author: FARMER, C.J.

text:
    STEVE OWREN, INC., d/b/a Treasure Coast Realty GMAC, Appellant, v. Lynne CONNOLLY, Appellee.
    No. 4D03-4143.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.

      Shelly Stirrat of Fox, Wackeen, Dungey, Seeley, Sweet, Beard & Sobel, L.L.P., Stuart, for appellant.
    Jack J. Aiello and Kip Davis of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee.
   FARMER, C.J.

The trial court refused to compel arbitration of a real estate agents suit against her former employing broker. The denial was based on the courts finding that the agent had never signed the arbitration agreement and had not in some other way manifested assent to its terms. We affirm and write briefly to explain our conclusion.

The controversy here is more factual than legal. The agent testified unequivocally that she never signed the employment agreement with the arbitration provision. She did not say that she had no memory of signing it; instead she said that she simply did not sign it. She was emphatic that she never agreed to arbitration.

The brokers contrary evidence was basically habit and practice. No witness testified that the agent actually signed the document in his/her presence. No one remembered positively seeing the document with her signature on it. Rather the brokers evidence was all about how it requires every agent to sign such agreements, and that a signed agreement simply must have been in her file at some time even though none was found and produced at the hearing. The broker showed that it is necessary for all agents to-sign a partic-. ular form, other than the document with the arbitration provision, which is required by the governmental agency regulating brokers and agents. Again this was habit and practice evidence, rather than a positive and absolute contradiction of the agents testimony. Essentially the brokers position was that it was unthinkable that she did not sign the agreement, even if it could not produce one.

In denying arbitration, the trial court nevertheless did indeed think that she had not signed the agreement to arbitrate. The court said:

[Broker] did not provide- sufficient evidence of an existence of a signed independent contractor agreement. [Agent] is the most credible and knowledgeable about the fact that no independent contractor agreement was ever signed. No signed independent contractor agreement was submitted. It does not exist apparently. Nobody has a copy of it. Nobody has the original. There is no agreement to arbitrate existing, [e.s.]

Thereupon, the court denied the motion to compel arbitration.

The credibility of its witnesses having failed, on appeal counsel for the broker creatively argues that the court should nevertheless hold the agent bound by the unsigned agreement because she worked for the broker for two years. In a nutshell, the argument is that in spite of refusing to agree to arbitration, the agent must be deemed bound by its terms because she accepted the benefits of employment with the broker for . that period of time. The idea is that the defending party to the contract should get the benefit of a provision expressly rejected by the complaining party because she had the benefit of the defending party’s performance of other terms of employment, namely the payment of a share of commissions earned by the agency.

The problem with this argument is that with even more logic it could be turned around. The agent could argue that she should not be bound by the rejected term because without an arbitration agreement the defending party got the benefit of her performance of other terms of employment, namely her sales of properties ■ from which the broker earned a share of the commission. Perhaps the appropriate rule is really that, as between these two parties, the one who should lose on the issue of an agreement to arbitrate is the one who failed to carry its burden of proving an acceptance of arbitration as a contractual remedy. See Shearson Lehman Hutton Inc. v. Lifshutz, 595 So.2d 996, 997 (Fla. 4th DCA 1992) (proponent of arbitration has burden of establishing an enforceable written agreement, to .arbitrate). That is the one we apply today.

We have only recently emphasized the rule that no party may be forced to submit' a dispute to arbitration that the party did not intend and agree to arbitrate. Morgan Stanley DW Inc. v. Holliday, 873 So.2d 400, 401 (Fla. 4th DCA 2004) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). The brokers argument would thus eviscerate the intended effect of the fundamental fact resolved by the trial court: that the agent refused to agree to arbitration. Thus, even assuming that mere performance of the other provisions of a carrier agreement could ever be used to infer assent to an arbitration provision contained therein, the theory could not possibly work where the factual finding is that the non-assenting party expressly refused to agree to arbitration.

AFFIRMED.

GROSS and MAY, JJ., concur.

      . She actually worked as an independent contractor for the broker. We use the term employing broker with that understanding.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Lynda Lee LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2262.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Lynda Lee Love [“Love”] appeals her judgment and sentence and the denial of her post-conviction motion, to withdraw her plea. We find no error and affirm.

Love first complains that the competency hearing held by the trial court prior to entry of her plea was inadequate. We find no merit to this claim of error. There was no objection to the proceeding and no reservation of the right to appeal this issue. She had been examined within the preceding month by two psychiatrists and, given that both reports showed she was competent, both counsel agreed the court could rule based on the reports.

Love next complains that the trial court abused its discretion by the denial of her motion to withdraw her plea. She contends the plea was involuntary because: (1) she had taken a double dosage of Paxil on the day of the plea, which affected her comprehension, as shown by her “rambling” statement; and (2) she suffers from Dependent Personality Disorder, which makes her acquiescent to male authority figures. She _ argues that, based on the evidence .presented to the court, she should have been permitted to withdraw her plea.

“The trial court’s decision regarding withdrawal of a plea will generally not be disturbed on appeal, absent' a showing of an abuse of discretion.” Hunt v. State, 613 So.2d 893, 896 (Fla.1992); Cella v. State, 831 So.2d 716, 720 (Fla. 5th DCA 2002). Here, the trial court plainly did not abuse its discretion by the denial of Love’s motion. As the trial court indicated, Love exhibited no real confusion or duress during the hearing. She admitted to taking several medications, but repeatedly assured the trial court that her medications had no effect on her ability to understand the proceedings. She was able to speak coherently and intelligently regarding her background and disabilities, after which the trial court concluded that, “I am comfortable-that your mind is clear, at least not influenced by any medications at this time.” Love also indicated she understood the rights she was giving up by entry of a plea and the sentence she could receive. She independently stated that she had been told her sentence “could be thirty-five to life,” and agreed that no one had promised her she would receive any specific sentence. Love gave a cogent reason for entering a plea — that she had no “credible witnesses” to testify on her behalf. There was also no threatening or intimidating behavior on the part of the trial court. Given this record and evidence from the pharmacist that confusion is a rare side effect of Paxil, the trial court acted well within its discretion in rejecting Love’s motion to withdraw her plea.

Love finally contends that the judgment erroneously reflects that conspiracy to commit first-degree murder is a capital felony. The State concedes this scrivener’s error, but maintains the issue is not cognizable on appeal because of the failure to first present it to the trial court. The error did not affect Love’s scoresheet or sentence, but it is a mistake that should be corrected on application by motion to the trial court.

AFFIRMED.

" PLEUS and PALMER, JJ., concur.


text:
    Florence KEETON, Appellant, v. Tommy BRYANT, Appellee.
    No. 5D03-3347.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.

      Dawn Marie Bates Buchanan, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Petitioner below, Florence Keeton [“Keeton”], appeals an order of dismissal of temporary injunction for protection against repeat violence, an order to show cause, and an order of contempt. Although “snafu” is not an ancient legal term, it is a recognized one and it is apt in this case to describe the events that require reversal of the contempt order for procedural reasons.

On August 29, 2003, Keeton filed a petition for injunction for protection against repeat violence against respondent below, Tommy Bryant [“Bryant”]. She alleged various instances of stalking: specifically, that on August 18-19, 2003, Bryant came to her apartment, knocked on the door continuously, sat in a parked car across from her apartment to watch her, came into the house when she opened the door thinking it was the phone company, and hung around after she got him to leave the house. Keeton also alleged that on a daily basis Bryant would show up where she was, watch her, and call her, as well as her family and friends.

On September 2, 2003, the court issued an order setting a hearing on the petition for injunction against repeat violence without issuance of an interim temporary injunction, finding that there was not enough facial evidence to warrant a temporary injunction at that time. The hearing was set for the next day — September 3, 2003— at 9:00 a.m. The certificate of service indicates that a copy was served on Keeton by hand delivery in open court and that a copy was forwarded to the sheriff for service on Bryant. On appeal, Keeton claims she first received notice of the hearing by U.S. mail on September 4, 2008, the day after the hearing.

The hearing on the petition took place as scheduled on September 3, 2003. Keeton was not present, but Bryant was present with counsel. Counsel for Bryant stated that he wanted to put on testimony because he had witnesses and evidence to show that Keeton' perjured herself in the petition. He requested Keeton be held in contempt and a bench warrant be issued for her arrest. The court allowed Bryant to present evidence and sworn testimony.

Bryant testified that on the dates alleged in the petition — August 18 and 19— he was in the Keys. He stated he was. in the Keys from August 16 through August 23. Bryant presented a gas receipt from Fort Pierce on his way to the Keys; a receipt from Eckerd in Key Largo dated August 16; a wire transfer receipt from Marathon to Keeton’s son for $100.00 dated August 18;' and tollbooth and gas receipts from his return trip through Fort Pierce on August 23. Bryant also testified that Keeton’s motive to lie regarding this incident was that he had filed a complaint on July 29, 2003, with the sheriffs office that she took money out of his checking account. He stated that Keeton knew he was in the Keys and she even called him three to four times on his cell phone while he was there. Bryant testified he and Keeton had been dating, and when the relationship ended is when “this” started.

Steven Keeton, Keeton’s soon to be ex-husband, verified that Bryant was in the Keys on those dates and that he spoke with Bryant several times on the phone while he was in the Keys. When the court asked why he would be talking to the man dating his soon to be ex-wife, he responded, “Because [Bryant] was trying to help her out. We were going through a pretty bitter divorce. My children were at his house. Then we conversed back and forth about what was — the goings on of my soon to be 'ex.”

Additionally, James Nicholas Miller testified’that he was with Bryant in the Keys from August 16 through August 23. Terry Mason testified that he is an employee of Bryant’s and was running the business for him between August 16 through August 23, while Bryant was in the Keys. He stated he communicated daily with Bryant in the Keys.

