author: CIKLIN, J.

text:
    Dennis COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2287.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant, Dennis Cox, appeals his convictions for robbery with a firearm and attempted second degree murder with a firearm. He asserts the State violated his Sixth Amendment right to counsel by strategically and surreptitiously inducing incriminating statements from him after his right to counsel had attached. Because the State affirmatively engaged in conduct that was the functional equivalent of an interrogation during which time the appellant’s attorney was not present, we must reverse his conviction and order a new trial.

During a four hour interrogation session, three detectives used a multitude of techniques designed to elicit incriminating statements from Cox. In fact, the trial court suppressed all post-invocation statements made by Cox save for a highly prejudicial seven minute interrogation room conversation with one of his co-defendants. In excluding the seven minute conversation from his order of suppression, the trial judge reasoned that in-custody conversations are generally not protected because they are made in a setting in which a criminal suspect does not have a reasonable expectation of privacy.

For the reasons we explain, the trial court erred. Not only did law enforcement officials purposefully create a false illusion of privacy within the interrogation room but, working in concert, designedly utilized a co-defendant to whom they made promises of leniency in exchange for baiting Cox to utter incriminating statements. The seven minute conversation between Cox and his co-defendant should have been encompassed within the trial court’s overall interrogation room suppression order. Because the published seven minute video recording constituted the very heart of the State’s evidence against Cox, this cannot be considered harmless error.

Facts

The Crime

On October 10, 2005, three men, one of whom was armed, arrived at The Dollar Store in Pompano Beach, Florida. A video surveillance camera showed that at approximately 7:30 p.m., the first man entered the store and approached the cash register clerk. While the first man was getting change from a dollar bill, another man approached carrying a small dark colored revolver and shot the clerk. The third man ran over and took cash from the register. All three then fled the scene.

A person unrelated to the crime identified Christopher McCall as the first man to enter the store. McCall was brought in for questioning and identified Cox as the shooter. On October 12, 2005, Cox was taken into custody by law enforcement officials from the Broward County Sheriffs Office. At 12:06 p.m., Cox was brought into the interrogation room.

The Invocation of Rights

At 1:47 p.m., Detectives Matthew Marks and Frank Bailante entered the interrogation room and read Cox his Miranda rights. After giving Cox the opportunity to read each of his constitutional rights, Detective Bailante memorialized the review by procuring Cox’s signature on a pre-printed form. Both verbally and in writing, Cox invoked his Sixth Amendment right to counsel.

The Questioning Continues

At 1:56 p.m. Detective Bailante exited the interrogation room but Detective Marks remained to fill out paperwork. Cox briefly “reinitiated” questioning by asking to see various crime scene photos in the detective’s investigative file.

[1:57 p.m.]
Cox: I can look at that? (Indicating the investigative file with photos)
Det. Marks: You will be seeing all this soon enough.
Cox: Why can’t I look at it now?
Det. Marks: All of this pertains to the investigation that is being conducted on you. You know why you are here.
Cox: You all still ain’t tell me.
Det. Marks: You are here about the robbery over at the Dollar Store.

At this time, Detective Bailante re-entered the interrogation room and informed Detective Marks that he could not ask Cox any questions because of Cox’s previous invocation of the right to counsel but could show him the photos in the file. After both detectives left the room for a brief period, Detective Marks re-entered:

[2:00 p.m.]
Det. Marks: I just got to make something clear. You had signed this form saying that you didn’t want to speak to me without an attorney present. But while I was filling out this paperwork here you started speaking to me, okay.... You did what is known as re-initiating the conversation. Which means you are talking to me now. If you are wishing to continue to speak to me, that’s fine. I have no problems talking to you and you talking to me. But, has your position changed? Are you willing to speak with me now?
Cox: By me looking at that ... (unintelligible) ... Where the [pre-printed Miranda rights form] at so I can sign?

Thereafter, Detective Marks returned the Miranda rights form to Cox and, to the question asking whether he wished to speak to law enforcement officials without his attorney present, changed his written answer from “No” to ‘Wes.” Detective

Marks then once again began questioning Cox about his whereabouts on the night of the robbery when Detective Bailante reentered the interrogation room.

[2:03 p.m.]
Det. Bailante: Where are we at? What? He wanted to see the stuff? You’re saying you want to talk about this a little bit now?
Cox: He told me (indicating Detective Marks) I can’t be asking to look at this (indicating the photos in the file) without—
[2:03 p.m,]
Det. Marks: No, no, no. You’re misunderstanding. What I am saying is I’m sitting here, doing paperwork, you’re talking to me. By you talking to me you’re reinitiating conversation with me after you told us you did not want to speak to us, okay?
* * *
[2:06 p.m.]
Cox: You are saying something I did not say. I wanted to look at the photo. I didn’t want you to ask me nothing....
Det. Bailante: Okay. Here is what we are going to do. Listen to me to what I’m telling you. We are done now. Please understand that. We should have been done before.

At this time it was clear Cox did not want to speak with law enforcement officials without an attorney present. In fact, all testimonial evidence from this point forward was suppressed by the trial court except for an ensuing seven minute conversation with Cox’s co-defendant.

Detective Bailante then exited leaving Detective Marks to inform Cox that another detective would soon be entering the interrogation room for purposes of performing a gunshot residue test on Cox’s hands. Detective Marks then left the room, leaving Cox alone. After Marks exited, Cox began wiping his hands under his armpits, biting and licking his fingernails, and coughing into his hands. (This non-testimonial evidence was permissibly published to the jury).

The “Family Friend” Interrogator Enters the Room

Law enforcement officials then sent a third detective into the interrogation room seemingly for the purpose of performing the gunshot residue test. Although Cox had already invoked his Sixth Amendment right to counsel, Detective Lacy Crew continued the interrogation. He removed Cox’s handcuffs and began the conversation with an apparent attempt to gain his trust.

[2:41 p.m.]
Det. Crew: I dealt with your dad a few times when he got jammed up. You know what the one thing about him that was good? He always told the truth.
[2:55 p.m.]
Det. Crew: I came here, made a special trip all the way from Pompano because I know your dad, (unintelligible) ... to give you an opportunity to help yourself.

Detective Crew also asked Cox about his brother and cousin, both of whom Detective Crew said he had dealt with in the past. When Cox denied involvement in the robbery by stating he was with family at the time of the crime, Detective Crew said he knew his “Aunt Sylvia.” Although subtle, Detective Crew’s attempts to befriend Cox would ultimately prove successful.

Deliberate Versus Accidental Shooting

Throughout Detective Crew’s conversation and interrogation of Cox (all of which was suppressed by the trial court), Crew made efforts to convince Cox that confessing to an accidental shooting would assist Cox in lightening his sentence.

[2:42 p.m.]
Det. Crew: This is the time right here. You never gonna have another opportunity to say, “Hey look, I made a mistake. This was an accident.”
[2:43 p.m.]
Det. Crew: Minimize your loss by coming up with the truth.... The bottom line is when we go to court, do you want the judge and jury to say, “This is a hardened criminal, a cold blooded killer”? Or, do you want them to say, “This was a mistake”?
⅝ * *
[2:54 p.m.]
Det. Crew: What if we catch the other guy and he give a complete statement against you. First one talk, first one that get help. State attorney’s office may say, “Hey you know what, this guy here he sat there and lie to you, give him the max. This guy, who showed some remorse, said he was sorry for what he did. Told the truth right off the bat. Let’s try to help him out.”
[3:03 p.m.]
Det. Crew: Did you deliberately shoot somebody? That’s a big difference. I’m giving you the ball, you want to run with it or not?
[3:05 p.m.]
Det. Crew: If you tell me “I went in there with that gun. I shot that guy. I tried to kill him. I robbed him” ... then the worst thing is going to happen to you. But, if you tell me “I went in there with the gun, it was a mistake, I didn’t try to shoot him”... that’s a whole different story. But as it stand right now with you not saying nothing and that guy saying, “He went in there with me and he shot this guy, deliberately, and I know he did” ... he is going to come into court and he is going to look like the good guy.

Detective Crew also told Cox his sentence for robbery could range from a youthful offender program to a life sentence. He said the sentence would depend on the information that Cox provided in the interrogation room. Detective Crew reiterated that a remorseful defendant who just accidentally discharged the weapon involved in the incident would receive a lighter sentence.

It was at this point that Cox changed his adamant denial of any involvement in the crime. Instead of denying participation, Cox told Detective Crew that he was willing to answer questions and make admissions.

The Family Friend’s Assurance of Privacy in the Interrogation Room

Before answering questions and providing details of the robbery, Cox indicated a strong hesitancy to talk in the interrogation room out of fear that the conversation was being recorded. Detective Crew assured Cox that no recording was being made and the conversation was being conducted in private.

