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Patrick St. George Cousins of Cousins Law, A Professional Association, West Palm Beach, for appellants.
    Glenn R. Miller of Glenn R. Miller, P.A., North Miami Beach, for appellee.
   PER CURIAM.

We reverse an order dismissing a second amended complaint with prejudice for failure to state a cause of action. Upon a review of the four-count Second Amended Complaint for Conversion, Breach of Trust, Violation of the Uniform Transfers to Minors Act, and Unjust Enrichment, we conclude that the Second Amended Complaint states a cause of action as to counts I, II, and IV. With respect to count III, we conclude that although the trial court correctly recognized that the allegations fail to meet the required elements for a cause of action under the Act in count III, the complaint may be amended to include those allegations of fact under counts I and II. Plaintiff also was not required to attach documents to the complaint under Rule 1.130, Florida Rules of Civil Procedure.

In its order, the court also found that the plaintiff failed to establish long-arm jurisdiction. In light of our holding that the plaintiff stated a cause of action for torts occurring in Florida, the court should conduct the second prong of the analysis described in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), if the defendant files an affidavit refuting the complaint’s allegations or raising an issue of minimum contacts. See Hatfield v. AutoNation, Inc., 915 So.2d 1236, 1241 (Fla. 4th DCA 2005).

Reversed and remanded for further proceedings.

WARNER, GROSS, JJ., and STONE, BARRY J., Senior Judge, concur.

      . The long-arm statute provides for numerous acts by a person that will subject him to the jurisdiction of Florida’s courts, including "[c]ommittmg a tortious act within this state.” § 48.193(l)(b), Fla. Stat. (2010).


author: GROSS, J.

text:
    Stephen GONOT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2885.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Jeffrey M. Harris of Jeffrey M. Harris, P.A., Fort Lauderdale, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm appellant’s convictions for grand theft, official misconduct, and falsifying records and write to address his contention that he was entitled to a judgment of acquittal on the count of official misconduct.

Section 838.022(l)(a), Florida Statutes (2007), makes it “unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to ... [fjalsify, or cause another person to falsify, any official record or official document.” In this case, the basis for the official misconduct charge was that appellant falsified a campaign report as part of his campaign for mayor of Deer-field Beach. On appeal, appellant focuses on section 838.022(2)(a), which defines “public servant” as not “including] a candidate who does not otherwise qualify as a public servant,” for the argument that “he was not a public servant at the time of the alleged offense” but was “merely a candidate for public office.”

However, as the State argues, at the time appellant was a candidate for mayor, he “otherwise qualified] as a public servant” by virtue of his status as a city commissioner. Chapter 838 defines “public servant” as including “[a]ny officer or employee of a state, county, municipal, or special district agency or entity.” § 838.014(6)(a), Fla. Stat. (2007). The statute distinguishes a mere candidate from a public job or office holder in order to reach the evil of public servants misusing their office. Here, appellant was not just a candidate at the time of the offense; it was his dual status as a candidate and an incumbent commissioner that brought him within the ambit of the statute. This fact distinguishes this case from Clement v. State, 895 So.2d 446 (Fla. 2d DCA 2005), where the defendant was only a candidate who did not hold any public office at the time of the offense.

Affirmed.

WARNER, J., and STONE, BARRY J., Senior Judge, concur.


text:
    John CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2570.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

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

We affirm appellant’s conviction and sentence to multiple charges entered after a plea of nolo contendere and an agreed sentence. On appeal, appellant claims that the court should have granted his oral pro se motion to withdraw his plea based upon his change of heart, the unwillingness of his attorney to go to trial, and his assertion of innocence. The court inquired and rejected his claim that his attorney was not representing him properly. The motion to withdraw for a change of heart and profession of innocence was legally insufficient to show good cause for withdrawal. See Robinson v. State, 761 So.2d 269, 274 (Fla.1999).

Appellant relies on Wright v. State, 961 So.2d 1036 (Fla. 4th DCA 2007), but we find that case distinguishable. Although the motion to withdraw in Wright was based upon a change of heart and a claim of innocence, the defense attorney proffered that the defendant, who qualified as a youthful offender, had an alibi defense, was confused, and lacked a full understanding at the plea hearing. Therefore, this court reversed the denial of the motion to withdraw the plea. Here, these same circumstances do not exist. While appellant stated at the plea colloquy that he was innocent of one of the charges, after further consultation with his attorney, he continued with the plea. He did not express the same kind of confusion that was present in Wright. Moreover, in Wright, the youthful offender pled out of significant fear of being “railroaded” and receiving a sentence of substantial length. Here, the appellant had entered into a plea with an agreed sentence which would be served concurrently with a sentence for a different crime which had already been imposed. Appellant’s agreement to enter the plea could not have been based on fear and confusion over the sentencing options, as it was in Wright.