After the hearing, the court entered an order of dismissal without prejudice of the motion for temporary injunction for protection against repeat violence on the ground that Keeton failed to appear at the hearing. The court also entered an order to show cause. The order to show cause recited:

This cause comes before the court for review based upon the alleged conduct of the Petitioner for the issuance of an Order to Show Cause directed to [Kee-ton] for violation of the final judgment of injunction for Protection as is more specifically set forth in the Petition by Affidavit For Order to Show Cause For a Violation of Final Judgment of Injunction For Protection; a copy of which is attached hereto and made a part hereof.
NOW, THEREFORE, you [Keeton], are hereby ORDERED to appear before this court before Judge Steven deLar-oche, on September 18, 2003, at 9:00 a.m., in Room 5 of the Volusia County Courthouse, located at 125 E. Orange Avenue, Daytona Beach, to be arraigned. A subsequent hearing will be scheduled requiring Petitioner to show cause why he/she should not be held in contempt of this court for violation of the Final Judgment of Injunction for Protection as is stated in the attached Petition by Affidavit For Order to Show Cause For a Violation of Final Judgment of Injunction For Protection. Punishment, if imposed, may include a fíne and incarceration.
Should the court determine, based on the evidence presented at the hearing, that the Petitioner’s conduct warrants sanctions for civil contempt in addition to or instead of indirect criminal contempt, the court reserves the right to find the Petitioner guilty of civil contempt and impose appropriate civil sanctions.
The court hereby appoints the State Attorney’s Office to prosecute the ease.
Petitioner is advised that he/she is entitled to be represented by counsel,

(emphasis in original). This order is unclear in several respects, and there are important errors: there was no final judgment of injunction to violate, and the referenced “Petition by Affidavit For Order to Show Cause For a Violation of Final Judgment of Injunction For Protection” is not attached to the order.

A hearing on this order to show cause was held on September 18, 2003. Keeton appeared without counsel. The court explained to Keeton that, at the hearing on the petition for injunction at which she did not appear, evidence was presented by Bryant that the petition contained false statements. The court stated the evidence presented was “uncontroverted and fully believed by the court.” The judge explained that Keeton was before the court to show why she should not be held in contempt for filling out a false statement, and warned her she faced the possibility of a $1,000 fine and up to six months in county jail. Keeton responded that she may have mixed up the dates, but the events did occur as she alleged. The court then inquired why Keeton failed to appear at the hearing on the petition, and Keeton answered that she was in Jacksonville for a 9:00 a.m. doctor’s appointment. The court then adjudicated her guilty of contempt and ordered her to pay fines and court costs in the amount of $500 to be paid within ninety days.

The court’s written order of contempt contained two findings: (1) Keeton was in court for a repeat violence injunction, and (2) Keeton failed to appear for a hearing on September 3, 2003. The court ordered that Keeton was guilty of criminal contempt for falling to appear and ordered her to pay $500 to the Clerk of the Court within ninety days.

Keeton contends on appeal that the trial court erred in dismissing her petition for injunction on the ground that she failed to appear at the hearing because she was not given reasonable notice of the hearing in that the notice of hearing was issued less than twenty-four hours before the hearing. The record is inadequate to support reversal on this issue.

Keeton is correct, however, that the contempt procedures were inadequate. She notes that the order to show cause did not allege that she had filled out a false statement in her petition for injunction, nor did it allege she failed to appear at the hearing on the petition. Rather, the notice alleged a violation of the final judgment of injunction for protection against repeat violence, which the trial court never entered. The order recites that the allegations constituting contempt were set forth in an attached affidavit, but there is no affidavit attached to the order.

“When punishing [an individual] for contempt, a court must follow the procedure set forth in Florida Rule of Criminal Procedure 3.830.” M.L. v. State, 819 So.2d 240, 242 (Fla. 2d DCA 2002) (citing Bouie v. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001)). “The provisions of rule 3.830 define the essence of due process in criminal contempt proceedings and must be scrupulously followed.” Id; see also Guardado v. Guardado, 813 So.2d 236, 237 (Fla. 5th DCA 2002) (scrupulous compliance with rule 3.830 is required). Because of the errors noted above, we are bound to vacate the contempt order.

REVERSED and REMANDED.

PLEUS and PALMER, JJ., concur.

      . See e.g., American Fiber & Finishing, Inc., v. Tyco Healthcare Group, L.P., 362 F.3d 136, 143 (1st Cir.2004); Peacock v. State, 798 So.2d 909, 910 (Fla. 5th DCA 2001).


author: PALMER, J.

text:
    Anthony AHEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1029.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.
    Anthony Ahedo, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Rebecca Rock McGuigan, Assistant Attorney- General, Daytona Beach, for Appellee.
   PALMER, J.

Anthony Ahedo (defendant) appeals the trial court’s summary denial of his rule 3.850 motion. We reverse.

The defendant’s rule 3.850 motion alleged that a mutual mistake was made during the defendant’s plea bargain -proceedings. Specifically, the motion alleged that, pursuant to the terms of the defendant’s plea agreement, the trial court ordered that the defendant’s sentences should run concurrent with sentences entered in pending state and federal prosecutions arising from related matters; however, the defendant was subsequently sentenced in a related federal case to a term of 90 years imprisonment, without regard to said agreement, and was returned to Florida to serve his state sentence, after which he will be required to serve his federal sentence. The motion claimed that since the defendant is being required to serve more jail time than he had bargained for, his Florida sentence should be suspended or he should be re-sentenced to a term of time served.

Although it is true that the trial court cannot order the federal authorities to allow the defendant to serve his sentences concurrently with state sentences, that does not mean that the trial court is totally powerless to effectuate the terms of the defendant’s plea agreement if, as the defendant alleges, there was an agreement. In a similar situation the court in Davis v. State, 852 So.2d 355 (Fla. 5th DCA 2003) recognized that in order to effectuate the terms of the defendant’s plea agreement, the defendant’s 'state sentence could be vacated and a suspended sentence or a sentence of time served could be imposed or the defendant could be allowed to withdraw his plea.

The State, in its response to this appeal, while arguing against it on the merits, commendably concedes that the trial court has not attached documents from the record supporting the conclusion that the trial court complied with its obligations under the instant plea agreement and, accordingly, that this court must remand this matter to the trial court to either attach portions of the record conclusively refuting the defendant’s claim or hold an evidentiary hearing on the motion. See Arbelaez v. State, 775 So.2d 909, 914 (Fla.2000)(holding that when a rule 3.850 motion is denied without an evidentiary hearing the defendant’s allegations must be deemed true, unless they are refuted by the attached record).

Accordingly, we reverse the instant rule 3.850 order and remand this matter to the trial court to either attach portions of the record conclusively refuting the defendant’s claim or hold an evidentiary hearing thereon.

REVERSED and REMANDED.

PETERSON and MONACO, JJ., concur.

      . Fla. R. Cr. P. 3.850.


author: KAHN, J.

text:
    Richard E. ZALDIVAR, Appellant, v. OKEELANTA CORP. & Alexis, Inc./RSKCo., Appellees.
    No. 1D02-4754.
    District Court of Appeal of Florida, First District.
    July 26, 2004.

      Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellant.
    Walter E. Beisler of Beisler & Beisler, West Palm Beach, for Appellees.
   KAHN, J.

In this case, arising from a workers’ compensation matter, the Judge of Compensation Claims (JCC) dismissed appellant Richard Zaldivar’s charging lien for attorney’s fees. The JCC predicated the dismissal upon Rule 4.075(e), Florida Rules of Workers’ Compensation Procedure, a one-year failure to prosecute provision. We vacate the order and remand for further proceedings as to the lien.

Save for one essential item, the facts are undisputed. On May 24, 2000, appellant Zaldivar, an attorney, sought withdrawal from his representation of claimant Juan Fernandez in the underlying workers’ compensation matter. In the stipulation, Zaldivar noted that as former attorney, he would retain “any entitlement for attorney fee lien and costs.” Shortly thereafter, the JCC approved the withdrawal. Several months later, the attorney for the employer and its servicing agent wrote Zaldivar requesting Zaldivar’s position on any additional attorney’s fees lien Zaldivar may have in the ease. Zaldivar faxed a response affirming his claim of a charging lien for attorney’s fees. In a" letter, the employer’s attorney then acknowledged receipt of the fax but stated he would need some further basis for the lien. Zaldivar did not respond to this last letter.

On January 25, 2001, the employer and the claimant entered a joint stipulation for a lump sum settlement of the workers’ compensation case. This stipulation provided, among other things, “the employer/servicing agent agrees to satisfy the lien, if any, of Richard Zaldivar.” In due course, the JCC approved the stipulation and ordered the parties to comply with its provisions.

Zaldivar did not receive notice of the anticipated settlement, did not receive a copy of the proposed stipulation, and did not receive contemporaneous notice of the JCC’s approval of the settlement. These facts are without dispute. Nevertheless, one factual matter, apparently relied upon by the JCC, is subject to sharp dispute. On February 8, 2001, the employer’s attorney purportedly wrote a letter informing Zaldivar of the settlement and requesting that Zaldivar forward a demand which would include a specific outline of any,basis for entitlement and amount of an “attorney’s fee lien.” Zaldivar has consistently taken the position that he never received such a letter.

On June 17, 2002, the employer filed a Motion to Dismiss for Lack of Prosecution relying upon Rule 4.075(e) and contending, correctly, that no activity on the claim for attorney’s fees had taken place during the year prior to filing the motion. Zaldivar responded immediately indicating that he did not dispute the allegation that no activity had occurred, but asserting that settlement documents had never been served upon him, nor did he have any knowledge that a settlement had occurred. Zaldivar also advanced the theory that attorney’s fees liens would not be subject to dismissal for lack of prosecution. Zaldivar specifically requested that the JCC conduct an evidentiary hearing to resolve any factual matters concerning whether he ever had notice of the settlement. Instead, the JCC placed the matter on a summary motion calendar and entered an order, without findings of fact or conclusions of law, dismissing Zaldivar’s lien for lack of prosecution. Zaldivar has appealed this order.