[2:59 p.m.]
Det. Crew: Are you going to be able to answer my questions?
* * *
[3:00 p.m.]
Cox: I ain’t fixin’ to talk to you right here right now in this place knowing I am being recorded.
Det. Crew: Who is recording you?
Cox: Man ... I ain’t talking nowhere in no enclosed place. No buildings. I will talk to you outside.
Det. Crew: Do you see any camera around anywhere?
Cox: Am I supposed to see it?
Det. Crew: If we was recording you, yeah. We got a room where we take you in and the camera is sitting right there and we talking.
[3:08 p.m.]
Cox: I will talk to you and let you know what I know about the robbery but we cannot be in this building right now bro.
[3:10 p.m.]
Det. Crew: Nobody in here but me and you. Again, whose idea was this?

After this ten minute exchange filled with false assurances of privacy, Cox began to confess. He stated the robbery was not his idea; he was merely on the way to his grandmother’s house when he was approached by a co-defendant. However, Cox again expressed a continuing concern that his conversation with and confession to Detective Crew was being recorded.

[3:12 p.m.]
Det. Crew: Now don’t you feel better talking about this?
Cox: But I swear we are being recorded right now man.
Det. Crew: Listen to me man. Do you see anybody in this room?
Cox: No.
Det. Crew: Go ahead. Stop going backwards. Let’s continue going forward.

Cox finally relented. He told Detective Crew that he followed another man into the Dollar Store. He stated that he raised his gun at the clerk behind the register as he approached the counter, but it discharged by accident. Detective Crew again asked if the shooting was deliberate, to which Cox answered in the negative.

Law Enforcement’s Orchestration with a Co-Defendant

The most incriminating evidence introduced at trial derives from a seven minute conversation with a co-defendant, Christopher McCall, which the trial court specifically excluded from its suppression order. Prior to entering the interrogation room, McCall was told by law enforcement officials that he could expect leniency from the State Attorney’s office if he was able to elicit incriminating statements from Cox. Accompanied by Detective Crew, McCall was placed in the interrogation room with Cox and the three began a conversation:

[3:34 p.m.]
Det. Crew: Now Chris. He (indicating to Cox) already told me what happened. What happened?
McCall: I was at the place (Unintelligible), at the Dollar Store ... (Unintelligible).
[3:35 p.m.]
Det. Crew: Did you know you guys was gonna rob the place?
McCall: When he told me ... (Unintelligible). When we was on the outside.
* * ⅞
[3:35 p.m.]
Det. Crew: Did he shoot him deliberately or was it an accident?
McCall: He shot the guy deliberately.

Immediately after McCall made the statement that Cox “deliberately” shot the store clerk, Detective Crew purposefully exited the interrogation room so that both defendants were left alone. Cox, still unaware that the interrogation room was wired to record, confronted McCall by making highly charged inculpatory statements which would become the hallmark of the State’s prosecution against him.

[3:35 p.m.]
Cox: How you saying to them I meant to shoot the damn man?
McCall: (Unintelligible)
Cox: You telling them I meant to do that bro. You know how much time I can get for meaning to do something bro.
McCall: I ain’t gonna do nothing.
Cox: Okay. That ain’t the point bro. So I meant to shoot him, that what you tellin him? So I meant to shoot him?
McCall: I don’t know I ain’t doin nothing.
[3:36 p.m.]
Cox: Shit was a motha fuckin accident; you talking about deliberate. I ain’t gonna sweat it bro. I’m gonna leave that shit alone. All that lying gonna catch up with you man. I’m locked up. I can’t do nothing. There are plenty of people on the outside. Talking about I meant to do that shit man. Best thing for you to do bro is say that was an accident. It’s like six witnesses against you.
* ⅜ *
[3:37 p.m.]
Cox: I’m telling this man it was an accident. Everybody fixin’ to get a low sentence because it was an accident. You sitting here with all that deliberate shit. You know how much time that shit gonna get your dumb ass with that one word, “deliberate”?
McCall: (Unintelligible)
Cox: An accident, we ain’t getting shit ... eight months, twelve months, year and a half the most.
[3:39 p.m.]
Cox: I ain’t pull that trigger ... that gun went off by itself.

At this point, Detective Crew opened the door to the interrogation room and reentered it. McCall was dismissed and removed from the room.

After a three day trial and three hours of deliberation, the jury returned guilty verdicts for (count I) robbery with a firearm and (count II) attempted second degree murder with a firearm. Cox was sentenced to life in prison on count I and 30 years on count II that included minimum mandatory sentences because of special findings by the jury that a firearm was possessed and discharged and that great bodily harm was inflicted.

Cox’s primary contention on appeal is that the State violated his Sixth Amendment right to counsel by covertly and tactically inducing incriminating statements from him after his right to counsel had attached. Cox argues that law enforcement officers created a reasonable expectation of privacy in his interrogation room by making repeated assurances that the interrogation was not being recorded. Cox also asserts that law enforcement’s use of a co-defendant, as a medium to induce incriminating statements from him, violated his right to counsel as the co-defendant was acting as an agent of the state.

The State argues that the publication of Cox’s confrontation with his co-defendant was not inconsistent with his Sixth Amendment right to counsel because criminal defendants do not enjoy a reasonable expectation of privacy in an interrogation room.

Analysis

Standard of Review

When reviewing a trial court’s order on a motion to suppress, an appellate court affords a presumption of correctness with respect to the determination of historical facts, but “independently review[s] mixed questions of law and fact that ultimately determine constitutional issues.” See Welch v. State, 992 So.2d 206, 214 (Fla.2008).

Constitutional Protections

Both the Federal and Florida Constitutions provide as fundamental the right against self-incrimination. As a means of protection, criminal defendants are entitled to the warnings announced in Miranda before any custodial interrogation. See Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602. “[T]he requirement of giving Miranda warnings before custodial interrogation is a prophylactic rule intended to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings.” Cuervo v. State, 967 So.2d 155, 165 (Fla.2007) (quoting Davis v. State, 698 So.2d 1182, 1189 (Fla.1997) (emphasis omitted)).

Pursuant to Miranda, the term “interrogation” refers not only to express questioning, but “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). (footnote omitted). The Court explained:

This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective px*oof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Innis, 446 U.S. at 301-02, 100 S.Ct. 1682 (footnote omitted) (emphasis in original).

A criminal defendant can waive his or her Miranda rights and proceed with questioning provided the waiver is made voluntarily, knowingly and intelligently. See Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602. However, a suspect’s request to cut off questioning until counsel can be obtained must be “scrupulously honored” by the police. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Turning to the facts of this case, there can be no debate that Cox initially invoked his right to counsel. However, by asking to view the photos in the law enforcement investigative file, we find (as did the trial court) that Cox re-initiated discussion allowing for the resumption of his interrogation. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also Pirzadeh v. State, 854 So.2d 740, 743 (Fla. 5th DCA 2003)(“[W]hen an accused has invoked his right to counsel, all interrogation must cease immediately until counsel is made available, unless the accused reinitiates further communication with law enforcement.”).

Nevertheless, Cox explained that he merely wanted to see the photos, not engage in further discussion. Recognizing that Cox again invoked his right to counsel, the trial court appropriately suppressed all police questioning from this point forward — except for the seven minute conversation between Cox and a co-defendant.

Reasonable Expectation of Privacy

Cox argues that his seven minute “jailhouse conversation” with a co-defendant should have been included in the trial court’s suppression order because law enforcement officials misrepresented the truth as to the privacy of his interrogation. The State contends no error occurred because incarcerated inmates have no reasonable expectation of privacy while in law enforcement custody.

“A citizen’s right to privacy ... is determined by a two prong test: 1) whether the citizen had a subjective expectation of privacy; and 2) whether that expectation was one that society recognizes as reasonable.” Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008) (citing State v. Smith, 641 So.2d 849, 851 (Fla.1994)).

It has long been held that inmates do not have a reasonable expectation of privacy in jail. See Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); see also Allen v. State, 636 So.2d 494, 496-97 (Fla.1994). Therefore, most conversations and confessions in a police interrogation room are admissible as evidence. See Pestano v. State, 980 So.2d 1200, 1202 (Fla. 3d DCA 2008) (citing Larzelere v. State, 676 So.2d 394 (Fla.1996)). However, when law enforcement deliberately fosters an expectation of privacy, especially for the purpose of circumventing a defendant’s right to counsel, subsequent jailhouse conversations and confessions are inadmissible. Allen, 636 So.2d at 497.

In State v. Calhoun, 479 So.2d 241 (Fla. 4th DCA 1985), this court suppressed a videotaped jailhouse conversation between the incarcerated inmate and his brother because the statements therein were made while the defendant had a reasonable expectation of privacy. In Calhoun, the defendant was placed in an interview room equipped with a concealed video camera. Before speaking with law enforcement officials, the defendant asked to talk to his brother (also in custody on unrelated charges) in private. The two brothers spoke for about five minutes without being recorded. Thereafter, law enforcement terminated the conversation and the defendant invoked his Miranda rights. Nevertheless, law enforcement officers (admittedly for strategic “investigative purposes”) placed the defendant’s brother back in the interview room, and recorded a fifteen minute conversation between the two men. Id. at 242-43 (emphasis in original).