Affirmed.

WARNER, GERBER and LEVINE, JJ., concurs.


text:
    STATE of Florida, Appellant, v. Glenn LAMOUREUX, Appellee.
    No. 4D12-1164.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Hilliard E. Moldof, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. See State v. Allen, 110 So.3d 484 (Fla. 4th DCA 2013).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Joseph GOLPHIN, a/k/a Joe Golphin, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3018.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Rehearing Denied May 24, 2013.
    Joseph Golphin, a/k/a Joe Golphin, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

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


author: EMAS, J.

text:
    Moises Wahnon MAMAN, Appellant, v. Thomas Andres Vazquez ESTRELLA, Appellee.
    No. 3D13-214.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Manos, Alwline & Kubiliun and Tom J. Manos, Miami, for appellant.
    Daniel H. Forman and Adele Bagley; Williams & Connolly and Jonathan M. Landy and Peter J. Kahn, Washington, pro hac vice, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

This court, having issued its opinion in the related case of Camperos v. Estrella, — So.3d - (Fla. 3d DCA 2013), we reverse and remand for proceedings consistent therewith.


author: LAGOA, J. SHEPHERD, J.,

text:
    DAN EUSER WATERARCHITECTURE, INC., Petitioner, v. CITY OF MIAMI BEACH, Florida, et al., Respondents.
    No. 3D13-180.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Cole, Scott & Kissane and Scott A. Cole and Kristen A. Tajak, Miami, for petitioner.
    Lydecker Diaz and Joan Carlos Wizel, Mark A. Hendricks and Meredyth S. Cooper, for respondent City of Miami Beach, Florida.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Dan Euser Waterarchitecture, Inc. (“DEW”) petitions for certiorari review of a non-final order entered by the trial court, which denied its motion for protective order. The trial court ruled that DEWs corporate representative must appear for deposition in Miami-Dade County instead of at the location of DEW’s headquarters in Ontario, Canada. We grant the petition and quash the order.

“A defendant ... will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief. Thus, under Florida law a nonresident corporate defendant need not produce a nonresident corporate officer in Florida.” Fortune Ins. Co. v. Santelli, 621 So.2d 546, 547 (Fla. 3d DCA 1993) (citation omitted). Rather, where the corporate defendant is not seeking affirmative relief, the deposition of the corporate representative should ordinarily be taken at the corporation’s principal place of business. Id.

DEW is a Canadian corporation, having its principal place of business in Richmond Hill, Ontario, Canada. Its corporate representative is a resident of Ontario, Canada, and all of DEW’S documents and files relating to this litigation are located in Ontario, Canada. Moreover, DEW is not seeking any affirmative relief. Accordingly, DEW should not be required to produce its corporate representative in Miami-Dade County. “It has been said that there is an exception for ‘extraordinary circumstances,’ but no such circumstances have been shown to exist here.” Teledyne Indus., Inc. v. Mustang Ranch Aircraft, Inc., 753 So.2d 785, 785 (Fla. 3d DCA 2000) (citation omitted).

Because we conclude the trial court departed from the essential requirements of the law in denying DEW’s motion for a protective order, we grant the petition and quash the order under review. We remand with directions to grant the protective order.

Petition granted with directions.

SHEPHERD, J.,

concurring.

I write only to note that the principal argument made by the respondent, City of Miami Beach, is an economic one, that it is less expensive for the witness to come to Florida (the City proposes expense sharing by the parties) than for counsel for fifteen defendants to travel to Canada. This may be so, but DEW did not choose to be a defendant in this case. The City of Miami Beach chose DEW.

The City points to what it considers persuasive federal authority to support its position. However, those cases involve more exotic destinations. See Barrocos of Fla., Inc. v. Elmassian, 2012 WL 1657204 (S.D.Fla. May 10, 2012) (company with principal place of business in Hong Kong); Partecipazioni Bulgaria, S.p.A. v. Meige, 1988 WL 113346 (S.D.Fla. May 23, 1988) (resident of Greece); Financial Gen’l. Bankshares v. Lance, 80 F.R.D. 22 (D.C.1978) (four Arab defendants); cf. Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166 (S.D.N.Y.1985) (giving out-of-town defendant option under local rule to pay for counsel to travel to California for deposition or producing witness in New York); Largo Hosp. Owners, Ltd. v. Gorman, 408 So.2d 597 (Fla. 2d DCA 1981) (requiring California resident to travel to Pinellas County for deposition in aid of execution where defendant contracted to build hospital in Tampa). The City cannot seriously contend travel to Canada by its counsel is unexpected or imposes a severe burden on it in this case.

