author: NORTHCUTT, Judge.

text:
    ORKIN EXTERMINATING COMPANY, INC., Rollins, Inc., David Bernstein, individually, and Rick Prothero, individually, Appellants, v. Francis D. PETSCH, individually and on behalf of all others similarly situated, Appellee.
    No. 2D02-5494.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2004.
    Rehearing Denied April 22, 2004.

      Michael W. Davis, William J. Nissen, and Theodore R. Scarborough of Sidley Austin Brown & Wood, Chicago, IL, and Douglas B. Brown of Rumberger, Kirk & Caldwell, Orlando, for Appellants.
    Keith E. Hope of the Hope Law Firm, P.A., Key Biscayne, Daniel Clark of Clark, Charlton & Martino, P.A., Tampa, and George A. Yaka of Yaka, Larson & Johnson, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

Francis Petsch contracted with Orkin Exterminating Company to inspect his home for termites and treat any infestation. Petsch was unhappy with Orkin’s services and initiated a class action against Orkin, Rollins, Inc., David Bernstein, and Rick Prothero (collectively Orkin). Petsch sought, in count I, money damages and attorney’s fees under Florida’s Deceptive and Unfair Trade Practices Act (FDUT-PA), § 501.201-.213, Fla. Stat. (2001); in count II, restitution of all money he paid Orkin; and in count III, injunctive relief under FDUTPA and a declaration that the contract’s limitation of liability provision was unenforceable.

Pursuant to a contract provision requiring the parties to arbitrate any disputes, Orkin moved to dismiss or stay the proceedings in favor of arbitration. The circuit court denied Orkin’s motion, finding the agreement invalid- on two grounds: first, the court found that arbitration did not provide a forum in which Petsch could exercise his statutory rights; and second, the court held that the arbitration provision was unconscionable. We agree with Orkin that both of the circuit court’s reasons for denying arbitration were erroneous. We reverse and remand with directions to submit Petsch’s.claims to arbitration.

We review an order denying a motion to compel arbitration de novo. Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003). In determining whether a dispute is subject to arbitration, courts consider: “(1) whether a valid written agreement to-arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Id.; see also Flyer Printing Co. v. Hill, 805 So.2d 829, 831 (Fla. 2d DCA 2001). The only issue presented in this case is the validity of the arbitration provision.

We begin our analysis by noting that FDUTPA claims properly may be submitted to arbitration. Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 624 (Fla. 4th DCA 2001); Value Car Sales, Inc. v. Bouton, 608 So.2d 860, 861 (Fla. 5th DCA 1992). When considering whether the legislature intended to preclude the submission of FDUTPA claims to arbitration, the Aztec court declared that to do so, “the legislature would have to state such a requirement in unambiguous text.” 792 So.2d at 621 (quoting Sharpe v. Lytal & Reiter, Clark, Sharpe, Roca, Fountain, Williams, 702 So.2d. 622, 624 (Fla. 4th DCA 1997)). We agree with Aztec that FDUTPA contains no such statement of legislative intent. As such, FDUTPA claims may be heard in an arbitral forum.

But Petsch claims that the specific language of the provision in his contract prohibits him from raising his FDUTPA claim in arbitration. The pertinent part of the arbitration clause states:

[A]ny dispute arising out of or relating to this agreement ... shall be finally resolved by arbitration administered under the commercial arbitration rules of the American Arbitration Association. Furthermore, the parties expressly agree that their mutual rights and obligations and the conduct of any arbitration proceeding shall be controlled by the Federal Arbitration Act. The arbitrator shall give effect to any and all waivers, releases, disclaimers, limitations and other terms and conditions of this agreement. The arbitrator shall consider the legal defenses raised in the arbitration....

Directly following the arbitration clause is a provision entitled “Limitation of Liability.” The contested section of that provision states:

Customer expressly waives any claims in any lawsuit, arbitration or legal proceeding against Orkin for breach of contract, negligence, other tort, or violation of any statute, rule or regulation, for loss of use, diminution of value, economic, compensatory, or incidental or consequential damages of any kind, or any exemplary, treble, liquidated, or any type of punitive damages. Customer agrees that under no circumstances shall Orkin be hable for any amount greater than the amount paid by the Customer to Orkin for the termite service to be performed.

(Emphasis supplied).

Petsch reads the limitation of liability provision to preclude him from bringing a FDUTPA cause of action, i.e., “[c]ustomer ... waives any claims ... for ... violation of any statute....” He contends that because the agreement requires that the arbitrator “shall give effect to any and all waivers, releases, disclaimers, [and] limitations” contained in the parties’ contract, the limitation provision is incorporated into the arbitration clause. Under this interpretation, he cannot pursue his statutory rights in an arbitral forum and, because of that, the arbitration agreement is unenforceable. See, e.g., Flyer Printing, 805 So.2d at 831. The circuit court agreed with Petsch’s view.

Petsch’s position is reasonable given the poorly worded limitation provision in Or-kin’s form contract. In the quote above, we have underlined the words that give rise to ambiguity. It is unclear whether the waiver extends to all claims based on causes of action for breach of contract, torts, and statutory violations, or only to claims for certain damages arising from those causes of action. But in this appeal Orkin has conceded that the clause

merely limits the remedies available in any proceeding against Orkin, whether in arbitration or a lawsuit. The provision does not even purport to prevent plaintiff from filing a claim against Or-Mn under the FDUTPA seeking declaratory and injunctive relief and a refund of the contract price. Put simply, nothing in the limitation of liability provision prevents [Petsch] from asking the arbitrator to hear his FDUTPA claim on the merits, just as a court would.

Reply br. at 4-5.

Both federal and Florida public policy favor resolving disputes through arbitration when the parties have agreed to do so. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); K.P. Meiring Constr., Inc. v. Northbay I & E, Inc., 761 So.2d 1221, 1225 (Fla. 2d DCA 2000). In keeping with this policy, we will construe the Orkin contract, including the arbitration and the limitation provisions, in a way that gives a reasonable meaning to all the terms, rather than in a way that will render part of the contract of no effect. See State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285, 1287 (Fla.1996). We accept Orkin’s assertion that nothing in the arbitration clause or the limitation provision prevents Petsch from raising his FDUTPA claim, or any other claims he may have against Orkin, in the arbitration.

Nor does the limitation provision affect the remedies available for a violation of FDUTPA. Section 501.211(2) provides that anyone who has suffered a loss because of a violation of FDUTPA “may recover actual damages, plus attorney’s fees and court costs.” Although Petsch sought special, consequential, and incidental damages in count I, those damages are not available under FDUTPA. See Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 314-15 (Fla. 4th DCA 1998). Section 501.211 permits a consumer to recover only the diminished value of the services received. Urling v. Helms Exterminators, Inc., 468 So.2d 451, 454 (Fla. 1st DCA 1985). Thus, in the context of an improper termite- inspection, the Urling court noted that the plaintiff could only recover the cost of the erroneous certificate. Petsch’s damages under FDUTPA would be recovery of the amount he paid under his contract with Orkin, plus his fees and costs. Such recovery is permitted under the limitation of liability provision in the contract.

As to attorney’s fees, both the arbitration clause and limitation provision are silent. Petsch has sought attorney’s fees which are authorized under section 501.211(2). While the limitation provision states that Orkin will not be “liable” for any amount greater than the amount Petsch paid it, we read this condition in conjunction with the sentence before it, which imposes a limitation on the damages awardable. Attorney’s fees are not damages. Scottsdale Ins. Co. v. Haynes, 793 So.2d 1006, 1009 (Fla. 5th DCA 2001), review denied by Home Away From Home of Holly Hill, Inc. v. Scottsdale Ins. Co., 819 So.2d 135 (Fla.2002); see also Cheek v. McGowan Elec. Supply Co., 511 So.2d 977 (Fla.1987).

We note that even when the Federal Arbitration Act governs an arbitration agreement, Florida law controls the award of attorney’s fees.' Lee v. Smith Barney, Harris Upham & Co., 626 So.2d 969, 971 (Fla. 2d DCA 1993); see also Cassedy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 751 So.2d 143, 146-47 (Fla. 1st DCA 2000). The Florida Arbitration Code, § 682.11, Fla. Stat. (2001), states that “[u]nless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel’s fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” (Emphasis supplied). Attorney’s fees for time spent in arbitration are recoverable only in the circuit court on a motion for confirmation or enforcement of the award. Lee, 626 So.2d at 970; see also Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 232-233 (Fla.2001) (stating that section 682.11 “has been construed to vest jurisdiction for the award of attorney’s fees in the circuit court”). If Petsch prevails on his FDUTPA claim, which authorizes attorney’s fees, he may seek an award of such fees from the circuit court, or the parties may waive their right to have the circuit court decide the issue and agree that the arbitrator may do so. See Moser, 783 So.2d at 233.