We find the JCC erred by summarily dismissing Zaldivar’s lien. The fee lien did not become ripe for adjudication until a settlement created proceeds upon which the lien could attach. See Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A, 517 So.2d 88, 93 (Fla. 3d DCA 1987). Because Zaldivar contends he never received notice of the settlement, a question of fact exists concerning whether he slept on his rights to have the lien adjudicated.

Moreover, we conclude that a charging lien is not subject to Rule 4.075(e). A “charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983). Perfection of a charging lien requires only timely notice to the affected parties. Id. at 1385. Without dispute, the employer, as well as the claimant and the claimant’s new attorney, had notice of Zaldivar’s charging lien at the time of the settlement. Given this, both the employer and the claimant had an affirmative obligation to inform Zaldivar of the settlement stipulation. See Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894 (1943); Samuel L. Heller, P.A. v. Held, 817 So.2d 1023, 1025 (Fla. 4th DCA 2002). The establishment of the lien “declares the right of the attorney to participate in the recovery.” Litman, 517 So.2d at 94 n. 6.

In Sharyn D. Garfield, P.A. v. Green, 687 So.2d 1388 (Fla. 4th DCA 1997), the court reversed a trial court’s order denying an attorney’s motion to enforce a charging lien. There, former spouses entered into a settlement without providing notice to the wife’s former attorney who had perfected a charging lien. Id. at 1388-. The court found that the. former attorney was entitled to enforcement of the lien because she “had no opportunity to participate in the settlement negotiations and was without notice that the particular negotiated judgment was going to be entered” and was therefore “unable to protect her lien rights prior to the entry of that judgment.” Id. Likewise, in Brown v. Vermont Mutual Insurance Co., this court held:

[I]f a party ... holding such proceeds of the recovery or settlement pays it to the client with notice to or knowledge of the client’s attorney who is claiming a fee and a charging lien without protecting the attorney’s interest, that party ... may nevertheless be held liable, jointly and severally with the attorney’s client, for the amount of the client’s attorney’s fees and costs.

614 So.2d 574, 580-81 (Fla. 1st DCA 1993). We conclude that the parties to the settlement in the underlying workers’ compensation case had an affirmative obligation under the law to notify Zaldivar of the settlement and to protect his lien interest in the settlement proceeds.

Appellees rely upon two cases involving workers’ compensation attorney’s fees, but not charging liens, where this court determined that the claim for fees may be subject to dismissal for lack of prosecution. See Fla. Power & Light Co. v. Callahan, 470 So.2d 819 (Fla. 1st DCA 1985); Jerry Chapman, Inc. v. Ivey, 448 So.2d 11 (Fla. 1st DCA 1984). The court applied the predecessors to Rule 4.075 in those cases because the attorney’s fees claims in those cases were tied to the claimant’s cause of action in workers’ compensation. We find these cases distinguishable from the present matter.

A charging lien - differs • in nature from the claims for attorney^ fees in Ivey and Callahan. Florida courts have consistently defined a charging lien as an equitable right. See, e.g., Sinclair, 428 So.2d at 1884; Mitchell v. Coleman, 868 So.2d 639, 641 (Fla. 2d DCA 2004); Heller, 817 So.2d at 1025; Brown, 614 So.2d at 580. We do not equate such a right with a “claim or petition” as referenced in Rule 4.075(e)(1). A “lien,” in general, is defined as a “legal right or interest that a creditor has in another’s property, lasting [usually] until a debt or duty that it secures is satisfied.” Black’s Law Dictionary 933 (7th ed.1999) (emphasis added). A charging lien represents a right held by the attorney, rather than one that must be asserted by the claimant. Accordingly, the time limit on enforcement would not necessarily be controlled by the Rule of Workers’ Compensation Procedure governing prosecution of the workers’ compensation matter.

Because the charging lien is an equitable right, we conclude that the JCC should not have disposed of Zaldivar’s lien absent proof of an equitable defense such as laches. In Nichols v. Kroelinger, 46 So.2d 722 (Fla.1950), the Florida Supreme Court addressed the problem of an attorney attempting to collect on a charging lien he had failed to pursue for sixteen years. The court held that, because of the statute of limitations, the attorney could not seek the appointment of an administrator for the client’s estate five years after the client had died. Id. at 724. Nevertheless, the court concluded that the attorney was free to pursue recovery on lien from the client’s widow, reasoning:

Under the common law his lien attached to the judgment and since we have no statute in this State modifying or repealing the common law or protecting the lien, the common law is still in effect, so he may resort to that and move against the judgment to satisfy his lien. The lien inheres in the judgment so long as it is kept alive, regardless of who holds it.

Id. (emphasis added); see also hitman, 517 So.2d at 92 n. 4.

Because laches, rather than Rule 4.075, will control on remand, we briefly examine that doctrine. As the Florida Supreme Court has established, “laches is a doctrine asserted as a defense, which ‘requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’ ” McCray v. State, 699 So.2d 1366, 1368 (Fla.1997) (quoting Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961)). The first element of laches, lack of diligence, cannot be established in this case absent some finding that Zaldivar had notice that his lien had ripened by settlement of the underlying workers’ compensation matter. This court has ruled that for lach-es to apply in the general equitable context, the plaintiff must have both knowledge of the defendant’s conduct, and have been afforded the opportunity to institute an action. See Mcllmoil v. Mcllmoil, 784 So.2d 557, 563-64 (Fla. 1st DCA 2001); Wing v. Wing, 464 So.2d 1342, 1344 (Fla. 1st DCA 1985). In determining whether prejudice has occurred, should the JCC reach that question, the JCC must apply the general equitable tenet that delay rises to prejudice where the party defending the claim establishes that enforcement would be inequitable or unjust. See Garcia v. Guerra, 738 So.2d 459, 461 (Fla. 3d DCA 1999).

The dismissal in this matter must be vacated and the cause remanded to the JCC for further proceedings. The JCC must initially make a determination of whether Zaldivar had proper notice of the settlement. A finding of no notice would be determinative in Zaldivar’s favor. Should the JCC find that Zaldivar did have notice, strict application of Rule 4.075(e) would not be warranted; instead, the' JCC should conduct an inquiry based upon the equitable doctrine of laches. We hasten'to add, however, that although we hold laches applies to enforcement of the lien, we do not mean to say that the JCC must, as a matter of law, extend the time period beyond that provided by Rule 4.075(e). Rather, the equitable determinations centering upon injury or prejudice would be dispositive.

Wé VACATE the JCC’s order dismissing Zaldivar’s charging lien, and REMAND for further proceedings.

DAVIS and PADOVANO, JJ., CONCUR.


author: PER CURIAM.

text:
    Gary Wayne PETIT, Appellant, v. FRAMING SPECIALTY and Bridgefield Employers, Appellees.
    No. 1D02-4935.
    District Court of Appeal of Florida, First District.
    July 26, 2004.
    T. Rhett Smith and Teresa E. Liles, Pensacola, for Appellant.
    Clay L. Meek of Smith, Hood, Perkins, Loucks, Stout & Orfínger, P.A., Daytona Beach, for Appellees.
   PER CURIAM.

Gary Wayne Petit, the claimant, challenges a worker’s compensation order in favor of Framing Specialty and Bridgefield Employers, jointly the employer/carrier, which denies, without prejudice, his claim for reimbursement for medical treatment. Because the order of the Judge of Compensation Claims is supported by competent, substantial evidence, we affirm. Cumberland Farms, Inc. v. Manning, 685 So.2d 64 (Fla. 1st DCA 1996). As the parties have stipulated in their mediation agreement, the claimant is entitled to have the employer/carrier pay pursuant to the appropriate fee schedule for the claimant’s medical treatment on March 15, 2002,,,at Ft. Walton Beach Medical Center, upon submission to the carrier of the proper forms for payment, a form UB-92 or its equivalent.

AFFIRMED.

KAHN, BENTON and VAN NORTWICK, JJ., CONCUR.


text:
    WARD INTERNATIONAL TRUCKS, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 1D03-2229.
    District Court of Appeal of Florida, First District.
    July 26, 2004.
    John Beranek and Robert N. Clarke, Jr., of Ausley & McMullen, Tallahassee, for Appellant.

      Enoch J. Whitney, General Counsel and Michael J. Alderman, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Ap-pellee.
   PER CURIAM.

In the related case, Capital Truck, Inc., Michael Pitts, and Mark Thomas v. International Truck and Engine Corporation, No. 1D03-2593, this court affirmed the circuit court’s final summary declaratory judgment determining that Tallahassee Mack Sales, Inc. did not possess any International Truck dealer rights to transfer to Capital Truck, Inc. In light of the disposition in the related case, Capital Truck, Inc. has no standing to protest the establishment of the Ward International Trucks, Inc. dealership and there is nothing further to litigate. Therefore, we dismiss as moot the petition filed December 4, 2003, by Ward that sought review of the April 28, 2003, intermediate order of the Department of Highway Safety and Motor Vehicles.

Petition dismissed.

