author: BRYAN, Judge. MOORE, Judge,

text:
    Caleb SILBERNAGEL, by and through his father and next friend, Sean SILBERNAGEL v. MARANATHA BAPTIST CHURCH, INC.
    2080313.
    Court of Civil Appeals of Alabama.
    Sept. 11, 2009.

      Earnest Ray White and Jeremy L. Haw-sey of The Law Firm of Earnest Ray White, Brewton, for appellant.
    L. Merrill Shirley and Grifñn M. Shirley, Elba, for appellee.
   BRYAN, Judge.

The plaintiff below, Caleb Silbernagel (“Caleb”), by and through his father and next friend, Sean Silbernagel (“Sean”), appeals from a summary judgment in favor of the defendant below, Maranatha Baptist Church, Inc. (“Maranatha”). We affirm.

Sean, as Caleb’s father and next friend, sued Maranatha, alleging that, on August 31, 2005, when Caleb was approximately three months old, the employees of the day-care facility operated by Maranatha negligently or wantonly caused a spiral fracture of the femur bone in Caleb’s right leg. Answering, Maranatha denied liability-

Subsequently, Maranatha moved for a summary judgment on the grounds (1) that Sean could not prove that Marana-tha’s employees breached a duty of care or that such a breach proximately caused Caleb’s fractured femur, two of the essential elements of the negligence claim, and (2) that Sean could not prove that Marana-tha’s employees consciously and intentionally did some wrongful act or omitted some known duty or that such act or omission proximately caused Caleb’s fractured femur, two essential elements of the wantonness claim. In support of its summary-judgment motion, Maranatha submitted, among other things, the deposition testimony of Courtney Roberts, the Maranatha employee who had been primarily responsible for caring for Caleb on August 31, 2005; the deposition testimony of Dr. Michael Jeffery Ramsey, the pediatrician who had examined Caleb immediately after he was allegedly injured on August 31, 2005; and Dr. James Brett Simpson, the ortho-paedic surgeon who had treated Caleb’s fractured femur.

Roberts testified as follows. When Roberts arrived at Maranatha on the morning of August 31, 2005, Christy Proctor Brin-son, another Maranatha employee, was taking care of Caleb. Caleb was “a little fussy,” and Proctor told Roberts that Caleb’s mother had said that Caleb was “fussy” when she had dropped him off at Maranatha that morning. Roberts gave Caleb a bottle of milk, but he continued fussing. She then laid Caleb in a bed so that she could tend to the other six children in her care that morning, but Caleb began crying. She picked Caleb up and held him and then placed him in a swing so that she could tend to the other six children. Caleb fell asleep in the swing but soon woke up crying. When Caleb woke up crying in the swing, she lifted him out of the swing and discovered that his right leg was behind his left leg. After taking Caleb out of the swing, Roberts sat and rocked Caleb. Caleb was fine as long as she sat and rocked him, but he would become upset if she left him to check on the other children. Roberts thought that Caleb was sick, so she called for one of the other Maranatha employees to help her. A Maranatha employee named Tina came and held Caleb, but he did not stop crying, so Tina gave Caleb back to Roberts and went and got Tracy Taylor, an administrative employee at Maranatha, who contacted Caleb’s mother, Amber Silbernagel (“Amber”). Amber told Taylor that Caleb had an ear infection and that she should give Caleb Tylenol, a nonprescription pain reliever, and call back if Caleb was not better in an hour. Taylor gave Caleb Tylenol, but he did not improve. Caleb’s mother came and got Caleb and took him to his pediatrician.

Dr. Ramsey testified as follows. Caleb’s parents brought Caleb to see Dr. Ramsey on August 31, 2005. Dr. Ramsey examined Caleb and ordered X-rays, which showed a fracture of Caleb’s right femur. Dr. Ramsey referred Caleb to Southern Bone & Joint Specialists, P.C., a group of physicians who specialize in orthopaedics, for treatment. Dr. Ramsey could not determine with a reasonable degree of medical certainty what had caused the fracture of Caleb’s femur or when the fracture had occurred.

Dr. Simpson testified that he had treated Caleb’s fracture by placing him in a spica cast. With regard to the cause of the fracture of Caleb’s femur, Dr. Simpson testified as follows:

“Q. All right. You spoke briefly on the elasticity of this bone in a child in this age. Is there any way that you can describe what type of force it would take to break a bone, the femur bone, in a three-month old? Anything—
“A. It would have to be a traumatic injury, such as a twisting injury to the leg where a child is picked up and twisted, or I’ve seen them when parents or grandparents are carrying the child and fall on top of the child. Or if an older sibling falls on top of the leg, I’ve seen that. Or if the child is dropped.
“Q. Right. It would have to be some kind of force?
“A. It has to be a force obviously, because this child can’t — he was laying on his back, so he can’t generate the force to fracture his femur. Some outside force has to do it.
“Q. Have you ever cared for a child that had his leg broken after he had been put in a swing, that you can recall?
“A. After he was put into a swing and the swing — what happened to the swing?
“Q. As in the child’s leg gets bent up behind him in some fashion.
“A. I would assume that that would be unusual for that history, I mean, it’s a traumatic injury to break a femur, even in a three-month-old.
“Q. Well. In this case, there is — we feel that this child was put into a swing at this day care with such force that it broke his leg. And we’ve had someone actually testify that the leg was bent back under the child. In that scenario, would it be possible for that bone to be broken?
“A. I would find it unlikely. I mean, I — it needs to be a traumatic force. If you’re just trying to sit — the child’s joints are very elastic, you know, and you can bring their heels up over their head and you can get their legs extended to flex. It would seem to me it would be a force where something came down on top of that leg.
“Q. Right.
“A. Plus all the — this child was three months old, so it had to be a swing that — actually one of those recumbent-type swings, you know, that you don’t sit them in and the swing starts, you have to hold the child — he has to be able to sit to ride those bigger, older child swings.
“Q. Dr. Simpson, I believe your testimony has been that it’s unlikely, in your medical opinion, that placing this child into a swing at this age at the day care would cause a fracture to the femur; is that correct?
“A. Right.
“Q. If the person that was putting that child in the swing was agitated because there were multiple children in the room, and she, in an anger state, was to slam the child down into that swing, is it possible that the bone could be broken? “A. Well, if you’re slamming some child down, yes. But, I mean, if you’re placing them down and their leg is trapped up underneath them, is caught behind them as they’re being put down, I don’t think you could fracture it.”

In opposition to the summary-judgment motion, Sean submitted, among other things, the deposition testimony of Amber; Brinson, the Maranatha employee who had received Caleb from Amber on August 81, 2005, and had taken care of him before Roberts arrived that morning; and Taylor, the Maranatha employee who had contacted Amber. Amber testified that she gave Caleb to Brinson on the morning of August 81, that Caleb had not been “fussy” on the morning of August 31 before she gave him to Brinson, and that she had not told Brinson that Caleb had been “fussy” that morning.

Brinson testified as follows. Amber took Caleb out of his car seat and handed him to Brinson on the morning of August 31, 2005. Amber told Brinson that he had been “a little cranky” that morning and that he had not had his bottle yet. Brin-son sat down in the rocking chair and fed Caleb with a bottle of milk for approximately 20 minutes. Caleb did not cry or fuss while he was eating and appeared normal. Brinson then gave Caleb to Roberts.

Taylor testified as follows. On August 31, 2005, the Maranatha day-care facility had a videotaping system designed to record what happened in the day-care facility. The videotaping system was functional on August 31, but no videotape of what happened in the day-care facility that day exists because she forgot to put a videotape in the recorder that day. She has never forgotten to put a videotape in the recorder on any other occasion.

In pertinent part, Sean’s brief in opposition to Maranatha’s summary-judgment motion stated:

“Maranatha also relies heavily on the testimony of Dr. Ramsey and Dr. Simpson as evidence for why it should be granted summary judgment in the case. The problem with the testimony given by the doctors is that other than the condition of Caleb after the injury occurred, their testimony is completely speculative and hypothetical. Both doctors testified that it was medically impossible to determine how or when the right femur fracture occurred, but this revelation does nothing to relieve Mara-natha of responsibility for Caleb’s well-being while he was in their care. This only illustrates that Caleb could very well have experienced the broken leg while in Maranatha’s care, and other evidence regarding Caleb’s demeanor on the day the injury occurred is necessary to determine fault.
“Proof of negligence requires establishment of breach of duty flowing from defendant to plaintiff which proximately causes damage to plaintiff. Thompson v. Lee, 439 So.2d 113 (Ala.1983). Mr. and Mrs. Silbernagel entrusted Marana-tha with the care of their child, Marana-tha breached their duty, and the facts of this case indicate that some traumatic event occurred to Caleb that caused his broken leg. Causal connection between injury and negligence, with negligence as proximate cause of injury must appear to warrant recovery. International Harvester Co. v. Williams, [222 Ala. 589,] 133 So. 270 (Ala.1931). Since the surveillance tape was conveniently not in the recorder on the day the injury occurred, and Caleb cannot speak about the matter because of his age, it becomes difficult to make sense of what happened to Caleb. However, it is clear that some injury occurred to Caleb while he was in Maranatha’s care.
“Proximate cause of an injury is an act or omission that in a natural and continuous sequence of events, unbroken by any new and independent cause, produces an injury or harm, and without which the injury would not have occurred. Morguson v. 3M Co., 857 So.2d 796 (Ala.2003) In short, all evidence gathered in this case illustrates that Caleb was acting normal for any given day when he was placed in Maranatha’s care, the mother of Caleb had no cause for concern when she left him at the daycare facility, and the Maranatha daycare workers had no reason for alarm when he was handed to them. Due to the negligence of Maranatha employees during the first few hours of Caleb’s stay at the daycare, something happened to Caleb of such magnitude that it caused the femur bone of his right leg to break. There are numerous fact questions that should be determined by a jury.”