In count III, Petsch also seeks in-junctive relief under FDUTPA. Section 501.211(1) authorizes injunctive relief, even if that relief does not benefit the customer who filed the suit. Davis v. Powertel, Inc., 776 So.2d 971, 975 (Fla. 1st DCA 2000). Recently we held that an arbitration agreement was unenforceable when the agreement did not permit a customer to seek injunctive relief in arbitration of a FDUTPA claim. Holt v. O’Brien Imports of Fort Myers, Inc., 862 So.2d 87 (Fla. 2d DCA 2003). But in that case the arbitration provision only authorized an award of damages, fees, and costs. Id.; see also Powertel, Inc. v. Bexley, 743 So.2d 570, 576 (Fla. 1st DCA 1999) (“The arbitration clause expressly limits Powertel’s liability to actual damages.... ”). Generally, unless prohibited from doing so, arbitrators have the power to fashion equitable remedies. See Gilmer, 500 U.S. at 32, 111 S.Ct. 1647; Stewart Agency, Inc. v. Robinson, 855 So.2d 726, 728 (Fla. 4th DCA 2003). Like the agreement in Robinson, Petsch’s agreement with Orkin does not prohibit the arbitrator from awarding injunctive relief. Moreover, the rules of the American Arbitration Association, which govern the arbitration in this case, permit the arbitrator to award such relief.

The circuit court erred in determining that Petsch could not vindicate his statutory rights in the arbitral forum. We do not fault the court for its conclusion, however, because of the imprecise language contained in the limitation provision. And we note that in future proceedings Orkin will be bound by the construction of the limitation of liability provision it has advanced in this appeal.

The circuit court also refused to enforce the arbitration clause because it found the clause was unconscionable. This is a question of state law; while the parties do not dispute that their contract is governed by the FAA, state law is applicable “if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); see also 9 U.S.C. § 2 (declaring that written provisions for arbitration are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). In Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), the Court noted that generally applicable contract defenses under state law, such as fraud, duress, or unconseionability, may be applied to invalidate arbitration agreements without contravening section 2 of the FAA. See also Powertel, 743 So.2d at 573-74. Thus, we look to Florida law to determine unconseionability.

For a contractual provision to be voided, it must be both procedurally and substantively unconscionable. See El- dridge v. Integrated Health Servs. Inc., 805 So.2d 982 (Fla. 2d DCA 2001); Powertel, 743 So.2d at 574. The circuit court in this case found the arbitration provision was a contract of adhesion and, therefore, proeedurally unconscionable. It declared the provision substantively unconscionable because it limited Petsch’s damages and forced him to waive statutory remedies. The court relied on Powertel for both propositions. But the facts here are materially distinguishable from those underpinning the decision in Powertel. We conclude that the arbitration provision in the contract before us is not unconscionable.

The procedural component of un-conscionability concerns the manner in which the contract was entered. It involves consideration of facts such as the relative bargaining power of the parties and their ability to understand the contract terms. For example, a court could find a contract proeedurally unconscionable if important terms were “hidden in a maze of fine print.” Powertel, 743 So.2d at 574 (internal citations omitted). The agreement in Powertel was, without question, proeedurally unconscionable. Powertel, a cellular service provider, attempted to modify its contracts with customers after the fact, by including an insert in the customer’s bill stating the terms of the existing contracts would be changed to add an arbitration provision as of a certain date. If the customer continued to use the cellular service, he or she was deemed to have accepted the new contract terms. “The customers did not bargain for the arbitration clause, nor did they have the power to reject it. One of the hallmarks of procedural uneonscionability is the absence of any meaningful choice on the part of the consumer.” Id. at 575. Powertel’s customers had no choice but to agree to the new arbitration clause if they wished to continue to use the cellular telephone plans they had already purchased.

But here, the arbitration provision was contained in the original contract between the parties. It was in large type on the first page of the agreement, not buried in a maze of fine print. While it was a preprinted provision, we cannot agree with the circuit court’s finding that it was a contract of adhesion. The Powertel court defined an adhesion contract as a standardized form offered on a “ ‘take it or leave it’ basis without affording [the] customer [a] realistic opportunity to bargain” and under such conditions that the customer “cannot obtain [the] desired product or services except by acquiescing in the form contract.” Id. at 574. Here, Petsch does not argue, nor does any evidence support, the proposition that he was forced to contract with Orkin on a “take it or leave it basis” or that he could not have obtained termite services for his home without acquiescing to Orkin’s terms. See Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 281 (Fla. 1st DCA 2003). The arbitration provision is not procedurally unconscionable.

Under Eldridge, 805 So.2d at 982, our decision that the provision was not procedurally unconscionable effectively ends our inquiry. But we note that some courts use a balancing approach to the question — if the contract is substantively unconscionable to a great degree, and some quantum of procedural uneonscionability exists, the contract is unenforceable. See Romano ex rel. Romano v. Manor Care, Inc., 861 So.2d 59, 60-63 (Fla. 4th DCA 2003); Kohl v. Bay Colony Club Condo., Inc., 398 So.2d 865, 868 (Fla. 4th DCA 1981). But, as discussed in the first part of this opinion, the arbitration clause in Petsch’s contract does not preclude him from raising his statutory claims in arbitration. Neither does it limit the statutory damages available for a FDUTPA violation. In any event, Orkin has acknowledged that the arbitrator has the power to declare the limitation of remedies unenforceable. Thus, Petsch may challenge the limitation provision in arbitration. Therefore, the arbitration provision is not substantively unconscionable, and even under the Fourth District’s approach, the contract is enforceable.

Finally, we note that Petsch filed his suit as a class action. The FAA and the rules of the American Arbitration Association permit arbitrators to decide whether class actions may be arbitrated under a, particular contractual provision. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, -, 123 S.Ct. 2402, 2407, 156 L.Ed.2d 414 (2003); American Arbitration Association, Supplementary Rules for Class Arbitration. Because we are remanding for arbitration, we leave this issue for the arbitrator to decide.

In summary, we hold that the arbitration agreement between Petsch and Orkin does not preclude Petsch from raising any causes of action in an arbitral forum. Nor is the provision unconscionable. We reverse the order denying Orkin’s motion to dismiss or stay the circuit court action pending arbitration. We remand with directions to refer Petsch’s claims to arbitration.

COVINGTON and CANADY, JJ., Concur.

      . Because of our resolution of this issue, we need not address Orkin's argument that, in cases subject to the Federal Arbitration Act, the intent of a state legislature is not a relevant consideration in deciding whether state statutory claims are arbitrable. Orkin argues that the FAA policy favoring enforcement of contractual arbitration must be honored "unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Thus, Orkin claims only Congress's intent to preclude arbitration, not the intent of a state legislature, may be examined. The parties do not dispute the FAA's applicability to this case. But because we have determined that FDUTPA claims are arbitrable, we leave this question for another day.

      . See Rules of the American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures, rule 43. The rules can be found at www.adr.org.


source: Caselaw Access Project

author: CHAVIES, MICHAEL B„ Associate Judge.

license: Public Domain

text:
    Maria GARCIA, Appellant, v. Ana M. ARRAGA, Appellee.
    No. 4D02-3609.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and Cymonie S. Rowe of Dickstein, Reynolds, Woods & Murasko, P.A., North Palm Beach, for appellant.
    Allen E. Rossin of Law Offices of Allen E. Rossin, P.A., West Palm Beach, for appellee.
   CHAVIES, MICHAEL B„ Associate Judge.

Pending before this court is an appeal of an order denying the appellant’s post-trial motion for collateral source deductions. For the reasons set forth below, this court reverses the trial court’s ruling, and remands for farther proceedings in accordance with this opinion.

