author: QUINCE, J.

text:
    Mary CHESTER, etc., Petitioner, v. Victor DOIG, M.D., Respondent.
    No. SC01-348.
    Supreme Court of Florida.
    Feb. 6, 2003.
    Rehearing Denied March 26, 2003.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, FL, for Petitioner.
    Jennifer S. Carroll and Diane F. Medley of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, FL; and James W. Smith of Smith & Schoder, LLP, Daytona Beach, FL, for Respondent.
   QUINCE, J.

We have for review a decision of the Fifth District Court of Appeal on the following question, which the court certified to be of great public importance:

IS IT APPROPRIATE TO SETOFF AGAINST THE NONECONOMIC DAMAGES PORTION OF AN AWARD AGAINST ONE TORTFEA-SOR IN AN ARBITRATION OF A MEDICAL MALPRACTICE ACTION THE AMOUNT RECOVERED FROM SETTLEMENT FROM ANOTHER RESPONSIBLE FOR THE SAME INCIDENT CAUSING THE INJURY?

Doig v. Chester, 776 So.2d 1048, 1047 (Fla. 6th DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the negative and quash the Fifth District’s decision.

BACKGROUND

Mary Chester (Chester) asserted that her husband died as the result of medical malpractice and blamed both respondent Dr. Doig and Halifax Hospital for his death. Chester settled with Halifax Hospital for $150,000 during presuit proceedings (the settlement award) and then arbitrated with Dr. Doig and recovered $507,321 (the arbitration award). Of the $507,321 recovered from Dr. Doig, $210,321 was designated for economic damages, $250,000 was designated for noneconomic damages, and $47,000 was for attorney’s fees. The arbitrators found that Dr. Doig was not entitled to a setoff based on the settlement award. Dr. Doig appealed the arbitrators’ finding that he was not entitled to a setoff, and on his second motion for rehearing, the Fifth District reversed the arbitration panel with directions to apply a setoff. See Doig, 776 So.2d 1043. The issue before this Court is whether the arbitration award should be set off (reduced) by the settlement award.

DISCUSSION

The arbitration provisions of Florida’s Medical Malpractice Act allow an arbitration panel to determine damages in a medical malpractice claim once presuit investigation has been completed. See §§ 766.207-766.212, Fla. Stat. (1997). The arbitration provisions were enacted to provide “[s]ubstantial incentives for both claimants and defendants to submit their cases to binding arbitration, thus reducing attorneys’ fees, litigation costs, and delay.” § 766.201(2)(b), Fla. Stat. (1997). In this case, Chester agreed to submit to binding arbitration with Dr. Doig, and under section 766.207(7), the following limitations on damages apply:

(7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that:
(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(b) Noneconomic damages shall be limited to a maximum of $260,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-per-cent reduction in his capacity to enjoy life would warrant an award of not more than $125,000 in noneconomic damages.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(8) and shall be offset by future collateral source payments.
(d)Punitive damages shall not be awarded.
(h) Each defendant who submits to arbitration under this section shall be jointly and severally liable for all damages assessed pursuant to this section.

§ 766.207(7), Fla. Stat. (1997). Chester argues the plain language of section 766.207 prohibits a setoff of the settlement award, while Dr. Doig asserts that Florida’s setoff statutes require the settlement award be set off against the arbitration award.

The Fifth District concluded that the entire settlement award should be set off against the arbitration award because there was no allocation of fault and Dr. Doig is jointly and severally liable for all noneconomic damages found by the arbitration panel. See Doig, 776 So.2d at 1047. The Fifth District noted that the arbitration panel determined that section 766.207(7) did not specifically permit a set-off for settlements and therefore the panel refused to consider Florida’s setoff statutes. See id. The Fifth District found that in refusing to consider the setoff statutes the arbitration panel ignored the intent of the Legislature to prevent double recovery for the same damages. Id. at 1045. However, we agree with the arbitration panel’s approach to the issue in this case for the reasons that follow.

In St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961, 972 (Fla.2000), we were faced with the issue of whether the elements of economic damages awardable in the voluntary binding arbitration of a medical malpractice wrongful death claim were controlled by the Medical Malpractice Act or the Wrongful Death Act. We concluded “that the arbitration provisions of the Medical Malpractice Act expressly specify the elements of all of the damages available when the parties agree to binding arbitration, regardless of whether the medical malpractice action involves a wrongful death.” Id. at 973. In other words, “[i]f the Legislature intended for the Wrongful Death Act to control the elements of damages available in a medical malpractice arbitration, it could have specifically provided for the application of that Act in the Medical Malpractice Act.” Id. We reach the same conclusion in the instant case with respect to setoff.

Section 766.207(7)(a) provides that net economic damages be offset by any collateral source payments, while section 766.207(7)(c) provides that damages for future economic losses be offset by future collateral source payments. For purposes of the arbitration provisions of the Medical Malpractice Act, collateral sources are defined as follows:

(2) “Collateral sources” means any payments made to the claimant, or made on his or her behalf, by or pursuant to:
(a) The United States Social Security Act; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except as prohibited by federal law.
(b) Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or her or provided by others.
(c) Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
(d) Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

§ 766.202(2), Fla. Stat. (1997). The plain language of section 766.207(7)(a) and (c) clearly provides that the only setoff available in a medical malpractice arbitration is for collateral sources as defined by section 766.202(2). Because the settlement award in this case does not meet the definition of a collateral source or a collateral source payment, the Fifth District erred in concluding that the settlement award should be set off against the arbitration award. See Doig, 776 So.2d at 1047. If the Legislature intended for Florida’s setoff statutes to control the elements of damages available in medical malpractice arbitration, it could have specifically provided for the application of those statutes in the Medical Malpractice Act. See St. Mary’s Hospital, 769 So.2d at 973. Because the Legislature has not done so, we conclude the arbitration award should not be set off by the settlement award in this case.

We also note, reading further into the statutory scheme, that section 766.208(6), Florida Statutes (1997), provides:

Arbitration to allocate responsibility among multiple defendants.—
(6) Any defendant paying damages assessed pursuant to this section or s. 766.207 shall have an action for contribution against any nonarbitrating person whose negligence contributed to the injury-

Therefore, because Dr. Doig is paying damages assessed pursuant to section 766.207, he may have an action for contribution against any nonarbitrating party whose negligence contributed to the injury.

CONCLUSION

Based on the foregoing, we conclude that a setoff is not appropriate in this case. We therefore answer the certified question in the negative, and quash the Fifth District’s decision.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, and LEWIS, JJ., and SHAW and HARDING, Senior Justices, concur.

      . Section 766.202(3), Florida Statutes (1997), defines economic damages as:
      “Economic damages” means financial losses which would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity.

      . Section 766.202(7), Florida Statutes (1997), defines noneconomic damages as:
      "Noneconomic damages” means nonfinan-cial losses which would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses.

      . Florida currently has three statutes governing setoff and contribution. See §§ 46.015, 768.31, 768.041, Fla. Stat. (2000).

      . Section 766.207(7)(b) requires a $250,000 cap on noneconomic damages per incident, but does not require any type of setoff from the noneconomic damages portion of an arbitration award in a medical malpractice arbitration.

      . We decline to address the other issues raised by the parties because they are outside the scope of the certified question. See, e.g., Gouty v. Schnepel, 795 So.2d 959, 966 n. 4 (Fla.2001). We also deny Dr. Doig’s motion to supplement his oral argument response.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE.
    No. SC02-1230.
    Supreme Court of Florida.
    Feb. 27, 2003.
    John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; and Raymond J. Rafool, II, Chair, The Florida Bar Criminal Procedure Rules Committee, of Rafool & Rafool, Winter Haven, FL, for Petitioner.
    Nancy Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, FL, on behalf of the Florida Public Defender Association, Inc.; and Paul M. Rashkind, President, FACDL-Miami, FL, on behalf of the Florida Association of Criminal Defense Lawyers-Miami, Responding with comments.
   PER CURIAM.

The Florida Bar Criminal Procedure Rules Committee (Rules Committee) has filed an emergency petition to amend the Florida Rules of Criminal Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(e).

In this petition, the Rules Committee proposes two amendments in response to legislation that became effective July 1, 2001. The Rules Committee proposes new Florida Rule of Criminal Procedure 3.203, entitled “Defendant’s Mental Retardation as a Bar to Imposition of Death Sentence.” As proposed, new rule 3.203 would govern procedures where a defendant charged with first-degree murder asserts mental retardation as a bar to the imposition of the death penalty under recently enacted section 921.137, Florida Statutes (2001). See ch.2001-202, § 1 at 1831-33, Laws of Fla. The Rules Committee also sought to amend rule 3.704, the Criminal Punishment Code, to comport with a recent amendment to section 921.0021(5), Florida Statutes (2000), which redefines the term “prior record” to include juvenile dispositions that were committed up to five years, rather than three years, before the primary offense. See ch.2001-210, § 2 at 1878, Laws of Fla.

