Supreme Court of Florida
____________
No. SC12-2416
____________
SHANDALYN SANDERS, etc.,
Petitioner,
vs.
ERP OPERATING LIMITED PARTNERSHIP, etc.,
Respondent.
[February 12, 2015]
QUINCE, J.
Shandalyn Sanders seeks review of the decision of the Fourth District Court
of Appeal in ERP Operating Ltd. Partnership v. Sanders, 96 So. 3d 929 (Fla. 4th
DCA 2012), on the ground that it expressly and directly conflicts with this Court’s
decision in Cox v. St. Joseph’s Hospital, 71 So. 3d 795 (Fla. 2011), and the Third
District’s decision in Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98
(Fla. 3d DCA 1980),1 regarding when a defendant is entitled to a directed verdict in
1. We acknowledge that following this Court’s acceptance of jurisdiction
based on an alleged conflict with Cox, Sanders alleged express and direct conflict
with various Florida appellate court cases. However, we have determined that
many of those cases are factually distinguishable, and do not warrant discussion.
a negligence action. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For
the following reasons, we quash the decision of the Fourth District and remand for
proceedings not inconsistent with this decision.
FACTS AND PROCEDURAL HISTORY
In late 2004, two young adults moved into an apartment
complex marketed as a “gated community” with a gated front
entrance. Water surrounded approximately seventy percent of the
complex, and a wall or fence surrounded the remainder. The complex
had a policy of providing reasonable lighting, locks, and peepholes.
The apartments contained alarm systems, which the residents could
activate.
A year after they moved in, the victims were shot to death by
unknown assailants inside their apartment. Although there was no
sign of forced entry, an engagement ring, cash, credit cards, and a
computer modem were stolen from the apartment.
Evidence revealed that in the three years prior to the murders,
there were two criminal incidents where the gate had been broken and
perpetrators followed the residents onto the premises. One of these
incidents resulted in an armed robbery; the other resulted in an assault.
The entrance gate was broken for approximately two months prior to
the murders.
The defendant, a national company owning approximately one
hundred properties, owned the complex. It had a manual providing
that a notice to residents is recommended when “a significant crime”
occurs on the property, especially a violent crime or forced entry
burglary. The manual recommended that such notice be provided to
residents on the same day that management becomes aware of the
incident, and provided a form for such notices. No notices were sent
to the residents of the twenty criminal incidents (including seven
apartment burglaries, two robberies, and ten motor vehicle thefts) that
occurred in the three years prior to the murders.
-2-
The plaintiff, as personal representative of the decedents’
estate[s], filed a complaint against the defendant, alleging the
defendant’s negligence was a proximate cause of the deaths. The
complaint alleged the defendant did not maintain the premises in a
reasonably safe condition by failing to: (1) maintain the front gate; (2)
have adequate security; (3) prevent dangerous persons from gaining
access to the premises; and (4) protect and warn residents of
dangerous conditions and criminal acts.
During discovery, the defendant deposed the boyfriend of one
of the decedents. He testified that he was on the phone with the
decedent prior to eleven o’clock in the evening. The call ended when
the decedent told him that two identified people known to the
decedent were at the door. When the boyfriend called back, no one
answered.
The case proceeded to trial. The plaintiff moved in limine to
exclude the boyfriend’s statement about who was at the door on the
night of the murders. The plaintiff argued that the statement
constituted hearsay—in fact double hearsay—because the boyfriend
did not testify at trial. The defendant argued that the statements were
admissible as spontaneous statements. Alternatively, the statements
were admissible because they did not fall within the definition of
hearsay. The trial court ruled the statements inadmissible . . . .
....
Later in the trial, the plaintiff offered the testimony of a
criminology expert. He testified that most of the crimes at the
complex in the three years prior to the murders were opportunistic in
nature. Opportunistic crimes are those committed by perpetrators who
look for easy targets. He further testified that such precursor crimes
need to be monitored by the landowner because awareness is the
cornerstone of crime prevention. He also noted that the defendant’s
training video informed its personnel that they needed to minimize
such problems “through awareness.”
The expert noted that the training video also addressed the
importance of repairs to mechanical failures. Yet, the evidence
demonstrated the gate had been inoperable for four months during the
-3-
year of these murders. The expert testified that it appeared the
murders occurred in the course of another felony, such as a home
invasion—an opportunistic crime. However, the expert agreed that
there had never been a murder, shooting, or rape at the complex. The
expert acknowledged there was no way of knowing precisely how the
murders took place.