The facts underlying this appeal stem from an automobile accident occurring in West Palm Beach, Florida. In 1998, the parties’ automobiles collided near the intersection of Belvedere Road and Military Trail in West Palm Beach. The appellee, the plaintiff below, sued the appellant, the defendant below, for injuries sustained from the accident. After trial, the trial court denied the appellant’s motion for collateral source set-off; and entered final judgment in favor of the appellee in the amount of $12,000. In its order, the trial court noted that absent an express agreement by the parties, it could not, post-trial, reduce the jury’s damage award by the amount of the personal injury protection payments. In support of its decision, the court cited Kirkland v. Allstate Insurance Co., 655 So.2d 106 (Fla. 1st DCA 1995), and Marion v. Cissell, 376 So.2d 871 (Fla. 5th DCA 1979). These cases, as interpreted by the trial court, require evidence of collateral source payments to be submitted during trial for a jury’s determination in automobile tort actions.

The appellant appeals the court’s decision denying the post-trial motion for collateral source set-off. In support of the appeal, the appellant cites Section 768.76(1) of the Florida Statutes, which the appellant contends requires the trial court, after trial, to reduce the amount of the damage award by the total amount of the collateral source benefits which have been paid or which will be paid to the appellee.

The issue before this court is whether the trial court erred in failing to render a post-trial determination regarding collateral source payments. This court finds that the trial court did err. The trial court misconstrued the governing authority regarding collateral source evidence, and misinterpreted the facts.

A review of the governing authority and the record supports this finding.

Governing Statutory Provisions

Section 768.76(1) and Section 627.736(3) of the Florida Statutes are two separate statutory provisions governing collateral sources.

Section 768.76(1), Florida Statutes, governs collateral sources of indemnity in general. It is set forth in Part II of the Florida Statutes entitled Negligence Actions. The provision applies to any action for damages whether in tort or contract. Pursuant to Section 768.76(1), the court is authorized to reduce the claimant’s damage award by the total amount of collateral source payments made for the benefit of the claimant after the trier of fact has made an initial award of damages. The provision provides:

In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded ... the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant ... from all collateral sources.

§ 768.76(1), Fla. Stat. (2002).

Subsection (2) of Section 768.76 defines the term “collateral sources.” The subsection provides, in pertinent part:

For purposes of this section:
(a)“Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to: (2) any health, sickness, or income disability insurance, automobile accident insurance that provides health benefits or income disability coverage....

§ 768.76(2)(a), Fla. Stat. (2002).

Section 627.736(3) of the Florida Statutes specifically addresses the recovery of collateral source payments in tort claims stemming from motor vehicle accidents. Section 627.736(3) is set forth in Part XI of the Florida Statutes entitled Motor Vehicle & Casualty Insurance Contracts. Section 627.736(3) reads, in part,

An injured party who is entitled to bring suit ... shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of fact, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable.

§ 627.736(3), Fla. Stat. (2002).

Thus, under Section 627.736(3), the judge or the jury, as the trier of fact in an automobile case, is authorized to off-set an award of damages by the amount of personal injury protection benefits paid or payable if evidence of the benefits is presented at trial.

A cursory comparison of Section 627.736(3) with Section 768.76(1) initially reveals that the set-off provisions differ as to whether the judge, post-trial, or the jury, during trial, shall ultimately reduce the damage award. Several court decisions have construed the provisions as procedurally distinct, and have exclusively applied one over the other.

For example, in Caruso v. Baumle, 835 So.2d 276 (Fla. 5th DCA 2002) review granted, 852 So.2d 861 (Fla. 2003), the trial court granted the defendant’s request to conduct post-trial discovery and present post-trial evidence of personal injury protection benefits. On appeal, the appellate court reluctantly upheld the trial court’s ruling. The court applied Section 768.76(1) in lieu of Section 627.736(3). Although suggesting that a defendant is required to present evidence of PIP benefits during trial, pursuant to Section 627.736(3), the court, nevertheless, concluded that it was bound by an earlier decision rendered by that court announced in Allstate Insurance Co. v. Scott, 773 So.2d 1290 (Fla. 5th DCA 2001). That decision held that collateral source evidence should be presented after trial pursuant to Section 768.76(1).

This court finds that both provisions authorize the trial judge to render a post-trial decision regarding collateral source payments after the court or jury has made an initial award of damages, regardless if the case is a personal injury case or a general tort case. That is, both provisions provide the trial court with the authority to reduce damage awards by the value of collateral sources payments as a post-ver-diet procedure. Both statutory provisions should be. given effect simultaneously.

Decisions interpreting the application of each provision have intertwined the different statutes; citing the two statutes interchangeably. See e.g., Allstate Ins. Co. v. Rudnick, 706 So.2d 389 (Fla. 4th DCA 1998); and Allstate Ins. Co. v. Scott, 773 So.2d at 1290. This court agrees with those decisions which cite both statutory provisions interchangeably.

This court finds Section 768.76(1) merely enlarges the scope of collateral sources from “personal injury protection benefits” (as set forth in Section 627.736(3)) to “all collateral sources” and defines the latter term specifically to include certain enumerated insurance benefits among which is “health or income disability insurance benefits” provided under automobile insurance (as set forth in Section 768.76(2)). Therefore, Section 768.76(1) applies to cases involving automobile accidents. That is, the provision does not either expressly or by implication restrict coverage to non-automobile tort cases. The provision is a statute with broad and general application.

The paramount objective of both provisions is to ensure injured persons recover only reasonable damages. Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003) review granted, 865 So.2d 480 (Fla. 2004); Robert Henderson and Patrick Maroney, Collateral Source Indemnity, 21 Fla. St. U.L.Rev. 571 (1998). The mechanics of both provisions are quite similar too. Both require the trier of fact to offset damages based on evidence of medical expenses paid or to be paid. The purpose of the collateral source set-off could be achieved under the provisions of either law.

Arguably, the preclusive language set forth in Section 768.71(3) of the Florida Statutes would seem to preclude the application of Section 768.76(1) to automobile tort cases. Section 768.71(3) provides: “if a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” This court finds that Section 627.736(3) does not conflict with or supplant Section 768.76(1). Such á construction would render meaningless subsection (2) of Section 68.76 that expressly provides that benefits provided under auto insurance are collateral sources which are deductible. Furthermore, it is implausible to conclude that the collateral source law, set forth in Section 627.736(3), supersedes Section 768.76(1) by operation of Section 768.71(3). Although the role of the jury was delineated under Section 627.736(3), the rights and obligations of the court were not extinguished. Thus, Section 768.71(3) does not preclude the authority accorded trial courts by Section 768.76(1) in cases involving automobile torts.

This interpretation is consistent with the legislative history of Section 768.76. In 1984, the Florida Bar Tort Litigation Review Commission recommended that the legislature synthesize all ease law and then-existing statutes into a general collateral source statute for all personal injury cases. Thus, in 1986, Section 768.76 was enacted under the Tort Reform Act of 1986. Section 627.7372, enacted in 1977, operated in conjunction with Section 768.76 until Section 627.7372 was repealed in 1993. Section 627.7372 governed collateral source deductions in motor vehicle tort actions, and required the judge to admit into evidence the total amount of collateral source deductions, and to instruct the jury to deduct from its verdict the value of the collateral source benefits received. Section 768.76 did not repeal or supplant Section 627.7372.

Section 627.736 was enacted in 1971. This provision embodied the concept of Section 627.7372 but not the language. Unlike Section 627.7372, Section 627.736 does not require evidence of collateral source payments to be introduced during trial. It only specifies that certain collateral source payments shall reduce the damage award if such evidence is presented during trial. While Section 627.7372 stood for the premise that collateral source payments arising from automobile cases must be presented during trial and not post-trial, Section 627.736 eliminated the distinction between mandatory and elective procedural practices.

Therefore, Section 627.736 should be read in tandem with Section 768.76, similar to Section 627.7372 and Section 768.76. Section 768.76 was enacted to harmonize, not nullify, existing laws. It is logical to conclude that Section 627.736 should be construed harmoniously with Section 768.76. Neither provision yields to the other.

Therefore, this court finds that the trial court failed to reconcile what it perceived were ostensibly inconsistent provisions. The trial court erroneously relied upon an artificial distinction of the type of case to determine the applicability of the provisions. A post-trial deduction of collateral source payments is statutorily provided for under both sections.

Agreement Between the Parties: Implicit Authorization

This court further finds that the trial court failed to effectuate an agreement between the parties which also provided authorization to render a post-trial determination regarding the appellant’s post-trial motion.