ALLEN, KAHN and PADOVANO, JJ., CONCUR.


text:
    James M. CROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4077.
    District Court of Appeal of Florida, First District.
    July 26, 2004.
    Nancy A. Daniels, Public Defender; Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; ■ Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his convictions. He raises only one issue — whether the trial court committed reversible error when it failed to read again, after'closing arguments, standard instructions on reasonable doubt, the burden of proof and weighing the evidence that had previously been read to the jury as part of a bifurcated charge. As appellant correctly.points out, the bifurcated charge given by the trial court failed to comply with that approved by our supreme court for criminal cases. In Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla.1981), the court said:

We approve the recommendation of the committee that the trial judge be authorized in his discretion to bifurcate his charge to the jury by giving a portion of the general instructions prior to the taking of evidence, with the remaining instructions being given at the close of the evidence and after argument of counsel. The following instructions may be given prior to the taking of evidence: 2.02 and 2.02(a), 2.03, 2.04 [but not the instructions in 2.04(a) through (e)], 2.05, and 2.07. When bifurcating the instructions, the trial judge should repeat instructions 2.02, 2.02(a), 2.03 and 2.04 after argument of counsel. Although this bifurcation is left to the judge’s discretion, we believe, as did the committee, that giving the above-numbered instructions at the beginning of the case will provide the jury with a better understanding of their responsibilities and duties. We therefore encourage the use of this jury instruction technique.

Although we agree that the standard instructions on reasonable doubt, the burden of proof and weighing the evidence should also be given at the conclusion of the trial when given earlier as part of a bifurcated charge, we nevertheless affirm because (1) the issue was not properly preserved, see Fla. R.Crim. P. 3.390(d) (“No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection”); (2) the argument made on appeal was not presented to the trial court, see Cardenas v. State, 816 So.2d 724, 725-26 (Fla. 1st DCA 2002), approved, 867 So.2d 384 (Fla. 2004); and (3) even if adequately preserved, any error was harmless to the exclusion of all reasonable doubt (because the trial was relatively short, the court verbally gave the instructions at issue the morning before, the jury was given a written copy of the charge that included those instructions, defense counsel' cited those instructions during closing'argument, the final instructions included similar directives, and there was nothing to indicate jury confusion or misunderstanding).

AFFIRMED.

BOOTH, WEBSTER and DAVIS, JJ., concur.

       At the time of the court’s opinion, what are today standard instructions 3.7 ("Plea of Not Guilty; Reasonable Doubt; and Burden of Proof”) and 3.8 ("Weighing the Evidence”) were numbered 2.03 and 2.04.


author: NORTHCUTT, Judge.

text:
    Ellen M. JACOB, Individually and as Co-Trustee of the Herbert H. Jacob Amended and Restated Revocable Trust of 2001, dated May 4, 2001; and James E. Fuller, as Co-Trustee of the Herbert H. Jacob Amended and Restated Revocable Trust of 2001, dated May 4, 2001, Petitioners, v. Bernard A. BARTON, Jr., Individually and as Co-Trustee of the Herbert H. Jacob Amended and Restated Revocable Trust of 2001; Steven E. Jacob, Thomas Jacob, James A. Jacob, and Angela Jacob, all Individually; and James Jacob and Steven Jacob, as Co-Trustees of the Ajax Marital Trust and the Tax Liability and Expense Trust; Nicholas Jacob and Rebecca Jacob, Individually, Respondents.
    No. 2D03-4255.
    District Court of Appeal of Florida, Second District.
    July 28, 2004.
    L. Norman Vaughan-Birch of Kirk Pinkerton, Sarasota, and Hollis F. Russell and Banks Brown of McDermott, Will & Emery, New York, NY, for Petitioners.

      Charles J. Bartlett of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Respondent James Jacob.
    No appearance for Respondents Bernard A. Barton, Jr., Steven E. Jacob, Thomas Jacob, Angela Jacob, Steven Jacob, Nicholas Jacob, and Rebecca Jacob.
   NORTHCUTT, Judge.

Today we review a discovery order entered during litigation over the management of trusts established by Herbert Jacob, now deceased. Ellen Jacob, Herbert’s widow, is a trustee under the master trust created by her late husband. The assets of this trust eventually will be distributed to other trusts, some of which benefit Ellen and some of which benefit Herbert’s children. Among the latter beneficiaries is James Jacob, Herbert’s son by a previous marriage.

Ellen filed suit under section 737.201, Florida Statutes (2001), seeking construction of the trust and direction from the court as to its administration. James filed a counterclaim to remove Ellen as trustee, claiming she has mismanaged the trust by placing her personal interests above her fiduciary duties and by making improper payments to the trustees’ attorneys. He sought discovery of the attorneys’ records of their billings to the master trust. The circuit court ordered the law firm to produce its records, whereupon Ellen and her co-trustee petitioned us to quash the order by writ of certiorari. We grant the petition.

Ellen objected to the request for production, claiming that the billing records were protected by the lawyer-client privilege and the work product doctrine. In general, these doctrines protect billing records from discovery by an adversarial party in a lawsuit. See Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689, 690 (Fla. 1st DCA 2001). The tension here arises from the fact that James is both the trustee’s adversary in litigation and a trust beneficiary. In the latter capacity he generally is entitled to information about the trust assets and the particulars of its administration, and he may seek a trust accounting. See § 737.303(3), (4)(a) and (b), Fla. Stat. (2001). Certainly, he is entitled to know the amounts the attorneys billed the trust for their services and the type of services rendered. See Ball v. Mills, 376 So.2d 1174, 1181 (Fla. 1st DCA 1979).

But that entitlement does not resolve the issue of whether James may compel discovery of documents that contain privileged information related to the parties’ litigation. The circuit court grounded its order requiring production on our decision in Barnett Banks Trust Co. N.A. v. Compson, 629 So.2d 849, 851 (Fla. 2d DCA 1993). In that case, Mrs. Compson, a trust beneficiary, and the trustee, Barnett, were engaged in litigation to determine whether certain assets belonged to Mrs. Compson or were the property of the trust. She sought production of correspondence from the trust’s attorneys to the trustee and other beneficiaries concerning the lawsuit and the attorneys’ litigation budget. In reversing the circuit court’s order requiring production, we held that section 737.303 “does not require disclosure of privileged materials concerning a pending lawsuit” when a trust beneficiary “seeks to deplete, rather than return, trust assets.” Id. at 851.

Here, James would have us adopt the reverse of this proposition. He contends that because he is a beneficiary who is attempting to protect trust assets, he is entitled to. production of the privileged documents. But the holding in Compson was not premised simply on the fact that the beneficiary was seeking to deplete trust assets. Rather, that factor bore on the court’s determination whether the beneficiary was the “real client” of the law firm. The Compson holding turned on the court’s finding that the beneficiary was not, in fact, a client for whom the attorneys’ services were performed.

Thus, when confronted with the issue at hand here, a court must decide whose interests the attorneys represent— the trustee’s or the beneficiary’s. First Union Nat’l Bank of Fla. v. Whitener, 715 So.2d 979, 982 (Fla. 5th DCA 1998). Usually, a lawyer retained by a trust represents the trustee, not the beneficiary, even though the fees are paid with trust funds that would otherwise go to the beneficiary. First Union Nat’l Bank v. Turney, 824 So.2d 172, 185-86 (Fla. 1st DCA 2001); see also Compson, 629 So.2d at 851. If tiñe attorney represents the trustee, the trustee holds the lawyer-client privilege. See § 90.502(2), (3)(a), Fla. Stat. (2001); Whitener, 715 So.2d at 982; Compson, 629 So.2d at 851. In some circumstances, however, the beneficiary may be the person who will ultimately benefit from the legal work the trustee has instructed the attorney to perform. See, e.g., Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 711 (Del.Ch. Ct.1976) (noting that legal memorandum concerning trust tax issues, written before beneficiaries’ litigation against trustee began, was prepared for the benefit of the trust beneficiaries) (cited in Compson, 629 So.2d at 850). In that situation, the beneficiary may be considered the attorney’s “real client” and would be the holder of the lawyer-client privilege. Whitener, 715 So.2d at 982. But if the “real client” is the trustee, the beneficiary would have to prove the existence of some exception to overcome the privilege. Id.

The record filed in conjunction with this petition for writ of certiorari is limited. Ellen did not file a privilege log as contemplated in Florida Rule of Civil Procedure 1.280(5). The circuit court did not conduct an in camera review of the bills, nor are they contained in our record. Thus, we cannot say whether some of the billing records may reveal communications between the law firm and the trustees concerning the litigation with the beneficiary. But it is clear that Ellen hired the attorneys. To the extent that the lawyers’ work concerns the dispute with James, their client is the trustee, not the beneficiary. If the entries in the billing records reveal information protected by the lawyer-client privilege and work product doctrine, their production, cannot be compelled. See Paskoski v. Johnson, 626 So.2d 338, 339 (Fla. 4th DCA 1993).

The circuit court’s order requiring production was a departure from the essential requirements of law’ and cannot be remedied on appeal. See 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935, 936 (Fla. 4th DCA 2002); Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002). We grant the petition for certiorari and quash the order permitting unlimited discovery of the trust’s attorneys’ billing records. We remand with directions to the circuit court to conduct an in camera review to determine whether any of the explanatory entries on the bills would be protected under either the lawyer-client privilege or the work,. product doctrine. If necessary, it may. conduct further proceedings to determine whether any exceptions to the lawyer-client privilege exist or whether James can overcome the protection of the work product doctrine. See § 90.502(4); Prudential Ins. Co. of Am. v. Fla. Dep’t of Ins., 694 So.2d 772, 774 (Fla. 2d DCA 1997) (“Before a party can obtain discovery of work product material, it must show that it ‘has need to the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ Fla. R. Civ. P. 1.280(b)(3).”). If not, the court must redact the privileged information before requiring production of the records.

Petition granted, decision of circuit court quashed.

WHATLEY and STRINGER, JJ, Concur.

      . § 90.502, Fla. Stat. (2001).

      . Florida Rule of Civil Procedure 1.280 applies in all probate proceedings. Fla. Prob. R. 5.080.


author: DAVIS, Judge.

text:
    Eric D. NEWSOME, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5748.
    District Court of Appeal of Florida, Second District.
    July 28, 2004.