This court held that suppression of the fifteen minute videotaped conversation between the defendant and his brother was appropriate because the defendant had a “clear expectation of privacy ... deliberately fostered by the police officers.” Id. at 243. This court stated:

[Ajfter the first conversation the defendant specifically exercised his right to remain silent and his right to counsel. Not only were these rights totally ignored by the police but the officers circumvented them by bringing the brother back into the room and then taping the conversation which is the subject of the motion to suppress. To rule that under these circumstances the defendant’s statements to his brother are admissible is to make a mockery of the Miranda rights.

Calhoun, 479 So.2d at 243.

The instant case presents similar events. Cox, after invoking his Miranda rights, told Detective Crew that he did not want to talk about the alleged robbery out of fear the conversation was being recorded. Detective Crew then repeatedly and convincingly assured Cox that no such recording was being performed. It was after these assurances that Cox began answering Detective Crew’s questions and subsequently, making incriminatory statements to a co-defendant strategically placed inside the interrogation room by law enforcement officials. These police actions created a reasonable expectation of privacy in the interrogation room and should have led to inclusion of the seven minute jailhouse conversation with the other evidence suppressed at trial.

Use of Co-Defendant as an Agent of the State

Admission of the interrogation room conversation was also in error because the statements made therein were deliberately elicited by the co-defendant, Christopher McCall, who was acting as an agent of the state.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the United States Supreme Court held that the Sixth Amendment prohibits law enforcement officials from deliberately eliciting statements from a defendant after the right to counsel has attached. “[Statements ‘deliberately elicited’ from a defendant after the right to counsel has attached and in the absence of a valid waiver are rendered inadmissible and cannot be used against the defendant at trial.” Rolling v. State, 695 So.2d 278, 290 (Fla.1997) (citing Massiah, 377 U.S. at 206, 84 S.Ct. 1199). “For the fruits of postin-dictment interrogations to be admissible in a prosecution’s case in chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right to counsel.” Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990).

The “deliberately elicited issue” often arises when incriminatory statements are obtained by those persons acting as police informants or agents. See Rolling, 695 So.2d at 290. In Rolling, the court held that “[u]sually, determining whether the ‘deliberately elicited’ standard has been met becomes an issue in cases, like this one, where incriminatory statements from a defendant were obtained through persons other than the police who allegedly acted as police informants or surrogates.” Id.

The key to the inquiry is whether a confession was “obtained through the active efforts of law enforcement.” Id. at 291; see, e.g., United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (use of a paid jailhouse informant to stimulate conversation with defendant rendered incriminating statements inadmissible at trial); Massiah, 377 U.S. at 201, 84 S.Ct. 1199 (arranging for co-defendant to meet and discuss pending case in co-defendant’s wire-tapped car met the “deliberately elicited” standard). Further, this analysis does not require the alleged agent have knowledge of his or her role in “deliberately eliciting” statements from a defendant in violation of his right to counsel. See, e.g., Calhoun, 479 So.2d at 245 (placement of defendant’s brother in defendant’s videotaped interrogation room rendered the brother an unwitting agent of law enforcement and allowed the Sheriffs agents to vicariously initiate and participate in a post -Miranda interrogation that law enforcement could not legally accomplish directly).

In the instant case, law enforcement officials actively participated in a plan to elicit incriminating statements from Cox after Cox had invoked his right to counsel. Law enforcement officials planted co-defendant McCall in the interrogation room with the specific intent to evoke an incriminatory response. Moreover, it is clear that police investigators intended to spark a debate between the two suspects as to the deliberateness of the alleged shooting by leaving them to argue in the interrogation room. Accordingly, we conclude that the trial court erred in denying the motion to suppress Cox’s statements made during this seven minute conversation.

The Question of Harmless Error

“The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis.” Mansfield v. State, 758 So.2d 636, 644 (Fla.2000). “The harmless error test ... places the burden on the state ... to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). While the harmless error test requires an examination of the permissible evidence on which the jury could have relied, an appellate court must make “an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1135.

In Rigterink v. State, 2 So.3d 221 (Fla.2009), the Florida Supreme Court held that the introduction of a defendant’s videotaped statements taken in violation of the Sixth Amendment right to counsel was harmful error. In that case, the State made the videotaped statements a centerpiece of its case against the defendant, presenting the tape during opening statements, its case-in-chief and closing argument. The court held that while the State may have presented admissible evidence sufficient to uphold the verdict, “[t]he test is not whether the jury reached what we believe to be the correct result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant’s convictions.” Id. at 257 (emphasis added).

In the prosecution of Cox, the admissible evidence introduced by the State included testimony from two co-defendants, one of whom was an admitted crack addict who was high on drugs during the night of the alleged robbery. Both men identified Cox as the shooter but denied any role in planning the robbery. Both co-defendants acknowledged that they had received significant plea bargains for greatly reduced sentences in exchange for their cooperation and testimony in the case against Cox. The State introduced testimony from law enforcement officers who arrived on the scene of the crime and found the victim lying in a pool of blood behind the register. At no time, however, was the State able to introduce the firearm used during the robbery nor was the victim able to positively identify the shooter. There was no physical evidence linking Cox to the crime and a store videotape was of very poor quality and difficult to decipher.

As in Rigterink, the State initially mentioned the existence of the “jailhouse conversation” between Cox and McCall during its opening statement. The State began its case in chief by publishing the first two hours of the interrogation video that showed Cox answer preliminary questions and adamantly deny involvement in the robbery. Next, and after a large portion of the interrogation video suppressed below was skipped, the seven minute “jailhouse conversation” between Cox and McCall was twice published to the jury in whole or in part. Portions of this conversation were played for a third time during the State’s closing argument.

Upon a close examination of this impermissible evidence — which served as a centerpiece of the evidence against Cox — it cannot be said that its admission, beyond a reasonable doubt, did not contribute to the verdict. Therefore, the trial court’s error in admitting the “jailhouse conversation” was not harmless.

Conclusion

Because the trial court erred by failing to suppress the seven minute jailhouse conversation, we must reverse and order a new trial.

Reversed and remanded.

FARMER and HAZOURI, JJ., concur.

      . The entire interrogation was digitally recorded by a hidden law enforcement camera. Throughout this opinion, references to times reflect the time of day indicated on the clock inside the interrogation room. This is provided for edification and context.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      .During the hearing on the motion that led to the trial court's suppression order, Detective Bailante admitted that the decision by Detective Marks to remain in the interrogation room after Cox invoked his right to counsel was part of an overall interrogation technique. Detective Bailante testified, “Quite often, people will start to talk again.”

      . These admissions by Cox were included in the trial court’s suppression order.

      . At Dennis Cox’s trial, co-defendant Christopher McCall testified to the following:
      Defense counsel: They told you to go into the room, right?
      McCall: Yes, sir.

      Defense counsel: You knew when you walked in there you needed to get information, correct?
      McCall: Yes, sir.

      Defense counsel: So the more information you can get from Dennis Cox, was it your understanding that that would be more help from the police?
      McCall: Yes, sir.

      . U.S. Const, amend. V; Art 1, § 9, Fla. Const.


source: Caselaw Access Project

license: Public Domain

text:
    Jose RODRIGUEZ and Lorena Rodriguez, individually and as “next friends” on behalf of their minor children Joshua Rodriguez and Gabriella Rodriguez, Appellants, v. BUILDERS FIRSTSOURCE-FLORIDA, LLC, a Delaware Limited Liability Company, Boynton Beach Associates, XVI, LLLP, a Florida Limited Liability Partnership, Boynton Beach XVI Corporation, a Florida Corporation, and G.L. Homes of Florida, Inc., a Florida Corporation, Appellees.
    No. 4D09-1716.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Scott N. Gelfand of Scott N. Gelfand, P.A., Coral Springs, for appellants.
    Dianne 0. Fischer and Andrew P. Gold of Akerman Senterfitt, Fort Lauderdale, for appellees Boynton Beach Associates, XVI, LLLP, Boynton Beach XVI Corporation, and G.L. Homes of Florida, Inc.
   CIKLIN, J.

The purchasers of a home (“appellants”) appeal the trial court’s order compelling arbitration in them action against the builder. The appellants assert that them personal injury claims for mold exposure are based on duties of care imposed by common law — and not on the purchase agreement containing the arbitration clause — and therefore are not arbitrable. We find that the language in the contract requires arbitration for the claims brought by the purchasers and must be enforced. The trial court was correct when it required arbitration and thus, we affirm.

