author: SILBERMAN, Judge.

text:
    DEPARTMENT OF AGRICULTURE, Department of Children and Family Services, Department of Juvenile Justice, Department of Corrections, and Troy Tidwell, Appellants, v. Bryant MIDDLETON, William Horne, Roger Kiser, and Jimmy Jackson, individually and on behalf of all others similarly situated, and Robert E. Curry, Appellees.
    No. 2D09-2274.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      Davisson F. Dunlap, III, and Davisson F. Dunlap, Jr., of Dunlap & Shipman, P.A., Tallahassee, for Appellants.
    Thomas D. Masterson and Gregory Hoag of Masterson Law Group, P.A., St. Petersburg; James D. Beach of Law Offices of James D. Beach, P.A.; and Raymond T. Elligett, Jr., Mark P. Buell, and Shirley T. Faireloth of Buell & Elligett, P.A., Tampa, for Appellees Bryant Middleton, William Horne, Roger Kiser, and Jimmy Jackson.
    No appearance for Appellee Robert E. Curry.
   SILBERMAN, Judge.

The underlying case is a class action lawsuit filed in Pinellas County by Bryant Middleton, William Horne, Roger Kiser, and Jimmy Jackson (“the Plaintiffs”), individually and on behalf of former juvenile residents of two Florida Reform Schools for Boys. The complaint seeks money damages against the Department of Agriculture, the Department of Children and Family Services, the Department of Juvenile Justice, the Department of Corrections (“the State Agencies”) and two former employees of the reform schools, Troy Tidwell and Robert E. Curry. The State Agencies and Tidwell (together “the Defendants”) seek review of a nonfinal order denying their motion to transfer venue. We reverse because the State Agencies are entitled to have the case transferred to Leon County under the home venue privilege.

The complaint alleges causes of action against the State Agencies, Tidwell, and Curry for violations of sections one, eight, and nineteen of the Declaration of Rights of the Florida Constitution. The complaint also alleges causes of action against Tidwell and Curry individually for the torts of assault and battery and intentional infliction of emotional distress.

In response to the complaint, the State Agencies filed a motion to transfer venue. The State Agencies asserted that the common law home venue privilege entitled them to have the actions transferred to Leon County, where the State Agencies are headquartered. The State Agencies also asserted that venue for the actions against Tidwell and Curry was proper only in Jackson County. The State Agencies requested that the court transfer venue to Jackson County or Leon County. The State Agencies suggested that even though they were entitled to have venue transferred to Leon County, Jackson County would be a proper venue in “the interests of justice, judicial economy, and taxpayer concerns.” Further, they argued that there was no proper basis for venue in Pinellas County.

Tidwell also filed a motion to transfer venue in which he asserted that venue for the actions against him was proper only in Jackson County. He acknowledged that venue for the State Agencies would be appropriate in Leon County, and he requested that the court transfer venue to Jackson County or Leon County.

The court held a hearing on the State Agencies’ motion, which defendant Tidwell adopted. The Plaintiffs argued that the home venue privilege was not absolute and asserted that they needed more time to conduct discovery to locate other potential defendants or prove that some of the Plaintiffs’ causes of action arose in Pinellas County. The Plaintiffs also argued that the State Agencies waived the home venue privilege by seeking to have the case tried in Jackson County. The State Agencies reiterated their position that they had an absolute right to venue in Leon County but expressed a willingness to waive their venue privilege only as to Jackson County.

The trial court recognized that the home venue privilege appeared to be absolute but agreed "with the Plaintiffs that the motion was premature. The court denied the motion “without prejudice.” The court informed the parties that “[t]he defense can bring [the motion] back after the Plaintiffs have had a chance to review the discovery, and I would say that would be at least 30 days, from the amount of pages that it consists of.”

On appeal, the Defendants argue that the home venue privilege is absolute and that the trial court erred in denying the motion to transfer venue because venue is proper only in Jackson County or Leon County. The Defendants also argue that venue for the action against Tidwell is proper only in Jackson County, where he resides and where the causes of action against him arose.

The Plaintiffs raise three arguments against the application of the home venue privilege. First, the Plaintiffs argue that this court is without jurisdiction to review the order on appeal because it is not a final determination on venue. Second, the Plaintiffs argue that the State Agencies waived the home venue privilege. Third, the Plaintiffs argue that the joint tortfea-sor exception to the home venue privilege applies.

As to the Plaintiffs’ jurisdictional argument, we are unconvinced that this court lacks jurisdiction to consider this appeal. Florida Rule of Appellate Procedure 9.130(a)(3)(A) provides for interlocutory review of nonfinal orders that “concern venue.” This language provides for the appeal of orders that fix the locus of the action. See Dep’t of Mgmt. Servs. v. Fastrac Constr., Inc., 701 So.2d 1200, 1201 (Fla. 5th DCA 1997); Paz v. Valencia, 561 So.2d 1275, 1276 (Fla. 4th DCA 1990); Rosie O’Grady’s, Inc. v. Del Portillo, 521 So.2d 183, 184 (Fla. 3d DCA 1988). While the order on appeal denies the Defendants’ motion to transfer venue “without prejudice,” it fixes the locus of the action in Pinellas County until such time as the Defendants succeed in bringing the motion to transfer venue back before the court. The order in this case is therefore a nonfi-nal order that “concern[s] venue.”

Turning to the merits, the Florida Supreme Court has explained the common law home venue privilege as follows:

It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters. Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.

Bush v. State, 945 So.2d 1207, 1212 (Fla.2006) (quoting Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla.1977) (citations omitted)).

Unless a recognized exception applies, “ ‘the home venue privilege appears to be an absolute right.’ ” Id. (quoting Jacksonville Elec. Auth. v. Clay County Util. Auth., 802 So.2d 1190, 1192 (Fla. 1st DCA 2002)). A trial court is therefore bound to apply the privilege unless it determines that a recognized exception applies. Fla. Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1288 (Fla.2004). The supreme court has recognized four exceptions to the home venue privilege: (1) waiver, (2) the “sword wielder” exception, (3) suit against the governmental defendant as a joint tortfeasor, and (4)petitions for access to public records. Id. at 1287-89.

The governmental agency bears the initial burden of proving its entitlement to the home venue privilege. Fish & Wildlife Conservation Comm’n v. Wilkinson, 799 So.2d 258, 260 (Fla. 2d DCA 2001). “The burden then shifts to the plaintiff to plead and prove” that an exception to the privilege applies. Id. at 261. Only if the plaintiff pleads sufficient allegations and proves that an exception exists must the governmental agency present conflicting evidence on the issue. Id.

In this case, the parties do not dispute that the State Agencies maintain their principal headquarters in Leon County. The Plaintiffs argue that two of the exceptions to the home venue privilege apply. The first exception asserted by the Plaintiffs is the waiver exception. Governmental defendants may waive the home venue privilege by moving to transfer venue from their home venue to another venue, see Mansfield v. Singletary, 610 So.2d 76, 77 (Fla. 1st DCA 1992), or by submitting to the jurisdiction of the court in which the plaintiff has filed suit, see Smith v. Williams, 160 Fla. 580, 35 So.2d 844, 848 (1948).

The Plaintiffs argue that the State Agencies waived the home venue privilege by seeking to transfer venue to Jackson County or Leon County. However, the State Agencies consistently asserted their entitlement to the home venue privilege. At the same time, the State Agencies recognized that venue for the Plaintiffs’ actions against Curry and Tidwell would be proper in Jackson County. Accordingly, the State Agencies suggested that they would be willing to have the case tried in either of the two counties. At no time did the State Agencies agree to submit to venue in Pinellas County or submit to the jurisdiction of the Circuit Court located in Pinellas County.

The second exception asserted by the Plaintiffs is the joint tortfeasor exception. A trial court has the discretion to refuse to apply the home venue privilege when a party sues a governmental agency as a joint tortfeasor. Bd. of County Comm’rs v. Grice, 438 So.2d 392, 395 (Fla.1983). The court must consider “justice, fairness, and convenience under the circumstances of the case,” giving the home venue privilege substantial consideration. Id. The court may decide to transfer the whole case, sever and transfer the cause of action against the governmental entity, or retain the whole case. Id.

The Plaintiffs claim they are entitled to the joint tortfeasor exception because they sued the State Agencies for “constitutional torts.” The Defendants claim that the Plaintiffs are not entitled to the joint tort-feasor exception because their causes of action against the State Agencies are for constitutional rights violations, not torts. Additionally, the Defendants claim that the State Agencies are not joint tortfeasors with Tidwell or Curry because the complaint does not allege that they acted together in committing a single wrong. Furthermore, the Defendants point out that even if their causes of action could be construed as torts, none of those torts occurred in Pinellas County.

