text:
    AVCO CORPORATION and Textron Lycoming Reciprocating Engine Division, Petitioners, v. Gregory M. NEFF and Patricia J. Neff, as Co-Personal Representatives of the Estate of Traves Neff; Glynn Lowery, Jr., as Personal Representative of the Estate of William C. Walther; Sandra A. Walther, Individually and as Co-Personal Representative of the Estate of Daniel J. Wesley; Benjamin J. Wesley, Individually and as Co-Personal Representative of the Estate of Daniel J. Wesley; Regina King, Individually and as Personal Representative of the Estate of Cristy Jo King; Precision Airmotive Corporation; Precision Airmotive LLC; Teledyne Continental Motors, Inc.; Teledyne Technologies, Inc.; TDY Industries, Inc., Allegheny Teledyne, Inc., and CJ Aviation, Inc., Respondents Precision Airmotive Corporation, Precision Airmotive, LLC., Petitioners, v. Glyn Lowery, Jr., as Personal Representative of the Estate of William C. Walther, deceased, Sandra A. Walther, individually and as Co-Personal Representative of the Estate of Daniel J. Wesley, deceased, Benjamin J. Wesley, individually and as Co-Personal Representative of the Estate of Daniel J. Wesley, deceased, Regina King, individually and as Personal Representative of the Estate of Cristy Jo King, deceased, Gregory M. Neff and Patricia J. Neff, individually and as Co-Personal Representatives, of the Estate of Traves Neff, deceased; AVCO Corporation, Textron Lycoming Reciprocating Engine Division, Teledyne Continental Motors, Inc., Teledyne Technologies, Inc., TDY Industries, Inc., Allegheny Teledyne, Inc., and CJ Aviation, Inc., Respondents
    Nos. 1D09-5531, 1D09-5548.
    District Court of Appeal of Florida, First District.
    March 10, 2010.

      Charles W. Hall, Mark D. Tinker and John P. O’Flanagan, of Banker Lopez Gassier, P.A., St. Petersburg, for Petitioners, Avco Corporation and Textron Lycoming Reciprocating Engine Division; Robert M. Fulton and Landis V. Curry, III, of Hill, Ward & Henderson, P.A., Tampa, and Mary P. Gaston and Sara E. Baynard-Cooke, of Perkins Coie LLP., Seattle, Washington, for Petitioners, Precision Air-motive Corporation, Precision Airmotive, LLC.
    Philip J. Ford, of The Wolk Law Firm, Philadelphia, PA; Edward P. Fleming and Belinda B. de Kozan, of McDonald, Fleming, Moorhead, Pensacola; and David I. Katzman, of Schaden, Katzman, Lampert & McClune, Troy, MI, for Respondents, Lowery, Walter, Wesley, King and Neff.
   WETHERELL, J.

Petitioners, Avco Corporation and Tex-tron Lycoming Reciprocating Engine Division (collectively “Avco”) and Precision Airmotive Corporation and Precision Air-motive, LLC (collectively “Precision”), seek certiorari review of the non-final orders denying them motions for summary judgment. They argue that the trial court erred in determining that Respondents’ claims are not barred by the statutes of repose in the General Aviation Revitalization Act of 1994 (GARA) and section 95.031(2)(b), Florida Statutes (2004). We consolidate these cases for purposes of this opinion and deny the petitions for writ of certiorari because Petitioners fail to demonstrate that the challenged orders will result in irreparable harm that cannot be remedied on appeal.

Factual and Procedural Background

On September 23, 2004, a private Cessna R182 piloted by Través Neff crashed in Milton shortly after takeoff. Neff and the three others on board the aircraft were killed in the crash. The National Transportation and Safety Board investigated the crash and found that the float device in the aircraft’s carburetor was damaged and that some of the related parts were worn.

On September 21, 2006, Respondents filed a complaint against Petitioners (and others), alleging that the Marvel Schebler carburetor installed on the aircraft was defectively designed and caused the crash. The complaint alleged that Avco, the engine manufacturer, and Precision, the successor to the carburetor manufacturer, knew the carburetor design was subject to failures and that they failed to warn the Federal Aviation Administration (FAA) and the general public of such failures. Specifically, the complaint alleged that the carburetor had incompatible metals that caused a wearing of parts, which, in turn, caused the float to stick and resulted in the engine receiving an improper fuel/air mixture.

The aircraft at issue was delivered to its first purchaser in 1981. The carburetor was last overhauled in October 1992 as part of a manufacturer recommended engine overhaul. The engine overhaul was completed in December 1992.

Petitioners filed motions for summary judgment, arguing that the claims were barred by the 18-year statute of repose in GARA and the 12-year statute of repose in section 95.031 (2)(b). Avco asserted that it did not manufacture anything for the aircraft subsequent to its original delivery in 1981. Precision asserted that it did not install any replacement parts in the engine or overhaul the carburetor, that there was no evidence regarding who manufactured the replacement parts used in the carburetor overhaul, and that there was no evidence that Precision was the successor-in-interest to this unidentified manufacturer.

Respondents countered with affidavits and other evidence indicating that carburetor parts installed in the 1992 engine and carburetor overhaul (including the new float device) were based upon design specifications mandated by Petitioners and were manufactured under Petitioners’ direct supervision. The affidavits also detailed the extensive history of float-related problems with Marvel Schebler carburetors that Petitioners failed to address. The affidavits concluded based upon a review of the available documentation that Petitioners affirmatively concealed and withheld from the FAA information concerning problems with the Marvel Sche-bler carburetor’s design despite having notice of a reportable design defect. Respondents argued based upon this evidence that the applicable repose periods as to both Petitioners were restarted in 1992 by the engine and carburetor overhaul because Petitioners were the de-facto manufacturers of the replacement parts, and that the periods were tolled based upon the fraud and concealment provisions in GARA and section 95.031(2)(d).

if the claimant pleads with specificity the facts necessaty to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, subassembly, or other part, that is causally related to the harm which the claimant allegedly suffered.

The trial court denied Petitioners’ motions for summary judgment, finding that genuine issues of material fact existed. The court found that a genuine dispute existed as to whether the replacement parts in the overhauled carburetor were manufactured or caused to be manufactured by Petitioners. The court also found that there was a genuine dispute as to whether Petitioners had fraudulently misrepresented or concealed the design defects in the carburetor.

Petitioners timely filed petitions for writ of certiorari in this court, arguing that the trial court erred in determining that Respondents’ claims were not barred by the statutes of repose. Petitioners argue that the 1992 engine overhaul did not revive claims against the original manufacturer of the engine and carburetor, but rather only applied to the actual manufacturer of the replacement parts at issue. Petitioners further argue that Respondents failed to specifically plead or present any evidence that Petitioners fraudulently misrepresented anything concerning the carburetor design so as to toll the running of the statutes of repose.

Analysis

Certiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). To obtain certiorari relief, Petitioners must demonstrate (1) a departure from the essential requirements of law, (2) a resulting material injury for the remainder of the trial, and (3) the lack of an adequate remedy on appeal. Id. The court is required to first determine whether Petitioners have shown an irreparable harm before determining whether the trial court departed from the essential requirements of law. See Taylor v. TGI Friday’s, Inc., 16 So.3d 312, 313 (Fla. 1st DCA 2009); Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169,1176 (Fla. 1st DCA 2008).

The fact that a petitioner will incur litigation expenses is normally not enough to meet the irreparable harm test. We have repeatedly declined to grant cer-tiorari review to orders that petitioners claim will cause irreparable harm due to payment of unnecessary litigation and defense expenses. W. Fla. Reg’l Med. Ctr., Inc. v. See, 18 So.3d 676 (Fla. 1st DCA 2009); United Life Ins. Co. v. lowers, 118 So.2d 85 (Fla. 1st DCA 1960). We recognize, however, that when a statute provides immunity from suit, certiorari review of a non-final order denying such immunity is appropriate. See Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 357-58 (Fla. 2d DCA 2005) (granting certiorari review of order denying motion for summary judgment because the tribe demonstrated entitlement to sovereign immunity and stating that sovereign immunity, like qualified immunity, involved immunity from suit rather than defense from liability).