Appellants, Jose and Lorena Rodriguez, filed an amended complaint against Builders Firstsource — Florida, LLC (“Builders”), Boynton Beach Associates, XVI, LLLP (“GL Associates”), Boynton Beach XVI Corporation (“GL Corp.”), and G.L. Homes of Florida Corporation (“GL Florida”) seeking damages arising from mold infestation of a luxury home in Boynton Beach. The appellants allege that the damages were caused by the negligent design and construction of the home by GL Associates, GL Corp., and GL Florida, and the window contractor, Builders. In fourteen counts, the appellants claimed property damages as well as substantial adverse health consequences caused by the mold infestation. The appellants also brought claims on behalf of their two minor children.

GL Associates, GL Corp., and GL Florida (collectively and hereinafter “GL”) moved to compel arbitration. Builders did not join in this motion. The motion asserted that the July 16, 2004 “Purchase Contract” contained a mandatory arbitration provision that applied to any claims associated with alleged design and construction defects.

Following a hearing, the trial court entered an order granting GL’s motion to compel arbitration. The appellants appeal from that non-final order.

“Whether a particular issue is subject to arbitration is generally considered a matter of contract interpretation, and, therefore, the standard of review is de novo.” Hirshenson v. Spaccio, 800 So.2d 670, 674 (Fla. 5th DCA 2001).

“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Appellants dispute the second element. “[T]he determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638.

Paragraph H. 19 of the Purchase Contract provides:

19. Dispute Resolution Procedures. Please read this section carefully as it greatly impacts Purchaser’s rights in the event of a dispute with Seller. This Contract provides that all post-closing claims, disputes and controversies between Purchaser and Seller will be resolved by binding arbitration except only with respect to those relating to Sections G.5 and G.6 above. This means that in such instances, Purchaser and Seller each give up their right to go to court to assert or defend their respective rights under this Contract. In that regard, PURCHASER AND SELLER HEREBY MUTUALLY, KNOWINGLY AND VOLUNTARILY AGREE THAT, EXCEPT ONLY WITH RESPECT TO SECTIONS G.5 AND G.6 ABOVE, ANY AND ALL CLAIMS, DISPUTES AND CONTROVERSIES BY OR BETWEEN PURCHASER AND SELLER ARISING FROM OR RELATED TO THE HOME, WHICH OCCURS AFTER CLOSING (INCLUDING, WITHOUT LIMITATION, ANY CLAIMED DEFECT IN OR TO THE HOME, THE REAL PROPERTY ON WHICH THE HOME IS SITUATED, OR THE CONSTRUCTION OF THE HOME, OR CLAIMS RELATING TO THE SALE OF THE HOME, OR ANY CLAIMS FOR PERSONAL INJURY OR DEATH, OR ANY CLAIMS FOR BREACH OF CONTRACT, OR ANY CLAIMS FOR NEGLIGENT OR INTENTIONAL MISREPRESENTATION, OR NONDISCLOSURE IN THE INDUCEMENT, EXECUTION OR PERFORMANCE OF ANY CONTRACT, OR BREACH OF ANY ALLEGED DUTY OF GOOD FAITH AND FAIR DEALING) SHALL BE SUBMITTED TO BINDING ARBITRATION BY AND PURSUANT TO THE RULES OF CONSTRUCTION ARBITRATION SERVICES, INC. IN EFFECT AT THE TIME OF THE REQUEST FOR ARBITRATION, AND GOVERNED BY THE FEDERAL ARBITRATION ACT, IN STRICT COMPLIANCE WITH THE PROCEDURES AND MANNER SET FORTH IN THE DWELLING WARRANTY (WHICH PURCHASER ACKNOWLEDGES RECEIPT OF AND WHICH HAS BEEN INCORPORATED INTO THIS CONTRACT PURSUANT TO SECTION C.8 ABOVE).

(All emphasis shown included in original).

Our decision in Engle Homes, Inc. v. Jones, 870 So.2d 908, 909 (Fla. 4th DCA 2004) controls this issue. In the plaintiffs sued their builders for damages arising from mold infestation of their home due to alleged negligent design and construction of the home. Based on the purchase agreement, the builders moved to compel arbitration and stay litigation. An arbitration clause in the purchase agreement provided, in part, that “[a]ny and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration.” Id. at 909 (emphasis added in original). The trial court denied the motion. Id. at 910. On appeal, this court reversed and remanded, finding that “[bjecause the Joneses’ personal injury and property damage claims relating to the negligent design and construction of their home are addressed by the arbitration clause, they are subject to arbitration.” Id. at 911.

The appellants argue that recent case-law has departed from this court’s holding in Engle. These cases, argue the appellants, support the finding that mold personal injury claims are outside the purview of arbitration. In support of this contention, appellants cite the cases of Oberstar v. Divosta Homes, L.P., No. 2:08-ev-115-FtM-29SPC, 2008 WL 4811408 (M.D.Fla. Nov. 5, 2008) and Kaplan v. Divosta Homes, L.P., 983 So.2d 1208 (Fla. 2d DCA 2008).

In Oberstar, the federal district court accepted the Report and Recommendation by a magistrate judge denying the motion to dismiss or for a stay to compel arbitration filed by the builder of a home. 2008 WL 4811408 at *1. The buyers had sued the builders for personal injury due to “mold infestations in the subject property caused by the Defendant’s negligent construction which allowed water to seep into the house and caused mold.” Id. at *2. The sales contract contained an arbitration clause requiring “[ajny controversy, claim or dispute arising out of or relating to this Contract or the Purchase of the Unit (other than claims under the Limited Warranty) shall be settled by binding arbitration.” Id. The magistrate found that “the factual allegations in the Complaint do not rely on the [sales] contract ... but were referring to after occurring events that were allegedly caused by the Defendant’s negligent construction.” Id. at *5.

In Kaplan, the trial court granted the builder’s motion for arbitration on the plaintiffs rescission and fraud claims, but denied it as it related to the covenants and restrictions and personal injury claims due to mold exposure. The plaintiffs argued that the claims arose in tort and were not arbitrable. The relevant arbitration clause in the sales contract provided that “[a]ny controversy, claim or dispute arising out of or relating to this Contract or the purchase of the Unit ... shall be settled by binding arbitration.” 983 So.2d at 1210. As to the personal injury claims due to mold exposure, the appellate court found that they “are not directly related to the sales contract and do not necessarily rely on construction or interpretation of that contract for resolution.” Id,, at 1211-12.

What differentiates Oberstar and Kap-lan from Engle and the instant case is the arbitration contract language agreed to by the parties. In Oberstar and Kaplan the arbitration provisions were non-specifically worded to include “[a]ny controversy, claim or dispute arising out of or relating to this Contract or the purchase of the Unit,” whereas the arbitration clause in Engle specifically related to problems with the actual construction: “[a]ny and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration.” Like Engle and unlike Oberstar and Kaplan, the Purchase Contract here did mandate arbitration to specifically enumerated claims: “Any claimed defect in or to the home ... or the construction of the home ... or any claims for personal injury ... shall be submitted to binding arbitration.” The claims in the amended complaint center around negligent design and construction and personal injury.

The trial court did not err in granting GL’s motion to compel arbitration. Compare Seifert, 750 So.2d at 641 (“The absence of any mention of the parties’ rights in the event of personal injuries or death arising out of any alleged tortious conduct such as that which allegedly occurred in this case creates ambiguity and uncertainty as to the intent of the parties.”).

The language of the Purchase Contract clearly and unambiguously requires submission to binding arbitration for the claims stated in the amended complaint. “A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993); see also Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”). “The general rule is that competent parties shall have the utmost liberty of contracting and their agreements voluntarily and fairly made will be upheld and sustained by the courts.... The fact that one of the parties to a contract made a hard bargain will not alone avoid a contract.” Pierce v. Isaac, 134 Fla. 666, 184 So. 509, 513 (1938).

Appellants also raise several additional issues which we find were not preserved for appeal or to be without merit.

Affmned.

MAY and DAMOORGIAN, JJ., concur.


author: WEBSTER, J.

text:
    Timothy CARNEY, Appellant, v. SARASOTA COUNTY SHERIFF’S OFFICE and Opta Comp, Appellees.
    No. 1D09-1975.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Rehearing Denied Jan. 28, 2010.
    Tonya Oliver, Port Richey, and Bill McCabe, Longwood, for Appellant.
    Stephen E. Demarsh, County Attorney, and Maria D. Korn, Assistant County Attorney, Sarasota, for Appellees.
   WEBSTER, J.

In this workers’ compensation case, the judge of compensation claims held that claimant law enforcement officer was not entitled to the presumption afforded by section 112.18(1), Florida Statutes (2007), because his overnight stay in the hospital for treatment of his heart disease did not satisfy the statute’s disability requirement. Claimant contends this was error. We agree and, accordingly, reverse.