The defense expert, a security consultant, testified that the
murders were not foreseeable. Of the twenty crimes which occurred
on the premises in the three years leading up to the murders, none
were violent crimes nor predicted homicide.
The defense expert explained that crimes such as stabbings,
shootings, murders, or rapes constitute “predictors” of future violent
crimes, but none of those had occurred at the location so there was no
reason to foresee these murders. The defense expert opined that the
security measures were “more than reasonable” and met or exceeded
the industry standard of security for complexes in that location. He
did not believe the gate was necessary given the low level of crime
reported at that location. In conclusion, the defense expert testified:
The [complex] provided [the decedents] with a secure locked
environment, an apartment with one entrance, a steel door, and
a dead bolt lock. There is no sign of forced entry. The
materials that I received lead me to believe that the door was
opened to the person that committed this particular crime.
The defendant moved for directed verdict, arguing the plaintiff had
not established proximate cause or that the defendant had control over
the apartment complex. The trial court denied the motion. The jury
found the defendant forty percent comparatively negligent, and
awarded damages of 4.5 million dollars apportioned to various
survivors of the decedents.
The defendant moved for a new trial and a judgment notwithstanding
the verdict, which the trial court denied.
ERP, 96 So. 3d at 930-32.
-4-
ERP appealed the judgment and orders to the Fourth District. Id. at 932.
The Fourth District reversed the trial court’s ruling on ERP’s motion for directed
verdict, stating that “[w]ithout proof of how the assailants gained entry into the
apartment, [Sanders] simply could not prove causation.” Id. at 933. Sanders seeks
review in this Court, alleging that the Fourth District’s finding that she failed, as a
matter of law, to present evidence sufficient to create a factual issue regarding
causation conflicts with case law of this Court and other Florida district courts.
THIS CASE
This Court accepted jurisdiction in this case to determine whether the Fourth
District erred in reversing the jury verdict and finding that Sanders did not present
sufficient evidence to establish that ERP’s breach of duty was the proximate cause
of the deaths of the decedents in this negligent security action, thereby warranting
a directed verdict for ERP.
PROXIMATE CAUSATION AND DIRECTED VERDICT
Whether or not proximate causation exists is a question of fact, involving an
inquiry into whether the respondent’s breach of duty foreseeably and substantially
contributed to the plaintiff’s injuries. See McCain v. Fla. Power Corp., 593 So. 2d
500, 502 (Fla. 1992). This Court has made clear that plaintiffs alleging negligence
in Florida must meet “the more likely than not standard of causation” as Florida
-5-
courts “require proof that the negligence probably caused the plaintiff’s injury.”
Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984).
[A plaintiff] must introduce evidence which affords a reasonable basis
for the conclusion that it is more likely than not that the conduct of the
defendant was a substantial factor in bringing about the result. A mere
possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are
at best evenly balanced, it becomes the duty of the court to direct a
verdict for the defendant.
Id. (quoting Prosser, Law of Torts § 41 (4th ed. 1971)).
In order for a court to remove the case from the trier of fact and grant a
directed verdict, there must only be one reasonable inference from the plaintiff’s
evidence. See Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 322 (Fla.
2001). Where the jury only has to draw one inference from direct evidence to
reach a decision regarding the defendant’s negligence, the jury is entitled “to make
the ultimate factual determination” regarding whether the defendant’s breach was
the proximate cause of the harm suffered. Id. at 329. Thus, if the jury is forced to
stack inferences to find that the plaintiff presented a prima facie case of the
defendant’s negligence, then a directed verdict is warranted. An appellate court
reviewing the grant of a directed verdict must view the evidence and all inferences
of fact in the light most favorable to the non-moving party, and can affirm a
directed verdict only where no proper view of the evidence could sustain a verdict
in favor of the non-moving party. Id.
-6-
THE FOURTH DISTRICT’S DECISION
ERP argued to the Fourth District that the trial court erred in denying its
motion for directed verdict because Sanders failed to establish proximate cause for
the deaths, based on the plaintiff’s inability to explain how the assailants gained
entry into the apartment. ERP, 96 So. 3d at 932. ERP also argued that the murders
were not reasonably foreseeable in light of the relatively small number of property
crimes that occurred on the premises in the three years prior to the murders. Id.
