author: B.L. Thomas, C.J.

text:
    David Lee HUCKABA, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-502
    District Court of Appeal of Florida, First District.
    November 20, 2018 Rehearing Denied December 20, 2018
    Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Benjamin L. Hoffman and Virginia Chester Harris, Assistant Attorneys General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges his convictions and sentences for vehicular homicide and reckless driving causing serious bodily injury, raising the following issues on appeal: 1) the charging instrument and jury instructions were fundamentally defective, as they were based on an incorrect version of the vehicular homicide statute; 2) the trial court failed to order a competency evaluation; 3) Appellant received ineffective assistance of counsel; 4) prosecutorial comments about alcohol consumption entitle Appellant to a new trial; and 5) the common law "born-alive" rule precludes one of Appellant's convictions.

As to Appellant's second, fourth, and fifth issues on appeal, we reject Appellant's arguments without discussion. For the reasons set forth below, we also reject Appellant's arguments presented in the first and third issues raised on appeal.

Facts

In December 2014, Appellant was charged by information with three counts of vehicular homicide, three counts of reckless driving causing serious bodily injury, and one count of reckless driving causing injury, plus several counts based on driving under the influence of alcohol. All charges arose from a 2013 multi-car collision that resulted in the deaths of Kenneth Pelletier, Jennifer Duncan, and her unborn child ("Baby Boy Duncan").

In the original 2014 information, Count 6, alleging vehicular homicide, read:

... [Appellant] ... by the operation of a motor vehicle in a reckless manner likely to cause death or great bodily harm to another, did then and there unlawfully kill a viable fetus , to wit: BABY BOY DUNCAN, by injury to the mother, JENNIFER DUNCAN, contrary to Florida Statute 782.071(1).

(Emphasis added).

In October 2016, the State amended the information, removing all counts for driving under the influence, and charging Appellant with three counts of vehicular homicide (Counts 1-3) and one count of reckless driving causing serious bodily injury (Count 4). In the amended information, Count 3 read:

... [Appellant] ... by the operation of a motor vehicle in a reckless manner likely to cause death or great bodily harm to another, did then and there unlawfully kill an unborn child , to wit: BABY BOY DUNCAN, by injury to the mother, JENNIFER DUNCAN, contrary to Florida Statute 782.071(1).

(Emphasis added).

The "viable fetus" language is consistent with the 2013 version of Florida's vehicular homicide statute, whereas the "unborn child" language in the amended information tracks the 2014 version. Compare § 782.071, Fla. Stat. (2013) (amended 2014), with § 782.071, Fla. Stat. (2014). Significantly, both charging instruments alleged that Appellant's conduct was "contrary to Florida Statute 782.071(1)."

During the State's case-in-chief, eyewitnesses and law enforcement officers testified that Appellant was driving uphill and passing several vehicles in a no-passing zone while traveling in the lane of oncoming traffic at a speed of up to 90 miles per hour. One witness testified that Appellant made an obscene gesture as he sped past. When Appellant reached the top of the hill, he swerved back into his correct lane to avoid an approaching vehicle, but hit the victim's car, sending it careening into oncoming traffic, at which point the victims' car was hit by the approaching vehicle. The victims were ejected and the driver of the approaching car that hit the victims was seriously injured.

The State called Dr. Aurelian Nicolaescu, a medical examiner, who testified that the fatal injuries sustained by Mr. Pelletier and Ms. Duncan were consistent with a crash and ejection. Dr. Nicolaescu testified that Baby Boy Duncan suffered blunt trauma to multiple body parts, with the cause of death being "intrauterine demise because the baby died in the uterus due to multiple blunt trauma due to maternal multiple injuries." He testified that the estimated gestational age was 26 to 28 weeks, based on the weight of 900 grams. The State then entered a photograph of Baby Boy Duncan taken after delivery as part of the medical examination. Defense counsel did not object to any of this evidence, and did not cross-examine Dr. Nicolaescu.

The State called Lisa Montgomery, a forensic toxicologist, who testified that Appellant had a blood alcohol level of 0.045 after the crash. She testified that, although this was below the limit for intoxication, it would lead to difficulty in making rational decisions and an increase in risky behavior.

After the State rested, defense counsel moved for a judgment of acquittal, stating, "Your Honor, the defense would move for judgment of acquittal and make no argument." The trial court denied the motion.

At the charge conference, defense counsel accepted a jury instruction that the elements of vehicular homicide included the killing of an unborn child, and defining unborn child as a human carried in the womb, at any stage of development. Defense counsel requested definitions for willful and wanton to be added to the vehicular homicide instruction, and the prosecutor agreed to add those definitions "right under the unborn child" language.

During closing argument, the prosecutor stated that vehicular homicide included killing an "unborn child." The prosecutor also commented that Appellant was driving with "liquid courage," and had "alcohol coursing through his veins." Defense counsel made no objections during the State's closing argument. In Appellant's closing argument, defense counsel argued that Appellant was not reckless, and made no mention of viability.

After closing arguments, the trial court instructed the jury:

To prove the crime of vehicular homicide, the State must prove the following three elements beyond a reasonable doubt:
One. A, the victim is dead.
Or, B, an unborn child is dead by injury to the mother.
Two, the death was caused by the operation of a motor vehicle by the defendant.
Three, the defendant operated the motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another person.
....
An unborn child means a member of the species, homo sapiens , at any stage of development, who is carried in the womb.

The jury found Appellant guilty as charged on all counts. Appellant was sentenced to 363.98 months in prison on Counts 1-3, plus five years on Count 4 to run concurrently with Counts 1-3.

Analysis

I.

"[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted ...." Heath v. State , 532 So.2d 9, 10 (Fla. 1st DCA 1988).

The 2014 version of Florida's vehicular homicide statute defines vehicular homicide as "the killing of a human being, or the killing of an unborn child by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another." § 782.071, Fla. Stat. (2014). The statute provides that "the term 'unborn child' means a member of the species Homo sapiens , at any stage of development, who is carried in the womb." § 775.021(5)(e), Fla. Stat. (2014).

By contrast, the 2013 version of the same statute defined vehicular homicide as "the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another." § 782.071, Fla. Stat. (2013) (amended 2014) (emphasis added). The legislation provided that "a fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures." § 782.071(2), Fla. Stat. (2013) (amended 2014).

The 2013 version of the vehicular homicide statute applied on the date of Appellant's crimes. § 782.071(2), Fla. Stat. (2013) ; Heath , 532 So.2d at 10. The amended information, however, charged Appellant with killing an unborn child , rather than a viable fetus. Likewise, the trial court instructed the jury on the unborn-child requirement, along with an instruction that unborn child meant a child carried in the womb "at any stage of development." Thus, the charging instrument and jury instructions were erroneous.

A technical deficiency in a charging instrument is waived if it is not objected to before the State rests its case. Castillo v. State , 929 So.2d 1180, 1181 (Fla. 4th DCA 2006). By contrast, if an information wholly fails to state a crime such that it cannot support a conviction, it is fundamentally defective, and may be raised for the first time on appeal. State v. Burnette , 881 So.2d 693, 694-95 (Fla. 1st DCA 2004) ("An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.").

But even where the body of a charging instrument omits an essential element, such an error is a waivable technical defect, if the charging instrument references the correct statute, and the statute sets forth the required elements. Id. at 695. In Burnette , the charging instrument failed to allege that a burglarized structure was a "dwelling." Id. at 694. Although the body of the information in Burnette omitted an essential element, the caption stated the correct offense, and the information alleged that the defendant's actions were "contrary to the provisions of section 810.02(3), Florida Statutes." Id. This court held that the information was not fundamentally defective, because it "reference[d] a specific section of the criminal code which sufficiently details all the elements of the offense." Id. at 695.

The caption of Appellant's amended information stated that Appellant was charged with vehicular homicide. The body of the amended information alleged that Appellant's conduct was "contrary to Florida Statute 782.071(1)." Appellant could therefore have read the referenced statute and found that the charged offense required proof of viability. See § 782.071, Fla. Stat. (2013). Accordingly, like in Burnette , the charging instrument in this case did not wholly fail to state a crime and was not fundamentally defective. See Burnette , 881 So.2d at 695. Thus, because Appellant did not object to the information, his argument is waived.

As to the erroneous jury instruction, "[j]ury instructions are 'subject to the contemporaneous objection rule, and absent an objection at trial, can only be raised on appeal if fundamental error occurred.' " State v. Spencer , 216 So.3d 481, 484 (Fla. 2017) (quoting State v. Weaver , 957 So.2d 586, 588 (Fla. 2007) ); see also Foster v. State , 861 So.2d 434, 436 (Fla. 1st DCA 2002) (affirming a conviction, despite the jury being instructed on the wrong version of the burglary statute, as defense counsel "stated no objection to the instruction that was given, and did not move for judgment of acquittal on grounds that the verdict might reflect jury findings of fact that did not amount to burglary").

Where an essential element of an offense is never disputed at trial, failure to instruct on that element is not fundamental error. State v. Delva , 575 So.2d 643, 645 (Fla. 1991). In Delva , the State was required to prove that the defendant knew a substance was cocaine, but the trial court failed to instruct on this element. Id. at 644. The supreme court held that this was not fundamental error, as the theory of defense was that the defendant never knew about the package containing the substance. Id. at 645 ("Because knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.").

Appellant never disputed the unborn child's viability at trial. Dr. Nicolaescu testified that Baby Boy Duncan's gestational age was between 26 and 28 weeks, with a fetal weight of 900 grams. The State entered a photograph of the deceased baby, taken during the autopsy, showing an advanced level of development. Defense counsel did not cross-examine Dr. Nicolaescu or object to the evidence presented. Likewise, defense counsel did not argue viability when moving for judgment of acquittal, and made no mention of viability in closing argument.