Whether the Plaintiffs sued the Defendants as “joint tortfeasors” is beside the point if the Plaintiffs did not establish a statutory basis for venue for the actions against any defendants in Pinellas County. See Levy County Sch. Bd. v. Bowdoin, 607 So.2d 479, 481 (Fla. 1st DCA 1992) (“Ixn-plicit in this exception is that there must be a statutory basis for venue outside the county of the governmental entity.”). The applicable venue statute provides for venue “in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” § 47.011, Fla. Stat. (2008). It is undisputed that neither of the individual defendants named in the complaint reside in Pinellas County and there is no property in litigation. As set forth in the complaint, the causes of action accrued at the two Florida Reform Schools for Boys, neither of which is located in Pinellas County.

The Plaintiffs argue that (1) other potential defendants may reside in Pinellas County and (2) the causes of action could have arisen in Pinellas County if the boys were sent to the reform schools from Pi-nellas County. The Plaintiffs claim that further discovery is necessary to develop these facts. However, at the time the court ruled on the motion to transfer venue, the State Agencies had met their burden of proving entitlement to the home venue privilege and the Plaintiffs had not pleaded sufficient facts to meet their burden of proving that an exception to the privilege applied. Thus, the trial court erred in denying the Defendants’ motion to transfer venue on this basis.

We also conclude that venue for defendant Tidwell is not proper in Pinellas County. Tidwell submitted an affidavit in which he attested that he is a resident of Jackson County and has been a resident of Jackson County for over eighty years. Additionally, the complaint alleges that Tidwell committed the torts against the Plaintiffs at the Reform School for Boys in Jackson County.

In conclusion, the trial court erred in denying the Defendants’ motion to transfer venue. On remand, the court should transfer venue to Leon County where the State Agencies have their principal offices. See Flanagan v. Dep’t of Health & Rehab. Servs., 314 So.2d 235, 235 (Fla. 4th DCA 1975) (affirming order transferring venue to county where governmental agency had its principal office even though there were other defendants with a residence in another county). We recognize that the State Agencies and Tidwell are willing to submit to venue in either Jackson County or Leon County. However, the Plaintiffs have indicated that they would prefer to try the case in Leon County, and they are entitled to choose the county to which the action is transferred when venue is proper in more than one county. See Fla. R. Civ. P. 1.060(b).

Reversed and remanded with directions.

ALTENBERND and DAVIS, JJ., Concur.

      . The Plaintiffs have not been able to serve Robert E. Curry with process, and counsel for Defendants asserted below that Curry is deceased. Because Curry did not appear in this appeal, he is listed as an appellee in the case style. See Fla. R. App. P. 9.020(g)(2).

      . The operative complaint is titled "Amended Complaint for Damages-Class Representation."

      . We recognize that the court attempted to deny the motion "without prejudice.” However, we do not find any authority to support such a denial. While a trial court has the authority to grant a continuance for further discovery prior to entering an order determining venue, the court below did not grant a continuance. Instead, the court denied the motion to transfer venue, thereby fixing the locus of the action in Pinellas County.

      . Also, even assuming defendant Curry is not deceased, there is nothing in the record suggesting that Pinellas County would be a proper venue as to him.

      . Although the trial court anticipated that there may be additional discovery relevant to the venue issue, the parties have not suggested that this appeal has become moot due to further discovery or amendment of the pleadings. In fact, the Plaintiffs stated in their brief that if this court were to reverse, they are amenable to venue in Leon County.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Danny HARPER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D09-5006.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2009.
    Danny Harper, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998).

KAHN, LEWIS, and WETHERELL, JJ., concur.


author: GRIFFIN, J.

text:
    Kelvis BELLAMY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1764.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.

      Paula C. Coffman, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Kelvis Lamar Bellamy [“Bellamy”] appeals the judgment and sentence that followed his entry of a plea of no contest to one count of aggravated battery with a deadly weapon. Bellamy contends that the trial court erred by failing to conduct an adequate Nelson inquiry. We find no merit to this claim and affirm.

On April 17, 2009, Bellamy was charged with one count of aggravated battery with a deadly weapon, a second degree felony. The trial court appointed the Public Defender to represent Bellamy. On the day of the trial, the parties appeared before the trial court prepared for trial and extended discussions ensued concerning a plea agreement. Defense counsel explained that Bellamy had been given a chance to consider the possibility of a plea offer, that Bellamy wanted more time for consideration, and that the State had indicated that it was not going to engage in discussion “past picking the jury.” The following exchange ensued.

[DEFENSE COUNSEL]: Mr. Bellamy, you’ve had a chance to think about this, I know not as long as you would like to, but you’ve had a chance to think about it. And would you be willing to consider a plea in this case as opposed to going to trial? I guess that’s the first question.
Well, let me ask you this, because the State has not yet made a formal offer, if the State extended an offer to you of 15 years, not a minimal [sic] mandatory, but a 15-year sentence, would you be -willing to accept that?
THE DEFENDANT: Yeah, I take it. I take it.
[DEFENSE COUNSEL]: Is the State then going to extend that offer to my client?
[THE STATE]: Fifteen years?
[DEFENSE COUNSEL]: Yes, sir.
[THE STATE]: Yeah.

Thereafter, Bellamy entered a “best interest” plea of no contest to the offense of aggravated battery, “removing any reference to the 10-20-Life Statute,” and upon the joint recommendation that he “receive a sentence of 15 years with credit for time served.”

After placing Bellamy under oath, the trial court conducted the plea colloquy. Regarding whether Bellamy had had time to discuss his ease and plea with defense counsel, the following exchange took place:

THE COURT: Have you had enough time, I know you’d like more, but have you had a reasonable time and enough time to talk over your case and your plea with your attorney?
THE DEFENDANT: No, not to me, but I’m ready to just get this over with.
THE COURT: Well, here’s the situation. If you haven’t had enough time, then I can’t take this plea. And I know that in a perfect world you’d like more time, I understand that, but that’s not the question.
THE DEFENDANT: Yeah, I had enough time.
THE COURT: The question is have you had enough time so that you can consider what’s in your own best interest?
THE DEFENDANT: Yes, sir.
THE COURT: And have you?
THE DEFENDANT: Yes, sir.

When asked whether he had been pressured, forced, threatened, or promised anything in relation to entering the no contest plea, Bellamy answered: “No, sir.” Also, when asked whether he was satisfied with his attorney, Bellamy answered: “Yes, sir.”

Defense counsel provided the factual basis for the plea, pointing out that depositions had been taken “of ... almost every witness listed on the State’s discovery exhibit.” Thereafter, in the course of discussing the evidence, he said that it was likely that the victim and Bellamy’s five-year-old son would have testified at trial that Bellamy shot the victim.

Near the end of the colloquy, the trial court asked Bellamy whether he was offering the plea because he thought it was in his best interest, whereupon Bellamy and defense counsel engaged in an off-record discussion. Afterwards, the following exchange took place between the trial court and Bellamy:

THE COURT: Well, I haven’t — I haven’t heard what — specifically what you’re talking about. But let me just advise you.
We’re here to take this plea because you indicated that that’s what you wanted to do. And so I’m asking you if that’s what you want to do on your — kind of your final indication here. If you do not take the plea, what we’re going to do is choose a jury and try this case Tuesday and Wednesday.
So what I’m offering — I’m offering— I’m asking you, are you offering this plea of no contest to aggravated battery, it’s a second-degree felony, upon the plea arrangement that was made because you believe that it is in your best interest to offer the plea of no contest?
THE DEFENDANT: Well, I’m really only offering because I don’t think my attorney [is] really trying to help me.
THE COURT: Well, your attorney has indicated what he believes that the evidence would be. All I can tell you is that your attorney — I can’t say anything about what he’s done particularly in this case because I don’t know. I can tell you he has a very fine reputation. But other than that, I — I mean, I don’t know what goes on with the attorney for the State or the attorney for the Defense in a particular — I never know until I hear the evidence myself when it comes to trial. So I can’t personally comment on that.
We’re not here to do that, though. We’re here to see if you want to enter this plea of no contest to the charge of aggravated battery upon the State’s offer here. Is that what you want to do?
THE DEFENDANT: Yeah.
THE COURT: I’m sorry?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And are you offering the plea of no contest to aggravated battery because in this case you think doing it that way is in your own best interest?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions?
THE DEFENDANT: No, sir.
THE COURT: Is there anything else you want to say?
THE DEFENDANT: No, sir.

Immediately thereafter, the trial court accepted Bellamy’s plea. In doing so, the trial court found that the plea was free and voluntary, that Bellamy understood the consequences of the plea and the waiver of his rights, that Bellamy was alert, intelligent, and competent, that Bellamy had effective assistance of counsel, that there was a sufficient factual basis to support the plea, and that neither party knew of any exonerating DNA evidence.