On September 27, 2002, the Rules Committee filed a supplement to its petition, notifying the Court that the portion of the petition seeking to amend rule 3.704 was moot in light of the Court’s decision in Amendments to Florida Rules of Criminal Procedure 3.70k & 3.992 (Criminal Punishment Code), 810 So.2d 826 (Fla.2001). In that case, the Court amended rule 3.704(d)(14)(B) to comport with the 2001 amendment to section 921.0021(5). However, the Rules Committee asked the Court to approve its proposed Committee Note to rule 3.704. The Committee Note explains the 2001 amendment to that rule and alerts practitioners that the amendment applies to primary offenses committed on or after July 1, 2001, the effective date of the new legislation. The proposed Committee Note provides:

2001 Amendment. 3.704(d)(14)(B). The definition of “prior record” was amended to include juvenile dispositions of offenses committed within 5 years prior to the date of the commission of the primary offense. “Prior record” was previously defined to include juvenile disposition of offenses committed within 3 years prior to the date of the commission of the primary offense. This amendment reflects the legislative change to section 921.0021, Florida Statutes, effective July 1, 2001. This new definition of prior record applies to primary offenses committed on or after July 1, 2001.

We approve the proposed Committee Note for publication. However, we defer consideration of proposed new rule 3.203 and will consider that proposal together with several pending cases that raise claims based on section 921.137 or the United States Supreme Court’s recent decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). See Burns v. State, No. SC01-166 (Fla. notice of appeal filed Jan. 22, 2001); Miller v. State, No. SC01-837 (Fla. notice of appeal filed Apr. 19, 2001); Thomas v. State, No. SC00-1092 (Fla. notice of appeal filed Apr. 24, 2001).

Accordingly, we approve the proposed Committee Note to Florida Rule of Criminal Procedure 3.704 for publication. The Committee Note is offered for explanation only and is not adopted as an official part of the rules. The amendment shall become effective immediately upon the release of this opinion.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ., concur.


author: COVINGTON, Judge. WHATLEY, Judge, FULMER, Judge,

text:
    Harry LEOPOLD, Appellant, v. KIMBALL HILL HOMES FLORIDA, INC., a Florida corporation, Appellee.
    No. 2D01-4072.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
    Rehearing Denied April 15, 2003.

      Kimberly A. Bald and Brian L. Trimyer of Harllee & Bald, P.A., Bradenton, and Douglas R. Bald of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, Sarasota, for Appellant.
    Michael L. Rosen and Gregory J. Orcutt of Bricklemyer Smolker & Bolves, P.A., Tampa, for Appellee.
   COVINGTON, Judge.

The issue presented is whether the agreement entered into by the parties is a valid, enforceable contract or whether it is simply an agreement to agree in the future. Finding that essential terms remained open for further consideration, the trial court concluded that the agreement was not an enforceable contract. We disagree and thus reverse the final judgment.

Harry Leopold and his wife, Victoria, decided to build a home in the Lakewood Ranch community of Manatee County, Florida. The Leopolds became interested in Lot 33 of the Edgewater Sound subdivision. In May 1999, the Leopolds met with Nancy Rowe, a sales consultant for Kim-ball Hill Homes Florida, Inc. Kimball Hill, a builder of single-family homes in Edge-water Sound, was the exclusive builder for the lot selected by the Leopolds. At that time, Kimball Hill offered four models with variations available for construction in the subdivision.

The Leopolds discussed with Ms. Rowe their desire to build a home according to their own custom plan. Ms. Rowe informed the Leopolds that Kimball Hill was not a custom builder, and she was unsure whether Kimball Hill would allow them to build a home according to their own design.

Nevertheless, Mrs. Leopold drew an initial sketch of the type of home she wanted. After reviewing the drawing, the concept for the home was approved by Kimball Hill, subject to certain requirements. First, the Leopolds would be required to employ and pay for Kimball Hill’s architect; second, the home design could not exceed 3100 square feet; and third, Kim-ball Hill would have the right to use the Leopolds’ home design in the future. The Leopolds were informed that any design had to be approved by the Lakewood Ranch Planning Review Committee before construction would be allowed.

A document entitled Homebuyers Agreement was signed by the parties on May 27, 1999. The Homebuyers Agreement consisted of a preprinted form prepared by Kimball Hill. The form contained a blank line for inclusion of the builder’s plan to be used. Ms. Rowe inserted the term Stratmon V so that the Kimball Hill computer would recognize the agreement and Lot 33 could be identified as sold. At the time the agreement was signed, a model plan for the Stratmon V did not exist. The term Stratmon was selected because it was the largest and most expensive home built by Kimball Hill in Edgewater Sound. The term V was included to distinguish between a model Stratmon home and the Leopolds’ custom home. In addition, V stood for Victoria, Mrs. Leopold’s first name.

At Mr. Leopold’s request, several changes were made to the preprinted form. The financing contingency contained in paragraph two, entitled Mortgage Loan, was revised by insertion of the underlined portion:

This agreement is contingent upon Homebuyer’s obtaining a mortgage loan on the above referenced property. Homebuyer shall make application within five (5) business days of the date of this Agreement of agreed upon plans by Homebuilder [and] Homebuyer and shall diligently attempt to obtain approval of said loan.[]

In addition, paragraph five, entitled Completion of Construction, was amended to reflect that plans and specifications could be modified by either the builder or the buyer. Finally, the right of the builder to install selections of his choice upon the buyer’s failure to make such selections within twenty-one days of the signing of the agreement was deleted.

The parties agreed to a price of $390,000, that is, $115,000 for the lot and $275,000 for the home. Pursuant to the terms of the agreement, the Leopolds deposited a total of $20,000 with Kimball Hill for the home. The Option Addendum, also signed on May 27, 1999, provided that options were “To Follow.” The parties understood that any additional options would increase the price of the home.

Thereafter, Jon Morris, vice-president of Kimball Hill, contacted Heather Attardo of the architectural firm used by Kimball Hill. Mr. Morris informed Ms. Attardo that he had some customers who wanted to use their own design. Ms. Attardo was not able to begin work on the Leopolds’ residence until September 1, 1999, due to other previously scheduled commitments. Nevertheless, the Leopolds entered into a contract with Ms. Attardo’s firm and forwarded a $2000 retainer. Under the terms of the agreement, the Leopolds were to pay a total of $8000 for architectural services rendered in connection with the design of their home.

The plans were revised several times, and on December 6, 1999, Mrs. Leopold executed a phase completion form representing the Leopolds’ approval of the home design. The plans were submitted to Mr. Morris and Ms. Rowe on December 7, 1999. Upon his review of the plans, Mr. Morris felt that there was a problem with the design and requested a meeting with the Leopolds. Mr. Leopold was informed that Kimball Hill would not construct the home because it was believed that the plans would not be approved by the Planning Review Committee. However, Kim-ball Hill had not submitted the plans to the Lakewood Ranch Planning Review Committee for its approval. It is noted that at no time did Kimball Hill submit the plans to the Planning Review Committee.

In January 2000, Mr. Morris personally met with the Leopolds, and the Leopolds were told that their deposits would be refunded and their architectural expenses reimbursed. At that meeting Mr. Morris told the Leopolds that he did not agree with their plan and that Kimball Hill could not build their home.

The Leopolds inquired as to whether Kimball Hill would buñd a Lyndale Plus model on Lot 33. The terms proposed by Kimball Hill included an agreement that the Leopolds sign a new contract and that Kimball Hill could raise the quoted construction price of $542,500, which did not include the lot. The Leopolds rejected that offer as unreasonable. Mr. Leopold also discussed the possibility of building a Stratmon I model on Lot 33. Mr. Morris indicated that Kimball Hill was willing to sell Lot 33 for $115,000 but that Kimball Hill would only build the home if Mr. Leopold agreed to an increase of over $30,000 from the original contract price. The Leopolds also rejected that offer.

Kimball Hill filed a complaint for declaratory relief against Mr. Leopold, requesting that the court declare the parties’ contract void ab initio for lack of an essential term or lack of meeting of the minds between the parties. Mr. Leopold, in response, filed a counterclaim. Initially, Mr. Leopold sought damages for breach of contract along with specific performance; subsequently, the counterclaim was amended to also allege fraud in the inducement as well as fraudulent misrepresentation.

After a nonjury trial, a final judgment was entered in Kimball Hill’s favor based on the trial court’s determination that the Homebuyers Agreement was not a valid contract. Consequently, the trial court decided that Mr. Leopold should not recover in his counterclaim for breach of contract nor should he be entitled to specific performance. Since the trial court found no evidence of fraud in the inducement or fraudulent misrepresentation, recovery based on those theories was also denied. The trial court did, however, conclude that Mr. Leopold was entitled to recover the deposit advanced when he executed the Homebuyers Agreement.

Mr. Leopold raises several issues on appeal. With respect to the $20,000 deposit, Mr. Leopold submits that the trial court was incorrect in not awarding him interest on those funds. Mr. Leopold also alleges that the trial court erred in not awarding him damages or specific performance and in failing to “pierce the corporate veil” between Kimball Hill and its parent company. We recognize that “when there is competent evidence to support the findings and the judgment of the trial court it is the duty of this court to affirm.” Cont’l Dev. Corp. of Florida v. Duval Title & Abstract Co., 356 So.2d 925, 927 (Fla. 2d DCA 1978). Nevertheless, questions of law are reviewed under the de novo standard, Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001), and we “are not bound to give the trial judge’s interpretation any weighted presumption of correctness.” Florida Power Corp. v. Lynn, 594 So.2d 789, 791 (Fla. 2d DCA 1992) (citation omitted).