Appellant's theory of defense was that he did not operate his vehicle in a reckless manner likely to cause death or great bodily injury, and that his actions therefore did not amount to homicide regarding any of the victims. See § 782.071, Fla. Stat. (2013). Lack of the unborn child's viability was not necessary to Appellant's exculpatory theory of defense, and any emphasis in this regard likely would have been a strategic error.

Thus, we hold that the court's failure to instruct on viability did not deprive Appellant of a fair trial and was not fundamental error. See Delva , 575 So.2d at 645. Accordingly, a contemporaneous objection was necessary to preserve the issue for appeal, and no such objection was made.

Furthermore, although Appellant argues that a photograph of a deceased unborn child, by itself, cannot establish viability, other jurisdictions have held that such photographs are admissible to show viability in vehicular-homicide cases. See State v. Williamson , 919 S.W.2d 69, 79 (Tenn. Crim. App. 1995). In Williamson , the prosecution had to prove viability under Tennessee's vehicular-homicide statute, and a photograph of the stillborn infant was entered into evidence. Id. at 78-79. The Tennessee Court of Criminal Appeals held that "testimony and the photograph established the viability of the infant." Id. (emphasis added). Here, there was more evidence of viability than just a photograph, including testimony about the unborn child's weight and injuries. We therefore hold that the jury instruction here was not fundamentally defective, as a guilty verdict could have been obtained without the assistance of the error.

II.

Generally, a claim of ineffective assistance of counsel must be raised in a postconviction motion. Beazley v. State , 148 So.3d 552, 554 (Fla. 1st DCA 2014). An ineffective assistance claim may only be raised on direct appeal if: 1) the ineffectiveness is obvious on the face of the appellate record; 2) the prejudice caused by the conduct is indisputable; and 3) a tactical explanation for the conduct is inconceivable. Id. ;

Latson v. State , 193 So.3d 1070, 1071 (Fla. 1st DCA 2016).

Here, Appellant claims that defense counsel was ineffective for 1) failing to object to the erroneous charging instrument and jury instruction; 2) failing to argue insufficient evidence of viability when moving for judgment of acquittal; 3) failing to object to evidence of alcohol use and comments drawn therefrom; 4) failing to object to questions asking Appellant to comment on the veracity of other witnesses; and 5) failing to timely move for a new trial. Because we find that none of these claims demonstrate indisputable prejudice or an inconceivable tactical explanation, we hold that Appellant is not entitled to relief on direct appeal. See Beazley , 148 So.3d at 554.

As to the defective charging instrument, had defense counsel moved to dismiss the amended information, the State could have amended it again to allege the correct statutory language, and presented the same evidence at trial that led to a conviction. See State v. Garcia , 692 So.2d 984, 985 (Fla. 3d DCA 1997) ("The State may also substantively amend an information during trial, even over the defendant's objection, unless there is a showing of prejudice to the substantive rights of the defendant."). Thus, Appellant fails to establish prejudice.

The unborn-child jury instruction was not fundamentally defective, as discussed above. See Delva , 575 So.2d at 645 ; Spencer , 216 So.3d at 485. Because evidence of viability was presented at trial, it is not indisputable that defense counsel's failure to object to the jury instruction prejudiced Appellant. See Beazley , 148 So.3d at 554.

As to defense counsel not arguing the issue of viability when moving for judgment of acquittal, this argument assumes that the trial court would have granted an acquittal on that basis. Because the State presented enough evidence of viability for the issue to go to the jury, the trial court could have correctly denied the motion; therefore, Appellant fails to show indisputable prejudice. See Beazley , 148 So.3d at 554.

As to Appellant's claim that defense counsel failed to object to evidence about alcohol consumption below the legal limit, and inferences drawn therefrom, such evidence is not inadmissible, as it is probative of recklessness. Jackson v. State , 100 So.2d 839, 842 (Fla. 1st DCA 1958) ; see also Rogers v. State , 957 So.2d 538, 548 (Fla. 2007) (counsel cannot be ineffective for failing to object to evidence that is not improper).

Likewise, we cannot say that no tactical explanation is conceivable for defense counsel not objecting to questions about the veracity of other witnesses, or that Appellant was indisputably prejudiced by the questions, especially as he never actually commented on the veracity of a witness. See Johnson v. State , 969 So.2d 938, 944 (Fla. 1st DCA 2007) (holding that an improper question was harmless error where the defendant did not respond that the witness was untruthful). On cross-examination, when Appellant was asked if a witness was giving unreliable testimony, Appellant answered, "That's not what I'm saying." When Appellant was asked whether a witness was wrong in his testimony that Appellant was passing vehicles while going uphill in a no passing zone, Appellant responded that "they also said things that were inaccurate," but never claimed the witness was lying. When Appellant was asked if a witness was telling the truth in his testimony that Appellant attempted to pass a line of cars in a no passing zone, Appellant responded, "I never attempted to pass any vehicles in a non-passing zone."

Finally, as to counsel's failure to timely file a motion for new trial, we have held that, absent clear evidence that such a motion would have been granted, the remedy is a postconviction motion, not direct appeal. Crenshaw v. State , 490 So.2d 1054, 1055 (Fla. 1st DCA 1986). Thus, based on the relevant evidence admitted at trial, we find nothing in the record to show that the trial court would have granted the motion for a new trial, as the verdict was not contrary to the weight of the evidence.

AFFIRMED .

Winsor, J., concurs; Makar, J., concurs in result with opinion.

Makar, J., concurring in result with opinion.

On December 6, 2013, David Lee Huckaba's reckless driving resulted in a horrendous multi-vehicle accident that killed four people (one an infant in utero) as well as injuring several others. One of the fourteen charges in the initial information accused Huckaba of vehicular homicide of the unborn infant under the applicable 2013 version of section 782.071, Florida Statutes, which required proof that Huckaba's recklessness resulted in the killing of "a viable fetus."

Almost two years later, an amended charging document-narrowed to four counts and eliminating all DUI counts-modified the vehicular homicide charge against Huckaba by replacing "a viable fetus" with "an unborn child," which was language from an intervening amendment to section 782.01 that became effective October 1, 2014:

"Vehicular homicide" is the killing of a human being, or the killing of a viable fetus an unborn child by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.

Ch. 2014-194, Laws of Florida, § 5. Neither Huckaba's new lawyer, nor the prosecutor, nor the trial judge recognized the error, resulting in jury instructions, a trial, and a conviction based upon the incorrect statutory language (i.e., "an unborn child" versus "a viable fetus").

Because his trial lawyer failed to object to the incorrect language in the charging document and the jury instructions, Huckaba's appellate claim is that fundamental error resulted due to the jury convicting him of killing "an unborn child" when the State's obligation was to allege and prove the deceased was "a viable fetus," the latter being more scientifically and medically difficult to prove. The question is not whether the correct statute number was cited (it was in both the initial and amended information), whether the jury instructions were correct (they weren't), or whether Huckaba's counsel disputed the viability of the unborn child (he didn't because it was not an issue to be proven at trial). Rather, the inquiry is whether fundamental error exists due to the error in the information and jury instructions that the prosecutor, Huckaba's trial lawyer, and even the trial judge missed.

A fundamental error is one that "must reach 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."

Brown v. State , 124 So.2d 481, 484 (Fla. 1960) ; see also Smith v. State , 521 So.2d 106, 108 (Fla. 1988) (the doctrine of fundamental error applies "where the interests of justice present a compelling demand for its application.").

The error at issue-interlineating "unborn child" in place of "viable fetus"-does not meet the fundamental error test. First of all, our supreme court has held that when a standard jury instruction is used-and later determined to be inadequate-the flaw need not always be so serious as to amount to fundamental error. Smith v. State , 521 So.2d 106, 108 (Fla. 1988). The inadequate insanity instruction used in Smith was deemed not "so flawed as to deprive defendants claiming the defense of insanity of a fair trial." Id. As in Smith , a degree of judicial judgment is exercised in drawing the line between a fair and unfair trial.

In this case, the 2013 version of the vehicular homicide statute, and its corresponding standard jury instruction, said that "a fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures." § 782.071(2), Fla. Stat. (2013) ; see In re Standard Jury Instructions In Criminal Cases- No. 2006-1 , 946 So.2d 1061, 1068 (Fla. 2006) (adopting standard criminal instruction 7.9, related to vehicular and vessel homicide), modified by In re Standard Jury Instructions in Criminal Cases-Report No. 2014-08 , 176 So.3d 938, 941 (Fla. 2015) (amending 7.9 to say that "An 'unborn child' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.").

On the facts presented, it cannot be concluded that a guilty verdict could not have been obtained without the error in the information and jury instructions. It was proven that the unborn child had a gestational age of between 26 and 28 weeks and a fetal weight of 900 grams, placing him at or within the general parameters of fetal viability set forth in judicial decisions. Planned Parenthood of Se. Pennsylvania v. Casey , 505 U.S. 833, 860, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (noting that viability was approximately 28 weeks at the time of Roe v. Wade , 410 U.S. 113, 160, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that it can occur in some situations at 23-24 weeks, and that it may occur "at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future."); In re T.W. , 551 So.2d 1186, 1190 (Fla. 1989) (stating that "viability of the fetus" occurs "approximately at the end of the second trimester."); see also Moore et al., The Developing Human: Clinically Oriented Embryology, 93 (10th ed. 2016) ("Viability is defined as the ability of fetuses to survive in the extrauterine environment ... Most fetuses weighing between 750 and 1500 g usually survive, but complications may occur; they are referred to as preterm infants.") [hereinafter The Developing Human ].