A pre-sentence investigation was waived, after which the trial court adjudicated Bellamy guilty of aggravated battery and sentenced him to fifteen years in the Department of Corrections with credit for time served. Less than thirty days later, Bellamy addressed a letter to the clerk of court, requesting an appeal. The letter provided in pertinent part:

I Kelvis Bellamy, Case # 2008-01808-CF-52
I am writing to request an appeal. Due to the fact that their was a conflict of interest in my case. My attorney (Mr. Bookhammer) was representing the victims [sic] brother. At the time I took a plea deal on April 20, 2009 for “15” years to the department of corrections. All along (Mr. Bookhammer) led me to believe that he could win this case, all the way until the day of Jury selection. I feel as if I was tricked and rushed to make a hugh decision in my life. I also am here to tell you that I have made the wrong decision. I am respectfully requesting an appeal. Also all along while (Mr. Bookhammer) has represented me he has not done so to the best of his ability. Also on the day of Jury selection I asked that my attorney be removed from my case. I was denied. There for I believe I should of received a Nelson hearing. (To determine the defendant’s Dissatisfaction with the Defense counsel) I was scared because my attorney was not representing me to the best of his ability. I feel as if I was pushed into a plea.
I Kelvis Bellamy am respectfully submitting a request for an appeal, before my “30” days are up.

Defense counsel filed a timely notice of appeal and then filed a motion to withdraw and for appointment of regional conflict counsel. The trial court granted defense counsel’s motion to withdraw and appointed the Office of Criminal Conflict and Civil Regional Counsel for the Fifth District to be Bellamy’s new attorney of record.

Bellamy contends on appeal that the statement he made during the plea colloquy was tantamount to a motion to discharge his counsel and that the trial court erred by failing to conduct a Nelson hearing. We reject this contention based on the entirety of the plea colloquy. No motion to discharge counsel was ever made in any form and Bellamy said he was satisfied with his attorney. His only generalized comment that he did not think his attorney was trying to help him is not sufficient to trigger a Nelson inquiry. See Logan v. State, 846 So.2d 472, 477 (Fla.2003). The trial court made no error by failing to conduct a Nelson inquiry.

We note that Defendant’s letter to the court did include an allegation that his counsel was operating under a conflict of interest. Given the procedural posture of this case, we have no information about this allegation, its merit or lack of merit. If Defendant believes he has a factual basis for this claim, the proper vehicle to determine the facts would be a motion made pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

PALMER and JACOBUS, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . See § 784.045, Fla. Stat. (2008).


author: EVANDER, J.

text:
    WINTER PARK IMPORTS, INC. etc., et al., Appellants, v. JM FAMILY ENTERPRISES, et al., Appellees.
    No. 5D08-2303.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.

      Ladd H. Fassett and Phil A. D’Aniello, Anthony & Taylor, P.A., Orlando, and John W. Forehand, of Lewis, Longman & Walker, P.A., Tallahassee, for Appellant.
    Daniel F. Katz, John E. Joiner and Juli Ann Lund, Williams & Connolly, LLP, Washington, DC, and Dean Bunch and C. Everett Boyd, Jr., of Nelson, Mullins, Riley & Scarborough, LLP, Tallahassee, for Appellee.
   EVANDER, J.

Winter Park Imports, Inc., d/b/a Lexus of Orlando (“Lexus of Orlando”) filed a third amended complaint against Southeast Toyota Distributors, LLC., JM Family Enterprises, Inc., JM Auto, Inc., and JM Auto II, Inc., seeking actual and treble damages, injunctive relief, and attorney’s fees based on alleged violations of the Florida Dealer Act, sections 320.60-70, Florida Statutes (2005). In a thorough and well-reasoned order, the trial court granted summary final judgment in favor of the defendants. We affirm.

Since 1989, Lexus of Orlando has operated a dealership in Orlando pursuant to franchise dealership agreements with Toyota Motor Sales, USA, Inc. (“TMS”). These agreements recognized TMS as the exclusive distributor in the continental United States for Lexus products manufactured by Toyota Motor Corp. (“TMC”). Significantly, these agreements did not award Lexus of Orlando an exclusive dealership in the Orlando area.

Section 320.645 of the Dealer Act prohibits a motor vehicle manufacturer or distributor (or parent, subsidiary, or affiliated company of a manufacturer or distributor) from owning or operating a motor vehicle dealership in this state. Section 320.645(4) contains a specific exception to this prohibition that expressly permits distributors to own dealerships that do not sell the same line-make of the vehicle that the distributor distributes. The line-make of a vehicle is its brand or trade name. See § 320.60(14), Fla. Stat. (2005). Thus, while a manufacturer is prohibited from owning or operating any type of dealership, a distributor is only prohibited from owning a dealership with the same line-make vehicles that it distributes.

Appellees are affiliated companies in that JM Family Enterprises, Inc. is the parent company of Southeast Toyota Distributors (“Southeast”), JM Auto, and JM Auto II. JM Auto operates a Lexus dealership in Margate, Florida, and JM Auto II was seeking to establish a Lexus dealership in Orlando.

In its third amended complaint, Lexus of Orlando contended, inter alia, that JM Auto and JM Auto II were prohibited from operating a Lexus dealership because their affiliated entity, Southeast, fit within the statutory definition of a motor vehicle manufacturer and/or a Lexus distributor. The trial court properly rejected these arguments.

Pursuant to its Vehicle Processing Agreement with TMS, Southeast processes Toyota and Lexus vehicles, which are delivered to it at its facilities in Jacksonville, Florida, and Commerce, Georgia. Southeast’s processing responsibilities include inspecting and washing the vehicles, attaching federally-mandated labels, and installing accessories such as entertainment systems, spoilers, wind deflectors, upgraded wheels and rims, tow hitches, and floor mats. These actions do not, as Lexus of Orlando argues, make Southeast a “manufacturer.” Section 320.60(9) provides that unless the context otherwise requires, a manufacturer is one who “manufactures or assembles motor vehicles or who manufactures or installs on previously assembled truck chassis special bodies or equipment which, when installed, form an integral part of the motor vehicle and which constitute a major manufacturing alteration... .”

As the trial court observed, to “manufacture” means “to make (as raw material) into a product suitable for use,” and “assemble” means to “fit together various parts of, so as to make into an operative whole.” Webster’s 3rd Int’l Dictionary 131, 1378 (1993); see also Sieniarecki v. State, 756 So.2d 68 (Fla.2000) (plain and ordinary meaning of word can be ascertained by reference to dictionary). In the present case, the undisputed facts establish that Southeast does not make anything from raw materials, and does not take a collection of component parts and assemble them to produce a whole product. Indeed, the vehicles that arrive at Southeast’s facilities are fully operable. Furthermore, Southeast does not install any equipment (whether to a previously assembled truck chassis or otherwise) that constitutes either an integral part of the motor vehicle or a major manufacturing alteration. Taken to its extreme, the argument that installation of accessories renders one a manufacturer means that any dealership that installs accessories is operating illegally. A court should reject a statutory interpretation that would yield an unreasonable conclusion or absurd result. State v. Iacovone, 660 So.2d 1371, 1373 (Fla.1995).

We further reject Lexus of Orlando’s contention that because of the major role Southeast plays in the delivery of vehicles to dealers, it falls within the Dealer Act’s definition of a distributor. Section 320.60(5) provides that unless the context otherwise requires, a distributor is one “who, in whole or in part, sells or distributes motor vehicles to motor vehicle dealers or who maintains distributor representatives.” The record reflects that after the completion of its processing responsibilities, Southeast loads the vehicles on trucks for delivery to dealers. Being a significant actor in the delivery chain does not make one a motor vehicle distributor. If it did, the trucking company that transported the vehicles would be a distributor. Obviously, that was not the intent of the Legislature.

The key factors in determining whether one is a distributor clearly supports the trial court’s conclusion that Southeast is not a Lexus distributor. It is TMS, not Southeast, that makes all allocation determinations, ie., the number and type of Lexus vehicles to be delivered to each dealership. It is TMS, not Southeast, which holds title to the vehicles until sold to a dealership. It is TMS, not Southeast, which is in privity with both the manufacturer and the dealerships. Indeed, the franchise agreement under which Lexus of Orlando operates recognizes TMS as the exclusive distributor of Lexus vehicles in the continental United States.

Alternatively, Lexus of Orlando argues that Southeast is a Lexus distributor because it “maintains distributor representatives.” The undisputed facts establish otherwise. Pursuant to its contract with TMS, Southeast permits TMS to utilize a small office located in Southeast’s facilities. The primary function of the few TMS employees who utilize this office is to help ensure that Southeast complies with its contractual obligations to TMS. These employees act exclusively as agents for TMS. As the trial court observed, “the legal connotation of the word ‘maintain’ is to ‘support someone financially’.” Here, there was no record evidence that Southeast provided financial support to, or controlled the activities of, the TMS employees who utilized offices in the space leased by TMS.

We reject, without discussion, the other arguments raised by Lexus of Orlando.

AFFIRMED.

TORPY and LAWSON, JJ., concur.

      . Southeast is a distributor of Toyota line-make vehicles. There is no claim that Southeast's distribution of these Toyota line-make vehicles prohibits it (or an affiliated company) from owning or operating a Lexus dealership.