Petitioners argue that the purpose of GARA was to shield manufacturers from costly litigation, which is precisely the harm that they will suffer without immediate review of the trial court’s denial of their motions for summary judgment. They contend that the trial court’s order was equivalent to an order denying qualified immunity because the loss of their statutory immunity from suit cannot be remedied on appeal.

Respondents counter that the purpose of GARA was to create a limited statute of repose subject to several factually-driven exceptions, and not to provide aircraft manufacturers immunity from suit. Respondents contend that the statutes of repose in GARA and section 95.031(2)(b) are essentially affirmative defenses and that the alleged erroneous denial of those defenses can be adequately remedied on appeal.

Thus, the question that we must address is whether Petitioners’ claimed right to protection from suit under GARA’s statute of repose is a right to immunity from suit or merely a defense to liability. No Florida court has addressed this issue, and the courts that have addressed the issue are split.

In Lyon v. Aguata S.P.A., 252 F.3d 1078 (9th Cir.2001), the Ninth Circuit reviewed the legislative history of GARA and observed that:

It is apparent that Congress was deeply concerned about the enormous product liability costs that our tort system had imposed upon manufacturers of general aviation aircraft. It believed that manufacturers were being driven to the wall because, among other things, of the long tail of liability attached to those aircraft, which could be used for decades after they were first manufactured and sold.

Id. at 1084 (citing H.R.Rep. No. 103-525, pt. I, at 1^4 (1994), re/printed in 1994 U.S.C.C.A.N. 1638, 1638-41). The court characterized GARA as “a classic statute of repose” and stated that if an accident occurs the day after the GARA period runs, “no action whatsoever is possible.” Id.

In Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107 (9th Cir.2002), a helicopter pilot was killed when the helicopter developed a fatigue crack in a component of the tail, came apart in mid-air, and crashed. The helicopter manufacturer moved for summary judgment on the grounds that the products liability claims were barred by GARA. The district court granted partial summary judgment in favor of the pilot’s estate, rejecting the manufacturer’s GARA defense. The Ninth Circuit reversed. As it did in Lyon, the court characterized GARA as a statute of repose, not a statute of limitations. The court held that it had jurisdiction to review the district court’s non-final order under the collateral order doctrine because the protection provided by GARA was analogous to the defense of qualified immunity provided to government officials in that “it creates an explicit statutory right not to stand trial which would be irretrievably lost should [the manufacturer] be forced to defend itself in a full trial.” Id. at 1110.

Judge Paez dissented. He disagreed with the court’s exercise of jurisdiction under the collateral order doctrine because, in his view, the analogy to qualified immunity was inappropriate. Id. at 1113— 14 (explaining that qualified immunity is “fundamentally distinct from the GARA statute of repose”). Judge Paez noted that the text of GARA closely paralleled the text of many statutes of limitations, and he stated that in enacting GARA, Congress only intended to cut the “infinite-liability tail” for general aviation manufacturers, not provide immunity. Id. at 1115 (emphasis in original). Judge Paez pointed out that the legislative history of GARA provided “no indication that an essential aspect of the GARA defense is the right to be free from the burdens of trial,” id. at 1113, but rather described the law as “a narrow and considered response to the ‘perceived’ liability crisis in the general aviation industry.” Id. at 1115 (quoting H.R.Rep. No. 103-525(11) (1994)) (emphasis omitted).

The Third Circuit agreed with Judge Paez’s dissent in Robinson v. Hartzell Propeller, Inc., 454 F.3d 163 (3d Cir.2006). In that case, the plaintiffs were seriously injured when the aircraft they were flying suffered a fractured propeller mid-flight and crashed. The propeller manufacturer moved for summary judgment under GARA’s statute of repose. Id. at 167. The district court denied the motion. On appeal, the manufacturer argued that a decision on a statute of repose was akin to a decision denying qualified immunity, which is immediately appealable. Id. at 169. The plaintiffs asserted that the order was similar to an order denying a statute of limitations defense. The Third Circuit declined to accept the manufacturer’s appeal, holding that the collateral order doctrine did not apply.

The court agreed with Judge Paez that the interests protected by GARA’s statute of repose were more similar to a statute of limitations than to a grant of qualified immunity because qualified immunity was rooted in preventing the social costs of subjecting government officials to broad-ranging discovery whereas the purpose of the GARA defense was to relieve manufacturers from economic costs. Id. at 173. The court further noted that the GARA statute of repose was not “a pure immunity” because, unlike qualified immunity, it contained a misrepresentation exception under which immunity would not attach. Id. Finally, the court noted that it had previously exercised jurisdiction to review pre-trial denials of immunity only when the denials raised questions of law, but in this case the district court found a factual dispute as to the applicability of the misrepresentation exception. Id. at 174.

The Pennsylvania Supreme Court reached the opposite conclusion in Pridgen v. Parker-Hannifin Corp., 588 Pa. 405, 905 A.2d 422, 424 (2006). In that case, a 31-year-old aircraft crashed on departure killing several people and severely injuring one person. Id. at 425. The plaintiffs alleged that the crash was caused by a failure of engine and fuel system components that were replaced and overhauled within 18 years of the accident. They also alleged that the engine manufacturers had knowledge of the defects causing the crash and intentionally misrepresented or concealed the defects. The engine manufacturers moved for summary judgment, arguing that they did not manufacture or supply any of the allegedly defective parts that had been replaced. The trial court denied the motion, and the intermediate appellate court denied review under the collateral order doctrine.

The issue before the Pennsylvania Supreme Court was whether to allow interlocutory appeals to review a trial court’s denial of summary judgment raising the GARA statute of repose. Consistent with the Ninth Circuit’s decision in Estate of Kennedy, the court held that such review was permitted under the collateral order doctrine. Id. at 434. The court stated that “the federal interests underpinning GARA are sufficiently important to justify the intervention of appellate courts in product liability cases in furtherance of the policy of cost control, where central legal contentions about GARA’s scope are legitimately in dispute.” Id. at 433. The court distinguished the Third Circuit’s decision in Robinson because the denial of summary judgment in that case was also based upon factual disputes concerning the misrepresentation exception, and in this case the trial court had not yet made a determination concerning whether there were material facts in dispute regarding misrepresentation. Id. at 423 n. 14.

The issue addressed in these cases — i.e., whether the appellate court should exercise jurisdiction to review a non-final order denying the manufacturer’s GARA defense — is the same issue presented in this case. Therefore, the analysis in these cases is pertinent, and persuasive, even though the cases involve review under the collateral order doctrine (which Florida has not adopted, see Schneider v. Schneider, 732 So.2d 1147 (Fla. 4th DCA 1999)), rather than certiorari.

We agree with Judge Paez’s dissent in Estate of Kennedy and the Third Circuit’s decision in Robinson that the GARA statute of repose is more analogous to a statute of limitations than it is to an immunity from suit. The repose period is not absolute, and it appears from the legislative history that the statute was enacted to protect manufacturers from the “infinite liability-tail” of product liability suits rather than to protect them from the burdens of discovery and trial. Thus, we reject Petitioners’ contention that the trial court’s denial of their motions for summary judgment will subject them to immediate harm of the type that GARA was enacted to prevent that cannot be remedied on appeal, particularly where the trial court found factual disputes concerning the applicability of the GARA defense. Accord Robinson, 454 F.3d at 173-74.

Our conclusion regarding the nature of the GARA statute of repose is consistent with Florida cases that treat other statutes of repose like statutes of limitations or affirmative defenses. See Doe v. Hillsbor-ough County Hasp. Auth., 816 So.2d 262 (Fla. 2d DCA 2002); McLeod v. Barber, 764 So.2d 790 (Fla. 5th DCA 2000). Cf Todd v. Johnson, 965 So.2d 255 (Fla. 1st DCA 2007) (quoting Vause v. Bay Med. Ctr., 687 So.2d 258, 261 (Fla. 1st DCA 1996), for the proposition that a statute of repose was a straightforward affirmative defense; the court inserted the word “repose” for the word “limitations” found in the Vause opinion). The fact that section 2(b) of GARA (and section 95.031(2)(d)) contain exceptions to the application of the repose periods provides further support for the proposition that the statutes are not “true” statutes of repose or jurisdictional non-claim statutes. Cf. Comerica Bank & Tmst, F.S.B. v. SDI Operating Partners, L.P., 673 So.2d 163 (Fla. 4th DCA 1996) (construing the two-year period in section 733.710 as a statute of repose because the period cannot be enlarged by the court); Hirsh v. Crews, 494 So.2d 260 (Fla. 1st DCA 1986) (construing the 60-day period in section 174.171 as a statute of non-claim that is an absolute bar to any suit filed after that period).