Had the unborn child's gestational age and fetal weight been further from these general parameters, a more compelling case for fundamental error would exist. For example, if gestational age were in the range of 20-21 weeks and fetal weight was 500 grams or less, the likelihood of viability would be exceedingly small for such a child. Jon E. Tyson et al., Intensive Care for Extreme Prematurity-Moving Beyond Gestational Age , 358 NEW ENG. J. MED. 1672 (2008) (stating that infants born between 22-25 weeks require extreme intensive care to promote chance of survival); see also The Developing Human at 92-93. Under those circumstances, a conviction for killing a "viable fetus"-as required by the 2013 statutory language of the vehicular homicide statute-would likely be fundamental error because a violation of the statute couldn't have been proven absent the error; likewise if the unborn child was in the first trimester of development.

Admittedly, the 2013 version of the statute appears to have required proof of the viability of the specific unborn child versus proof of when viability generally occurs among the unborn of similar gestational age and weight. For example, certain fetal conditions correlate with a higher medically-significant mortality rate, such as genetic conditions, heart or lung defects, infections, low placental circulation, or substance abuse by the mother. The Developing Human at 99. But no Florida court has held that generalized proof as to viability-as reflected in judicial decisions discussing gestational age and fetal weight-is inadequate under the circumstances presented. And Huckaba does not say how a retrial would be meaningfully different if the State had to prove the viability of the deceased unborn child versus the viability of a cohort of unborn children of identical gestational age and weight; he posits no individualized evidence that the unborn child would have been unable to survive outside of his mother's womb.

For these reasons, I agree that affirmance is warranted.

      See Webster v. Reproductive Health Servs. , 492 U.S. 490, 515, 520, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (finding it reasonable to expect viability at 23 to 24 weeks, and upholding a state abortion statute that created a rebuttable presumption of viability at 20 weeks); In re T.W. , 551 So.2d 1186, 1193-94 (Fla. 1989) ("Under current standards, [viability] generally occurs upon completion of the second trimester.").

      In Latson , Judge Winokur wrote separately to discuss the growing frequency of defendants bringing claims of ineffective assistance of counsel on the face of the record "as an unjustifiable substitute for claims of fundamental error." 193 So.3d at 1072 (Winokur, J., concurring). Judge Winokur concluded that the trend of permitting such claims on direct appeal stems from a misreading of case law "and is directly contrary to controlling statutory law." Id. at 1074.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lizette OLAECHEA, etc., Appellant, v. Grace OLAECHEA, Appellee.
    No. 3D18-1117
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018.
    Nancy C. Wear, Miami, for appellant.
    Corona Law Firm, P.A., and Ricardo Corona and Ricardo M. Corona, Coral Gables, for appellee.
    Before EMAS, SCALES and LINDSEY, JJ.
   PER CURIAM.

Lizette Olaechea, the defendant below, appeals entry of final judgment in favor of Grace Olaechea, the plaintiff below, after a bench trial on claims for conversion, forgery, unjust enrichment, breach of fiduciary duty and a constructive trust. In the final judgment, the lower court awarded Grace Olaechea $419,750.43, plus interest, and imposed an equitable lien on the primary residence of Lizette Olaechea and her husband, Gabor Simmonds. We affirm entry of the final judgment and imposition of the equitable lien without discussion. See Palm Beach Sav. & Loan Ass'n v. Fishbein, 619 So.2d 267, 270-71 (Fla. 1993) (confirming that an equitable lien may be imposed on homestead property where funds obtained through fraud were used to purchase the homestead, and even where one spouse was not a party to the fraud).

Affirmed.

      We note that because Mr. Simmonds was neither a party to the proceedings in the lower court, nor a participant in this appeal, our decision is without prejudice to - and we express no opinion regarding - any defense Mr. Simmonds might assert to any subsequent foreclosure proceedings on the subject equitable lien.


author: FERNANDEZ, J.

text:
    Sean WHITE, Appellant, v. FERCO MOTORS CORP., Appellee.
    No. 3D17-2757
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018.
    Roger D. Mason, II, Joseph V. Nemeh and Elizabeth A. Buchwalter (Tampa), for appellant.
    Karen B. Parker, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and SCALES, JJ.
   FERNANDEZ, J.

Sean White appeals an order granting final summary judgment in favor of Ferco Motors Corporation, on his claims of negligence, fraud, and violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"), alleging disputed issues of material fact exist as to all claims. Upon review of the record, we find that genuine issues of material fact do exist and reverse on this basis.

In October 2015, White came across an internet advertisement for the sale of a used 2008 Series 3 BMW vehicle posted by Ferco Motors, a used car dealer. White contacted Ferco Motors and placed a $100.00 deposit on the vehicle to allow him to travel from Tampa to Miami to purchase the vehicle. On October 15, 2015, White test drove the BMW but declined the opportunity to have the vehicle inspected by a third party prior to purchase. Instead, White relied upon his review of the CARFAX summary that revealed 1.) no reported accidents or structural damage to the BMW and 2.) the BMW had been inspected by "Braman Miami" in May 2014, prior to its sale to Ferco Motors, at auction, on September 23, 2015. White alleges that, prior to purchasing the BMW, two Ferco Motors' sales representatives informed him that Ferco Motors had inspected the vehicle to ensure that it was "mechanically sound."

The sales representatives' statements regarding Ferco Motors' inspection of the vehicle appear consistent with the affidavit of Ferco Motors' president, Juan Carlos Fernandez. In his affidavit, Fernandez attests that he personally inspected the BMW prior to purchasing it at auction, finding the vehicle "to be in good condition [with] ... no leaks or indication that the vehicle had any problems with the engine or oil leaking." Moreover, upon transporting the BMW to Ferco Motors' lot after the auction, Fernandez attests that the vehicle was "again inspected for functioning, leaks, engine problems, warning lights, etc.", which "revealed no abnormalities ...." White further alleges that the sales representatives told him that, in ensuring the BMW was "mechanically sound," Ferco Motors had performed an oil change on the vehicle. However, Ferco Motors denies performing such an oil change.

In his purchase of the vehicle from Ferco Motors, White executed four separate documents that are relevant here. The first is a Retail Purchase Agreement, containing a "warranty statement" providing that, "We are selling this Vehicle to you As-Is." The second document is a Buyer's Guide, providing, in bold type, "AS-IS NO WARRANTY ... YOU WILL PAY ALL COSTS FOR ANY REPAIRS," and further states that "[t]he dealer assumes no responsibility for any repairs regardless of any oral statements about this vehicle." Third is a Spot Delivery Agreement, containing an addendum providing "Ferco Motors Corp. does not assume any responsibilities for the history of this vehicle," and "[t]his affidavit releases Ferco Motors corp. [sic] from any claims or lawsuits now or in the future." Lastly, the fourth document is the waiver of service contract on the vehicle.

After purchasing the BMW, White drove it 300 miles back to Tampa without issue. Two days later, on October 17, 2015, the BMW broke down, mid-day, while White was driving it on the highway. The check engine light failed to come on. While waiting for the tow truck to arrive, White opened the glove box and allegedly saw that many of the fuses were missing from the fuse box.

When White had the vehicle inspected by an auto repair shop, the mechanic, John Tosar, concluded that the vehicle had an irreparably blown engine block from a lack of oil in the engine. According to the mechanic's affidavit, the vehicle had "sustained no damage or punctures which would have caused a sudden or significant oil leak," and the vehicle "was either filled with an insufficient amount of oil, filled with the wrong type of oil, or was slowly leaking oil over time." The mechanic further asserted that he "personally observed the check engine light to be disabled" and that "[h]ad the check engine light been operational, it would have alerted Mr. White at the time of a potential issue, possibly avoiding the engine failure all together."

In May 2016, White filed the instant action against Ferco Motors alleging claims for: fraud (count I), fraudulent concealment (count II), negligent misrepresentation (count III), and violations of FDUTPA (count IV). All claims stem from the common allegations surrounding White's purchase of the BMW. In October 2016, Ferco Motors moved for summary judgment on all claims, arguing that 1.) the claims of fraud and negligent misrepresentation were barred by the economic loss rule; and 2.) all claims failed because White had purchased the BMW "As-Is," and there was no evidence that Ferco Motors had concealed the condition of the vehicle prior to selling it to White. In opposing the summary judgment motion, relying upon his own deposition and the mechanic's affidavit, White argued that: 1.) the Ferco Motors sales representatives misrepresented that Ferco Motors had performed a proper inspection of the vehicle and had lied about performing an oil change prior to selling it to White, and 2.) Ferco Motors had disabled the BMW's check engine light so that White would not be alerted to potential issues with the vehicle's engine.

On November 9, 2017, the trial court held a hearing on Ferco Motors' motion for summary judgment. On November 14, 2017, the trial court entered an order granting final summary judgment in favor of Ferco Motors on all claims. The order provides, in relevant part:

1. The Court finds that Plaintiff purchased a used automobile from Defendant Ferco Motors Corp.
2. The Court finds that the Plaintiff executed several documents acknowledging that he was purchasing a used vehicle in As-Is Condition and that he acknowledged that he could not rely on any oral representations as to the condition of the vehicle.
3. The Court finds that the Plaintiff chose not to have the vehicle inspected by anyone other than himself and he chose not to purchase a service contract.
4. The Court finds that as a matter of record, there is no admissible competent substantial evidence that there was any fraud or misrepresentations or deceptive trade practices committed by Defendant Ferco Motors.
5. The Court finds that there are no genuine issues of material fact.

This appeal ensued.

