author: SAWAYA, J. GRIFFIN, J.,

text:
    Erika Lynn DIEDRICK, Appellant, v. William B. DIEDRICK, Jr., Appellee.
    No. 5D11-1952.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.
    William S. Graessle, of William S. Graes-sle, P.A., Jacksonville, and Carol A. Caldwell, of the Law Office of Carol A. Caldwell, St. Augustine, for Appellant.
    Andrew Morgan, Patrick T. Canan and Julie K. Kurtz, of Canan Law, St. Augustine, for Appellee.
   SAWAYA, J.

Appellant Erika Lynn Diedrick, former wife to Appellee William B. Diedrick, appeals the order that both denies her Motion to Set Aside Mediated Settlement Agreement and enters Final Judgment of Dissolution of Marriage incorporating the Settlement Agreement. At the pretrial conference held shortly after the motion was filed, the trial court suggested that the issues raised in the motion be heard at the final dissolution hearing scheduled for eight days hence. Appellant made repeated requests to continue the hearing date because she did not have sufficient time to prepare on such short notice. We agree that, based on the particular facts and circumstances of this case, the trial court abused its discretion in not granting a continuance of the hearing date to give Appellant adequate discovery time on her motion. Accordingly, we reverse that portion of the order that denies the Motion to Set Aside Mediated Settlement Agreement and that part of the Final Judgment of Dissolution of Marriage dependent upon, and incorporating the terms of, the Mediated Settlement Agreement. Upon remand, Appellant should be given adequate opportunity to conduct discovery on her fraud claim and, if warranted, proceed with the Motion to Set Aside Mediated Settlement Agreement.

REVERSED and REMANDED.

COHEN, J., concurs.

GRIFFIN, J., concurs and concurs specially, with opinion.

GRIFFIN, J.,

concurring and concurring specially.

For over twenty years, Husband has been employed by the Treasury Department of the United States as a special agent. He has been a federal employee for the entire eighteen years that he and his wife have been married. The petition for dissolution of marriage was filed on June 17, 2010, and, thereafter, the parties engaged in the mandatory disclosure and discovery procedures required by the Family Law Rules of Procedure. Husband also filed two financial affidavits before the parties met for mandatory mediation. In the Mandatory Disclosure and in his affidavits, he identified a Thrift Savings Plan of the Federal Employees Retirement System [“FERS”], as a marital asset and provided documents for his Thrift Savings Plan only. However, in all these disclosures, he never disclosed that, in addition to the Thrift Savings plan, he also has a FERS pension. The value of this pension is unknown because no discovery was allowed on Wife’s fraud claim, but Wife’s counsel asserts that the pension may be worth in the range of half a million dollars. That would make it the largest marital asset.

Mediation was held and the parties reached agreement on all the disclosed assets. However, after the mediation, but before of entry of any order approving the agreement, counsel for Wife informed Wife that she had developed information that Husband had an undisclosed pension having substantial value. New counsel was retained and efforts began to discover if there was, indeed, a pension and its value. However, because of the trial judge’s insistence on using the time that had been set aside for the trial to adjudicate the pension issue, and because he concluded that the Wife should have known about the pension, he ultimately ruled that he would not disturb the mediation agreement. The trial judge should have stuck with his first instinct, which was that if there was a marital asset that had not been distributed, distribution would have to be made.

Because of the lack of discovery, very little is known about this pension. Husband did admit at the hearing that he had the pension and that he did not disclose its existence. He claimed that he did not do so for- two reasons: first, he claimed that the pension had no value until he retired; and, second, he claimed that he was in the process of converting it into a disability pension, in which case it would no longer be a marital asset. He also acknowledged that he failed, as required by the Family Rules, to produce the required documentation relating to this asset. He claimed that he did not produce any documents because he did not have possession of any pension documents, even though it appears to be undisputed that he had ready access to all account information on a FERS website.

Husband’s justification for the failure to disclose the pension is nonsense, and the failure to produce records of it in compliance with mandatory disclosure is a clear violation of the rules. Presumably, a person represented by a lawyer would have discussed such an asset with his counsel, but his counsel at oral argument denied knowing anything about any pension— even though he knew his client was a career federal employee.

In my view, the trial court erred not only in refusing to allow Wife to develop the facts about the pension, but also in focusing on Wife’s knowledge and conduct, rather than Husband’s. If a divorcing spouse is excused from disclosing material assets in their financial affidavits and in his mandatory disclosure form because the other spouse “should have known” about the asset, we have created a nonsensical procedure. The point of mandatory disclosure is to prevent just this type of situation from arising. Each spouse is duty-bound to disclose everything. Here, Husband did not disclose a substantial asset about which he had abundant knowledge and about which he had obviously done some serious thinking. Wife’s knowledge of the pension was inferred by the judge in spite of her ferocious denials because the judge did not believe that she could not have known her husband had both a pension and a Thrift Savings Plan. It is hard to see why Wife “had to know” about the pension if Husband’s own attorney, experienced in this area of the law, never tumbled to its existence. In any event, what Wife “had to know” is mostly beside the point.

Mediation or not, when a spouse fails to disclose a marital asset over which he or she has control and that fact becomes known, the LEAST that should happen is distribution of the asset, including adjusting the overall distribution or re-mediating, if appropriate. After all, the asset does not cease to be marital just because it has not been distributed. The parties’ mediation agreement itself provides that it is based on a warranty by each signatory that the disclosures made are true and accurate and free from any intentional or material omission. So far, just from the record before us, there is no doubt that Husband’s disclosures were false and inaccurate and that there was a material omission. Based on that fact alone, the mediation agreement is voidable at the Wife’s instance. Mediation or not, the asset should be valued, ownership apportioned, distribution made — and sanctions against Husband considered.


source: Caselaw Access Project

author: JACOBUS, J.

license: Public Domain

text:
    Raymond BROOMFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3060.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2012.

      James Dickson Crock of James Dickson Crock, P.A., Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Appellant, Raymond Broomfield, Jr., challenges the judgment and sentence entered after he was found guilty by a jury of trafficking in cannabis and cultivation of cannabis. Broomfield contends that the State’s improper questioning of investigating deputies and improper arguments during closing argument constitute fundamental error. We agree and reverse and remand for a new trial.

While the prosecutor’s questions and comments, standing alone, may not rise to the level of fundamental error, the cumulative effect of the prosecutor’s errors denied Broomfield a fair and impartial trial. See Slagle v. State, 58 So.3d 427 (Fla. 1st DCA 2011) (cumulative effect of the prosecutor’s errors denied Slagle a fair trial); Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998) (finding that the cumulative effect of prosecutor’s errors, which included improper bolstering of police witnesses, impermissible burden shifting, and improper references to facts not in evidence, required a new trial).

We decline to address the other issues raised by Broomfield.

REVERSED and REMANDED for new trial.

EVANDER and COHEN, JJ., concur.


author: PER CURIAM.

text:
    Luis Alberto VARGAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4352.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2012.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm in all respects but remand this cause with instructions to correct the sentencing order by striking the $65 criminal ordinance program fee and the public defender lien, which the State concedes should be deleted because they were not orally pronounced. Appellant need not be present for this correction.

AFFIRMED AND REMANDED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Gary Steve FONSECA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2793.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Gary S. Fonseca appeals his convictions for trafficking in amphetamine, conspiracy to commit trafficking in amphetamine, and manufacture of methamphetamine. On appeal, Fonseca contends that (1) his trafficking in amphetamine and manufacture of methamphetamine convictions are barred by double jeopardy, (2) the trial court erred in denying his motion for judgment of acquittal regarding the conspiracy charge as there was no evidence of a conspiracy to manufacture a trafficking amount of amphetamine, and (3) section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes, is facially unconstitutional based on Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011).

We agree that Fonseca’s convictions of both trafficking in amphetamine and manufacturing of methamphetamine violate double jeopardy and vacate the conviction and sentence for manufacture of methamphetamine. See Stacey v. State, 83 So.3d 749 (Fla. 5th DCA 2011). We affirm Fonseca’s conspiracy conviction as it is founded on competent, substantial evidence. See State v. Odom, 56 So.3d 46 (Fla. 5th DCA 2011). Finally, we reject Fonseca’s challenge to the constitutionality of sections 893.13 and 893.101. See State v. Adkins, 37 Fla. L. Weekly S449 (Fla. 2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla.2012).