Following a hearing, the trial court entered an order granting Maranatha’s summary-judgment motion. The order stated:

“The Court is of the opinion that this ease is deficient with respect to causation. The child’s doctors testified that it is unlikely that the spiral fracture was caused by placing the child in the swing improperly. There is no evidence to rebut this proximate cause issue. Therefore, summary judgment is granted in favor of Defendant and against Plaintiff.”

Sean timely filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the summary judgment, which the trial court denied. Sean then timely appealed to this court. Because we lacked jurisdiction, we transferred the appeal to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala. 2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala. 2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

Sean argues that the trial court erred in granting Maranatha’s summary-judgment motion because, he says, a genuine issue of material fact existed with respect to proximate cause because, he says, the evidence established that Caleb was acting normally when he arrived at the Maranatha day-care facility, that he began exhibiting signs of distress while he was at the Maranatha day-care facility, and that, therefore, his femur must have been broken as a result of something the Marana-tha employees did while he was in their care.

Maranatha submitted evidence indicating that three of the four Maranatha employees who took care of Caleb on August 31, 2005 — Brinson, Tina, and Taylor — did not breach the duty of care they owed Caleb. With respect to Roberts, Marana-tha submitted evidence that, when viewed in the light most favorable to Sean, see Ex parte Patel, 988 So.2d 957, 959 (Ala.2007) (“To determine whether the evidence creates a genuine issue of material fact, ‘[the appellate court] must review the record in the light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant.’ Ex parte Steadman, 812 So.2d 290, 293 (Ala.2001) (citing Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 47 (Ala.1995)).”), indicated that she breached the duty of care she owed Caleb by placing him in the swing with his right leg behind his left leg; however, Maranatha submitted the testimony of Dr. Simpson, which, even viewed in the light most favorable to Sean, negated the existence of a causal connection between Roberts’s breach of care and Caleb’s fractured femur. Consequently, the burden shifted to Sean to submit evidence indicating that one of the Maranatha employees breached a duty of care that proximately caused Caleb’s fractured femur. See, e.g., Harris v. Health Care Auth. of Huntsville, 6 So.3d 468, 472 (Ala.2008) (“ ‘If the mov-ant meets this initial burden [of establishing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law], the burden then shifts to the nonmovant to present “substantial evidence” of a genuine issue of material fact.’ ” (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala. 2008)).

Sean attempted to meet his burden by submitting evidence that, when viewed in the light most favorable to Sean, indicated that Caleb was acting normally when he arrived at the Maranatha day-care facility and that he began showing signs of distress after he arrived at the Maranatha day-care facility. Sean argued that this evidence indicated that “[d]ue to the negligence of Maranatha employees during the first few hours of Caleb’s stay at the daycare, something happened to Caleb of such magnitude that it caused the femur bone of his right leg to break.”

In effect, Sean was arguing that a breach of the duty of care by Maranatha’s employees and proximate cause could be inferred despite the absence of direct evidence establishing the breach and proximate cause. In certain circumstances, the doctrine of res ipsa loquitur allows an inference that the defendant breached the duty of care in the absence of direct evidence of the breach. See Kmart Corp. v. Bassett, 769 So.2d 282, 286 (Ala.2000). In Kmart Corp. v. Bassett, the Alabama Supreme Court explained:

“The res ipsa loquitur doctrine allows ‘an inference of negligence where there is no direct evidence of negligence.’ Ex parte Crabtree Industrial Waste, Inc., 728 So.2d 155, 156 (Ala.1998). For the doctrine to apply, a plaintiff must show that:
“ ‘(1) the defendant ... had full management and control of the instrumentality which caused the injury; (2) the circumstances [are] such that according to common knowledge and the experience of mankind the accident could not have happened if those having control of the [instrumentality] had not been negligent; [and] (3) the plaintiffs injury ... resulted from the accident.’
“Crabtree Industrial Waste, 728 So.2d at 156 (quoting Alabama Power Co. v. Berry, 254 Ala. 228, 236, 48 So.2d 231, 238 (1950), and citing Ward v. Forrester Day Care, Inc., 547 So.2d 410, 411 (Ala.1989), and Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1223 (Ala. 1992)). However, ‘[i]f one can reasonably conclude that the accident could have happened without any negligence on the part of the defendant ], then the res ipsa loquitur presumption does not apply.’ Crabtree Industrial Waste, Inc., 728 So.2d at 158.”

769 So.2d at 286.

However, we cannot consider the issue whether the doctrine of res ipsa lo-quitur applies to the facts of the case now before us because Sean did not argue to the trial court that res ipsa loquitur applies. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (“[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” (emphasis omitted)).

Given the nonexistence of direct evidence indicating that a Maranatha employee committed a breach of the duty of care that proximately caused the fracture of Caleb’s femur and given the unavailability of the doctrine of res ipsa loquitur due to Sean’s failure to argue to the trial court that that doctrine applies, we cannot hold that the trial court erred in concluding that Sean failed to meet his burden of submitting evidence indicating that a Mar-anatha employee’s breach of the duty of care proximately caused the fracture of Caleb’s femur. Therefore, we affirm the summary judgment in favor of Maranatha.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

I respectfully dissent from the majority’s decision to affirm the trial court’s judgment in favor of Maranatha Baptist Church, Inc., with regard to the negligence claim.

The majority declines to consider the issue whether the doctrine of res ipsa lo-quitar applies to the facts of the present case because, it concludes, Sean Silberna-gel, as Caleb Silbernagel’s father and next friend, did not argue to the trial court that res ipsa loquitur applies. I disagree.

“Res ipsa loquitur means literally ‘the thing speaks for itself.’ It allows one, under certain circumstances to infer negligence from the surrounding facts, in instances where the precise and exact cause of an injury is unknown or unknowable.” Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1223 (Ala.1992). As noted by the majority, Sean stated in his brief in opposition to Maranatha’s summary-judgment motion that “it is clear that some injury occurred to Caleb while he was in Maranatha’s care” and that,

“[i]n short, all evidence gathered in this case illustrates that Caleb was acting normal for any given day when he was placed in Maranatha’s care, the mother of Caleb had no cause for concern when she left him at the daycare facility, and the Maranatha daycare workers had no reason for alarm when he was handed to them. Due to the negligence of Mara-natha employees during the first few hours of Caleb’s stay at the daycare, something happened to Caleb of such magnitude that it caused the femur bone of his right leg to break. There are numerous fact questions that should be determined by a jury.”

(Emphasis added.) Thus, Sean argued to the trial court that something happened while Caleb was at the Maranatha daycare facility to cause his injury; in other words, Sean argued that the facts of the present case implied negligence on the part of the day-care facility. That argument encompasses the very essence of the doctrine of res ipsa loquitur.

The doctrine of res ipsa loquitur is not a separate cause of action. See 57B Am. Jur.2d Negligence § 1176 (2004) (“the doctrine of res ipsa loquitur is merely an evidentiary or procedural rule, and not a rule of substantive law, and thus it does not create or constitute an independent or separate ground of liability” (footnotes omitted)). Rather, as observed by the majority, “[t]he res ipsa loquitur doctrine allows ‘an inference of negligence where there is no direct evidence of negligence.’ ” Kmart Corp. v. Bassett, 769 So.2d 282, 286 (Ala.2000) (quoting Ex parte Crabtree Indus. Waste, Inc., 728 So.2d 155, 156 (Ala. 1998)). Thus, the doctrine of res ipsa lo-quitur is raised by the negligence claim and by Sean’s argument that, based on the facts of the case, “something happened” to Caleb while he was left in the care of Maranatha. Although Sean did not identify the doctrine of res ipsa loquitur by name, trial judges are presumed to know and follow the law. See Ex parte Atchley, 936 So.2d 513, 516 (Ala.2006). I conclude, therefore, that Sean made the necessary arguments to the trial court to invoke the doctrine of res ipsa loquitur.