      . The fifteen defendants are Hargreaves Associates, Incorporated, William Lane Architects, Inc., William Lane, Savino & Miller Design Studio, P.A., Dan Euser Waterarchitecture, Inc., Kenneth Didonato, Inc., Kenneth Dido-nato, ¿am Partners, Inc., William A. Abarca, P.A., Play.Site.Architecture, Inc., Joanne Hi-romura, Johnson, Avedano, Lopez, Rodriguez & Walewski Engineering Group, Inc., Horacio A. Rodriguez, P.E., Magnum Construction Management Corporation d/b/a MCM Cotp. and/or MCM, and Travelers Casualty and Surety Company of America. The complaint alleges design and construction errors in a $22 million park renovation project at South Pointe Park, located in Miami Beach, Florida.


author: ALTENBERND, Judge.

text:
    Herbert CINTRON and Molly Cintron, individually and as parents and next friends of their minor child, Saleena Cintron, Appellants, v. ST. JOSEPH’S HOSPITAL, INC., a Florida corporation, Appellee.
    No. 2D12-494.
    District Court of Appeal of Florida, Second District.
    May 3, 2013.
    Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of the Dieci-due Law Firm, P.A., Tampa, for Appellants.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando; and Kirk S. Davis of Aker-man Senterfitt, Tampa, for Appellee.
   ALTENBERND, Judge.

Herbert and Molly Cintron, individually and as parents of their daughter, Saleena, appeal a final summary judgment in their action against St. Joseph’s Hospital, Inc. In their complaint, the Cintrons claim that St. Joseph’s Hospital was liable for damages under section 395.1041, Florida Statutes (2004), because the hospital’s medical staff refused to treat their young daughter when she was suffering an acute asthma attack. St. Joseph’s Hospital obtained summary judgment by convincing the trial court that, in such an “anti-dumping” case, it should be free from liability and that its nurses and other employees should be personally liable for the statutory damages, attorney’s fees, and costs. We reverse because the Cintrons sued the hospital on a theory of respondeat superior. The hospital did not move for summary judgment as to its potential vicarious liability, and thus the only theory presented by the Cintrons in this case never actually has been resolved in the trial court.

The Cintrons allegedly took their daughter to the emergency room at St. Joseph’s Hospital on two occasions during the evening of February 14, 2005, seeking treatment for her asthma attack. Each time the hospital’s staff refused to treat her. Only when she was taken by ambulance on a third occasion was she admitted to the hospital.

In October 2007 the Cintrons filed this action. The complaint was a very short complaint, naming only the hospital and alleging that it was liable under the statute for the failure of its staff to treat the child. St. Joseph’s Hospital initially took the position that this claim was a medical malpractice claim subject to all of the presuit requirements and the statute of limitations applicable to such a claim. Both the trial court and this court rejected that theory. St. Joseph’s Hosp., Inc. v. Cintron, 998 So.2d 1192 (Fla. 2d DCA 2009).

The hospital did not move to dismiss the short complaint for failure to state a cause of action. When it answered the complaint in April 2008, it did include among its sixteen affirmative defenses a defense that the complaint should be dismissed for failure to state a cause of action. This was a generic defense with no explanation as to why the hospital believed the complaint was defective. No party ever set this defense for a pretrial hearing.

More than three years later, the hospital moved for summary judgment “based on failure to state cause of action” under the statute. In its motion, the hospital accurately observed that section 395.1041(5)(b) states that “[a]ny person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney’s fees, and other appropriate relief.” It argued that section 395.1041(5)(a) created an administrative sanction against the hospital for an amount not to exceed $10,000 per violation, and that this administrative sanction was the sole liability of the hospital. It maintained that all anti-dumping lawsuits had to be filed against its employees and not against the hospital. It argued that the word “hospital” had to be included in subsection (5)(b) in order for St. Joseph’s Hospital to be liable in this case. The trial court accepted this argument and granted the final summary judgment.

The problem with the motion for summary judgment is that it never addressed the only theory presented by the Cintrons’ complaint. The complaint did not identify the specific staff members who denied treatment to the child. Instead, the complaint sought a judgment against the hospital for the actions of its agents and employees. Although the short complaint is not a model pleading, it obviously seeks to hold the hospital liable for the statutory violations committed by the hospital’s employees in the course and scope of their employment.