AFFIRMED in part and VACATED in part.

ORFINGER, C.J., EVANDER and COHEN, JJ., concur.


author: PALMER, J.

text:
    Bradford B. BANKS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1632.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2012.
    Bradford B. Banks, Jr., Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Bradford B. Banks, Jr. (defendant) appeals the trial court’s summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part and affirm in part.

As to ground 1 of the defendant’s motion, the trial court erred in concluding that the motion was untimely, because the motion was timely filed within two years of this court’s affirmance of the defendant’s sentence. See Banks v. State, 968 So.2d 576 (Fla. 5th DCA 2007). Accordingly, we reverse and remand for consideration of the merits of ground 1.

As to ground 2, we find no error in the trial court’s ruling.

As to ground 8, we reverse because the defendant should have been given an opportunity, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), to amend his claim regarding his habitual offender status.

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY and JACOBUS, JJ., concur.


author: PER CURIAM. EVANDER, J.,

text:
    George ZIMMERMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3198.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2012.
    Mark M. O’Mara, of O’Mara Law Group, Orlando, and Donald R. West, of Don West Law Group, P.A., Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So.2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So.3d 234, 236 (Fla. 1st DCA 2012), we grant the petition.

Florida Rule of Judicial Administration 2.330 requires a trial judge to grant a motion to disqualify without determining the accuracy of the allegations in the motion, so long as the motion is “legally sufficient.” R.M.C., 77 So.3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990)). Although many of the allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test, and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

PETITION GRANTED.

LAWSON and COHEN, JJ., concur.

EVANDER, J., dissents with opinion.

EVANDER, J.,

dissenting.

I respectfully dissent. As the majority correctly observes, adverse rulings are not, in and of themselves, sufficient to require the granting of a motion to disqualify. Although the trial court’s order clearly manifested an exceedingly strong belief by the trial judge that Zimmerman had “flouted” and “tried to manipulate” the system, I do not believe the order “crossed the line” so as to require the granting of his motion.

      . For example, it is well-settled that “adverse judicial rulings do not constitute sufficient grounds to disqualify a judge.” K.H. v. Dep't of Health & Rehabilitative Servs., 527 So.2d 230, 232 (Fla. 1st DCA 1988) (citations omitted).


author: ORFINGER, C.J.

text:
    Richard Lemart JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4394.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

Richard L. Johnson appeals his conviction and sentence for aggravated assault on a law enforcement officer. Johnson argues that the court fundamentally erred by departing from its role of neutrality during the trial, and that the State’s closing argument was improper. While we find no error in the State’s closing argument, we agree that Johnson is entitled to a new trial based on the trial judge’s comments during the trial.

Deputy Mitchell Tucker was dispatched to an “open-line” 911 call, which came from an apartment complex. While no one spoke on the other end, the dispatcher could hear screaming in the background. As Deputy Tucker entered the apartment complex, he saw Johnson’s car pulling out of a parking space. Deputy Tucker flashed the high-beam lights on his marked patrol vehicle, signaling Johnson to stop his car. After Johnson stopped, Deputy Tucker left his patrol car and walked to a position about six feet in front of Johnson’s car. Deputy Tucker could see a man, later identified as Johnson, facing him in the driver’s seat. Suddenly, Johnson accelerated the car toward Deputy Tucker, who jumped out of the way in order to avoid being hit. Johnson sped away, missed a turn and crashed into a fence in a nearby wooded area. He then abandoned his car and ran into the woods where he was apprehended a short time later. Following a jury trial, Johnson was charged with and convicted of aggravated assault on a law enforcement officer. This appeal followed.

Johnson argues that the court’s actions during trial constitute fundamental error. Specifically, Johnson claims that in the jury’s presence, the trial court extensively questioned the State’s key witness, Deputy Tucker, commented on Deputy Tucker’s answers, and suggested answers that Deputy Tucker then adopted. The State does not defend the trial judge’s actions, but argues that Johnson has not shown that the trial court’s unobjected-to conduct rose to the level of fundamental error.

Trial judges must be fair, impartial, and disinterested participants in the proceedings. Vaughn v. Progressive Cas. Ins. Co., 907 So.2d 1248, 1253 (Fla. 5th DCA 2005). In order to preserve improprieties of a trial judge for appellate review, an objection must be made contemporaneously with the prejudicial conduct or comments. Herzog v. State, 439 So.2d 1372, 1376 (Fla.1983); Mathew v. State, 837 So.2d 1167, 1170 (Fla. 4th DCA 2003); Jones v. State, 582 So.2d 110, 111 (Fla. 3d DCA 1991); Williams v. State, 305 So.2d 45 (Fla. 1st DCA 1974). Johnson acknowledges that he made no contemporaneous objections to the trial court’s alleged misconduct to preserve the issue for appellate review, but claims that the court’s actions constituted fundamental error.

“Fundamental error” has been defined “as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Rimmer v. State, 825 So.2d 304, 323 (Fla.2002) (quoting Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)). For an error to be fundamental, it must be basic to the judicial decision under review and equivalent to a denial of due process. Randall v. State, 760 So.2d 892, 901 (Fla.2000). Thus, not every act or comment with potential to be interpreted as demonstrating less than total neutrality on the part of the trial judge, will be deemed fundamental error. Mathew, 837 So.2d at 1170.

In the case before us, the State’s evidence against Johnson consisted primarily of testimony from the officer-victim, Deputy Tucker. At one point during the trial, as the defense attempted to show that recordings of the alleged assault could have been introduced, the judge intervened and helped establish that Deputy Tucker never puts radio transmissions into evidence:

[THE STATE]: Do you routinely get the recordings from every time that you talk on the walkie-talkie during a criminal investigation?
[DEFENSE]: I’m going to object, Your Honor. Not relevant in other cases.
THE COURT: Well, that’s not really relevant, what he does in other cases.
... You know, /all are going kind of far afield, it seems to me like. They didn’t file the transmissions in evidence. They don’t have them.
[THE STATE]: Well, my question to you is, do you routinely file your [radio] transmissions into evidence?
[DEFENSE]: I’m going to object, Your Honor, it’s not relevant.
THE COURT: Well, have you ever filed your recordings in evidence?
[DEPUTY]: Never.
THE COURT: Okay, so you don’t routinely do it, then, right?
[DEPUTY]: No, Sir.
THE COURT: Never been done.

In addition, the court interrupted the State’s redirect examination of Deputy Tucker, suggesting answers that Deputy Tucker adopted:

