text:
    L.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3147.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.

      Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, (Tallahassee) for appellee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

L.F., a juvenile, appeals from an adjudication of delinquency, claiming that the trial court violated his double jeopardy rights. We agree and reverse.

L.F. was charged, by petition for delinquency, with resisting an officer without violence. At trial, the lower court precluded the State from admitting pertinent testimony on hearsay grounds. As a consequence, the State could not prove an essential element of the charge, and the trial court granted L.F.’s motion for judgment of acquittal, signing a written final judgment of acquittal which was docketed in the record.

After judgment was entered, the trial court and the parties continued to discuss the propriety of the ruling on the State’s evidence with the court ultimately concluding that its ruling had been erroneous. Over L.F.’s objection, the trial court orally “vacated” the judgment of acquittal, permitted the State to reopen its case to introduce additional evidence, and entered an “amended” order adjudicating L.F. delinquent.

We find that after the trial court entered a written final judgment of acquittal (a judgment that was docketed), double jeopardy precluded the trial court from thereafter nullifying that judgment and adjudicating L.F. delinquent. See State v. Gaines, 770 So.2d 1221, 1226 (Fla.2000)(finding that the trial court’s written order dismissing the charges against the defendant during trial constituted an acquittal which on double jeopardy grounds barred further prosecution). The State’s reliance on cases involving reconsideration or “reversal” of oral rulings on motions for judgments of acquittal is misplaced. Those cases stand for the proposition that oral “rulings” on motions for judgments of acquittal may be changed in those limited circumstances where consideration of the motion has not sufficiently progressed toward finality. See Simmons v. State, 790 So.2d 1177, 1181-82 (Fla. 3d DCA 2001)(rejecting a double jeopardy claim against reversal of judgment of acquittal where the trial court initially orally granted the motion, but then, as part of the same hearing, indicated that it would revisit the ruling the next morning); Francis v. State, 736 So.2d 97, 99 (Fla. 4th DCA 1999)(concluding that where the trial court initially granted a motion for judgment of acquittal by oral ruling, and then upon further discussion with the parties immediately announced that it would continue to consider the issue the next morning, double jeopardy was not violated when the trial court reversed its ruling); see also Boone v. State, 805 So.2d 1040, 1040-41 (Fla. 4th DCA 2002)(refus-ing to permit the trial court to reinstate a lesser included offense of the crime charged because, when the trial court orally granted the motion for judgment of acquittal, the record did not “indicate ongoing legal argument on the defense motion, nor the possibility of revisiting the issue in the future”); Watson v. State, 410 So.2d 207, 209 (Fla. 1st DCA 1982) (finding that “the ruling of the trial judge made the day before, without any indication that the matter was still under consideration, had progressed toward finality beyond the point that would permit its retraction or correction”).

Accordingly, we reverse the adjudication of delinquency.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eldalee G. COOK, et al., Appellants, v. In re ESTATE OF Gloria M. SILVERIO, Deceased, Appellee.
    No. 3D02-3484.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Ginsberg & Schwartz and Todd R. Schwartz, Miami; Fournaris & Sanet, for appellants.
    Welbaum, Guernsey, Hingston, Green-leaf & Gregory and Robert J. Black, Coral Gables, for appellee.
    Before LEVY, SHEVIN, and WELLS, JJ.
   PER CURIAM.

Eldalee Cook and Theodore Cook (“the Cooks”) appeal from an Order on Personal Representative’s Motion to Assess Attorney’s Fees and Other Sanctions in which the trial court awarded attorney fees, pursuant to Section 57.105, Florida Statutes (2002), to the Personal Representative of the Estate of Gloria M. Silverio. We reverse.

On December 7, 1999, an automobile operated by Gloria Silverio collided with an automobile operated by Eldalee Cook. Mrs. Silverio died at the scene, and Cook sustained serious injuries. On January 31, 2000, Nicholas Silverio, as Personal Representative of his wife’s Estate, filed a wrongful death action against the Cooks. In his Complaint, Silverio alleged damages for loss of consortium, the Estate’s loss of earnings and prospective net accumulations, and medical and funeral expenses. The Cooks counterclaimed for Mrs. Cook’s personal injuries and for Mr. Cook’s loss of consortium. During the pendency of that action, Silverio, individually, and as Personal Representative, filed a separate action against the insurer of the automobile driven by his late wife for uninsured motorist benefits. Silverio settled that action for the sum of $100,000.00, retained 100% of the proceeds in his individual capacity, and did not deposit any portion into the account for the Estate. According to the settlement draft, the payee was listed as “Nicholas Silverio, individually, and as Personal Representative of the Estate of Gloria Silverio.”

Later, the Cooks moved the probate court to compel Silverio to post a bond, to compel production of the original inventory of Estate assets, and to establish an independent depository for potential Estate assets pending the resolution of their claim against the Estate. After a hearing, the probate court required Silverio to supply the Cooks with an accurate inventory of the estate, and ordered him to deposit the settlement proceeds into a restricted depository.

On July 18, 2001, Silverio filed a Verified Petition to Confirm Settlement, asserting that the Estate was not entitled to the settlement proceeds because Mrs. Silverio was not employed, and there were no wage loss claims, net accumulations, or a funeral bill that would be a charge to the Estate as a result of the December 7, 1999 accident. The Cooks responded to the Petition, denying that the Estate had no interest in the settlement proceeds, and referencing the Estate’s lawsuit against them. At the hearing on the Petition, Silverio proffered the testimony of an expert witness who would testify that the Estate did not suffer damages in the automobile accident, and therefore did not have a valid claim to the settlement proceeds. In response, the Cooks contended that while they had no testimony to rebut Silverio’s allegations, Silverio, in lawsuits against the Cooks and Silverio’s insurer, claimed damages on behalf of the Estate. The Cooks did not raise an additional objection to Silverio’s proposed apportionment of the settlement proceeds. On November 14, 2001, the probate court granted the Petition to Confirm Settlement.

In April 2002, Silverio’s automobile insurer settled the Cooks’ counterclaim under its policy. As part of that settlement, Silverio dismissed his claims against the Cooks, and the Cooks dismissed their claims against Silverio and the Estate.

On July 25, 2002, Silverio filed a Motion to Assess Attorney’s Fees and Other Sanctions against the Cooks and their attorney as a result of the Cooks’ failure to assert a meritorious defense at the hearing on the Petition to Confirm Settlement. The trial court granted the Motion, finding that Sil-verio was “entitled to recover reasonable attorney fees and costs from [the Cooks and them attorney] for their failure to notify [Silverio or his attorney] at such time as they knew or should have known that they were withdrawing their objection to the Personal Representative’s Petition to Confirm Settlement.” This appeal follows.

The Cooks contend that the foregoing facts do not justify an award of fees under Section 57.105. We agree, The Cooks premised their objection to the Petition to Confirm Settlement upon the claims made by Silverio in the wrongful death action. It is undisputed that the claims made by Silverio in the wrongful death action, which included loss of earnings and prospective net accumulations, were wholly inconsistent with the assertions made in the Petition to Confirm Settlement — specifically, that there were neither wage loss claims nor prospective net accumulations claims to be made by the Estate. At the time of the hearing on the Petition to Confirm Settlement, Silverio had not abandoned the claims made in the wrongful death action. That being said, the Cooks certainly should not have been expected to abandon their position below so long as Silverio continued to maintain claims that were in conflict with one another. Thus, we conclude that the trial court abused its discretion in awarding fees under Section 57.105 because the Cooks’ position, which was premised upon the claims made by Silverio in the wrongful death case, was far from baseless. See Munoz v. City of Miami, 853 So.2d 489, 490 (Fla. 3d DCA 2003) (citing Vasquez v. Provincial South, Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001)).