      . Notably, Lexus, of Orlando installs many of the same accessories that Southeast installs.


author: CASANUEVA, Chief Judge.

text:
    Charles SIMMONS, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 2D08-M186, 2D08-4189, 2D08-4191, 2D08-4192.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2009.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

Charles Simmons, Jr., on probation for various felonies and misdemeanors resulting from a severe cocaine addiction, admitted violating that probation by committing new drug-related crimes. After the court sentenced him on the underlying convictions and the newly admitted charges, he filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(0, claiming his counsel had coerced him into pleading. The circuit court dismissed the motion as a nullity based on Grainger v. State, 906 So.2d 380 (Fla. 2d DCA 2005), because he was represented by counsel at the time he filed the motion, his counsel did not adopt the motion, and the motion did not state that he requested to discharge his counsel. On appeal, he raises as error the trial court’s dismissal of this motion. He also claims that the circuit court erred in imposing $150 for costs of prosecution when the State did not seek or document those costs. We reverse.

In Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), a case factually similar to Mr. Simmons’s, this court followed Grainger and adhered to the view that unless the defendant unequivocally states his desire to discharge counsel, the motion to withdraw the plea should be dismissed as a nullity. 988 So.2d at 76. In Sheppard, we also certified conflict with the Fourth District’s more expansive view in allowing a hearing on the merits of such a motion, as expressed in Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004), and Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005). Sheppard, 988 So.2d at 79.

Like the circuit court in Sheppard, in Mr. Simmons’s case the circuit court properly followed the district precedent of Grainger. While Mr. Simmons’s case was on appeal, the Florida Supreme Court quashed our opinion in Sheppard in Sheppard v. State, 17 So.3d 275, 287 (Fla.2009) (quashing the Second District’s decision in Sheppard and approving the decisions of the Fourth District in Peterson and Ber-mudez ). It specifically held:

In light of these conclusions, we outline the procedure trial courts should follow when a represented defendant files a pro se rule 3.170(i) motion based on allegations giving rise to an adversarial relationship such as counsel’s mis-advice, misrepresentation, or coercion that led to the entry of the plea. In these narrow circumstances, the trial court should not strike the pleading as a nullity even though the defendant did not also specifically include the phrase, “I request to discharge my counsel.” Rather, the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Sheppard, 17 So.3d at 286-87 (footnote omitted). Based on this recent supreme court pronouncement, we must reverse the dismissal of Mr. Simmons’s motion as a nullity and remand for the circuit court to consider his motion to withdraw based on the procedures outlined in Sheppard.

We must also reverse, in part, the imposition of $150 for costs of prosecution. Section 938.27(8), Florida Statutes (2008), provides:

Costs for the state attorney shall be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged, including a proceeding in which the underlying offense is a violation of probation or community control. The court may set a higher amount upon a showing of sufficient proof of higher costs incurred.

The State concedes that the circuit court erred in imposing the $50 amount over the mandatory $100 without requiring the State to provide documentation of the additional amount. Such additional amount may be reimposed if the State complies with the procedural requirements of the statute. See Munoz v. State, 884 So.2d 1070, 1070 (Fla. 5th DCA 2004) (“Such costs may be reimposed if the state can produce the required documentation at a noticed hearing.”).

Reversed and remanded for further proceedings in accordance with this opinion.

ALTENBERND and MORRIS, JJ., Concur.

      . The portion of the statute quoted here was added to section 938.27(8), effective July 1, 2008. See ch. 2008-111, § 43, at 1199, Laws of Fla.


author: ALTENBERND, Judge.

text:
    WORKMEN’S AUTO INSURANCE COMPANY, an insurance company authorized to transact business in the State of Florida, Appellant, v. Wayne FRANZ and Shari Franz, individually, and as husband and wife, Appellees.
    No. 2D09-3898.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2009.

      Kenneth B. Rugh of Hill, Rugh, Keller & Main, P.L., Orlando, for Appellant.
    Nicholas M. Athanason, St. Petersburg, for Appellees.
   ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION

ALTENBERND, Judge.

Workmen’s Auto Insurance Company appeals an order granting summary judgment in favor of Wayne and Shari Franz on a claim for declaratory relief that is included as a count in a lawsuit seeking uninsured motorist benefits. Although we understand why parties may wish for this court to review such determinations prior to the conclusion of the lawsuit, we conclude, at least in this case, that we have no jurisdiction to review the order that Workmen’s Auto Insurance seeks to review. Accordingly, we grant the appellees’ motion to dismiss this appeal as an appeal from a nonfinal, nonappealable order.

Our record is very limited. Mr. and Mrs. Franz filed a complaint against Workmen’s Auto Insurance alleging that Mr. Franz had been in an automobile accident involving an uninsured automobile on July 30, 2005. At the time, Mr. Franz was driving a car that was insured by Workmen’s Auto Insurance. Although the insurance policy is not in our record, it apparently insured more than one automobile but did not provide stacked uninsured motorist coverage. In count I, Mr. and Mrs. Franz seek a determination that they were entitled to stacked coverage because Workmen’s Auto Insurance had not properly provided a statutory renewal notice to them that explained their options in regard to the selection of this coverage. See § 627.727(1), Fla. Stat. (2005). In count II, Mr. Franz seeks a determination of his entitlement to benefits under the policy, and in count III, Mrs. Franz seeks consortium damages. In counts IV and V, the Franzes attempt to make claims for statutory and common law bfid faith.

The trial court has entered an order that resolves only count I, determining that the Franzes are entitled to stacked coverage. At this stage in these proceedings, our record does not reflect the amount of coverage that Workmen’s Auto Insurance agrees its policy provides or the amount that would be available under the trial court’s ruling. We have no basis to know whether the Franzes’ claims will ever exceed the amount of coverage that Workmen’s Auto Insurance agrees that it provides. Thus, it is possible that this issue will be moot at the end of the case. If not, it is an issue that can be appealed to this court at the end of the case.

Florida Rule of Appellate Procedure 9.110(m) allows for certain appeals from judgments that determine the existence of insurance coverage “in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer.” This language addresses coverage issues in so-called “third party” claims where the coverage dispute involves liability coverage; it has no application to coverage disputes for “first party” claims for PIP, medical benefits, or uninsured motorist benefits. See USAA Cas. Ins. Co. v. Jones, 946 So.2d 1127, 1128 (Fla. 1st DCA 2006).

The fact that the order sought to be appealed does not fit within the category described in rule 9.110(m) does not mean that it cannot be appealed under another rule. We have reviewed rule 9.130 and conclude that the order does not fall within any of the categories of nonfinal orders that are appealable under that rule.

We have also considered whether the order might be, or could be transformed into, a partial final judgment that would be appealable under rule 9.110(k). This is a closer question. If the action for declaratory relief had been filed separate from the claim on the insurance contract, or if the claim for uninsured motorist benefits was subject to arbitration under the terms of the contract, then the order determining that this coverage must be stacked would be a final judgment resolving all disputes between the parties in the trial court and it would be appealable as a final judgment. We can only explain that the procedural posture of this case is different. So long as the determination of the right to receive uninsured motorist benefits under this insurance policy and the amount receivable from Workmen’s Auto Insurance for this claim is pending in the trial court, we conclude that these issues are sufficiently interrelated so that this order cannot be reviewed as a partial final judgment. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Pauls v. Blank, 13 So.3d 182, 183 (Fla. 1st DCA 2009); Kidwell v. Gen. Motors Corp., 975 So.2d 503, 504 (Fla. 2d DCA 2007).

Finally, we have considered whether this matter could be reviewed by common law certiorari or other extraordinary petition and conclude that it cannot. Accordingly, we dismiss this appeal without prejudice to further appellate proceedings upon the entry of a final judgment by the trial court.

Dismissed.

WALLACE and CRENSHAW, JJ., Concur.

      . In this count, the complaint seems to intermingle a claim for benefits under the contract with a more generic claim of breach of contract. It does, however, clearly raise issues requiring a resolution of the issue of the uninsured driver's negligence and Mr. Franz's entitlement to compensation for the injuries allegedly caused by the negligence of the uninsured driver.


author: DAVIS, Judge.

text:
    CITIMORTGAGE, INC., Appellant, v. Bruce J. HENRY, Wachovia Bank, National Association, Wachovia SBA Lending, Inc., Melissa A. Henry, Neal J. Loth, Valerie M. Loth, John Doe, Jane Doe, as unknown tenant(s) in possession of the subject property, Appellees.
    Nos. 2D07-5982, 2D08-6252.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2009.
    David J. Tong, John B. Gibbons, and Heather M. Eseriva of Saxon, Gilmore, Carraway & Gibbons, P.A., Tampa, for Appellant.
    Ceci Culpepper Berman of Fowler White Boggs, P.A., Tampa, for Appellee Wachovia SBA Lending, Inc.
    No appearance for remaining Appellees.
   DAVIS, Judge.

In these consolidated appeals, Citimort-gage, Inc., challenges two orders entered by the trial court below in favor of Wacho-via Bank regarding two foreclosure proceedings on the same parcel of real estate. We reverse.

Factual Background

On December 19, 2002, Bruce J. Henry and Melissa A. Henry (the Borrowers) executed and delivered a promissory note and mortgage to Mortgage Electronic Registration Systems Incorporated (MERS) as nominee for Southshore Mortgage Company. This mortgage was recorded on December 26, 2002. Subsequently, the Borrowers executed and delivered to Wachovia a note secured by two mortgages encumbering the same real property described in the MERS mortgage. These mortgages were recorded on July 3, 2003.