In Ward v. Forrester Day Care, 547 So.2d 410 (Ala.1989), the Alabama Supreme Court applied the doctrine of res ipsa loquitur to an injury that allegedly occurred to a young child while he was in a day-care center. 547 So.2d at 410. In Ward, an 11-week-old child was left at a day-care center, and, when his parents returned to pick him up that afternoon, he screamed when he was lifted out of his chair. 547 So.2d at 410. The next day, the child returned to the day-care center; when the child was taken home that day, his parents noticed swelling on the child’s right wrist, and the child was later diagnosed with a broken arm. Id. at 411. The parents testified that the child had not been injured while under their care, and the employees of the day-care center testified that the child had not been injured while at the day-care center. Id. The Alabama Supreme Court concluded that the doctrine of res ipsa loquitur could be applied in Ward and, therefore, that the trial court had erred in entering a summary-judgment for the day-care center. Id. at 415.

Similarly, in the present ease, viewing the evidence in a light most favorable to Sean, see Casey v. McConnell, 975 So.2d 384, 388 (Ala.Civ.App.2007), according to Caleb’s mother’s testimony, Caleb did not cry or fuss on the morning of his injury before he was left at the Maranatha daycare facility. Courtney Roberts, who worked at the day-care facility, discovered that Caleb’s right leg was behind his left leg when she lifted him out of a swing. According to Dr. James Simpson, if a child is forced into a swing with one leg trapped underneath him or her, it could possibly cause a broken bone, although he would find it unlikely. Caleb, who was three months old at the time of the injury, was, like the child in Ward, a child of tender years, and he could neither take care of himself nor testify as to how he was injured. Based on the evidence presented, like in Ward, a jury could infer under the doctrine of res ipsa loquitur that Caleb’s injury was a result of the negligence of Maranatha’s employees while Caleb was in their care. I therefore dissent from the majority opinion with regard to its affir-mance of the trial court’s summary judgment in favor of Maranatha as to the negligence claim.

Because the doctrine of res ipsa loquitur cannot be invoked to prove wanton conduct, see George v. Alabama Power Co., 13 So.3d 360, 368 (Ala.Civ.App.2009), I concur with the majority opinion insofar as it affirms the trial court’s summary judgment in favor of Maranatha as to the wantonness claim.

      . In Martin v. Arnold, 643 So.2d 564 (Ala. 1994), the Alabama Supreme Court stated:
      "To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Albert v. Hsu, 602 So.2d 895, 897 (Ala. 1992). To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains. Smith v. Davis, 599 So.2d 586 (Ala. 1992).’’
      643 So.2d at 567.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Jeffry Earl BOLES v. STATE of Alabama.
    CR-08-0083.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.

      Richard M. Kemmer, Jr., Centreville, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Jeffry Earl Boles, appeals from the circuit court’s revocation of his probation. The record indicates that on September 8, 2006, Boles was convicted of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975. He was sentenced to 10 years’ imprisonment; the court suspended his sentence and placed him on supervised probation.

While on probation, Boles was arrested on new charges of attempting to elude police, reckless endangerment, unlawful possession of a controlled substance, and violating prohibition laws. On March 22, 2007, the circuit court entered an order of delinquency and ordered that Boles be committed to the county jail pending a hearing on his delinquency. On June 14, 2007, the State moved to revoke Boles’s probation. Following a jury trial on the new charges, Boles was found guilty of violating prohibition laws and attempting to elude police; he was acquitted on the remaining charges. Before the circuit court could conduct a delinquency hearing, Boles was arrested on a new charge of unlawful possession of a controlled substance. On June 6, 2008, the State filed a second motion to revoke Boles’s probation based on his criminal convictions, his new charge of unlawful possession of a controlled substance, and his alleged association with drug users and drug dealers.

The circuit court conducted a probation-revocation hearing on June 13, 2008, and again on September 5, 2008. On September 10, 2008, the circuit court entered an order revoking Boles’s probation. That order stated, in its entirety:

“THIS CASE is before the Court on the State’s Motion to Revoke the Defendant’s probation. According to the Probation Officer’s report, the Defendant is in violation of the terms of his probation by having tested positive to drugs on a drug screen and by failing to avoid persons or places of harmful conduct or character. Accordingly, his probation is revoked, and he is ORDERED to serve the sentence previously imposed in the custody of the Commissioner of the Department of Corrections.”

This appeal followed.

On appeal, Boles contends that the circuit court’s revocation of his probation should be reversed because, (1) the State he says, failed to present sufficient evidence to reasonably satisfy the circuit court that Boles violated the terms of his probation, and (2) the circuit court’s order revoking his probation was deficient because, he says, it did not contain a statement of the specific evidence the court relied on in revoking his probation.

The record establishes that on June 5, 2008, Eric Stallings, a member of the Drug Task Force in the Fourth Judicial Circuit, executed a search warrant on Boles’s residence. Stallings testified that before obtaining the search warrant, he or one of his coworkers had, on three separate occasions over the course of two weeks, made controlled buys of crack cocaine out of Boles’s residence. According to Stallings, Boles, Boles’s wife, and Boles’s daughter were present in the residence when the drugs were purchased. Stallings testified that during a search of Boles’s residence, $2,500 in currency — $80 of which was the “buy money” — was discovered in the residence. Stallings testified that among the currency found in a basket in the hallway that Boles claimed belonged solely to him was $40 of “buy money.” Stallings testified that during the search of the residence, he also discovered a small bag of crack cocaine on top of the dresser in Boles and his wife’s bedroom. According to Stallings, some pieces of crack cocaine were also loose on top of the dresser.

Boles’s wife and daughter were charged with unlawfully distributing a controlled substance. Boles denied any knowledge of his wife or daughter’s selling drugs out of the residence he shared with them. When asked about his presence during the sale of drugs out of the residence, Boles testified that he had not seen anyone come in his house to purchase drugs. The record indicates that the trial judge did not believe Boles’s statements.

Nathan Bridges, Boles’s supervising probation officer, testified that it is a violation of Boles’s probation to be in the vicinity of or around individuals who are involved in drugs.

Contrary to Boles’s assertion on appeal, the evidence presented at the probation-revocation hearing was sufficient to support the revocation of Boles’s probation. The evidence established that crack cocaine was in plain view in the bedroom Boles shared with his wife. Further, Boles, in violation of the terms of his probation, lived in the same house as his wife and daughter, who were both arrested for unlawfully distributing a controlled substance. See Heyward v. State, 583 So.2d 1352 (Ala.Crim.App.1991). Accordingly, we affirm as to this issue.

Regarding the adequacy of the circuit court’s order revoking Boles’s probation, Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, “[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.” In McCoo v. State, 921 So.2d 450 (Ala.2005), the Alabama Supreme Court held that this court could

“examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [U.S. v.] Copeland, 20 F.3d [412, 414 (11th Cir.1994) ].”

McCoo, 921 So.2d at 462. The Court, however, noted that its holding did not “diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.” McCoo, 921 So.2d at 462.

In the instant case, the circuit court’s order states the reasons it is revoking Boles’s probation. However, the circuit court’s probation-revocation order does not include a statement of the specific evidence the court relied on in revoking Boles’s probation. Further, the transcript of the probation-revocation hearing does not contain a statement by the trial judge regarding the evidence he relied upon and the reasons for revoking Boles’s probation. Thus, the order was insufficient to comply with Rule 27.6(f), Ala. R.Crim. P. See Ex parte Garlington, 998 So.2d 458 (Ala.2008).

Although the transcript of the probation-revocation hearing clearly established that the State presented sufficient evidence from which the court could be reasonably satisfied that Boles had violated the conditions of his probation and remand is not in the interest of judicial economy, we nevertheless have no choice but to remand this case for a new revocation order. See Smith v. State, 857 So.2d 838 (Ala.Crim.App.2002)(remanding case because probation-revocation order properly stated reasons for revoking probation but failed to state the evidence relied on in revoking probation).

Based on the foregoing, we remand this cause for the circuit court to enter a new order reflecting the specific evidence relied upon in revoking Boles’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH and WINDOM, JJ., concur.

       Note from the reporter of decisions: On May 22, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On June 5, 2009, that court denied rehearing, without opinion. On September 11, 2009, the Supreme Court denied certiorari review, without opinion (1081178).


author: PER CURIAM.

text:
    Michael J. CELESTE, Jr., etc., Petitioner, v. Lindsay KERNS, et al., Respondents.
    No. SC08-1926.
    Supreme Court of Florida.
    Feb. 26, 2009.
    Kenneth B. Schwartz, West Palm Beach, FL, for Petitioner.
    Howard L. Wander of Kelley, Kronen-berg, Gilmartin, Fichtel, and Wander, Greenacres, FL, for Respondent.
   PER CURIAM.