Mr. Leopold submits that the trial court erred by finding that there was no enforceable contract. Thus, we must determine whether “there has actually been a meeting of the minds of the parties upon definite terms and conditions which include the essential elements of a valid contract.” Mehler v. Huston, 57 So.2d 836, 837 (Fla.1952). In deciding whether there has been a meeting of the minds, courts look not to “‘the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.’ ” Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So.2d 404, 407 (Fla.1974) (citation omitted).

What did the Leopolds and Kimball Hill agree to? The relevant and salient findings of fact, as determined by the trial court, are that the parties agreed that Kimball Hill would build a home for the Leopolds on Lot 33 and that the plan to be used would be the Stratmon V. Although the Stratmon V was not in existence at the time that the contract was signed, the parties agreed that the design would be created. The parties also agreed as to the priee-$275,000 for the house and $115,000 for the lot, for a total of $390,000. The parties noted that any options to the house were to follow. In addition, the parties agreed that the size of the house would not exceed 3100 square feet, that the Leopolds would hire and pay for Kimball Hill’s architect, and that Kimball Hill would have the right to use the Leopolds’ home design in the future. Finally, the parties agreed that the Lakewood Ranch Planning Review Committee had to approve the design before construction could begin. These were the essential terms of the agreement, and they did not remain open for further consideration.

Kimball Hill submits that essential terms were left open because Mr. Leopold added language to the Homebuyers Agreement form. We disagree. Mr. Leopold added language to the financing contingency clause extending the time in which he could obtain financing. Mr. Leopold also added a term to the completion of construction portion of the contract. As it was originally written, only Kimball Hill could modify the plans. With the change in place, both the builder and the buyer had the right to make modifications to the plans as construction proceeded. Neither of these changes resulted in an indefinite and uncertain agreement.

The parties agreed that the plans would be created after the contract was signed and that the options to be added would follow. Testimony at trial revealed that in the building industry, at times, upgrades are priced during the construction of the home. Buyers make changes, and they add options to the homes that they are having built. It has been acknowledged that:

[construction contracts rarely, if ever, are performed exactly as they are written. In such a complex undertaking as building construction, there is frequently something left out of design drawings. A specified material may be unobtainable. The design professional or the owner may desire a change as they see the project develop.

Larry R. Leiby, Florida Construction Law Manual, § 7:15 (4th ed.2001).

The fact that the Stratmon V plans did not exist at the time that the contract was signed or that the options to be added were not listed does not mean that essential terms were omitted. Every potential contingency does not need to be addressed in order for there to be an enforceable contract. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985). As recognized in Blackhawk Heating & Plumbing Co., 302 So.2d at 408:

“Even though all details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto.” 17 C.J.S. Contracts § 31.

The trial court, as well as Kimball Hill, relied on Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001), to conclude that there was no meeting of the minds as to the completed price and the type of home to be constructed. However, that reliance is misplaced. In Caval-laro, the parties had executed a lot reservation agreement as to a particular piece of property, not a final contract for sale and purchase. Significantly, “the parties’ agreement failed to contain the requisite essential terms such as the purchase price and design of the home, and the terms and conditions of construction.” Cavallaro, 784 So.2d at 621.

In contrast, the parties before us did in fact have a meeting of the minds as to the essential terms of the contract. Those terms consisted of a specifically identified lot costing $115,000 and a base sales price of $275,000 for a house. The trial court found that the parties agreed that the base sales price of the house was $275,000 because that was the base price of the Stratmon I model and that any options that were added would increase the sales price of the home. As also found by the trial court, the Leopolds eventually agreed to accept the original Stratmon I model on the originally selected lot. Nevertheless, Kimball Hill demanded an additional $30,000 from the original contract price apparently in an effort to participate in the rising market for Lot 33. However, such participation was precluded when the parties, as a matter of fact and intent, allocated the risk of market price fluctuations occurring subsequent to May 27, 1999, by entering into and fixing the contract price and essential construction specifics as of that date. That was the basis of their bargain.

Since the parties did have a meeting of the minds on the essential terms of the contract, the contract was a valid, enforceable contract under the facts presented. Mr. Leopold completed his end of the bargain, and thus Kimball Hill should be held accountable.

Because we find that there was an enforceable contract, the issue of damages sought by Mr. Leopold needs to be readdressed by the trial court. Accordingly, this matter is remanded to the trial court for a determination of the amount of damages that Mr. Leopold is owed pursuant to his counterclaim for breach of contract, as well as the amount of interest that he is due on his $20,000 deposit. In all other respects, including denial of specific performance, the findings of the trial court are affirmed.

Affirmed in part, reversed, and remanded.

WHATLEY, J., Concurs with opinion.

FULMER, J., Dissents with opinion.

WHATLEY, Judge,

Concurring.

I concur with the majority opinion.

A contract must receive a reasonable construction. In Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla. 2d DCA 1979), the court stated that “the court should arrive at an interpretation consistent with reason, probability, and the practical aspect of the transaction between the parties.”

Here, the parties agreed to all of the essential elements of a valid contract. The specific lot, the price, the down payment, the use of a specific architectural firm, the square footage, and the ultimate approval by the third party review committee were agreed to. The contract itself was on the preprinted form of Kimball Hill. Leopold complied by making the $20,000 down payment, paying the architectural firm (which was selected by Kimball Hill), and attempting to arrive at an acceptable house plan. Of note, Kimball Hill never objected to the receipt of the deposit or the payment to the architectural firm. Further, as the majority aptly noted, Kimball Hill never submitted any plan to the review committee. Kimball Hill simply made a poor business decision in a time of rapidly escalating home and lot prices.

The remedy initially attempted by Kim-ball Hill was to seek more money from Leopold. This flies in the face of the implied duty of good faith applicable to almost every contract. See Sepe v. City of Safety Harbor, 761 So.2d 1182, 1184 (Fla. 2d DCA 2000).

If Leopold was an unreasonable buyer, then the remedy available to Kimball Hill was one for breach of contract. Alternatively, if this had been simply an agreement to agree, then the Leopold claim for fraud in the inducement would have been a triable issue.

Lastly, Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001), is distinguishable for several reasons, the most obvious of which is the trial court’s finding that the parties in that case never had a signed agreement.

FULMER, Judge,

Dissenting.

I would affirm the final judgment and, therefore, respectfully dissent. In this appeal, we are asked to review a final judgment entered after a two-day nonjury trial in which the trial court was required to resolve mixed questions of law and fact and during which much conflicting testimony was presented. The trial court’s determinations come to this court endowed with a presumption of correctness, and it is not the prerogative of this appellate court, upon a de novo consideration of the record, to reevaluate the testimony and evidence and substitute its judgment for that of the trial court. Brandenburg Inv. Corp. v. Farrell Realty, Inc., 463 So.2d 558, 560 (Fla. 2d DCA 1985). And, while this court is not required to defer to the trial court’s conclusions on pure questions of law, Walter v. Walter, 464 So.2d 538, 539 (Fla.1985), the trial court’s findings of predicate facts upon which its legal conclusions are based must be accepted by this court if supported by competent evidence, Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

The trial court’s final judgment recites sixteen findings of fact, which are not challenged on appeal, and eight conclusions of law. One of the undisputed findings is that a model plan for a home identified as the Stratmon V did not exist at the time the agreement was executed. The majority acknowledges that “the parties agreed that the design would be created,” but the majority apparently concludes that the design for the home to be built was not an essential term of the agreement. The majority states:

The fact that the Stratmon V plans did not exist at the time that the contract was signed or that the options to be added were not listed, does not mean that essential terms were omitted. Every potential contingency does not need to be addressed in order for there to be an enforceable contract.

What constitutes the essential terms of an agreement must be evaluated on a case-by-case basis. Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001), review denied, 817 So.2d 848 (Fla.2002). In this case, it is inconceivable to me that the design of the home to be constructed could be considered anything other than an essential term of the Leopolds’ agreement with Kimball Hill Homes, Inc. (Kimball Hill). If the design of the home is an essential term, as both the trial court and I conclude, the undisputed evidence shows that the parties had no agreement on that essential term at the time the agreement was executed and never, during subsequent negotiations, reached a meeting of the minds regarding the design of the home to be constructed. Thus, in my view, the trial court was both factually and legally correct in finding that “there was no meeting of the minds regarding the completed price and type of home to be constructed” and also in citing to Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001), in support of this finding.

The majority addresses the trial court’s reliance on Cavallaro by first observing that in Cavallaro, the agreement “failed to contain the requisite essential terms such as the purchase price and design of the home, and the terms and conditions of construction.” Without explanation, the majority then purports to contrast the agreement we are reviewing by stating that “the contract at issue here included the price ($390,000) and the type of home (Stratmon V). The parties also agreed upon specific terms and conditions of construction.” Because the design of the home labeled Stratmon V did not exist when the agreement was executed, I cannot concur with the majority’s conclusion that the agreement included the essential term of the “type of home” to be built. Therefore, I agree with the trial court’s conclusions that “essential terms of the contract remained open for further consideration .... there was no meeting of the minds regarding the completed price and type of home to be constructed,” and “[a]ny representations made by [Kimball Hill] concerning the Stratmon V were negotiations concerning further plans to be approved by both parties.” If an essential element is reserved for the future agreement of both parties, the promise can give rise to no legal obligation until such future agreement. Truly Nolen, Inc. v. Atlas Moving & Storage Warehouses, 125 So.2d 903, 905 (Fla. 3d DCA 1961).