Sanders responded that the murders were reasonably foreseeable and that the proof
of gaps in security established the requisite causation. Id. The Fourth District
determined that its previous decision in Brown v. Motel 6 Operating, L.P., Ltd.,
989 So. 2d 658 (Fla. 4th DCA 2008), rev. denied, 1 So. 3d 171 (Fla. 2009),
“dictate[d] the outcome of this case and reverse[d] the judgment.” Id. at 930.
In Brown, the decedent was murdered in his hotel room and his estate filed a
wrongful death action against the motel, alleging that it should have taken greater
security precautions in light of past criminal activity. Brown, 989 So. 2d at 658.
The motel in Brown was described as “an open type, with room access through
outside stairways and balconies.” Id. at 659. There were two security cameras on
the premises, one at the front door and one at the front desk. Id. There was a
security guard on duty every day from 9:00 p.m. to 5:00 a.m. Id. There had been a
number of incidents reported to the sheriff during the two-year period preceding
-7-
this incident, but none were homicides; once, a guest was robbed after opening the
door to an unknown person during the night. Id. The Fourth District decided that
a jury could find that the motel breached its duty to provide adequate security. Id.
The problem with the plaintiff’s evidence, according to the Fourth District, was
that it did not demonstrate that the injury resulted from the breach of duty. Id.
Plaintiff’s expert on security acknowledged that there was no
evidence as to how the person or persons who killed the decedent
entered the room. There was no evidence of a forced entry to the
decedent’s room, nor any evidence as to any activity other than the
shooting. The door had a steel frame, an electronic door lock that
would automatically close, and a peep hole. The expert agreed that the
door met minimum standards for protecting access to the room, and
that the decedent could have been shot by someone he knew and had
allowed into the room.
Plaintiff’s expert based his opinion that security was lax on five police
reports made during the previous two-year period: 1) a burglary to a
room in which property was taken without force; 2) a sale of crack
cocaine set up by a police informant; 3) an officer observing a person
in a car with nine baggies of marijuana; 4) an armed robbery after a
guest opened the door in response to a knock; and 5) an ex-employee
jumping over the front desk in order to gain access to the area where
the room keys were kept.
Id. (emphasis added). The trial judge granted summary judgment in favor of the
motel and the Fourth District affirmed, finding that summary judgment was proper
“[b]ecause there was no evidence of a forced entry, nor any evidence that the
shooting could have been prevented with greater security.” Id. at 658-59.
In comparing Brown to this case, the Fourth District stated: “The victims
were murdered inside their apartment. There was no sign of a forced entry.
-8-
[Sanders’] expert acknowledged that it was unknown what happened on the night
of the murders. Without proof of how the assailants gained entry into the
apartment, [Sanders] simply could not prove causation.” ERP, 96 So. 3d at 933.
This finding led the Fourth District to reverse the trial court’s judgment on the
jury’s verdict and its ruling on ERP’s motion for directed verdict. Id.
ALLEGED CONFLICT CASES
Sanders alleges that the Fourth District’s decision conflicts with this Court’s
decision in Cox. In that case, William Cox and his wife sued the hospital that
treated him after a stroke, claiming that the conduct of the emergency room staff
caused him to suffer devastating damages. Id. at 796. The key issue was “whether
more likely than not, the administration of a tissue plasminogen activator (tPA), a
drug that dissolves blood clots, would have prevented or mitigated the devastating
consequences of the stroke.” Id. The plaintiffs’ expert and the defense expert
specifically disagreed regarding whether a 1995 clinical study of tPA established
that there was a “more likely than not” chance of improvement from the effects of
the stroke. Id. at 798. The trial court denied the defendant’s motion for directed
verdict, and the jury awarded substantial damages to the plaintiffs. Id.