In sum, we hold that the 18-year statute of repose in GARA and the 12-year statute of repose in section 95.031(2)(b) are analogous to statutes of limitations that operate as affirmative defenses. An error concerning the trial court’s ruling on an affirmative defense can be corrected on appeal from a final order. See Panagakos v. Laufer, 779 So.2d 296 (Fla. 2d DCA 1999). As such, Petitioners fail to demonstrate irreparable harm that cannot be remedied on appeal.

Conclusion

For the foregoing reasons, the petitions for writ of certiorari are DENIED.

KAHN and PADOVANO, JJ., concur.

      . Public Law 103-298, as amended (reprinted in the notes to 49 U.S.C. § 40101).

      . Section 2(a)(1) of GARA provides in pertinent part that "no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred” more than 18 years after the aircraft’s delivery to its initial purchaser.

      . Section 95.03l(2)(b) provides in pertinent part:
      Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover harm allegedly caused by the product ... if the harm was caused by exposure or use of the product more than 12 years after delivery of the product to its first purchaser....

      . Section 2(a)(2) of GARA includes what is commonly referred to as the "rolling provision,” which provides that if a replacement component or system caused the accident, the 18-year repose period runs from the date the replacement component or system was installed. Similarly, we have previously held that replacement parts toll section 95.031 (2)(b) for injuries resulting from defects in the replacement parts. See Cassoutt v. Cessna Aircraft Co., 742 So.2d 493 (Fla. 1st DCA 1999).

      . Section 2(b)(1) of GARA provides that the statute’s 18-year repose period does not apply

      . The 12-year repose period provided in section 95.03l(2)(b) is tolled for any period during which
      the manufacturer through its officers, directors, partners, or managing agents had actual knowledge that the product was defective in the manner alleged by the claimant and took affirmative steps to conceal the defect. Any claim of concealment under this section shall be made with specificity and must be based upon substantial factual and legal support.
      § 95.03 l(2)(d), Fla. Stat.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert J. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2655.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Robert J. Clark, Edgefield, pro se.
    No appearance required for appellee.
   PER CURIAM.

This is appellant’s third postconviction appeal challenging his 1985 plea. We affirm.

The denials of his previous rule 3.850 motions were affirmed in case numbers 4D02-845 and 4D05-4440. Because appellant has filed successive postconviction motions and appeals raising or attempting to re-litigate meritless claims, he is cautioned that filing any further frivolous pleadings will result in the sanction of no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999).

FARMER, STEVENSON and CIKLIN, JJ., concur.


author: SCHWARTZ, Senior Judge. CORTIÑAS, J.

text:
    PMG COLLINS, LLC, Petitioner, v. R AND G ENTERPRISES, LLC, Respondent.
    No. 3D09-3171.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Coffey Burlington and Daniel F. Blon-sky, Miami, for petitioner.
    Hall, Lamb, and Hall, and Andrew C. Hall, and Roarke Maxwell, Miami; Strat-ton & Feinstein, and Douglas D. Stratton, Miami Beach, for respondent.
    Before, RAMIREZ, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant below in an action seeking rescission of a contract for the sale of a condominium unit seeks certiorari review of an order disqualifying its chosen counsel, Coffey Burlington, on the grounds that the law firm had previously personally represented one of the principals of the plaintiff LLC in unrelated matters. Without exploring any other infirmity in the order, the simple, acknowledged fact that counsel did not represent the plaintiff itself and thus cannot be in forbidden conflict with its interests renders the order completely unsupportable. Gonzalez v. Chillura, 892 So.2d 1075 (Fla. 2d DCA 2004) (finding that attorney’s representation of a shareholder in a derivative suit did not create an attorney-client relationship between the attorney or his law firm and the corporation and therefore, did not establish a basis for conflict in the shareholder’s subsequent direct actions against the corporation); Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046, 1048 (Fla. 5th DCA 2004) (“One seeking to disqualify opposing counsel [is] required to show that ... an attorney/client relationship existed .... ”)(citing State Fam Mutual Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 634 (Fla.1991)); State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986)(“The burden of establishing the existence of an attorney-client relationship rests with the claimant.”). Accordingly, the order is quashed.

Certiorari granted.

RAMIREZ, C.J., concurs.

CORTIÑAS, J.

(dissenting).

I would deny the petition for the extraordinary writ of certiorari based on the petitioner’s failure to provide a transcript of the evidentiary hearing during which the trial court considered this matter. See Shojaie v. Gables Court Profl Ctr., Inc., 974 So.2d 1140 (Fla. 3d DCA 2008).


text:
    Salamedio SESSIONS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2536.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Rehearing Denied April 12, 2010.
    Salamedio Sessions, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Sanchez v. State, 541 So.2d 1140 (Fla.1989).


author: WARNER, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, State of Florida, Petitioner, v. Mitchell WHITE, Respondent.
    No. 4D09-5076.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Robin Lotane, General Counsel, and Da-maris E. Reynolds, Assistant General Counsel, Lake Worth, for petitioner.
    C. Edward McGee, Jr. of McGee <& Hus-key, P.A., Fort Lauderdale, for respondent.
   WARNER, J.

The Department of Highway Safety and Motor Vehicles seeks certiorari review of a circuit court appellate decision that granted Mitchell White’s petition for writ of certiorari and denied the Department’s motion for rehearing. We grant the petition upon concluding that the Department was denied procedural due process in the appellate proceeding. See Allstate Ins. Co. v. Kaklamanos, 848 So.2d 885, 889-90 (Fla.2008).

White petitioned for certiorari review of the Department’s revocation of his driving privileges. The circuit court, sitting in its appellate capacity, issued an order to show cause requiring the Department to respond to the petition. The order to show cause reflected the circuit appellate court’s view of the petition as showing a prima facie case for relief. It directed the Department to show cause why the relief requested should not be granted.

Unfortunately, the order was not served on the Department. The order shows service only on White’s attorney. The circuit appellate court granted White’s petition after the Department failed to respond to the court’s order to show cause. In its order, the circuit court noted the absence of a response by the Department as its basis for granting relief, without commenting on the merits of the petition. See Kanji v. Valli, 621 So.2d 750, 751 (Fla. 5th DCA 1993) (noting scope of review when response has not been filed in appellate court as ordered).

The Department moved for rehearing, and in its motion it explained to the court that it had not received the order to show cause. It also filed a response to the petition and requested that the court accept it as timely filed.

The circuit court summarily denied the motion, prompting this petition from the Department. We issued an order to show cause to White, and in his response he admits that the Department is “technically” entitled to relief based upon the lack of notice to it of the order to show cause. He seeks, however, for this court to rule on the merits of the petition. We decline to do so, as the Department has been denied procedural due process.

This court’s scope of review is limited. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). We review the petition to determine whether the circuit court failed to afford the petitioner procedural due process of law or otherwise departed from the essential requirements of (substantive or procedural) law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003). Certiorari relief is available “when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 889.

As conceded by the respondent, the Department was not notified of the order to show cause. Therefore, in granting the petition and ordering the reinstatement of White’s driver’s license without giving the Department notice and an opportunity to be heard on the issue, the circuit court denied the Department procedural due process. See Smith v. State, 872 So.2d 368, 369 (Fla. 2d DCA 2004) (“Procedural due process requires fair notice and a real opportunity to be heard.”) (emphasis added).

Accordingly, we grant the petition and quash the ruling. We remand to the circuit court for further proceedings on the petition.