[THE STATE]: And the call, there was a dispute over domestic versus open line versus whatever was going on. When you responded to that call for service, was there any indication that there was any personal grave danger?
[DEPUTY]: No.
[DEFENSE]: I’m going to object, Your Honor. Calls for speculation.
THE COURT: Well, he didn’t know what — he was just going — he didn’t know what he was getting into. At least I thought that’s what he said, because it was an open line call.
[THE STATE]: Right. And on cross-examination, the question was: So you didn’t know if somebody was dying? You didn’t know if there was somebody that needed your help?
THE COURT: He didn’t know.
[THE STATE]: Right.
THE COURT: You didn’t know what kind of call it was, did you?
[THE STATE]: So he did not know.
THE COURT: You were going over there to check because there was an open-line call.
[DEPUTY]: Yes, sir.
[THE STATE]: Yes.
THE COURT: That’s all he knew.
BY [THE STATE]:
Q. Sir, my question to you is obviously, there’s a big issue here. Why did you decide to try to stop that vehicle that was leaving that parking lot when you were responding to an open-line call? You had no idea what was going on.
[DEPUTY]: It’s midnight. There’s one vehicle leaving in the whole thing. To my knowledge, a crime might have occurred.
[DEFENSE]: Objection, Your Honor.
[THE STATE]: I asked him why he stopped the vehicle.
THE COURT: Well—
[THE STATE]: He’s answering it.
THE COURT: He did — well, how come you didn’t go to the apartment where the call came from first?
[DEPUTY]: Because there’s only one vehicle leaving. I have cars coming from behind — or I have other deputies responding. If he did commit a crime, I’m not going to let him pass and get away and then go up and then see—
THE COURT: Well, I mean, there could have been some other emergency unrelated to that call passing, driving in or out of the parking lot.
[DEPUTY]: Yes, sir, there could be.
[THE STATE]: Right. And Judge, my question to him is—
THE COURT: So it was just your call, you decided to stop the vehicle?
[DEPUTY]: Yes, sir.
THE COURT: Okay.
[THE STATE]: Okay. And Judge, you’re asking questions in the middle of my questions.
THE COURT: Yeah, I can do that.
[THE STATE]: And so — I understand. I just want to make sure they weren’t stepping on each other.
By [THE STATE]:
Q. And so the question was: When you stopped the vehicle, your training and experience, why are you choosing to stop this vehicle instead of running to Apartment 5B?
THE COURT: No, he just said — look, it was a judgment call. He could have gone to the apartment. He saw a vehicle leaving, he didn’t know who was in the vehicle so he stopped the vehicle because otherwise, [a crime victim] might come back at some time and say well, how come, you know, the robber’s driving off, how come you didn’t stop him? You drove right into the parking lot, you came to my apartment, and you know, hey, the robber just got away.
[DEPUTY]: Exactly.
THE COURT: It was a call that he made, based on his experience: Isn’t that right?
[DEPUTY]: Yes, sir.
By [THE STATE]:
Q. So did you believe that behavior to be suspicious?
[DEFENSE]: I’m going to object, Your Honor. That calls for speculation.
THE COURT: I don’t think he said it was suspicious. He just says he made that call to stop that vehicle because he was going to respond to an open-line call and the only activity he saw was the vehicle leaving the parking area.
[THE STATE]: What’s happening is there’s a gap there that I’m trying to close, Your Honor. I’m trying to close the gap of why is he stopping the vehicle and you’re saying it’s his call. Okay, why is it his call? Why is he making the decision to stop the vehicle?
THE COURT: Look, it’s based on his experiences. That’s why he—
[THE STATE]: So based on your experience, what did you believe, based on your training and experience?
THE COURT: No, wait. What he believed — look, he stopped the vehicle.
[THE STATE]: Yes, sir.
THE COURT: Why don’t we go on from there? Why do we need to speculate on why he didn’t turn go to the ... why he didn’t turn on his — why didn’t he turn on his emergency lights when he was traveling there.... He didn’t — sorry. He didn’t do that. It was his call.
[THE STATE]: I’m responding to the cross-examination, Sir.
THE COURT: I understand, but we need to wrap this up, I mean, we’ve been going over it a dozen times.... He stopped the vehicle, it was leaving the parking lot, and that was his judgment call at that time.... And yes, we can always second guess and third guess people but this is what his call was at that time based on his experiences.

Later, when the State sought to introduce cocaine into evidence (Johnson was acquitted of this charge), Johnson’s counsel asked to voir dire Deputy Tucker as to chain of custody. In response, the court admonished both sides in the jury’s presence, as follows:

THE COURT: ... People, you know, we’re not going to take two days to try this case.... I think y’all are making a mountain out of a molehill. Call your next witness. I thought we could speed things up but apparently we can’t.
[DEFENSE]: I’m trying to, Your Honor. I just need to do the cross of him of this particular issue.
THE COURT: Well, look, I said we’re not going to go into it right now. I thought we could speed things up, but fine. Call your next witness and y’all can take this up later....
[THE STATE]: Okay.
THE COURT: I mean, it’s kind of aggravating but that’s the way you want to do it.
[THE STATE]: Actually, Judge, it would be more — this—it could be done — well, it would be more expedient to finish with [this witness] here, sir.
THE COURT: No. She might-look, that may take an hour for y’all to get through the cross—
[DEFENSE]: No, it’s not, Your Hon- or. It’s only a few questions.
[THE STATE]: No. No, we’re not, sir.
THE COURT: Look, we’re going to do it my way.
[DEFENSE]: Yes, sir.
THE COURT: Call your next witness. We’re not going to do it, people. I’m in charge here. We’re going to do it this way. We’re taking entirely too much time on some of these collateral matters. Step down. Call the other officer.

A trial court should scrupulously avoid commenting on the evidence in a case. Whitfield v. State, 452 So.2d 548, 549 (Fla.1984). While a judge may take the initiative to clear up uncertainties in the issues of a case, the law is clear, especially in a criminal prosecution, that the trial court should take great care not to intimate to the jury the court’s opinion as to the weight, character, or credibility of any evidence adduced. Id. This principle is codified in section 90.106, Florida Statutes (2011), which provides that “[a] judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” The basis for this provision emanates from Hamilton v. State, 109 So.2d 422, 424-25 (Fla. 3d DCA 1959), which explained:

The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, it thereby destroys the impartiality of the trial to which the litigant or accused is entitled.

The requirement of judicial impartiality is at the core of our system of criminal justice. Williams v. State, 901 So.2d 357, 359 (Fla. 2d DCA 2005). “The judge must above all be neutral and his neutrality should be of the tough variety that will not bend or break under stress. He may ask questions to clarify the issues but he should not lean to the prosee[u]tion or defense lest it appear that his neutrality is departing from center.” Williams v. State, 143 So.2d 484, 488 (Fla.1962). However, “[ejxtensive participation of the trial judge, such as by excessive questioning of witnesses, may amount to usurping the functions of counsel and be an abuse of the discretion and latitude of the court in such respects, with resultant injury to the rights of a party or parties.” Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 169 So.2d 499, 501 (Fla. 3d DCA 1964). “The very status of the judge as interrogator inevitably means that the answers given by the witness will assume an importance in the mind of jurors otherwise lacking if counsel had instead asked the questions.” Moton v. State, 659 So.2d 1269, 1270 (Fla. 4th DCA 1995). A trial judge who assumes the role of a prosecutor deprives the defendant of due process and commits fundamental error that may be raised for the first time on appeal. Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005); Sparks v. State, 740 So.2d 33, 36 (Fla. 1st DCA 1999).

The record before us reveals that the trial judge actively participated in examining the State’s primary witness on substantive issues. In ruling on objections, the court commented, in front of the jury, on what the evidence had shown, and at times, suggested testimony to the witness, which the witness then adopted. On several occasions, the trial court offered objections to questions when none had been stated by opposing counsel, and excessively criticized counsel for making arguments that it believed were not relevant.

“A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process.” Jassan v. State, 749 So.2d 511, 512 (Fla. 2d DCA 1999). We conclude that the trial court’s conduct vitiated the validity of the proceedings, which requires a new trial before a different judge. See Gonzalez v. Mercy Hosp., Inc., 738 So.2d 955 (Fla. 3d DCA 1999) (holding that trial court’s comments on evidence and participation in cross-examination of witnesses to be reversible error); Vaughn, 907 So.2d at 1252 (reversing and remanding for new trial with new judge after judge improperly rebuked counsel and im-permissibly commented on evidence); Carr v. Crosby Builders Supply Co., 283 So.2d 60 (Fla. 4th DCA 1973) (reversing wrongful death action where judge’s comment gave jury impression that opposing party did not act negligently); see also Sparks, 740 So.2d 33 (holding that state could not show harmlessness where judge pointed out inculpatory evidence in court file to prosecutor, which denied defendant’s right to due process of law and trial by neutral and detached magistrate).

REVERSED and REMANDED FOR A NEW TRIAL.

LAWSON and JACOBUS, JJ., concur.

      . It is possible that when counsel stood to make an objection, the court anticipated the objection before it could be stated. From an appellate standpoint, the transcript reflects rulings on objections when counsel voiced no objection.


text:
    Sara NICHOLSON, et al. Appellant, v. FIRST FLORIDIAN AUTO AND HOME INSURANCE CO., etc., Appellee.
    No. 5D10-3935.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.
    Shannon McLin Carlyle and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages; Christopher C. Cas-per, of James, Hoyer, Newcomer, Smilja-nich & Yanchunis, P.A., Tampa, and Ward Damon and Ronald S. Nisonson, West, Palm Beach, for Appellant.
    Raoul G. Cantero, of White & Case LLP, Miami, and Stephen E. Goldman and Wystan M. Ackerman, of Robinson & Cole, LLP, Hartford, CT, for Appellee.
   PER CURIAM.