On appeal, the Second District reversed the jury award, determining that the
plaintiffs failed to meet their burden of proving causation “because the testimony
of the expert witnesses was based only on speculation.” Id. “[T]he Second
-9-
District held the cases relied upon by the plaintiffs were distinguishable because in
those cases, the expert testimony was not constrained by statistical evidence
revealing a success rate of less than fifty percent.” Id. After accepting review
based on express and direct conflict of decisions, this Court concluded that the
Second District reweighed evidence regarding the cause of the plaintiff’s injuries,
thereby conflicting with prior decisions of this Court. Id. at 796. This Court
acknowledged that the rule that “a plaintiff cannot sustain this burden of proof by
relying on pure speculation . . . also applies to medical experts.” Id. at 799-800.
However, this Court determined that the plaintiffs’ medical expert
did not simply provide a summary conclusion without a factual basis.
She conducted a full review of Mr. Cox’s medical records, provided a
detailed analysis as to why she believed that Mr. Cox would have
been an excellent candidate for tPA therapy, and based her testimony
on her experience, the relevant medical literature, and her knowledge
about the facts and records involved in this case, including an in-depth
analysis of Mr. Cox’s CT scan. Defense counsel had the opportunity
to cross-examine her as to the foundation of her opinion, which he
did. However, during cross-examination, Dr. Futrell expounded on
the factual foundation for her opinion regarding the NINDS study. In
fact, Dr. Futrell explained during cross-examination that she disagreed
with defense counsel’s characterization of the NINDS study and
explained why she believed that defense counsel was inaccurate.
Id. at 801 (footnote omitted). This Court concluded that “[i]t was within the jury’s
province to evaluate Dr. Futrell’s credibility and weigh her testimony [and] [t]he
Second District misapplied our precedent by reweighing the evidence and rejecting
Dr. Futrell’s explanation.” Id. at 801-02.
- 10 -
Sanders also alleges that the Fourth District’s decision conflicts with Holley.
In that case, the decedent was raped and murdered inside her apartment, while she
was a tenant in the defendant’s apartment complex. Id. at 99. The “intruder,
thought to have been a co-tenant . . . apparently gained access into [the] second
story apartment through a window which fronted onto a common outside
walkway.” Id. The decedent’s estate brought an action against the apartment
complex alleging “negligent failure to provide reasonable security measures in the
building’s common areas.” Id. After the trial judge entered summary judgment for
the apartment complex, the plaintiff appealed to the Third District Court of Appeal.
Id.
The district court in Holley determined the record indicated that the landlord
had “recognized the dangerous nature of its premises in at least two ways”: (a) by
not accepting cash rental payments, and (b) by previously hiring uniformed armed
guards to patrol and protect the complex and charging each tenant an additional
five dollars a month for this service, a practice that had been abandoned by the
time the decedent was killed. Id. The district court held that since “[t]he basis of
the plaintiff’s case is the almost indisputed fact that the intruder could have entered
the apartment only through the common walkway adjacent to the decedent’s
window . . . it was for the jury to determine whether the defendant’s alleged breach
of duty as to the areas outside the apartment was a legal cause of what happened
- 11 -
inside.” Id. at 101. As to the apartment complex’s argument that because the
assailant was probably a co-tenant, reasonable security measures would not have
prevented the tragedy, the Third District found that the apartment complex did not
affirmatively demonstrate that the security measures would not have deterred the
assailant, or that the security officers would not have seen and stopped the assailant
from entering the apartment. Id. at 101-02.
Although not raised by the parties, even more recently than Cox, this Court
has addressed the issue regarding when a district court may properly reverse a jury
verdict and hold that a defendant’s motion for directed verdict should have been
granted. In Friedrich v. Fetterman & Associates, P.A., 137 So. 3d 362 (Fla. 2013),
the plaintiff was injured when the chair he sat on, inside of the defendant’s law
office, collapsed. Id. at 363. The plaintiff’s expert and the defendant’s expert
disagreed as to whether the defendant “should have or could have discovered the
defect of the chair upon reasonable inspection.” Id. at 366. The defendant moved
for a directed verdict at various points during the trial, claiming that the plaintiff
had not established duty or causation. Id. at 364. The trial court denied the
motions and ultimately issued a final judgment against the defendant, in
accordance with the jury verdict. Id. The defendant appealed. See Fetterman &
Assocs., P.A. v. Friedrich, 69 So. 3d 965 (Fla. 4th DCA 2011). The district court
reversed the trial court’s decision and remanded the case for entry of a directed
- 12 -
verdict in favor of the defendant. Id. at 968. Based on the plaintiff’s expert’s
contradictory statements regarding when the dangerous condition of the chair
could have been revealed, the district court determined that “the jury had no basis
from which to conclude that Fetterman would have discovered the defect in the
chair,” which the district court determined to be “an indispensable factor in
determining liability.” Id.