Our standard of review of an order granting summary judgment is de novo . We review the record to determine whether there are genuine issues of material fact that preclude summary judgment. Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002). Our review of the record discloses genuine issues of material fact regarding the condition of the vehicle at the time that it was delivered to White. Specifically, whether Ferco Motors negligently performed an oil change or disconnected the fuses that would have alerted White to an engine problem.

Though White signed an agreement that he was accepting purchase of the vehicle "As-Is" and agreed that he could not rely on oral promises, the facts of this case, considered in light of the mechanic's affidavit, the charge made by the dealership for inspection, and the condition of the vehicle, i.e., disconnected fuses, present the existence of a genuine issue of material fact. "If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied." Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095 (Fla. 1st DCA 1999).

White was charged a "pre-delivery service charge" that he was told included an oil change and ensured the vehicle was mechanically sound. Ferco Motors' argues that White signed a document that states that he could not rely on oral promises. But the pre-delivery document itself states, "This charge represents costs and profits to the Dealer for items such as inspecting, cleaning, and adjusting vehicles, and preparing documents related to the sale." White had to pay an additional fee for "inspecting" and "adjusting." Even though the document does not include an oil change, upon inspection, a lack of oil in the vehicle should reasonably have been discovered. This aspect lends additional support to White's contention that a genuine issue of material fact exists in this case.

FDUTPA and fraud statutes, in general, exist to protect a purchaser against the seller, even in the instance of signed agreements. "[A]n individual cannot waive the protection of a statute that is designed to protect both the public and the individual.... A contractual provision that defeats the remedial and deterrent provisions of a statute is contrary to public policy and is unenforceable." Holt v. O'Brien Imports of Fort Myers, Inc., 862 So.2d 87, 89 (Fla. 2d DCA 2003).

Concluding that genuine issues of material fact exist, we reverse and remand for further proceedings.

Reversed and remanded.


author: LOGUE, J.

text:
    Judith HAYES, Appellant, v. REVERSE MORTGAGE SOLUTIONS, INC., Appellee.
    No. 3D17-1603
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Legal Services of Greater Miami, Inc., and Jacqueline C. Ledon and Jeffrey M. Hearne, Miami, for appellant.
    GrayRobinson, P.A., and Frank A. Shepherd, Miami, Terrance W. Anderson, Jr., Miami, and Bryan F. DuBon, Miami; Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Cynthia L. Comras (Boca Raton), for appellee.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

Appellant Judith Hayes appeals a Final Judgment of Foreclosure. This case presents an issue of first impression as to when the statute of limitations in section 95.11(2)(c), Florida Statutes, begins to run for purposes of a reverse mortgage where the borrower died before the note matured. We hold the statute of limitations does not begin until the note matures and, accordingly, we affirm.

I. BACKGROUND

On October 26, 2007, Ruby Hayes, a single, 78-year old woman, executed a home equity conversion note and mortgage, commonly known as a reverse mortgage. The note and mortgage were signed by her daughter, Appellant Judith Hayes, acting as attorney-in-fact. Under the terms of the note and mortgage, the Lender, Countrywide Bank, FSB, advanced moneys to the borrower and the borrower was required to pay the principal and interest on November 25, 2079.

Crucial to the contract between the parties was Paragraph 9 of the reverse mortgage which contained an optional acceleration clause identifying two distinct conditions that would allow the borrower to accelerate the debt and foreclose, including the death of the borrower or the transfer of title. Paragraph 9 reads:

(a) Due and Payable. Lender may require immediate payment in full of all sums secured by this Security Instrument if:
(i) A Borrower dies and the Property is not the principal residence of at least one surviving Borrower; or
(ii) All of a Borrower's title in the Property (or his or her beneficial interest in a trust owning all or part of the Property) is sold or otherwise transferred and no other Borrower retains (a) title to the Property in fee simple, (b) a leasehold under a lease for less than 99 years which is renewable or a lease having a remaining period of not less than 50 years beyond the date of the 100th birthday of the youngest Borrower, or (c) a life estate in the Property (or a beneficial interest in a trust with such an interest in the Property).

(Emphasis added).

On May 21, 2008, less than one year after she executed the note and mortgage, Ruby Hayes passed away. In her will, she devised the house to Judith Hayes, who made the house her homestead.

On July 6, 2009, Bank of America, as the holder of the note and mortgage, filed the first foreclosure action. The parties stipulated that that case was closed in 2013 for reasons not reflected in the record.

On September 18, 2014, over five years later, Appellee Reverse Mortgage Solutions, as holder of the note and mortgage, filed the instant foreclosure action. Following a non-jury trial, Judith Hayes moved to dismiss the case, arguing that this foreclosure action was time-barred by the five-year statute of limitations. The trial court entered a final judgment of foreclosure. Judith Hayes timely appealed.

II. STANDARD OF REVIEW

"[A] legal issue surrounding a statute of limitations question is an issue of law subject to de novo review." U.S. Bank Nat'l Ass'n v. Amaya, 254 So. 3d 579, 581, No. 3D17-576, 2018 WL 3553905, at *2 (Fla. 3d DCA July 25, 2018) (quoting Nationstar Mortg., LLC v. Sunderman, 201 So.3d 139, 140 (Fla. 3d DCA 2015) ).

III. ANALYSIS

In this case of first impression, Judith Hayes contends that the second foreclosure action filed by Reverse Mortgage Solutions in 2014 was time-barred by section 95.11(2)(c), Florida Statutes, because the cause of action accrued on the date Ruby Hayes died in 2008. Alternatively, Judith Hayes contends that the cause of action accrued upon the mortgagee's acceleration of the reverse mortgage when the first foreclosure action was filed in 2009. We disagree with both arguments. In so holding, we find the crucial fact in this case is that the note does not mature until November 25, 2079.

First, the statute of limitations does not run from the death of the borrower because acceleration of the debt based on the death of the borrower is optional. Paragraph 9 of the mortgage confers upon the mortgagee the right, but not the obligation, to accelerate payment of the debt. For this reason, the occurrence of the borrower's death does not amount to the accrual of the foreclosure cause of action for purposes of the statute of limitations, it merely presents the mortgagee with the opportunity to elect whether to accelerate payment and exercise its foreclosure rights, or not. Should the mortgagee choose not to exercise that option, the full amount of the debt would still be due upon maturation of the mortgage.

Second, under existing precedent, the statute of limitations does not run from an interim acceleration associated with an unsuccessful foreclosure attempt in a manner to bar a subsequent foreclosures filed within five years of the note reaching maturity. The reasoning upon which this principle rests first emerged in the context of res judicata and then was applied to the statute of limitations.

In Singleton v. Greymar Assocs., 882 So.2d 1004 (Fla. 2004), the Supreme Court of Florida held that "res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not [sic] the mortgagee sought to accelerate payments on the note in the first suit." Id. at 1008. The Court explained:

If res judicata prevented a mortgagee from acting on a subsequent default even after an earlier claimed default could not be established, the mortgagor would have no incentive to make future timely payments on the note. The adjudication of the earlier default would essentially insulate her from future foreclosure actions on the note-merely because she prevailed in the first action. Clearly, justice would not be served if the mortgagee was barred from challenging the subsequent default payment solely because he failed to prove the earlier alleged default.
We must also remember that foreclosure is an equitable remedy and there may be some tension between a court's authority to adjudicate the equities and the legal doctrine of res judicata. The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage. We can find no valid basis for barring mortgagees from challenging subsequent defaults on a mortgage and note solely because they did not prevail in a previous attempted foreclosure based upon a separate alleged default.

Id. at 1007-08 (citation omitted).

In Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016), we followed the reasoning of Singleton to conclude the statute of limitations does not act to bar successive foreclosure proceedings involving conventional installment mortgages. Beauvais, 188 So.3d at 943-44 ("Here we follow that choice. And, as have numerous post- Singleton courts before us, we apply this determination, while made in the context of a res judicata defense, to a statute of limitations defense.").

Shortly thereafter, the Supreme Court of Florida decided Bartram v. U.S. Bank Nat. Ass'n., 211 So.3d 1009 (Fla. 2016). There, the Court relied, in part, on our decision in Beauvais to extend the reasoning set forth in Singleton concerning defenses based on res judicata regarding successive foreclosures to defenses based on statutes of limitations in successive foreclosures. Bartram, 211 So.3d at 1017-22. The Court rejected the view that acceleration of a debt in a foreclosure action involving a conventional mortgage with an optional acceleration clause and reinstatement provision caused the statute of limitations to bar a successive foreclosure proceeding. Id. at 1019-22.

Bartram, and this Court's decision in Beauvais, conclude that the statute of limitations does not bar the filing of a successive foreclosure action after dismissal of a mortgage foreclosure action accelerating payment when the note has not yet matured. Importantly, each of those cases rejected the view that an acceleration of payments in a foreclosure that fails can form the basis for a statute of limitations defense on a subsequent foreclosure based on a subsequent default during the life of the note. To hold otherwise, the Supreme Court explained, would result in a windfall to the borrower constituting "unjust enrichment or other inequitable results." Bartram, 211 So.3d at 1017 (quoting Singleton, 882 So.2d at 1007-08 ); Beauvais, 188 So.3d at 943-44.

While Singleton , Bartram, and Beauvais dealt with conventional mortgages, their reasoning applies with equal force to the reverse mortgage in this case. Of course, a reverse mortgage differs from a conventional mortgage because "a reverse mortgage allows elderly homeowners to receive monthly payments from a lender based upon the homeowners' equity in their principal residence." Smith v. Reverse Mortg. Sols., 200 So.3d 221, 222-23 (Fla. 3d DCA 2016) (citing Bennett v. Donovan, 703 F.3d 582, 584-85 (D.C. Cir. 2013) ). "[I]n a reverse mortgage arrangement, the lender makes monthly payments to the elderly homeowners, and the homeowners' obligation to repay the lender ripens only upon the homeowners' death or when the homeowners move from their home." Smith, 200 So.3d at 223 (citing Bennett, 703 F.3d at 584-85 ).