Typically, respondeat superior makes employers liable for the negligence of their employees for wrongful acts committed within the course and scope of their employment. See Thurston v. Morrison, 141 So.2d 291, 294 (Fla. 2d DCA 1962); see also, e.g., Wilson v. Lee Mem’l Hosp., 65 So.2d 40 (Fla.1953); City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721 (1942); Nicholson v. Good Samaritan Hosp., 145 Fla. 360, 199 So. 344 (1940). No one is suggesting that the employees in this case were committing acts that would be outside the course and scope of their employment. This statutory cause of action is similar to a cause of action for negligence. The statute does not expressly prohibit or permit liability of the hospital under re-spondeat superior. Whether the hospital can be vicariously liable for the actions of its employees in this context is a matter that was not resolved by the trial court. We decline to resolve the issue without allowing the parties and the trial court to develop the issue fully at the trial level. Thus, we reverse the order on appeal without prejudice to the hospital’s right to file a motion for summary judgment addressing the legal theory that was actually pleaded by the Cintrons.

Reversed and remanded.

WALLACE and CRENSHAW, JJ, Concur.


author: JACOBUS, J. EVANDER, J.,

text:
    Michael DOBEK, Appellant, v. CITY OF MINNEOLA, Appellee.
    No. 5D11-4168.
    District Court of Appeal of Florida, Fifth District.
    May 3, 2013.
    Rehearing Denied May 20, 2013.
    Kelli Biferie Hastings of Law Office of Kelli Biferie Hastings, PLLC, and James R. Spears of Law Office of James R. Spears, PLLC, Orlando, for Appellant.
    Lamar D. Oxford of Dean, Ringer, Morgan & Lawton, Orlando, for Appellee.
   JACOBUS, J.

Michael Dobek (“Dobek”) appeals the final summary judgment entered in favor of the City of Minneola (the “City”). The trial court determined that a Release and Settlement Agreement (the “Release”) was a complete bar to Dobek’s lawsuit against the City. Dobek alleges that the trial court erred because there is a latent ambiguity in the Release that creates an issue of fact, which would preclude summary judgment. We agree and reverse.

Dobek began working for the City as a firefighter in July 2005. Prior to his employment with the City he had been a firefighter with another municipality and was a participant in the Florida Retirement System (“FRS”). His continued FRS participation was important to him and he was assured by the City that his FRS participation would continue. Not long after beginning his employment with the City, Dobek sustained a serious work-related injury and he received benefits in accordance with the Workers’ Compensation Law. See Ch. 440, Fla. Stat. (2006). Dobek alleges he became permanently and totally disabled and was unable to perform the essential duties of a firefighter. As a result, the City terminated his employment in March 2006. At that time, Dobek applied to FRS for “In the Line of Duty” disability benefits. He was advised by FRS that it was processing his claim. Do-bek reached a settlement agreement with the City for his workers’ compensation benefits and executed the Release on January 23, 2009. Just prior to signing the Release, Dobek and the City were both advised that he was not covered by FRS because the City had not properly enrolled its firefighters into the system, even though it was making a deduction for FRS benefits from its firefighters’ paychecks.

In January 2010, Dobek filed a complaint against the City. Dobek alleged various causes of action involving the City’s failure to properly enroll him in FRS, which made Dobek ineligible for “In the Line of Duty” disability benefits. As an affirmative defense to Dobek’s lawsuit, the City asserted the Release. The Release contains the following language:

That the said and undersigned [Do-bek], for and in consideration of [the City’s] agreement to settle [Dobek’s] workers’ compensation claim for the amount of $138,250.00 and other good and valuable consideration received from or on behalf of [the City], the sufficiency of which is hereby acknowledged, hereby remise, release, acquit, satisfy and forever discharge the said [City], of and from all actions and manner of actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, whether now not known or contemplated, which [Dobek] ever had, now have, or hereafter can, shall or may have upon or by reason of any matter, cause or thing from the beginning of time to these days presents, including but not limited to all claims pursuant to the Florida Workers’ Compensation Act ... all state and federal causes of action, statutory or otherwise, and any other damages for relief of any nature whatsoever ....
[Dobek] further warrants to give up all claims and rights which he may have against the employer, its parent or subsidiaries, and their past, present and future officers, directors, employees and agents, based upon any act or event related to his employment with the employer. ...
The parties will bear their own costs. This settlement is not intended to release any vested benefits, pension or health insurance benefits.
I understand that receipt by me of the Lump Sum Settlement completely discharges and terminates any liability or responsibility that the Employer or Carrier may have toward me as a result of any and all accidents, claims or injuries arising out of employment with [the City.]
I have read or had the settlement agreement read to me, and I fully understand same, and I am in agreement therewith.
I understand that I am under no compulsion to settle my claim and I am settling this case voluntarily and of my own free will.
I understand that by agreeing to settle, I am waiving and giving up any rights that I would have to further pursue any claims.