In setting forth the facts of this case, the majority draws extensively, but not exclusively, from the trial court’s findings of fact. These facts have not been presented by the majority in the light most favorable to the prevailing party, as this court is required to do. See Seaside Cmty. Dev. Corp. v. Edwards, 573 So.2d 142, 146 (Fla. 1st DCA 1991) (noting that a reviewing court must disregard conflicting evidence and accept the facts in evidence which are most favorable to the party that prevailed at trial).

The evidence presented at trial reveals that the contract with the architectural firm called for the work to be performed in three phases, each of which was to be completed in four weeks. The first phase involved preparation of a schematic design, conceptual floor plan, and elevation. Phase two was the design development phase. Phase three involved the preparation of a set of construction documents. Approvals are usually obtained after each phase. The residential designer, Heather Attardo, testified that during the work on phase one she became concerned as Mrs. Leopold continued to make numerous revisions that differed significantly from the original concept. Her concerns were expressed to Mrs. Leopold. Ms. Attardo also advised Mrs. Leopold that the construction cost of the revisions would be significant.

After nine weeks of work, the Leopolds were told by the architectural firm that they would be billed hourly because the numerous and significant changes Mrs. Leopold continued to make had caused the number of hours for. completing phase one to be exceeded. An attempt was then made to finalize a concept during two meetings that spanned about six hours. The resulting floor plan was presented to Mrs. Leopold for approval on December 6, 1999. Ms. Attardo testified that “even though the conceptual phase or schematic design plan was not completed, I felt with as many design changes that we had made since September 1st, that I needed Mrs. Leopold to sign off on the floor plans before I even designed an elevation.” Ms. Attardo testified that she also suggested that Mrs. Leopold take the floor plan to Lakewood Ranch and get approval so that additional time and money would not be wasted on completing the remaining work in phase one if the floor plan was not going to be accepted.

The record reflects that this conceptual floor plan was now significantly different from the other homes in the subdivision and from the original concept presented by Mrs. Leopold in May 1999. For example, the Leopolds’ proposed design had a 50-foot by 109-foot footprint as contrasted to the 50-by 70-foot footprints of the model homes. The design also included an additional 300 square feet of unairconditioned space. It was this schematic design, without elevation, that was presented to Mr. Morris on December 7,1999. Upon seeing the schematic design, Mr. Morris exclaimed, “Oh, my gosh.” During his testimony, Mr. Morris noted the dramatically irregular shape and observed that if the next door neighbors built a Stratmon or Sterling model, they would not be able to see the total lake. He noted that there was “no way this would blend in” with the other homes in the neighborhood. He also pointed to an area on the floor plan and commented, “that’s supposedly unair-con-ditioned space with a bathroom, a bedroom, and a utility.” Ms. Attardo had testified that this area “was intended to be unair-conditioned space so that the Leo-polds could get within the square footage requirements of Edgewater Sound.” Mr. Morris testified that he declined to present the design to the Planning Review Committee because “[tjhey’d think I was trying to pull one over on them.”

The record reflects that Mr. Morris asked for a meeting with the Leopolds and told them he could not build this home because “it is too far out.” He offered to refund their deposit money as well as all the money they had expended with the architectural firm. The Leopolds responded by first inquiring about the possibility of building a Lyndale Plus model, which was a home offered in another Kimball Hill subdivision. However, because of modifications requested by the Leopolds to that existing plan, the price quoted by Kimball Hill exceeded that which the Leo-polds were willing to pay. The parties continued to negotiate, and the Leopolds next requested the construction of a Strat-mon I model but did not wish to pay the increase requested by Kimball Hill over the original contract price. The majority suggests that Kimball Hill should have been bound by the base sales price quoted in the original contract for a Stratmon V, presumably because the base price was derived from the price of a Stratmon I. However, during the period between the execution of the original agreement and the discussion about the building of a Stratmon I, the base price of the Stratmon I had increased. The increase requested by Kimball Hill represented only the difference in the price at which the Stratmon I was offered almost nine months earlier, when the Leopolds entered into the agreement to purchase a Stratmon V, and the current price at which the Stratmon I was now listed. Kimball Hill did not increase the price of the lot nor did Kimball Hill ever seek to increase the prices quoted in the original agreement for a Stratmon V.

Because the parties were unable to reach agreement on plans for a Stratmon V and were unable to negotiate a new contract for construction of any alternative existing model, Kimball Hill again offered the Leopolds a refund of not only their deposit, as provided for in the default provision of the agreement, but also all fees paid to the architectural firm, which it appears Kimball Hill was not legally obligated to refund. When the Leopolds failed to respond to a letter from Mr. Morris, Kimball Hill sought the declaratory relief in the trial court that has resulted in this appeal.

Based on my reading of the trial transcript, I conclude that there is more than sufficient evidence in this record to support the trial court’s findings of fact, and those facts support the conclusions of law set forth in the final judgment. Therefore, I would affirm the final judgment.

      . Notwithstanding the changes to the financing contingency clause, the Leopolds subsequently decided against obtaining a mortgage for the house.

      . It is interesting to note the increase in value of Lot 33 during the relevant time frame. Testimony at trial revealed that the value of Lot 33 on May 30, 2000 (close to when the complaint was filed) was $210,000 and the value on June 21, 2001 (the time of the trial) was $240,000. Mr. Morris acknowledged that from the time the Homebuyers Agreement was signed, when Lot 33 was priced at $115,000, Kimball Hill had created a market that drove up the sales prices of lots at Edge-water.


author: ALTENBERND, Chief Judge.

text:
    Frank I. MASSEY and Stephen W. Massey, Petitioners, v. CHARLOTTE COUNTY, Florida, Respondent.
    No. 2D02-389.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
    Rehearing Denied April 8, 2003.

      Warren R. Ross of Wotitzky, Wotitzky, Ross & Goldman, P.A., Punta Gorda, for Petitioners.
    Renee Francis Lee, County Attorney, and Brendan Bradley, Deputy County Attorney, Port Charlotte, for Respondent.
   ALTENBERND, Chief Judge.

Frank I. Massey and Stephen W. Massey (the Masseys) seek a petition for writ of certiorari to quash an order of the circuit court acting in its appellate capacity. The circuit court order affirmed an order issued by Charlotte County’s Code Enforcement Board imposing a lien in the amount of $10,240.90 on property owned jointly by the Masseys. Because the Code Enforcement Board denied the Masseys procedural due process and the circuit court applied the incorrect law in determining otherwise, we grant the petition. See, e.g., Maple Manor, Inc. v. City of Sarasota, 813 So.2d 204 (Fla. 2d DCA 2002) (granting certiorari because circuit court applied incorrect law in holding that nuisance board proceedings provided appropriate due process). Although we do not mandate any specific procedure for the Code Enforcement Board to follow in imposing liens upon property for code violations, when the imposition of a hen requires additional factual findings, due process requires some predeprivation or postdeprivation process for the property owner to test the validity of those findings.

On July 5, 2000, the Charlotte County Code Enforcement Board held a hearing at which it found the Masseys in violation of the Charlotte County building code because they failed to obtain appropriate permits before constructing improvements on their property. The Masseys received notice of, and participated in, the hearing. Based upon the hearing, the Board entered an order on July 11, 2000, finding the Masseys in violation of the building code and requiring them to remedy the violation by “applying for and obtaining a permit within 30 days from the date of this hearing and obtaining a final inspection within 6 months from the date of the hearing” or by removing any improvements and restoring the property to its original condition “with a demolition permit.” The order further provided:

Failure to comply with any of the provisions of this order shall be punished by a fine of $100.00 per day for each day the violation is shown to exist past the specified time for compliance. A fine may become a lien on your property pursuant to Section 162.09, Florida Statutes.

On November 13, 2000, a building inspections supervisor, Mr. LaPorta, submitted an “affidavit of noncomplianee” to the Code Enforcement Board, averring that the Masseys had not complied with the order of July 11, 2000, and asking the Code Enforcement Board to fine the Mas-seys $100.00 per day for a total of 101 days and to assess costs against them of $130.40. The affidavit stated: “[A] hearing is not necessary for the issuance of this order, and a certified copy of the order imposing fines and costs may be recorded as a lien against the real and personal property owned by the violator.” There is no indication in this affidavit that it was served on the Masseys.

On January 3, 2001, the Code Enforcement Board met. The minutes of the meeting reflect the following:

Mr. Bradley explained that the Masseys still have not pulled the proper permits. Mr. Prather motioned to approve the fine as stated in the Affidavit of Noncompliance. The motion was seconded by Mr. Adomatis and was passed unanimously.