Reversed.


text:
    CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Appellant, v. Arthur CARR, Appellee.
    No. 3D03-514.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Mase & Gassenheimer, P.A., and James D. Gassenheimer, and Rachel S. Cohen, Miami, and Christopher J. Bailey, for appellant.
    James M. Walker; Philip D. Parrish, Miami, for appellee.
    Before SCHWARTZ, C.J. and GREEN and WELLS, JJ.
   PER CURIAM.

We find, on the record before us, that the trial court did not abuse its discretion in denying appellant’s motion to dismiss on forum non conveniens grounds. See Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86 (Fla.1996). See also Fla. R. Civ. P. 1.061(a); Ira Mex, Inc. v. Southeastern Interior Constr., Inc., 777 So.2d 1107, 1108 (Fla. 4th DCA 2001)(finding that decision to grant or deny motion to dismiss from inconvenient forum rests in discretion of trial court, subject to review for abuse of discretion).

Affirmed.


author: VAN NORTWICK, J.

text:
    Barbara S. EARNEST, Appellant, v. AMOCO OIL COMPANY, Appellee.
    No. 1D02-4936.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.

      Sanford Svetcov of Milberg, Weiss, Ber-shad, Hynes & Lerach, LLP, San Francisco, CA.; Bonnie E. Sweeney and Stacie L. Somers of Milberg, Weiss, Bershad, Hynes & Lerach, LLP, San Diego, CA; Gene D. Brown, Tallahassee; Douglas Bowdoin of Beusse, Brownlee, Bowdoin & Wolter, P.A., Orlando; and J. Craig Bourne, Orlando, for Appellant.
    William R. Mabile, III of Fuller, Johnson & Farrell, P.A., Tallahassee, and Steven J. Harper, P.C. and Wendy L. Bloom of Kirkland & Ellis, Chicago, IL, for Ap-pellee.
   VAN NORTWICK, J.

Barbara S. Earnest appeals an order denying her motion for certification of a class. We have jurisdiction pursuant to rule 9.130(a)(6), Florida Rules of Appellate Procedure (2003). Because we find no abuse of discretion in the trial court’s ruling that Earnest failed to establish that the statistical analysis she proposed to use at trial would show class-wide injury and that questions of law and fact common to the class predominate over individual questions, we affirm.

Earnest, an accountant and Leon County resident, filed suit in the circuit court for Leon County against Amoco Oil Company alleging violations of the Florida Motor Fuel Marketing Practices Act, section 526.301, et seq., Florida Statutes, and the Florida Deceptive and Unfair Trade Practices Act, section 502.201, et seq., Florida Statutes. Earnest alleged below that Amoco violated these statutory provisions when, in 1994, it discontinued distributing its petroleum products in Leon County to independent distributors and/or station owners, commonly known as “jobbers” in the trade, and limited distribution of its products exclusively to company-owned Amoco stations. Earnest has contended that the decision to discontinue distribution to jobbers adversely affected economic competition among gasoline retailers operating in Leon County. Upon the filing of her complaint, Earnest sought certification as a class representative of purchasers of Amoco gasoline in Leon County subsequent to Amoco’s cessation of distribution to jobbers.

The trial court conducted an extensive hearing on the motion for class certification. The principal issue relating to the class certification was whether questions of law or fact common to appellant’s claims and to each member of the class “predominate over any question of law or fact affecting only individual members of the class, and [that] class representation is superior to other available methods for the fair and efficient adjudication of the controversy.” Fla. R. Civ. P. 1.220(b)(3). The trial court determined that appellant’s evidence submitted in support of class certification was not sufficient to show that the representative has proof to establish injury to class members and, thus, class certification was denied.

Pursuant to Florida Rule of Civil Procedure 1.220(a), there are four prerequisites which must be satisfied before any claim or defense may be maintained on behalf of a class: (1) the members of the class must be so numerous that separate joinder of each member is impracticable, rule 1.220(a)(1); (2) the claim or defense of the representative party must raise questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, rule 1.220(a)(2); (3) the claim or defense of the representative party must be typical of the claim or defense of each member of the class, rule 1.220(a)(3), and (4) the representative party must be able to fairly and adequately protect and represent the class members’ interests, rule 1.220(a)(4).

Further, under rule 1.220(b), upon satisfaction of the criteria set forth rule 1.220(a), a court must also conclude that the claims or defenses are maintainable in a class action. See Seven Hills, Inc. v. Bentley, 848 So.2d 345, 348 (Fla. 1st DCA 2003). Subsection (b) requires a showing that (1) individual prosecutions would establish incompatible standards of conduct or individual adjudications would be dis-positive of the interests of other members of the class who are not subject to the adjudications; (2) the party opposing class certification has acted, or has refused to act, on grounds generally applicable to all members of the class; or (3) the claim or defense is not maintainable under subsection (b)(1) or (b)(2), but that questions of law or fact common to the claim or defense of each member of the proposed class is predominant over any question of law or fact affecting only individual members of the class. Fla. R. Civ. P. 1.220(b).

Earnest, as the movant for class certification, bore the burden of establishing all of the requirements of rule 1.220, and the trial court is to subject a request for class certification to “rigorous analysis.” See Seven Hills, Inc. v. Bentley, 848 So.2d at 352 (quoting Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d 19, 22-22 (Fla. 4th DCA 1999)). In conducting its “rigorous analysis,” the trial court may look beyond the pleadings and, without resolving disputed issues, determine how disputed issues might be addressed on a classwide basis. Stone v. Compuserve Interactive Services, Inc., 804 So.2d 383, 387 (Fla. 4th DCA 2001), citing Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1234 (11th Cir.2000).

Earnest sought certification under rule 1.220(b)(3), which requires that the questions of law and fact common to the claim predominate over any question of law or fact affecting only individual members. Although the fact of injury may be susceptible of generalized proof,

[a]s to the amount of damages, at least some individualized treatment will be required. “[T]he predominance test really involves an attempt to achieve a balance between the value of allowing individual actions to be instituted so that each person can protect his own interests and the economy that can be achieved by allowing a multiple party dispute to be resolved on a class action basis.”

Transamerican Refining Corp. v. Dravo Corp., 130 F.R.D. 70, 74 (S.D.Tex.1990)(quoting 7A Wright, Miller & Kane, Federal Practice and Procedure, § 1777 at 518-19 (1986)). The role of the trial court in determining whether common questions predominate was well explained in Humana, Inc. v. Castillo, 728 So.2d 261, 266 (Fla. 2d DCA 1999):

To certify a class, rule 1.220(b) requires not only that common questions exist, but that those common questions predominate over individual questions. Rule 1.220 also requires a class action to be manageable and superior to other proceedings. To determine if the requirements of Rule 1.220 have been met, a trial court must envision how a class action trial would proceed.
Under this analysis, the trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class. If they cannot, a class should not be certified.