AFFIRMED. See Seminole Cnty. v. Tivoli Orlando Assocs. Ltd., 920 So.2d 818, 821 (Fla. 5th DCA 2006) (holding order on class certification is reviewed for abuse of discretion).

ORFINGER, C.J., EVANDER and COHEN, JJ., concur.


author: COHEN, J.

text:
    Gorkis BUSBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2099.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Gorkis Busby appeals from the judgment and sentence entered after a jury found him guilty of aggravated battery. We affirm in all respects but remand for correction of a scrivener’s error in the judgment. On remand, Busby’s aggravated battery conviction should be reclassified to a first-degree felony.

AFFIRMED and REMANDED for correction of scrivener’s error.

SAWAYA and JACOBUS, JJ., concur.


text:
    Royale HATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1391.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.
    Royale Hatcher, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Hatcher appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm the summary denial of Hatcher’s first eleven (11) claims, but reverse as to Claims XII and XIII. Hatch-er’s allegations in Claim XII are sufficient to warrant an evidentiary hearing. See Ruffin v. State, 957 So.2d 40, 41 (Fla. 1st DCA 2007) (evidentiary hearing warranted where defendant submitted affidavit of alleged participant stating that he and another man, who was not defendant, actually committed robbery and where defendant alleged that in light of evidence offered at trial, this newly discovered evidence would probably produce acquittal on retrial). Additionally, as the State properly concedes, the trial court’s order failed to address Claim XIII. See Bridges v. State, 81 So.3d 616 (Fla. 5th DCA 2012) (when trial court summarily denies one or more grounds of motion for postconviction relief, the order must state its rationale for each issue raised).

AFFIRMED, in part; REVERSED, in part; REMANDED.

PALMER, EVANDER and JACOBUS, JJ., concur.


text:
    Larry ODUM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2735.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.

      Howard H. Babb, Jr., Public Defender and Morris Carranza, Assistant Public Defender, Tavares, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 06-CF-2552-01, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON and JACOBUS, JJ., concur.


text:
    C.L.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3422.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Howard H. Babb Jr., Public Defender and Ruby McGeehan, Assistant Public Defender, Bushnell, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

ON CONFESSION OF ERROR

As the State properly concedes, C.L.B. is being improperly detained in secure detention beyond the 21-day period authorized by section 985.26(2), Florida Statutes (2012); his adjudicatory hearing has been scheduled beyond the 21 days allowed. Accordingly, we grant the petition for ha-beas relief and order that C.L.B. be immediately released from secure detention.

PETITION GRANTED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Calva HASKELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2496.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Calva Haskell, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2009-CF-002359, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, COHEN and JACOBUS, JJ., concur.


text:
    Kara Singleton ADAMS, Appellant, v. Laura BARKMAN and Randall B. Hobbs, Appellees.
    No. 5D10-2610.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Rehearing Denied Nov. 7, 2012.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant.
    Keith R. Mitnik and Alexander M. Cle-mof Morgan & Morgan, P.A., Orlando, for Appellees.
   JACOBUS, J.

Kara Singleton Adams, the defendant below, appeals from the final judgment entered in favor of Laura Barkman and Randall Hobbs, the plaintiffs below, after a jury returned a verdict awarding Barkman and Hobbs a total of $1.3 million in damages. On appeal, Adams contends that the trial court abused its discretion by: (1) granting the plaintiffs’ motion for mistrial based upon the improper conduct of defense counsel, Mr. Fischer, (2) striking Adams’ pleadings without considering all the Kozel factors in order to properly evaluate whether a lesser sanction might be appropriate, and (3) bifurcating the case between negligence and causation and damages. We find no error and affirm.

This case arises out of a motor vehicle accident in which an SUV, driven by Adams, collided with a motorcycle, operated by Hobbs. Following the accident, Hobbs and Barkman initiated a negligence action against Adams. Hobbs contended that the accident occurred when Adams made a sudden lane change into Hobbs’ lane, causing the front of his motorcycle to be struck by the rear of Adams’ SUV. Adams, on the other hand, contended that she was operating the motor vehicle in a single lane, that she did not make any sudden lane changes, and that Hobbs, while operating his motorcycle, rear-ended her SUV. Needless to say, the liability issue was hotly contested in this case.

Prior to trial, the trial court held several lengthy hearings on the various pretrial motions filed by the parties. At the first hearing, the trial court addressed Adams’ motion to bifurcate the trial as to the issues of liability and damages, the plaintiffs’ motion to separate their claims, and the plaintiffs’ motions in limine seeking to exclude the accident report prepared by an investigating Florida Highway Patrol trooper and certain alcohol-related evidence. After hearing arguments from both parties, the trial court determined that plaintiffs’ motions in limine were well-taken and entered an order stating that the defense was not to mention Barkman’s alcohol consumption or the contents of the trooper’s accident report, which included the Trooper’s opinion on the direction Adams’ vehicle was traveling at the time of the accident. However, the court denied both the motion to separate and the motion to bifurcate. After the hearing, the parties stipulated to bifurcating the trial between negligence and “causation and damages.” Ultimately, the trial court accepted the stipulation and a jury trial was set to determine the negligence issues of the parties.

At the next hearing, the trial court addressed the plaintiffs’ third motion in li-mine, which sought to exclude from the first phase of the trial evidence that they were not wearing helmets at the time of the accident. After hearing argument from the parties, the trial court noted that the issue to be tried in the first phase, based on the parties’ stipulation, was whether Adams’ negligence caused the accident, not whether Adams’ negligence caused the plaintiffs’ injuries. Concluding that the failure to wear a helmet had nothing to do with causing the accident, the trial court granted the plaintiffs’ motion and ordered that the helmet issue could not be raised during the first phase of the trial.

After the court denied Adams’ motion for rehearing, requesting that the trial court reconsider its rulings on the motions in limine, the case proceeded to trial. From the outset of the proceedings, Mr. Fischer appeared to be attempting to interject issues previously excluded by the court’s rulings on the motions in limine. First, during voir dire, Mr. Fischer asked the members of the venire whether they rode a bicycle, and when one prospective juror answered in the affirmative, Mr. Fischer asked him if he wore a helmet while riding. There was no objection by the plaintiffs to the question, and the jury was subsequently selected and sworn. Next, during cross-examination of the plaintiffs’ first witness, Mr. Bartoszewicz, Mr. Fischer asked him where he and the plaintiffs had been on the day of the accident and elicited testimony that they had been at Dale’s Ales for several hours celebrating his birthday. Further, when Mr. Bartoszewicz testified that he had taken his motorcycle home after the accident, Mr. Fischer asked him if had gone home to get his helmet. The most egregious violation of the court’s rulings on the motions in limine came when the trooper testified. Despite the fact that the court had advised the trooper, moments before he testified, that he was not to give his opinion as to the direction that Adams’ vehicle was traveling, Mr. Fischer asked the trooper if the evidence he described at the scene was consistent with Adams’ vehicle going straight ahead. It was at that time that the plaintiffs ultimately objected and moved for a mistrial. Because of Mr. Fischer’s conduct, the trial court granted the motion for mistrial and indicated that it was going to impose sanctions.

At a later date, the court held an eviden-tiary hearing on sanctions. During the hearing, Mr. Fischer insisted on testifying and the court permitted him to do so. Mr. Fischer indicated that he believed he had done nothing wrong and his questions were invited by the testimony elicited by the plaintiffs on direct examination. After hearing the testimony and reviewing the file, the court made a lengthy oral finding which was transcribed and attached to the order imposing sanctions. The trial judge, who had many years of experience on the bench, pointed out that he had never been involved in a case like this. The judge cited, among other things, the length of the in limine hearings, Mr. Fischer’s repeated attempts to contest his rulings, and several pretrial discovery issues in which Mr. Fischer may have conducted himself inappropriately but on which the trial judge had given him the benefit of the doubt. At the end of the day, the trial judge felt, after reviewing the factors to be considered in imposing sanctions as set out in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) and Ham v. Dunmire, 891 So.2d 492 (Fla.2004), that the sanction appropriate in this matter was to strike Adams’ pleadings and have a trial on damages only.