Claimant began his employment as a law enforcement officer with the employer in 1981. In 2007, claimant saw a cardiologist pursuant to a referral by his primary doctor because of problems with his heart rate and complaints of fatigue and shortness of breath. Claimant was given a “Hotter monitor” to wear. When he returned the monitor as instructed, claimant was told he would be called with the results in approximately one week. Two days later, however, while claimant was on duty, the cardiologist’s office called and instructed him to come to the office as soon as possible. Shortly after arriving at the doctor’s office, claimant was admitted to the hospital because of an irregular heart rate, and was administered medication in a successful attempt to regulate his heartbeat. Claimant was released from the hospital the next day — the first day of the Thanksgiving weekend. He returned to work without restrictions the following Monday, his next regularly-scheduled workday. Claimant testified that he lost no wages on account of the portion of the day he missed from work.

The only medical expert to testify opined that claimant had atrial fibrillation and that, on the date of accident, claimant’s heart was beating at a dangerously high rate. He also testified that claimant’s cardiologist hospitalized claimant because of the symptoms caused by his atrial fibrillation, and for treatment of his condition, which included regularizing his heartbeat.

The judge concluded that “the mere fact claimant required hospitalization to control his heartbeat does not automatically equate to an incapacity to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” She concluded, further, that, “absent any restriction on his work duties and responsibilities,” and pursuant to this court’s holding in Bivens v. City of Lakeland, 993 So.2d 1100 (Fla. 1st DCA 2008), “claimant has not established his loss of time for hospitalization for medication to control his heartbeat establishes a disability entitling him to the statutory presumption.” As a result, the judge determined that claimant was not entitled to the section 112.18(1) presumption, and denied compensability of the claim.

Section 112.18(1), Florida Statutes, creates a rebuttable presumption of com-pensability for heart disease suffered by firefighters and law enforcement or corrections officers who satisfy the statute’s prerequisites. Here, the employer and carrier conceded that claimant satisfied all of those prerequisites except the statute’s “disability” requirement. “Disability” is defined as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(13), Fla. Stat. (2007). “We have interpreted section 440.02(13) to mean that disability only occurs when the employee becomes actually incapacitated, partially or totally, from performing his employment.” Bivens, 993 So.2d at 1103. A finding of disability “hinges solely on the employee’s ability to earn income, not upon other factors such as whether the employee has experienced wage-loss.” Id.; but cf. City of Port Orange v. Sedacca, 953 So.2d 727 (Fla. 1st DCA 2007) (en banc) (applying a prior version of chapter 440). Also, this court held in City of Miami v. Thomas, 657 So.2d 927, 928 (Fla. 1st DCA 1995), that a disability may be temporary.

In finding that claimant failed to satisfy the disability requirement, the judge relied on our recent decision in Bivens, in which we held the claimant failed to establish disability where there was no evidence that his heart condition affected his ability to perform his firefighting duties. 993 So.2d at 1103. Although the claimant in Bivens missed one day of work due to a doctor’s appointment, and six more days after undergoing a diagnostic heart cathet-eidzation, we noted he “missed work only so his condition could be diagnosed, not because it was a debilitating ailment.” Id. We also noted Bivens’ testimony that he was always able to perform the physical requirements of his job. Id. It was in this context that we commented: “If testing or treatment, standing alone, equaled ‘disability,’ everyone would be disabled upon their first visit to a doctor’s office.” Id.

In contrast, claimant here was not hospitalized merely for diagnostic purposes. Rather, he was summoned from work by his treating cardiologist and admitted to the hospital because his heart was beating at a hazardous rate and required treatment to bring his heartbeat to a safe level. Thus, this was not “testing or treatment standing alone.” That he was able to return to work without restrictions a few days after being released from the hospital does not defeat claimant’s contention that he satisfied the disability requirement because, as noted, disability for purposes of the presumption may be temporary and partial.

The judge also relied on our decisions in Michels v. Orange County Fire/Rescue, 819 So.2d 158 (Fla. 1st DCA 2002), and Sledge v. City of Fort Lauderdale, 497 So.2d 1231 (Fla. 1st DCA 1986), as support for her finding that claimant failed to establish disability. Although both cases were cited in Bivens, this reliance was misplaced. First, both cases concerned a prior version of chapter 440. See Michels, 819 So.2d at 160 (applying the 1991 version); Sledge, 497 So.2d at 1232 (applying the 1985 version).

Also, the issue in Michels was the proper date of disability for determining the claimant’s correct average weekly wage at the time he became permanently and totally disabled due to his hepatitis C, not whether the claimant was incapacitated during his prior periods of treatment for hepatitis C. See Michels, 819 So.2d at 159. The claimant in Michels received medical and indemnity benefits during each of those periods-benefits to which he would not have been entitled had he not satisfied the disability requirement for compensability of an occupational disease. Id. at 160.

Likewise, in Sledge, the employer provided medical benefits following the claimant’s “several acute attacks of heart palpitations,” and paid disability benefits on one such occasion. 497 So.2d at 1231-32. The issue in that case, however, concerned how to determine the date of disablement in an occupational disease case with multiple periods of disability, whereas here the issue is whether claimant was disabled at all. See id. at 1233.

Because claimant, while hospitalized for treatment of his heart disease, was actually incapacitated, at least partially and temporarily, from earning “in the same or any other employment the wages which [he] was receiving at the time of the injury,” he satisfied the disability requirement of section 112.18(1), Florida Statutes. Therefore, having also satisfied the statute’s remaining prerequisites, claimant was entitled to the presumption of com-pensability afforded by that statute. Accordingly, we reverse the order finding to the contrary, and remand for proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

DAVIS and PADOVANO, JJ„ concur.


author: PALMER, J. COHEN, J.,

text:
    Brian HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2221.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.

      F.W. Blankner, Jr., of Jaeger & Blank-ner, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Brian Harvey (defendant) appeals his judgment and sentence which were entered by the trial court on his first-degree felony murder conviction. Determining that the trial court committed harmful error in refusing to give the defendant’s requested jury instruction, we reverse.

Mitchell Weiner was killed during the course of a robbery which occurred in connection with an attempted drug purchase. At trial, the State established that the defendant, along with two other men, discussed engaging in an alleged drug transaction with Weiner. The defendant testified that he attempted to arrange the drug transaction, but that he had no intention of participating in any robbery, and that the robbery and the murder of Weiner were both outside the original plan of selling marijuana.

The defendant requested an instruction on the independent act doctrine which arises

when one cofelon, who previously participated in a common plan, does not participate in the acts committed by his cofelon, ‘which fall outside of, and are foreign to, the common design of the original collaboration’.... Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act.... Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate.

Ray v. State, 755 So.2d 604, 609 (Fla.2000). The trial court denied this request. The defendant argues that the trial court erred in so ruling. We agree.

“[Wjhere there is evidence from which a jury could determine the acts of the co-felon resulting in murder were independent from the underlying felony, a defendant is entitled to an independent act instruction.” McGee v. State, 792 So.2d 624, 626 (Fla. 4th DCA 2001) (citing Bryant v. State, 412 So.2d 347 (Fla.1982)).

In Bryant, the victim was subjected to a burglary, a robbery, and a sexual battery. The Supreme Court concluded that, even though the defendant participated in the robbery, the jury could have concluded that his co-felons exceeded the scope of the original plan in committing the sexual battery. As such, the Court held that the defendant was entitled to receive an instruction on the independent act doctrine. Similarly, in Flemmings v. State, 838 So.2d 639 (Fla. 5th DCA 2003), the defendant was convicted of robbery and first-degree murder after his co-felon killed the robbery victim. The defendant argued that he was entitled to receive the independent act doctrine instruction because there was evidence adduced at trial which supported his contention that he did not know about the plan to rob the victim. This court held that, although the evidence at trial was sufficient to support the convictions, the trial court erred in refusing to give the instruction.

This case is factually similar to Flemmings. The defendant testified that he only intended to participate in the sale of marijuana, and that the robbery and resulting murder were independent acts of his co-felons. The defendant maintained that position during his police interviews and throughout the trial. Also, there was testimony by multiple witnesses, including witnesses for the State, that the defendant called looking for a pound of marijuana for Weiner. While the evidence presented was sufficient to convict the defendant as charged, evidence was presented which supported the defendant’s theory that the robbery, and thus the murder, were independent acts from the original plan to sell the marijuana. As such, an instruction on the independent act doctrine should have been given.

The State contends that, even if the trial court erred in refusing to give the requested instruction, it was harmless error. The burden is on the State to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)(citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The State has not sustained this burden of proof.

Accordingly, we reverse the defendant’s convictions and remand for a new trial.

REVERSED and REMANDED.

SAWAYA, J., concurs.

COHEN, J., concurs specially with opinion.

COHEN, J.,

concurring specially.

I concur in the reversal. See Senior v. State, — So.3d -(Fla. 5th DCA 2010) (Cohen, J., concurring specially).