At the class certification stage, the plaintiff is not required to prove class-wide impact. See In re Domestic Air Trans. Antitrust Litig., 137 F.R.D. 677, 692 (N.D.Ga.1991). Instead, a plaintiff is required to “adequately demonstrate[][her] ability to show impact as to each individual by the use of generalized proof.” Id. Said another way, at the class certification stage,

[pjlaintiffs must show that antitrust impact can be proven with common evidence on a classwide basis; Plaintiffs need not show antitrust impact in fact occurred on a classwide basis.... [Wjith respect to the damages requirement, ... the plaintiffs [must] show they could compute damages through the use of common proof.

In re Polypropylene Carpet Antitrust Litigation, 178 F.R.D. 603, 618 (N.D.Ga.1997)(emphasis deleted). If using statistical analysis, a plaintiff is required to prove that there exists a methodology for proving class-wide impact by predominately common evidence and that individual inquiries will not overwhelm the common ones. Air Trans. Antitrust Litig., 137 F.R.D. at 692; see also In Re Polypropylene Carpet Antitrust Litig., 996 F.Supp. 18, 22 (N.D.Ga.1997).

Earnest sought to establish all of the prerequisites for class certification through the testimony of a single expert, Keith Leffler, an associate professor of Economics at the University of Washington and, as the record reflects, a frequent expert in class action litigation. Professor Leffler testified that he proposed to use a regression analysis to establish a class-wide injury, but he candidly admitted that he had not actually performed such an analysis. He testified in part:

[I]t’s possible the analysis would show that the percentage of Amoco jobbers does not impact the pricing. In other words, I[,] going into it[,] don’t know the answer. So it may be that the answer is that we stop there. The analysis is performed and I’d have to have a call with you someday, that wouldn’t be a pleasant call, to say I don’t find an impact. However, if, in fact, the regression analysis does find a statistically significant relationship between the proportion of Amoco jobbers in a market and the prices paid in that market at Amoco stations, that doesn’t yet show class-wide impact. That shows impact on average for the class members, certainly. It shows on average the people that purchased Amoco gasoline would have paid less if there would have been jobber presence in Leon County. But it doesn’t answer the question of: is that a reason to expect that all class members would be impacted. So we wouldn’t be done yet.

Professor Leffler further testified that he did not know what the evidence would show as to how many jobbers would have entered the Tallahassee market during the proposed class period, but that the number of jobbers in the market is often relevant to the price of gasoline paid by consumers.

In the order on appeal, the trial court found that Professor Leffler’s proposed regression analysis was speculative and had not yet been tested on any data relating to the class. Thus, the trial court concluded that Earnest had not established that she could prove injury to the proposed class through Dr. Leffler’s proposed regression analysis. In so ruling, the trial court found the case before it analogous to A & M Supply Co. v. Microsoft Corp., 252 Mich.App. 580, 654 N.W.2d 572 (2002), a case where Professor Leffler also appeared as an expert for the party seeking class certification. As was the trial court in the case on review, the reviewing court in A & M Supply was troubled by the fact that, as of the time of the class certification hearing, Professor Leffler had not actually performed the statistical and economic analysis required to determine class damages. Id. at 586. Thus, Professor Leffler offered only “vague promises for future analysis” which “failed to bridge the gap between economic theory and the reality of economic damages.... ” Id. at 603. Although A & M Supply was an action for damages sustained by indirect purchasers, while the case at bar concerns direct purchasers, the plaintiff in each case was nevertheless required to “set forth a viable method for proving actual damages, on a class-wide basis.” Id.; see also Execu-Tech Business Systems, Inc., 743 So.2d at 22 (holding that plaintiffs seeking class certification are required to demonstrate a methodology which would show injury to members of the class in order to satisfy the predominance element of rule 1.220).

We agree with the trial court that Earnest’s proposed method of determining injury to members of the proposed class was vague and theoretical and failed to provide the bridge between economic theory and common economic damages. “There must be a sound basis in fact, not supposition, that the requirements of the class action rule have been satisfied.” Baptist Hosp. of Miami, Inc. v. Demario, 661 So.2d 319, 321 (Fla. 3d DCA 1995). While Earnest was not required to prove at the class certification stage of the litigation the allegations in her complaint that Amoco, violated the Florida Motor Fuel Marketing Practices Act and the Florida Deceptive and Unfair Trade Practice Act, we find no abuse of discretion by the trial court in ruling that Earnest did not sufficiently demonstrate a methodology that would show class injury or establish that questions of law or fact common to the proposed class predominate over questions of law or fact affecting only individual members of the class. See Fla. R. Civ. P. 1.220; Seven Hills, 848 So.2d at 352.

Accordingly, the challenged order denying .class certification is AFFIRMED.

BARFIELD and BENTON, JJ., concur.

      . At the hearing on the motion for class certification, Professor Leffler explained "regression analysis” as "a statistical method through which [one] attempt[s] to explain or understand the relationships among variables.” A federal appellate court has defined regression analysis as the "use of an algebraic formula to express the influence of one or more independent variables on the average level of a dependent variable [as well as] the computational procedure through which the terms of this formula are estimated.” E.E.O.C. v. General Telephone Co. of Northwest, Inc., 885 F.2d 575, 577 n. 3 (9th Cir.1989)(quoting D. Baldus & J. Cole, Statistical Proof of Discrimination, 357 (1980))(parentheses omitted).


author: ERVIN, J.

text:
    Philip E. MEHL, Jr., and Susan E. Mehl, Appellants, v. OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 1D02-4623.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.

      Gary Brookmyer of Brookmyer, Hoch-man, Probst & Nadeau, P.A., Palm Beach Gardens, for Appellants.
    Peter G. Fisher, Senior Attorney, Office of Financial Regulation, Tallahassee, for Appellee.
   ERVIN, J.

This is an appeal from a final administrative order entered by the Department of Banking and Finance, predecessor to appellee, Office of Financial Regulation (OFR), which determined that a pay telephone sale and lease-back program marketed and sold to Florida investors by the appellants, Philip E. Mehl, Jr., and Susan E. Mehl, constituted an investment contract, subject to regulation under the Florida Securities and Investor Protection Act (sections 517.011-32, Florida Statutes (2000)). Appellants contend that reversal is required based upon Securities & Exchange Commission v. ETS Payphones, Inc., 300 F.3d 1281 (11th Cir.2002), cert. granted sub nom. Securities & Exchange Commission v. Edwards, — U.S. —, 123 S.Ct. 1788, 155 L.Ed.2d 665 (2003) (No. 02-1196) (hereinafter “S.E.C. v. ETS ”). We disagree and affirm.

The Mehls were charged by administrative complaint with selling unregistered securities, one of which was an ETS pay phone program, and acting as unregistered dealers. The evidence disclosed that the pay phone investment program, which was not registered, was offered through ETS Payphones, Inc., and its affiliates. ETS was incorporated to provide management services, including placement, advertising, maintenance, coin collecting, and accounting on behalf of the purchasers. After investors bought the phones at prices ranging from $6,000 to $7,000 per unit, they simultaneously leased them back to ETS for a five-year period. The owners in turn were guaranteed a fixed rental income of $80 per month or more, depending on the price of the phones, until the expiration of the lease, representing an approximate 14-percent annual return on each investment. At the conclusion of the five-year lease, the owners had the option of assuming the maintenance and operational responsibilities involved with the pay phones, attempting to enter into new lease agreements, or selling the telephones for their original purchase price to the management company. Unfortunately, none of these options materialized, because ETS filed a voluntary petition for bankruptcy in 2000, and ceased lease payments and buyback guarantees.