In particular, both parties conducted themselves in a manner consistent with an understanding that the' deductions of personal injury protection benefits would be addressed at the conclusion of the trial. The following colloquy took place just pri- or to the beginning of trial:

THE COURT: What other motions do we have?
MR. BUCKNER: [defense counsel]: I looked over ones that I had that apparently I don’t know that copies have been given; they all look pretty much standard for this type of BI [sic] case. I’m not even really going to raise them because I know Mr. Rossin knows the rules of evidence; ■ we’ve admitted liability so he can’t go into the citations, which I don’t think there’s a problem with that; those kinds of issues.
So — and I just want to make sure that we’re clear on the collateral source post-trial.
MR. ROSSIN: [plaintiffs counsel]: There was a motion on that and why don’t we talk about that, because I don’t know how — you want to have it set-off post trial, is that what you are saying?
MR. BUCKNER: That’s what I want to do.
THE COURT: This is Rapp’s case but I will just keep it for purposes of anything post-trial.

Based upon the foregoing, it is clear that the appellant (defense counsel) requested and believed that his motion for collateral source set-off would be addressed post-trial. Additionally, no objection to this procedure was posed by the appellee (plaintiffs counsel). Although not specifically stated, the judge’s response “to keep everything post-trial” could reasonably be understood by both parties to include consideration of the appellant’s collateral source motion.

Furthermore, the conduct of the parties during trial lends further support that the collateral source issue was to be considered post-trial. The appellant never addressed collateral source payments during trial. Similarly,’ the appellee redacted all medical bills and avoided any reference to insurance during trial. Finally, at the charging conference, jury instructions on collateral source deductions were withdrawn.

Therefore, based’ on the record, the parties intended the issue to be handled post-trial. The trial court’s findings that absent an agreement by the parties, it could not, post-trial, reduce the jury’s damage award by the amount of the personal injury protection payments was erroneous.

Two Issue Rule

As a final note, this court finds that the trial court is not barred, under the two-issue rule, from deducting collateral source payments from the lump sum, damage award. The two-issue rule is not applicable in the instant case. The appellee contends that the general verdict form .(in lieu of an itemized form) prevents the court from discerning the actual amount awarded for economic damages versus non-economic damages. Under the two-issue rule, a party who cannot differentiate economic damages from the total award is barred from seeking a deduction of collateral source payments. Johnson v. La-Salle, 774 So.2d 760 (Fla. 4th DCA 2000).

We find this argument to be without merit. Economic damages are verifiable monetary losses which include medical expenses, loss of earnings, burial costs, property loss, and the like. The record discloses that the only damages awarded by the jury were for medical expenses. Since the entire award consists of economic damages, the trial court is able to reduce the damage award by the amount of collateral source payments received which qualify as economic payments.

For the above reasons, this court finds the trial court’s ruling was erroneous. Under either statutory provision, the trial court is authorized to offset, post-trial, the damage award by the amount of the collateral source payments paid to the appellee. In the context of this case, the parties did agree to consider the appellant’s motion for collateral source deductions post-trial. The trial court, therefore, had the authority to reduce the amount of the damage award by the amount of the collateral source payments presented post-trial. The reduction can be easily accomplished since the only damages awarded by the jury were for medical expenses.

Accordingly, this matter is reversed and remanded to the trial court for further consideration of the appellant’s post-trial motion in accordance with this opinion.

REVERSED and REMANDED.

STEVENSON and MAY, JJ., concur.

      . Section 768.71(1), Fla Stat. (2003).

      . The appellate court implied that Section 627.736(3) was the better rule of law, but declined to change the rule in Scott, and left any change up to the state Supreme Court. The court certified the following question for the Supreme Court's review:
      IN AN AUTOMOBILE ACCIDENT CASE, DOES SECTION 627.736(3) REQUIRE THAT EVIDENCE OF PIP BENEFITS FOR PURPOSES OF SET OFF BE PRESENTED TO THE TRIER OF FACT, BE IT JUDGE OR JURY, AND IF A JURY, MUST THE JURY BE INSTRUCTED THAT THE PLAINTIFF SHALL NOT RECOVER FOR SPECIAL DAMAGES FOR PERSONAL INJURY PROTECTION BENEFITS PAID OR PAYABLE?
      OR, PURSUANT TO THAT STATUTE AND ABSENT A WAIVER OR ' AN AGREEMENT BY THE PARTIES, MAY A PARTY, ASSERTING SET OFF OF PIP BENEFITS INTRODUCE THAT EVIDENCE AFTER A JURY TRIAL TO THE JUDGE FOR A FACT FINDING OF AMOUNTS INVOLVED, AND FOR PURPOSES OF REDUCING THE PLAINTIFF'S RECOVERY?

      . Other examples of court decisions which have not applied Section 627.736(3) contemporaneously with Section 768.76(1) include Kirkland v. Allstate Insurance Co., 655 So.2d 106 (Fla. 1st DCA 1995).

      . In a previous decision, this court reviewed Section 627.7372 (now repealed) and Section 768.761 See White v. Westlund, 624 So.2d 1148 (Fla. 4th DCA 1993). In that case, this court addressed whether Section 768.76, as the general statute governing damages in negligence cases, or Section 627.7372, as the statute specifically directed at tort actions involving motor vehicles, governed collateral source setoff in automobile accident cases. This court concluded that Section 627.7372 was "more appropriate” for automobile cases since it specifically addressed automobile tort actions. However, subsequent conflicting decisions reached by other appellate courts have rendered that case (and its progeny — Pizzarelli v. Rollins, 704 So.2d 630 (Fla. 4th DCA 1997)) susceptible to debate. The differing constructions applied by other appellate courts makes reliance on our previous decisions tenuous.

      . Florida Bar Staff, Florida Civil Practice: Damages, § 4:35 History (5th.ed. 2000).

      . Id.

      . See ch. 71-252, Laws of Fla.

      . See § 768.81 Fla. Stat. (2002).


author: CASANUEVA, Judge.

text:
    Eric Z. BISHOP, Sr., by and through ADULT COMPREHENSIVE PROTECTIVE SERVICES, INC., a not-for-profit corporation as Plenary Guardian; Roslyn Bishop; and Leron Jason Bishop, Petitioners, v. Mark POLLES, R.N.; Mark B. Norstein, M.D., P.A., d/b/a Bayway Family Practice; Professional Employee Leasing, Inc.; Richard Oldenski, M.D.; Steven Yeager, R.N.; Bebe Schulman, M.D.; Timothy Blend, M.D.; Emergency Medical Associates of Florida, L.L.C.; and St. Anthony’s Hospital, Inc., Respondents.
    No. 2D03-3328.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.
    Rehearing Denied April. 20, 2004.

      Aaron S. Bloom, Edward J. Lyons, and Suzanne M. Pileggi of Mileowitz & Lyons, P.A., Clearwater, for Petitioners.
    Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker, P.A., St. Pe-tersburg, for Respondent Richard Olden-ski, M.D.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, -for Respondents Steven Yeager, R.N., Bebe Schulman, M.D.; and Timothy Blend, M.D.
    No appearance for Respondents Mark Polles, R.N., Professional Employee Leasing, Inc., Emergency Medical Associates of Florida, L.L.C., and St. Anthony’s Hospital, Inc..
   CASANUEVA, Judge.

The .petitioners are the plaintiffs in a medical malpractice lawsuit brought against the respondents. They filed this petition for certiorari during the discovery process when the trial court granted certain defendants’ motion to compel and ordered the plaintiffs to answer ten interrogatories posed by these defendants. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.100. See also Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855 (Fla. 2d DCA 1997). We grant the petition in part and deny it in part, striking only so much of the order that directs the plaintiffs to answer one interrogatory. We find that the trial court did not otherwise depart from the essential requirements of law in compelling the plaintiffs to answer the remaining nine interrogatories, ordering them to utilize the assistance of counsel and/or any experts necessary to formulate their responses, requiring an indication of which plaintiff was responding to the discovery requests, requiring the responding plaintiff to sign his or her answers under oath, and allowing the plaintiffs to qualify their answers as necessary.