But, the holdings of Bartram and Beauvais were based on the fact that: (1) the mortgages at issue contained optional acceleration clauses; and (2) the notes had definitive maturation dates. The reverse mortgage here has those two characteristics. The plain language in Paragraph 9 creates an acceleration clause that is neither automatic nor mandatory. It states that the mortgagee "may require immediate payment in full," upon the death of the mortgagor or the conveyance of all of the mortgagor's beneficial interest in the property to a non-mortgagor. See Smith, 200 So.3d at 225, 228-29 & n.12 (construing identical language as creating a condition precedent to a mortgagee's election to acceleration payment of the debt and noting that nothing in the opinion "should be construed to limit Reverse Mortgage Solutions' ability to file a new foreclosure action upon the future occurrence of any of the conditions precedent outlined in Paragraph 9 of the subject mortgage.").

In addition, the reverse mortgage in this case identifies a single, definitive, and readily ascertainable maturation date - November 25, 2079. A decision by the mortgagee to not exercise an option, or to dismiss an earlier filed foreclosure proceeding, does not operate to bar the filing of a second foreclosure complaint at a later date because the entire amount due and owing is not due until that date. Unless the holder of the promissory note and mortgage in such a case reduces the mortgage lien on the property to a final judgment of foreclosure, the time within which the mortgagee may bring a foreclosure action under the mortgage agreement will expire after the five-year statute of limitations has run under the date of maturation. See § 95.11(2)(c), Fla. Stat.

Affirmed.

      As a result, this case is readily distinguishable from Wendover Financial Services v. Ridgeway, 28 N.Y.S. 3d 535, 137 A.D.3d 1718 (N.Y. 2016), which involved a mortgage with a mandatory acceleration provision.

      The reverse mortgage at issue here also contains the type of a reinstatement clause relied upon by the controlling cases. See, e.g., Bartram, 211 So.3d at 1020-22 (citations and internal quotations omitted) ("even after the optional acceleration provision was exercised ... the mortgagor was not obligated to pay the accelerated sums due under the note until final judgment was entered and needed only to bring the loan current ....[t]he lender's right to accelerate is subject to the borrower's continuing right to cure."); Beauvais, 188 So. 3d 946-53 (citation omitted) ("Stated another way, despite acceleration of the balance due and the filing of an action to foreclose, the installment nature of a loan secured by such a mortgage continues until a final judgment of foreclosure is entered and no action is necessary to reinstate it via a notice of 'deceleration' or otherwise.... [a]fter the dismissal ... the parties returned to the status quo that existed prior to the filing of the dismissed complaint.").

      The case before us is distinguishable from Financial Freedom Senior Funding Corp. v. Horrocks, 294 S.W.3d 749, 754-56 (Tex. App. 2009) (concluding the date of accrual began on the date of the borrower's death because the note in that case did not identify a date of maturation, however, in an attempt to interpret the contract and identify a date of accrual, the court concluded that the conditions created a readily ascertainable time for payment).


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Ricardo Gilart VAZQUEZ and Anaixa Gonzalez Ruiz, Appellees.
    No. 3D15-2864
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Link & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach), for appellant.
    Espinosa Law Group and Daniel A. Espinosa ; Kula & Associates, P.A., Miami, Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellees.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Citizens Property Insurance Corporation ("Citizens") appeals from a final judgment entered in favor of its insureds, appellees Ricardo Gilart Vazquez and Anaixa Gonzalez Ruiz ("insureds"), following a jury trial in a property damage insurance case. We reverse as the insureds' discovery violations both surprised and prejudiced Citizens during the trial.

BACKGROUND

The insureds' property damage claim arose as a result of an explosion inside a marijuana grow house located across the street from the insureds' home. The explosion at the grow house occurred on September 22, 2012. Shortly thereafter, the insureds contacted Citizens to make a claim on their policy, asserting that their home was damaged by the explosion. Citizens sent a field adjuster and two engineers to inspect the property, to make an official report, and to determine the cause of the damage to the home. The engineers stated in their certified opinion that the explosion did not cause the damage and instead the damage was caused by normal wear and tear to the twenty-three-year-old house. Based on this certified opinion, Citizens denied the insureds' coverage. As a result, the insureds sued Citizens for breach of contract.

After the case was initially set for trial on the June 2014 docket, the insureds obtained four continuances and three extensions to the discovery deadline. Despite Citizens' multiple efforts earlier in litigation to depose insureds' expert, Dr. Calvin Konya, the insureds produced Konya for deposition on the last business day before trial. Konya, a licensed blaster from Ohio, was to testify at trial about the strength of the explosion and the scientific reasons as to why the explosion could have caused damage to the home. During the deposition, Konya claimed that he had only spent five to six hours on the case prior to the deposition and based his pre-trial testimony on an engineering report, which he received two days earlier. He was unable to provide his personal opinion as to specific damages, as he had not visited the insureds' home and claimed that he did not plan to visit the home in the future. Thus, Konya's deposition was limited to his general opinion that an air blast could have caused the damage.

The trial began on August 17, 2015, and the jury was selected and sworn on August 18, 2015. Unbeknownst to Citizens, Konya arrived in Florida on August 18, 2015 to testify at trial and inspected the insureds' property that same night. Konya did not testify at trial until August 21, 2015. The insureds had two days to disclose that Konya inspected the property but failed to do so. On August 21, 2015, Konya was called as the insureds' last witness, and it was revealed for the first time, before Konya took the stand, that he had inspected the property during trial. Citizens moved to suppress Konya's testimony. The trial court denied the motion and allowed the testimony, so long as the testimony did not differ from Konya's pre-trial deposition. Despite this instruction, Konya testified with certainty that the explosion caused specific damages. Konya's mid-trial inspection became the basis for his opinions and testimony at trial. On cross-examination, Konya admitted that without the inspection of the property, he could not have testified to the specific damages. Ultimately, Konya admitted that his opinion formed after the inspection of the home.

Citizens moved for a new trial on the basis of Konya's mid-trial inspection of the property and his qualifications. The trial court denied Citizens's motion. Subsequently, the jury found in favor of the insureds and awarded the insureds $100,000.00. Citizens now appeals the judgement based on Konya's testimony.

ANALYSIS

We find that the trial court abused its discretion in admitting Konya's trial testimony. See Office Depot, Inc. v. Miller, 584 So.2d 587, 589 (Fla. 4th DCA 1991). "[A]ll relevant facts should be obtainable by the litigants in advance of a proceeding so as to 'render surprise at the trial a practical impossibility.' " Semmer v. Johnson, 634 So.2d 1123, 1124 (Fla. 2d DCA 1994). Trial courts should not admit evidence obtained after the discovery deadline. See Auto Owners Ins. Co. v. Clark, 676 So.2d 3, 4 (Fla. 4th DCA 1996) ; Dep't of Health & Rehab. Servs. v. J.B., 675 So.2d 241, 243 (Fla. 4th DCA 1996) ; Colonnell v. Mitchels, 317 So.2d 799, 801 (Fla. 2d DCA 1975).

Furthermore, trial counsel has a reasonable expectation that discovery ceases once trial begins and that experts will not change or develop their opinions after the discovery deadline. See Thompson v. Wal-Mart Stores, Inc., 60 So.3d 440, 444 (Fla. 3d DCA 2011) ; Owens-Corning Fiberglas Corp. v. McKenna, 726 So.2d 361, 363 (Fla. 3d DCA 1999). When a party presents evidence at trial not previously seen or heard by the opposing party, the admission of that evidence is inherently prejudicial. See Gonzalez v. State, 777 So.2d 1068, 1070 (Fla. 3d DCA 2001).

In this case, the critical date is August 19, 2015, the day the jury was sworn and the day Konya inspected the house. The mid-trial inspection violated the discovery orders of the trial court. The trial court granted multiple motions for continuance and extended the discovery deadline three times. Additionally, the mid-trial inspection of the home was improper because the inspection of the home occurred after the discovery deadline and during trial. The post-discovery assessment of the home changed Konya's general opinion that the explosion could have caused the damage to an opinion of certainty that the explosion did indeed cause specific damages. The change in testimony was a surprise to Citizens because Konya was only able to give general opinions of the damage at his deposition on August 14, 2015. Citizens's trial counsel relied on this deposition testimony during his opening statement instructing the jury to listen closely to the plaintiff's experts who could not prove causation with certainty. Thus, Konya surprised Citizens when he testified with certainty that the explosion created air pressure sufficient to cause specific damage in the home.

However, surprise alone is not enough; the surprise must also be prejudicial. See White v. State, 817 So.2d 799, 806 (Fla. 2002). In the present case, Konya's surprise testimony prejudiced Citizens because the testimony became the foundation for the insureds' case. Konya's testimony connected, with scientific certainty, the explosion of the grow house with specific damages to the insureds' house. Further, the mid-trial inspection and surprise testimony did not allow Citizens to challenge Konya's qualifications to make conclusions about specific damage to the home. And, as discussed earlier, Citizens had already informed the jury, in its opening statement, that Konya would not be able to testify with certainty that the explosion caused damage to the home. Therefore, Konya's surprise testimony prejudiced Citizens because the timing of the testimony did not allow Citizens to challenge Konya's qualifications and rebut critical testimony. See Menard v. Univ. Radiation Oncology Associates, LLP, 976 So.2d 69, 72 (Fla. 4th DCA 2008) ("In short, allowing parties at trial to substantially change the essential import of pretrial testimony of any kind without prior disclosure in discovery slants the field of justice to give unfair advantage to the party making such a change.").