Because striking a party’s pleadings is a severe sanction, it is to be used sparingly. Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (citing Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978)). Circumstances in which it is justified include where a litigant or lawyer’s behavior indicates “[a] deliberate and contumacious disregard of the court’s authority!,] ... bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Id. We review a trial court’s decision to strike a party’s pleadings as a sanction for an abuse of discretion. See Houser v. Cnty. of Volusia, 25 So.3d 75 (Fla. 5th DCA 2009).

In this case, the issues giving rise to the sanction were not pretrial discovery violations. Rather, these were violations of the court’s rulings that involved conscious, intentional acts by Mr. Fischer during the course of the trial. After reviewing the record, we find that the trial judge properly considered the Kozel factors, gave Mr. Fischer every opportunity to provide a valid explanation for his conduct, and appropriately struck Adams’ pleadings as a sanction.

We note that the conduct exhibited by Mr. Fischer is a continuing problem with these types of cases. Although the Southern Reporter is replete with cases where appellate courts have granted new trials based on similar behavior, counsel for both plaintiffs and defendants continue to make improper arguments and violate orders of the court. In the last two years, this court has admonished other lawyers regarding such conduct on at least three occasions. See Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012); Jackson v. Pena, 58 So.3d 303 (Fla. 5th DCA 2011); Samuels v. Torres, 29 So.3d 1193 (Fla. 5th DCA 2010). While it is suggested that these cases should be tried on the merits and not attorney shenanigans, the threat of an admonishment and a new trial appears to be of no avail. By sanctioning a party as Judge Dickey did in this ease, maybe attorneys will get the message to either change their tactics or clients will stop hiring them. At any rate, attorneys need to constantly review the Code of Professional Responsibility and conduct themselves in a professional manner so that every party to the cause receives a fair trial.

AFFIRMED.

PALMER and COHEN, JJ., concur.

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

      . Barkman was a passenger on the motorcycle at the time of the accident.

      . The plaintiffs sought to exclude, among other things, evidence of their stop at Dale’s Ales, a pub in DeLand, prior to the accident and Barkman’s alleged blood alcohol content at the time of the accident. The plaintiffs claimed that the probative value of this evidence was outweighed by the danger of unfair prejudice because while there was evidence that Barkman, the passenger on the motorcycle, had several drinks and became intoxicated prior to the accident, there was no evidence that Hobbs, the operator of the motorcycle, had anything to drink or was under the influence of alcohol at the time of the accident.

      .The court determined that the trooper was not competent to render such an opinion and concluded that his testimony at trial would be restricted to what he actually saw after he arrived on the accident scene.

      . The Honorable Alan A. Dickey presided over the first phase of the trial and the sanction hearing. Judge Pleus presided over the damages trial from which this appeal was taken.


text:
    Gary M. DIRK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3770.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Rehearing Denied Nov. 5, 2012.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND

PER CURIAM.

We reconsider this matter on remand from the Florida Supreme Court. See Dirk v. State, 84 So.3d 203 (Fla.2012). We affirm Dirk’s upward departure sentence, finding that any error in the trial court’s failure to apply Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), at Dirk’s resentencing was harmless error. See Galindez v. State, 955 So.2d 517 (Fla.2007). The record demonstrates beyond a reasonable doubt that a rational jury would have found that Dirk had engaged in an escalating pattern of criminal conduct. Barfield v. State, 594 So.2d 259 (Fla.1992).

AFFIRMED.

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Lathadius K. SIMS, Appellant, v. STATE Of Florida, Appellee.
    No. 5D12-1479.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Lathadius K. Sims, Raiford, pro se.
    Pamela Jo Bondi, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

This is Lathadius Sims’ thirteenth pleading regarding his 2003 conviction, entered pursuant to a guilty plea. In this case, Sims again appeals the trial court’s denial of his latest post-conviction motion, raising an issue which, as the trial court informed him, had already been addressed and affirmed by this Court. The trial court further found that Sims “has filed repetitious and frivolous pleadings which diminish the Court’s ability to devote its limited resources to consideration of legitimate claims.” We agree and therefore ban Sims from filing future pro se pleadings with this Court concerning this case. See Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (defendant prohibited from further pro se filings regarding same case when pleadings have become “frivolous, an abuse of process, and a waste of the taxpayers’ money”); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”).

The Clerk of this Court is therefore directed not to accept any further pro se filings concerning Orange County Circuit Court Case No. 03-CF-3110 from Sims, and any further pleadings will be summarily rejected by the Clerk unless filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to Sims and the appropriate institution for consideration of available disciplinary procedures. See §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2011). Rehearing will not be entertained.

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Appellant and the Department of Corrections.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    HERNANDO COUNTY, Petitioner, v. Kevin MILLS, Respondent.
    No. 5D12-2579.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    Douglas T. Noah and Donna M. Hansen of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Petitioner.
    Gary D. Adel of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Respondent.
   PER CURIAM.

Petitioner seeks prohibition to prevent the circuit court from exercising jurisdiction over its dispute with Respondent, its former employee. Petitioner argues that The Florida Public Employer Relations Commission (“PERC”) has exclusive jurisdiction over the matter because Respondent’s complaint merely alleges an unfair labor practice, a matter within the exclusive jurisdiction of PERC.

Petitioner filed a motion to dismiss Respondent’s complaint, raising the jurisdiction issue prior to filing an answer or any motion testing the legal sufficiency of the complaint. The complaint itself is not a model of clarity. Respondent alleged that he was wrongfully discharged from his position as a road maintenance employee in violation of the Collective Bargaining Agreement (“CBA”) between Petitioner and The International Brotherhood of Teamsters. The CBA prohibits discharges, except upon “just cause,” and provides a multiple-step grievance process that culminates in binding arbitration as the final step. In this case, Respondent alleges that he pursued the grievance through the penultimate step, which was resolved in Petitioner’s favor. Respondent further alleges that he requested binding arbitration, the final step, but it was not afforded to him. Respondent does not allege why he was not afforded binding arbitration, but his complaint seeks only a declaration that there was no just cause for his firing as well as money damages.

Petitioner correctly asserts that unfair labor practices claims fall within the exclusive jurisdiction of PERC. Browning v. Brody, 796 So.2d 1191 (Fla. 5th DCA 2001). The dilemma we have in addressing the issue here is that the complaint is too vague to determine the precise legal theory upon which it is based. For example, the complaint alleges violations of both “procedural” and “substantive” due process. As for the procedural due process claim, the complaint does not identify the source of the alleged property right, nor does it state how the alleged right was ostensibly violated. See McRae v. Douglas, 644 So.2d 1368 (Fla.1994) (complaint for procedural due process violation must sufficiently allege property right in employment). Although Respondent admits that a due process claim is not the “heart” of his claim, he does not abandon that potential claim. On the other hand, Petitioner concedes that a due process claim would not fall within PERC’s exclusive jurisdiction but nevertheless agrees that Respondent does not make a due process claim. We agree with Petitioner on both points but cannot conclude at this procedural juncture that Respondent cannot assert a claim that falls within the jurisdiction of the circuit court. For that reason, we deny the petition.

PETITION DENIED.

PALMER, TORPY and JACOBUS, JJ., concur.

      . The "substantive due process” claim does not appear to be available in this context. City of Lauderhill v. Rhames, 864 So.2d 432, 439 (Fla. 4th DCA 2003).


text:
    Juan A. HABEYCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2002.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    Juan A. Habeyeh, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and, Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y., Dep’t. of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Andre L. FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2004.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    Andre L. Ferguson, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Charles FETTERLY, Jr., Appellant, v. Suzanne MARMORALE, Appellee.
    No. 5D11-1244.
    District Court of Appeal of Florida, Fifth District.
    Oct. 2, 2012.
    Rehearing Denied Nov. 7, 2012.
    Charles Fetterly, Jr., Perry, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

PALMER, TORPY and COHEN, JJ., concur.


text:
    George WRIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-797.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hollingshead v. State, 846 So.2d 627 (Fla. 4th DCA 2003).