We set forth only the one interrogatory we find objectionable. Although it is propounded by defendant/respondent Dr. Schulman, it is representative of interrogatories of other defendants that suffer from the same defect:

Interrogatory Number 23: Please identify with specificity and particularity each and every document or evidentiary object that the Plaintiff or Plaintiffs attorneys, investigators or agents have in their possession, or reasonably believe may bé in their possession, which may contain information pertaining to or evidencing any of the matters raised in the Complaint or pertaining to or evidencing any act or omission on the part of Bebe Schulman, M.D., which the Plaintiff or Plaintiffs attorneys contend contributed to any injury to Plaintiff or the Plaintiffs damages. With respect to each document or object identified, please identify by name, business and residence, occupation, employer, and last known whereabouts, the present custodian thereof or such persons as the Plaintiff, Plaintiffs attorneys, investigators and agents reasonably believe might possess the document or object, or a copy thereof. This request specifically includes, but is not limited to, all documents or exhibits that the Plaintiff or Plaintiffs attorneys might conceivably offer as evidence at trial.

Although it is impossible to give a precise definition of “attorney work product” that can be applied to all situations, it can be generally defined as

[pjersonal views of the attorneys as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence....

Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970). In Northup v. Howard W. Acken, M.D., P.A., 865 So.2d 1267, 1270 (Fla.2004), our supreme court reiterated that those items a party “reasonably expect[s] or intend[s]” to utilize at trial are fully discoverable. However, this interrogatory requests items that a party “might conceivably offer as evidence” at trial, which do not meet the standard and are, accordingly, not discoverable. Thus, interrogatory number 23 is overbroad and improperly seeks information protected by the attorney work product privilege.

We grant the petition and strike that part of the trial court’s order compelling an answer to interrogatory number 23. In all other respects the petition for certiorari is denied.

COVINGTON and WALLACE, JJ., concur.


author: TAYLOR, J.

text:
    Maria DOLAN, individually, and as Personal Representative of the Estate of David Dolan, deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Appellee.
    No. 4D01-4962.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Rehearing Denied June 4, 2004.

      Robert Garven, Coral Springs, and Charles A. Mancuso of Charles A. Mancu-so, P.A., Fort Lauderdale, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens and Cheryl Kempf, FPL-Law Division, Juno Beach, for appellee.
   TAYLOR, J.

Maria Dolan, individually and as personal representative of the Estate of David Dolan, deceased, appeals a final summary judgment entered on behalf of appellee, Florida Power & Light Co. (FPL). We reverse, based on the Florida Supreme Court’s recent decision in Clay Electric Cooperative, Inc. v. Johnson, 873 So.2d 1182, 2003 WL 22966277 (Fla. Dec. 18, 2003).

On January 28, 1999, David Dolan was fatally injured in a motorcycle accident at the intersection of N.W. 5th Avenue and N.W. 35th Street in Boca Raton. His wife, Maria Dolan- (Dolan), filed a two-count negligence complaint against FPL alleging that 1) FPL owned an overhead streetlight at the scene of the accident; 2) the streetlight had not been functioning properly at the time of the accident; and 3) FPL had been notified of the malfunction prior to the accident. Dolan claimed that FPL owed a duty of care to David Dolan in its maintenance of the streetlight, that it breached that duty by failing to properly maintain the streetlight, and that its breach of the duty of due care created a dangerous condition which was a proximate cause of the accident.

In its Answer, FPL set forth numerous affirmative defenses, among them, that it neither owed nor breached any duty to David Dolan.

FPL filed a Motion for Final Summary Judgment, wherein it alleged that an electric utility does not owe a general duty to the public to supply street lighting or electric current thereto. ' Therefore, FPL claimed that even when the loss of a streetlight is the result of negligence on the part of the power company, that negligence cannot, as a matter of law, constitute a breach of duty owed to a plaintiff involved in an accident allegedly because of the streetlight malfunction.

In response to FPL’s motion, Dolan filed the affidavit of Brad Beverly. Beverly stated that: 1) he lived on the corner of N.W. 5th Avenue and N.W. 35th Street, where David Dolan’s accident occurred; 2) multiple accidents occurred at the intersection subsequent to the street light being out but prior to David Dolan’s death; 3) he called FPL before David Dolan’s death to alert them to the problem of the broken streetlight and to have that problem corrected; and 4) the streetlight was not repaired until after David Dolan’s death.

Dolan also filed a copy of the Municipal Street Lighting Agreement. Pursuant to the initial agreement, Article III, Section 5, FPL agreed to “use reasonable diligence to provide continuous service during lighting hours, and, having used reasonable diligence, shall not be liable for any outage.” Over the years, FPL expanded its service and purchased the street lighting system from the City of Boca Raton. Throughout the life of this relationship, FPL took on different responsibilities. For example, in a Conservation Lighting Conversion Agreement entered into between FPL and the City of Boca Raton, FPL agreed in the service clause that:

Service includes lamp renewals, patrol, energy from dusk each day until dawn the following day, and maintenance, of Company-owned street lighting systems. Energy will be supplied from Company’s series or multiple system, at Company’s option. Furthermore, upon request by the City of Boca Raton, FPL would modify and/or replace certain street lights.

After the initial denial of its motion for summary judgment, FPL filed a Second Motion for Final Summary Judgment which was granted.

After briefing and oral argument, we stayed this case pending the Florida Supreme Court’s resolution of the same issue in Clay Electric, supra, and its companion case, Martinez v. Florida Power & Light Co., 863 So.2d 1204 (Fla.2003).

In Clay Electric, the Florida Supreme Court held that an electric utility which undertakes to provide street lighting owes a duty to third persons for physical harm resulting from the failure to exercise reasonable care in this undertaking, relying upon Restatement (Second) of Torts § 324A (1965). That subsection limits liability on the part of an “undertaker,” so that liability only exists, if:

(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person on the undertaking.

The court in Clay Electric held that the “increased risk” subsection of the Restatement was satisfied on that summary judgement record, because it was a negligent maintenance (not a negligent installation) case, thus comparing the risk to the “normal” lighted condition not the natural darkness. Thus, a jury question was raised as to whether the electric company’s negligence increased the risk of harm in that case to a pedestrian.

This case is controlled by Clay Electric. The first prong of the Restatement (i.e., increased risk), as interpreted in Clay Electric, poses a jury question here, since facts of record clearly show that this, too, is in the nature of a negligent maintenance ease. Genuine issues of material fact thus preclude summary judgment. See Fla. R. Civ. P. 1.510(c).

We reverse the final summary judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WARNER and STEVENSON, JJ., concur.

      . The Clay Electric court also found that the "reliance” subsection was applicable there, as the minor pedestrian's caregiver may have been induced to forego other precautions for the child. That "reliance” prong does not seem applicable at bar. However, the three-prong Restatement test is set forth in the disjunctive, so that mere increased risk under prong one alone will suffice.


author: WHATLEY, Judge.

text:
    BULLSEYE PROPERTIES, INC., Appellant, v. The WEILER ENGINEERING CORP., Appellee.
    No. 2D03-3299.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
    Rehearing Denied April 20, 2004.
    Charles H. Livingston and E. Zachary Rans of Livingston, Patterson & Strickland, P.A., Sarasota, for Appellant.
    Aaron A. Haak of Knott, Consoer, Ebeli-ni, Hart & Swett, P.A., Fort Myers, for Appellee.
   WHATLEY, Judge.

The landlord, Bullseye Properties, Inc., challenges the final judgment awarding damages, attorney’s fees, and costs in its action against the tenant, The Weiler Engineering Corp., for breach of a commercial lease. We reverse.

The parties’ problems began when Weiler sought to vacate the premises before the end of its lease term. The operative paragraph of the parties’ lease, which in essence provided an escape clause to the tenant in the event the tenant wished to vacate the premises before the end of the lease term, stated:

1. TENANT shall notify LANDLORD at least Sixty (60) days prior to desire to vacate.
2. TENANT shall pay LANDLORD an additional Ninety (90) days rent prior to leaving along with applicable sales tax, electric and other payments prescribed within the Lease.

We find this language to be clear and unambiguous. As such, Weiler’s option'in vacating early was to give the appropriate notice and pay three months’ additional rent. Although Weiler provided the appropriate notice to Bullseye, it failed to pay or tender the three months’ additional rent prior to moving out of the premises or at any time thereafter. In fact, Weiler filed a counterclaim seeking monetary damages from Bullseye for, inter alia, allegedly having paid for more square footage than it occupied.