The transcript of this meeting similarly reflects that the Code Enforcement Board summarily approved the imposition of the fines and a lien based solely upon the presentation of the affidavit and without further discussion. Accordingly, on January 4, 2001, the Code Enforcement Board issued an “order imposing penalty/lien” assessing fines and costs against the Mas-seys totaling $10,240.90 and imposing a lien on all non-exempt real and personal property owned by the Masseys in Charlotte County. The order did not indicate any avenue by which the Masseys could challenge the validity of these fines or the imposition of the lien. It is undisputed that the Masseys did not receive notice or an opportunity to be heard before the entry of this order. There is some indication that prior to the entry of this order, the Masseys had applied for the appropriate permits.

The Masseys sought review of the order imposing the fines and lien in circuit court, arguing that the imposition of the fines and lien without notice to them and an opportunity to be heard violated procedural due process. The circuit court affirmed the order. The Masseys now seek a petition for writ of certiorari to quash the circuit court’s order. We grant the petition.

This case involves our review of a circuit court order entered in its review capacity over a final administrative order. Under these circumstances, this court’s certiorari standard of review is limited to whether procedural due process was accorded and whether the circuit court applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). We conclude that the circuit court applied the incorrect law in rejecting the Masseys’ procedural due process arguments.

Chapter 162, Florida Statutes (2000), establishes the procedures that code enforcement boards must follow to enforce local building codes and ordinances. Pursuant to that chapter, a code inspector who discovers a violation must notify the violator and give him or her a reasonable time to correct the violation. § 162.06(2), Fla. Stat. (2000). If the violation is not timely corrected, the code inspector must notify the code enforcement board. Id. After notice to the property owner, the board must hold a hearing during which it must take testimony under oath from the code inspector and the alleged violator and must make findings and issue an order. § 162.07(3), (4), Fla. Stat. (2000). The order “may include a notice that it must be complied with by a specified date and that a fine may be imposed.” § 162.07(4). The order is then filed in the public records to provide notice to any subsequent purchasers or assigns. Id.

If the owner complies with the order, the board must issue an order acknowledging compliance and file it in the public records. Id. If the owner does not comply, the code inspector notifies the board, which “may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the enforcement board for compliance.” § 162.09(1), Fla. Stat. (2000). “If a finding of violation ... has been made as provided in this part, a hearing shall not be necessary for issuance of the order imposing the fine.” Id. Although fines cannot exceed $250 per day for a first violation or $500 per day for a repeat violation, there is no cap on the total fine that can be imposed unless the violation is irremediable. § 162.09(2)(a). In determining the amount of the fine to be imposed, the code enforcement board must consider (1) the gravity of the violation, (2) any actions taken by the violator to correct the violation, and (3) any previous violations committed by the violator. § 162.09(2)(b). Finally, the order imposing the fine may be recorded in the public records “and thereafter shall constitute a lien against the' land on which the violation exists and upon any other real or personal property owned by the violator.” § 162.09(3).

After the lien is imposed and recorded in the public records, the statute does not expressly provide for any further process before the code enforcement board. In fact, the statute does not specifically require the board to send the violator a copy of the lien order. Although an “aggrieved party” may appeal a final administrative order of the board to the circuit court, that appeal is not a hearing de novo but simply an appellate review of the record before the code enforcement board. § 162.11, Fla. Stat. (2000).

We have found no case law addressing whether the procedures required by chapter 162 comport with principles of due process, and we are not required to determine in this case whether the statute is facially unconstitutional. However, in this context we have previously noted, “It is necessary to fill the procedural gaps in [chapter 162] by the common-sense application of basic principles of due process.” City of Tampa v. Brown, 711 So.2d 1188 (Fla. 2d DCA 1998); see also Michael D. Jones, P.A. v. Seminole County, 670 So.2d 95, 96 (Fla. 5th DCA 1996) (stating, “[a]l-though [code enforcement] boards can assert a lien against real or personal property, presumably section 162.09 would be interpreted to permit the presentment of defenses prior to enforcement of any lien”).

In this case, the Code Enforcement Board provided notice and an opportunity to be heard before issuing its preliminary order finding the Masseys in violation of the building code, as required by the statute. Thus, it is clear the Masseys received due process leading up to the entry of the July 11 order finding them in violation of the building code. Thereafter, however, the Code Enforcement Board entered the lien order based solely upon the code inspector’s affidavit. The Masseys were not provided notice of the meeting at which the propriety of the fines and lien were addressed or any opportunity to be heard at the meeting or thereafter. The Code Enforcement Board did not consider the factors required by section 162.09(2)(b) in determining the amount of the fine imposed, and indeed there was no evidence presented to the Board regarding those factors. Moreover, the Code Enforcement Board provided no clear opportunity for the Masseys to challenge the facts upon which the lien order was based once it was issued. The question presented, therefore, is whether additional process was due to the Masseys either before or after the Code Enforcement Board ordered the imposition of the fines and lien.

Procedural due process imposes constraints on governmental decisions that deprive individuals of liberty or property interests. County of Pasco v. Riehl, 620 So.2d 229, 231 (Fla. 2d DCA 1993). It serves as a vehicle to insure fair treatment through the proper administration of justice where substantive rights are at issue. Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001) (citing Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991)). Procedural due process requires both fair notice and a real opportunity to be heard “at a meaningful time and in a meaningful manner.” Keys Citizens, 795 So.2d at 948 (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). The specific parameters of the notice and opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. Keys Citizens, 795 So.2d at 948 (citing Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)); see also Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002).

In order to determine what process is constitutionally required, at least three factors are relevant: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and (3) the government’s interests, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Keys Citizens, 795 So.2d at 948-49; Riehl, 620 So.2d 229. Procedural due process does not always require a predeprivation hearing. In some cases, a postdeprivation hearing is sufficient. This is particularly so in eases where there has been some initial predeprivation procedure. See Mackey v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979).

Here, the Masseys have a compelling interest in retaining their real and personal property free of undue interference or improper clouds of title. See Real Prop., 588 So.2d at 964 (stating, “[property rights are among the basic substantive rights expressly protected by the Florida Constitution”). Moreover, property rights are particularly sensitive where residential property is at stake. Id. As such, “the means by which the state can protect its interests must be narrowly tailored to achieve its objective through the least restrictive alternative when such basic rights are at stake.” Id.

The risk of a completely erroneous deprivation in this ease is probably low given the process provided to the Masseys prior to the July 11 order finding them in violation of the building code. However, there remains a serious risk of an erroneous deprivation because the amount of fines imposed and the propriety of the lien depended upon factual findings that the Masseys were never given an opportunity to protest. These findings involved moderately complex issues, including whether the alleged violation continued, how long it continued, and whether there was any reason to reduce the per diem fine imposed in light of attempts by the Masseys to comply. To remedy the risk of improper seizure, there must be some type of procedure to allow the property owner to address these new findings. Cf. Riehl, 620 So.2d 229 (holding statute establishing “dangerous dog” classification violates due process; statute provides no forum for dog owner to raise absolute defense to classification).

Finally, although Charlotte County has an interest in protecting the safety and welfare of its citizens by insuring compliance with the building code and has an interest in expeditiously enforcing its orders without undue time and expense, there are further procedural safeguards that could be imposed that would not be unduly burdensome.

Given these considerations, we conclude the Masseys were not afforded procedural due process by the Code Enforcement Board. Cf. Real Prop., 588 So.2d 957 (concluding that in forfeiture proceedings regarding real property, due process required notice and adversarial hearing on question of probable cause prior to any initial restraint on real property other than lis pendens); State ex rel. Pittman v. Stanjeski, 562 So.2d 673 (Fla.1990) (avoiding any constitutional infirmities in act requiring entry of judgments for delinquent child support by interpreting act to require opportunity to be heard prior to entry of judgment); see also Baker v. Simpson, 773 So.2d 637 (Fla. 5th DCA 2000) (holding circuit court violated due process by imposing lien on property without further opportunity for owner to be heard, even though owner failed to comply with prior court order to remove property within thirty days). Although this court will not mandate any specific procedure that the Code Enforcement Board must follow, that procedure must provide the property owner with notice and an opportunity to be heard concerning any factual determination necessary to impose a fine or create a lien.

We quash the order of the circuit court affirming the order of the Code Enforcement Board and remand for further proceedings consistent with this opinion.

WHATLEY, J., and GREEN, OLIVER L., SENIOR JUDGE, Concur.

      . Although these considerations apply to the issuance of a lien order, it is unclear when these issues should be addressed if no hearing is held. Moreover, even though section 162.09(2)(c) permits a code enforcement board to reduce any fine it imposes, the statute provides no formal procedure to request or grant that relief.

      . In addition, at least one court has held that a property owner is prohibited from challenging the factual findings of a code enforcement board in subsequent proceedings to foreclose a lien imposed by the board, because such defenses are properly raised before the board or on appeal. See Kirby v. City of Archer, 790 So.2d 1214 (Fla. 1st DCA 2001).

      . For example, the Code Enforcement Board could mail the "order imposing penalty/lien” to the property owner with a notice that the owner could request a hearing to challenge the fine and the resulting lien within twenty days from the date of the order. The notice could explain that the lien order would be recorded after twenty days unless the property owner filed a timely request for hearing. Presumably, the hearing would be limited to a consideration of only those new findings necessary to impose an appropriate fine and create a lien.


author: ORFINGER, J.

text:
    John ROMINE and Rebecca Romine, etc., Appellants, v. FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellee.
    No. 5D02-1127.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied April 16, 2003.