After accepting the plaintiff’s petition for review, this Court reiterated the
standard for granting a directed verdict:
In Florida, “[a]n appellate court ... must view the evidence and all
inferences of fact in the light most favorable to the nonmoving party,
and can affirm a directed verdict only where no proper view of the
evidence could sustain a verdict in favor of the nonmoving party.”
Owens, 802 So. 2d at 329. A defendant is entitled to a directed
verdict when “the plaintiff has failed to provide evidence that the
negligent act more likely than not caused the injury,” but a directed
verdict is improper “[i]f the plaintiff has presented evidence that could
support a finding that the defendant more likely than not caused the
injury.” Cox, 71 So. 3d at 801 (emphasis in original). A directed
verdict “is not appropriate in cases where there is conflicting evidence
as to the causation or the likelihood of causation.” Id. When
determining whether a directed verdict is appropriate, the reviewing
court may not reweigh the evidence or substitute its judgment
concerning credibility of the witnesses for that of the trier of fact. Id.
at 801 (“It was within the jury’s province to evaluate [the witness’s]
credibility and weigh her testimony.”).
Friedrich, 137 So. 3d at 365. This Court determined that the district court
impermissibly reweighed the testimony of the expert witnesses during trial and
quashed the district court’s decision.
- 13 -
PLAINTIFF’S PRIMA FACIE CASE OF DEFENDANT’S LIABILITY
The Fourth District erred in directing a verdict for ERP. The decedents lived
on the property for approximately nine months before they were murdered. At
trial, the jury heard testimony regarding the criminal activity that occurred on the
premises within the three-year period preceding the decedents’ deaths. The
evidence indicated twenty incidents on the premises of the apartment complex in
that time: one armed robbery of a female victim who was robbed at gunpoint while
walking from her car to her apartment; one strong-armed robbery of a pizza
delivery man (where three supposed non-tenants exited a car and stole pizza and
money from the delivery man, without a weapon); one domestic violence forced
entry (where an ex-boyfriend confronted an ex-girlfriend in the common area and
forced her to unlock the door to her apartment); nine car thefts; one attempted car
theft; one criminal mischief incident involving teenagers who damaged the
complex’s property; one burglary of a dwelling (which may or may not have been
occupied); and five burglaries (four involving unoccupied dwellings and one
involving a dispute between tenants where one broke into the other’s apartment to
gain possession of a phone).
Sanders’ expert witness, Dr. George Kirkham, testified regarding the five
crimes that occurred on the property during the time that the victims lived there,
one of those crimes being the burglary of an unoccupied apartment, and the others
- 14 -
being attempted and completed car thefts. Kirkham admitted on cross-examination
that there were no violent crimes on the property in the four months preceding this
event, when the gate was inoperable. He explained, however, that of the twenty
crimes that occurred on the property within the previous three-year period, two
were violent crimes, i.e. the robbery of a pizza man and the robbery of a female
tenant, at gunpoint. In the case of the female tenant who was robbed, she believed
that a car had followed her into the complex but could not say with certainty
whether the assailant came from that particular car. Neither victims of the
robberies were physically injured.
Defense counsel implied that Dr. Kirkham’s theory that the female victim
may have been accosted by someone in the parking lot while getting out of her
Mercedes-Benz was pure speculation. However, based on the history of car thefts
in the complex that the residents were not notified about, the robbery of the pizza
man by supposed unauthorized non-residents, the robbery of a different female
tenant in the same manner approximately one year prior and the fact that on the
night of the incident, the gate was not serving its purpose to limit access only to
people authorized to be on the premises, this theory does not appear to be pure
speculation, but a reasoned presumption based on the evidence. Whether or not it
was foreseeable that the residents were in danger of harm because of criminals
being allowed on the premises and that ERP’s failure to limit the unauthorized
- 15 -
access caused the deaths of the decedents was an issue of fact for the jury to
decide.