The perplexing point in this case centers on the contradictory awards in the final judgment. Without making any findings, the trial court awarded Bullseye $4,084.11 “on its Complaint,” stated that Weiler would recover nothing on its counterclaim, but awarded Weiler in excess of $22,000 in attorneys fees and costs. Under the authority of Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), the trial court apparently believed that Weiler had prevailed on the significant issues in the litigation. Part of the confusion reflected in the final judgment may flow from the format that was used by the court. The trial court made no rulings from the bench and at no time articulated any findings of fact. Rather, it directed counsel for each party to submit multiple judgments for its consideration. The trial court then signed one of the judgments submitted by Weiler. Florida Judicial Administration Rule 2.050(f) states in part: “Every judge has a duty to rule upon and announce an order or judgment on every matter submitted to that judge within a reasonable time.... ” This duty of a judge to decide cases and make findings of fact is nondelegable.

The award to Bullseye was inadequate because Weiler breached the lease by failing to utilize the lease’s escape clause, and therefore, it owed Bullseye the balance due under the lease.

Accordingly, we reverse the final judgment and remand with directions that the trial court enter judgment in favor of Bull-seye in an amount representing the balance due under the subject lease, subject to any appropriate defenses established at trial, such as rent realized by Bullseye for the reletting of the premises during the applicable period. In addition, the trial court is to award Bullseye its attorney fees and costs under the applicable lease provision.

Reversed and remanded with directions.

SILBERMAN and VILLANTI, JJ., concur.


author: KLEIN, J.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Rick SCHWEITZER and Linda Schweitzer, Appellees.
    No. 4D03-2454.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Rehearing Denied May 25, 2004.

      Michael R. Nelson, Craig A. Cohen, Matthew Stool of Nelson, Levine, de Luca & Horst, LLC, Blue Bell, PA, and Steven Brady, Swartz, Campbell & Detweiler, Fort Myers, for appellant.
    Jeffrey Orseck of Jeffrey Orseck, P.A., Ft. Lauderdale, Brian M. Torres of Shef-tall & Torres, P.A., Miami, Jack Scarola of Searcy, Denney, Scarola, Barnhart & Ship-ley, P.A., West Palm Beach, and Dirán Y. Seropian of Caruso & Burlington, P.A., West Palm Beach, for appellees.
   ORDER DISMISSING APPEAL

KLEIN, J.

Appellee plaintiffs filed this as a class action, purporting to represent claimants for whom Nationwide specified non-original equipment manufacturer aftermarket crash parts for the repair of damaged vehicles. Nationwide requested, under the terms of the insurance policy, that plaintiffs submit their dispute to appraisal. When plaintiffs refused, Nationwide moved to compel appraisal, which the trial court denied. Nationwide appeals, but we dismiss for lack of jurisdiction.

Nationwide argues that we have jurisdiction of the order denying its motion for appraisal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), which authorizes appeals from non-final orders involving “the entitlement of á party to arbitration.” Nationwide acknowledges Allstate Insurance Company v. Suarez, 833 So.2d 762 (Fla.2002), in which the Florida Supreme Court held that an appraisal provision for property damage in a homeowner’s insurance policy was not an agreement to arbitrate. Nationwide argues that Suarez did not specifically address the appealability of an order involving appraisal and points out that courts have exercised jurisdiction over non-final appeals of orders involving appraisal prior to Suarez. See Delisfort v. Progressive Express Ins. Co., 785 So.2d 734 (Fla. 4th DCA 2001); Intracoastal Ventures Corp. v. Safeco Ins. Co. of Am., 540 So.2d 162 (Fla. 4th DCA 1989); United Servs. Auto. Ass’n v. Modregon, 818 So.2d 562 (Fla. 2d DCA 2002); U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999); Fla. Select Ins. Co. v. Keelean, 727 So.2d 1131 (Fla. 2d DCA 1999).

Suarez plainly held that an appraisal provision is not an agreement to arbitrate. It follows from Suarez that an order granting or denying an appraisal is not appealable as an order involving entitlement to arbitration. Travelers Insurance Co. v. Bruns, 443 So.2d 959 (Fla.1984) (Rule 9.130, which allows appeals from non-final orders, is to be narrowly construed). The cases cited above have accordingly been overruled by Suarez on the issue of appealability of an order involving entitlement to an appraisal. We therefore dismiss the appeal.

STONE and TAYLOR, JJ., concur.


text:
    Marcel S. SMITH, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 4D02-4350.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Rehearing Denied June 1, 2004.

      Marcel S. Smith, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for respondent.
   TAYLOR, J.

Marcel Smith filed this petition for writ of habeas corpus pursuant to Florida Rule Appellate Procedure 9.141(c), alleging, inter alia, that his appellate counsel was ineffective for failing to argue that his conviction for burglary should be reversed based on Delgado v. State, 776 So.2d 238 (Fla.2000). We grant the petition and allow for a belated appeal limited to this issue.

Petitioner’s conviction arose from the following incident. On November 9, 1999, Petitioner, his brother, and a friend entered the home of an acquaintance (“victim”) to use his music recording studio. The victim led them to the studio and excused himself. He returned an hour later and advised them that their recording session had expired. After the victim turned off the lights, Petitioner hit him over the head with a gun and told him to get on the floor. Petitioner’s brother began taping the victim’s ankles, but he broke free. Petitioner then kicked the victim, causing him to stumble. As the victim attempted to flee, the other two men restrained him and Petitioner struck him on the forehead with an iron bar. The victim broke free and attempted to escape through a nearby window. Petitioner then fired three shots at him, striking him twice in the abdomen. As the victim fled, Petitioner fired more shots, one of which grazed the victim’s neck. The victim was taken to the hospital, where he identified his attackers to the police.

The state charged Petitioner with five offenses, including burglary of a dwelling with a firearm and an assault or battery. The jury convicted him on three counts: attempted felony murder with a firearm (Count I), attempted burglary of a dwelling with a firearm and an assault or battery (a lesser included offense of Count III), and attempted robbery with a firearm (Count IV). The trial court imposed three concurrent life sentences with a 25 year minimum mandatory for using a firearm in the commission of his crimes.

Petitioner appealed his conviction to our court, raising only one claim of error: that the trial court erred in denying Petitioner’s motion to suppress, which was based on his claim of a right-to-counsel violation. On January 23, 2002, we affirmed Petitioner’s conviction and sentence. Smith v. State, 806 So.2d 497 (Fla. 4th DCA 2002).

Petitioner subsequently filed this petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel. He raises several claims. However, we find merit only in his contention that appellate counsel was ineffective for failing to challenge the attempted burglary conviction based on the Delgado decision.

To demonstrate ineffectiveness of appellate counsel, a petitioner must show: (1) that there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside of the range of professionally acceptable performance; and (2) that the failure or deficiency had a prejudicial impact on the petitioner by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. Wainwright, 463 So.2d 207 (Fla.1985); Meyer v. Singletary, 610 So.2d 1329, 1331 (Fla. 4th DCA 1992).

Appellate counsel’s performance must be measured in terms of the law in effect at the time of the appeal, and not in hindsight. See Knight v. State, 394 So.2d 997, 1003 (Fla.1981)(“The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law”); Sanders v. Singletary, 707 So.2d 364 (Fla. 1st DCA 1998); Thompson v. Wade, 603 So.2d 28 (Fla. 1st DCA 1992).

Petitioner asserts that at the time of his conviction and appeal, the controlling law, as set forth in Delgado, required that his conviction for attempted burglary be reversed. His attorney filed the initial and reply briefs in July and September of 2001, after the Florida Supreme Court decided Delgado ; thus, her failure to raise a Delgado issue on appeal rendered her ineffective. See R.C. v. State, 793 So.2d 1078, 1079, n. 1 (Fla. 2d DCA 2001)(reversing defendant’s conviction for burglary of a dwelling based on Delgado and noting that the Legislature’s language in section 810.015(2) nullifying Delgado did not apply because the defendant’s actions took place prior to February 1, 2000).

In Delgado, the supreme court held that a conviction for burglary under a “remaining in” theory cannot lie where the defendant initially entered the premises lawfully and then later formed a criminal intent to commit a crime therein. The court explained that the phrase “remaining in” in the burglary statute, section 810.02(1), Florida Statutes, is limited to situations where the remaining in was done surreptitiously. Delgado, 776 So.2d at 240. It clarified that “in the context of an occupied dwelling, burglary was not intended to cover the situation where an invited guest turns criminal or violent.” Id.