In 2006, Wachovia filed its foreclosure action on its mortgages, listing both MERS and Southshore Mortgage Company as defendants. By its complaint, Wa-chovia alleged that its interest was superi- or to any interest that may be claimed by MERS or Southshore because the interest “is not based on a bona fide loan.” Neither defendant filed any type of answer or appearance, and a default was entered against them on May 15, 2007. The trial court then granted Wachovia’s motion for summary judgment on July 18, 2007, and entered a final judgment, stating, “The Plaintiff has established that its interest appeared as a matter of record prior to that of any Defendants.”

On June 1, 2007, after the entry of the default against MERS but prior to the entry of the final judgment of foreclosure in Wachovia’s favor, MERS assigned its mortgage interest to Citimortgage. This assignment was recorded June 26, 2007. Citimortgage then filed its foreclosure proceeding naming Wachovia as a defendant. Wachovia answered and raised res judicata as an affirmative defense, noting that the prior final judgment of foreclosure previously had adjudicated the interest of the MERS mortgage. On November 28, 2007, the trial court granted a final summary judgment on the affirmative defense in favor of Wachovia, and Citimortgage appeals that final judgment.

In related proceedings, Citimortgage also filed its motion to intervene and requested that the Wachovia foreclosure judgment be vacated. This motion was denied, and Citimortgage also appeals the order denying that relief.

Analysis

In resolving this consolidated appeal, the issue that we must address is whether the trial court’s judgment of foreclosure entered on the Wachovia mortgage was valid so as to be a viable affirmative defense to Citimortgage’s foreclosure proceeding. If the prior foreclosure proceeding was a nullity, then not only should the summary judgment on appeal be reversed, but also the order that denied Citimortgage’s request to vacate the prior foreclosure judgment.

Our resolution of this issue is controlled by Cone Bros. Construction Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940). The facts of that case are very similar to those of the instant case. In December 1926, H. Palmer Harn, the property owner, executed and delivered a mortgage to Subdivision Development, Inc.; however, that mortgage was not immediately recorded. Subsequently, on February 22, 1927, the owner executed and delivered a mortgage on the same property to Mrs. M.W. Moore. That mortgage was recorded on March 15, 1927, prior to the recordation of the earlier mortgage. At some point in time later, the Subdivision mortgage was assigned to Cone Brothers Construction Company.

In 1928, Cone Brothers filed a foreclosure action on its mortgage, naming the property owner and Mrs. Moore as defendants. There was no responsive pleading filed by Mrs. Moore, and the trial court entered a final judgment of foreclosure in favor of Cone Brothers. In 1937, Mrs. Moore filed an action to foreclose her mortgage on the real property, naming Cone Brothers as a defendant. Cone Brothers filed its answer and affirmative defenses, alleging that the prior foreclosure action had foreclosed Mrs. Moore’s interest in the property. Additionally, Cone Brothers alleged that its mortgage interest was superior to Mrs. Moore’s because its mortgage was a purchase money mortgage in favor of Cone Brother’s predecessor in interest of which Mrs. Moore had actual knowledge at the time she extended the loan to the property owner.

In addition to the issue we have before us, the Cone Bros, court also had to address the issue of whether Cone Brothers had properly perfected service of process on Mrs. Moore. The trial court struck Cone Brothers’ defenses, and the issues were reviewed by the Supreme Court of Florida.

The court determined that the service of process was sufficient and that the first foreclosure court had jurisdiction over Mrs. Moore. However, the court determined that the trial court was correct in concluding that the Cone Brothers’ foreclosure action was not a proper forum to litigate Mrs. Moore’s mortgage if in fact that mortgage was the superior interest in the real property.

A prior mortgagee may elect for himself the time and manner of enforcing his security. He cannot be compelled to be a party to a suit by a junior encum-brancer foreclosing his lien. It is not proper in foreclosure proceedings to try a claim of title superior or paramount to that of the mortgagor and even if a party having title is made a party and judgment entered after a hearing, it will not bind his interest; but if such claim is set up by a defendant, and this be litigated, then both parties will be bound by the decree.
If it be determined on final hearing that the mortgage of [Mrs. Moore] is entitled to priority over that of [Cone Brothers], then the decree of the lower court, in so far [sic] as it affects the rights of [Mrs. Moore], is ineffectual— [Mrs. Moore] not being [a] proper part[y] to the suit; but if it be found that the contrary is true, then the decree rendered in the former suit is binding on [Cone Brothers].

Cone Bros., 193 So. at 290-91 (citation omitted).

Based on Cone Bros., we reverse the summary final judgment entered in the Citimortgage foreclosure proceeding and the denial of the motion to vacate the Wachovia foreclosure judgment. If the record is clear that Citimortgage’s interest is superior due to the prior recordation of the mortgage, the final judgment of foreclosure entered in favor of Wachovia is “ineffectual” as MERS — the predecessor in interest of Citimortgage — was not a proper party to the foreclosure action and could not be brought into court to litigate its interest in the subject property. Id. However, like the factual circumstances of Cone Bros., the record here is not clear as to the superiority of the Citimortgage interest. That is, Wachovia, as the defendant in the Citimortgage foreclosure action, raises the challenge to validity of the MERS mortgage, alleging that it was not a bona fide mortgage. Accordingly, the trial court erred in granting summary judgment and instead should have held an evi-dentiary hearing to determine whether the mortgage interest held by Citimortgage is indeed superior to the Wachovia mortgage interest.

On remand, if the trial court finds that the interest of Citimortgage is superior, the trial court should not only deny Wa-chovia’s affirmative defenses but also vacate as void the prior final judgment entered in Wachovia’s favor to the extent that it extinguished the MERS mortgage interest in the real property. However, if Wachovia can show that the interest of Citimortgage is inferior to that of Wacho-via, the prior foreclosure judgment would be valid and judgment in favor of Wacho-via on its affirmative defense would be proper in the Citimortgage foreclosure proceeding. Similarly, the denial of the motion to vacate in the Wachovia foreclosure proceeding would be appropriate.

Accordingly, we reverse the final summary judgment entered in favor of Wa-chovia in the Citimortgage foreclosure proceeding, and we reverse the denial of Citimortgage’s motion to vacate the final judgment of foreclosure entered in the Wachovia foreclosure proceeding. Both cases are remanded for further proceedings consistent with this decision.

Reversed and remanded with instructions.

CRENSHAW and MORRIS, JJ., Concur.

      . As stated in Cone Bros., a defendant in a foreclosure action may challenge the validity of plaintiff’s priority in interest and, after hearing, the parties will be bound by the decision. 193 So. at 290-91.


author: SALTER, J.

text:
    Leo GREENFIELD, Appellant, v. CITY FIRST MORTGAGE CORPORATION, Eric P. Stein, Trustee, MSJ Investors, LLC, Eric P. Stein, and Eric P. Stein, P.A., Appellees.
    No. 3D09-263.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Leo Greenfield, in Proper Person.
    Scott Alan Orth, Miami Shores; Eric P. Stein, North Miami Beach, for appellees.
    Before COPE, GERSTEN, and SALTER, JJ.
   SALTER, J.

This appeal was purportedly commenced from a circuit court order in a lawsuit brought by Distribution Management Services, Inc., and Leo Greenfield. The order in question was captioned “Order Granting Motion for Reconsideration of Order Dated November 21, 2008 Granting Plaintiffs Motion to Vacate Order of June 6, 2008 Pursuant to Fla. R. Civ. P. 1.540(b) in that Court Was Without Jurisdiction to Enter the Order, Vacating Same, and Substituting the Within Order in Its Stead.” The text of the Order, and prior orders in the same case, described a series of procedural maneuvers by the appellants, in three judicial circuits, obviously calculated to delay a commercial foreclosure in Polk County, Florida.

The very filing of the notice of appeal was immediately called into question by the appellees. One of the appellants, former Florida attorney Leo Greenfield, signed the notice of appeal on behalf of attorney Guy Bailey, Jr., in a signature block for counsel for Distribution Management Services, Inc. In short order, for reasons having nothing to do with this case, Bailey himself was disbarred.

Bailey and his firm then withdrew as counsel for Distribution Management Services, Inc., and a motion for extension of time to file the reply brief was then filed (based on Distribution Management Services, Inc.’s successor counsel’s purported need to review the file). “Purported” is once again the correct term, because it developed (in subsequent affidavits directed by this Court to be filed by the purported successor counsel and by Greenfield) that purported successor counsel for Distribution Management Services, Inc. had not authorized anyone to file a motion for extension of time on his behalf, to sign any such motion, or to enter any other form of appearance in this appeal. An inspection of the motion for extension of time revealed that only photocopied signatures were filed, and that they were strikingly similar to those filed in a circuit court pleading. In his own sworn affidavit, Greenfield denied having filed the unauthorized photocopied signature. The purported successor counsel and yet another prospective successor attorney for Distribution Management Services, Inc. withdrew, leaving Distribution Management Services, Inc. without representation.