We have for review Celeste v. Kerns, 990 So.2d 9 (Fla. 1st DCA 2008), in which the First District Court of Appeal cited as authority its decision Lowry v. Central Leasing Management, Inc., 988 So.2d 1113 (Fla. 1st DCA 2008), denying rehearing of 18 So.3d 550 (Fla. 1st DCA 2008), quashed, Lowry v. Central Leasing Management, Inc., 3 So.3d 1189 (Fla., 2009). By the time the First District’s Celeste decision became final on denial of rehearing, its Lowry decision was pending review in this Court. We have jurisdiction. See art. Y, § (3)(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

As we had done in Lownj, we stayed proceedings in this case pending our disposition of Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008). When our decision in Murray became final, we issued an order directing respondents in the present case to show cause why we should not accept jurisdiction, summarily quash the decision being reviewed, and remand for reconsideration in light of our decision in Murray. Upon consideration of respondents’ response and petitioner’s reply thereto, we have determined to so proceed.

We thus grant the petition for review in this case, quash the decision below, and remand for reconsideration upon application of our decision in Murray. Petitioner’s pending motion to lift stay is accordingly denied as moot.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.


text:
    In re AMENDMENTS TO THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS.
    No. SC09-1384.
    Supreme Court of Florida.
    April 1, 2010.
    Judge William D. Palmer, Chair, Supreme Court Committee on Alternative Dispute Resolution Rules and Policy, Fifth District Court of Appeal, Daytona Beach, FL, and Thomas H. Bateman, III, Acting Chair, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (Committee) has submitted proposed amendments to Florida Rule for Certified and Court-Appointed Mediators 10.610. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also § 44.106, Fla. Stat. (2009).

BACKGROUND

The Committee has undertaken a comprehensive review and revision of the rules governing mediator advertising and marketing practices. In part, this review is in response to a letter from this Court, dated February 10, 2009, requesting that the Committee study whether the Florida Rules for Certified and Court Appointed Mediators (mediator rules) should be amended to preclude retired judges from using the title “judge” in letterhead, pleadings, advertising, business cards, and other materials in connection with their mediation services. The Court also separately directed The Florida Bar to study the issue as it relates to retired judges who practice law; however, the Committee was specifically asked to consider the matter in light of the fact that membership in The Florida Bar is not a requirement for any area of mediator certification.

As a result of its review, the Committee has proposed amendments to rule 10.610, as well as a new Committee Note. The Court published the proposed amendments for comment, but received none. After considering the Committee’s proposal, we adopt the amendments as proposed; however, we replace the Committee Note with our slightly revised Commentary.

AMENDMENTS

In order to reflect the expanded content of rule 10.610, the title is changed from “Advertising” to “Marketing Practices.” The rule itself, as amended, includes six new subdivisions. Subdivision (a) incorporates text from the current rule with only minor revisions. This subdivision generally precludes the use of any false or misleading marketing practices. Subdivision (b) prohibits a mediator from engaging in any marketing practice that identifies the mediator as “Supreme Court Certified,” unless such practice also identifies one or more specific areas in which the mediator is certified. Similarly, under subdivision (c), mediators are prohibited from engaging in a marketing practice that advertises the mediator as “certified,” unless the mediator obtained such certification through successful completion of an established certification process and the advertisement clearly identifies the entity issuing the certification. Subdivision (d) provides that advertising or marketing materials will be deemed “misleading” if the mediator states or implies that prior adjudicative experience makes one a better or more-qualified mediator. Subdivision (e), like subdivision (a), incorporates language taken without change from the existing rule. It states that mediators shall be prohibited from engaging in marketing practices that promise clients specific results or outcomes. Finally, subdivision (f) precludes a mediator from engaging in any other marketing practice that “diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system.”

The Committee also offers a new Committee Note to the rule, which we have replaced with revised Commentary. The Commentary explains that a former judge serving as a mediator must not use the prestige of the judicial office to advance his or her private interests. The mediator may not appear in judicial robes in an advertisement for his or her mediation services; the mediator also may not use the title “judge” with or without modifiers to the mediator’s name in any advertisement. Indeed, the use of the title judge in any marketing practice, including, but not limited to, letterhead and business cards, is inappropriate. However, an accurate representation of the mediator’s judicial experience in references to background and experience in bios and resumés would not be inappropriate.

Finally, we note that nothing in the Court’s amendment to rule 10.610 is intended to modify the requirements for advertising imposed in Canon 5 F of the Code of Judicial Conduct, which currently prohibits Senior Judges from advertising, soliciting business, or participating in “any other activity that directly or indirectly promotes his or her mediation services,” except as allowed in that section. See Fla.Code of Jud. Conduct, Canon 5 F(2).

CONCLUSION

Accordingly, we amend Florida Rule for Certified and Court Appointed Mediators 10.610 as reflected in the Appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The Commentary is offered for explanation only and is not adopted as an official part of the rules. These amendments shall become effective immediately upon the release of this opinion.

Finally, the Court thanks the Committee for its continued dedication in advising the Court on alternative dispute resolution policies and procedures. We are especially grateful to the Committee for its counsel in this case and for assisting the Court in further refining Florida’s successful mediation system.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

Rule 10.610. Advertising — Marketing Practices

(a) False or Misleading Marketing Practices. A mediator shall not engage in any marketing practices, including advertising, which contains false or misleading information. A mediator shall ensure that any advertisements of marketing of the mediator’s qualifications, services to be rendered, or the mediation process are is accurate and honest.

(b) Supreme Court Certification. Any marketing practice in which a mediator indicates that such mediator is “Florida Supreme Court certified” is misleading unless it also identifies at least one area of certification in which the mediator is certified.

(c) Other Certifications. Any marketing publication that generally refers to a mediator being “certified” is misleading unless the advertising mediator has successfully completed an established process for certifying mediators that involves actual instruction rather than the mere payment of a fee. Use of the term “certified” in advertising is also misleading unless the mediator identifies the entity issuing the referenced certification and the area or field of certification earned, if applicable.

(d) Prior Adjudicative Experience. Any marketing practice is misleading if the mediator states-or implies that prior adjudicative experience, including, but not limited to, service as a judge, magistrate, or administrative hearing officer, makes one a better or more qualified mediator.

(e) Prohibited Claims or Promises. A mediator shall not make claims of achieving specific outcomes or promises implying favoritism for the purpose of obtaining business.

(f) Additional Prohibited Marketing Practices. A mediator shall not engage in any marketing practice that diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system.

Commentary

2010 Revision. Areas of certification in subdivision (b) include county, family, circuit, dependency and other Supreme Court certifications.

The roles of a mediator and an adjudicator are fundamentally distinct. The integrity of the judicial system may be impugned when the prestige of the .judicial office is used for commercial purposes. When engaging in any mediation marketing practice, a former adjudicative officer should not lend the prestige of the judicial office to advance private interests in a manner inconsistent with this rule. For example, the depiction of a mediator in judicial robes or use of the word “judge” with or without modifiers to the mediator’s name would be inappropriate. However, an accurate representation of the mediator’s judicial experience would not be inappropriate.

      . See In re Petition of the Alternative Dispute Resolution Rules & Policy Committee on Amendments to Fla. Rules for Certified & Court-Appointed Mediators, 969 So.2d 1003 (Fla.2007).


text:
    Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
    No. SC07-678.
    Supreme Court of Florida.
    April 8, 2010.

      Frank J. Tassone, Jr., and Rick A. Sich-ta of Tassone and Sichta, LLC., Jacksonville, FL, for Appellant.
    Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Marshall Lee Gore, a prisoner under sentence of death, appeals the circuit court’s order denying his motion for post-conviction DNA testing, which was filed pursuant to Florida Rule of Criminal Procedure 3.853. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution.

FACTS

The facts of the case are set forth in this Court’s 1992 opinion affirming Gore’s convictions and sentence:

Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark’s car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend’s home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. . The following day Roark’s grandmother reported her missing. She had been expected home by 7 a.m. that morning.
Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark’s Mustang after it was abandoned in a two-car accident. Gore’s fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami.
On April 2, 1988, the skeletonized remains of Roark’s body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death. The body could have been there anywhere from two weeks to six months prior to discovery. The forensic pathologist who testified for the State concluded that the cause of death was a homicide, given the situation in which the body was found and the fact that the neck area of the body was completely missing. The pathologist explained that this was probably due to some injury to the neck, such as a stab wound or strangulation trauma, which provided a favorable environment for insects to begin the deterioration process.

Gore v. State, 599 So.2d 978, 980 (Fla. 1992). In Gore’s postconviction case, this Court summarized the following additional relevant facts:

In addition to this evidence, the State introduced the testimony of two other witnesses. Specifically, Lisa Ingram testified that she “was riding in a car with Gore on February 19 when she saw a woman’s purse in the back seat. She testified that Gore stated that the purse belonged to ‘a girl that he had killed last night.’ ” [Gore, 599 So.2d] at 983. We concluded on appeal that “this testimony was admissible as an admission with regard to the Roark homicide.” Id. Further, the State presented the collateral crime testimony of another victim, Tina Corolis:
The testimony of Tina Corolis was admitted as evidence of a collateral crime. Corolis was a casual acquaintance of Gore’s, whom she knew as “Tony.” In March of 1988, Gore called Corolis at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the car, and drove to a partially wooded dumping area off a dirt road. He put the knife to Corolis’ stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms, legs, and buttocks. Shortly thereafter Gore pawned several items of Corolis’ jewelry and then proceeded to Kentucky in her car.
Id. We concluded on direct appeal that the “cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide.” Id. at 984. The jury found Gore guilty of first-degree murder, kidnapping, and robbery. See id. at 980.
The jury recommended a sentence of death by a vote of eleven to one, and the trial court followed this recommendation after finding the following aggravating circumstances: (1) Gore had previously been convicted of other violent felonies; (2) the murder was committed while Gore was engaged in a kidnapping; (8) the murder was committed for financial gain; and (4) the murder was cold, calculated, and premeditated. See id,, at 986. The judge concluded that Gore’s poor childhood and antisocial personality were insufficient mitigation to outweigh the aggravating circumstances. See id.