PALMER, LAWSON and EVANDER, JJ., concur.


text:
    Caleb David HULME, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-655.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

GRIFFIN, EVANDER and BERGER, JJ., concur.


text:
    Morris Terrel STRONG, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-277.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Hackley, 95 So.3d 92 (Fla.2012).

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Justin K. DEVILLERE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-92.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

ORFINGER, C.J., GRIFFIN and JACOBUS, JJ., concur.


text:
    Anthony T. SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4201.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Circ.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

GRIFFIN, EVANDER and BERGER, JJ., concur.


text:
    Michael J. DANIELS, Appellant, v. Susan J. SNYDER, Appellee.
    No. 5D12-2752.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.
    Rehearing Denied Nov. 8, 2012.
    Sean P. Sheppard, of J. Scott Gunn, P.A., Fort Lauderdale, for Appellant.
    Leanna S.A. Freeman, St. Augustine, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

TORPY, EVANDER and BERGER, JJ., concur.


text:
    Neal J. HOWARD, JR., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1704.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2012.
    Neal J. Howard, Jr, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012), corrected opinion, 96 So.3d 412 (Fla.2012).

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Carlos Lamar SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5755.
    District Court of Appeal of Florida, First District.
    April 18, 2013.
    Rehearing Denied June 12, 2013.
    Carlos Lamar Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c).

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Michael Tyrone PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1623.
    District Court of Appeal of Florida, First District.
    April 26, 2013.
    Rehearing Denied June 13, 2013.
    Michael Tyrone Parker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Joseph v. State, 42 So.3d 323 (Fla. 4th DCA 2010).

WOLF, WETHERELL, and MAKAR, JJ., concur.


author: VAN NORTWICK, J.

text:
    UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Jamon A. JOHNSON and Chaka Johnson, Appellees.
    No. 1D12-0891.
    District Court of Appeal of Florida, First District.
    April 30, 2013.
    Rehearing Denied June 21, 2013.

      Hinda Klein and Kasey L. Prato of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow & Schefer, P.A., Hollywood, for Appellant.

      J. Phillip Warren and Stephanie A. Taylor of Taylor, Warren & Weidner, P.A., Pensacola, for Appellees.
   VAN NORTWICK, J.

Universal Property and Casualty Insurance Company seeks reversal of a final judgment entered in favor of Jamón A. and Chaka Johnson who prevailed in a breach of contract suit after Universal denied their insurance claim following the discovery of a false statement on the application for insurance. Because, under the policy language at issue here, the policy is deemed void if an insured made false statements, without regard to intent, we reverse.

On March 13, 2008, an accidental fire destroyed the Johnsons’ home. They were insured by Universal Property and Casualty Insurance Company (Universal) and, after the fire, the Johnsons filed a claim with Universal. An investigation ensued and the claim was denied following Universal’s determination that the Johnsons had falsely answered one of the questions on their insurance application. Specifically, the Johnsons had answered “no” to the question: “Have you been convicted of a felony in the last ten years.” In fact, Mrs. Johnson had been convicted of five felonies in July 1998. These felony convictions stemmed from arrests that occurred in October 1995 and September 1997. The initial arrest led to the sentence and a withholding of adjudication. During her probationary period, however, Mrs. Johnson was arrested again; her probation was revoked, she was resenteneed, and an adjudication of guilt entered as to all offenses in 1998. This adjudication occurred eight and a half years prior to the application for insurance.

Following denial of their claim, the Johnsons brought suit seeking damages for breach of contract. Universal filed a counterclaim seeking a declaratory judgment that it was permitted to rescind the insurance contract on the authority of section 627.409(1), Florida Statutes (2007). This statute provides:

(1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

Prior to trial, the Johnsons moved for summary judgment arguing that Universal could not rely on section 627.409(1) because it had adopted, by virtue of the language in the insurance contract, a more stringent standard for rescission on the ground of misrepresentation than the statute provides. According to the Johnsons, on the authority of Green v. Life & Health of America, 704 So.2d 1386 (Fla.1998), a party is free to adopt such a standard and the terms of a contract will control over the statute.

The trial court entered a partial summary judgment ruling that, under Universal’s policy language, Universal would be required to prove at trial that the misrepresentation at issue was intentional and that Universal was entitled to rescind the contract based only upon the commission of an intentional misrepresentation which was material to the acceptance of the risk. The trial court held that the insurance policy, and not section 627.409, was controlling.

At trial, the Johnsons testified that the misrepresentation was unintentional, as they were confused as to when the convictions were actually entered. After the trial court denied Universal’s motion for a directed verdict made at the conclusion of the Johnson’s case in chief, the jury returned a verdict on which it found that the Johnsons did not

knowingly and intentionally [make] a misrepresentation, omission, concealment of fact or an intentionally incorrect statement in their application for insurance which was material to the acceptance of the risk or to the hazard assumed by Universal Property & Casualty Insurance Company[.]

The jury further found

that, if the true facts had been known to Universal Property & Casualty Insurance Company, [it] in good faith pursuant to a policy requirement or other requirement, would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large amount, or would not have provided coverage with respect to the hazard resulting in the loss.

This second finding mirrors the language of section 627.409(l)(b), quoted above.

Universal’s subsequent motions for a judgment notwithstanding the verdict and for a new trial were denied. Thereafter, a final judgment entered in favor of the Johnsons. They were awarded $463,158.89 in total damages, including attorney’s fees, costs and interest.

On appeal, Universal argues that the trial court erred in granting the John-sons’ motion for a summary judgment thereby requiring Universal to prove that the Johnsons’ misrepresentation as to Mrs. Johnson’s criminal history was an intentional misrepresentation before the claim could be denied and the insurance contract voided. In addition, Universal argues that the trial court ultimately should have entered judgment in its favor given the jury’s finding that Universal would not have issued the policy if the truth regarding Mrs. Johnson’s criminal history had been known to it. Universal further argues reversal is required because the jury’s finding of fact that the misrepresentation was unintentional is contrary to the manifest weight of the evidence. We hold this last argument to be without merit. Nevertheless, we agree with Universal that judgment ultimately should have entered in its favor.

The insurance policy provision at issue here provides in pertinent part:
SECTIONS I AND II — CONDITIONS
1. Policy Period. This policy applies only to loss in Section I or “bodily injury” or “property damage” in Section II, which occurs during the policy period.
2. Concealment or Fraud. The entire policy will be void if, whether before or after a loss, an “insured” has:
a. Intentionally concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements;
relating to this insurance.

Universal argues that subsection 2c of the policy provision at issue does not require that the insured’s false statements be intentional. Universal asserts that, since subsections 2a and 2b do require proof of intent, there would be no need to include subsection 2c in the policy if not for the purpose of rendering the policy void if the insured has made even innocent misrepresentations. Further, Universal submits that under section 627.409(1), Florida Statutes, it was permitted to deny the claim given the misrepresentation, whether intentionally made or not.

The applicable standard of review is de novo. See Chandler v. Geico Indem. Co., 78 So.3d 1293, 1296 (Fla.2011) (when the issue on appeal stems from the trial court’s ruling on summary judgment based upon the interpretation of an insurance contract, the appellate court’s standard of review is de novo).

Insurance contracts are construed according to their plain meaning and, if a policy provision is clear and unambiguous, it should be enforced according to its terms. Taurus Holdings, Inc. v. United States Fid. & Guaranty Co., 913 So.2d 528 (Fla.2005). When a contract of insurance is subject to multiple interpretations, the policy language should be construed liberally in favor of the insured and strictly against the insurer as author of the contract. Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla.2002).

The general rule in Florida is that “a misstatement in, or omission from, an application for insurance need not be intentional before recovery may be denied pursuant to 627.409.” Kieser v. Old Line Life Ins. Co. of Am., 712 So.2d 1261, 1263 (Fla. 1st DCA 1998); Casamassina v. U.S. Life Ins. Co. in the City of New York, 958 So.2d 1093 (Fla. 4th DCA 2007). In Gainsco v. ECS/Choicepoint Servs., Inc., 853 So.2d 491, 493 (Fla. 1st DCA 2003), this court explained that section 627.409(1) allows for the voiding of a policy “for misrepresentation or omission without regard to whether the same was intentional.” This case law relating to insurance policies is consistent with the general principle in contract law that, to obtain rescission of a contract, based upon misrepresentation, it is not necessary that

the party making the misrepresentation should have known that it was false. Innocent misrepresentation is sufficient, for though the misrepresentation may have been made innocently, it would be unjust and inequitable to permit a person who has made false representations, even innocently, to retain the fruits of a bargain induced by such misrepresentation.