TAYLOR and DAMOORGIAN, JJ., concur.


author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Rumi MAJOR, Appellee.
    No. 4D09-2988.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented for review is whether the trial court improperly dismissed the charge of tampering with or fabricating evidence. We find that the trial court’s granting of the motion to dismiss should be reversed, since taking all inferences in the light most favorable to the State, there remained a material factual dispute for the trier of fact to determine.

In this case, appellee was observed by a law enforcement officer failing to stop at a stop sign. The officer stopped appellee for a traffic violation, and while approaching the vehicle noticed appellee chewing. The officer asked appellee to open his mouth and discovered a “green leafy substance.” The substance in appellee’s mouth subsequently tested positive for cannabis.

Appellee filed a motion to dismiss, claiming that no criminal investigation was pending when appellee was stopped for a traffic violation. In the motion to dismiss, appellee admitted to “eating an illegal substance” but denied any knowledge of any investigation. Appellee asserted that the traffic stop was “made for failure to stop at a stop sign and had nothing to do with cannabis.”

The State filed a traverse which claimed the officer, when approaching the car, “immediately smell[ed] cannabis coming from the vehicle.” The State claimed that ap-pellee was aware of the criminal investigation since appellee “would not have eaten the cannabis” otherwise.

The trial court noted that the officer never saw appellee put anything in his mouth, and thus it was unclear when ap-pellee started to chew the marijuana. The court dismissed the charge, finding that the destruction of the cannabis was not destruction of evidence unless appellee had knowledge of an investigation. The State appeals the trial court’s ruling.

We review de novo an order of dismissal. State v. Hinkle, 970 So.2d 433, 434 (Fla. 4th DCA 2007). A defendant may move for dismissal of a charge if the undisputed facts do not establish a prima facie claim of guilt. Fla. R.Crim. P. 3.190(c)(4). “Under this rule it is the defendant’s burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.” State v. Kalogempolous, 758 So.2d 110, 111 (Fla. 2000). Where the defendant’s motion fails to show the absence of any material factual dispute, the motion is legally insufficient and must be denied. State v. Covington, 973 So.2d 481, 482 (Fla. 3d DCA 2007).

The State appeals the dismissal of the charge of destruction of evidence. Section 918.13, Florida Statutes (2008), states that:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation[.]

To convict, the State must prove a defendant “had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation.” C.K. v. State, 753 So.2d 617, 618 (Fla. 4th DCA 2000). Since the parties agree that appellee’s “chewing” of the marijuana would constitute a “destruction” of the marijuana, then the focus is on the second element: whether appellee knew of the pendency of an investigation while he chewed and “destroyed” the marijuana.

In his sworn motion, appellee did not assert when he started chewing the marijuana. The trial court could only speculate as to the relationship between the chewing of the marijuana and the start of the investigation. By not including any allegations that appellee was chewing the marijuana prior to the traffic infraction (i.e., before the investigation was imminent), appellee has not carried his burden to show that the State cannot establish a prima facie case of guilt. The facts as alleged would allow either an inference that appellee was chewing prior to attracting the attention of law enforcement or that appellee placed the drugs in his mouth exactly because he knew he was about to be investigated. Failure to address this fact is fatal to appellee’s motion to dismiss, as we must take all inferences in the light most favorable to the State. State v. Lebrón, 954 So.2d 52, 54 (Fla. 5th DCA 2007).

Therefore, since the sworn facts as alleged, when taken in the light most favorable to the state, do not refute the State’s prima facie case, we are compelled to reverse. Appellee’s chewing the marijuana could lend itself to differing conclusions, depending on appellee’s intent. Determining the intent of the defendant should be left to the trier of fact and is therefore not the proper subject of a motion to dismiss. E.I. v. State, 25 So.3d 625 (Fla. 2d DCA 2009); State v. Santiago, 938 So.2d 603 (Fla. 4th DCA 2006).

Reversed.

TAYLOR and GERBER, JJ., concur.


text:
    Phillip J. CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3095.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Phillip J. Cruz, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court order summarily denying appellant’s motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170 is affirmed, without prejudice to appellant’s right to refile a timely motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and for the trial court to consider it in accordance with rule 3.850(d), including its provisions for consideration of evidentiary hearing or record attachments if appropriate.

POLEN, STEVENSON and HAZOURI, JJ., concur.


text:
    Luis A. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1595.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.

      Luis A. Hernandez, in proper person; Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and CORTIÑAS, JJ.
   PER CURIAM.

Luis A. Hernandez (“Hernandez”) appeals from the denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm in part and reverse in part.

The State charged and tried Hernandez for, among other crimes, aggravated battery. The aggravated battery count of the information alleged that Hernandez “committed] an aggravated battery upon [victim] by actually and intentionally touching or striking the person of [victim] against said person’s will, and did thereby knowingly or intentionally cause great bodily harm, and/or permanent disfigurement, and/or permanent disability ... and during the commission of the offense, said defendant possessed a firearm or destructive device, in violation of s. 782.045(1)(A)1 and s. 775.087 Florida Statutes.”

At trial, the evidence showed that Hernandez beat the victim with a gun, causing injuries which included a head wound, broken fingers, and a severed finger. The prosecutor, in closing argument, and the trial judge, in jury instructions, failed to distinguish between aggravated battery causing great bodily harm and aggravated battery using a deadly weapon. The jury verdict form also did not clearly separate the type of aggravated battery.

After deliberations, the jury checked the box for guilty of aggravated battery and the sub-box stating “With a Firearm.” Based on this verdict, the trial court reclassified the aggravated battery charge to a first-degree felony pursuant to section 775.087(1), Florida Statutes (2003). Defense counsel did not object to the reclassification.

This Court affirmed Hernandez’ conviction and sentence in an Anders appeal. Hernandez v. State, 903 So.2d 943 (Fla. 3d DCA 2005). Thereafter, Hernandez challenged the reclassification sentence both in this Court and the trial court. Hernandez unsuccessfully petitioned this Court for a writ of habeas corpus, alleging ineffective assistance of appellate counsel. Hernandez v. State, 965 So.2d 138 (Fla. 3d DCA 2007).

In the trial court, Hernandez filed the instant rule 3.850 motion, which, among other claims, argued that his trial counsel was ineffective for failing to object to the trial court’s reclassifying the aggravated battery count. The trial court denied the rule 3.850 motion, and Hernandez appealed.

Hernandez asserts the trial court erred in summarily denying his claim of ineffective assistance of counsel for failing to object to the reclassification. The State contends the trial court properly denied the claim. We agree with Hernandez.

First, we must determine whether the aggravated battery was improperly reclassified. Aggravated battery is a see-ond-degree felony that can be accomplished by either: (a) inflicting great bodily harm, or (b) using a deadly weapon. § 784.045(l)(a), Fla. Stat. (2003). Section 775.087(l)(b) authorizes a court to reclassify a second-degree felony to a first-degree felony when a firearm is used to commit the crime, except where use of a firearm is already an essential element of the crime. Thus, an aggravated battery inflicting great bodily harm may be enhanced, but an aggravated battery using a deadly weapon may not be enhanced because use of a firearm is already an essential element of the crime. See, e.g., Lareau v. State, 573 So.2d 813 (Fla.1991); Metz v. State, 15 So.3d 32 (Fla. 2d DCA 2009); Benjamin v. State, 8 So.3d 460 (Fla. 4th DCA 2009); Torris v. State, 611 So.2d 57 (Fla. 3d DCA 1992).

Sometimes it is unclear whether the jury found the defendant guilty of one or the other form of aggravated battery. In such instances, appellate courts have held that the trial court may not reclassify the aggravated battery conviction. Metz, 15 So.3d at 32; Webb v. State, 997 So.2d 469 (Fla. 2d DCA 2008); Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006).

Here, the information charged only the great-bodily-harm form of aggravated battery. However, the State’s closing arguments, the jury instructions, and the verdict form referred to both forms of aggravated battery without distinguishing between the two. The jury may have intended to find Hernandez guilty of the using-firearm form of aggravated battery. Therefore, the trial court erred in reclassifying the aggravated battery to a first-degree felony.