Petitioner claims that appellate counsel should have challenged the validity of his attempted burglary conviction because the evidence presented at trial showed that he entered the premises with the victim’s consent and remained there openly, rather than surreptitiously. Since any alleged intent to rob or assault was formed subsequent to his consensual entry, Petitioner could not be convicted of burglary or attempted burglary.

The state responds that Delgado does not apply to this case because there was a disputed issue at trial as to whether Petitioner entered the victim’s residence by trick or fraud. However, the state fails to provide any record support for this assertion. Further, the cases cited by the state can be factually distinguished from this case. See Schrack v. State, 793 So.2d 1102 (Fla. 4th DCA 2001)(affirming burglary conviction after Delgado where defendant gained entry by concocting a story about a surprise party); Alvarez v. State, 768 So.2d 1224, 1225 (Fla. 3d DCA 2000)(hold-ing that defendant lacked consent to enter where he gained entry into the victim’s house on the subterfuge that he wished to use the bathroom); Gordon v. State, 745 So.2d 1016 (Fla. 4th DCA 1999)(holding that defendant’s conduct in feigning tooth ache to gain entry into the victim’s home negated consent).

In contrast to the above cases relied upon by the state, wherein the perpetrators committed their crimes within minutes after entering the premises on false pretenses, the facts in this case plausibly negate the prosecution’s theory that Petitioner gained entry by fraudulent pretense. The state asserts that Petitioner and his co-defendants secured the victim’s consent on the pretext that they wanted to use his recording equipment. However, given evidence that Petitioner and his co-defendants actually used the equipment and remained there in the recording studio for an hour or so after their arrival, there appears to be little or no support for finding a non-consensual entry or surreptitious remaining. Cf. Castellanos v. Moore, 822 So.2d 585 (Fla. 3d DCA 2002)(holding that appellate counsel’s failure to attack defendant’s burglary conviction based on the theory that the defendant’s entry into the dwelling was by consent did not prejudice the defendant where the evidence showed that the defendant and a co-perpetrator gained entry on the pretext that they had come to rent the rental apartment).

We note that Petitioner does not allege that his trial counsel preserved the Delgado issue below by raising sufficiency of the evidence on the attempted burglary charge in a motion for judgment of acquittal. Generally, a defendant must preserve a claim of insufficiency of the evidence for appellate review through a timely challenge in the trial court. F.B. v. State, 852 So.2d 226 (Fla.2003). However, an exception exists when the evidence is insufficient to show that a crime was committed at all. Id. at 230. This is because a conviction for a crime that is “totally unsupported by evidence constitutes fundamental error.” Id. (citing Troedel v. State, 462 So.2d 392, 399 (Fla.1984)); see also Griffin v. State, 705 So.2d 572 (Fla. 4th DCA 1998); Slydell v. State, 792 So.2d 667 (Fla. 4th DCA 2001). Where such fundamental error occurs, an appellate court will forgive the failure of preservation and review the legal sufficiency of the conviction on appeal. Otero v. State, 807 So.2d 666, 667 (Fla. 4th DCA 2001).

In Otero, we reviewed the defendant’s claim that the evidence was insufficient to support his burglary conviction, notwithstanding his failure to adequately preserve the issue in his motion for judgment of acquittal. The evidence in that case showed that the defendant, after being invited into his former lawyer’s office, suddenly pulled out a gun and pointed it at his lawyer’s head, handcuffed him, and demanded money from him. Applying Delgado, we held that the defendant’s invitee status, along with a showing that his “remaining in” was not surreptitious, established a complete defense to the crime of burglary. Accordingly, we reversed his burglary conviction and remanded for an acquittal on that charge.

Similarly, in this case, Petitioner argues that his attempted burglary conviction constitutes fundamental error because the evidence failed to show a non-consensual entry or a surreptitious remaining in the premises. However, without a full record of the trial proceedings below, we cannot make a determination whether fundamental error exists in Petitioner’s case.

Because, however, we agree that appellate counsel’s failure to raise an issue that may amount to fundamental error constitutes ineffective assistance of appellate counsel, we grant the petition for writ of habeas corpus. See Fair v. Crosby, 858 So.2d 1103, 1104 (Fla. 4th DCA 2003)(“Ap-pellate counsel may be found to have rendered ineffective assistance for failing to raise an issue that could be considered fundamental error”).

This opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered on February 12, 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. The belated appeal shall be limited to the issues discussed herein. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If Petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

PETITION GRANTED.

STEVENSON and MAY, JJ., concur.

      . The court decided Delgado on August 24, 2000. At the time of Petitioner’s appeal, the use of "remaining in” language in a jury instruction on burglary was considered improper under Delgado. Although the Legislature would later nullify Delgado by enacting section 810.015(2), Florida Statutes (2001), the legislative nullification was retroactive only to February 1, 2000. See Floyd v. State, 850 So.2d 383, 402, n. 29 (Fla.2002). The events in Petitioner's case occurred on November 9, 1999, before the retroactive date of section 810.015(2).

      . Section 810.02(1), Florida Statutes .(1999), provided:
      "Burglary” means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense (herein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.


author: PER CURIAM.

text:
    Larry SCARBROUGH, Appellant, v. LIBERTY NATIONAL LIFE INSURANCE CO., Appellee.
    No. 1D03-2905.
    District Court of Appeal of Florida, First District.
    March 31, 2004.

      Donald E. Pinaud, Jr., of Kattman & Pinaud, P.A., Jacksonville, for Appellant.
    Eric J. Holshouser and Amy H. Reisinger of Coffman, Coleman, Andrews & Gro-gan, P.A., Jacksonville, for Appellee.
   PER CURIAM.

This is an appeal from an order temporarily enjoining appellant, Larry Scarb-rough, from soliciting the sale of insurance to customers of appellee, Liberty National Life Insurance Company, his former employer, on behalf of his current employer, Colonial Life Insurance Company. Scarb-rough signed a non-compete contract with Liberty on March 4, 1996, wherein he agreed not to solicit the replacement of insurance coverage with' Liberty’s customers for 18 months after termination of his employment. He complains that he did not violate the terms of the contract, because his former Liberty customers first approached him regarding a change in insurance coverage. We affirm.

Initially, we note that our review standard over orders granting temporary injunctions is whether the trial court abused its discretion in so acting. In our judgment, no abuse of discretion occurred. Scarbrough relies on the rule that contracts restraining persons from exercising their lawful professions are void unless expressly authorized by section 542.33(2)(a), Florida Statutes (1995). He cites cases construing such statute as not forbidding an employee from soliciting an employer’s old clients who voluntarily follow the employee to his or her new place of business. See J.K.R., Inc. v. Triple Check Tax Serv., 736 So.2d 43, 44 (Fla. 1st DCA 1999) (issuance of temporary injunction was too broad, because the words in the parties’ agreement, “call upon, solicit, divert or take away,” only prohibited the former employee and his agency “from taking proactive steps to obtain” former clients, but did not prevent them “from accepting ... clients who actively [sought] their assistance.”); Kephart v. Hair Returns, 685 So.2d 959 (Fla. 4th DCA 1996).

We consider the facts in the above cases distinguishable. The trial court concluded that even if the former client had initiated the contact with Scarbrough, a solicitation could nonetheless occur if, as the evidence disclosed, Scarbrough made a comparison for the client between the benefits and premiums afforded by the two insurance companies. We cannot say the lower court’s decision in this regard was an abuse of discretion. Neither the parties’ non-compete contract nor the statute defines the term “solicit.” Solicitation is defined in Black’s Law Dictionaky 1398 (7th ed.1999), as “the act or an instance of requesting or seeking to obtain something; a request or petition.” It reasonably appears from the above definition that a person may, in appropriate circumstances, solicit another’s business regardless of who initiates the meeting. Cf. FCE Benefit Adm’rs Inc. v. George Washington Univ., 209 F.Supp.2d 232, 239 (D.D.C.2002) (holding that an insurance agent breached an agreement not to “call upon, solicit, or take away” her former employer’s customers, because “[e]ven though she was initially contacted by Melwood [a former customer], ... she assumed an active role in Melwood’s decision-making process.”). The active involvement of a former employee in enticing a customer away from the prior employer appears to have been clearly envisaged by this court in J.K.R., because we there recognized that the term “solicit” in an agreement prohibited the employee from being “proactive” in such efforts.