      Scott R. McMillen of McMillen, Reinhart & Voght, P.A., Orlando, for Appellant.
    Wilbur E. Brewton and Kelly B. Plante of Brewton, Plante & Plante, P.A., Tallahassee, for Appellee.
   ORFINGER, J.

John and Rebecca Romine, individually and as parents and next friends of Loren Romine, a minor, appeal a final administrative order dismissing with prejudice their petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (“NICA”), sections 766.301-.316, Florida Statutes (1998). Ruling on stipulated facts, the administrative law judge (ALJ) determined that although Loren suffered a “birth-related neurological injury,” the Romines’ were precluded from obtaining NICA benefits because they had settled a medical malpractice claim against the doctor and hospital involved in Loren’s birth. The sole issue on appeal is whether it was error to retroactively apply the July 1,1998 amendment to section 766.304, Florida Statutes, barring the recovery of NICA benefits where,, as here, there has previously been a civil recovery.

Loren, the infant daughter of John and Rebecca Romine, was born January 26, 1998, with an injury to the brain or spinal cord caused by oxygen deprivation due to a mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period, which rendered her permanently and substantially mentally and physically impaired. Loren’s injury was thus compensable under NICA. In December, 1998, the Romines served a notice of intent to initiate litigation for medical negligence pursuant to section 766.106, Florida Statutes (1998), on Dr. Samir Shakfeh, the attending obstetrician, and HCA Health Services d/b/a Columbia Regional Medical Center-Oak Hill, the hospital where Loren was born. Shakfeh and HCA were both participating NICA providers.

After Shakfeh and HCA denied the Ro-mines’ claim, suit was filed. Shakfeh and HCA denied liability for Loren’s injuries and asserted NICA immunity as an affirmative defense. HCA then filed a motion to abate the civil action until the Romines filed a petition for NICA benefits with the Division of Administrative Hearings (DOAH), and a determination had been made whether Loren suffered an injury-compensable by NICA and whether Shak-feh and HCA had complied with NICA’s notice provisions. Before the motion to abate was heard by the court, the parties settled the civil suit. The Romines then filed a claim for NICA benefits. NICA responded to the petition for compensation by asserting that the Romines’ claim was waived or otherwise barred because of their recovery in the civil action. Additionally, NICA asserted the affirmative defenses of election of remedies, estoppel, and set off.

After considering the parties’ stipulation of facts, the ALJ entered a detailed final order, determining that although Loren would have been entitled to receive NICA benefits, she was precluded from doing so because she had already “recovered” in her civil action for medical malpractice against the treating obstetrician, Shakfeh, and the hospital, HCA. While acknowledging that the doctrine of election of remedies did not apply to bar a petition for benefits under the NICA statutes in effect at the time of Loren’s birth, the ALJ concluded that chapter 98-118, Laws of Florida, amending chapter 766, effective July 1, 1998, included such a prohibition. Thus, the ALJ found that because the Romines’ claim for benefits was filed after the effective date of the statutory amendment, the amendment applied and barred the Romines’ claim.

Because the interpretation of a statute is a pure question of law, we review the matter de novo, See Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002). NICA was established by the Legislature to provide no-fault compensation for certain infants who sustained birth-related neurological injuries. See §§ 766.301-.316, Fla. Stat. (1998); see also David M. Studdert, et al., The Jury is Still In: Florida’s Birth-Related Neurological Injury Comp. Plan After a Decade, 25 J. Health Pol. Pol’y & L. 499 (June 2000). In its current form, it provides exclusive no-fault benefits to eligible claimants in lieu of the claimants’ traditional common law tort rights. See § 766.303(1), (2), Fla. Stat. (1998). See Gilbert v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 724 So.2d 688, 690 (Fla. 2d DCA 1999).

The right to receive NICA compensation is intended to be a substitute for common law rights, which would otherwise be available. As a result, the statutes preclude bringing a civil lawsuit against healthcare providers participating in NICA until after a determination of NICA compensability. Humana of Fla., Inc. v. McKaughan on Behalf of McKaughan, 652 So.2d 852 (Fla. 2d DCA 1995), app’d sub nom. Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974 (Fla.1996). As it now stands, a claimant cannot assert a NICA claim and make a civil recovery. However, before the July 1, 1998 amendment, a claimant could bring a civil action for birth related neurological injuries until there had been a final determination by the DOAH on the issue of NICA compensability.

NICA’s assertion that the doctrine of election of remedies bars the Romines’ claim was rejected in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association. In construing the pre-1998 amendment version of NICA, the court held the doctrine of elections of remedies did not bar a NICA eligible claimant from setthng his or her case and then seeking benefits under NICA. The court explained:

We first address the issue of whether the receipt of compensation by a “NICA baby” from a source other than NICA “would thwart the purpose of the plan.” It clearly does not. Section 766.31(l)(a), Florida Statutes (Supp.1988), recognizes that a NICA infant may receive compensation from other sources, such as state and federal governments and health insurance. It provides that these benefits shall be an offset to benefits under the Plan. The law does not address benefits which may be received from other collateral sources, such as charities, or even from the health care provider on a voluntary basis. Therefore, the fact that Michael has received benefits from other sources, in and of itself, has no effect on his entitlement to Plan benefits.
The sole issue is whether the obtaining of benefits as a product of a civil action forecloses access to Plan benefits. The answer is yes if that action resulted in a factual determination that the infant was not a NICA baby. Conversely, if an administrative petition results in a determination that the infant is a NICA baby, a civil action is foreclosed. The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby.
Finally, the facts of this case do not fit within the law of election of remedies. Our leading authority in this area is Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (Fla.1936), where the court explained:
An election of remedies presupposes a right to elect. It is a choice shown by an overt act between two inconsistent rights, either of which may be asserted at the will of the chooser alone. It is generally conceded that to be conclusive it must be efficacious to some extent. A position taken which does not injure the opposite party is not an election which precludes a change or raises an estop-pel. The election is matured when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other.
Here, the guardian’s positions in the civil action and the administrative proceeding were inconsistent, but he did not have the option of choosing his theory of recovery. His theory of recovery was dependent upon the determination of whether Michael met the statutory definition of a NICA baby. Michael’s remedies, therefore, were not coexistent and inconsistent as is required to apply the election of remedies doctrine. See Barbe v. Villeneuve, 505 So.2d 1331 (Fla.1987).
The fact that the defendants in the civil action elected to “buy their way out” of possible liability in no way adversely affects NICA. NICA has no more or no less liability now then it did absent the civil action. Thus, the doctrine of election of remedies does not apply. Therefore, we reverse the administrative law judge’s summary order dismissing the petition for benefits under the Plan and remand for the resolution of factual issues which will determine NICA’s liability.

Gilbert, 724 So.2d at 690-92.

In an effort to prevent the recurrence of the Gilbert situation, the Legislature amended section 766.304 in 1998 to preclude both a civil and a NICA claim recovery:

The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303. If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law. The findings of fact and conclusions of law of the administrative law judge shall not be admissible in any subsequent proceeding; however, the sworn testimony of any person and the exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.801-766.316 if the claimant recovers or final judgment is entered. The division may adopt rules to promote the efficient administration of, and to minimize the cost associated with, the prosecution of claims.

Ch. 98-113, § 1, at 524, Laws of Fla. (emphasis added). In doing so, the Legislature expressed its clear intent that the amendment be retroactively applied to any NICA claim filed on or after July 1, 1998, regardless of when the child was born:

Section 6. The amendments to section 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed before or after that date and to that extent shall apply retroactively regardless of the date of birth.

Ch. 98-113, § 6, at 525, Laws of Fla.

The 1998 amendment to section 766.304, if applicable to the Romines’ claim, significantly changes their ability to recover under NICA. Prior to the 1998 amendments, the Romines could have recovered both under NICA and in a civil action. See Gilbert> 724 So.2d at 690. However, the 1998 amendment, if applicable, bars the Romines from receiving NICA benefits because they recovered a settlement in their medical malpractice case.

The Romines argue that a retroactive application of the 1998 amendment to section 766.304 would materially alter their substantive rights to receive benefits under NICA. NICA asserts that the ALJ correctly applied the 1998 amendment to section 766.304 because it is clear that the Legislature intended the amendment to section 766.304 to be retroactive. NICA further contends that the amendment is purely procedural and did not change substantive rights to compensation.

When determining whether statutes should be retroactively applied, two inquiries arise. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999). See Campus Communications, Inc. v. Earnhardt, 821 So.2d 388, 395 (Fla. 5th DCA 2002). The first is a question of statutory construction and requires the application of a legal presumption that statutes, in the absence of clear legislative intent to the contrary, should apply prospectively. See id. If the Legislature clearly expresses an intent that the statute applies retroactively, the court must then determine whether retroactive application is constitutionally permissible. Chase Fed., 737 So.2d at 499 (citing State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995)). Courts will not permit the retroactive application of a statute if the statute impairs vested rights, creates new obligations, or imposes new penalties, even when the Legislature expressly states that a statute is to have retroactive application. See Laforet, 658 So.2d at 61; see also Chase Fed.; McCord v. Smith, 43 So.2d 704, 708-09 (Fla.1949).