Next, we must consider whether defense counsel’s failure to object to reclassification constituted ineffective assistance of trial counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a claim of ineffective assistance of counsel is assessed under a two-prong test. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense. A trial counsel’s failure to object to an illegal sentence meets the Strickland standard for an ineffective assistance of counsel claim. See, e.g., Rudolph v. State, 968 So.2d 638 (Fla. 2d DCA 2007); Penn v. State, 941 So.2d 466 (Fla. 1st DCA 2006).

The record in this case clearly shows that Hernandez’ defense counsel failed to object to the reclassification, which resulted in an illegal sentence. Defense counsel’s failure to object to this illegal sentence constituted ineffective assistance of counsel. Thus, the trial court erred in denying Hernandez’ claim for ineffective assistance of counsel.

Accordingly, we reverse and remand for resentencing, with the aggravated battery classified as a second-degree rather than a first-degree felony. We affirm the trial court’s denial of all other claims raised in the rule 3.850 motion.

Reversed in part, affirmed in part, and remanded for resentencing.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Robert LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3280.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Robert Lee, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: CIKLIN, J.

text:
    770 PPR, LLC, a Florida limited liability company, and Gregory K. Talbott, individually, Appellants, v. TJCV LAND TRUST, a Florida Land Trust, Appellee. 140 Associates, Ltd., a Florida limited liability company, and Gregory K. Talbott, individually, Appellants, v. Seacoast National Bank, a National Banking Association, Appellee.
    Nos. 4D08-4796, 4D08-4797.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Rehearing Denied April 15, 2010.

      Robert A. Sweetapple of Sweetapple, Broeker & Varkas, P.L., Boca Raton, for appellants.
    Richard A. Kupfer, Delray Beach, and Harvey R. Schneider, Boca Raton, for ap-pellee TJCV Land Trust, a Florida Land Trust.
    John H. Pelzer, Morris G. Miller and Eric C. Christu of Ruden, McClosky, Smith, Schuster & Russell, P.A., West Palm Beach, for appellee Seacoast National Bank, a National Banking Association.
   CIKLIN, J.

Because the issues presented by the parties are virtually identical, we sua sponte consolidate these cases.

In October of 2006, 770 PPR, LLC obtained a loan from Seacoast National Bank, a national banking association (“the bank”) in exchange for a mortgage on its restaurant site. Also, in October of 2006, the bank extended a loan to 140 Associates, Ltd., in exchange for a mortgage on its office building. Both loans were personally guaranteed by Gregory Talbott. After both loans went into default, the bank sued to foreclose the mortgage lien and recover the personal guaranty made by Talbott. On October 29, 2008, the trial court entered final summary judgment against each mortgagor as well as against Talbott (hereinafter referred to collectively as “the borrowers”).

While the borrowers admit their respective loans were in default, they contend reversal is warranted for two reasons. First, they argue that the bank’s failure to obtain and hold a “certificate of authority” from the Florida Department of State precluded the bank from transacting business in Florida including securing, collecting, and enforcing debts, mortgages, and security interests. Second, the borrowers assert that inconsistencies as to the monies owed to the bank contained in the bank’s verified complaint, loan statements, and affidavits in support of the bank’s motion for summary judgment created a genuine issue of material fact, thereby precluding summary judgment.

The bank contends that the National Bank Act preempts Florida’s requirement that all foreign corporations doing business in Florida obtain a “certificate of authority” in order to, among other things, maintain lawsuits in this state. The bank further argues that the affidavits filed in support of its motion for summary judgment provided competent and substantial evidence to establish that no genuine issues of material fact existed, entitling it to summary judgment as a matter of law. We affirm.

“When faced with questions of statutory application and federal preemption, we apply a de novo standard of review.” Many v. DaimlerChnysler Carp., 921 So.2d 781, 783 (Fla. 5th DCA 2006). Review of an order granting summary judgment is de novo. See Fla. Bar v. Greene, 926 So.2d 1195,1200 (Fla.2006).

Florida’s Requirement of Certificate of Authority

Section 607.01401(12), Florida Statutes (2009), defines a foreign corporation as “a corporation for profit incorporated under laws other than the laws of this state.” Section 607.1501(1), Florida Statutes, states that “[a] foreign corporation may not transact business in this state until it obtains a certificate of authority from the Department of State.” Therefore, pursuant to Florida law, the bank was seemingly required to register and obtain a so-called certificate of authority from the Department of State. It is not disputed that at all times material hereto, the bank did not obtain or otherwise hold such a certificate.

“In determining whether a state statute is pre-empted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress.” Cal. Fed. Sav. & Loan Ass’n v. Guen-a, 479 U.S. 272, 280, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). “In only a few instances has Congress explicitly preempted state regulation of national banks. More commonly, it has been left to the courts to delineate the proper boundaries of federal and state supervision.” Natl State Bank, Elizabeth, N.J. v. Long, 630 F.2d 981, 985 (3d Cir. 1980).

“Under the Supremacy Clause, federal law may supersede state law in several different ways.” Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). First, Congress can preempt state law by so stating in express terms; known as “express preemption.” Menefee v. State, 980 So.2d 569, 571 (Fla. 5th DCA 2008); see also Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). Second, “Congress’ intent to pre-empt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” Hillsborough County, Fla., 471 U.S. at 713,105 S.Ct. 2371 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Referred to as “implied preemption,” this can also occur when an entire field is dominated by federal law. See Hines v. Davidowitz, 312 U.S. 52, 61, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Finally, state law can be nullified if it actually conflicts with federal regulation in the same area; known as “conflict preemption.” Liggett Group, Inc. v. Davis, 973 So.2d 467, 471 (Fla. 4th DCA 2007). “Such a conflict arises when ‘compliance with both federal and state regulations is a physical impossibility,’ or when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Hillsborough County, Fla., 471 U.S. at 713, 105 S.Ct. 2371. (internal citations omitted).

“The supremacy question is generally met with a presumption against preemption. However, this presumption is not implicated when the area of law analyzed is subject to significant federal presence.” Aguayo v. U.S Bank, 658 F.Supp.2d 1226, 1231 (S.D.Cal.2009) (citing United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000)). National banking is an example. Bank of Am,enea v. City & County of San Francisco, 309 F.3d 551, 558 (9th Cir.2002).

The National Bank Act (“NBA”), enacted over 150 years ago, was created to facilitate a national banking system and protect national banks from intrusive regulation by the States. See Kroske v. U.S. Bank Corp., 432 F.3d 976, 982 (9th Cir. 2005) (citing Marquette Nat’l Bank v. First of Omaha Serv. Corp., 439 U.S. 299, 315, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978)). 12 U.S.C. § 24 outlines the powers of a national bank incorporated pursuant to the NBA and states:

Upon duly making and filing articles of association and an organization certificate a national banking association shall become, as from the date of the execution of its organization certifícate, a body corporate, and as such, and in the name designated in the organization certificate, it shall have power—

Fourth. To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons. (emphasis added).

Because this case presents a novel issue in Florida, we find the holdings in numerous foreign jurisdictions to be persuasive.

In Bank of America, Nat’l Trust & Savings Ass’n v. Lima, 103 F.Supp. 916 (D.Mass.1952), the defendant alleged that the plaintiff was doing business in Massachusetts without complying with Massachusetts General Laws Chapter 181. The court stated that “[sjection 24 of 12 U.S.C.A. includes among the powers of national banks the power ‘to sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons.’ The effect of this provision is to place national banks in the same category as individuals in suits by and against them.” Id. at 918. The court further held:

[I]f the provisions of Chapter 181 are held to include national banks within the scope of them coverage, then the effect of that statute is to place national banks on the same level as foreign corporations as regards capacity to sue. Such a result is plainly unconstitutional, [sic] since it conflicts with the federal statute empowering national banks to sue as fully as natural persons.