The administrative law judge (ALJ) found that the ETS pay phone sales, together with the leases back to ETS, constituted investment contracts, as established in the test approved by the United States Supreme Court in Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). Under the Howey test, an investment contract exists if the following elements are established: (1) an investment of money, (2) a common enterprise, and (3) the expectation of profits to be derived solely from the efforts of others. The ALJ decided that all three prongs had been satisfied. Thus, the ALJ found that the Mehls’ sales of ETS pay phones constituted the conveyance of unregistered securities, and he concluded by recommending the imposition of administrative fines of $2,390,000 against Philip E. Mehl, Jr., and $2,880,000 against his wife, Susan E. Mehl.

After the 15-day period allowed by section 120.57(1)(k), Florida Statutes (2002), for filing exceptions to the recommended order had expired, appellants moved to vacate the order and dismiss the administrative complaint for lack of subject-matter jurisdiction. Appellants’ motion was based on a recently filed decision of the Eleventh Circuit Court of Appeals in S.E.C. v. ETS, which had determined, in a case factually similar to the present, that the lease-back transaction of ETS pay phones did not constitute a security, because the third “profits” prong of Howey was lacking, and, therefore, that the Securities and Exchange Commission lacked subject-matter jurisdiction over the complaint.

In adopting the ALJ’s recommended order in its entirety, and rejecting the decision of the Eleventh Circuit, the final order concluded that all three parts of the Howey test had been satisfied. The agency agreed with the ALJ that the lease arrangement constituted an investment contract, giving it subject-matter jurisdiction, and thereby justified the ALJ’s denial of the appellants’ motion to vacate and dismiss. Hence this appeal.

Initially, we reject in part the OFR’s argument that all of the issues raised by appellants were not preserved, because they were not made within the time required for filing exceptions to the recommended order. We note that the OFR is vested with authority to administer and enforce all provisions of the Florida Securities and Investor Protection Act, but if a security is not involved, OFR does not have subject-matter jurisdiction. Not only was appellants’ second issue, i.e., that the leasing of a pay phone does not constitute a security in that there is no expectation of profits, preserved by the motion to vacate, but we note as well that the issue, in that it relates to OFR’s subject-matter jurisdiction, may be raised at any time, even for the first time on appeal.

We conclude, however, that appellants’ argument relating to the sufficiency of the evidence to support a finding of common enterprise was not preserved. In their motion to vacate, appellants claimed only that the recommended order was not in accord with the decision of the Eleventh Circuit Court of Appeals in S.E.C. v. ETS. Appellants now argue that the OFR erred in refusing to dismiss the administrative complaint for lack of jurisdiction, because the second and third prongs of the Howey test were not satisfied, as required by that decision. The Eleventh Circuit, however, specifically declined to reach the issue of whether a showing of a common enterprise had there been made; it decided only that the last prong, “expectation of profits,” was not satisfied. S.E.C. v. ETS, 300 F.3d at 1284. Because appellants’ argument as to the issue of common enterprise was not preserved due to the appellants’ failure to file timely exceptions to the recommended order, the ALJ’s factual finding is binding; therefore, we affirm as to it.

The pivotal question in this appeal is whether the profits prong was established. In concluding that it was not, the Eleventh Circuit in S.E.C. v. ETS relied greatly on language used by the Supreme Court in United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975), to the effect that the term profits meant either “a participation in earnings by the investor or capital appreciation.” S.E.C. v. ETS, 300 F.3d at 1284. It noted that capital appreciation was not involved, and, turning to the question of whether there was a participation in earnings by investors, the Eleventh Circuit concluded that fixed-lease payments made to the owners of the pay phones could not be considered a participation in earnings because the owners were not seeking profits in the sense of receiving earnings from the company. The dispositive language of S.E.C. v. ETS is as follows:

In our opinion ... the determining factor is the fact that investors were entitled to their lease payments under their contracts with ETS. Because their returns were contractually guaranteed, those returns were not derived from the efforts of ... anyone ... at ETS; rather, they were derived as a benefit of the investors’ bargain under the contract.

Id. at 1285.

It is clear to us, because of the similarity of the facts in both this case and S.E.C. v. ETS, that if the Eleventh Circuit’s decision were binding on Florida courts, we would be compelled to follow it. We conclude, however, it is not controlling. Initially, we agree with OFR that while the various states’ securities laws operate in conjunction with federal law, federal laws do not supersede state law. See E.F. Hutton & Co. v. Rousseff, 537 So.2d 978 (Fla.1989). In fact, the United States Supreme Court has itself acknowledged that it lacks “jurisdiction authoritatively to construe state legislation.” Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting United States v. Thirty-seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971)).

In refusing to honor the Eleventh Circuit’s decision in S.E.C. v. ETS, OFR observed that although there were similarities between the federal and Florida acts, there were also decided dissimilarities; one being that the federal act emphasizes “the protection and stability of the broader capital markets as contrasted with the state focus on the protection of the private individual.” OFR continued with the following pertinent comments:

Florida law does not use such a narrow construction of ‘profit’; it has not distinguished between fixed and variable returns to the investor. Florida law looks to both the economic reality of the transaction and the way the promoter has characterized the return. Here, the investor motivation was the rate of return on the investment, not participating in the payphone business. ETS literature referred to the return on investment as profits.... Thus, if the investor is attracted solely by the prospect of the return and if ETS literature touted the return as a profit, there is no reason to believe that a state court would require more. Lastly, because the investment was ‘guaranteed!,’] investors were led to believe this investment was safe. The economic reality is that the guarantee was not a bargained for contractual term. It was nothing more than the promoter’s means of lulling the investor into a feeling of security and thereby parting him from his money.

(Pages 5-6 of final order) (citations omitted).

OFR’s analysis of whether the transaction constituted an investment contract appears altogether consistent with Florida case law. As noted in Rudd v. State, 386 So.2d 1216, 1218 (Fla. 5th DCA 1980): “[F]orm should be disregarded for substance and the emphasis should be on economic reality, with a transaction excluded from the act if not within its spirit and intention.” Indeed, OFR’s construction of the profits prong is consistent with the approach followed by other states in regard to their own securities laws. For example, the Supreme Court of Tennessee in King v. Pope, 91 S.W.3d 314 (Tenn.2002), explained that a dual system of securities regulation by the federal government and states was required to serve different purposes. It observed that the goal of the states’ regulations of securities was designed to protect investors, while federal securities laws were enacted to serve the broader purpose of protecting the integrity of the increasingly nationalized market. Id. at 319-20.

The factor of investor motivation, which OFR placed special emphasis on, was supported by the facts that the investors were predominantly elderly, retired persons with little or no knowledge about the management of the pay phone industry. In fact, they had no interest in operating the pay phones system, but rather were attracted by the represented guarantee of a fixed 14-percent return on their investment, and they were completely dependent on ETS’s expertise to achieve such gain. Moreover, the return of the investors’ capital investment at or before the end of the lease period was represented as guaranteed to them by the repurchase agreements. The program was advertised as “virtually recession proof,” which could produce revenue an entire year and “offer immediate, steady cash flow.” Retirees were encouraged to liquidate annuities and other retirement plans in order to invest in the program.