Following these revelations, we dismissed Distribution Management Services, Inc.’s appeal with prejudice. We now turn our attention to Greenfield, the remaining appellant.

Upon a review of the order sought to be reviewed and the prior proceeding in this Court (in which Greenfield unsuccessfully challenged an order dismissing his claims with prejudice in the underlying circuit court case), it is apparent that Greenfield’s later attempts to re-inject himself into the case below were frivolous. Accordingly, we now summarily affirm the trial court’s order under Florida Rule of Appellate Procedure 9.315(a). Greenfield’s motion for oral argument is denied as moot. The appellees’ renewed motion for their attorneys’ fees and costs as a sanction against Greenfield (July 31, 2009) is granted and remanded to the circuit court for a determination of the amount of such fees and costs.

Finally, the Court is transmitting a copy of this opinion, the motion purportedly signed by successor counsel for an extension of time, the affidavits of successor counsel and Greenfield, and related pleadings to The Florida Bar so that it may determine whether further investigation is appropriate.

Affirmed.

      . Greenfield’s disciplinary resignations, tantamount to disbarment, are reported at The Florida Bar v. Greenfield, 868 So.2d 525 (Fla.2004), and 634 So.2d 628 (Fla.1994).

      . The record does not disclose any other party or attorney who would have an interest in filing the dilatory motion.

      . In case No. 3D08-773, the order of dismissal was affirmed. Greenfield v. Stein, 16 So.3d 967 (Fla. 3d DCA 2009).

      .Greenfield’s pending "emergency motion for an additional ten days’ extension of time of for the filing of appellants' reply brief" is denied. Although the Court granted prior extensions of time for that purpose, the last such extension period sought by the emergency motion has also expired and no further motion has been filed. The grounds for an extension as described by Greenfield are also facially inconsistent with his demonstrated ability to file a reply brief on November 9, 2009 and his appearance in person for oral argument on November 18, 2009, in Case No. 3D08-2224.


author: LAGOA, J.

text:
    Willie FIELDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1414.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   LAGOA, J.

The defendant, Willie Fields (“Fields”), appeals his conviction for disorderly conduct. Because we find that the evidence was insufficient to support the disorderly conduct conviction, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Fields was charged by information with one count of resisting an officer with violence in violation of section 843.01, Florida Statutes (2007), and one count of disorderly conduct in violation of section 877.03, Florida Statutes (2007). The disorderly conduct charge was based on the alleged act of “loudly uttering profanities in front of a business.” The count for resisting an officer with violence was based on the alleged act of “offering or doing violence to the person of said officer(s), in violation of s. 843.01, Fla. Stat.”

The charges against Fields stem from an incident that occurred on August 21, 2007, at a Washington Mutual Bank. After receiving a call, Officer Jackson responded to the scene and overheard someone screaming profanities. Officer Jackson observed Fields standing in the bank’s doorway, on his cell phone, yelling loudly, and appearing visibly upset. Approximately ten to fifteen people were inside the bank and another five were gathered near the street, all of whom were watching Fields. Officer Jackson approached Fields with his weapon drawn and told him to get down on the ground. Fields did not comply with the verbal command and responded by stating, “What the f— you got that gun out for, you are going to go and shoot me?” Officer Jackson proceeded to place Fields against the wall but Fields pushed Officer Jackson back with enough force that both were knocked to the ground. Back-up officers arrived, and assisted Officer Jackson in restraining Fields.

After Officer Jackson testified, the defense made a motion for judgment of acquittal arguing that the State failed to present a prima facie case for the count of disorderly conduct. The trial court denied the motion.

Fields then testified that he was outside the Washington Mutual Bank speaking on the phone with a business associate when he noticed Officer Jackson with his weapon drawn. Upon seeing Officer Jackson, Fields stated, “And what the f— you’re going to do with that gun?” Fields testified that Officer Jackson struck him repeatedly and that he told the officer, “man, you hit like a b — h,” and “my mama hit harder than that.” Fields also said, “You must come from a line of b-s because you got nothing.” This exchange continued until the back-up officers arrived at the scene and arrested Fields. The defense rested and renewed its motion for judgment of acquittal, which the trial court denied.

The jury returned a verdict of guilty on the count of disorderly conduct and not guilty on the count of resisting an officer with violence. The defense renewed its motion for judgment of acquittal after the jury returned the verdict and the trial court denied the motion. Fields was adjudicated guilty as charged and sentenced to seven days time served. This appeal followed.

II. ANALYSIS

Section 877.03, Florida Statutes (2007) states as follows:

Breach of the peace; disorderly conduct
Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

In State v. Saunders, 339 So.2d 641 (Fla.1976), the supreme court narrowed the statute’s scope in order to avoid its application to constitutionally protected speech. As the court explained:

In light of these considerations, we now limit the application of Section 877.03 so that it shall hereafter only apply either to words which “by their very utterance ... Inflict injury or tend to incite an immediate breach of the peace,” White v. State, 330 So.2d [3], 7 [ (Fla.1976) ]; See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except “fighting words” or words like shouts of “fire” in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and “the danger that a citizen will be punished as a criminal for exercising his right of free speech.” Spears v. State, supra, 337 So.2d [977], 980 [(Fla.1976)]. With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever.

Id. at 644.

Accordingly, it is clear that “speech alone will not generally support a conviction for disorderly conduct” under section 877.03 as limited by Saunders. Barry v. State, 934 So.2d 656, 658 (Fla. 2d DCA 2006).

Here, the State’s theory was that the language used by Fields was so hostile or offensive that “bank customers were afraid to come in and exit the bank, caused a crowd to gather or caused people to have to avoid the area where he was.” This argument, however, is without merit. “[T]he mere fact that other people come outside or stop to watch what is going on is insufficient to support a conviction for disorderly conduct. Instead, there must be some evidence that the crowd is actually responding to the defendant’s words in some way that threatens to breach the peace.” Barry, 934 So.2d at 659. The evidence adduced at trial demonstrated that people were coming out of the bank, and that, as they did, they stopped to watch Fields. As explained above, the law is settled that the fact that a crowd has gathered to watch a defendant’s behavior, without more, is insufficient to support a conviction of disorderly conduct. Fields’ behavior of yelling into his phone and using profanity did not constitute “fighting words” or incite the crowd to action. Simply put, there was no evidence that the crowd gathered out of any purpose other than curiosity or to observe Fields’ behavior.

Because the State’s evidence was insufficient to support Fields’ conviction for disorderly conduct, we reverse the conviction.

Reversed.

      . Although not the case here, a defendant's words may be sufficient to support a conviction for disorderly conduct when the defendant’s words cause a hostile crowd to gather and law enforcement officers develop safety concerns. See W.M. v. State, 491 So.2d 335 (Fla. 3d DCA 1986).


author: DAMOORGIAN, J.

text:
    BALLENISLES COUNTRY CLUB, INC., a Florida not-for-profit corporation, Lee Adler, Edward Slotnick, Harold Danenberg, BallenIsles Community Association, Inc., a Florida not-for-profit corporation, Roma Josephs, Irwin Meltzer, Joel Margolies, Alvin Smith, and Robert Kaplan, Appellants, v. DEXTER REALTY, d/b/a BallenIsles Realty, a Florida Corporation, Appellee.
    Nos. 4D09-485, 4D09-486.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 2009.

      G. Bart Billbrough and Geoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for appellants Ballenlsles Community Association, Inc., Roma Josephs, Irwin Meltzer, Joel Margolies, Alvin Smith and Robert Kaplan.
    Peter R. Goldman and Kelly B. Hol-brook of Broad and Cassel, Tampa and Fort Lauderdale, for appellants Ballenl-sles Country Club, Inc., Lee Adler, Edward Slotnick and Harold Danenberg.
    Barbara J. Compiani and Jane Kreus-ler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., Jack Scarola and Jack P. Hill of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appel-lee Dexter Realty d/b/a Ballenlsles Realty.
   DAMOORGIAN, J.

Ballenlsles Country Club, Inc., Lee Adler, Edward Slotnick, Harold Danen-berg, Ballenlsles Community Association, Inc., Roma Josephs, Irwin Meltzer, Joel Margolies, Alvin Smith, and Robert Kap-lan appeal the non-final order denying their motions to compel arbitration against Dexter Realty d/b/a Ballenlsles Realty. We reverse.

Dexter Development Corporation (a non-party to this action) developed Balle-nlsles, a community of residential units and a country club. Ballenlsles Country Club, Inc. (BICC) was established to own and operate the country club. Ballenlsles Community Association, Inc. (BICA) is the homeowner’s association for the community.

BICC is governed by a board of directors. According to its by-laws, BICC’s board would initially consist of three directors appointed by Dexter Development. It would later expand to seven members, divided between representatives of Dexter Development (“company representatives”) and representatives of BICC (“member representatives”). Over time, Dexter Development’s representation on the Board would decrease and ultimately cease. Dexter Development has not had any representation on the Board since January 10, 2005.