Id. In Ind. Nat’l Bank v. Roberts, 326 So.2d 802, 802 (Miss.1976), the plaintiff-national bank filed suit in Mississippi state court to recover the balance due on a promissory note executed by the defendant. The defendant filed a motion to dismiss arguing that the plaintiff-national bank was a foreign corporation not qualified to do business in Mississippi and thus, not entitled to maintain suit in state court. Id. The plaintiff-national bank, citing 12 U.S.C. § 24, stated that as a national bank created under the NBA, they were not subject to such state requirements. The Mississippi court agreed, noting that because the language of 12 U.S.C. § 24 “is so clear and explicit, this Court has not been called upon to construe it.” Id. The court held that a statute “prohibiting a foreign corporation not qualified to do business in the State from maintaining any action in any court of the State, does not apply to a national banking corporation.” Id. at 803; see also First Nat’l Bank of Tonasket v. Slagle, 165 Wash. 435, 5 P.2d 1013 (1931) (holding that state statute prohibiting foreign corporation from maintaining suit in Washington for failure to pay annual licensing fees did not apply to national banks in view of 12 U.S.C. § 24, Subdivision Fourth); State Nat’l Bank of Conn. v. Laura, 45 Misc.2d 430, 256 N.Y.S.2d 1004, 1006 (Westchester County Ct.1965) (“[Sjince a national bank is brought into existence under federal legislation, it does not come within New York’s statutory requirements limiting the right of foreign corporations to sue. Specific authority to institute such an action as this plaintiff brings is provided in ... 12 U.S.C.A. § 24, Subdivision fourth.”).

These cases demonstrate the law is well-established that a state cannot require a national bank to register or file as a “foreign corporation” in order to maintain a lawsuit in state court. In view of these holdings and the plain language of 12 U.S.C. § 24, Subdivision Fourth, we find that section 607.1502(1) is expressly preempted as applied to all national banking associations.

Issues of Material Fact Precluding Summary Judgment

The borrowers contend that conflicts as to the monies owed the bank contained in the bank’s verified complaint, loan statements and affidavits filed in support of its motion for summary judgment create a genuine issue of material fact.

“On a motion for summary judgment, the moving party bears the burden to show the nonexistence of any disputed issues of material fact.” Delandro v. Am’s. Mortg. Servicing, Inc., 674 So.2d 184, 186 (Fla. 3d DCA 1996); see also Landers v. Milton, 370 So.2d 368 (Fla.1979). “‘The party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.’ ” Leal v. Deutsche Bank Nat’l Trust Co., 21 So.3d 907, 909 (Fla. 3d DCA 2009) (citation omitted). Once the moving party “tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.” Landers, 370 So.2d at 370.

In the instant case, the bank contends that any inconsistencies in the amount of monies owed by the borrowers are a reflection of new information obtained through discovery and the fluidity of interest and late fees accruing on a debt. Indeed, the affidavits filed in support of the bank’s motion for summary judgment provided a breakdown of the monies owed, including principal, interest and late fees.

The bank’s affidavits also asserted that the borrowers were in default on the loans and demands for payment had been repeatedly ignored. Upon the presentation of the bank’s motion for summary judgment and supporting affidavits, the borrowers had an opportunity to refute those amounts. See Walker v. Midland Mortg. Co., 935 So.2d 519, 520 (Fla. 3d DCA 2006) (court held there was no disputed issue of fact regarding the amount owed on a mortgage where mortgagor was presented with the amount owed one week before foreclosure action).

At no time have the borrowers offered a contrary calculation of the monies owed; they merely contend, by way of an affidavit in opposition to the bank’s motion for summary judgment, that they do not owe the amounts alleged by the bank. Such conclusory assertions are insufficient counter-evidence to avoid summary judgment. See TSI Southeast, Inc. v. Royals, 588 So.2d 309, 310 (Fla. 1st DCA 1991) (“Counter-affidavits filed for purposes of avoiding summary judgment must be made on personal knowledge and must set forth the facts upon which the affiant relies. Mere conclusions by the affiant are insufficient, and a party does not create a fact question merely by placing his assertions in affidavit form.”) (citing Carter v. Cessna Fin. Corp., 498 So.2d 1319, 1321 (Fla. 4th DCA 1986) (internal citation omitted)).

Therefore, the trial court’s order entering final summary judgment was appropriate and thus, we affirm.

Affirmed.

GROSS, C.J., and MAY, J., concur.

      . In December of 2008, the bank gave TJCV Land Trust, a Florida Land Trust, an "Absolute and Irrevocable Assignment of Judgment” for the claims against 770 PPR, LLC and the personal guaranty by Talbott on that loan.


text:
    Morris T. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-545.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Morris T. Young, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Roesch v. State, 633 So.2d 1 (Fla.1993).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


author: CASANUEVA, Chief Judge.

text:
    STATE of Florida, Petitioner, v. Torry M. JONES, Respondent.
    No. 2D08-5751.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Petitioner.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Respondent.
   CASANUEVA, Chief Judge.

The State of Florida petitions this court for a writ of certiorari quashing the trial court’s pretrial order excluding certain test results from evidence, as well as its subsequent order denying the State’s motion for rehearing. Although the trial court departed from the essential requirements of law, we dismiss the petition because the State failed to allege or prove that the error resulted in a miscarriage of justice.

Facts and Procedural History

The State charged Torry M. Jones with sexual offenses against a child victim. At some point, urinalyses were undertaken on samples from Mr. Jones and the alleged victim. The defense filed a motion in li-mine to exclude any mention of the tests or their results from evidence, claiming that there was no chain of custody in place on the urine samples and that introduction of the test results without the testimony of those who created the results violated Mr. Jones’s constitutional right to confrontation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The trial court held a hearing on the motion. Defense counsel argued that each of the two nurses who collected the urine samples had told him that “we don’t do chain of custody on urine samples.” He further argued that the identities of the lab technicians who tested the urine and created the reports were unknown and, therefore, the State could not introduce the reports. No witnesses testified; no documents were introduced into evidence. Without the introduction of any evidence, the trial court granted the motion on both bases. The State filed a motion for rehearing which was denied.

Standard of Review

The Supreme Court of Florida has held that “if the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.” State v. Pettis, 520 So.2d 250, 253 (Fla.1988) (quoting State v. Stein-brecher, 409 So.2d 510, 511 (Fla. 3d DCA 1982)); Although a pretrial order may qualify for certiorari, the writ should be issued only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 254 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)).

State v. Davis, 857 So.2d 349, 350 (Fla. 2d DCA 2003). In other words, “[t]o obtain common law certiorari relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm.” Gonzalez v. State, 15 So.3d 37, 39 (Fla. 2d DCA 2009).

Analysis

The State contends that the trial court erred in granting the defense’s motion in limine without any evidence presented. Regarding the chain of custody issues, the State asserts that exclusion of evidence based solely upon an alleged break in the chain of custody, without evidence of a probability of tampering, was a departure from the essential requirements of law.

“[R]elevant physical evidence is admissible unless there is an indication of probable tampering.” Peek v. State, 395 So.2d 492, 495 (Fla.1980); see also Dodd v. State, 537 So.2d 626 (Fla. 3d DCA 1988). In seeking to exclude certain evidence, [the movant] bears the initial burden of demonstrating the probability of tampering. Once this burden has been met, the burden shifts to the proponent of the evidence to submit evidence that tampering did not occur.

Murray v. State, 838 So.2d 1073, 1082 (Fla.2002) (footnotes omitted). “A mere break in the chain of custody is not in and of itself a basis for exclusion of physical evidence. Rather, the court should consider the probability that the evidence has been tampered with during the interim for which it is unaccounted.” Bush v. State, 543 So.2d 283, 284 (Fla. 2d DCA 1989).

Mr. Jones presented no evidence demonstrating a probability of tampering and made no argument suggesting a tampering problem exists. As the movant, Mr. Jones unquestionably failed to satisfy his burden of proof. Consequently, the trial court departed from the essential requirements of law by granting the motion without any evidence to support Mr. Jones’s argument.