CONCLUSION

Accordingly, we conclude that the trial court abused its discretion when it allowed Konya to testify because Konya's opinion was based on information obtained post-discovery and mid-trial. Because Konya's trial testimony both surprised and prejudiced Citizens during trial, we reverse the final judgment and remand for a new trial.

Reversed and remanded.

      Based on Konya's deposition testimony, Citizens' trial counsel told the jury during opening statement:
      You are going to hear Mr. Espinosa talk about Dr. Konya, who purports to be an expert in explosions. He is not going to be able to tell you that the explosion across the street caused this damage.... His opinion in this case is simply that this explosion could have caused damage over here. In his opinion, he thinks it's possible. That is what he is going to tell you. Not the [sic] specific damage that [sic] Mr. and Mrs. Vazquez's house was caused by the explosion. That is what you are going to hear from him.


author: Damoorgian, J.

text:
    STATE of Florida, Appellant, v. Akeem THOMAS, Appellee.
    No. 4D18-1369
    District Court of Appeal of Florida, Fourth District.
    November 21, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   Damoorgian, J.

The State appeals from the trial court's order converting the defendant's probation to administrative probation. Days after the trial court sentenced the defendant to one year of probation in accordance with the parties' plea agreement, the defendant moved to have his probation converted to administrative probation. Over objection by the State, the court granted the defendant's motion. Because only the Department of Corrections can transfer a probationer to administrative probation and only upon the satisfactory completion of half the term of probation, we reverse and remand with instructions to resentence the defendant. State v. Nazario , 100 So.3d 1246, 1247 (Fla. 4th DCA 2012).

Reversed and remanded for reinstatement of supervised probationary sentence for the balance of the probationary term remaining .

Gross and Ciklin, JJ., concur.


author: Bilbrey, J.

text:
    Earl HOLMES, Appellant, v. FLORIDA A & M UNIVERSITY, BY AND THROUGH the BOARD OF TRUSTEES for Florida A & M University, Appellee.
    Clemon J. Johnson, Appellant, v. Florida A & M University, by and Through the Board of Trustees for Florida A & M University, Appellee.
    No. 1D17-2282 No. 1D17-4069
    District Court of Appeal of Florida, First District.
    November 27, 2018
    Beverly A. Pohl and Christina Lehm of Nelson Mullins Broad and Cassel LLP, Fort Lauderdale; Michael K. Wilson and Natalie Peters Chappel of Nelson Mullins Broad and Cassel, Orlando, for Appellants.
    Robert E. Larkin, III, of Allen, Norton & Blue, P.A., Tallahassee, for Appellee.
   Bilbrey, J.

In these consolidated appeals, Appellants challenge final summary judgments in favor of Appellee Florida Agricultural and Mechanical University (FAMU) in Appellants' respective suits for breach of contract and other causes of action after Appellants' employment agreements were terminated without cause prior to the expiration dates specified in the agreements. We find, based on the expressed terms of the agreements and reading the agreements and incorporated regulations as a whole, that ambiguities exist such that FAMU was not entitled to judgment as a matter of law. Accordingly, the summary judgments are reversed, and the cases are remanded for further proceedings.

Background

Appellant Earl Holmes is the former head football coach and Appellant Clemon J. Johnson is the former head basketball coach at FAMU. Both coaches had previously been employed by FAMU as assistant coaches before entering into the agreements at issue. Coach Holmes' previous employment agreements as an assistant coach were clearly terminable at will.

When Coach Holmes was promoted to head football coach and Coach Johnson returned to FAMU as head basketball coach, FAMU entered into separate, very similar written employment agreements with both coaches. The employment agreements set out specific start and end dates for their "appointments," the language used in the agreements to specify the term of each agreement. Coach Holmes testified in his deposition and claimed in answer to interrogatories that he was told by the then FAMU athletic director that the contract was a guaranteed four year term. Coach Holmes' employment agreement provided in part:

2.0 TERM
2.1 This appointment shall commence on January 11, 2013 and end on January 10, 2017, without further notice to Coach, and is subject to the rules, regulations, polices and procedures of the Florida Board of Governors and the University as now or hereafter promulgated and the conditions stated herein.
2.2 This Agreement is renewable solely upon an offer from University and acceptance by Coach, both of which must be in writing and signed by the parties. This employment in no way grants Coach a claim to tenure in employment, or any years of employment attributable to tenure within the University.

Coach Johnson claimed that emails and the deposition of the then FAMU president supported his contention that his employment agreement also contained a definite four year term. Section 2 of former Coach Johnson's employment agreement provided nearly identical language as Coach Holmes' agreement, with a start date of May 23, 2011, and an end date of April 30, 2015. Because both of the agreements were for multiple years, approval was sought and received from FAMU's Board of Trustees before the agreements were finalized.

In addition to the terms of the appointments being subject to FAMU's regulations as referenced in section 2, section 5 of both contracts addressed "Non-reappointment, Separation, Termination, and Other Discipline." Coach Holmes' agreement provided in section 5:

5.0 NON-REAPPOINTMENT, SEPARATION, TERMINATION, OTHER DISCIPLINE
5.1 Non-reappointment, separation or termination of this Agreement by University may occur pursuant to the terms of this Agreement and University regulations as now existing or hereafter promulgated.
5.2 The University shall also have the right to terminate this at any time prior to its expiration, upon written notice to Coach, upon the following grounds:
[listing grounds for early termination for cause, (a) - (f) ]

Coach Johnson's agreement provided nearly identical language in section 5 and listed seven grounds upon which the coach's appointment could be terminated for cause.

During their initial appointments, both coaches received letters from the then president of FAMU informing them that they were immediately placed on "administrative leave" and that their employment would end sixty days after the dates of their letters. Neither coach was terminated based on any of the for cause grounds as listed in section 5 of the employment agreements. Both sixty-day administrative leave periods ended prior to the end dates set out in section 2.1 of the employment agreements. The FAMU president's letters stated that the terminations were "[p]ursuant to paragraph 5.1 of your Employment Agreement and Florida A & M University Board of Trustees (FAMU) regulations 10.105 and 10.106." The coaches' contractual salaries were paid until the ending dates stated in the letters.

Both coaches filed suit seeking damages for breach of contract and other causes of action. Following the trial court's entry of summary judgments in favor of FAMU in their respective cases, the coaches appeal to this court.

Analysis

Where no material facts are in dispute and the "determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment." Cox v. CSX Intermodal, Inc. , 732 So.2d 1092 (Fla. 1st DCA 1999) (citations omitted). But the existence of an ambiguity in a contract precludes the entry of summary judgment. As this court has stated:

Nevertheless, when the terms of the contract are ambiguous, susceptible to different interpretations, parol evidence is admissible to "explain, clarify or elucidate the ambiguous term." Friedman v. Va. Metal Prods. Corp. , 56 So.2d 515, 517 (Fla.1952). The initial determination of whether the contract term is ambiguous is a question of law for the court, and, if the facts of the case are not in dispute, the court will also be able to resolve the ambiguity as a matter of law. See Ellenwood v. Southern United Life Ins. Co. , 373 So.2d 392, 394 (Fla. 1st DCA 1979). However, "[w]here the terms of the written instrument are disputed and reasonably susceptible to more than one construction, an issue of fact is presented as to the parties' intent which cannot properly be resolved by summary judgment." Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc. , 513 So.2d 218, 219 (Fla. 1st DCA 1987).

Strama v. Union Fidelity Life Ins. Co. , 793 So.2d 1129, 1132 (Fla. 1st DCA 2001).

"Whether a contract is ambiguous is a question of law." Talbott v. First Bank Florida, FSB , 59 So.3d 243, 245 (Fla. 4th DCA 2011). "Accordingly, the issue before the Court is whether the trial court correctly determined that [Appellee] was entitled to prevail as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 131 (Fla. 2000). Our standard of review of the summary judgments for FAMU, based on the legal effect of the contracts, is de novo. University Hous. by Dayco Corp. v. Foch , 221 So.3d 701, 704 (Fla. 3d DCA 2017).

The trial court found, and we agree, that FAMU regulations 10.105 and 10.106 were sufficiently incorporated into the contracts as generally referenced throughout numerous sections of both agreements. See BGT Group, Inc. v. Tradewinds Engine Servs., LLC , 62 So.3d 1192, 1194 (Fla. 4th DCA 2011) (discussing how a document can be incorporated into a contract); see also Lowe v. Nissan of Brandon, Inc. , 235 So.3d 1021 (Fla. 2d DCA 2018). Accordingly, the provisions in the body of the contracts and the language in the incorporated regulations must be read as a whole. See Jenkins v. Eckerd Corp. , 913 So.2d 43 (Fla. 1st DCA 2005). However, because the interaction of FAMU's regulations with the explicit terms of the agreements creates an ambiguity, we cannot agree with the trial court's conclusion that the legal effect of FAMU's regulations entitled FAMU to judgment as a matter of law.

FAMU regulation 10.105, titled "Recruitment, Selection and Employment of University Faculty, Administrative and Professional, Executive Service, University Support Personnel System and Other Personal Services Employees," provides in pertinent part:

(3) Appointments.
* * *
(e) No appointment shall create any right, interest, or expectancy of continued employment. At any time during any appointment, faculty, A & P, and Executive Service employees may be non-renewed upon written notice in compliance with these regulations and consistent with any collective bargaining agreement.
* * *
(5) Probationary Period for A & P and USPS employees.
(a) The initial appointment for of [sic] a new employee to an A & P or a USPS position shall be for a probationary period of six (6) months ... During this probationary period, the appointment may be terminated at any time without any requirements of notice and without any rights of appeal or access to any complaint procedure as provided in these regulations.