      . It is understandable that the trial court did not give the jury instruction as requested by the defendant since defense counsel failed to cite any legal authority supporting the request.


author: GRIFFIN, J.

text:
    Jose A. CALDERON, II, Appellant, v. Catherine Ann CALDERON, Appellee.
    No. 5D08-4062.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.
    Leonard Aronoff, Orlando, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Jose Calderon, II [“Husband”], appeals the final judgment of dissolution of marriage and an order denying exceptions to report and recommendation of general magistrate. Husband contends that the lower court erred when it determined that his exceptions to the report and recommendations of the general magistrate were untimely. Because Husband’s exceptions were timely, we reverse.

Husband and Appellee, Catherine Calderon [“Wife”], were married in 1994, and separated sometime in 2000. They had three minor children at the time of the divorce. Husband filed for divorce on June 29, 2007, the day before he left the State of Florida. He provided the lower court with his parents’ Florida address where he continued to receive mail. Wife filed her answer to his petition and a counter-petition for dissolution. Husband answered the counter-petition.

Sometime after Husband failed to appear for a court-ordered mediation, Wife filed a notice for non-jury trial of all issues concerning the dissolution of the parties’ marriage. The matter was set for hearing before a general magistrate. At the conclusion of the hearing, the general magistrate made his report and recommendations. The report of the general magistrate is dated October 2, 2008. Husband mailed his exceptions to the report, by certified mail, on October 16, 2008. The clerk’s stamp on the front of Husband’s exceptions shows that it was received in the clerk’s office on October 20, 2008.

Without addressing Husband’s exceptions, on October 21, 2008, the trial court entered a final judgment of dissolution of marriage, adopting the recommendations of the general magistrate. By separate order, the trial court struck Husband’s exceptions as untimely filed.

Florida Family Law Rule of Procedure 12.090 provides that time is computed pursuant to Florida Rule of Civil Procedure 1.090. Rule 1.090 provides that the day of the act from which the time begins to run shall not be included in computing any period of time prescribed, and five days are added to the prescribed period for service by mail. See Fla. R. Civ. P. 1.090(a)(e). Under rule 12.490(f), exceptions to a general magistrate’s report must be served within ten days after service of the report. This Court has held that service by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service. See Williams v. Express Leasing, Inc., 575 So.2d 768, 769 (Fla. 5th DCA 1991); see also Fla. R. Civ. P. 1.080(f). Recently, addressing the same issue, the Second District, in Riley v. Riley, 14 So.3d 1284 (Fla. 2d DCA 2009) determined objections were timely filed when mailing days were taken into account:

A trial court must hear timely filed exceptions to a magistrate’s report. See Fla. Fam. L.R.P. 12.490(f); Betz v. Betz, 790 So.2d 1128, 1130 (Fla. 2d DCA 2001). Rule 12.490(f) provides, “The parties may serve exceptions to the report within 10 days from the time it is served on them.” Pursuant to rule 12.090 and Florida Rule of Civil Procedure 1.090(e), the Husband had an additional five days to serve his exceptions because the magistrate’s report was served on him by mail. See Werntz v. Floyd, 814 So.2d 480, 481 (Fla. 4th DCA 2002); Palmer v. Palmer, 582 So.2d 639, 640 n. 1 (Fla. 3d DCA 1991).

Id. at 1289.

Because the general magistrate entered and served his report on Thursday, October 2, 2008, and Husband mailed (served) his exceptions via express mail to the clerk of the court on October 16, 2008, his exceptions were not untimely. Reversal is required so that the lower court can consider the merits of Husband’s exceptions.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . Husband additionally contends that he was deprived of his right to consent or to decline the referral to the general magistrate because he did not receive notice of the hearing as required by the family law rules.

      . Appellee has not appeared in this appeal.

      . The certificate of service on the exceptions was not dated by Husband. However, Husband had the document notarized. The notary dated the document October'16, 2008. Additionally, Husband served the document on the clerk by express mail, return receipt requested. The post office acknowledged on the tracking slip that they received the letter on October 16, 2008.


author: PER CURIAM.

text:
    K.J.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-648.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Giselle Denise Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises two issues on appeal: first, whether the trial court erred by exceeding its statutory authority when it increased the commitment level upon a motion of a party other than the Department; and second, whether this court should remand with instructions to enter an amended disposition order which deletes the attachments suggesting Appellant is subject to post-commitment probation. We AFFIRM the first issue on the merits, but REMAND as to the second issue, with instructions for the trial court to enter an amended disposition order without the attachments, which indicate Appellant is subject to post-commitment probation. The State concedes there was no post-commitment probation ordered and does not oppose correction of the scrivener’s error. See Smith v. State, 614 So.2d 602 (Fla. 1st DCA 1993).

VAN NORTWICK, PADOVANO and ROWE, JJ., concur.


text:
    Floyd JOHNSON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and PCL Civil Constructors Inc., Appellees.
    No. 1D09-3687.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Floyd Johnson, pro se, Appellant.
    Geri Atkinson-Hazelton, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See generally Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998) (dismissing untimely appeal without prejudice to appellant’s right to petition agency for relief).

VAN NORTWICK and CLARK, JJ., and BERGER, WENDY, Associate Judge, concur.


text:
    M.S., Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D09-2202.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.
    Joseph P. George, Criminal Conflict & Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for Department of Children & Family Services, and Hillary S. Kambour, for Guardian ad Litem Program.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See L.M. v. Dep’t of Children & Family Servs., 963 So.2d 871 (Fla. 3d DCA 2007).


author: SILBERMAN, Judge.

text:
    Jan AIKIN, Appellant, v. WCI COMMUNITIES, INC., a Delaware corporation, Appellee.
    No. 2D07-5721.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 2010.

      Joseph Stern of Saraga & Lipshy, Del-ray Beach, for Appellant.
    Elaine Johnson James of Edwards An-gelí Palmer & Dodge LLP, West Palm Beach, for Appellee.
   SILBERMAN, Judge.

Jan Aikin appeals a final summary judgment entered against her in the lawsuit she filed seeking declaratory relief and rescission of the residential purchase contract she entered into with WCI Communities, Inc. (WCI). In her complaint, Ms. Aikin sought rescission of the contract based on WCI’s alleged failure to comply with the reporting and registration requirements of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-20 (2005) (the Act). The circuit court concluded that WCI was exempt from the registration and disclosure requirements of the Act because the contract contained a binding obligation for WCI to construct Ms. Aikin’s condominium unit within two years from the date she signed the contract. We affirm.

BACKGROUND

On September 30, 2005, Jim and Jan Aikin executed a contract with WCI in which they agreed to purchase a condominium unit from WCI in the Westshore Yacht Club Townhomes II. The contract required WCI to complete construction within two years of the date of signing as follows:

D. The Unit, as configured in Seller’s plans and specifications for the Unit and the Condominium, shall be completed not later than two (2) years from the date Purchaser signs this Contract. However, the date for completion may be extended by reason of delays incurred by circumstances beyond Seller’s control, such as acts of God, or any other grounds cognizable in Florida contract law as impossibility or frustration of performance, including, without limitation, delays occasioned by rain, wind and lightning storms. It is the intention of the parties that this sale qualify for the exemption provided by 15 U.S.C. Section 1702(a)(2), and nothing herein contained shall be construed or operate so as to any obligations of Seller or rights of Purchaser in a manner which would render said exception inapplicable.

WCI completed construction of the unit within two years as required. On March 1, 2007, it notified Ms. Aikin that she could close on the unit. On March 12, 2007, Ms. Aikin sent notice to WCI through her attorney that she was revoking and terminating the contract because WCI had failed to comply with the reporting and registration requirements of the Act. WCI disputed that Ms. Aikin was entitled to rescind the contract.

THE CIRCUIT COURT LITIGATION

On May 21, 2007, Ms. Aikin filed a declaratory judgment action. In count I, she sought a declaration as to whether the contract imposed “an unqualified and unconditional guarantee on WCI to complete the Unit within two years,” as required by 15 U.S.C. § 1702(a)(2). She asserted that the transaction was not exempt under 15 U.S.C. § 1702(a)(2) from the Act’s reporting and registration requirements because the contract did not unconditionally require WCI to complete construction of the unit within two years. In count II, Ms. Aikin sought to rescind the contract based on WCI’s failure to comply with the Act’s reporting and registration requirements. In connection with the rescission claims, Ms. Aikin asked for the return of her deposits plus interest, costs, and attorney’s fees.

WCI filed a motion for summary judgment, stating that there were no disputed issues of material fact. WCI argued that it was exempt from the Act’s registration and disclosure requirements because the contract required it to unconditionally complete construction of the unit within two years. Ms. Aikin responded to WCI’s motion and filed a cross-motion for summary judgment. She agreed that there were no disputed issues of fact but maintained that the contract did not unconditionally require completion of the unit within two years. She asserted that the contract was not exempt from the Act’s registration and disclosure requirements for several reasons.