Here, chapter 98-113, section 6, expressly provides for the retroactive application of section 776.304. Therefore, we need not apply the general rules of construction to the statute or indulge the presumption in favor of prospective application. See Chase Fed., 737 So.2d at 500 (“Of course, where the language of a statute contains an express command that the statute is retroactive, there is no need to resort to these canons of statutory construction.”). Our task is only to determine if retroactive application of section 766.304 is constitutionally permissible.

A complete understanding of the constitutional limitations on the Legislature’s ability to enact a statute with retroactive application requires an appreciation of the differences between procedural and substantive rights. In Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994), the supreme court said that “substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” A substantive, vested right is “an immediate right of present enjoyment, or a present, fixed right of future enjoyment.” City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513, 514-15 (1935). “[T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand .... ” Div. of Workers’ Comp., Bureau of Crimes Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982) (quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.1975)). Within the context of the constitutional proscription against retrospective application of legislation, a vested right is a “fixed” right that cannot be abrogated or taken away without violation of the possessor’s right to due process. Campus Communications, Inc., 821 So.2d at 398 (citing Chase Fed., 737 So.2d at 503 (“Generally, due process considerations prevent the State from retroactively abolishing vested rights.”) (citation omitted)).

Because NICA has long been compared to the workers’ compensation system, cases construing the workers’ compensation statutes provide us with guidance. Fla. Birth-Related Neurological Injury Comp. Ass’n v. Carreras, 633 So.2d 1103, 1107 (Fla. 3d DCA 1994) (the NICA’s no-fault system “is one comparable to the workers’ compensation system”). The general rule in workers’ compensation cases is that the substantive rights of the parties are fixed by the law in effect on the date of the injury, but that no party has a vested right in any particular procedure. Consequently, procedural amendments may be applied retroactively. McCarthy v. Bay Area Signs, 639 So.2d 1114, 1115— 16 (Fla. 1st DCA 1994).

Under NICA, an injured infant or his personal representative may seek compensation under NICA by filing a claim for compensation with the DOAH within five years of the infant’s birth. See §§ 766.302(3), 766.305(1), & 766.313, Fla. Stat. (1998). The date of the child’s birth and the injuries sustained at that birth, if any, establish the right of the infant to receive NICA benefits and the scope of those benefits. Thus, we conclude that the Romines had a substantive, vested right the day Loren was born, because they had “a present, fixed right of future enjoyment” to receive NICA benefits if she was otherwise qualified to receive such benefits. See Brevda, 420 So.2d at 891. We conclude that the amendment is more than a mere change in procedure; rather, it changes the right itself.

For the foregoing reasons, we conclude that the ALJ erred in applying the 1998 amendment to section 766.304, Florida Statutes (1998), to bar the Romines’ claim. We remand this matter to the DOAH for further proceedings consistent herewith.

REVERSED AND REMANDED.

SHARP, W„ and GRIFFIN, JJ., concur.

      . In section 766.315, Florida Statutes, the Legislature created the Florida Birth-Related Neurological Injury Association (NICA), the appellee, to administer NICA. See §§ 766.315, 766.302, Fla. Stat.

      . NICA was not a party to the settlement agreement, nor was it advised of, nor did it participate in the hearing on the petition to approve settlement. The written agreement between the Romines and HCA included the following language:
      The parties agree that no part of the Settlement is intended to impair in any manner plaintiff’s rights to pursue NICA benefits nor is it intended to be a release of any NICA benefits that may be due plaintiffs. It has always been and remains the position of the Defendant that this claim is covered by NICA. The Defendant agrees that it will take no action and refrain from doing anything to defeat plaintiff's NICA claim in any way....
      The written agreement between the Romines and Shakfeh contained a similar provision.

      . The ALJ stated that the parties had stipulated, and the proof was otherwise compelling, that Loren sustained a "birth-related neurological injury,” as that term is defined in the NICA statute.

      . We observe, as did the court in Gugelmin v. Division of Administrative Hearings, 815 So.2d 764 (Fla. 4th DCA 2002), that the ALJ had jurisdiction to determine only:
      (1) whether the injury claimed is a birth related neurological injury;
      (2) whether the obstetrical services were delivered by a participating physician during the course of labor, delivery, or resuscitation, and
      (3) the amount of compensation, if any, awardable under the statute.
      § 766.309, Fla. Stat. (1999). Thus, although section 766.304 grants exclusive jurisdiction to the ALJ to determine whether a claim is compensable under NICA, there is nothing in the statutory scheme that gives the ALJ authority to determine the impact of those findings on a claimant's common law rights and remedies. Rather, decisions regarding a claimant's election of remedies ultimately reside with the circuit court. Gugelmin, 815 So.2d at 767.
      However, under section 120.68(7), Florida Statutes (1998), we are authorized to set aside or modify a final agency action, such as the final order at issue in this case, if we find that the ALJ’s interpretation of the NICA statute is erroneous. See § 120.68(7), Fla. Stat. (1998). We, therefore, have authority to address the issue of law before us.

      . For purposes of clarity, this statute was later amended. See § 766.304, Fla. Stat. (Supp.1998).

      . In Metropolitan Dade County v. Chase Federal Housing Corporation, 737 So.2d 494 (Fla.1999), the Florida Supreme Court recognized that "when ‘an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.’ " Id. at 503 (quoting Lowry v. Parole & Probation Comm’n, 473 So.2d 1248, 1250 (Fla.1985) (emphasis in original)). Relying on this case, NICA argues that the 1998 amendment could be read as clarifying the original legislative intent regarding the operation of NICA. In O-Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So.2d 624, 626-27 (Fla. 5th DCA 2000), we held that the Legislature, by amending section 766.304 to grant exclusive jurisdiction to an administrative law judge to determine whether a claim filed under this act is compensable, clearly meant to correct the dual jurisdiction problem that existed under Florida case law. We believe that NICA is correct when it argues that the Legislature amended section 766.304 to provide an exclusive no-fault benefit in lieu of traditional common law tort rights. However, that does not address whether the July 1, 1998 amendment to section 766.304 can be retroactively applied to a child bom earlier to preclude NICA benefits when there has previously been a civil recovery.

      . The NICA statute was proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. Galen of Fla. Inc. v. Braniff, 696 So.2d 308, 310 (Fla.1997); Gilbert, 724 So.2d at 692 n. 1 (citing Galen). In its November 6, 1987 report, the Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then newly enacted Virginia plan (1987 Va. Acts Ch. 540). Id. A Virginia appellate court recently held that amendments to the Birth-Related Neurological Injury Compensation Act, which provided exclusive remedy for claims against participating neurological injury, did not apply retroactively, and, thus, the wrongful death cause of action by the estate of infant, which accrued prior to the enactment of the amendment, was not barred. See Berner v. Mills, 38 Va.App. 11, 560 S.E.2d 925 (2002). Our analysis in this case appears consistent with the Virginia court.


author:
THOMPSON, C.J.
      HARRIS, C., Senior Judge,

text:
    BANKFIRST, Appellant, v. UBS PAINE WEBBER, INC. et al, Appellees.
    No. 5D02-300.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied April 15, 2003.
    Jeffry R. Jontz of Carlton Fields, P.A., Orlando, for Appellant.
    Ronald E. Crescenzo and Jason S. Ha-selkorn of Boose Casey Ciklin Lubitz Martens McBane & O’Connell, W. Palm Beach, for Appellee, UBS Paine Webber.
    David S. Cohen, Law Offices of David S. Cohen, Orlando, for Appellee, Jonathan Al-per.
   THOMPSON, C.J.

The order dismissing Bankfirst’s claim against UBS Paine Webber, Thomas La-vecchia, Jonathan Alper, and Mark Koteen is affirmed based on our conclusion that neither section 222.30 nor chapter 726, Florida Statutes, creates a cause of action against a party who allegedly assists a debtor in a fraudulent conversion or transfer of property, where the person does not come into possession of the property. See Forum Ins. Co. v. Devere Ltd., 151 F.Supp.2d 1145 (C.D.Cal.2001); Elliott v. Glushon, 390 F.2d 514 (9th Cir.1967); Mack v. Newton, 737 F.2d 1343 (5th Cir.1984); Klein v. Tabatchnick, 610 F.2d 1043, 1048 n. 8 (2d Cir.1979); Jackson v. Star Sprinkler Corp. of Florida, 575 F.2d 1223, 1234 (8th Cir.1978); compare Yusem v. South Florida Water Management Dist. 770 So.2d 746 (Fla. 4th DCA 2000).

AFFIRMED.

SAWAYA, J., concurs.

HARRIS, C., Senior Judge, dissents, with opinion.

HARRIS, C., Senior Judge,

dissenting.

The issue in this case is whether lawyers and financial advisors who knowingly conspire with a client to defraud the client’s creditors by intentionally hindering, delaying, or defrauding creditors of the debtor may be held liable in damages for the loss resulting to the creditors.