      Bruce G. Howie of Piper, Ludin, Howie & Werner, P.A., St. Petersburg, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Eric D. Newsome challenges the trial court’s dismissal of his motion to withdraw plea as facially insufficient. He contends that he was entitled to an evidentiary hearing and to be represented by conflict-free counsel. We agree.

Newsome was charged by information with aggravated battery for causing bodily harm by discharging a firearm. On the day that trial was scheduled to begin,, defense counsel advised the court that her material witness, although subpoenaed, had not appeared. Following an off-the-record conference between the judge, the prosecutor, and defense counsel, Newsome elected to enter a negotiated guilty plea to aggravated battery with a firearm in exchange for a twenty-year sentence.

In his timely pro se motion to withdraw plea, Newsome stated that he was filing the motion “pending his motion to withdraw counsel” filed pursuant to ■ Florida Rule of Criminal Procedure 3.170(f). He then made the following allegations: (1) counsel was ineffective at the time he entered his guilty plea; (2) the judge coerced the plea or participated in negotiations so as to be construed as inducement; (3) Newsome received misinformation about the minimum and maximum penalties; (4) the voluntariness of the plea was not established on the record; (5) the judge failed to explain the nature and/or elements of the offense;, and (6) counsel coerced Newsome to- sign the plea. New-some added that he wished to discharge appointed counsel.

Citing Harris v. State, 818 So.2d 567 (Fla. 2d DCA 2002), the trial court dismissed Newsome’s motion, finding that his allegations were conclusory arid facially insufficient to warrant either the appointment of counsel or an evidentiary hearing. However, the defendant's allegation in Harris is clearly distinguishable from the allegations that Newsome made' here.

The allegation in Harris was facially insufficient because it failed to allege a legally cognizable reason for withdrawal of the plea. Harris’ motion was filed pursuant to Florida Rule of Criminal Procedure 3.170(Z), which limits the available grounds for withdrawal of a plea to the following: (a) the lower tribunal’s lack of subject matter jurisdiction; (b) a violation of the plea agreement, if preserved by a motion to withdraw plea; (c) an involuntary plea, if preserved by a motion to withdraw plea; (d) a sentencing error, if preserved; or (e) as otherwise' provided by law. • See also Fla. RApp. P. 9.140(b)(2)(A)(ii)(a)-(e). Rather than allege one of these enumerated grounds, Harris simply alleged that he “did not fully understand the sentence.” This clearly did not fall into one of the enumerated grounds. This court characterized Harris’ allegation as a “minimal allegation” that was not a ground for relief under rule 3.170(i). Harris was therefore not entitled to either an evidentiary hearing or to the appointment of counsel. Although the trial court in Hams, despite the absence of a legally cognizable ground to withdraw the plea, proceeded to conduct an evidentiary hearing, this court was clear that an evidentiary hearing is not required in such circumstances: “[A]t least when the motion is facially insufficient and the trial court has no need to conduct an evidentiary hearing, the defendant need not be present when the motion is summarily denied.” Id. at 568.

The facts in Harris thus stand in stark contrast to the facts in the instant case. Here, Newsome specifically alleged that his plea had been involuntarily entered, which is one of the enumerated grounds under the rules. Although New-some did not specify within the same paragraph the reasons that his plea was involuntarily entered, .the remaining paragraphs provide the reasons. He alleged that his counsel was ineffective at the time of the plea, that the judge induced the plea, that he was misinformed as to the minimum and maximum penalties he faced, that the judge failed to explain the nature and/or elements of the offense, and that counsel coerced him to sign the plea.

These allegations are similar to those in Brown v. State, 835 So.2d 402 (Fla. 2d DCA 2003), where this court found the following allegations to be facially sufficient: “[H]e did not fully understand the nature and extent of his plea, [ ] he was threatened or coerced into pleading by his trial attorney, and [] his trial attorney admitted to ‘knowing/having a degree of affiliation’ with the victim.” Id. at 403. In Brovm, we specifically observed that these allegations provided more detail in alleging an involuntary plea than those in Harris.

Once the defendant has alleged one of the permissible grounds to withdraw his plea, as here, the motion is considered facially sufficient to warrant a hearing. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003). Because we have concluded that Newsome’s motion, alleging the involuntariness of his plea, raised one of the enumerated grounds, we necessarily conclude that it was facially sufficient and warranted an evidentiary hearing. Furthermore, “[bjecause a motion pursuant to rule 3.170 has been treated as a critical stage of proceedings in the trial court,” Newsome was entitled to be present at the hearing and to have counsel represent him. Id. at 661. Moreover, given Newsome’s allegations that counsel was ineffective, that counsel misadvised him about the minimum and maximum penalties he faced, and that counsel had coerced him to sign the plea, we conclude that Newsome’s counsel’s position had become adverse to Newsome’s, thus entitling Newsome to the appointment of conflict-free counsel. See id. The trial court’s refusal to appoint conflict-free counsel was not harmless error. See id.; see also Miller v. State, 838 So.2d 1213 (Fla. 2d DCA 2003).

Because the trial court summarily dismissed Newsome’s motion to withdraw his plea without an evidentiary hearing at which Newsome could be present, and because the court failed to appoint conflict-free counsel to represent Newsome, we reverse and remand with directions to the trial court to conduct a hearing on New-some’s motion to withdraw plea at which Newsome is allowed to be present and represented by conflict-free counsel.

Reversed and remanded.

CANADY and WALLACE, JJ., Concur.


author: WHATLEY, Judge.

text:
    M.M.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3347.
    District Court of Appeal of Florida, Second District.
    July 28, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. ■ ' '
   WHATLEY, Judge.

M.M.S. appeals an order requiring him to pay restitution in the amount of $2500. The State concedes, and we agree, that the trial court improperly relied on hearsay evidence in determining the value of a stolen ring, and therefore, a new restitution hearing is necessary.

At the restitution hearing, the victim testified that the stolen ring had been a gift from her mother-in-law. The victim obtained an estimate of the ring’s value from the store in Saint Thomas where the ring was purchased. There was no other evidence of the ring’s value. The State properly concedes that this hearsay testimony was insufficient to establish value for restitution purposes. See Aboyoun v. State, 842 So.2d 238 (Fla. 2d DCA 2003). Therefore, a new restitution hearing is necessary to determine the fair market value of the ring. See id. at 240 (holding that the value of stolen bracelets was established by a preponderance of the evidence where the victim testified that, although he did not know the purchase price of the. bracelets, he was able to testify concerning the bracelets’ value based on his experience shopping for and purchasing gold jewelry).

Accordingly, we affirm M.M.S.’s adjudication and disposition but reverse the restitution order and remand for a new restitution hearing.

SALCINES and VILLANTI, JJ., concur.

      . The victim's mother-in-law is deceased.


text:
    Clarence DUMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D04-1363.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.
    Valerie Small-Williams, Ft. Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Because the state failed to bring the petitioner to trial within 175 days of his arrest for escape, which occurred on August 28, 2001, when he was brought before a magistrate for a first appearance hearing and held without bond on the escape charge, the trial court erred in denying petitioner’s motion to dismiss upon its finding that petitioner’s arrest did not occur, and the speedy trial period did not commence, until November 17, 2003, when a capias was served on him. See Trainer v. Broome, 666 So.2d 1019 (Fla. 4th DCA 1996), rev. denied, 675 So.2d 119 (Fla. 1996).

We therefore grant the petition for writ of prohibition and instruct the trial court to discharge the petitioner.

GUNTHER, POLEN and TAYLOR, JJ., concur.


author: MAY, J.

text:
    MERLE WOOD & ASSOCIATES, INC., Appellant, v. INTERVEST-QUAY LIMITED PARTNERSHIP, a foreign limited partnership, Eckerd Corporation, a foreign corporation, and Coldwell Banker Residential Real Estate, Inc., a foreign corporation, Appellees.
    No. 4D03-4418.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.
    Alex P. Rosenthal of Reimer & Rosen-thal LLP, Weston, and Michael A. Pfund-stein of Tripp Scott, Fort Lauderdale, for appellant.
    Jeffrey L. Hochman and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, for appellee Intervest-Quay.
    Douglas H. Stein of Anania, Bandklay-der, Blackwell, Baumgarten, Torricella & Stein, Miami, for appellee Eckerd Corporation.
   MAY, J.

A prospective sub-subtenant (Merle Wood & Associates, Inc.) appeals an order dismissing its claim for declaratory and supplemental injunctive relief against In-tervest-Quay Limited Partnership and Eckerd Corporation with prejudice. It argues that the declaratory judgment act is broad enough to encompass its claim against the landlord and tenant under a master lease. We disagree and affirm the order dismissing the claims.

Intervest leased property to Eckerd under a Master Lease. The master lease required the consent of Intervest, which could not be “unreasonably withheld,” for any sublease or assignment. Eckerd sublet the property to Coldwell Banker. The sublease similarly required the written consent of Eckerd prior to any sublease or assignment.

Coldwell Banker entered into a proposed sub-sublease with Merle Wood, which was. conditioned upon the consent of both Intervest and Eckerd. Intervest advised Coldwell that it refused consent to the sub-sublease based “upon the prior history of MWA [Merle Wood] with this property.” Eckerd then refused consent. In a letter to Merle Wood, Intervest’s counsel indicated that investigation of Merle Wood had revealed a lease dispute with the prior owner and a substantial amount of other litigation, which accounted for its refusal to consent to the sub-sublease.

Merle Wood filed suit against Eckerd, Intervest, and Coldwell Banker. In count I, it sought a declaration of its rights under the master lease, sublease, and the proposed sub-sublease, claiming that In-tervest and Eckérd had unreasonably withheld their consent and requested supplemental injunctive relief to require Eck-erd and Intervest to consent to the sub-sublease.