In response to the State’s petition, Mr. Jones asserts that this court should deny the petition for writ of certiorari regardless because introduction of the lab reports would violate his constitutional right to confrontation. In Crawford, the U.S. Supreme Court held that “[testimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S.Ct. 1354. The Court specifically declined to “spell out a comprehensive definition of ‘testimonial.’ ” Id. at 1374. The Florida Supreme Court, applying Crawford to a Florida Department of Law Enforcement (FDLE) lab report “used to establish the illegal nature of the substances [a defendant] possessed,” addressed whether that report was “testimonial” in nature as to invoke the Confrontation Clause. State v. Johnson, 982 So.2d 672, 673 (Fla.2008). The court found “lab reports and similar materials, when prepared for criminal trials, to be testimonial statements.” Id. at 680 (emphasis added). The court distinguished its holding from other cases where the “testing [was] done almost exclusively for medical treatment” because the FDLE report was “only ‘intended to bear witness against an accused.’ ” Id. at 676, 677 (quoting Johnson v. State, 929 So.2d 4, 7 (Fla. 2d DCA 2005)).

Thus, the reason behind a medical test determines whether the written document containing the results of that test is testimonial in nature and triggers a defendant’s constitutional right to confrontation. Although Mr. Jones’s counsel argued that the urinalyses were ordered for prosecutorial purposes rather than for medical reasons, again he provided no evidence to support his assertion. A trial court may not rely on argument by counsel to make factual determinations. Ordonez v. State, 862 So.2d 927, 930 (Fla. 2d DCA 2004); see also State v. Thompson, 852 So.2d 877, 878 (Fla. 2d DCA 2003) (holding that argument of counsel is not evidence); DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998) (“Argument by counsel who is not under oath is not evidence.”). Without any evidence to support the assertion that the urinalyses were for prosecu-torial purposes rather than for medical reasons, the trial court departed from the essential requirements of law in finding that introduction of the test results would violate Crawford.

Although we are convinced by the State’s argument regarding the trial court’s departure from the essential requirements of law, the State makes no comment on the second prong necessary for certiorari relief: irreparable harm. Gonzalez, 15 So.3d at 39. The petition discusses the trial court’s legal error without specifying the harm suffered or explaining how that harm is irreparable. Further, the petition does not address whether or how the legal error “substantially impair[ed] the ability of the state to prosecute its case.” State v. Pettis, 520 So.2d 250, 253 (Fla.1988) (quoting State v. Steinbrecher, 409 So.2d 510, 511 (Fla. 3d DCA 1982)); see also State v. Sealy-Doe, 861 So.2d 530, 531 (Fla. 4th DCA 2003) (dismissing the State’s petition for writ of certiorari because the challenged ruling did not “substantially impair the state’s ability to bring its case”); State v. Storer, 920 So.2d 754, 759 (Fla. 2d DCA 2006) (denying certiorari in part because “[t]he order that the State challenges in this ease does not prevent the State from presenting all of the evidence necessary to prove its case”). Without the requisite allegation of irreparable harm, this court has no jurisdiction to grant relief. See DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007) (dismissing petition for writ of cer-tiorari for lack of jurisdiction when the petitioner’s alleged harm was not sufficiently burdensome to invoke certiorari jurisdiction).

Petition for writ of certiorari dismissed.

KELLY and KHOUZAM, JJ., Concur.


author: KAHN, J.

text:
    Billy Rizal NILO and Jo Ann Farrington Walker, Appellants, v. Gerald FUGATE, Appellee.
    No. 1D09-235.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      E.T. Fernandez, III, and Sorena S. Fal-lin of Fernandez Trial Lawyers, P.A., Jacksonville, for Appellants.
    F. Catfish Abbott of Abbott Law Firm, P.A., Jacksonville, and Michael J. Korn and Jordan R. Biehl of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   KAHN, J.

In a personal injury case, the jury awarded damages to a commercial truck driver whose vehicle was rear-ended by a tractor trailer. Appellants raise ten issues. In addition to various evidentiary and collateral source matters, appellants, the driver and owner of the tractor trailer, complain of two rulings: (1) the trial court taxed more prevailing party costs against appellants than appellee was entitled to; and (2) the trial court erroneously determined that appellee was entitled to attorney’s fees and costs pursuant to appellee’s proposal for settlement. We affirm the trial court’s evidentiary and collateral source rulings, reverse the determination as to attorney’s fees, and reverse in part as to the award of costs.

On May 22, 2007, appellee Gerald Fu-gate served appellants Billy Rizal Nilo and Jo Ann Farrington Walker with a formal proposal for settlement of $400,000. Appellants rejected the proposal, and a jury trial ensued on both liability and damages. The jury returned a verdict in Fugate’s favor in the amount of $495,246.41. Fu-gate moved for attorney’s fees and costs pursuant to the unaccepted proposal for settlement, as well as $29,641.95 in prevailing party costs. The trial court entered an order taxing costs in the amount of $32,423, resulting in a judgment for appel-lee of $527,669.41. Consequently, the court awarded appellee $76,440 in attorney’s fees and costs.

We review an award of costs for abuse of discretion. Smith v. Bd. of Palm Beach County, 981 So.2d 6 (Fla. 4th DCA 2007). The moving party has the burden to show that all requested costs were reasonably necessary. See Starita v. W. Putnam Post No. 10164, 666 So.2d 278 (Fla. 5th DCA 1996). Findings as to the specific amount of costs will not be disturbed if supported by competent substantial evidence. Manon County Sch. Bd. v. Griffin, 667 So.2d 358 (Fla. 1st DCA 1995).

Fugate concedes error in the costs award, which exceeded the amount requested by $2,781.05. The taxable costs awarded should be reduced accordingly, and we reverse the order awarding costs to the extent necessary to correct this mistake. We do not, however, conclude that the trial court’s remaining findings as to the costs were not supported by competent substantial evidence.

Entitlement to attorney’s fees under section 768.79, Florida Statutes (2006), is subject to de novo review. Campbell v. Goldman, 959 So.2d 223 (Fla. 2007). In a civil action for damages, “[i]f a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.” § 768.79, Fla. Stat. (2006). Only those costs incurred pre-demand may be considered in determining whether the total judgment meets the statutory threshold. See Perez v. Circuit City Stores, Inc., 721 So.2d 409, 412 (Fla. 3d DCA 1998). Pursuant to appellee’s proposal for settlement, and in accordance with section 768.79, Florida Statutes, Fugate would have been entitled to attorney’s fees and costs if the judgment exceeded $500,000. Appellee admits a trial court error here, because he did not incur the $4,753.59 in additional costs needed to reach the statutory threshold, before tendering the proposal for settlement. As the judgment did not exceed $500,000, we REVERSE the award of attorney’s fees and costs pursuant to section 768.79. We AFFIRM the trial court’s rulings in all other respects and REMAND with instructions to correct the costs award and vacate the fee award.

BENTON and ROBERTS, JJ., concur.


author: BENTON, J.

text:
    Nicholas Alexander CHESSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0027.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      Ashley Smith Herndon of Dewrell & Herndon, Shalimar, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Nicholas Alexander Chesser appeals convictions under section 316.193(3), Florida Statutes (2006), on two counts of driving under the influence manslaughter. That two people died in the accident is not in dispute. But the state had also to prove that Mr. Chesser, a driver who survived, was under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent that his normal faculties were impaired immediately before the collision. He contends the trial court erred in allowing the state to introduce, for this purpose, opinions of lay witnesses regarding the meaning of the word “throwed.” Because we agree with this contention and reverse on this basis, we need not address his other arguments.

Traveling east on a six-lane highway, Mr. Chesser’s vehicle crossed into the westbound lanes and hit another vehicle almost head on. Both people in the oncoming vehicle died at the scene of the accident. Mr. Chesser, who was not wearing his seatbelt, was ejected from his vehicle.

He was lying injured in the highway, when witnesses arrived on the scene, where he remained unconscious for approximately fifteen minutes. Two motorists who stopped at the accident scene, Ms. Bautista and Ms. Tarno, testified that, after he regained consciousness, he was highly agitated, began to scream and curse, saying among other things that he “was throwed.”

Over objection, the trial court allowed the state to introduce testimony from the motorists who stopped regarding the meaning of the word “throwed.” Ms. Bau-tista testified the word meant under the influence of alcohol. Ms. Tarno testified the word meant under the influence of alcohol or drugs. In arguing that testimony from Ms. Bautista and Ms. Tarno regarding their understanding of “throwed” was admissible, the prosecutor asserted— and the trial court agreed — that their testimony established that Mr. Chesser’s saying that he was “throwed” was an admission that he was under the influence of drugs.