Gore v. State, 846 So.2d 461, 464-65 (Fla. 2003). This Court affirmed Gore’s conviction and sentence on direct appeal. Gore v. State, 599 So.2d 978 (Fla.1992). The Court also affirmed the trial court’s order denying Gore’s motion for postconviction relief as well as Gore’s habeas corpus petition filed with this Court. Gore v. State, 846 So.2d 461 (Fla.2003).

Gore subsequently filed a pro se motion entitled “Innocent Defendant’s Motion for Postconviction DNA Testing Pursuant to F.R.C.P. Rule 3.853.” In his motion, Gore sought DNA testing of a variety of items collected in connection with the murder investigation. Additionally, Gore appeared to request DNA analysis of a pair of bloody pants collected from the investigation of another case in which Gore was convicted of murder — the Novick case. Gore also sought to have DNA samples collected from Tina Corolis and David Res-trepo.

The trial court summarily denied Gore’s motion as facially insufficient, finding as follows:

The Defendant seeks to have DNA tests run on evidence that was collected near the victim. It should be noted that the victim was buried under a layer of leaves at an unauthorized trash dump in a rural part of Columbia County. The Defendant alleges, that because there is no physical evidence that ties him to the victim, crime scene, or county, DNA tests run on the evidence cited will reveal that he is innocent.
The Defendant is incorrect in this assertion. The identity of the perpetrator of this crime is, was, and can be established without any direct physical evidence. Some of the means of identifying the Defendant are: the Defendant was the last person seen with the victim, the Defendant was in possession of the victims [sic] car (in which he was the last person seen with the victim), and the Defendant pawned personal items of the victims.
Thus, the statutory requirement of a question of identity has not been met, and the Rule 3.853 motion is facially insufficient.

State v. Gore, No. 88-607-CF at 1 (Fla.3d Cir. order dated July 11, 2006). Gore now asserts that the trial court erred in denying his motion on the grounds that it was facially invalid. As explained below, we affirm the trial court’s denial of Gore’s motion for postconviction DNA testing.

ANALYSIS

Gore’s Request to Conduct DNA Testing on Items Collected During the Investigation of This Case

Gore seeks to have DNA testing conducted on items collected during the investigation of this case, asserting that the items were collected from either the vicinity of the victim’s body or from the victim’s vehicle, and contends that the trial court erred in denying his motion as facially insufficient.

The clear requirement of the provisions of section 3.853 is that

a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.

Hitchcock v. State, 866 So.2d 23, 27 (Fla. 2004). This Court has previously explained that “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Lott v. State, 931 So.2d 807, 820 (Fla.2006) (emphasis added) (quoting Robinson v. State, 865 So.2d 1259, 1265 (Fla.2004)). “The burden is on the movant to ‘demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.’ ” Van Poyck v. State, 908 So.2d 326, 329 (Fla.2005) (quoting Hitchcock, 866 So.2d at 27). This Court has rejected claims where the defendant was “merely speculating” and has “repeatedly cautioned that ‘[r]ule 3.853 is not intended to be a fishing expedition.’ ” Lott, 931 So.2d at 820-21 (quoting Cole v. State, 895 So.2d 398, 403 (Fla.2004)). Gore has not met his burden and, accordingly, we affirm the trial court’s denial of DNA testing on the items collected during the investigation of this case.

Gore seeks DNA testing of the following items: (1) earrings found near the victim; (2) a shoe string found on the victim’s wrists; (3) socks; (4) a pink shirt; (5) white bikini panties; (6) a panty shield found in two pieces; (7) an earring taken from the victim’s vehicle; (8) a multicolored pillow taken from the victim’s vehicle; (9) a grey shirt found in a brown box; (10) multi-colored shorts found in a brown box; (11) a blood sample taken from the map light of the victim’s vehicle; (12) Fruit of the Loom underwear and one pair of socks; (13) a curling iron and hair brush belonging to the victim; (14) debris from the underwear and socks; (15) debris from the panties and panty shield; (16) contact lenses found near the body of the victim; (17) an empty Marlboro brand cigarette package; (18) three empty beer bottles; (19) fingernails collected near the victim’s body; and (20) strands of hair found in the victim’s right hand.

Although Gore was specific as to the list of the items that he requests be tested, a closer examination shows that DNA testing of the items would not exonerate him of the murder. Some of the items were found at the crime scene, but not in close proximity to the body, which was located in a wooded area used as an unauthorized dumping ground for household garbage and refuse. This area was near a road that, according to trial testimony, was strewn with household refuse from beginning to end. For example, Gore requests DNA testing on a Marlboro brand cigarette package, which was found approximately fifty yards from the body. He also requests DNA testing on “Fruit of the Loom underwear,” a pair of socks, and debris from the underwear and socks— these items were located near the entrance to the road, over one hundred yards away from the body.

From a review of the trial record, other items that Gore requests be tested appear to have been located in closer proximity to the body. These items include earrings that were found underneath the victim’s head, socks, a pink shirt, panties, contact lenses, empty beer bottles, fingernails, a panty shield found in two pieces, and debris collected from the panties and panty shield. However, Gore has not earned his “burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Lott, 931 So.2d at 820 (emphasis added) (quoting Robinson, 865 So.2d at 1265). Further, this area was used as an unauthorized dumping ground for household garbage and refuse and, because the body was not found until weeks or months after the murder, the chance of contamination is increased.

Another category of items at the crime scene — strands of hair found in the victim’s right hand and a shoe string found knotted around the victim’s left wrist— could likely have been related to the murder but were never used to inculpate Gore and Gore has not shown how the DNA testing of these items could be used to exonerate him of the murder.

Gore also seeks to have DNA testing performed on items found in the victim’s vehicle. These items are earrings, a multicolored pillow, a shirt, shorts, and a “blood sample” from the map light of the vehicle. The shirt had blood on the left sleeve that was consistent with Gore’s blood type and enzyme type — a type that was found in approximately sixteen percent of the population. The shorts and map light tested positive for presumptive presence of blood, but the analyst testifying at trial was not able to determine more than that.

Finally, two of the items in Gore’s list are completely unconnected to the crime scene or the victim’s vehicle — a curling iron and hair brush belonging to the victim. These items were provided to the investigators in this case by Tennessee police to be used as a standard sample of the victim’s hair for comparison purposes. It is not clear whether Gore is requesting DNA testing on these items in order to provide a comparison sample of the victim’s DNA or whether Gore believes that these items were located at the crime scene or in the victim’s vehicle.

Gore asserts that because the State collected all of the above items at the time of the murder investigation, they must have some relevance to the murder. However, none of the items were ever used by the State to inculpate Gore, with the exception of the shirt found in the victim’s vehicle that had blood matching Gore’s blood type and enzyme type. Importantly, there is absolutely no indication that any of the items could be used to exonerate Gore. Gore asserts that the testing of the items will serve to establish that someone other than Gore committed the murder by either establishing the true identity of the actual killer or exclude Gore as the perpetrator of the murder. Even if the DNA analysis indicates a source other than the victim or Gore, “there is no reasonable probability that [he] would have been acquitted or received a life sentence,” Tompkins v. State, 872 So.2d 230, 243 (Fla.2003), as the DNA very likely could have come from someone other than the murderer given the location of the items in either a trash dump or in the victim’s vehicle. See Lott, 931 So.2d at 820-21.

Gore asserted in his motion filed with the trial court that DNA testing will allow the Florida Department of Law Enforcement to “compare those profiles to the profiles of known perverts.” This is exactly the sort of speculation and fishing expedition for which rule 3.853 was not intended. See Lott, 931 So.2d at 820-21.

Further, the absence of Gore’s DNA on the listed items collected from the crime scene or the victim’s vehicle would not exonerate him or mitigate his sentence because “such results would not prove that [he] was neither the perpetrator nor present at the crime scene.” Overton v. State, 976 So.2d 536, 570 (Fla.2007). Moreover, the evidence presented at trial clearly connected Gore to the murder. He was the person last seen with the victim by any credible witness testifying at trial. Gore, 599 So.2d at 980, 984. Within twenty-four hours of the victim’s disappearance, Gore was seen in Florida in possession of her vehicle. See id. He received a traffic ticket while driving the victim’s vehicle in Florida, and his fingerprints were found in the victim’s vehicle, which was abandoned after an accident. Id. He also had someone pawn the victim’s jewelry. Id. Finally, he admitted to Lisa Ingram that a purse in the victim’s vehicle belonged to a girl he had killed “last night or a few nights ago.” Id. at 983.