Intervest and Eckerd moved to dismiss the complaint on several grounds, one of which was that Merle Wood lacked standing to assert rights that Coldwell might have had under the sublease against Inter-vest and Eckerd. The trial court entered a final order dismissing the action with prejudice aá it ’related to Intervest and Eckerd. There is no explanátion of the grounds upon which the dismissal is based.

The Declaratory Judgment Act provides:

Any person claiming to be interested or who may be in doubt about his or her rights under a ... contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a ... contract ... or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such ... contract ... or other article, memorandum, or instrument in'writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

§ 86.021, Fla. Stat. (2008).

We are aware of the broad interpretation to be given this Act. Olive v. Maas, 811 So.2d 644 (Fla.2002). We also recognize the recent pronouncement that contractual privity is not a prerequisite to reliance upon its provisions. Id. at 649-50. Unlike Olive, who sued the party with whom he was about to enter a contract, Merle Wood seeks to sue parties with whom he will never be in contractual privity under this sub-sublease. We decline to stretch the reach of this Act to these facts.

This case involves a “proposed” sub-sublease between Merle Wood and Cold-well Banker. Merle Wood lacked contractual privity with Coldwell Banker’s landlord, Eckerd. It was even further removed from any contractual privity with Eckerd’s landlord, Intervest. ' The Declaratory Judgment Act while broad in scope was never intended to span the contractual void that exists' among Merle Wood, Eckerd, and Intervest.

We hold that Merle Wood lacked standing to sue Eckerd and Intervest. This holding eliminates the need to address the other issues raised. The trial court properly dismissed the complaint with prejudice. We affirm.

STONE and POLEN, JJ., concur.

      . We note that Merle Wood's claim against Coldwell Banker remains pending. Merle Wood alleges that Coldwell Banker failed to use "zeal” in obtaining consent from Eckerd. Coldwell Banker has contractual privity with Eckerd. It may choose to implead Eckerd concerning the reasonableness of withholding consent to the proposed sub-sublease.


text:
    Frank JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-4019.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.
    Frank Jackson, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Frank Jackson petitions this court for a writ of habeas corpus alleging his appellate counsel provided ineffective assistance. We grant relief in part.

Jackson is entitled to a new direct appeal wherein he may raise the sole and specific issue of error associated with the trial court’s alleged failure to provide defense counsel with an opportunity to participate in formulating responses to the jury’s questions. See Woods v. State, 712 So.2d 1184 (Fla. 4th DCA 1998); McGlynn v. State, 697 So.2d 571 (Fla. 4th DCA 1997). Compare Lavin v. State, 861 So.2d 488 (Fla. 4th DCA 2003). If Jackson requests and qualifies for appointed counsel, the trial court shall grant such relief. Jackson shall have sixty days from the date of the issuance of the mandate in this case in which to file a notice of appeal to initiate the appellate proceeding.

WARNER, STEVENSON and MAY, JJ., concur.


text:
    Cecil RICHARDS, Appellant, v. LUXURY IMPORTS OF PALM BEACH, INC., d/b/a Lexus of Palm Beach, Appellee.
    No. 4D03-3542.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.

      Raymond G. Ingalsbe of Raymond' G. Ingalsbe, P.A., Palm Beach Gardens, for appellant.
    G. Jeffrey Vernis and Seth W. Pachter of Vernis & Bowling, North Palm Beach, for appellee.
   PER CURIAM.

Appellant sued appellee car dealer, alleging a number of counts including fraud and deceptive trade practices. We affirm the summary judgment as to the remaining counts, but reverse the claims for fraud and deceptive trade practices based on the following factual allegations.

Appellant gave a deposit of $1,000 to purchase a used Lexus for $11,300, which is reflected in a written contract. Appellant needed financing, which the salesman obtained through another entity. When appellant returned to take delivery, he signed the papers without reading them, assuming the purchase price would be the same as indicated in the deposit contract. He then drove the vehicle away without receiving copies of the documents. When he later discovered that the actual purchase price was over $16,000, that the interest rate was twenty-one percent, and that the total payments would be almost $25,000, he attempted to return the car to no avail.

Obtaining the signature of a customer on a contract which does not accurately reflect the agreement between the parties could constitute a deceptive trade practice, § 501.204, Fla. Stat. (1995), as well as fraud. There are material issues of fact as to both claims. Reversed.

' POLEN, KLEIN and GROSS, JJ., concur.


text:
    Mary FAGAN, Appellant, v. John M. CRAMER, as personal Representative of the Estate of Ruth Emma Lee, deceased, Appellee.
    No. 4D03-3451.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.

      Robert W. Horrell, Lake Worth, for appellant.
    Robert C. Sorgini of Sorgini & Sorgini, P.A., Lake Worth, for appellee.
   PER CURIAM.

Mary Fagan claims that she is the only lineal descendant of the decedent, Ruth Emma Lee, and is entitled to inherit Lee’s entire estate under section 732.103(3), Florida Statutes (2000). Fagan asserts that she is the out of wedlock daughter of Lee’s deceased brother. In the probate proceeding below, the estate filed its motion for summary judgment upon which the trial court found that Fagan was not a lineal descendant of the decedent. It found that Fagan had not offered any evidence to comply with the requirements of section 732.108(2), Florida Statutes (2000), and that her affidavits did not create a material issue of law or fact. We reverse.

Section 732.108(2) provides:

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his or her mother and is one of the natural kindred of all members of the mother’s family. The person is also the lineal descendant of his or her father and is one of the natural kindred of all members of the father’s family, if:
(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
(b) The paternity of the father is established by an adjudication before or after the death of the father.
(c) The paternity of the father is acknowledged in writing by the father.

The paternity of the father may be established in a proceeding to determine intestate succession. In re Estate of Smith, 685 So.2d 1206, 1208 (Fla.1996). Subsection (b) permits paternity to be proven “by evidence other than a written acknowledgment of paternity by the father or the marriage of the natural parents before or after the birth of the person born out of wedlock.” Breedlove v. Estate of Breedlove, 586 So.2d 466, 467 (Fla. 1st DCA 1991). Such evidence must be clear and convincing. Id.

Although at the time of the summary judgment Fagan did not as yet have evidence to meet the requirements of subsections (a) or (c), Fagan did present evidence that Lee’s brother was her natural father and the trial court failed to consider adjudicating Fagan’s paternity during the probate proceedings. The evidence raises genuine issues of material fact which preclude summary judgment. Therefore, we reverse and remand for further proceedings.

REVERSED and REMANDED.

GUNTHER, WARNER and HAZOURI, JJ., concur.


text:
    Moises Isaias CHOXOM, and Ana-Marie Iznaga, as Personal Representative of the Estates of Salome Cutz, deceased, and Pedro Rolando Choxom, deceased, and Montejo Gaspar, as Guardian of the Estate of Luis Alberto Jiminez, Appellants, v. BANKERS INSURANCE COMPANY, Appellee.
    Nos. 4D03-3661, 4D03-3751.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.
    John P. Wiederhold of Wiederhold & Moses, P.A., West Palm Beach, for appellant Moisés Isaías. Choxom.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and David J. Chesnut, Stuart, for appellants Ana-Marie Iznaga and Mon-tejo Gaspar.
    Patrick B. Flanagan of Flanagan, Ma-niotis, Berger & Ryan, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The issue raised on this appeal is whether there is coverage under a commercial general liability policy; which excludes accidents arising out of the use of an automobile, where there' is a claim that an employer negligently failed to train his employee not to leave the keys in the ignition. We agree with the well reasoned opinion of the trial court which provides:

Counsel stipulated to all material facts. Petitioner, Bankers Insurance Company, issued a commercial general liability insurance policy to Respondent Michael Dean Moye d/b/a Moye’s Irrigation (“Policy”). Moye employed Astel Soloman. Moye owned a 1986 Dodge van which Soloman used. Soloman left the keys in the vehicle and the vehicle unattended. The vehicle was stolen by Donald Stephen Flewellen. Flewellen negligently operated the vehicle, causing an accident which injured Luis Alberto Jiminez and Moisés Isaías Choxom and killed Salome Cutz and Pedro Ronaldo Choxom.
Bankers has brought this declaratory judgment action against those injured, the personal representatives of the decedents’ estates, Moye, Soloman, and Flewellen, seeking a declaration that the Policy affords no coverage for the accident.
Section II of the Policy provides:
2. Exclusions
This insurance does not apply to
g. Aircraft, Auto or Watercraft
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any ... “auto” ... owned or operated by ... any insured.
The parties agree that the van is an “auto” and Moye and Soloman were insureds under the Policy.
An accident “arises out of’ the use of a vehicle in this context if
1. it arises out of the inherent nature of the vehicle;
2. it arises within the territorial limits of the vehicle and the use, loading, or unloading has not terminated; and
3. the vehicle does not merely contribute to cause the condition which produces the injury but, itself, produces the injury.
Farrer v. United States Fidelity and Guaranty Co., 809 So.2d 85 (Fla. 4th DCA 2002).
Common sense dictates that the accident here arose out of the use of the van. Respondents argue, though, that there is record evidence that Moye negligently failed to train Soloman by negligently failing to tell him it is illegal and improper to leave the keys in an unattended vehicle; that negligent training is distinct from negligent entrustment, which is specifically excluded by the Policy; and that there is a disputed issue of fact concerning whether the alleged negligent training was a concurrent cause of the accident.
This argument fails for two reasons. First, the alleged negligent failure to instruct Soloman to obey traffic rules, including that requiring keys not be left in an unattended vehicle, is not independent of the negligent driving such that the exclusion is not triggered. See Westmoreland v. Lumbermens Mutual Casualty Company, 704 So.2d 176 (Fla. 4th DCA 1997); rev. dism., 717 So.2d 534 (Fla.1998); Fidelity and Casualty Company of New York v. Lodwick, 126 F.Supp.2d 1375, 1380 (parents’ alleged failure to properly supervise minor child alleged to have known propensity to speed and otherwise drive unsafely “is ... synonymous with a negligent en-trustment of the vehicle, which is an expressly excluded risk.”) Assuming Moye hired an employee who lacked basic driving skills, no tort occurred until he entrusted his vehicle to that employee. Moye’s alleged failure is the functional equivalent of Moye’s leaving the vehicle unattended with the keys in the ignition. In either case, any claim arises out of Moye’s ownership, use, or entrustment of the van.
Second, the Court is aware of no independent duty to instruct an employee to obey traffic laws. The duty to train extends only to those tasks as to which an employer would reasonably expect his employee to require instruction. A reasonable employer would have no reason to expect that a licensed driver must be told what the traffic laws provide. Absent a duty, an owner cannot be liable for its breach.