The Release also contained a “carve-out” provision that excepted certain benefits from being released. As originally drafted, the provision stated, “This settlement is not intended to release any vested pension or health insurance benefits.” However, the parties interlined the word “benefits” by hand in the final version of the Release, so that as executed it read, “This settlement is not intended to release any vested benefits, pension or health insurance benefits.” (Emphasis added). Do-bek argues that this provision contains a latent ambiguity that allows him to pursue his claim against the City. The City contends that the carve-out did not include the claim that Dobek is asserting against the City for failure to properly enroll him in FRS.

A latent ambiguity exists where “the language in a contract is clear and intelligible, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two or more possible meanings.” G.E. Fanuc Intelligent Platforms Embedded v. Brijot Imaging Sys., Inc., 51 So.3d 1243, 1245 (Fla. 5th DCA 2011); accord Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1973). Where a latent ambiguity exists, extrinsic evidence is admissible to explain the ambiguity. G.E. Fanuc, 51 So.3d at 1245. Latent ambiguity generally precludes summary judgment because it creates an issue of fact. Mac-Gray Servs. Inc. v. Savannah Assocs. of Sarasota, LEG, 915 So.2d 657, 659-60 (Fla. 2d DCA 2005).

Here, the extraneous evidence creates a latent ambiguity as to the meaning of the carve-out provision. The City’s contention that the carve-out provision of the Release relates to Dobek’s claim against FRS is patently specious for two reasons. First, there is nothing in the Release that would release FRS. Therefore, the carve-out language, if it was truly intended to carve-out the FRS claim, would be unnecessary. Second, the only outstanding claim that both parties had knowledge of was the potential claim against the City for its failure to properly enroll Dobek in FRS. There were no other outstanding claims for health benefits or any other benefits. Based on the circumstances surrounding the Release, parol evidence should be considered to determine the parties’ intent at the time the carve-out provision was drafted. This precludes summary judgment as it creates a genuine issue of material fact. Accordingly, we reverse the trial court’s summary judgment and remand for further proceedings.

REVERSED and REMANDED.

MAXWELL, III, G.W., Associate Judge, concurs.

EVANDER, J., dissents with opinion.

EVANDER, J.,

dissenting.

I respectfully dissent. The release language agreed to by the parties is extremely broad. By contrast, the “carve-out” provision is rather narrow:

This settlement is not intended to release any vested benefits, pension or health insurance benefits.

In the action below, Dobek sought damages under theories of negligence, breach of contract, and fraud as a result of the City’s purported failure to properly enroll Dobek in the FRS. The majority appears to acknowledge that, absent consideration of extrinsic circumstances, Dobek’s claim(s) would not fall within the express language of the “carve-out” provision. Thus, the issue is whether extrinsic circumstances created a latent ambiguity in the release provisions of the settlement agreement.

In my opinion, there is no latent ambiguity. The relevant extrinsic circumstances did not provide any basis to refuse to honor the intentions of the parties as manifested through the clear and unambiguous language of the settlement agreement. The relevant extrinsic circumstances are that the parties, through their respective counsel, were negotiating a settlement of Dobek’s workers’ compensation claim. As observed by the majority, the parties were aware that Dobek had a potential claim against the City arising out of the City’s alleged failure to properly enroll Dobek in the FRS.

Given these circumstances, Dobek could have readily insisted that the settlement agreement contain language expressly excluding this known potential claim from the release provisions. No such language was inserted even when the parties were making handwritten changes to the “carve-out” provision. The “carve-out” provision does reflect an intent on the part of Dobek to preserve his right to bring an action against other parties for “vested benefits, pension or health insurance benefits.” Additionally, any potential claim Dobek might have against the City for items such as accrued vacation time or outstanding medical bills not yet paid under the City’s health insurance plan would come within the ambit of the “carve-out” clause. However, based on the language utilized by the parties, the “carve-out” provision does not reflect an intent to permit Dobek to bring a subsequent action against the City for negligence, breach of contract, or fraud.

The majority’s decision effectively rewrites the parties’ contract to the City’s detriment. According to the City, it would not have agreed to a $138,250.00 settlement payment if Dobek would still have the right to pursue the instant action.

I would affirm.