First, she claimed that the force maj-eure language under section 3.D. of the contract, which permitted WCI to éxceed the two-year construction obligation under a number of circumstances, made the requirement that WCI complete the unit within two years conditional. Second, she argued that section 7.C. of the contract, which required her to give WCI twenty days’ notice of default and an opportunity to cure, provided WCI with the ability to extend the completion date beyond two years. Third, she contended that the two-year construction obligation was not unconditional because the contract placed limits on her remedies for breach of contract by WCI. Finally, she asserted that section 10 of the contract, which permitted WCI to unilatei'ally terminate the contract if it did not sell at least 65% of the units in the building within 180 days from the date the first purchaser signed a contract, effectively permitted WCI to breach the contract without consequence and limited her damages to a refund of her deposits plus interest.

Following a hearing, the circuit court ruled that the contract unconditionally obligated WCI to build the condominium unit within two years. The court first concluded that it need not determine the impact of the force majeure clause because under the savings clause in section 3.D. of the contract, ‘WCI forewent the opportunity to be protected by that defense.” Second, the circuit court determined that the default and remedies provision under section 7.C. of the contract did not render the two-year construction obligation illusory. It reasoned that section 7.C. “must be read so as to entitle WCI to 20 days’ notice of default, provided that the receipt of that notice does not extend the time for construction beyond two years, and thereby render the exemption to [the Act] inapplicable.” The court did not specifically address Ms. Aikin’s arguments with respect to the limitations on remedies and section 10, which allowed WCI to terminate the contract if it did not meet certain pre-sale requirements.

The circuit court summarized that “WCI was not required to comply with the registration and disclosure requirements of [the Act] because the Contract contained a binding obligation to construct the Unit within two years.” It granted final summary judgment in WCI’s favor and reserved jurisdiction as to WCI’s fees and costs. On appeal, Ms. Aikin raises the same arguments against the exemption.

ANALYSIS

1. The Force Majeure Language

The Act “is an anti-fraud statute that uses disclosure as its primary tool to protect purchasers from unscrupulous sales of undeveloped home sites.” Maguire v. S. Homes of Palm Beach, LLC, 591 F.Supp.2d 1263, 1267 (S.D.Fla.2008) (citing Winter v. Hollingsworth Props., Inc., 777 F.2d 1444, 1447 (11th Cir.1985)). The Act is applicable to the sale of condominium units. See Stein v. Paradigm Mirasol, LLC, 586 F.3d 849 (11th Cir.2009). Certain transactions are exempt from specified disclosure requirements. 15 U.S.C. § 1702. In pertinent part, for a condominium unit sale to be exempt from the disclosure requirements of the Act, “either it must be completed before it is sold, or it must be sold under a contract obligating the seller to erect the unit within two years from the date the purchaser signs the contract for sale.” Winter, 777 F.2d at 1448.

The interpretation of the Act is governed by federal law, but whether a given contract obligates the seller to complete construction within two years is a question of state contract law. Piloto v. Edge Investors, LP, 609 F.Supp.2d 1301, 1307 (S.D.Fla.2009) (citing Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1099-1100 (Fla.1990)); see also Stein, 586 F.3d 849, 854 (observing that statutory interpretation principles from federal decisions would be used to construe the term “obligating” but that Florida law “will inform us about the extent and nature of Paradigm’s legally enforceable obligation to fulfill its contractual promise to complete construction within two years”).

The Secretary of Housing and Urban Development (HUD) is charged with the responsibility of administering the Act. 15 U.S.C. § 1715. HUD has promulgated guidelines for interpreting the statutory exemptions. See 61 F.R. 13596-01 (Mar. 27, 1996), Supplemental Information to Part 1710: Guidelines for Exemptions Available Under the Interstate Land Sales Full Disclosure Act (the Guidelines). “[T]he administrative interpretations of a statute by the agency required to enforce that statute are entitled to great weight.” Samara, 556 So.2d at 1099; see also Winter, 777 F.2d at 1448 (same). Accordingly, before addressing Florida contract law as to the issues before us, we review HUD’s Guidelines.

The Guidelines acknowledge that “HUD’s interpretation of what constitutes an obligation to construct a building relies on general principles of contract law.” Guidelines, part IV(b). The Guidelines state in pertinent part as follows:

The contract must not alloiv nonperformance by the seller at the seller’s discretion. Contracts that permit the seller to breach viHually at will are viewed as imenforceable because the construction obligation is not an obligation in reality. Thus, for example, a clause that provides for a refund of the buyer’s deposit if the seller is unable to close for reasons normally within the seller’s control is not acceptable for use under this exemption. Similarly, contracts that directly or indirectly waive the buyer’s right to specific performance are treated as lacking a realistic obligation to construct. HUD’s position is not that a right to specific performance of construction must be expressed in the contract, but that any such right that purchasers have must not be negated. For example, a contract that provides for a refund or a damage action as the buyer’s sole remedy would not be acceptable.
Contract provisions which allow for nonperformance or for delays of construction completion beyond the two-year period are acceptable if such provisions are legally recognized as defenses to contract actions in the jurisdiction tvhere the building is being erected. For example, provisions to allow time extensions for events or occurrences such as acts of God, casualty losses or material shortages are generally permissible. Also permissible, in the case of multi-unit construction, is a clause con- ditiming the completion of construction or closing of title on a certain percentage of sales of other units. The presale period cannot exceed 180 days from the date the first purchaser signs a contract in the project or, in a phased project, from the date the first purchaser signs a sales contract in a phase. Such a clause may not extend the overall two-year obligation to construct.
Although the factual circumstances upon which nonperformance or a delay in performance is based may vary from transaction to transaction, as a general rule delay or nonperformance must be based on grounds cognizable in contract law such as impossibility or frustration and on events which are beyond the seller’s reasonable control.

Id. (emphasis added).

The Guidelines also note that, because applicable contract law among the states varies, HUD may condition its advisory opinions regarding this exemption on local counsel’s representations regarding the current status of state law. The Guidelines explain that “the Florida Supreme Court has ruled that there must be an unconditional commitment to complete construction within two years and that the remedies available to the purchaser must not be limited.” Id. (citing Samara Dev. Corp. v. Marlow, 556 So.2d 1097 (Fla.1990)). Ms. Aikin argues that Samara prohibits all conditions on the two-year construction obligation in order to qualify for the exemption.

In Samara, the contract at issue required the seller to complete the condominium “less than two years from the date of the agreement.” Id. at 1098. However, the contract limited the buyer’s remedies upon the seller’s default to recovering the deposit or bringing an action for specific performance. The court held that an obligation to complete construction within two years is illusory unless both specific performance and damages are available remedies. Id. at 1101.

The court observed that the Guidelines are entitled to great weight in interpreting the Act and explained that “[t]he position indicated by these [Guidelines is clearly that the obligation to complete construction within two years must not be illusory, and that limitation of the remedy of specific performance is one example of where the seller would be permitted ‘to breach virtually at will.’ ” Id. at 1099. The court also looked to Florida cases holding that the seller’s obligation to complete construction within two years must be unrestricted and that the buyer’s right to seek specific performance or damages must not be limited. Id. at 1100 (citing Dorchester Dev., Inc. v. Burk, 439 So.2d 1032 (Fla. 3d DCA 1983), and Berzon v. Oriole Homes Corp., 497 So.2d 670 (Fla. 4th DCA 1986)).

The court ultimately held as follows:

[I]n order for the sale of a condominium in Florida to be exempt from the provisions of the Interstate Land Sales Full Disclosure Act, the contract must unconditionally obligate the developer to complete construction within two years and must not limit the purchaser’s remedies of specific performance or damages.

Id. at 1098 (emphasis added).

The Fourth District has not interpreted Samara ⅛ “unconditionally obligate” language as prohibiting all conditions on the two-year construction obligation. See Home Devco/Tivoli Isles, LLC v. Silver, 34 Fla. L. Weekly D1932, D1933 (Fla. 4th DCA Sept. 23, 2009); Mailloux v. Briella Townhomes, LLC, 3 So.3d 394, 396 (Fla. 4th DCA), review denied, 14 So.3d 1004 (Fla.2009). In Mailloux, the Fourth District distinguished Samara on the basis that it concerned the limitation of remedies and not recognized defenses to nonperformance. 3 So.3d at 396. The court found that “acts of God, Impossibility of performance, and frustration of purpose are well-recognized defenses to nonperformance of a contract” and concluded that, under the Guidelines and Florida contract law, “well-recognized defenses to contractual nonperformance” do not render the two-year construction obligation illusory. Id. This contract language is analogous to the contract language at issue in this case.

In Home Devco, the Fourth District concluded that contractual language that “includes virtually anything causing delay beyond the developer’s control” rendered the contract’s two-year construction obligation illusory. 34 Fla. L. Weekly at D1933-34. That language conditioned the construction obligation on “delays caused by acts of God, acts of governmental authority, flood, hurricane, strikes, labor conditions beyond Seller’s control, or any other similar causes not within Seller’s control.” Id. at D1933. Such contract language is significantly broader than the contract language at issue in this case.