We affirm the summary judgment determining there was no coverage for this accident.

KLEIN, SHAHOOD, JJ„ and EMAS, KEVIN M., Associate Judge, concur.


text:
    Shirley SCHWARTZ, on behalf of herself and all other similarly situated Florida residents or domiciliaries holding policies of insurance with USAA Casualty Insurance Company, Appellants, v. USAA CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D03-3139.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.
    John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, and Edward H. Zeber-sky of Zebersky & Payne, LLP, Hollywood, for appellants.
    Jeffrey R. Fuller of Brasfield, Fuller, Freeman, Lovell & O’Hern, P.A., St. Pe-tersburg, for appellee.
   PER CURIAM.

Affirmed. See Main v. Security Nat’l Ins. Co., 848 So.2d 373 (Fla. 4th DCA 2003).

- FARMER, C.J., STONE, and POLEN, JJ., concur.


author: KLEIN, J.

text:
    K.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1477.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Under our juvenile speedy trial rule, if a petition alleging a delinquent act has been filed, and a trial has not been commenced within ninety days, the juvenile can move for discharge. The juvenile must then be brought to trial within a short recapture period or discharged. In this case, during the recapture period, appellant filed a petition for writ of prohibition in this court, resulting in an order staying all further proceedings in the trial court. We conclude that failure of the trial court to hold the trial within the recapture period was attributable to appellant, and he was therefore not entitled to be discharged.

The petition for adjudication was filed on April 10, 2002. Apparently because of difficulty in serving K.C. with a summons, he was not arraigned until December 19, 2002. On January 28, 2003, he filed a motion for discharge under rule 8.090(a), alleging that his trial had not occurred within ninety days of the filing of the petition. That motion was denied on February 3, 2003, and the case was set for trial on February 11, 2003.

Between those two dates, on February 7, 2003, appellant filed a petition for writ of prohibition in this court, and we issued a rule to show cause on February 7, which automatically stayed all proceedings in the trial court. See Fla. R.App. P. 9.100(h). The petition, which addressed the delay between the filing of the petition for delinquency and the trial, was dismissed on March 18, 2003.

Ten days after our denial of the petition for writ of prohibition, the trial court set the case again to start on April 8, 2003. At the beginning of the trial the appellant again moved for discharge under the speedy trial rule, arguing that, although the time was tolled while the stay order was in effect, it automatically started to run again when this court denied the petition. Based on that argument, the recapture period would have expired in late March, before the April 8, 2003 trial date. The trial court denied the motion, and appellant pled no contest, reserving the right to appeal this ruling.

Under the rule, a discharge should be denied if the child has voluntarily waived the right to speedy trial, or the failure to have the trial is attributable to the child. Rule 8.090(d)(1) and (3).

Appellant relies almost entirely on State ex rel. Mullen v. Swigert, 352 So.2d 962 (Fla. 1st DCA 1977), in which it was held that a speedy trial period automatically resumed when the appellate court denied a writ of prohibition. In Mullen, the trial court had extended the period for trial ninety days, until April 4. During that period the defendant filed a petition for writ of prohibition in the first district and a rule nisi, which we assume is the same as our order to show cause in the present case, was issued on March 1. The rule nisi was discharged on May 23, but it was not until July 15 that the prosecutor notified defense counsel that the trial would be held on July 25. Defendant moved for discharge, which was denied, but the first district disagreed, concluding that once the rule nisi was discharged on May 23, the time automatically resumed running on the ninety day extension of the period for trial.

If the period in which to try the appellant in this ease automatically resumed when we denied prohibition, there would only have been six days from the issuance of our order until the recapture period ended. The trial court in this case reasoned that the appellant should have to renew the motion for discharge after the denial of prohibition, so that the time periods are clear to the court and the parties. We agree.

When the period in which to have a trial is short, as it was here, it is possible that the trial court and the parties will not receive copies of our order, which ends the stay, until after the time has run. Significantly, the timing in this case was entirely attributable to the appellant, who elected to file the petition for writ of prohibition with only six days remaining in which to try appellant. If he had not done so, the trial would have been timely. If we were to hold that the recapture period automatically resumes, it would encourage the filing of frivolous petitions during the ten day recapture period, in the hopes that an advantage could be gained because of the delay between the appellate court entering an order, and receipt by the trial court and parties. Neither trial judges nor the parties should have to call the appellate court every day in order to prevent the recapture period from running.

A motion for discharge cannot be granted under rule 8.090(d)(3), if “the failure to hold an adjudicatory hearing is attributable to the child.” In this case the failure to have the hearing resulted from the stay order entered by this court. The stay order was prompted by the filing of the petition, and it was the child who elected to file the petition with only six days remaining in the recapture period. The failure of the trial court to hold the hearing was accordingly attributable to the child under the rule.

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . We are not certifying direct conflict with Mullen, because in Mullen, after the appellate court ruled, the state still had over thirty days in which to obtain a trial date or an extension, but did nothing. And, the juvenile rule we have applied, although similar, is not identical to the adult rule applied in Mullen. Whether we certify direct conflict or not, the jurisdiction of our supreme court to review this decision is still discretionary. Rule 9.030(2), Art. V, § 3, Florida Constitution. The only difference is that, when we certify conflict, our rules do not require separate jurisdictional briefs limited to the issue of conflict. Rule 9.120(d). In this case, although we are plainly declining to apply Mullen, we believe that the process would be better served if the parties are required to address direct conflict in jurisdictional briefs.


author: WARNER, J.

text:
    Gary LOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4205.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s conviction of felony driving with a suspended license, to which he pled guilty, along with thirty-one other offenses. He contends that his conviction violated Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002), which held that one cannot be guilty of both a violation of Florida Statute section 322.34(2), felony driving while license suspended, and section 322.34(5), habitual offender driving while license suspended, based upon a singular offense. We disagree, as Franklin is inapplicable.

Section 322.34(2), Florida Statutes (2001), penalizes driving on a suspended or revoked license. A third conviction results in a felony conviction. See § 322.34(2)(c). Section 322.34(2) excludes persons found to be habitual traffic offenders. On the other hand, section 322.34(5) penalizes driving while one’s license is revoked pursuant to section 322.264, Florida Statutes (2001), which defines a habitual traffic offender. Thus, sections 322.34(2) and 322.34(5) are mutually exclusive as applied to a single offense, as Franklin held. See 816 So.2d at 1204.

Franklin does not apply to the facts of this case. Appellant’s convictions and sentences did not involve a single offense. Instead, he was charged with one offense in 2001 and three offenses in 2002, but they were all resolved by a plea agreement in 2002. For the offense in 2001, he pled guilty to felony driving while license suspended in violation of section 322.34(2)(c), which requires two prior convictions for driving while license suspended. For the 2002 offenses, he also pled guilty to three charges of violating section 322.34(5) for driving while his license was revoked as a habitual traffic offender pursuant to section 322.264.

To be convicted of a violation of section 322.34(5), one must first qualify as a habitual traffic offender, which requires three separate convictions of specified traffic offenses. See § 322.264(1). The Department of Highway Safety and Motor Vehicles must then revoke the person’s license pursuant to section 322.27(5), Florida Statutes (2001). A person who drives while his or her license is revoked pursuant to section 322.264 may then be charged under section 322.34(5).

Appellant was charged and pled guilty to three violations of section 322.34(5) for his 2002 offenses. He maintains in his appeal that he must have already qualified as a habitual offender for the 2001 offense because there is nothing in the record to show any other offenses between the 2001 offense and the 2002 offenses. On the other hand, it may be just as likely that the 2001 offense was properly charged, convicted, and sentenced, but the 2002 offenses were not, because the 2001 charge was not reduced to a conviction by the time of the 2002 offenses and, therefore, could not serve as the predicate third conviction for a license revocation as a habitual traffic offender.

Because it is not apparent from the record on what prior convictions the offenses in either 2001 or 2002 were based, and appellant pled guilty pursuant to a plea agreement, we must affirm. We do so without prejudice to appellant seeking postconviction relief, if appropriate.

Appellant has also claimed he is entitled to additional jail credit. However, based upon Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986), we conclude he is not.

Affirmed.

KLEIN and TAYLOR, JJ., concur.


author: SHARP, W., J.

text:
    Borden R. HALLOWES, Appellant, v. Ronald BEDARD and Barbara Bedard, his wife, Appellee.
    No. 5D03-3184.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.

      Borden R. Hallowes, Fernandina Beach, pro se.

      R.J. Larizza of R.J. Larizza, P.A., St. Augustine, for Appellees.
   SHARP, W., J.