Here, it is alleged that Legendre, in order to successfully obtain a large loan for his corporation based on his personal guarantee, represented to BankFirst that he had substantial non-exempt assets. Such representation was true at the time it was made; however, when the corporation fell on hard times, Legendre went to his financial consultant associated with Paine Webber and told him of his corporation’s problem, which placed his individual assets at risk. The consultant advised Legendre to put no more money into the corporation but instead to go to a lawyer, Alper, who specialized in “asset preservation.” According to the complaint , Alper with full knowledge that Legendre was intending to defraud BankFirst by hiding his assets, set up a trust to be administered by a bank in the Bahamas but which would be assisted by Paine Webber in the United States. Substantial assets formerly in the name of Legendre were transferred into the trust. Alper also formed a corporation with himself as registered agent for the purpose of managing Legendre’s various investments. Although Legendre owned all of the rights to the new corporation, such interest was assigned without recourse to the Bahamian bank. An account was set up by the new corporation at Paine Webber and money was transferred to that account from the Bahamian bank and used to purchase a home in Indiana and to pay Legendre’s living expenses.

When Legendre subsequently went into bankruptcy and BankFirst’s $650,000 judgment went unsatisfied, the bank sued Legendre and others, including lawyers and the financial consultants. Count III, involved in this appeal, alleged that Alper (and Koteen, another lawyer who served as manager/attorney for the new corporation) and Lavecchia, the financial consultant, along with Paine Webber, conspired with Legendre to hinder and delay the bank’s collection of its debt by fraudulently transferring assets and sought damages accordingly.

The trial court dismissed the action with prejudice against the lawyers and the financial consultants, apparently believing that a lawyer cannot conspire with a client to commit a civil wrong and because it believed that a fraudulent conveyance action, the underlying wrong in this case, cannot sustain a claim for damages. Because I disagree with both contentions, I would reverse and put the bank to its proof.

While I agree that extreme caution should be taken before holding an attorney liable in civil conspiracy for a wrong committed by a client, still if a conspiracy is properly proved and the lawyer is shown to have willingly and knowingly participated in it, there is no immunity. See Blatt v. Green, Rose, Kahn, & Piotrkowski, 456 So.2d 949 (Fla. 3d DCA 1984). See also, McElhanon v. Hing, 151 Ariz. 403, 728 P.2d 273 (1986) (a cause of action lies against a judgment debtor’s attorney who conspires with the debtor to defraud the creditor), and Joel v. Weber, 197 A.D.2d 396, 602 N.Y.S.2d 383 (1993) (plaintiff successfully pled cause of action under New York’s Debtor and Creditor Law that lawyer aided and abetted a fraudulent conveyance).

If it is fraud for a debtor to convey assets to avoid creditors, what possible policy reason is there to immunize a lawyer wlm knowingly and willingly makes it possible for his client to commit this fraud? Is it because one who wishes to defraud his creditors has a right to competent legal assistance to do so or is it merely a way of protecting the species? If it is only through the efforts of a lawyer that this fraud can be committed, such conduct should not go unrewarded.

The next issue is whether damages can be an alternative remedy under a fraudulent conveyance action. I submit that the better rule is that, under certain circumstances, damages is an appropriate remedy and sometimes the only remedy. Certainly, setting aside the fraudulent conveyance is the focus of the law’s remedy. However, subject to applicable principles of equity, any other relief the circumstances may require is specifically authorized. See section 726.108(l)(c)3, Florida Statutes. Does the reference to “subject to applicable-principles of equity” limit the “any other relief’ that circumstances may require to only traditional equitable remedies or does it permit any remedy which is equitable (and fair) under the circumstances?

The court in Hansard Construction Corporation v. Rite Aid of Florida) Inc., 783 So.2d 307 (Fla. 4th DCA 2001), held that a plaintiff may recover money damages against the transferor under the “any other relief’’ provision. In Profeta v. Lombardo, 75 Ohio App.3d 621, 600 N.E.2d 360 (1991), the Court approved money damages awarded under similar circumstances and under a similar statutory provision.

In Johns v. A.T. Stephens Enterprises, Inc., 815 So.2d 511, 516 (Ala.2001), a case involving a similar provision, the court concluded “not only that the law permits damage awards in cases involving fraudulent conveyances, but that the facts of this case require such an award.”

Under the facts alleged in this case, the lawyers and the financial consultants, for the purpose of and with the intent to defeat the legitimate statutory rights of BankFirst not to have its debtor transfer assets in order to hinder or delay the rightful collection of its debt, devised and implemented a plan by which the debtor was able to transfer his money into a trust and out of the country and yet maintain the benefits of his wealth through a holding corporation which acted as an intermediary between the debtor and the off-shore bank. This tactic removed the debtor’s money from the immediate reach of Bank-First and hindered and delayed the bank in the execution of its lawful judgment and resulted ultimately in its substantial economic loss.

I believe BankFirst stated a cause of action for civil conspiracy and, if those transferred assets are no longer subject to recovery, or to the extent they are not, then it is only equitable and just that damages be substituted in lieu of such assets. Indeed, damages would be the only remedy available. As stated in Summers v. Hagen, 852 P.2d 1165 (Alaska, 1993), an action for conspiracy to fraudulently convey property, if the remedy of voiding the transfer is inadequate, the plaintiff is entitled to the lesser of the value of the property fraudulently transferred or the amount of the debt.

I would reverse and reinstate the complaint.

      . I recognize that allegations are easy to make; proof is often hard to come by. But here we are dealing only with allegations.


text:
    Joseph O. McCALLUM, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1706.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Joseph 0. McCallum, Belle Glade, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Joseph O. McCallum, appellant, appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand.

Appellant entered a nolo contendere plea to one count of second degree murder with a firearm and two counts of armed burglary. He was sentenced on December 28, 1990, pursuant to a negotiated plea agreement, to concurrent terms of sixty years in prison, with a three-year mandatory minimum for use of a firearm. He did not file a direct appeal, so the time for filing a Rule 3.850 motion expired in January, 1993.

Since February 18, 1994, when he filed his first Rule 3.800(a) motion to correct illegal sentence, appellant has argued (1) the sentence imposed for the second degree murder was illegal because it exceeded the statutory maximum term of years for a life felony at the time the offense was committed, see § 775.082(3)(a), Fla. Stat. (1989), and (2) the two concurrent sixty-year terms for armed burglary were illegal because they were based on the illegal term for the primary offense. This court affirmed the summary denial of that motion. See McCallum v. State, 644 So.2d 326 (Fla. 4th DCA 1994). Appellant’s claims, both in the lower tribunal and on appeal, were regularly denied until counsel was appointed to represent him on a pro se motion for clarification of judgment and sentence which he filed on May 14, 2000. Pursuant to a stipulated agreement, he was resentenced on October 27, 2000, to the maximum possible sentence for the murder charged in count I, which was forty years in prison with a three-year mandatory minimum.

No appeal was taken from the resen-tencing order, but on April 23, 2001, within two years of the resentencing becoming final, appellant filed the instant sworn pro se motion for postconviction relief, in which he sought to withdraw his plea, claiming he was wrongfully induced to plead to an illegal sentence based on the misadvice of counsel. He alleged the murder charge was the primary offense and no specific sentence was discussed in connection with the two burglary charges; rather, he was to be sentenced on them merely concurrently to the primary charge. Had appellant been correctly advised the maximum possible sentence for the murder was forty years in prison, he would not have agreed to be sentenced to sixty years in prison for each of the burglaries. The trial court summarily denied the motion as untimely, successive, and procedurally barred. This appeal followed.

Under these unique circumstances, we disagree with the conclusion of the lower tribunal that the motion was untimely under Rule 3.850(b) where it was filed more than two years after the time for taking an appeal from the initial judgment and sentencing expired. The trial court’s reduction of the murder sentence to forty years was a fact which appellant could not have ascertained within two years of the original sentencing proceeding. See Fla. R.Crim. P. 3.850(b)(1) (recognizing exception to the two-year time limit when motion alleges “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence”). The violation of the plea agreement, which allegedly included no separate provision concerning sentencing for the burglary charges other than they would be concurrent to the murder sentence, and/or counsel’s misadvice as to the legality of the original sentence, could not have been ascertained prior to the time of resentencing. As such, the motion was timely filed within two years of the time for taking an appeal from the resentenc-ing. See Porter v. State, 561 So.2d 1325, 1326 (Fla. 4th DCA 1990).

Appellant’s motion also is not successive to his earlier motions, see Fla. R.Crim. P. 3.850(f), some of which raised related issues, as all were filed prior to the time the trial court recognized the illegality of the sixty-year murder sentence. The claim is neither the same as a previously asserted claim, nor is it one that could have been asserted in one of appellant’s prior motions, because it depended upon the resentencing.

Accordingly, we reverse and remand for the trial court to consider the motion on the merits.

POLEN, C.J., WARNER and KLEIN, JJ., concur.

      . He also pleaded to one count of grand theft, to which he was sentenced to five years in prison, concurrently. That count is not at issue in the instant case.


text:
    Rosalie SWAIN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-2355.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2003.
    Rehearing Denied April 7, 2003.
    Rosalie Young-Swain, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See R.H. v. Department of Children and Families, 724 So.2d 1273 (Fla. 5th DCA 1999); Wolfson v. Unemployment Appeals Commission, 649 So.2d 363 (Fla. 5 th DCA 1995).

SHARP, W., SAWAYA and ORFINGER, JJ., concur.