In sum, Gore has not carried his burden to “explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate” him or mitigate his sentence in this case. See Lott, 931 So.2d at 820 (quoting Robinson, 865 So.2d at 1265). Under the facts of this case, we conclude that he cannot carry this burden with respect to these items.

Gore’s Request to DNA Test an Item Collected During the Novick Case Investigation and to Have DNA Samples Collected from Restrepo and Corolis

Gore also claims that he is entitled to have an item from another crime scene investigation tested for DNA and that he is entitled to have the court order DNA samples to be collected from Restrepo and Corolis so that he may collaterally attack Corolis’s testimony in the instant case. Specifically, he contends that Corolis’s DNA will be found on a pair of bloody pants taken from the Novick vehicle during the investigation of the Novick murder case. Since Corolis testified in the instant case that she had met Gore only briefly prior to him assaulting her and that she did not know Novick, Gore asserts that the presence of her DNA on the pants would demonstrate that her testimony in this regard was false. As to Restrepo, Gore has not made an argument for how obtaining Restrepo’s DNA would allow Gore to attack his conviction in the instant case.

Gore claims that the collection of this DNA evidence would allow him to “attack” his conviction in all three eases by undermining Corolis’s testimony. Without deciding whether Gore would even be entitled to testing of these items under the rule, we conclude that he cannot demonstrate how the DNA testing he requests would exonerate him in this case or mitigate his sentence in this case.

CONCLUSION

For all of these reasons, we affirm the circuit court’s order denying Gore’s rule 3.853 motion for DNA testing.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

      . In a separate case, Gore was also convicted of the March 1988 first-degree murder and armed robbery of Robyn Novick in Dade County and sentenced to death. The convictions and death sentence were affirmed on appeal. See Gore v. State, 784 So.2d 418 (Fla.2001). We also affirmed the denial of postconviction relief. Gore v. State, 24 So.3d 1 (Fla.2009).

      . David Restrepo was a witness in the Novick murder case. He testified that Gore arrived at his home, driving a Corvette (that was later determined to belong to Novick). While Res-trepo was riding in Novick's vehicle with Gore, Gore lost control of the vehicle, wrecked it, and abandoned it. Gore, 784 So.2d at 423-24.

      . The hair analyst who testified at trial asserted that she decided that the hairs were too damaged to be used as a hair standard for the victim. Accordingly, the analyst was not able to rule out the victim as the source of some of the hairs found at the scene.

      . Gore does not assert that he is seeking access to DNA samples previously collected from Restrepo and Corolis in any of his three cases. Rather, he seeks to have the court order the collection of DNA samples from these two individuals.

      . In fact, since Restrepo was in Novick’s vehicle with Gore and they were both injured during the crash, one could expect to find his blood on an item recovered from the vehicle after the crash.


text:
    James Lee MINNICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3934.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2008.
   BY ORDER OF THE COURT.

The Appellant’s Motion to Dismiss Appeal and Amended Motion to Dismiss Pending Appeal are granted. The opinion dated October 22, 2008, is withdrawn, and the appeal is dismissed.

No further motions will be entertained in this proceeding.


author: FARMER, J. GROSS, C.J.,

text:
    Norman PICKED, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-240.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.
    Rehearing Denied May 12, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In the world of trial evidence, DNA may well be the whole megillah. It is the single, most formidable evidence in proving many sexual offenses. Because of its scientific reliability, it is often regarded as conclusive. Once inculpatory DNA evidence is well and truly laid before the jury, a guilty verdict is all but a downhill slide on a glacier.

The admission of DNA evidence has two aspects. It demands a scientific foundation of both molecular-biochemical and statistical convention: first, a sample specimen related to a crime must be shown to match the DNA of an identified person (viz., defendant); second, expert statistical testimony must quantify and explain the odds of someone other than defendant having that same DNA. When both parts of the foundation have been shown to point to defendant, the effect can be overpowering. Therefore the structure of both the State’s presentation and the defense’s right to attack its forensic foundation, is vital. Adequate time for the defense to prepare is indispensable.

Defendant was charged "with capital sexual battery. After an extensive pretrial period, the State disclosed its expert for the second aspect of the DNA evidence only on the first day of trial. In a Richardson hearing the State attempted to justify its massively overdue disclosure by arguing that its population geneticist is its usual witness in such cases, indeed the only one the State has ever called for this purpose. The expert witness told the court he had testified in as many as 150 trials in Broward County. Defense counsel responded that she had never heard of him before the disclosure, did not know he would be called as a State’s witness, and thus had no opportunity to take his deposition to prepare for trial. Her testimony was not rebutted.

In denying the motion for the continuance, the trial court found this an inadvertent discovery violation. The court also found defense counsel had been furnished reports regarding the DNA analysis. Finally, the trial judge stressed that defense counsel had not even attempted to depose the witness in the three days of trial since disclosure.

The witness testified. Defendant was convicted. We have the appeal.

The issue is the denial of the continuance to afford a reasonable time for the defense to prepare for this crucial witness. It is significant that this particular assistant public defender had never before faced a DNA statistical expert in a courtroom. The greater experience of other assistant public defenders in the same county is irrelevant to the circumstances she was confronting for the first time. She was to be given — at best — the nights following three long days of trial to prepare to counterattack the most critical expert witness of all. After trial begins in a life felony case, there is no reasonable chance for defense counsel to prepare to meet and counter a newly disclosed expert as important as this one.

To be sure, the State had months to prepare its own DNA statistical expert. Balanced against the several months afforded the State, by the trial judge’s reckoning the defense could plausibly be given only a handful of hours at the end of three grueling days in court to prepare to test the foundational reliability of the DNA. Rushed hotel depositions in the nighttime by exhausted defense counsel cannot possibly balance the scales of preparation. In our judgment, the circumstances required no further showing by defense counsel as to why she needed a continuance or what she might have accomplished thereby. The lack of disclosure until trial had already begun, and her lack of sophistication in the subject, irrefutably set up an overriding necessity.

Disclosing a population geneticist on the first day of trial is in the nature of a structural delict. The effect is the same whether intentional or negligent. It sends defense counsel into battle without arms. It should not matter that the State’s failure is thought inadvertent.

Nor is it fair to place a burden on defense counsel to anticipate disclosure and somehow prepare for it. It was the State’s burden to disclose. In civil trials, the failure of the other side to disclose an expert witness before trial is usually understood to authorize opposing counsel to prepare for a trial without such evidence. There is no reason why it should not be thus for criminal defense counsel.

If the State is to send an accused to prison for the rest of his life, the least it can do is give him and his lawyer fair notice of all particulars of the DNA evidence it plans to present. As a matter of elemental justice we must recognize that the nature of DNA makes any failure to disclose such evidence well before trial strikingly consequential. Hence we do not think the trial judge’s finding of no prejudice is supported by the record. Defendant could hardly have been more unfairly prejudiced.

Reversed for a new trial.

POLEN, J., concurs.

GROSS, C.J., dissents with opinion.

GROSS, C.J.,

dissenting.

The majority has applied the wrong standard of review to this case, which involves the state’s disclosure of a witness on the first day of trial, before the jury was selected. The majority has incorrectly applied the concept of “prejudice” that is central to the analysis required by Richardson v. State, 246 So.2d 771 (Fla.1971). The majority fails to grasp the type of testimony the late disclosed witness was to give. The majority fails to appreciate the extent of the state’s disclosure of information, which the trial judge properly took into account in her Richardson ruling. For these reasons, I dissent.

The state first disclosed the name of Dr. Martin Tracey, a population geneticist, on the first day of trial prior to jury selection, Monday, December 11, 2006. The state called Tracey as a witness on Thursday. It was only then that the defense raised a Richardson objection to his testimony and moved for a continuance. The trial judge conducted a full Richardson hearing and her extensive ruling fills eight pages of the trial transcript. She overruled the objection and denied the motion for continuance.

As set forth by the supreme court in Brim v. State, 695 So.2d 268, 269 (Fla. 1997), the DNA testing process consists of two separate steps. The first step uses principles of molecular biology and chemistry to determine whether two DNA samples match or look the same. Id. “The second step relies on principles of statistics and population genetics to give statistical significance to the DNA match, by indicating the statistical frequency with which such matches might occur in the population.” Arnold v. State, 807 So.2d 136, 140 (Fla. 4th DCA 2002) (citing Brim, 695 So.2d at 269-70).

Tracey’s testimony concerned the second step of the DNA testing process. Significantly, the information he conveyed to the jury was provided to the defense months before. Tracey explained that given the match between the defendant’s DNA profile and the profile obtained from the evidence (testified to by another witness), the chances were “one in 58 trillion” that someone else in the population other than the defendant had that same profile. This exact information is contained in Table 2 of the Bode lab reports that the state gave to defense counsel in January and July 2006. These reports contained the same charts that Tracey referenced and explained in his testimony. The crux of his testimony was thus disclosed over 9 months before trial.