The Fifth District has also declined to interpret Samara’s “unconditionally obligate” language as prohibiting all conditions on the two-year construction obligation. See Plaza Court, LP v. Baker-Chaput, 17 So.3d 720, 724 (Fla. 5th DCA 2009). However, the Fifth District has determined that any conditions on the obligation must be recognized within Florida’s doctrine of impossibility. The Fifth District applied such a limitation based on federal district court decisions in Jankus v. Edge Investors, LP, 650 F.Supp.2d 1248 (S.D.Fla.2009), and Harvey v. Lake Buena Vista Resort, LLC, 568 F.Supp.2d 1354 (M.D.Fla.2008). Plaza Court, 17 So.3d at 726. The Fifth District’s reliance on Jan-kus and Harvey for this limitation has been called into question by a recent decision of the Eleventh Circuit in which it clarifies that conditions on a two-year construction obligation do not have to be recognized within the doctrine of impossibility. See Stein v. Paradigm Mirasol, LLC, 586 F.3d 849, 857 (11th Cir.2009).

In Stein, the Eleventh Circuit considered a contract that required that a condominium be built within two years provided “that Seller shall not be responsible for any delay caused by acts of God, weather conditions, restrictions imposed by any governmental agency, labor strikes, material shortages or other delays beyond the control of the Seller.” Id. The court held that the force majeure clause was limited in scope and did not render the two-year construction obligation illusory. The court noted that certain delays not within the seller’s control or subject to its whim do not impermissibly condition the two-year construction obligation, even if those delays do not meet the standard of impossibility of performance. The court further concluded that the force majeure clause was consistent with the anti-fraud purposes of the Act. The court did not discuss the Florida Supreme Court’s “unconditionally obligate” language in Samara. Id. at 856 n. 4.

Additionally, the majority of federal district court decisions interpreting Samara have not read its “unconditionally obligate” language to prohibit all conditions on the seller’s two-year construction obligation. Jankus, 650 F.Supp.2d at 1254. While some of the federal district courts’ decisions holding that certain contractual conditions render the two-year construction obligation illusory have been overruled by the Eleventh Circuit’s decision in Stein, we find their treatment of Samara’s “unconditionally obligate” language instructive.

In considering the Act, the Guidelines, and the foregoing cases, we conclude that the “unconditionally obligate” language in Samara is not intended to be read without considering the circumstances of that case. We agree with the Mailloux court’s conclusion that Samara is distinguishable. The issue that the Florida Supreme Court addressed in Samara was whether the contract improperly limited the buyer’s remedies for breach. The supreme court did not have before it the question of whether a force majeure clause like the one at issue here impermissibly conditioned the two-year construction obligation, thereby rendering the obligation illusory. For this reason, the court’s statement “that the contract must unconditionally obligate the developer to complete construction within two years” must be understood in the context of the facts and issues before the court.

Moreover, to read Samara as prohibiting any contractual provision that would allow for a delay in construction beyond the two-year construction obligation would be inconsistent with the Guidelines and with legal defenses recognized under Florida law allowing for nonperformance or delays in performance. In Samara, the supreme court specifically acknowledged that the Guidelines are entitled to great weight. 556 So.2d at 1099. The Guidelines provide that “[c]ontract provisions which allow for nonperformance or for delays of construction completion beyond the two-year period are acceptable if such provisions are legally recognized as defenses to contract actions in the jurisdiction where the building is being erected.” Guidelines, part IV(b) (emphasis added). This language supports our determination that a contract incorporating a legally-recognized defense under Florida contract law to the two-year construction obligation would not negate the exemption under 15 U.S.C. § 1702(a)(2). Florida law recognizes acts of God, impossibility of performance, and frustration of purpose as defenses to nonperformance of a contract. See Mailloux, 3 So.3d at 396.

The Guidelines further state that “[although the factual circumstances upon which nonperformance or a delay in performance is based may vary from transaction to transaction, as a general rule delay or nonperformance must be based on grounds cognizable in contract law such as impossibility or frustration and on events which are beyond the seller’s reasonable control.” Guidelines, part IV(b) (emphasis added). This provision does not limit the available defenses to impossibility or acts of God, but recognizes other events beyond the seller’s reasonable control as appropriate defenses that would not render the obligation to complete construction within two years illusory.

Here, the contract provided that the completion period may be extended “by reason of delays incurred by circumstances beyond Seller’s control, such as acts of God, or any other grounds cognizable in Florida contract law as impossibility or frustration of performance, including, without limitation, delays occasioned by rain, wind and lightning storms.” The Guidelines specifically exempt everything in this provision with the exception of “delays occasioned by rain, wind and lightning storms.” We do not find that WCI’s listing of these potential occurrences which are beyond its control extends the clause’s scope beyond that permissible under the Guidelines. See Caswell v. Antilles Vero Beach, LLC, No. 08-80313-CIV, 2008 WL 4279555, at *3 (S.D.Fla. July 8, 2008) (concluding that a clause listing specific events the builder may attempt to raise under impossibility of performance or another permissible affirmative defense “contemplates only legally-recognized defenses in Florida” and does not render the obligation to build illusory); Kamel v. Kenco/The Oaks at Boca Raton, LP, No. 07-80905-CIV, 2008 WL 2245831, at *4 (S.D.Fla. May 29, 2008) (same), aff'd, 321 Fed.Appx. 807 (11th Cir.2008). Accordingly, the conditions placed on WCI’s two-year construction obligation do not render the obligation illusory.

2. The Notice and Cure Provision

We agree with the circuit court’s conclusion that the notice and cure provision under section 7.C. of the contract should be construed in a manner consistent with the two-year construction obligation set forth in section 3.D. See Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001) (recognizing that when faced with an inconsistency between contractual provisions, a court should interpret the contract so as to reconcile the conflicting provisions). Thus, the circuit court properly read section 7.C. to require twenty days’ notice of default to WCI and an opportunity to cure so long as that notice would not extend the two-year construction obligation. When so interpreted, the provision does not render the two-year construction obligation illusory.

3. The Provision Limiting Remedies

We reject Ms. Aikin’s argument that the two-year construction obligation was not unconditional because the contract placed limits on her remedies for breach of contract by WCI. Section 7.C. provides that “nothing contained herein shall be deemed to restrict Purchaser’s remedies, if Purchaser shall be entitled to such remedies under applicable law, including the right to seek specific performance.” Accordingly, section 7.C. does not impermis-sibly restrict Ms. Aikin’s remedies or otherwise render the. two-year construction obligation illusory.

4.The Pre-Sale Requirement

Further, we conclude that the pre-sale requirement under section 10 of the subject contract does not render the two-year construction obligation illusory. As noted above, section 10 of the contract allowed WCI to terminate the contract if it did not sell at least 65% of the units in the building within 180 days from the date the first purchaser signed a contract. The Guidelines provide that such contingency clauses are permissible. Guidelines, part IV(b). Here, the pre-sale requirement complied with the Guidelines in that it did not extend the presale period beyond 180 days from the date the first purchaser signed and did not extend the overall two-year construction obligation. WCI did not have an unfettered right to cancel; it could only do so if it did not sell at least 65% of the units within the first 180 days after the first purchaser signed the contract. Accordingly, this provision does not render the two-year construction obligation illusory. See Piloto, 609 F.Supp.2d at 1309.

CONCLUSION

For the foregoing reasons, we agree with the circuit court’s determination that the contract is exempt from the reporting and disclosure requirements of the Act. Accordingly, we affirm the final summary judgment entered in favor of WCI and against Ms. Aikin.

Affirmed.

ALTENBERND, J., Concurs.

KELLY, J., Concurs in result only.

      . Jim Aikin died on May 30, 2006, before Jan Aikin commenced tire lawsuit against WCI.

      . The notice also informed WCI that Ms. Ai-kin was revoking and terminating the contract because WCI had failed to comply with the disclosure requirements of section 689.261, Florida Statutes (2005). While Ms. Aikin pursued this claim in count III of her declaratory judgment action, she later withdrew the claim with prejudice. Accordingly, we do not discuss the claim any further in this opinion.

      . Instead, the Eleventh Circuit acknowledged that its interpretation of the Act differed from that of the Florida Supreme Court, noting that the Florida Supreme Court gave great weight to the Guidelines, which is "far more weight” than the Eleventh Circuit could give them. 586 F.3d 849, 857 n. 4.


text:
    E.C.J. INVESTMENTS, INC., Appellant, v. The MONARCH GROVE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D09-815.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.
    Charles L. Neustein, Miami Beach, for appellant.
    Becker & Poliakoff and Lilliana M. Fari-nas-Sabogal, Coral Gables, for appellee.
    Before WELLS, CORTEÑAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Barco Holdings, LLC v. Terminal Inv. Corp., 967 So.2d 281, 287-89 (Fla. 3d DCA 2007).