Hallowes appeals from a final judgment rendered after a non-jury trial, which denied his request for an award of attorney fees against Ronald and Barbara Bedard, based on quantum meruit. Hallowes represented the Bedards in prosecuting their claim against First Union Securities and others for investment losses, beginning with reviewing their letter claim form and handling the arbitration of their claim under NASD (National Association of Securities Dealers) Code of Arbitration Procedure through arbitration, a process that lasted a little over one year. The trial judge ruled that Hallowes was not entitled to recover attorney fees from the Bedards for two reasons: first, that Hallowes’ expert witness to establish the reasonableness of fees to be awarded, based on quantum meruit, did not take into consideration all of the criteria required pursuant to Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366 (Fla.1995); and second, that the Bedards had good- reason to believe Hallowes undertook their representation with the understanding and expectation that he would be paid for his services solely by an award imposed against First Union, et al, as a result of the arbitration. Because both findings are supported by competent, substantial evidence, even though in dispute, we affirm.

The circumstances and facts in this case are highly unusual. Hallowes admitted that he had never, in his lengthy legal career of forty years, handled a client representation in such a manner. He testified he has never had a case like this one, where he did not have a written contract, never discussed his hourly rate, and never provided a bill to his client until the legal matter had been concluded.

He first met Ronald Bedard after being assigned to play golf with him at the Oak-ridge Country Club. When Hallowes told Bedard he was an attorney, Bedard told him he and his wife were in the process of filing a claim with NASD to seek a recovery against First Union for investment losses. Hallowes offered to assist.

Bedard pointed out that on the letter form he intended to file there was a box to check to request the arbitration panel to award attorney fees. Bedard told Hal-lowes that if he wanted to assist him, he would check the box and claim attorney’s fees. Bedard testified he told Hallowes that his fees would be paid on that basis. Hallowes said: “Well, yeah, that would be fine.”

This conversation took place either in the parking lot at the Country Club, or in the Bedards’ home, when Hallowes and his wife happened to stop by while riding their bicycles, one weekend shortly after Bedard and Hallowes first met. Bedard signed a document, which he sent to NASD, indicating Hallowes was representing him in this matter and Hallowes began work on the case.

Hallowes testified that a lot of his review of records and work was done at the Bedards’ home, sitting at their dining room table and at a Burger King restaurant, and discussions about the claim took place while they were playing golf. Hal-lowes never told the Bedards what his hourly, rate (fee) charge would be ($250.00), or the fee he would charge them per day for conducting the case for them at arbitration ($3,500.00). He never sent them an interim billing or statement until the arbitration had been concluded. They never signed a written agreement for Hal-lowes’ services.

As time progressed, Hallowes became uncomfortable with the fact that he had no written contract to cover his representation and fees. He presented the Bedards with two or three contingency fee contracts, one very shortly before the arbitration proceeding was scheduled. Each time Bedard refused to sign a contingency fee contract. He testified he reminded Hal-lowes that he had agreed to seek his fees from First Union and that he (Bedard) would not pay him out of his pocket: “I made it very clear.”

Hallowes testified he was upset by the failure of the Bedards to sign a written contingency fee contract. He tried to get them “to come up with something,” but “we never did.” He did not want to press them, because they were friends, nor did he want to withdraw immediately before the arbitration. He was “resigned.” At the end, he felt “what the heck ... just go ahead and ... get it over with.” In turn, Bedard testified that after he rejected the last contingency fee • contract, he feared that Hallowes might not appear for the arbitration hearing. Bedard was prepared to proceed on his own.

The arbitration decision awarded the Bedards $86,546.83, as compensatory damages, plus interest, bringing the total award to $106,834.01. The Bedards had sought compensation for $264,000 in investment. losses, punitive damages of $235,000, attorney’s fees and costs. The costs were $10,000.00. The arbitration panel denied punitive damages, attorney’s fees and costs.

Hallowes admitted he had not researched how to obtain an attorney’s fee award in an arbitration proceeding and as a result, the arbitration panel could not have awarded attorney fees, against First Union. Bedard was also unaware he could have sought fees against First Union by filing suit in circuit court, after the arbitration award was final. Accordingly, Hal-lowes failed to apply to the circuit court to have the award certified and to pursue his claim for attorney’s fees in that venue.

1. Expert Testimony to Establish Attorney’s Fees Based on Quantum Meruit.

The Searcy case is the Florida Supreme Court’s most current direction to the Florida Bar and courts concerning the criteria to be used in determining a reasonable fee for an attorney in a quantum meruit situation. That is to say, when there is no controlling contract between the client represented and the attorney, and the attorney is seeking fees against the client. In Searcy, there had been a contingency fee contract, but the attorney was discharged without cause prior to the resolution of the case. But the Searcy case has been applied to other situations where there was no written contract. See Frank J. Pepper, Inc. v. Vining, 783 So.2d 1160 (Fla. 3d DCA 2001).

The Searcy court said that the lodestar method of calculating fees, should not be applied if the fee is to be paid by the client or other contracting party. Reasonable time and rate are factors, and Florida Bar Rule 4-1.5(b) is a starting point. But the criteria should encompass all relevant factors surrounding the professional relationship, including the actions taken by the attorney, whether and to what extent they benefitted the client, the skill demanded and demonstrated, and the results obtained. It concluded that the determination as to which factors are relevant in a given case, the weight to be given each factor and the ultimate determination as to the amount to be awarded, are matters within the sound discretion of the court. In Searcy, the court overturned the trial court’s attorney’s fee award because it failed to “consider the totality of the circumstances present in this case, considering only the time reasonably expended and the reasonable hourly rate for the services, as determined under the principles set forth in Rowe. 652 So.2d at 369.

In this case, Hallowes’ expert witness testified as to the reasonableness of Hal-lowes’ hourly rate charged ($250.00 per hour), the daily rate for handling the arbitration proceedings, and the time spent on the case, resulting in the total of $39,046.10. He based his opinion primarily on the lodestar method, but did not add any multipliers. He also added he had considered the case law as well as the Code of Professional Responsibility.

However, the expert admitted he did not consider that Hallowes had not periodically billed the Bedards during the more than year it took to pursue the claim through arbitration, and that Hallowes had not communicated to them his billing rate at any time prior to presenting them with his final bill after the arbitration had concluded. He also did not consider that Hal-lowes had not previously handled a NASD arbitration proceeding. Nor did he opine about the benefit and quality of the legal services rendered in this case. Was this a good result or not for the Bedards? The expert did not address this. Nor did he consider the fact that Hallowes failed to apply to the circuit court for an award of attorney’s fees following the arbitration proceedings. See D.H. Blair & Co., Inc. v. Johnson, 697 So.2d 912 (Fla. 4th DCA 1997).

In addition, the expert witness did not take note of the fact that Hallowes had not represented the Bedards prior to this claim and that his professional relationship began and was continuously intermingled with their golfing, social-friend relationship. Hallowes testified he knew he should have obtained a contract with the Bedards for his representation of them in connection with their arbitration claim. He was understandably uncomfortable with this situation, but he continued because they were friends.

II. Quantum Meruit on the “Merits.”

The basis for a quantum meruit award is essentially an equitable one. One person should not benefit from the work efforts of another under circumstances where the person doing the work has the reasonable expectation of being paid by the person benefitted, and the person ben-efitted has a reasonable expectation of paying for the work. Osteen v. Morris, 481 So.2d 1287, 1289-90 (Fla. 5th DCA 1986). The trial court found that the Be-dards accepted Hallowes’ services and work under the reasonable belief that he would be paid for his services through a fee awarded by the arbitration panel against First Union, and not by them. It also found that Hallowes could voice no explanation as to the foundation of his belief that the Bedards would pay him a reasonable fee for his services rather than looking to the arbitration award. These findings, although disputed by Hallowes, are supported by the testimony of the Bedards at trial and Hallowes’ admissions.

Given these findings by the trial court, there is no basis upon which to premise a quantum meruit award, even if the expert witness had based his opinion on the required criteria. Indeed, the expert witness admitted that it is possible for an attorney to agree to represent a client for free, or to look solely for the payment of fees from an opposing party. If a lawyer agrees to only accept fees that (hopefully) will be awarded against an opposing party, that can be binding on the lawyer. The expert witness concluded that Hal-lowes should be paid a reasonable sum for the work he did for the Bedards, unless he agreed to do it for nothing. Or, as suggested by this record, if he agreed to look only to the arbitrator’s fee award. The trial court, based on this record, concluded that was what happened in this case. We cannot disagree.

In addition, we are also troubled by the fact that Hallowes did not research how a party can obtain an attorney fee award in an arbitration proceeding, and how such an award can be sought in the circuit court following arbitration. Equity would require that Hallowes effectively and to the best of his ability, pursue the possibility of obtaining a fee award from First Union before seeking it from the Bedards.

AFFIRMED.

THOMPSON and MONACO, JJ., concur.

      .It also appears from prior pleadings that the Bedards had paid $3,800.00 for the services of an expert witness, but because necessary documentation was not submitted prior to arbitration, the documents and the expert were excluded at the arbitration proceeding.

      . See D.H. Blair & Co., Inc. v. Johnson, 697 So.2d 912 (Fla. 4th DCA 1997).

      . Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

      . The bill included 106 hours of work billed at $250.00 per hour, three and one-half days for the arbitration sessions at $3,500 per day, and 940 miles for travel.

      . The court ruled: "It is not difficult to understand why the Bedards believed [Hal-lowes] had agreed under these circumstances that he would accept such fee as might be awarded by the arbitration panel.”

      . The court ruled:
      Mr. Hallowes indicated that he continued to help the Bedards believing that he would be paid a reasonable fee for his services. However, no explanation was offered by Mr. Hal-lowes as to the foundation for such a belief.

      . Porzio v. Porzio, 760 So.2d 1075 (Fla. 5th DCA 2000); Patrick v. Christian Radio, 745 So.2d 578 (Fla. 5th DCA 1999); Love PGI Partners, LP v. Schultz, 706 So.2d 887 (Fla. 5th DCA 1998), approved, 731 So.2d 1270 (Fla.1999).

      .The court found: "[Hallowes] offered no explanation as to why fees were not sought in a Circuit Court proceeding.”