While FAMU regulation 10.106 titled, "Non-reappointment and Separation of Administrative & Professional (A & P) Employees," provides in pertinent part:

(1) The President or President's designee may choose not to renew the employment of Administrative and Professional (A & P) employees, including the Executive Service. The notice of non-reappointment or intention not to reappoint an A & P employee shall be in writing. On or before March 1st of each contract year, the President or the President's designee shall notify any employee who will be non-reappointed.
(a) Administrative and Professional (A & P) employees appointed to positions of Head Athletic Coach ... may be non-reappointed as provided in section 1 above, unless their employment contracts provide otherwise.
* * *
(3) Notwithstanding the provisions of section 1 herein, an A & P employee may be separated from University employment. An A & P employee shall not have tenure and no expectation of appointment beyond a sixty (60) days' notice.

FAMU relied on the final sentence in regulation 10.106(3) in particular for its purported authority to terminate the coaches' appointments early, without cause but upon sixty days' notice. FAMU contends that this expectation-limiting language modifies the stated end dates of these contracts, so long as FAMU provides sixty days' notice. We disagree with FAMU that this language makes the agreements unambiguous.

The law is well-settled that an employment contract with a specified term of duration is not terminable at will, but can only be terminated prior to its end date if provided for in the contract. See Story v. Culverhouse , 727 So.2d 1128, 1130 (Fla. 2d DCA 1999). "[W]hen a contract for employment provides a definite duration, the employment contract is enforceable." Iniguez v. American Hotel Register Co. , 820 So.2d 953, 955 (Fla. 3d DCA 2002).

The law is also well-settled that courts are required "to read provisions of a contract harmoniously in order to give effect to all portions thereof." City of Homestead v. Johnson , 760 So.2d 80, 84 (Fla. 2000) ; see also Speegle Const. Co. v. District Bd. of Trs. of Nw. Fla. State Coll. , 75 So.3d 360, 361 (Fla. 1st DCA 2011) ; Story , 727 So.2d at 1130. A contract "should be considered as a whole, not in its isolated parts." Maines v. Davis , 491 So.2d 1233, 1235 (Fla. 1st DCA 1986). If clauses of a contract cast doubt upon the end date and circumstances allowing early termination, "an interpretation which gives a reasonable, lawful, and effective meaning to all its terms is preferred to an interpretation which leaves a part of the contract unreasonable, unlawful or of no effect." Raytheon Subsidiary Support Co. v. Crouch , 548 So.2d 781, 783 (Fla. 4th DCA 1989). Finally, "ambiguities are to be construed against the drafter." Id. at 784 (quoting Maines , 491 So.2d at 1235 ).

Reading the contract and incorporated regulations as a whole, giving meaning and effect to all provisions, and construing any ambiguities against FAMU as the drafter of both contracts and incorporated regulations, we find that FAMU was not entitled to judgment as a matter of law. The only use of the word "terminated" in FAMU regulations 10.105 and 10.106 is found in regulation 10.105(5) pertaining to probationary employees. Because neither coach was terminated during the first six months of his employment, this subsection is clearly inapplicable. FAMU's use of the terms "non-renewal," "non-reappointment," "separated from University employment," and "terminated" in separate portions of these regulations establishes that "non-renewal," "non-reappointment," and "separated" may not be synonymous with "terminated." See Paladyne Corp. v. Weindruch , 867 So.2d 630, 633 (Fla. 5th DCA 2004) (holding that separate non-renewal and termination provisions required reading to give effect to each; separate provisions had separate meanings and consequences).

"As a general proposition, the use of different language in different contractual provisions strongly implies that a different meaning was intended." Kel Homes, LLC v. Burris , 933 So.2d 699, 703 (Fla. 2d DCA 2006). We are uncertain whether the terms FAMU used in its regulations - "non-renewed" and "non-reappointed" - mean the absence of a renewal or reappointment upon the expiration of the stated end dates of the coaches' appointments. And considering the defined terms of the coaches' appointments in section 2, as modified by the for-cause provisions in section 5, we cannot say whether FAMU's use of the phrase "separated from University employment" in regulation 10.106(3) meant "terminated early without cause."

While regulation 10.105(3)(e) addresses A & P employees' lack of "expectation" of "continued employment" and regulation 10.106(3) provides "no expectation of appointment beyond a sixty (60) days' notice," these provisions regarding lack of expectation must be read in harmony with and to preserve the effect of the clearly stated end dates and for-cause provisions in these contracts. See Johnson , 760 So.2d at 84 (holding that courts are required to read provisions of a contract harmoniously in order to give effect to all portions thereof); Speegle Constr. Co. , 75 So.3d at 361 (same). Where there is no specified duration in an employment contract, "an employee's mere expectations, however reasonable, are insufficient to create a binding term of employment." Tohma v. Spalding & Evenflo Cos. , 724 So.2d 693, 694 (Fla. 2d DCA 1999). On the other hand, where a duration of the appointment is specified and modified by various stated contingencies, the employer's right to terminate early without cause is limited. Based on the inconsistencies in the agreements parol evidence will be necessary to determine which reading prevails.

For example, in Raytheon Subsidiary Support Company , a minimum duration of assignments was specified, but the employer "reserved" the right to "terminate employment prior to completion." 548 So.2d at 783. This wording in isolation appeared to give the employer unlimited discretion to terminate early. However, the memorandum incorporated into the employment contract there addressed various contingencies under which the company could terminate for cause. Id. Considering the contract and memorandum as a whole, the court in Raytheon found that the provision for early termination under various scenarios for cause would be rendered superfluous if the contract was terminable at will without cause based upon one phrase giving the employer discretion to terminate. Id. at 783-84. Reading the clauses of the contract in concert to give effect to each led the court in Raytheon to conclude that the contract was one "for a definite duration,"

terminable early only upon the conditions and procedures particularly set out in the termination clause in the incorporated memorandum. Id. at 784.

Reading the contracts and regulations here as a whole rather than in isolated parts, the lack of "expectation" set out in regulations 10.105(3)(e) and 10.106(3) may not override the specified durations of the coaches' contracts in the absence of cause for termination. See Maines , 491 So.2d at 1235. To find the appointments terminable by FAMU at will, merely upon sixty days' notice, could impermissibly render the specified end dates and provisions for early termination for cause in the contracts "virtual dead letters," that is, unnecessary and of no effect. See McArthur v. A.A. Green & Co. of Fla. , 637 So.2d 311, 312 (Fla. 3d DCA 1994). We are uncertain whether that was the parties intention in entering into the agreement. Since the contract language "is susceptible to more than one reasonable interpretation, extrinsic evidence may be considered by the court to ascertain the intent of the parties." Talbott , 59 So.3d at 245.

The summary judgment as to the second count in both complaints for breach of implied covenant of good faith and fair dealing must also be reversed. "Florida contract law does recognize an implied covenant of good faith and fair dealing in every contract." QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc. , 94 So.3d 541, 548 (Fla. 2012). In its motions for summary judgment, FAMU relied on our case Ahearn v. Mayo Clinic , 180 So.3d 165, 170 (Fla. 1st DCA 2015), for the proposition that "a claim for breach of the implied covenant of good faith and fair dealing cannot be maintained under Florida law absent an allegation that an express term of the contract has been breached." This contention apparently provided the trial court's only rationale in granting summary judgment as to these counts. Since we are reversing on the grant of summary judgment as to the breach of contract counts, it is necessary to also reverse the summary judgment as to the other counts in both complaints.

Finally, the grant of summary judgment on the counts for fraudulent inducement and negligent misrepresentation must also be reversed. The trial court found that because the termination provisions in the employment agreements were clear, the terms of the agreements superseded any oral statements FAMU employees may have made. See Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp. , 850 So.2d 536 (Fla. 5th DCA 2003). Since we find that the agreements were ambiguous, we also reverse as to these counts. See D & M Jupiter, Inc. v. Friedopfer , 853 So.2d 485, 487 (Fla. 4th DCA 2003) (holding that "[a]s a general rule, it is a matter for the jury to determine if an intentional misrepresentation has been made by" one party to another).

Conclusion

Because of conflicts in the express terms of both coaches' contracts, including FAMU's regulations incorporated therein, the early terminations of these employment contracts without cause merely upon sixty days' notice may have violated the specific terms of the contracts. Because of this ambiguity FAMU was not entitled to judgment as a matter of law. Accordingly, the summary judgments for FAMU and against Holmes and Johnson are reversed as to all counts, and the causes are remanded for further proceedings.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Osterhaus, J., concur.

      The actual ending date for both coaches employment as stated in the letters was greater than 60 days after the FAMU president's letters. This discrepancy has not been explained.

      The question of whether the FAMU regulations were incorporated consumed much of the argument on summary judgment below. The impact of the incorporation of the regulations was not extensively argued below but the parties agree that our de novo review means that the issue is preserved.


author: VILLANTI, Judge.

text:
    Peter ADKINS, Appellant, v. MEMORIAL MOTORS, INC., d/b/a Lakeland Toyota, Appellee.
    Case No. 2D18-1596
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018 Rehearing Denied January 9, 2019
    Philip A. Rhodes, Patrick J. Cremeens, and Jeanne M. Cremeens of The Law Office of Patrick Cremeens, P.L., Tampa, for Appellant.
    Walter C. Thomas, Jr., Lakeland, for Appellee.
   VILLANTI, Judge.