On March 19,1999, Dexter Development and BICC entered into a Subscription Agreement to pass title to, and control of, the community from Dexter Development to BICC and its equity members. The Subscription Agreement created a timeline for this process and designated the Turnover Date, which was the date when Dexter Development would convey, transfer, assign and deliver management and control of the club facilities to BICC.

The Subscription Agreement contains two dispute-resolution sections. The first is entitled “DISPUTE RESOLUTION” and is contained in Section 40 of the Subscription Agreement:

Each and every dispute, claim or other matter of disagreement concerning the rights, obligations or remedies of the Company and the Club or its members under this Agreement shall only be decided by arbitration, in accordance with the Dispute Resolution Procedure attached hereto as Exhibit “U”.

The second, EXHIBIT U, sets forth both the scope of the arbitration clause and the arbitration procedure:

EXHIBIT U
DISPUTE RESOLUTION
Each and every dispute, claim or other matter of disagreement concerning the rights, obligations or remedies of: (i) the Company and the Club or (ii) the Company and any members of the Club, under this Agreement or in any manner whatsoever related to or arising out of the Plan Documents, the ownership and operation of the Club Facilities, the ownership, operation of [sic] control of the Club, the offering of memberships in the Club, or the rights and privileges of members, shall only be decided by arbitration.
ARBITRATION
Either a majority of the Member Representatives (or the Club member(s), if the dispute is between Club member(s) and the Company) or a majority of the Company Representatives may submit the matter to binding arbitration. The arbitration shall consist of three arbitrators (the “Arbitration Panel”) (unless the parties mutually agree to only one arbitrator) as follows: the Company Representatives on the Club’s Board of Directors and the Member Representatives on the Board (or the Club members), as the case may be) shall each select one arbitrator ten days after receipt of notice by the other party invoking arbitration. The two arbitrators then shall jointly select the third arbitrator within ten days. All three arbitrators shall be required to be partners or principals of accounting, legal, consulting or engineering firms with experience in the country club industry. The decision of two of the three arbitrators shall be deemed to be the decision of the arbitrators and shall be binding on both parties as hereinafter provided.
... The arbitration proceeding shall be governed by the rules of the American Arbitration Association then in force and shall take place in Palm Beach County, Florida, except as otherwise provided by Florida law. The prevailing party, as designated by the arbitrators, shall be entitled to recover all costs and reasonable attorney’s and paraprofessionals’ fees and related costs, fees or expenses of arbitration.
In the event the Member Representatives (or the Club member(s), as the case may be) are the prevailing party, the Company shall be required to pay for all costs, fees and expenses incurred by both parties as a result of the arbitration and will not be entitled to pass on such costs, fees or expenses to the Club or its members.
In the event the Company Representatives (or the Company) are the prevailing party and the losing parties are the Member Representatives on the Board, the Club shall be required to pay the costs, fees or expenses incurred by both parties as a result of the arbitration from its own funds through an assessment, that shall be levied against the Equity Members of the Club during the immediately following membership year. If the Company Representatives (or the Company) are the prevailing party and Club members are the losing party, the Club member(s) who were the losing party shall pay all of the costs, fees and expenses incurred by both parties as a result of the arbitration. The Club and the members will not be entitled to pass on such costs, fees, or expenses to the Company, notwithstanding the Company’s obligation to fund Operating Deficits prior to the Turnover Date. Any such costs, fees or expenses shall not increase the amount of any Operating Deficit of the Club or reduce the amount of any Excess Operating Funds of the Club.

Dexter Realty, a real estate sales company affiliated with Dexter Development, was the exclusive realtor in the Ballenlsles community until 2005. Pursuant to a temporary permit from the City of Palm Beach Gardens, Dexter Realty conducted its business from a sales center immediately adjacent to the PGA Boulevard entrance to Ballenlsles. The future zoning and use of the sales center was addressed in the Subscription Agreement and in the Membership Purchase Agreement, which was signed by each of the individually-named appellants. In these agreements, the appellants agreed to consent to the rezoning and permanent permitting of Dexter Realty’s sales center for use as a real estate sales office.

In May 2008, Dexter Realty filed a lawsuit against the appellants alleging that they had opposed its petition to amend the BICC Planned Community District to make permanent use of the PGA Boulevard sales center, contrary to the terms of the Subscription Agreement and the Membership Purchase Agreement. Dexter Realty is not a party to either agreement, but alleges that it is an intended third-party beneficiary of the agreements.

The appellants moved to compel arbitration pursuant to the Subscription Agreement. The trial court denied the motion without making any findings of fact or conclusions of law. We review this ruling de novo. See United Healthcare of Fla., Inc. v. Brown, 984 So.2d 588, 585 (Fla. 4th DCA 2008).

“A court must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the right to arbitrate has not been waived.” Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002) (quoting Gale Group v. Westinghouse Elec. Corp., 688 So.2d 661, 663 (Fla. 5th DCA 1996)). Arbitration is a preferred method of dispute resolution, so any doubt regarding the scope of an arbitration clause should be resolved in favor of arbitration. Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, 778 So.2d 1089, 1090 (Fla. 4th DCA 2001).

Arbitration clauses are construed according to basic contract interpretation principles. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The plain language of the agreement containing the arbitration clause is the best evidence of the parties’ intent. Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). The arbitration clause must be read together with the other provisions in the contract. See J.C. Penney Co. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977) (stating that a court must review the contract “without fragmenting any segment or portion”).

This appeal deals with the narrow issue of whether the language in the procedural section of the arbitration clause in Exhibit U of the Subscription Agreement limits the scope of arbitrable issues to those that arose and were arbitrated while BICC’s board of directors still included company representatives. The trial court ruled that the parties’ dispute, which arose after BICC took full control of the board, is not subject to the arbitration clauses because the arbitration procedure set forth in the Subscription Agreement cannot take place without any company representatives on the board. The appellants argue that the arbitration procedure does not limit the timeframe for arbitrable disputes.

We hold that the plain language of both arbitration clauses in the Subscription Agreement shows that the parties intended for arbitration to apply to “each and every dispute” arising out of the Subscription Agreement, without time limitation. The use of the language “shall only be decided by arbitration” twice in the Subscription Agreement illustrates the parties’ intention that arbitration be the sole means for resolving disputes arising out of the Subscription Agreement and Membership Purchase Agreement. Nothing in the Agreement expressly limits the scope of arbitrable issues to those that were arbitrated while the board still included company representatives, and some of the obligations in the Agreement continue to exist after the transition of control, including the obligation that is in dispute in this case.

The mere fact that the arbitration procedure that the parties selected cannot be implemented after all of the company representatives resigned from the board does not limit the broad scope of the arbitration clauses. The legislature provides courts with a procedure for selecting arbitrators should the parties’ agreed method fail for any reason:

If an agreement or provision for arbitration subject to this law provides a method for the appointment of arbitrators or an umpire, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator or umpire who has been appointed fails to act and his or her successor has not been duly appointed, the court, on application of a party to such agreement or provision shall appoint one or more arbitrators or an umpire. An arbitrator or umpire so appointed shall have like powers as if named or provided for in the agreement or provision.

§ 682.04, Fla. Stat. (2009); see also New Port Richey Med. Investors, LLC v. Stern ex rel. Petscher, 14 So.3d 1084, 1087 (Fla. 2d DCA 2009) (applying section 682.04 where the contract specified that the American Arbitration Association should arbitrate any dispute, but the AAA would no longer accept the type of dispute at issue).

Dexter Realty cites Aberdeen Golf & Country Club v. Bliss Construction, Inc., 932 So.2d 235 (Fla. 4th DCA 2005), in support of its argument that the arbitration procedure limits the scope of the arbitration clauses in the Subscription Agreement. In Aberdeen, this Court distinguished between two general types of arbitration agreements. Id. at 236-37. The first type is “intended to operate as an irrevocable substitute for litigation in court” and survives full performance by one party, “leaving only the other party’s covenant for future dispute.” Id. at 236. This type is a “complete alternative” to court proceedings. Id. at 237. The second type is “intended as a means of postponing-even if not ultimately avoiding-litigation in court while the parties make progress toward their contractual goal.” Id. This type of clause appears frequently in contracts, such as commercial construction contracts, that are meant to govern the parties’ relationship while they proceed toward a single defined goal. Id. After the goal is reached, the arbitration clause no longer applies. Dexter Realty asserts that the Subscription Agreement is akin to a commercial construction agreement and that the arbitration clause in the Subscription Agreement was meant to apply only during the transition of control from Dexter Development to BICC.

We conclude, however, that the arbitration clauses in the Subscription Agreement fall into Aberdeen’s first category. The broad language of these clauses shows that they were meant to operate as an irrevocable substitute for litigation in court and were meant to survive the transition of control of the country club, just as certain covenants in the Subscription Agreement and Membership Purchase Agreements survived that transition.

Accordingly, we reverse. The trial court erred in denying the appellants’ motions to compel arbitration. On remand, the court should compel arbitration of this dispute and appoint an arbitrator or arbitrators pursuant to its authority under section 682.04.

Reversed and Remanded.

MAY and CIKLIN, JJ, concur.