Both Ms. Bautista and Ms. Tarno testified to the meaning of the word “throwed” based on their personal experience, not with the defendant, whom they had never met before the accident, but with unnamed others at places in unspecified localities, one or more years prior to the accident. Permitting Ms. Bautista and Ms. Tarno to interpret the meaning of the word “throwed” effectively transformed Mr. Chesser’s statement into a confession, even though he maintained his innocence, never admitting he had been under the influence of drugs or alcohol or otherwise impaired at the time of the accident.

Neither Ms. Bautista nor Ms. Tarno testified that Mr. Chesser appeared to be “under the influence.” No alcohol was found in Mr. Chesser’s blood. While tests did reveal alprazolam (Xanax) in Mr. Ches-ser’s blood, the parties presented conflicting expert opinion testimony regarding whether the level of alprazolam found to be present would have rendered him impaired before the impact.

Neither Ms. Bautista nor Ms. Tarno was offered as an expert, or identified the basis for any opinion that Mr. Chesser’s use of the word “throwed” was an admission that he was under the influence of drugs or alcohol. “As a general l’ule, lay witnesses may not testify in the form of opinions or inferences; it is the function of the jury to draw those inferences.” Thorp v. State, 777 So.2d 385, 395 (Fla.2000). The exception to this rule set out in section 90.701, Florida Statutes (2006), does not apply here where each of the witnesses could “readily, and with equal accuracy and adequacy, communicate what [s]he ... ha[d] perceived to the trier of fact without testifying in terms of inferences or opinions.” See Thorp, 777 So.2d at 395-96 (holding the trial court erred in permitting a witness to testify that Thorp’s statement that he “did ... a hooker” meant that Thorp had killed her where the witness “had no difficulty conveying to the jury what Thorp said to him while in prison” and the “exact meaning of Thorp’s words and the inferences that could be drawn from them” “should have been made by the jury and not by the witness”); Dixon v. State, 13 Fla. 636, 644-45 (1869) (holding that the trial court, after a witness testified that Dixon said that he “was in determination to cut [her] foothold short,” erred in allowing the witness to testify that she understood by the word “foothold” that Dixon would cut the victim, stating that “in the absence of anything to show that the word ‘foothold’ required interpretation by an expert, and that the witness was an expert in languages, we think it was proper that the jury and not the witness should have solved the question.”).

As Professor Ehrhardt explains in Charles W. Ehrhardt, Ehrhardt'’⅛ Florida Evidence § 701.1 at 668-71 (2008 ed.), the opinions of lay witnesses are admissible in certain limited circumstances:

Opinion evidence of matters perceived by one of the senses, such as distance, time, size, weight, form, or identity, have usually been admitted. Non-expert witnesses have been allowed to give opinion testimony of these matters when they have knowledge based upon them personal perception. Lay witnesses are competent to give their opinions based on them knowledge, as long as they are capable of doing so. In these situations, testimony in the form of an opinion is necessary for the witness to adequately and readily communicate to the trier of fact what was perceived. However, if the opinion is nothing more than speculation, it is not admissible.
... For example, lay opinion as to identity of a person is admissible when it is shown that the witness had “a previous personal acquaintance with or knowledge of’ the person identified and “bases his opinion upon such acquaintance or knowledge.”

(Footnotes omitted.) But the witnesses in the present case did not claim “knowledge based upon their personal perception” or any necessity to resort to opinion in order to communicate adequately to the jury what they had heard Mr. Chesser say.

To reiterate, there was no suggestion that either Ms. Bautista or Ms. Tarno knew Mr. Chesser or had ever seen him before the accident, much less heard him use the word “throwed” to mean he was drunk or under the influence of drugs. There was no evidence that the witnesses had lived in the same vicinity as Mr. Ches-ser or been a member of the same subculture or had in any other way acquired knowledge of his personal modes of expression. Compare Jones v. State, 908 So.2d 615, 621-22 (Fla. 4th DCA 2005) (holding the trial court did not abuse its discretion in permitting Ruiz to testify that when Jones said Ruiz should “[m]ake sure” a particular person “never made it to the courtroom” that Jones meant for Ruiz to kill the person because there “was clearly evidence of a basis for Ruiz to know Jones’ subjective meaning of the phrase he spoke” based on the “prior history of close friendship and ongoing discussions between Ruiz and Jones” and their “multiple discussions regarding what Ruiz was going to do to” the person, so that “Ruiz’s testimony as to his interpretation regarding statements made to him by Jones was not inadmissible speculation”); Vasquez v. State, 763 So.2d 1161, 1163 (Fla. 4th DCA 2000) (holding that Jason Holloway’s testimony that Vasquez told him that his co-defendant Ellis “was wanting to do something,” and that Holloway interpreted this to mean that “they was wanting to do a burglary,” was admissible as lay witness opinion, given the parties’ relationship). The present case is also distinguishable from decisions in which courts have held that law enforcement officers may testify as experts regarding the meaning of codes or slang terms used by drug dealers based on their specialized knowledge and experience. See Smith v. State, 7 So.3d 473, 497 (Fla.2009). Ms. Bautista and Ms. Tarno were not qualified as experts of any kind.

The error was not harmless under State v. DiGuilio, 491 So.2d 1129 (Fla.1986). As a practical matter, the only contested issue in the case was whether Mr. Chesser was under the influence of alprazolam to the extent his normal faculties were impaired at the time of the accident. There was no alcohol in Mr. Chesser’s blood, and expert opinion testimony regarding the effect of the alprazolam was conflicting. In these circumstances, the non-expert witness testimony regarding the meaning of the word “throwed” may have been determinative. Because we cannot say beyond a reasonable doubt that it did not affect the jury’s verdict, we reverse and remand for a new trial.

Reversed and remanded.

KAHN and CLARK, JJ., concur.

      .Defense counsel objected on grounds the testimony was “based purely on speculation and there won't be a foundation for those statements.” The prosecutor responded: “LTJhose witnesses will tell you that, as young people who are the exact same age, to them that is a term in common usage that indicates a person’s impaired or intoxicated. And it’s a slang [sic] that’s used.” The defense also objected on relevance grounds and on grounds "that the prejudicial value outweighs any probative effect.”
      Defense counsel objected further: "It would really be no different than me just trying to say a meaning that I’ve heard associated with a word. I mean the problem that we've got is it really is putting an intent in the defendant’s mouth that was not said. We’ve got an equally plausible explanation, which is that he had been ejected or thrown from the Jeep.” Defense counsel maintained that none of the state’s "witnesses can testify that that was our client's understanding or that he knew that.”

      . In ruling the testimony was admissible, the trial court stated “that it could be an admission and it may be admissible.”

      . Ms. Tarno did not testify regarding her age, although questioning indicated she was older than Ms. Bautista. Ms. Tarno testified that she had heard "younger people” use the term “throwed” to mean "they were messed up some way, either drugs or alcohol.” Her experience with the term was based on her experience after a "divorce several years ago” when she went "back into the single crowd” with "younger kids.” Ms. Bautista testified that approximately one year prior to the accident, when she was eighteen years old, she would "hang out” with people her own age and had the opportunity to observe people under the influence of drugs or alcohol. She testified that she recalled "them” using the term “throwed” to mean drunk or under the influence and primarily in reference to alcohol.

      . Both testified that, after regaining consciousness, when Mr. Chesser tried to move he would scream; and that they knew he was in pain and tried to get him to be still. They also testified that he yelled that he wanted to be left alone, and tried to get up and walk away. (A medical expert testified that this was not uncommon behavior for someone with a closed head injury.) "The law seems well established that testimony consisting of guesses, conjecture or speculation — suppositions without a premise of fact — are [sic] clearly inadmissible in the trial of causes in the courts of this country.” Jones v. State, 908 So.2d 615, 621 (Fla. 4th DCA 2005) (quoting LeMaster v. Glock, Inc., 610 So.2d 1336, 1338-39 (Fla. 1st DCA 1992)).

      . Section 90.701, opinion testimony of lay witnesses, provides:
      If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
      (1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
      (2) The opinions and inferences do not require a special knowledge, skill, experience, or training.