The order granting the application for temporary injunction is in all respects

AFFIRMED.

ERVIN and BOOTH, JJ„ and SMITH, Senior Judge, CONCUR.

      . Section 542.33(2)(a) provides, in pertinent part:
      [0]ne who is employed as an agent, independent contractor, or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area....


text:
    Jacek Robert ZATYKA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3265.
    District Court of Appeal of Florida, Second District.
    April 7, 2004.
   NORTHCUTT, Judge.

Jacek Robert Zatyka appeals the denial of his petition for a writ of habeas corpus challenging as an illegal sentence a mandatory minimum of three years in prison provided for by section 893.135(l)(k), Florida Statutes (2001), and imposed as part of a sentence for his conviction of trafficking in phenethylamines. Because the mandatory minimum sentence is legal, we affirm.

It is well settled that a petition for a writ of habeas corpus may not be used as a substitute for an appropriate postconviction motion. See Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001). Since Zatyka claims that the imposed mandatory minimum is an illegal sentence pursuant to this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), his petition will be treated as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

Even though Zatyka committed his offense in January 2002 (within the Taylor window period of July 1, 1999, to April 29, 2002), the Taylor case is inapplicable to Zatyka’s claim for relief. In Taylor, this court held that the statutory changes contained in chapter 99-188, Laws of Florida, were unconstitutional because the enactment of chapter 99-188 violated the single subject rule contained in Florida’s constitution. However, the offense of trafficking in phenethylamines and its mandatory minimum sentences were initially enacted into law by chapter 2000-320, Laws of Florida, which became effective October 1, 2000. Therefore, the holding of Taylor does not apply.

Zatyka cites Staley v. State, 860 So.2d 981 (Fla. 2d DCA 2003), as supporting his position. This court in Wright v. State, 869 So.2d 24 (Fla. 2d DCA 2004) (en banc), has receded from Staley to the extent that Staley holds that a defendant convicted of trafficking in phenethylamines and sentenced to a mandatory minimum sentence is entitled to relief under Taylor.

Because the mandatory minimum sentence imposed on Zatyka is a legal sentence, we affirm the order of the circuit court denying Zatyka’s petition for a writ of habeas corpus.

Affirmed.

CASANUEVA and SALCINES, JJ., Concur.


text:
    Gary W. GRIMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-481.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Rehearing Denied May 28, 2004.

      Gary W. Grimes, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s postconviction relief motion. He claims that he was denied effective assistance of counsel because standby counsel appointed when appellant was permitted to represent himself was the very counsel dismissed in a Nelson inquiry. See Nelson v. State, 274 So.2d 256, 258-259 (Fla. 4th DCA 1973). However, appellant does not allege how this prejudiced, him in presenting his case, since. he agreed to a plea on his own. Therefore, we conclude that the court was correct in summarily denying the motion.

As to the second issue, appellant alleges a speedy trial violation, which could have been raised as an issue on appeal but was waived when he pled guilty. There is nothing presented in the record to this court that indicates that appellant expressly reserved the right to- appeal any issue upon his plea of guilty. See Fla. R.App. P. 9.140(b)(2)(A). Therefore, appellant’s second issue is not subject to appeal.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


author: DAVIS, Judge.

text:
    J.H. WILLIAMS OIL CO., INC., a Florida corporation, Appellant/Cross-Appellee, v. Doris C. HARVEY, Trustee, Barbara Harvey Ryals, f/k/a Barbara Kay Harvey, Trustee, and Nancy Harvey Mynard, f/k/a Nancy Jean Harvey, Trustee, Appellees/Cross-Appellants, and Department of Transportation, Appellee.
    No. 2D02-4938.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    Rehearing Denied May 21, 2004.

      Scott Stigall of Barnett, Bolt, Kirkwood & Long, Tampa, for Appellant/Cross-Ap-pellee.
    David Smolker, Jay J. Bartlett, and Matthew C. Lucas of Bricklemyer Smolker & Bolves, P.A., Tampa, for Appel-lees/Cross-Appellants.
    Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellee Department of Transportation.
   DAVIS, Judge.

J.H. Williams Oil Company, Inc. (“Williams”), challenges the trial court’s entry of final summary judgment in favor of Doris C. Harvey, Trustee; Barbara Harvey Ryals, fik/a Barbara Kay Harvey, Trustee; and Nancy Harvey Mynard, Pk/a Nancy Jean Harvey, Trustee (collectively “the Trust”), which awarded the Trust certain eminent domain proceeds. The Trust cross-appeals, challenging the trial court’s prior order granting summary judgment in favor of Williams and finding that the Trust’s rights under the reservation agreement at issue did not touch and concern the land. We affirm.

This cause of action stems from the sale of certain land by the Trust to Chevron Oil Company (“Chevron”). As part of that transaction, Chevron and the Trust executed a reservation agreement, which provided that if a certain portion of the land were later taken by eminent domain, the Trust would receive the eminent domain proceeds. The reservation agreement, which was recorded in the official county records, specifically bound both Chevron and the Trust as well as their successors and assigns.

Chevron then deeded the entire parcel to Williams. The deed of conveyance included the following language: “[Sjubject to ... [a]ll easements, reservations, exceptions and restrictions of record, which matters are as follows: ... (c) Agreement by and between the co-trustees of the Doris C. Harvey Marital Deduction Trust and Chevron, USA, Inc., recorded December 26, 1990 in Official Records Book 1971, Page 1920.”

When the Florida Department of Transportation then took the parcel by eminent domain, it named both Williams and the Trust in the suit. The Trust filed a cross-claim against Williams, seeking to enforce the reservation agreement.

The trial court entered final summary-judgment in favor of the Trust, finding that the doctrine of estoppel by deed applied and concluding that Williams was estopped from claiming entitlement to the condemnation proceeds. Based on the record before us, we agree. The language of the reservation agreement expressed the intention of the Trust and Chevron that the title to the property be taken subject to this reservation. Likewise, it is clear from the face of the deed that Chevron was conveying title subject to the reservation. The deed not only included a description of the reservation but also cited the location in the public records where a copy of the reservation could be found. Williams therefore is estopped from denying the reservation as it had appropriate notice from the face of the deed by which it took title and from the public records. See Leffler v. Smith, 388 So.2d 261 (Fla. 5th DCA 1980).

Williams suggests that this issue is controlled by Caulk v. Orange County, 661 So.2d 932 (Fla. 5th DCA 1995). In that case, Caulk transferred title to real property to Hibbard by a deed that reserved for Caulk the right to any proceeds that might be realized by the taking of a portion of the property by any governmental authority. Hibbard subsequently conveyed title to Hibbard Oil Company, which then transferred title to Amoco Oil Company. Neither of these deeds included the language of Caulk’s deed. The Fifth District observed that covenants are divisible into two groups: (1) real covenants, which run with the land and bind the heirs and assigns of the covenantor; and (2) personal covenants, which bind only the covenantor personally. The court found that Caulk’s reservation was personal in that the language in the reservation failed to state that it was binding on heirs and assigns. Further, the reservation contained alternative language that would result in the grantee receiving the proceeds under certain circumstances. The court concluded that the reservation was personal and did not run with the land. Caulk, 661 So.2d at 934.

However, in reaching its conclusion, the court indicated that it did not believe that the reservation of the right to proceeds sufficiently “concerned” the land so as to qualify as an interest that could “run with the land.” Id. We note that this language is dicta. The opinion went on to conclude: “Further, even if this covenant could run with the land, nothing in the deed suggests it was intended to do so.” Id. Thus, the holding was based on the language of that particular deed, not upon whether such an interest qualifies as one that could run with the land.

Accordingly, we distinguish the holding in Caulk, as the language in the deeds and the reservation agreement at issue here clearly indicates that the parties intended to bind all successors and assigns and that the subsequent conveyance was subject to this reservation.

Having determined that the trial court was correct in entering judgment in favor of the Trust based on the estoppel by deed argument, we need not reach the issues raised by the Trust in its cross-appeal.

Affirmed.

CASANUEVA and VILLANTI, JJ., Concur.