Peter Adkins appeals an order granting Memorial Motors, Inc., d/b/a Lakeland Toyota's motion to stay litigation and compel arbitration. Because the record does not support Adkins' argument that Lakeland Toyota waived its right to arbitrate, we affirm.

Adkins purchased a used Audi from Lakeland Toyota, and as part of this purchase he signed a retail installment sale contract which contained a provision requiring the parties to arbitrate any dispute "which arises out of or relates to ... [the] condition of this vehicle" if either party so requested. After Adkins experienced several problems with the Audi, he requested arbitration of the dispute by filing documents with the American Arbitration Association (AAA). However, because Lakeland Toyota had failed to pay certain arbitration fees several years earlier in a different arbitration proceeding before the AAA, the AAA initially refused to arbitrate the dispute.

As soon as Lakeland Toyota learned of the AAA's refusal, it took the necessary steps to pay the past due fees to the AAA and then notified Adkins that arbitration could move forward. By then, however, Adkins had changed his mind and no longer wanted to arbitrate. Instead, he filed suit against Lakeland Toyota, which responded by filing a motion to stay the litigation and compel arbitration. At a hearing on Lakeland Toyota's motion, the trial court determined that a legally binding agreement to arbitrate existed, that the parties' dispute fell within the scope of that arbitration agreement, and that Lakeland Toyota had not waived its right to arbitrate. Therefore, the court granted the motion. Adkins then filed this appeal, arguing as he did below that Lakeland Toyota's failure to pay the earlier AAA fees, which resulted in the AAA refusing to arbitrate the dispute, constituted a form of waiver of the right to arbitrate.

Both parties in this case agree that the elements a court must consider when determining whether to order arbitration are whether a valid written agreement to arbitrate exists, whether an arbitrable issue exists, and whether the right to arbitrate has been waived. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999). They also agree that only the third element-waiver-is at issue in this appeal. Adkins contends that Lakeland Toyota's act of failing to pay the AAA fees in a different case several years earlier constituted a waiver of its right to arbitrate in this case because its conduct amounted to a voluntary relinquishment of a known right to arbitrate. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005) (defining "waiver" as "the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right" (citing Major League Baseball v. Morsani, 790 So.2d 1071, 1077 n.12 (Fla. 2001) ) ). In contrast, Lakeland Toyota contends that its failure to pay the earlier fees is irrelevant because that act, in a different case with a different purchaser under a different contract, cannot constitute an intentional relinquishment of its contractual right to arbitrate the current dispute with Adkins.

While Lakeland Toyota's actions in the prior proceeding may have constituted a waiver of its right to arbitrate in that proceeding, none of the actions it took in this proceeding are inconsistent with its right to arbitrate in this proceeding. When Lakeland Toyota received Adkins' request to arbitrate, it promptly took the necessary steps to resolve its earlier dispute with the AAA so that it could arbitrate the current dispute with Adkins. Neither that action nor any of its other actions were inconsistent with its right to arbitrate in this case. Therefore, the trial court's rationale in rejecting Adkins' argument is fully supported by the record.

Moreover, Adkins' reliance on the AAA Consumer Arbitration Rules is unavailing in this case for two reasons. First, the contractual right of a party to arbitration is not governed by rules unilaterally adopted by a private entity such as the AAA unless those rules are explicitly incorporated into the contract. Cf. Younessi v. Recovery Racing, LLC, 88 So.3d 364, 365 (Fla. 4th DCA 2012) (holding that if the language of the contract clearly indicates that the AAA rules govern, then those rules are expressly incorporated into the contract and will govern resolution of the parties' dispute). Here, the contract between Adkins and Lakeland Toyota does not expressly incorporate the AAA Consumer Arbitration Rules. Therefore, they cannot be applied to negate Lakeland Toyota's contractual right to arbitrate.

Second, the unavailability of the AAA to conduct the arbitration does not negate the parties' agreement to arbitrate. See New Port Richey Med. Inv'rs, LLC v. Stern ex rel. Petscher, 14 So.3d 1084, 1087 (Fla. 2d DCA 2009). Here, the parties' arbitration agreement provides that Adkins may choose the AAA "or any other organization to conduct the arbitration subject to" Lakeland Toyota's approval. Therefore, even if the AAA rules bar the AAA from arbitrating this dispute, those rules do not prevent Lakeland Toyota from enforcing its contractual right to have the dispute arbitrated by "any other organization" authorized to conduct arbitrations. Instead, in compliance with the contract, Adkins may select a different organization to arbitrate this dispute.

Accordingly, because the trial court was eminently correct in granting Lakeland Toyota's motion to stay litigation and compel arbitration, we affirm.

Affirmed.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).


author: SUAREZ, J.

text:
    Angela KELLY, Petitioner, v. Vivian TORRES, etc., et al., Respondents.
    No. 3D18-1595
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Tammi A. Calarco, P.A., and Tammi A. Calarco, Miami, for petitioner.
    Xander Law Group, P.A., and Wayne R. Atkins, Miami, for respondent Vivian Torres.
    Before SUAREZ, SALTER, and SCALES, JJ.
   SUAREZ, J.

Angela Kelly petitions for a writ of prohibition against the Eleventh Judicial Circuit Court judge presiding over the case of Vivian Torres, as plenary guardian of Manuel Rosario Romero v. Ana R. Romero and Angela F. Kelly, et al., case no. 2015-00251-CA01. We deny the petition.

In her efforts to recover $423,607.91 alleged to have been wrongfully obtained by Ana Romero ["Romero"] and Angela Kelly ["Kelly"] from Manuel Romero, his plenary guardian Vivian Torres ["Torres"] brought a complaint against Romero and Kelly to recover the funds. The circuit court entered a default judgment against Romero for the full amount. Romero no longer had the funds, which apparently had been transferred to Kelly. After significant effort, Torres located Kelly and attempted to have her served, but was unable to complete service because Kelly sought to evade service of process and to avoid every attempt at bringing her to court.

Kelly filed a motion to dismiss the initial complaint for alleged insufficient service of process; the trial court denied the motion and ordered Kelly to answer the complaint. Kelly then filed a petition for certiorari in this Court seeking to quash that order. The petition was denied. Subsequently, the trial court entered an "Agreed Order" granting Torres leave to amend the complaint against Kelly. Kelly then filed this petition for a writ of prohibition to prevent the trial court from continuing the suit against her, claiming lack of both subject-matter and personal jurisdiction.

A discretionary writ of prohibition may issue only where a petitioner demonstrates that the circuit court acted without jurisdiction or in excess of its jurisdiction. English v. McCrary, 348 So.2d 293, 296 (Fla.1977). Here, where the trial court has both subject matter jurisdiction and personal jurisdiction over the defendant, prohibition is not the appropriate mechanism to test the correctness of the order below. See State ex rel. Eli Lilly & Co. v. Shields, 83 So.2d 271 (Fla. 1955) (holding prohibition is not available to prohibit a court from exercising personal jurisdiction over a party when the court has subject-matter jurisdiction over the case); Cruz v. Citimortgage, Inc., 197 So.3d 1185 (Fla. 4th DCA 2016).

Kelly argues that the trial court lost jurisdiction over her when it issued the default judgment against her co-defendant Romero because Kelly had not been served at the time that judgment issued. A default judgment against one co-defendant, however, is not effective to terminate the cause of action against a co-defendant who was not served with process until after the judgment was rendered. Calhoun v. Lee, 405 So.2d 1067 (Fla. 2d DCA 1981). Further, the mere entry of a default is not the equivalent of a judgment, nor is it a final disposition: "a default does not affect the status, rights, or liability of a codefendant." 49 C.J.S. Judgments § 272 (Sep. 2018 update). In fact the record shows that Kelly was not served with the initial complaint because she strenuously evaded service of process. In any event, the trial court determined that the 2015 default judgment was, in effect, a partial judgment against Romero, and Kelly was a named defendant. Now that there is service of process against Kelly and an agreed order granting Torres leave to amend the complaint, Torres can proceed against Kelly. Kelly has the option to seek a remedy on appeal from a final judgment.

We find no basis for prohibition in any of the points raised and deny the petition.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      The record reflects that the theft of $423,607.91 from the elderly ward meets the jurisdictional $15,000 subject-matter threshold of the circuit court.


text:
    Felix GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1054
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018.
    Felix Garcia, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.").


author: ROTHENBERG, C.J.

text:
    Gordon HALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-692
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Gordon Hales, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Gordon Hales appeals the trial court's order issued on March 2, 2018 denying his petition for writ of habeas corpus relief. Because Hales' petition is an attack upon his conviction for sexual battery upon a child and the life sentence imposed on April 27, 2000 in Broward County case number 95-3149-CF-10A, which was affirmed on direct appeal, see Hales v. State, 792 So.2d 469 (Fla. 4th DCA 2001), the Miami-Dade County Circuit Court was without jurisdiction to rule on the petition. Thus, the trial court should have dismissed Hales' petition without prejudice to allow him to file an appropriate motion or petition in the Seventeenth Judicial Circuit. See Hales v. State, 957 So.2d 699, 699-70 (Fla. 3d DCA 2007) (affirming the dismissal of Hales' petition for writ of habeas corpus as the Miami-Dade Circuit Court lacked jurisdiction to review the legality of Hales' conviction entered in another county, without prejudice to allow Hales to file an appropriate motion in the Seventeenth Judicial Circuit); Calloway v. State, 699 So.2d 849, 850 (Fla. 3d DCA 1997) (concluding that a circuit court has no jurisdiction to review the legality of a conviction and sentence imposed in another circuit court).

We, therefore, reverse the order denying Hales' petition with instructions to the trial court to dismiss the petition without prejudice to allow Hales to file his petition in the Seventeenth Judicial Circuit.

Reversed and remanded with directions.