Florida case law is committed to the rule that the administrative construction of a statute by an agency charged with its administration is entitled to great weight. Dep’t of Ins. v. Southeast Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983). We find nothing in OFR’s interpretation of the Florida Securities and Investor Protection Act it is directed to regulate that is inconsistent with the purpose behind the creation of the Act. We therefore agree with OFR that the S.E.C. v. ETS opinion is not harmonious with Florida law in that it focused too narrowly on the parties’ contractual agreements, without examining all of the factors surrounding the transaction, including particularly the representations made to the purchasers by appellants, as well as the reliance placed by the inexperienced investors on the managerial skills of others. Cf. Farag v. Nat’l Databank Subscriptions, Inc., 448 So.2d 1098, 1101 (Fla. 2d DCA 1984).

Because we conclude that the third Howey element was satisfied pursuant to the broad objectives of Florida law, we agree that OFR was permitted to reach a conclusion different from that in S.E.C. v. ETS, for the reason that Florida’s interpretation of security takes into consideration the “legislative purpose of the Florida Securities and Investor Protection Aet[, which,] as its title makes clear, [was designed] to protect the public from fraudulent and deceptive practices in the sale and marketing of securities.” Arthur Young & Co. v. Mariner Corp., 630 So.2d 1199, 1203 (Fla. 4th DCA 1994).

AFFIRMED.

BOOTH and KAHN, JJ., concur.

      . An investment contract is included in the list of items under the definition of security, see section 517.021(19)(q), Florida Statutes (2000), but is otherwise undefined in Florida law.

      . The Howey test has been accepted and applied in Florida. See Brown v. Rairigh, 363 So.2d 590 (Fla. 4th DCA 1978); Levine v. I.R.E. Props., Inc., 344 So.2d 938 (Fla. 3d DCA 1977).

      . No contention is made that the first prong, an investment of money, was not established.

      . In that we conclude this case was properly decided under Florida law, we do not reach the alternative reason advanced by OFR for rejecting the Eleventh Circuit's interpretation of the third prong of the Howey test, which was that the court, in reaching its decision, had taken out of context certain examples provided by the Supreme Court in United Housing Foundation, Inc. v. Forman, and ignored other language in Forman that was consistent with Florida’s interpretation of Howey.


author: POLEN, J.

text:
    Keith MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-49.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

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

Keith Mathis was charged with three counts by information: count one charged that Mathis unlawfully delivered cocaine to I. Jackson, count two charged that Mathis unlawfully had cocaine in his possession with the intent to sell, manufacture or deliver it and count three charged that Mathis unlawfully obstructed or opposed I. Jackson, a police officer, during his lawful arrest. This appeal arises from the entry of a final order sentencing Keith Mathis to ten years incarceration after a jury found him guilty of possession of cocaine with intent to sell and resisting arrest without violence. For the reasons outlined below, we reverse as to the resisting without violence.

At trial, the state first called police officer Kimberly Hancock. Hancock was working with officer Jackson on April 14, 2000, in an undercover capacity, purchasing narcotics. The undercover officers parked in front of an apartment complex and Mathis approached the vehicle. Officer Jackson asked Mathis for $40. Jackson then gave Mathis the money. Hancock saw Mathis go to a parked vehicle, reach in to the vehicle near the glove box, then return with the narcotics. After the narcotics were passed to the officer, a “move in” signal was given by Jackson and uniformed officers arrived on the scene.

When the signal was given, Detectives Bruce, Sierra, and Brogna moved in. Mathis attempted to flee. After Mathis was caught, the officers checked the vehicle and recovered twenty-nine additional baggies of cocaine and nine baggies of rock cocaine from the vehicle. Jackson explained that Mathis did not run from him, he ran from the officers who moved in to make the arrest. Officer Brogna’s testimony also confirmed that Mathis did not run from Jackson, rather he ran from the uniformed officers. At the close of the case, the jury was instructed in relevant part as follows:

Before you can find the defendant guilty of possession of cocaine, the State must prove the following four elements beyond a reasonable doubt.
One, Keith Mathis possessed a certain substance.
And Two, the substance was cocaine.
And three, Keith Mathis had knowledge of the presence of the substance.
And four, Keith Mathis had knowledge of the illicit nature of the substance.

No objections were made to this jury instruction. The jury found Mathis guilty of possession of cocaine with the intent to sell or deliver, and guilty of resisting arrest without violence, as charged in the information. Mathis was sentenced to ten years in prison.

Mathis first contends the trial court erred in denying his motion for judgment of acquittal on count three, resisting arrest without violence. We agree. “On appeal of a denial of a motion for judgment of acquittal where the State submitted direct evidence, the trial court’s determination will be affirmed if the record contains competent and substantial evidence in support of the ruling.” Conde v. State, 860 So.2d 930, 2003 WL 22052316 (Fla.2003). “A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party.” Perry v. State, 846 So.2d 584 (Fla. 4th DCA 2003). (quoting Jeffries v. State, 797 So.2d 573, 580 (Fla.2001)).

The information in this case provided, in relevant part, as follows:

Keith Mathis on the 14th day of April, A.D.2000, in the County and State aforesaid, did unlawfully obstruct or oppose I. Jackson, a duly qualified and legally authorized enforcement officer of the Fort Lauderdale Police Department ...

Mathis contends that the evidence in this case was that Mathis was arrested by a team of officers that did not include Jackson. This court addressed this issue in Burns v. State, 584 So.2d 1073 (Fla. 4th DCA 1991). The relevant facts of Bums are as follows:

Two police officers responded to an armed robbery broadcast and encountered Burns in a convenience store parking lot. As soon as he saw the officers, he ran away. The officers gave pursuit and their police dog caught and bit him and knocked him to the ground. Burns jumped up and begged the officers to shoot him because he did not want to return to prison, while they attempted to put handcuffs on his flailing arms. One officer struck Burns on the head with his weapon, and in the act dropped the gun. Burns immediately picked it up and pointed the weapon at that officer while making a motion to squeeze the trigger. The other officer then drew his weapon and fired six times, hitting the first officer once and Burns five times in the chest and stomach.

The information charged Burns, inter alia, with resisting arrest with violence with carrying a firearm. The information charged this offense as against the officer who shot Burns rather than the officer who was shot. On appeal, this court reversed the conviction for resisting arrest with violence because the information charged that the defendant resisted one officer but the evidence only supported the conclusion that the defendant resisted a different officer. Id. at 1076.

The facts of the case at bar are analogous to Burns. In this case, the information charged that Mathis resisted officer Jackson. However, Jackson admitted at trial that Mathis never ran away from him and that he did not make the arrest. As a result, the trial court erred in denying Mathis’s motion for judgment of acquittal.

As his second issue on appeal, Mathis claims the trial court committed fundamental error by failing to properly instruct the jury on the possession charge. More specifically, Mathis complains that the instruction did not comply with Chicone v. State, 684 So.2d 736 (Fla.1996), to include an element of knowledge of the illicit nature of the substance. However, no such instruction was requested, nor was any objection made when the jury was instructed without the inclusion of the Chicone language. Mathis claims the omission of the Chicone language amounted to fundamental error. We disagree.

This court has recently held that failure to give the Chicone instruction amounts to fundamental error only where guilty knowledge is an issue in the case. Davis v. State, 839 So.2d 734 (Fla. 4th DCA 2003); see also Rhinehart v. State, 840 So.2d 456 (Fla. 4th DCA 2003) (failure to give Chicone instruction was not fundamental error where appellant did not present any evidence or argue that he did not know the illicit nature of the substance he delivered).