      . The Membership Purchase Agreement incorporates the arbitration provisions of the Subscription Agreement.

      . There appears to be no dispute about Dexter Realty’s status as an intended third-party beneficiary to the Subscription Agreement and the Membership Purchase Agreement. Thus, it is bound by the arbitration clauses in those agreements. See Int’l Bullion & Metal Brokers, Inc. v. W. Pointe Land, LLC, 846 So.2d 1276, 1277 (Fla. 4th DCA 2003).


author: MORRIS, Judge.

text:
    Harold McDANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4144.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2009.

      James Marion Moorman, Public Defender, and J.L. Perez, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers and Dani-lo Cruz-Carino, Assistant Attorneys General, Tampa, for Appellee.
   MORRIS, Judge.

Harold McDaniel appeals his conviction entered after a jury trial for aggravated battery with a deadly weapon. We reverse McDaniel’s conviction and remand for further proceedings consistent with this opinion.

Prior to trial, McDaniel filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). He claimed in his motion that he is immune from criminal prosecution pursuant to section 776.032(1), Florida Statutes (2007), because he has a valid defense of justifiable use of force under section 776.013, commonly known as the castle doctrine, and section 776.031, the defense of others statute. McDaniel further alleged that although the victim had been a houseguest at McDaniel’s mother’s house, where McDaniel was also living, the victim had not stayed at the house for several days prior to the incident at issue. On the day of the incident, McDaniel alleged, he and the victim got into a physical altercation during which the victim beat and attempted to strangle McDaniel. McDaniel escaped and returned home. According to McDaniel, the victim arrived at McDaniel’s house later that night and asked to enter to retrieve some clothing he had left there. McDaniel’s mother attempted to prevent the victim’s entry, but the victim forced his way into McDaniel’s home. McDaniel then struck the victim twice with a machete, causing lacerations to his scalp and left forearm.

The State filed a traverse to McDaniel’s motion to dismiss, alleging that the victim had lived at McDaniel’s house prior to the incident and that the record was unclear as to whether the victim was still living there. The State claimed that the evidence does not establish that McDaniel had a right in the residence exceeding that of the victim. The State also alleged that the evidence does not conclusively establish that the victim unlawfully entered the house because there was some evidence that McDaniel’s mother opened the door for the victim and that McDaniel invited the victim into the home to retrieve his clothes. The State further argued in its traverse that there was no evidence that the victim intended to commit a forcible felony such that McDaniel’s use of deadly force was necessary in the defense of others.

McDaniel filed a response to the State’s traverse, alleging that his motion to dismiss “is not based on the Rule 3.190(c)(4) grounds that there are no material disputed facts, [but] rather on the grounds that [McDaniel] is immune from prosecution pursuant to [section] 776.032.”

The trial court held an evidentiary hearing on March 10, 2008. After the evidence was presented, the State argued — still proceeding on the theory that the motion was one for dismissal pursuant to rule 3.190(c)(4) — that “there is enough disputed evidence ... where it is appropriate for jury consideration.” The defense argued' — continuing to advance its position that the motion was not one for dismissal pursuant to rule 3.190(c)(4) but one for immunity pursuant to section 776.032— that McDaniel was immune from prosecution because the evidence showed that the victim was attempting to commit a forcible felony against McDaniel’s mother and that McDaniel was acting in defense of his mother and his home. The trial court denied the motion without explanation or any indication as to whether the trial court treated the motion as one for dismissal pursuant to rule 3.190(c)(4) — as the State was treating it — and denied it on the basis that there were disputed issues of material fact or whether the trial court treated the motion as one for dismissal based on section 776.032 immunity — as the defense was treating it — and denied it on the basis that McDaniel had not established his entitlement to immunity pursuant to section 776.032.

McDaniel proceeded to jury trial, at which he asserted the defense of justifiable use of deadly force in defense of his mother and to prevent the victim’s forcible entry into his home. McDaniel was found guilty and sentenced to ten years in prison followed by five years’ probation.

On appeal, McDaniel argues that the trial court erred in denying his motion to dismiss because he presented evidence establishing immunity under section 776.032. He also argues that it is not clear if the trial court applied the proper standard for a motion to dismiss based on immunity from prosecution under section 776.032. He claims that even though he argued in his response to the State’s traverse that the standard of rule 3.190(c)(4) should not be applied, the State proceeded on the theory that the motion to dismiss should not be granted because there are material disputed facts.

Section 776.032(1) provides that “[a] person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.” “[W]hen immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes.” Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008). “The court may not deny a motion simply because factual disputes exist.” Id. “[T]he trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.” Id.; see also Gray v. State, 13 So.3d 114, 115 (Fla. 5th DCA 2009) (on motion for certification) (agreeing with Peterson). But see Velasquez v. State, 9 So.3d 22, 24 (Fla. 4th DCA 2009) (holding that a motion to dismiss based on section 776.032 immunity is governed by rule 3.190(c)(4) and should be denied if factual disputes exist; certifying conflict with Peterson). This court has agreed with Peterson and held that the rule 3.190(c)(4) standard, which provides for a dismissal when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant,” is not appropriate for a motion or petition to determine immunity under section 776.032. Horn v. State, 17 So.3d 836 (Fla. 2d DCA 2009) (agreeing with Peterson). When a defendant’s motion to dismiss on the basis of immunity is denied, the defendant may still assert the issue to the jury as an affirmative defense. Peterson, 983 So.2d at 29.

Because the trial court gave no reason for denying McDaniel’s motion to dismiss either in its oral ruling or in a written order, it is not clear from the record whether the trial court applied the preponderance of the evidence standard or whether the trial court denied McDaniel’s motion to dismiss because factual disputes exist. Even though McDaniel argued the basis that was later held to be the law in this district, the trial court did not have the benefit of Peterson or Horn at the time of the hearing. Therefore, we reverse McDaniel’s conviction and remand for a new hearing on McDaniel’s motion to dismiss at which the trial court shall apply the appropriate standard. If the trial court concludes after a new hearing that McDaniel is entitled to immunity under section 776.032, it shall enter an order to that effect and dismiss the information with prejudice. If the trial court concludes that McDaniel is not entitled to immunity, the trial court shall enter an order to that effect and reinstate McDaniel’s conviction. As this court did in Horn, we certify conflict with Velasquez.

The remaining issues raised by McDaniel on appeal are without merit, with the exception of his argument that the trial court improperly admitted hearsay evidence at the hearing on his motion to dismiss. While the rules of evidence are inapplicable or relaxed in certain proceedings, we have been unable to find— and the parties have not cited — any authority holding that hearsay evidence is admissible at a pretrial evidentiary hearing on a motion to dismiss based on immunity. Cf. Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 103.1, at 5-7 (2009) (listing certain proceedings in which strict evidentiary rules are inapplicable). We note, however, that many of the objeeted-to statements were admissible for the limited purpose of impeaching a witness’s testimony with prior inconsistent statements. See § 90.614, Fla. Stat. (2007); Varas v. State, 815 So.2d 637, 640 (Fla. 3d DCA 2001) (“It is well-settled [sic] that a witness may be impeached by a prior inconsistent statement, including an omission in a previous out-of-court statement about which the witness testifies at trial, if it is of a material, significant fact rather than mere details and would naturally have been mentioned.”). Otherwise, given that the burden of proof is on the defendant to establish his entitlement to immunity, hearsay is not admissible to prove a material fact for the court’s consideration, unlike at a motion to suppress hearing where the admissibility of certain evidence sought to be introduced at trial is in issue. Cf. Lara v. State, 464 So.2d 1173, 1177 (Fla.1985) (holding that hearsay evidence is admissible to establish consent to search at a hearing on a motion to suppress physical evidence based on the rationale that an affidavit for a search warrant may be based on hearsay).

Reversed and remanded; conflict certified.

WHATLEY and KELLY, JJ., Concur.

      . The defense presented the testimony of McDaniel’s mother. She testified that after her son returned home on the night of the offense, she heard the victim banging on the door to her house. She opened the door about one or two feet, and the victim yelled that “he was gonna kill all of [them] and burn the house down." On cross-examination, McDaniel's mother stated that she did tell the investigating detective that the victim threatened to bum the house down and that the victim threatened to kill her. She also testified that her son did not unlock the door, but she could not recall whether she told the investigating detective that her son unlocked the door.
      The State presented the testimony of the investigating detective, Robert Gizzi, who testified that he interviewed McDaniel's mother after the incident. The prosecutor asked Detective Gizzi what she told him happened on the night of the incident, and defense counsel objected on the basis of hearsay. The prosecutor responded: "It does call for hearsay, Your Honor. I believe hearsay’s admissible on a motion to dismiss." The court overruled the objection and allowed the hearsay testimony, stating that hearsay was admissible in this type of hearing. Detective Gizzi was permitted to testify that McDaniel’s mother told him that her son unlocked the door for the victim and that she opened the door. He also testified that she never told him that the victim threatened to kill her or burn the house down. He also stated, over a hearsay objection, that the victim told him that McDaniel hit the victim with the machete two times.