“During a Richardson hearing, the trial court must inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” State v. Evans, 770 So.2d 1174, 1183 (Fla.2000). In the context of a Richardson violation, “the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant.” State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995).

In this case, the trial court held a full Richardson hearing and decided that the defense was not procedurally prejudiced by the disclosure of Tracey’s name on the first day of trial. When the trial court has held a Richardson hearing, its decision is subject to reversal only upon a showing that it abused its discretion. See Gethers v. State, 620 So.2d 201, 202 (Fla. 4th DCA 1993); Banda v. State, 536 So.2d 221, 223 (Fla.1988); Michaels v. State, 505 So.2d 694 (Fla. 4th DCA 1987); Whites v. State, 730 So.2d 762, 764 (Fla. 5th DCA 1999); Smith v. State, 499 So.2d 912 (Fla. 1st DCA 1986). “Discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Cox v. State, 819 So.2d 705, 713 (Fla.2002) (quoting Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (Huff v. State, 569 So.2d 1247, 1249 (Fla.1990))).

Procedural prejudice resulting from a Richardson violation demonstrates three characteristics not present in this case. First, the discovery violation injects facts into the case that have not been previously disclosed. Second, the undisclosed information is case specific, not information generally available. Third, knowledge of the undisclosed information would have altered the way the defense prepared for trial.

For example, in Stem v. State, 739 So.2d 1203 (Fla. 4th DCA 1999), the defendant was charged with selling sunglasses bearing counterfeit designer trademarks. The state timely disclosed copies of Fendi and Armani trademark registrations, but failed to produce certificates of authenticity for the registrations until the day of trial. We found no abuse of discretion in the trial court’s finding that the discovery violation was not “prejudicial to the preparation” of the defense, noting that the “substantive portion of the trademark registrations had been provided” to the defense prior to trial. Id. at 1206. The certificates were not case specific; a standard form of this nature would accompany any valid trademark registration. Most importantly, there was no indication of how the defense would have prepared differently had the actual document, rather than its substance, been timely disclosed. See also Gethers v. State, 620 So.2d 201 (Fla. 4th DCA 1993) (affirming order finding no prejudice where defendant’s late disclosed statement “supported” the strategy of defense).

On the other hand, cases where courts have reversed a trial judge’s finding of no procedural prejudice involve the nondisclosure of case specific evidence which would have changed the defendant’s strategy or theory of defense at trial.

Thus, in McDowell v. State, 903 So.2d 290 (Fla. 4th DCA 2005), the charge of possession of an unauthorized short-barreled shotgun was based on the defendant’s constructive possession of a residence where the shotgun was found. The state failed to disclose the defendant’s statement to a police officer that he lived at that address. Aside from this undisclosed statement, there was no evidence that the defendant lived at the residence. We reversed the trial judge’s finding of no procedural prejudice, observing that had defense counsel been aware of the defendant’s statement, he was “unlikely to have pursued the adopted strategy that the ‘defendant didn’t live in the apartment where they found the shotgun.’ ” Id. at 292.

Similarly, in Hatcher v. State, 568 So.2d 472 (Fla. 1st DCA 1990), the defendant was charged with leaving the scene of an accident. Initially, the state contended that the defendant had to have been aware of the accident merely “by virtue of how it occurred.” Id. at 474. Undisclosed witnesses testified at trial that they expressly told the defendant that he had caused an accident. The first district held that procedural prejudice to the defense was “inherent” where the state changed its “theory of the case after the defendant has testified.” Id. at 475.

The fifth district found procedural prejudice in a case where the defense did not learn of the existence of DNA evidence until the middle of trial. In Rojas v. State, 904 So.2d 598 (Fla. 5th DCA 2005), the defendant was charged with attempted robbery. His defense was to attack the eyewitness identification. Over objection, the state introduced an undisclosed DNA lab report indicating that DNA taken from hairs located on a mask found near the crime scene matched the defendant’s DNA. The fifth district reversed for a new trial, concluding that the defendant’s trial preparation or strategy would have been materially different had it known of the DNA evidence.

Here, the trial judge’s determination that the defense had not been procedurally prejudiced was entirely reasonable, so there was no abuse of discretion. None of the hallmarks of procedural prejudice were present. Tracey’s testimony did not inject new facts into the case; they had been disclosed for months. The statistical information was not case specific, but was generally applicable in all DNA cases. The defense never said how it would have changed its strategy or theory of defense had Tracey’s name been timely disclosed, instead of just the substance of his testimony.

The defense was aware of the substance of the testimony by July 2006 from the reports disclosed by the state. The statistical aspect of the DNA evidence had been available to the defense for months. Also, as the trial judge noted, Tracey was the only DNA statistical expert that the Bro-ward state attorney’s office had ever used. He had testified in as many as 150 trials in Broward County and the public defender’s office had participated in a majority of them. In another context, the supreme court has written that “a public defender’s office is the functional equivalent of a law firm.” Bowie v. State, 559 So.2d 1113, 1115 (Fla.1990). In the months before trial, lawyers in the same law firm can be expected to talk, so the defense lawyer had both the knowledge and the resources to anticipate and prepare for Tracey’s testimony.

Tracey’s testimony was not case specific. It was a necessary link in any DNA case that established the statistical probability that a particular sample of DNA would match anyone in the population other than the defendant. This testimony would be virtually the same in any case for any defendant whose DNA profile matched the evidence. Tracey’s testimony generally explained how these statistics are generated. For this, he referenced an FBI population database that is commonly used and publicly available on the internet. Although the defense had the necessary information to prepare for this aspect of the case, it did not do so.

By the time jury selection began on Monday, the trial judge had granted eleven continuances, nine of which were charged to the defense. Defense counsel did not move for a continuance on Richardson grounds on Monday, before the jury was sworn. She waited until Thursday, when every witness but Tracey had testified. She made no attempt to speak with Tracey or depose him on Monday, Tuesday, or Wednesday, when he would have been available.

Most significantly, the defense has never identified what it might have done differently had Tracey’s name been disclosed, instead of just the lab report. The initial brief states that the defendant “did not have the opportunity to ... develop impeachment and rebuttal testimony,” but does not say what the testimony is or how it could be accomplished. The brief was filed over two years after trial, which is certainly enough time to figure out what the “impeachment and rebuttal” testimony would be so that it could be specifically described. At trial, the defense attorney could not say what she would have done differently, even though she had known the substance of the testimony for months. Even her motion for new trial talks in generalities and not specifics.

It was thus well within the trial judge’s discretion to conclude that there was no procedural prejudice, that the defense would have done nothing differently had Tracey’s name been disclosed when the charges were filed. The defense had always faced “one in 58 trillion” odds with the DNA testimony and did nothing to try and change the equation. Rather, the defense chose to cast a hollow objection into the legal waters in the hope that a judge would bite. You never know.

      . See Brim v. State, 695 So.2d 268, 271 (Fla. 1997) ("The fact that a match is found in the first step of the DNA testing process may be 'meaningless' without qualitative or quantitative estimates demonstrating the significance of the match”).

      . Defendant: in custody January 2006; trial: December 11-15, 2006.

      . See Gran v. Branham, 626 So.2d 1059, 1061 (Fla. 4th DCA 1993) ("we strongly feel that once the trial starts the parties’ attorneys should be allowed to concentrate on the presentation of the evidence at hand. Neither side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party. Binger [v. King Pest Control, 401 So.2d 1310 (Fla. 1981)] certainly does not require the trial court to admit this testimony”).

      . See Grau, 626 So.2d at 1062 ("The wrongs of the attorney should not harm the innocent defendant who in good faith engaged in discovery and conducted the trial by the rules”).

      . Most cases that reverse for discovery violations do so because the trial judge has not conducted a full Richardson hearing, usually because the court erroneously found that no discovery violation had occurred. There is a difference between a procedural prejudice analysis in the context of a full Richardson hearing and deciding whether a discovery violation amounted to harmless error where there has not been a full Richardson hearing that considered the issue of procedural prejudice. As the supreme court wrote in Scipio v. State, 928 So.2d 1138, 1149 (Fla.2006):
      An analysis of procedural prejudice does not ask how the undisclosed piece of evidence affected the case as it was actually presented to the jury. Rather, it considers how the defense might have responded had it known about the undisclosed piece of evidence and contemplates the possibility that the defense could have acted to counter the harmful effects of the discovery violation. By contrast, an analysis of substantive prejudice would ask whether it was possible that the error affected the jury’s verdict. While this standard itself is a high one for the State to overcome, it is of an entirely different quality than a procedural prejudice analysis.

        Id. (citations omitted). These "deficient” Richardson hearing cases engage in a harmless error analysis — can it be said “beyond a reasonable doubt that the defendant was not procedurally prejudiced by the [discovery] violation.” Evans, 770 So.2d at 1183.