27 Williston on Contracts § 69:49 (4th ed.).

We agree with the Johnsons that under Green v. Life & Health of America, 704 So.2d at 1390-91, “parties are free to ‘contract-out’ or ‘contract around’ state or federal law with regard to an insurance contract, so long as there is nothing void as to public policy or statutory law about such a contract.” (Quoting King v. Allstate Ins. Co., 906 F.2d 1537, 1540 (11th Cir.1990)). For example, in Green, the Supreme Court found that, where the insurance application provided that the insured’s answers in the application are “full, true and complete to the best of my knowledge and belief,” the insurer had adopted “a different ‘knowledge and belief standard in its application thereby bypassing the rigid statutory standard” in section 627.409. Mat 1391.

We do not read the insurance policy at issue, however, to impose a more stringent standard for voiding a policy than is provided in the statute. Under section 627.409(1) an insured’s misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the policy if “the misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.” Thus, under the statute, the “[t]he plain meaning of the statute indicates that, where either an insurer would have altered the policy’s terms had it known the true facts or the misstatement materially affects risk, a nonin-tentional misstatement in an application will prevent recovery under an insurance policy.” Green, 704 So.2d at 1389 (quoting Continental Assurance Co. v. Carroll, 485 So.2d 406, 409 (Fla.1986)). As noted, the policy here provides in pertinent part:

2. Concealment or Fraud. The entire policy will be void if, whether before or after a loss, an “insured” has:
a. Intentionally concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements;
relating to this insurance.

We agree with Universal that, given the language of subsection 2a, subsection 2c would be superfluous if a “false statement” under 2c included only intentionally false statements. A contract is not to be read so as to make one section superfluous, and so “[a]ll the various provisions of a contract must be so construed ... as to give effect to each.” University of Miami v. Frank, 920 So.2d 81, 87 (Fla. 3d DCA 2006); ProTherapy Assocs., LLC v. AFS of Bastian, Inc., 782 F.Supp.2d 206, 212-13 (W.D.Va.2011). Further, a contract will not be interpreted in such a way as to render a provision meaningless when there is a reasonable interpretation that does not do so. Moore v. State Farm Mut. Auto., Ins. Co., 916 So.2d 871, 877 (Fla. 2d DCA 2005).

“Insurance contracts, like other contracts, ‘should receive a construction that is reasonable, practical, sensible, and just.’ ” State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031 (Fla. 2d DCA 2009) (quoting Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004)). Moreover, “a single policy provision should not be read in isolation and out of context, for the contract is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, endorsements, .or riders.” State Farm Mut. Auto. Ins. Co. v. Mashburn, 15 So.3d 701, 704 (Fla. 1st DCA 2009). We do not read the language in section 2 of the policy here as creating a contractual right to void the policy that is more stringent that the provisions of section 627.409(1).

Thus, under the policy here and under section 627.409(1), a misrepresentation “need not be fraudulently or knowingly made but need only affect the insurer’s risk or be a fact which, if known, would have caused the insurer not to issue the policy or not to issue it in so large an amount.” Fabric v. Provident Life & Acc. Ins. Co., 115 F.3d 908 (11th Cir.1997) (citing Old Southern Life Ins. Co. v. Kirby, 522 So.2d 424 (Fla. 5th DCA 1988)); see First Nat’l Bank Holding Co. v. Fidelity & Deposit Co. of Maryland, 885 F.Supp. 1533 (N.D.Fla.1995). Accordingly, given the jury’s fact findings, the trial court should have entered a judgment in favor of Universal.

We are not persuaded by the Johnsons’ argument that subsection 2c should be read as referring only to an intentional misstatement on the basis that the broader section in which this subsection is located, section 2, is entitled “Concealment or Fraud,” conduct which the Johnsons assert is always intentional. This court has held that “the headings or subheadings of a document do not dictate the meaning of the entire agreement, especially where the literal language of the heading is contrary to the agreement’s overall scheme.” Hinely v. Florida Motorcycle Training Inc., 70 So.3d 620, 624 (Fla. 1st DCA 2011); see also Moore v. State Farm Mut. Auto., Ins. Co., 916 So.2d at '875 (“[T]he intention of the parties must be determined from an examination of the entire contract and not from separate phrases or paragraphs.”); Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d 980, 987 n. 3 (Fed.Cir.2009) (“[T]his court is unwilling to resolve a pivotal issue of contract interpretation based on the tense of section headings where doing so would conflict with the plain reading of operative language elsewhere in the contract.”).

We acknowledge that other jurisdictions have interpreted differently contract provisions similar to the one at issue in the case before us. For example, in the unreported decision of In re Head, 2005 WL 1845098 (Bankr.E.D.Mich.2005), the reviewing court considered the question of whether an untrue statement would render void an insurance contract which provided that the contract would be rendered void if the insured “made false statements.” While the insurer in Head made the argument that the making of a false statement does not require an intent to deceive, the reviewing court held that even the clause “make false statements” requires a “showing of an intent on the part of the insured” before a policy can be voided. 'Id. at 5. See also Flowers v. IDS Property Cas. Ins. Co., 2012 WL 5906728 (E.D.Mich. November 26, 2012), Simms v. Mutual Benefit Ins. Co., 137 Fed.Appx. 594 (4th Cir.2005), and Mendez v. Nationwide Prop. and Cas. Ins. Co., 910 F.Supp.2d 784, 2012 WL 4518987 (D.Md. Sept. 28, 2012).

Florida law differs. As noted, pursuant to section 627.409, the legislature has mandated that “any misrepresentation, innocent or intentional, will void an insurance contract if the misrepresentation ‘is material either to the acceptance of the risk or to the hazard assumed by the insurer’ or ‘[i]f the true facts had been known to the insurer ..., the insurer in good faith would not have issued the policy....’” GRG Transport, Inc. v. Certain Underwriters at Lloyd’s, London, 896 So.2d 922, 925 (Fla. 3d DCA 2005) (bold added; quoting § 627.409); see also Nationwide Mut. Fire Ins. Co. v. Kramer, 725 So.2d 1141 (Fla. 2d DCA 1998); Kaufman v. Mutual of Omaha Ins. Co., 681 So.2d 747 (Fla. 3d DCA 1996); Celtic Life Ins. Co. v. Fox, 544 So.2d 245 (Fla. 2d DCA 1989); Preferred Risk Life Ins. Co. v. Sande, 421 So.2d 566 (Fla. 5th DCA 1982).

In sum, the insurance contract here does not adopt a more stringent standard than what is provided in section 627.409. Thus, because neither the contract nor Florida statutory law requires that a misrepresentation be intentionally made for the contract to be voided, the trial court erred in granting summary judgment requiring that Universal was required to prove an intent to deceive. Further, given the jury’s finding as to the materiality of this misrepresentation, the contract of insurance is void. The judgment is therefore REVERSED.

WOLF and LEWIS, JJ., concur.


text:
    Arrington R. WELLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1681.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Rehearing Denied June 13, 2013.

      Arrington R. Wells, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004); see also Pettway v. State, 776 So.2d 930 (Fla.2000).

WOLF, WETHERELL, and MAKAR, JJ., concur.


text:
    Alexandro SERRANO and Roland P. Tan, Jr., Esq., Appellants, v. DEL AIR and Amerisure, Appellees.
    No. 1D12-3479.
    District Court of Appeal of Florida, First District.
    May 10, 2013.
    Rehearing Denied June 13, 2013.
    Roland P. Tan, Jr., Orlando, for Appellants.
    William H. Rogner, Winter Park, and Jamey S. Rodgers of McDonald & Rodgers, P.A., Altamonte Springs, for Appel-lees.
   PER CURIAM.