Similar to the Third District’s decision in Holley, it appears that Sanders
raised a reasonable inference that the landlord’s breach on the outside of the
apartment, the inoperable gate, may have contributed to what happened on the
inside of the apartment. 382 So. 2d at 101. Even considering ERP’s argument,
and the Fourth District’s apparent conclusion, that the decedents opened the door
for their assailants, this is something which should properly be considered by a
jury in a comparative negligence analysis and is not a basis for a directed verdict.
See generally Green Cos. v. Divincenzo, 432 So. 2d 86 (Fla. 3d DCA 1983).
Sanders’ evidence created a question of fact as to whether ERP more likely
than not caused the decedents’ deaths. Sanders’ expert testified that the majority
of the crimes that happened at the apartment complex were opportunistic crimes,
including an armed robbery initiated when a resident was accosted in the parking
lot of the complex.
The fact that the apartment complex in this case had an inoperable security
gate distinguishes this case from Brown, where the motel was described as “an
open type, with room access through outside stairways and balconies.” 989 So. 2d
at 659. The gate in this case was purposed to limit access to the premises only to
those authorized to be on the grounds. A reasonable jury could have determined
- 16 -
that ERP’s failure to maintain the security gate and failure to have the courtesy
officer visible probably allowed the assailant(s) to get to the decedents’ door more
easily without being detected, which may not have been a consideration in Brown,
where the motel only had two security cameras to observe what was happening on
the premises, but not necessarily to limit the access to the resident’s door.
Therefore, the lack of forced entry in both cases is not dispositive of the causation
issue.
CONCLUSION
Because Sanders presented evidence that could support a finding that ERP
more likely than not substantially contributed to the deaths in this case, we quash
the Fourth District’s decision granting a directed verdict to the defendant and
remand for further proceedings consistent with this decision.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and PERRY, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., dissenting.
I would discharge this case because the decision of the Fourth District in
ERP Operating Ltd. Partnership v. Sanders, 96 So. 3d 929 (Fla. 4th DCA 2012),
does not expressly and directly conflict with this Court’s decision in Cox v. St.
- 17 -
Joseph’s Hospital, 71 So. 3d 795 (Fla. 2011), or the Third District’s decision in
Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98 (Fla. 3d DCA 1980).
ERP is entirely consistent with Cox as both cases applied the same rule of
law and only reached different conclusions due to the differing circumstances of
the two cases. Specifically, in Cox, 71 So. 3d at 801-02, this Court disapproved of
the district court rejecting an expert’s explanation of why the negligent act
probably caused the injury. This Court in Cox explained that “a directed verdict is
appropriate in cases where the plaintiff has failed to provide evidence that the
negligent act more likely than not caused the injury,” although it is inappropriate
“in cases where there is conflicting evidence as to the causation or the likelihood of
causation.” Id. at 801. However, as opposed to Cox, where this Court held that a
directed verdict was improper, Sanders did not present conflicting expert testimony
that the apartment complex’s negligence caused the injuries in this case. Instead,
Sanders’ expert testified only that the crime appeared to be opportunistic in nature
and that there was no way to know how the murders occurred. ERP, 96 So. 3d at
931-32.
The majority opinion also states that ERP conflicts with Holley, a case the
petitioner did not discuss during jurisdictional briefing and a case the majority
admits this Court did not base its jurisdiction upon when granting review. See
majority op. at 1 n.1. However, even if it were appropriate to base our conflict
- 18 -
jurisdiction on such a case, Holley is factually distinguishable. As the Fourth
District explained, in Holley (unlike in ERP), “the complex had been plagued with
violent crime, and evidence established that an intruder entered the apartment
through a second story window facing a common walkway.” ERP, 96 So. 3d at
933 n.2.
Accordingly, because this Court does not have conflict jurisdiction in this
case, I respectfully dissent.
CANADY, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Fourth District - Case No. 4D09-5188
(Broward County)
Jeffery Lee Allen of the Law Offices of Jeffery Allen, Miami, Florida; Thaddeus
L. Hamilton of Thaddeus Hamilton, P.A., Plantation, Florida; and Philip Mead
Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Florida,
for Petitioner
Richard A. Sherman, Sr., and James Warren Sherman of the Law Offices of
Richard A. Sherman, P.A., Fort Lauderdale, Florida; and Joel Richard Wolpe of
Wolpe, Leibowitz, Alvarez & Fernandez, L.L.P., Miami, Florida,
for Respondent
- 19 -