This case is akin to Davis and Rhinehart in that Mathis’s knowledge of the illicit nature of the substance was not at issue. As a result, in accordance with this court’s prior rulings in Davis and Rhine-hart, the failure of the trial court to include the Chicone instruction did not amount to fundamental error. Therefore there was no error in the jury instructions.

AFFIRMED IN PART, REVERSED IN PART.

STEVENSON and SHAHOOD, JJ., concur.


text:
    Linford Ricardo SPENCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4047.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of second degree murder, grand theft of a motor vehicle, and aggravated battery. We affirm appellant’s convictions. However, we reverse appellant’s sentence for aggravated battery on the authority of Jackson v. State, 852 So.2d 941, 944-45 (Fla. 4th DCA 2003). We note that upon remand appellant may be sentenced pursuant to section 775.087(2)(a)1., Florida Statutes (2001), which provides for a ten-year minimum term of imprisonment.

POLEN, GROSS, JJ., and OFTEDAL, RICHARD L., Associate Judge, concur.


text:
    Ollie BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3732.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Ollie Bryant, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ollie Bryant appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Bryant alleged his 192 month sentence as a youthful offender following revocation of probation was illegal as it exceeded the maximum provided in the youthful offender statute. Chapter 958, Fla. Stat. (1998).

If these allegations are true, then Bryant’s sentence would be illegal and he would be entitled to relief under rule 3.800(a). See Shaw v. State, 826 So.2d 515 (Fla. 4th DCA 2002); Hill v. State, 698 So.2d 931 (Fla. 4th DCA 1997); Swilley v. State, 781 So.2d 458 (Fla. 2d DCA 2001); Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998) rev. dism. 723 So.2d 830 (Fla.1999).

The merit of Bryant’s claim may hinge on whether his violation of probation was substantive or technical. § 958.14, Fla. Stat. (1998); Swilley, 781 So.2d at 459. The trial court denied the motion stating the sentencing documents showed Bryant was not sentenced as a youthful offender. The trial court failed to provide portions of the record supporting denial or refuting Bryant’s claim he was adjudicated a youthful offender and sentenced in excess of the statutory maximum upon revocation of probation. Collins v. State, 805 So.2d 73, 74 (Fla. 4th DCA 2002).

We reverse and remand for further consideration of Bryant’s claim.

POLEN, STEVENSON and GROSS, JJ., concur.


text:
    Alfred HOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4289.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Armstrong v. State, 656 So.2d 455 (Fla.1995).

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, a Reciprocal Interinsurance Exchange (USAA), Petitioner, v. Mark S. ROTH and Marilyn Roth, Respondents.
    No. 4D03-2483.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Robert C. Gobelman and Kristy J. Gavin of Gobelman, Love, Gavin, Blazs & Mathis, Jacksonville, for petitioner.
    Robert F. Shapiro of Sperry, Shapiro & Kashi, P.A., Plantation, for respondents.
   PER CURIAM.

In the midst of insurance coverage litigation, United Services Automobile Association [USAA] filed a petition for writ of common law certiorari. The petition challenges a trial court order, which overruled USAA’s objection to production of documents based on attorney-client privilege and compelled production. We find the order deviated from the essential requirements of the law, grant the petition, and quash the order.

USAA is the plaintiff/counter-defendant in a declaratory judgment action concerning the amount of coverage available under a personal umbrella policy. Although other coverage issues have been litigated concerning this policy, the current issue involves the effect of the “limit of liability” clause. See United Servs. Auto Ass’n v. Roth, 744 So.2d 1227 (Fla. 4th DCA 1999) (discussing stacking of coverages).

The Roths served interrogatories on USAA asking for the name of the court, case number, and lawyers involved in unrelated litigation known as “Stoukey” or “Stouky” v. USAA. That case is mentioned on USAA’s Florida Coverage Comparison document as the reason for the change in the “limit of liability” policy language. The Roths also sought production of documents, which included communications between outside Florida legal counsel for USAA and the carrier. These communications involved legal opinions on coverage.

USAA objected to the discovery and the Roths moved to compel better answers to interrogatories and better responses to the request to produce. After hearing argument, the trial court directed USAA to provide the documents for an in camera inspection. Following that inspection, the trial court ordered production of the documents. It is from this order that USAA has petitioned this court.

A petition for writ of certiorari is the proper means for review of court orders compelling production of discovery claimed to be privileged. Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla. 4th DCA 1999). Our review of the claim of attorney-client privilege is de novo.

We have reviewed the documents in question and find that they are protected by the attorney-client privilege under section 90.502, Florida Statutes (2002). That privilege covers communications on legal matters between counsel and client. Any communication to which the privilege attaches is absolutely immune from disclosure. Kujawa v. Manhattan Nat’l Life Ins. Co., 541 So.2d 1168 (Fla.1989). The trial court deviated from the essential requirements of the law when it ordered USAA to produce these documents. Id.

We therefore grant the petition, issue the writ, and quash the order to the extent it required production of the documents.

KLEIN, STEVENSON and MAY, JJ., concur.

      . The order also compels better answers to interrogatories, but this ruling has not been challenged in the petition.


author: FARMER, C.J.

text:
    REUTER RECYCLING OF FLORIDA, INC., a Florida corporation, Appellant, v. CITY OF DANIA BEACH; City of Hallandale Beach; City of Pembroke Pines; and City of Pompano Beach, Appellees.
    No. 4D03-386.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

      Jeffrey S. Wertman, Mitchell W. Berger and David L. Ferguson of Berger, Singer-man, Fort Lauderdale, for appellant.
    Jennifer A. Goldberg and Michael S. Popok of Weiss, Serota, Helfman, Pastori-za, Guedes, Cole and Boniske, P.A., Fort Lauderdale, for appellees.
   FARMER, C.J.

We reverse a trial judge’s order refusing to enjoin binding arbitration. The claims sought to be arbitrated are excluded by the arbitration agreement. Thus Reuter is irreparably harmed by the trial court’s refusal to enjoin arbitration of claims not included in an agreement to arbitrate. See K.W. Brown & Co. v. McCutchen, 819 So.2d 977, 979 (Fla. 4th DCA 2002) (“A legal remedy is inadequate in this case, as no legal remedy can compensate ... for having to allegedly undergo an arbitration process in which they did not agree to participate. In the absence of injunctive relief, [a party] would be forced to proceed with an arbitration proceeding to which they did not ... consent.”). With arbitration agreements, the rule is effectually that the presumptive remedy is specific performance, regardless of whether the ultimate decision is for or against arbitration of the claim in issue.

Reuter established that the subject agreement to arbitrate did not include claims barred by the applicable statute of limitations. The contract states:

“All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof, shall be decided by arbitration .... The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.”

We do not find this provision ambiguous. It expressly excludes time-barred claims from the agreement to arbitrate.

Even if the agreement to arbitrate' were ambiguous, we would still find that the parties had not agreed to have the arbitrators determine the issue of arbitrability. As we said in Corporate Securities Group Ltd. v. Lind, 753 So.2d 151 (Fla. 4th DCA 2000), where we construed the functionally identical federal arbitration statute:

“the question whether the arbitrators or the courts have the primary power to determine arbitrability depends on whether the parties agreed to submit the question of arbitrability itself to arbitration.”