AFFIRMED. See Kauffman v. Community Inclusions, Inc./Guarantee Ins. Co., 57 So.3d 919 (Fla. 1st DCA 2011) (rejecting equal protection, due process, separation of powers, and access to courts challenges to statutory limitation on award of attorney’s fees found in section 440.34, Florida Statutes (2009)).

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


author: TAYLOR, J.

text:
    EARLY AUCTION COMPANY, an Ohio Limited Liability Company, Appellant, v. Leo KOELZER, Appellee.
    No. 4D12-4357.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Bruce A. Christensen and Chad J. Gott-lieb of Richman Greer, P.A., Miami, for appellant.
    Woodward C. Warrick, of Woodward Warrick, P.A., Fort Lauderdale, for appel-lee.
   TAYLOR, J.

This appeal arises from a lawsuit brought by the plaintiff Leo Koelzer, a Broward County resident, against Early Auction Company, an Ohio auction house, for negligently representing that a lamp which the plaintiff bid on and purchased was an authentic Tiffany Studios lamp. The auction was held in Kentucky, but the plaintiff bid telephonically from his Florida home through an Early Auction employee and won the bid on the lamp. Months later, the plaintiff found out that the Tiffany Studios Lamp sold by Early Auction was a fake. Early Auction appeals the trial court’s denial of its motion to dismiss the plaintiffs complaint for lack of personal jurisdiction and improper venue. We reverse as to the venue issue and hold that the trial court erred in refusing to enforce the mandatory forum selection clause published in the Terms and Conditions of the defendant’s auction. We need not address the defendant’s alternative argument that the complaint should have been dismissed for lack of personal jurisdiction.

The enforceability of a forum selection clause is reviewed de novo. See Lopez v. United Capital Fund, LLC, 88 So.3d 421, 423 (Fla. 4th DCA 2012). “A party contesting the venue selected by the plaintiff has the burden of clearly proving that the venue selected by the plaintiff is improper.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Bank of Melbourne & Trust Co., 238 So.2d 665, 667 (Fla. 4th DCA 1970). However, “[a]s a general principle, the trial court must honor a mandatory forum selection clause in a contract in the absence of a showing that the clause is unreasonable or unjust.” Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999). “If the venue clause is phrased in mandatory terms, each party has a contractual right to demand that the case be litigated in the forum referred to in the contract.” Id.

Forum selection clauses are scrutinized under a fundamental fairness standard, but a party contesting enforcement of a forum selection clause bears the “heavy burden” of demonstrating why enforcement would be unreasonable. Norwegian Cruise Line, Ltd. v. Clark, 841 So.2d 547, 550 (Fla. 2d DCA 2003). The relevant inquiry is whether the terms of the clause were reasonably communicated to the consumer and are otherwise fundamentally fair. Sun Trust Bank v. Sun Int’l Hotels, Ltd., 184 F.Supp.2d 1246, 1259 (S.D.Fla.2001). This test “takes into account both the physical characteristics of the contract itself, and also any extrinsic factors indicating the plaintiffs ability to become meaningfully informed and to reject the contractual terms at stake.” Id.

“In order to be enforceable the forum-selection clause in a form contract must reasonably warn the consumer that the terms and conditions are important matters affecting legal rights.” Id. at 1259-60 (citing Hirsch v. Klosters Rederi A/S, 521 So.2d 316, 317 (Fla. 3rd DCA 1988)). “Thus, not only must the operative language be sufficiently clear as to its import and meaning, but the clause itself must also be physically conspicuous and ‘eye-catching’ in the printed document.” Id. at 1260. “Features such as size of type, conspicuousness and clarity of notice on the face of the contract, and the ease with which the plaintiff can read the provisions are all important considerations which, again, must be assessed on a case-by-case basis.” Id.

Auctions, however, present a unique circumstance because the “terms on which goods are to be sold at auction are often made known in advertisements or cata-logues or posted at the place where the auction is to be held.” Restatement (Second) of Contracts § 28, cmt. e (1981). Therefore, unless a contrary intention is manifested, “bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.” Restatement (Second) of Contracts § 28(2) (1981). Comment e to § 28 of the Restatement elaborates on this rule as follows:

Ordinarily bidders are or should be aware of terms so published or announced. A bid need not repeat such terms; it is understood as embodying them. Hence the bidder is held to the published or announced terms, even though he may have neglected to read them or may have arrived at the auction after the announcement was made.

Restatement (Second) of Contracts § 28, cmt. e (1981) (emphasis added).

Accordingly, with regard to auction sales, there is clear authority that “a catalog is effective in defining the conditions of sale.” A. Belanger & Sons, Inc. v. U.S. for Use and Ben. of Nat’l U.S. Radiator Corp., 275 F.2d 872, 375 (1st Cir.1960) (applying Massachusetts law). “Although in auction transactions there is more reason for a prospective purchaser to seek out written conditions of sale, and therefore constructive knowledge could be carried further, we believe that the auction cases ... support a conclusion that a prior statement of conditions of sale, as in a catalog, can be incorporated into the contract of sale.” Id. The test for determining whether the conditions set forth in the catalog are incorporated into the contract is whether “it appears obvious from the catalog that the buyer’s attention is drawn to the terms announced and that the terms apply to the purchase the buyer proposed to make.” Id.

In this case, the plaintiff argues that he cannot be bound by the Terms and Conditions because he did not sign the Terms and Conditions, he was not physically present at the auction to view the Terms and Conditions there, and the trial court believed his testimony that he was unaware of the Terms and Conditions. We reject the plaintiffs arguments and conclude that the trial court erred in refusing to enforce the forum selection clause in the Terms and Conditions of the auction.

The plaintiff, as a bidder in the auction, is held to the published terms of the auction regardless of whether he actually read them. Before the auction, the plaintiff received a catalog setting forth the Terms and Conditions of Sale at Auction, including a forum selection clause. Those terms were prominently set forth in large type on the inside front cover of the catalog, as well as at the end of the catalog. The forum selection clause in this case was a mandatory forum selection clause, providing that “[a]ll disputes arising from an auction or sale shall be resolved in Cincinnati, Ohio.... ” (Emphasis added). Although the forum selection clause itself was near the bottom of the page and was not any more “eye-catching” than the other terms and conditions, it was in reasonably large type and was not hidden or otherwise disguised so as to “sneak by unnoticed.” Sun Trust, 184 F.Supp.2d at 1260. It was obvious from the catalog that a buyer’s attention would be drawn to the Terms and Conditions and that those terms would apply to any sale at the auction. Furthermore, the terms were posted at the auction site, and the plaintiffs agent was physically present at the auction.

The plaintiff, who received the catalog in advance of the auction, had a meaningful opportunity to consider the forum selection clause, and could have rejected it by refusing to bid or by making an offer on terms different from those announced. See Restatement (Second) Contracts § 28, cmt. e (1981) (“Theoretically, a bidder could make an offer on terms different from those announced, but bidders seldom or never do so.”). In essence, by choosing to bid on the lamp at the auction, the plaintiff “offered” to purchase the lamp under the Terms and Conditions advertised by the auction house. Because the plaintiff has failed to show that enforcement of the forum selection clause is unreasonable or unfair, the plaintiff is bound by the forum selection clause.

In sum, the forum selection clause is enforceable and compels us to conclude that venue is improper in Florida. We therefore reverse the order on appeal and remand with instructions that the trial court dismiss the case for improper venue.

Reversed and Remanded.

MAY, C.J. and GERBER, J., concur.

      . A court need not decide an issue of personal jurisdiction if a venue issue requires dismissal. See Leroy v. Great W. United Corp., 443 U.S. 173, 180-81, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979) (when there is a sound prudential justification for doing so, a court may consider venue before personal jurisdiction).

      . In Sun Trust, for example, the court found that "contrary to plaintiff’s assertion, the clause is not hidden among other print or physically disguised so as to sneak by unnoticed." Id. However, the court refused to enforce the clause because it was presented to the decedent’s mother for the first time after she had already flown to tire defendants’ hotel in the Bahamas, and thus the mother did not have a reasonable opportunity to consider or reject the forum selection clause. Id. at 1260-61.

      . The plaintiff’s complaint specifically alleged that an agent of the plaintiff was physically present at the auction.