      . Dr. Tracey is a commonly used expert and his name frequently appears as an expert used in Florida cases. See, e.g., Owen v. State, 986 So.2d 534, 549 (Fla.2008); Kelley v. State, 974 So.2d 1047, 1050 (Fla.2007); Douglas v. State, 878 So.2d 1246, 1252 n. 4 (Fla.2004); Armstrong v. State, 862 So.2d 705, 712 (Fla. 2003); Yisrael v. State, 827 So.2d 1113, 1114 (Fla. 4th DCA 2002); Arnold v. State, 807 So.2d 136, 139 (Fla. 4th DCA 2002); Johnson v. State, 717 So.2d 1057, 1061 (Fla. 1st DCA 1998).


author: VAN NORTWICK, J.

text:
    Frank and Joyce ROSE, Appellants, v. Walter A. STEIGLEMAN, Esquire, Appellee.
    No. 1D09-1068.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.
    Rehearing Denied April 23, 2010.
    David H. Burns and David B. Switalski of Cox & Burns, P.A., Tallahassee, for Appellants.
    Walter A. Steigleman, Appellee.
   VAN NORTWICK, J.

Frank and Joyce Rose appeal a final judgment which denied relief on their complaint for breach of contract against their former attorney, Walter A. Steigleman, ap-pellee. Among other things, the Roses argue that the trial court erred in construing the terms of the parties’ representation agreement to authorize a contingent fee of 40 percent, rather than BB 1/3 percent, of the recovery in a personal injury action. We agree and reverse.

The facts of this case are not in dispute. The Roses were involved in a motor vehicle accident and retained Steigleman to represent them in the ensuing personal injury action. The Roses and Steigleman entered into a representation agreement which provided as follows concerning the contingent fees payable under the agreement-.

FEE:

As compensation for services, I agree to pay said attorney a contingent fee computed as follows: (1) 33 1/3% of any recovery up to $1 million through the time of filing of an answer or the demand for appointment of arbitrators; (b.) 40% of any recovery up to $1 million through the trial of the case; (c.) 30% of any recovery between $1-2 million; (d.) 20% of any recovery in excess of $2 million; (e) if all defendants admit liability at the time of filing an answer and request a trial only on damages; (I) 33 1/3% of any recovery up to $1 million through trial; (ii) 20% of any recovery between $1-2 million; (iii) 15% of any recovery in excess of $2 million; (f) an additional 5% of any recovery after notice of appeal is filed or post-judgment relief or action is required for recovery on the judgment.

In the personal injury action, Steigle-man filed a complaint on behalf of the Roses and engaged in protracted settlement negotiations with counsel for the defendants. The defendants in the personal injury action did not file an answer and Steigleman did not seek to compel the filing of an answer. Eventually, a settlement was reached, and the Roses recovered $287,770. Steigleman retained $115,108.00 as his attorney’s fee, which represented 40 per cent of the settlement proceeds.

Believing that Steigleman was entitled to retain only 33 1/3 per cent of the settlement recovery under the terms of the representation agreement, the Roses retained other counsel and brought suit against Steigleman raising claims of civil theft and breach of contract. The Roses voluntary dismissed the civil theft claim, and the remaining breach of contract claim was heard at a bench trial. After receiving a stipulation of evidence, the trial court entered a final judgment in favor of Steigle-man, construing the contract as authorizing a contingent fee of 40 percent of the settlement proceeds under the facts of this case. In pertinent part, the trial court found that “the language in the contract ‘through the time of filing of an Answer’ deals with a time frame and does not require the actual filing of an Answer to bring the 40% provision into effect.... ” Thus, the trial court found that Steigleman did not breach the contract.

A trial court’s interpretation of a contract is a matter of law and is thus subject to de novo review. Imagine Ins. Co., Ltd. v. State ex rel. Dept. of Financial Services, 999 So.2d 693 (Fla. 1st DCA 2008); Jenkins v. Eckerd Corp., 913 So.2d 43 (Fla. 1st DCA 2005). The determination of whether a contract, or a term therein, is ambiguous or not also presents a question of law subject to de novo review. See Imagine Ins. Co.; Strama v. Union Fid. Life Ins. Co., 793 So.2d 1129 (Fla. 1st DCA 2001). “(I]f the facts of the ease are not in dispute, the court will also be able to resolve the ambiguity as a matter of law.” Strama, 793 So.2d at 1132; see also Imagine Ins. Co. and Team Land Dev., Inc. v. Anzac Contractors, Inc., 811 So.2d 698 (Fla. 3d DCA 2002).

As noted, in the underlying personal injury case, no answer was filed in response to the Roses’ complaint. Steigle-man argues that he was entitled to retain a 40 percent fee because the time for filing an answer under the rules of civil procedure had expired by the time a settlement was reached and, alternatively, because he extended the opposing side an extension of time for filing an answer for so long as settlement negotiations continued. Stei-gleman asserts that a 40 percent contingency fee would be authorized under rule 4-1.5(f)(4)(B), Rules Regulating the Florida Bar, which governs contingency fee contracts, and that the subject contingency fee contract should be interpreted in accordance with the rule. Rule 4 — 1.5(f)(4)(B) provides in pertinent part:

(B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions:
(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards shall be presumed, unless rebutted, to be clearly excessive:
b. After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:
1. 40% of any recovery up to $1 million; plus
2. 30% of any portion of the recovery between $1 million and $2 million; plus
3. 20% of any portion of the recovery exceeding $2 million.

Rule 4-1.5(f)(4)(B), Florida Rules Regulating the Florida Bar (2003).

Thus, under this rule, a contingent fee agreement may provide for a contingent fee of 40 percent of any recovery if no answer is filed and the time period for filing an answer has expired. If the contract here had adopted the language of the rule, we would agree with Steigleman’s argument. The contract before us, however, differs from the rule. The representation agreement provides that Steigleman will be paid “33 1/3% of any recovery ... through the time of filing of an answer....” The agreement does not provide for the situation in which no answer is filed, but the time period for filing an answer has expired. Accordingly, under the unambiguous language of the contract, because no answer was filed, Steigleman’s fee was limited to 33 1/3 percent of the recovery. Thus, Steigleman, by retaining 40 percent of the settlement recovery, breached the terms of the representation agreement.

Accordingly, the final judgment under review is reversed, and the cause is remanded for entry of judgment in the Roses’ favor on their breach of contract claim. Because the Roses sought attorney’s fees, costs, prejudgment and post-judgment interest on their claim for breach of contract, on remand the trial court is permitted to take evidence on the extent of damages and the amount of fees, costs and interest, if any, owed by Steigle-man. Because of our holding on the contract claim, we do not reach the other issues raised on appeal.

REVERSED and REMANDED with instructions.

WOLF and ROBERTS, JJ., concur.


author: SALTER, J.

text:
    RAMLE INTERNATIONAL CORPORATION, Appellant, v. The GREENS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D08-2834.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Albert D. Rey, Miami; Raymond Carre-ro, for appellant.
    Javier Guadayol, for appellee.
    Before COPE, SHEPHERD, and SALTER, JJ.
   SALTER, J.

Ramie International Corporation appeals a circuit court order denying its motion for attorney’s fees as being untimely filed pursuant to Florida Rule of Civil Procedure 1.525.

On June 13, 2007, a final summary judgment was rendered in favor of Ramie against The Greens Condominium Association. As part of the judgment, the circuit court awarded Ramie attorney’s fees and costs and reserved jurisdiction to determine the amounts of those fees and costs. Eleven months later, on May 2, 2008, Ramie filed its motion to determine attorney’s fees and costs. The Association filed an opposing memorandum alleging that Ramie failed to file its motion within the thirty-day time limit set forth in Florida Rule of Civil Procedure 1.525. The trial court denied Ramie’s motion as untimely, and Ramie appealed. We reverse and remand for a determination of Ramie’s attorney’s fees and costs.

The Florida Supreme Court has recently held that “Florida Rule of Civil Procedure 1.525 does not apply when the trial court has determined entitlement to attorneys’ fees and costs in its final judgment, but reserves jurisdiction only to determine the amount in attorneys’ fees and costs that is owed.” Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 207 (Fla.2009); see also Chamizo v. Forman, 933 So.2d 1240, 1241 (Fla. 3d DCA 2006). In addressing the purposes behind Rule 1.525’s adoption, our Supreme Court stated:

Once the trial court determines that the prevailing party is entitled to attorneys’ fees and costs, the losing party is aware that it is required to pay the fees and costs. At that point the concerns of prejudice and unfair surprise to the losing party are eliminated, thus eliminating the need to apply the thirty-day time requirement under rule 1.525.

Amerus, 2 So.3d at 207.

In the instant ease, as in Amerus, the prevailing party’s entitlement to attorneys’ fees had already been determined, and the trial court merely reserved jurisdiction to determine the amounts. Although the eleven-month delay in this case exceeds the eight-month delay in Amerus, we do not believe that distinction makes a difference in the analysis or outcome.

Reversed and remanded.