753 So.2d at 152. We now make clear that the same rule applies to agreements covered by the Florida Arbitration Code.

The rule is that “courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” Lind, 753 So.2d at 152 (quoting First Options of Chicago v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). An ambiguity as to who should determine arbitrability means that the parties have not clearly and unmistakably manifested an intent to have arbitrators decide the issue as to what specific claims they have agreed to arbitrate. Thus if the agreement is ambiguous, then it is for the court to say what claims should be arbitrated. Lind, 753 So.2d at 152. We hold that in this instance the trial court erred in finding that the parties had clearly and unmistakably agreed to have the arbitrators determine arbitrability as to time-barred claims.

REVERSED.

GUNTHER and MAY, JJ„ concur.


author: KLEIN, J.

text:
    SUNTREE HOMES, INC., Appellant, v. William SIMS and Gwen Sims, Appellees.
    No. 4D02-4768.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

      Jon D. Derrevere and Shirley Jean McEachern of Derrevere & Associates, West Palm Beach, for appellant.
    Kenneth J. Scherer of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellees.
   KLEIN, J.

Suntree Homes, a builder, appeals a judgment ordering it to repair a defect in plaintiffs’ home, arguing that the court erred because plaintiffs sued only for damages, not specific performance. We reverse.

The new home built by Suntree for plaintiffs contained a crack in the concrete slab which resulted in tile above the slab cracking. Suntree had offered to repair the slab, using a procedure which would cost approximately $2,000, but plaintiffs refused and sued for damages. Their expert testified that it would cost $40,000 to do the repair. The trial court rejected plaintiffs’ theory and entered a final judgment finding that Suntree had complied with its contract by offering to repair the slab.

The plaintiffs then filed a motion to amend their pleadings to conform to the evidence to seek specific performance of Suntree’s offer to do the $2,000 repair. The judge granted the motion and Suntree has appealed, arguing that a cause of action for a specific performance was not tried by express or implied consent. Fla. R. Civ. P. 1.190(b).

The fact that Suntree offered to perform the $2,000 repair, which plaintiffs refused, was not a basis on which the court could grant specific performance. Suntree was not, by offering to make the repair, injecting the issue of specific performance. Suntree was obligated by its contract to repair defects, and by putting on evidence that it had offered to do the repair, Sun-tree was merely adducing evidence relevant to its position that it was not in breach of the contract. Dean Co. v. U.S. Home Corp., 485 So.2d 438 (Fla. 2d DCA 1986) (defendant did not consent to try claim on theory not stated in complaint by presenting evidence that was a defense to that complaint). We therefore reverse that portion of the post judgment order granting specific performance.

STONE and HAZOURI, JJ., concur.


text:
    Caridad YARINE, Monroe Plumbing Supply, Inc. and Ryder Truck Rental, Inc., Appellants, v. Magaly BLANCO, et al., Appellees.
    No. 3D03-461.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Gaebe Mullen Antonelli Esco & DiMat-teo and Joel V. Lumer, for appellants.
    Larry Faye, for appellees.
    Before GODERICH, FLETCHER, and WELLS, JJ.
   PER CURIAM.

We reverse that portion of the trial court’s omnibus order dated February 3, 2003, as it relates to Magaly Blanco (vacating the dismissal of Magaly Blanco’s claims and reinstating them). The trial court is instructed to reinstate that portion of the trial court’s order dated March 27, 2002, dismissing Magaly Blanco’s claims. See Department of Revenue v. Riley, 684 So.2d 905 (Fla. 3d DCA 1996)(a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor); City of Miami Beach v. Chadderton, 306 So.2d 558 (Fla. 3d DCA 1975)(generally a successor judge cannot review, modify, or reverse upon the merits and on the same facts final orders of a predecessor unless there exists some special circumstance such as mistake or fraud perpetrated upon the court).

Reversed and remanded with instructions.


text:
    Rodolfo ALBELO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-483.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Rodolfo Albelo, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Fernandez v. State, 683 So.2d 149 (Fla. 3d DCA 1996), rev. denied, 691 So.2d 1080 (Fla.1997).


author: SHEVIN, Judge.

text:
    Cedric THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1616.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Cedric Lemar Thompson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   SHEVIN, Judge.

We reverse the order summarily denying defendant’s motion for post-conviction relief based on ineffective assistance of trial counsel. The court erred in concluding that the motion was untimely, as it was filed within two years of the conviction becoming final. Fla. R.Crim. P. 3.850. Additionally, the motion was improperly denied on grounds that the claims asserted by defendant were or could have been raised on direct appeal. Ineffective assistance of trial counsel claims are properly raised in post-conviction relief motions, not direct appeals. Fla. R.Crim. P. 3.850; Robinson v. State, 637 So.2d 998 (Fla. 1st DCA 1994). Moreover, although the state, on appeal, addresses the merits of the defendant’s claims, those claims appear facially sufficient and must be considered by the trial court on remand. On remand, the court may attach to its order those portions of the record which conclusively show that the movant is not entitled to relief, see Fla. R.Crim. P. 3.850(d), or, alternatively, must conduct an evidentiary hearing.

Reversed and remanded.


text:
    Christopher BREEDEN, Petitioner, v. Frank F. COOK, M.D., Palm Beach Orthopaedic Institute, PA., a Florida corporation, West Palm Outpatient Surgery & Laser Center, Ltd., a Florida corporation d/b/a Northpoint Surgery & Laser Center, and West Palm Outpatient Surgery Center, Inc., Respondents.
    No. 4D03-2497.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

      Edna L. Caruso of Caruso & Burlington, P.A., West Palm Beach, and James L. Torres of Platt Jacobus Fielding & Torres, LLC, Melbourne, for petitioner.
    Anthony J. Diaz of Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., West Palm Beach, for respondents Frank F. Cook, M.D. and Palm Beach Orthopaedic Institute, P.A., a Florida corporation.
   PER CURIAM.

The petitioner is a plaintiff in a medical malpractice action. He seeks review of a trial court order that compelled production of medical records. He argues that the records are protected by section 397.501, Florida Statutes (2002). We agree, grant the petition, issue the writ, and quash the order compelling production.

The petitioner is, a physician, who sued the defendants for malpractice concerning ankle surgery and follow-up medical care for a resulting infection. He alleged that he suffered bodily injury, resulting pain and suffering, disability, disfigurement, hospital and medical expenses, and loss of capacity for the enjoyment of life. He made no claim for mental anguish.

The defense requested production of the following:

Any and all medical records, including but not limited to reports of physical examination, x-rays, x-ray reports, notes on attendance and/or treatment, memo-randa, telephone memorandum slips, laboratory studies, records of physical therapy, reports of physical therapy, medication record, consultation records, medical bills, hospital records, and any and all records whatsoever you may have in your possession or control....

The petitioner objected to the production and asserted privilege under section 397.501.

Following a hearing on the petitioner’s objection, the court ordered the filing of a privilege log. After reviewing the documents, the court ordered the production, finding that the documents were relevant to the petitioner’s claim for “loss of capacity for enjoyment of life.” The court further found that “good cause” existed for the disclosure, pursuant to section 397.501(7)(a)5.

A petition for writ of certiorari is the proper means for reviewing court orders compelling production of discovery claimed to be privileged. Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla. 4th DCA 1999).

We need look no further than a recent decision from this court to resolve this petition. See Byxbee v. Reyes, 850 So.2d 595 (Fla. 4th DCA 2003). In Byxbee, we held that otherwise privileged psychotherapy records are irrelevant to a plaintiffs “non-mental, physical condition” when there is no claim for mental anguish. This is true even though the plaintiff has claimed “loss of enjoyment of life.”

In this case, the plaintiff has not alleged a claim for mental anguish. Under Byxbee, his claim for “loss of enjoyment of life” “without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the protection of section 90.503.” Partner-Brown v. Bornstein, 734 So.2d 555, 556 (Fla. 5th DCA 1999). Furthermore, the records sought in this case preceded the surgery by approximately four years.

The petition is granted and the order of the trial court is quashed.

WARNER, POLEN and MAY, JJ„ concur.

      . We note that the trial court did not have the benefit of our decision in Byxbee when it ruled in this case.


text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., a foreign corporation, Florida Power & Light Company, a Florida corporation, and Felix Equities, Incorporated, Appellees. Florida Power & Light Company, a Florida corporation, Appellant, v. Felix Equities Incorporated and State of Florida Department of Transportation, Appellees. Bellsouth Telecommunications, Inc., a foreign corporation, Appellant, v. Felix Equities Incorporated and State of Florida Department of Transportation, Appellees.
    Nos. 4D02-4623, 4D03-556, 4D03-600.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

      Pamela S. Leslie, General Counsel and Marianne A. Trussell, Deputy General Counsel, Tallahassee, for State of Florida Department of Transportation.
    Carol A. Gart, John R. Hargrove and W. Kent Brown of Gordon Hargrove & James, P.A., Fort Lauderdale, for BellSouth Telecommunications, Inc.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Cheryl Kempf, FPL-Law Division, Juno Beach, for Florida Power & Light Company.
   PER CURIAM.

In this consolidated appeal, the Florida Department of Transportation (“DOT”) appeals the final judgments entered for Florida Power & Light Company (“FPL”) and BellSouth Telecommunications, Inc. FPL and BellSouth appeal the trial court’s denial of motions requesting attorney’s fees. We affirm the final judgments entered for FPL and BellSouth on the ground that DOT did not timely seek a trial de novo. We reverse the order denying attorney’s fees to FPL and BellSouth and remand for calculation of those fees.

Felix Equities Incorporated, which did not participate in this consolidated appeal, sued DOT for breach of a contract for a road-widening project in St. Lucie County. Felix alleged that DOT’S failure “to cause the removal and/or relocation of conflicting utilities” led to increased expenses and construction delays. Because DOT did not own the utilities, DOT filed a third-party complaint against the owners of the utilities, FPL and BellSouth, seeking defense and indemnification as to any damages arising from Felix’s claims based on Utility Relocation Master Agreements.

The trial court ordered the parties to non-binding arbitration. The arbitration award stated the following:

Based upon the presentations and the supplementary documentation provided to the arbitrator at the hearing, the arbitrator finds as follows:
1. For Defendant STATE OF FLORIDA.
2. For Third Party Defendants FLORIDA POWER & LIGHT COMPANY and BELLSOUTH TELECOMMUNICATIONS, INC.

Felix then filed a timely motion for jury trial de novo under Florida Statutes section 44.103 (2002) and Florida Rule of Civil Procedure 1.820(h). DOT settled with Felix, and FPL and BellSouth sought entry of final judgment against DOT because DOT had not filed a motion for trial de novo within the twenty-day window prescribed by rule, making the arbitration award subject to finalization. DOT then filed a motion for trial de novo and asserted that Felix’s timely request for trial de novo encompassed DOT because any claims against DOT were actually claims against FPL and BellSouth based on the indemnification agreement.

The trial court considered the parties’ pleadings and entered final judgments based on the authority of Johnson v. Levine, 736 So.2d 1235 (Fla. 4th DCA 1999). The final judgments directed that DOT shall take nothing on its third-party actions and that FPL and BellSouth “shall go hence without day.” Following the entry of the final judgments, FPL and BellSouth filed motions for attorney’s fees under Florida Statutes section 768.79 (2002) and Florida Rule of Civil Procedure 1.442 based on offers of settlement made to DOT during the pendency of litigation. FPL and BellSouth each offered DOT $5,000 and the offers were not accepted by DOT. The trial court denied the motions for attorney’s fees finding that the arbitration award and the final judgments were not in favor of FPL and BellSouth and against DOT.

As for the trial de novo issue, we agree that Johnson controls the issue, and that the trial court did not err by entering final judgments finalizing the arbitration award against DOT based on its failure to timely request a trial de novo. However, because the controlling statute and rule do not clearly express the applicable procedures for requesting trial de novo in a multi-party case, we undertake to clarify our interpretation of that rule and statute in Johnson. In a multi-party case, each party seeking a trial de novo must file an individual timely request for trial de novo. As this Court wrote in Johnson:

Nothing in the structure and purpose of the statute purports to mandate an omnibus trial in a multi-issue, multi-party case where the adverse parties to discrete claims have failed to request a trial after non-binding arbitration.

736 So.2d at 1240.

Moving on to the attorney’s fees issue, section 768.79 provides for attorney’s fees as follows:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set costs and attorney’s fees against the award.

§ 768.79(1). In determining whether a party is entitled to fees on this basis, two prerequisites must be established: “(1) a party has served a demand or offer for judgment and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer.” Levine v. Harris, 791 So.2d 1175, 1177 (Fla. 4th DCA 2001) (citations omitted).

In the present case, it is undisputed that FPL and BellSouth served offers of settlement on DOT and that those offers were not accepted within thirty days. The second prerequisite is the point of contention on appeal. DOT asserts that the trial court properly found that no award or judgment was entered in favor of FPL and BellSouth, because the arbitrator would not have reached FPL and BellSouth’s liability based on indemnification after finding that DOT was not liable to Felix. FPL and BellSouth counter that the language of the arbitration award and final judgment clearly established that a decision was made in favor of FPL and Bell-South and against DOT.

We conclude that the arbitration award and final judgments by their language make it clear that an award was entered in favor of FPL and BellSouth and against DOT. Even though DOT was found not liable to Felix it was still entitled to its costs for defense of the arbitration against FPL and BellSouth, indicating that the arbitration award was against DOT and in favor of FPL and BellSouth. Additionally, because FPL and BellSouth were found not liable and no damages were awarded to DOT, the award was both one of no liability and was at least 25% less than the offers of settlement. Because the necessary prerequisites for an attorney’s fee award under section 768.79 have been established, we reverse the order denying attorney’s fees to FPL and BellSouth and remand for calculation of fees.

In sum, the final judgments against DOT are affirmed due to DOT’s failure to file an individual timely request for trial de novo, and the order denying attorney’s fees based on unaccepted offers of settlement is reversed because FPL and Bell-South prevailed and were found not liable to DOT.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for calculation of attorney’s fees.

FARMER, C.J., GUNTHER and MAY, JJ., concur.

      . “The arbitration decision shall be presented to the parties in writing. An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court. The decision shall not be made known to the judge who may preside over the case unless no request for trial de novo is made as herein provided or unless otherwise provided by law. If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.” § 44.103(5).
      The request window is set by Florida Rule of Civil Procedure 1.820(h): "Any party may file a motion for trial. If a motion for trial is not made within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision as provided by section 44.103(4), Florida Statutes.”


text:
    Angel TURIENZO a/k/a Miguel Gonzalez, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4421.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Affirmed. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).

WARNER, STEVENSON and GROSS, JJ., concur.