author: PER CURIAM. POLEN, C.J.

text:
    Bernardo GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4694.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2002.
    Opinion Granting Rehearing April 30, 2003.
    Carey Haughwout, Public' Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s motion to enforce a plea agreement, without prejudice to raising this issue in the civil commitment proceedings under sections 394.910-.931, Florida Statutes (1999) (the Jimmy Ryce Act). See Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000); Pearman v. State, 764 So.2d 739 (Fla. 4th DCA 2000).

POLEN, C.J., STONE, J., and DAVIDSON, LISA, Associate Judge, concur.

ON MOTION FOR REHEARING

POLEN, C.J.

We hereby grant appellee’s motion for rehearing as a result of the recent Florida Supreme Court opinion, Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002).

Bernardo Garcia brought this appeal contesting the state’s ability to file a petition to commit him under the Jimmy Ryce Act, section 394.910-931, Florida Statutes (1999), in light of a previous plea agreement entered between Garcia and the State. The trial court denied Garcia’s motion to specifically enforce the plea and this court has repeatedly affirmed that decision.

In our previous opinion we noted that we affirmed the decision of the trial court without prejudice which would allow Garcia to raise this claim at the final commitment proceeding. See Garcia v. State, 28 Fla. L. Weekly D194 (Fla. 4th DCA Jan.8, 2003). However, since the issuance of our opinion, the Florida Supreme Court has issued an opinion in Murray v. Regier, 27 Fla. L. Weekly S1008 (Dec. 5, 2002). In Murray, the supreme court noted that “any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.” Id. As a result, we now affirm the decision of the trial court and recognize that based on Murray, Garcia’s claim that the state breached his plea agreement by filing the Jimmy Ryce petition is without merit.

STONE, J., and DAVIDSON, LISA, Associate Judge, concur.


source: Caselaw Access Project

author: NESBITT, Senior Judge. COPE, J.

license: Public Domain

text:
    STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES n/k/a Department of Children and Families, Appellant, v. T.R. and Y.H., by and through their guardian, Brenda SHAPIRO, Appellees.
    No. 3D99-3133.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2002.
    Rehearing Denied July 15, 2003.
    John G. Crabtree, Key Biscayne; Papy, Weissenborn, Poole & Vraspir, and Sheridan K. Weissenborn, Coral Gables, for appellant.
    Karen Gievers, (Tallahassee); Roy Was-son, Miami, for appellees.
    Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

Two girls who had been in the State’s foster care program for the past thirteen years, T.R., and Y.H., brought suit against the Department of Health and Rehabilitative Services(HRS), now known as the Department of Children and Famihes(DCF), for negligently failing to protect them from abusive doctors, foster parents, and other third parties, and for negligently failing to arrange for their adoption. The girls had been abandoned by their mother in 1986 and placed under the Department’s care. From that time until the time of trial in 1999, the girls were in the custody of the State pursuant to an adjudication of dependency.

Hearing the girls’ claims, including allegations that they had been sexually and physically abused, raped, burned, and improperly medicated, a jury ultimately awarded T.R. $2,080,000, and Y.H. $2,345,000. The Department appeals that verdict. The girls cross appeal, claiming that the trial court erred in failing to allow demonstrative exhibit costs.

We agree that the girls are entitled to recover for the damages suffered as a result of the Department’s negligence in certain operational decisions made in the girls’ care and supervision. See Department of Health and Rehab. Servs. v. Yamuni, 529 So.2d 258 (Fla.1988). However, we find that several erroneous evidentiary rulings, as well as an apparent misinterpretation of section 768.28(5), Florida Statutes (2000), mandate reversal and remand for retrial. We also reverse the order on cross appeal, which should be reconsidered at the conclusion of retrial.

I. The trial court failed to distinguish planning from operational type claims.

A legion of cases point to the planning versus operational distinction in considering application of the doctrine of sovereign immunity. That distinction was fully explained in Department of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 911-13 (Fla.1995), where the court concluded that the decisions of HRS regarding the placement of a juvenile and rehabilitative services provided for a juvenile constituted performance of a discretionary governmental function for which the government was immune. Explaining its analysis the Supreme Court observed:

At the outset, we distinguish the HRS function at issue, the allocation of services, from the actions at issue in Department of Health & Rehab. Servs. v. Whaley, 574 So.2d 100 (Fla.1991), and Department of Health & Rehab. Servs. v. Yamuni, 529 So.2d 258 (Fla.1988). Both Whaley and Yamuni involved HRS caseworker-level decisions concerning the physical safety of children within the agency’s protective custody which did not implicate any “discretionary planning or judgment function” as contemplated by Trianon. [Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912 (Fla.1985) ] Neither case involved discretionary calls with regard to choice of services. Whaley involved the physical placement of a child in a specific room in an HRS detention facility known by HRS to be occupied by dangerous juveniles. We held that placing the child in such danger was an operational function not protected by sovereign immunity. 574 So.2d at 101. In Yamuni, we held that HRS’s negligent failure to adequately protect a child from further physical abuse also occurred on an operational level. 529 So.2d at 260. These operational level decisions exposing children to specific dangers should be distinguished from the broad discretionary authority vested by the legislature in HRS to determine an appropriate course of remedial treatment for the children that come within its custody through dependency and delinquency proceedings.

Id. at 913. Permitting a jury’s consideration of evidence of both planning and operational activities when deciding a plaintiffs claim of Department negligence mandates reversal and remand for retrial. See Lee v. Dept. of Health and Rehab. Servs., 698 So.2d 1194 (Fla.1997). This is exactly the error the trial court made in the instant case.

A review of the record demonstrates that, over defense objection, the trial judge permitted the jury’s consideration of evidence of both planning and operational activities. For example, the court permitted evidence of DCF’s alleged negligence in spending $317,000,000 in Dade County and not having sufficient case workers but having too many administrators. The court also permitted evidence of the Department’s actions in allowing a 40% caseworker turnover rate, as well as the Department’s formation of the Family Service Planning Team Program, which plaintiffs argued did not best utilize Department resources. Thus, over the Department’s objection, in addition to the evidence of negligence properly before the jury, the trial judge allowed the presentation of evidence going to planning level decisions. As was the case in Lee, the admission of this later evidence requires reversal.

II. Interpreting Section 768.28(5).

The next point mandating reversal is the trial court’s misinterpretation of section 768.28(5), Florida Statutes (2000). The trial court’s determination to have the jury decide the number of “incidents” of negligence reflects the court’s apparent conclusion that plaintiffs could recover $100,000 per identified act of Department negligence. As previously stated, section 768.28(5) provides a limit for how much a plaintiff can recover from a government agency. The plaintiff may then seek the balance of his judgment from the Florida Legislature. See Gerard v. Dept. of Transp., 472 So.2d 1170, 1172-73 (Fla.1985). Just how section 768.28(5) should be interpreted is in question. That section provides:

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above. The limitations of Lability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974. (Emphasis added.)

Comer v. City of Palm Bay, 147 F.Supp.2d 1292 (M.D.Fla.2001), outlines two conflicting views of the proper interpretation to be given this section. Comer explains:

[Plaintiff] alleges that because the negligent supervision claim underlying his $200,000 judgment comprised numerous discrete incidents and occurrences, he is not subject to the § 768.28(5)’s $100,000 cap with respect to his entire judgment, but rather that each incident or occurrence of negligence enjoys its own separate $100,000 cap. Accordingly (so the argument goes), Comer need only have proved “two separate incidents of negligent supervision to recover the entire $200,000 judgment.” Docket No. 161 at 2. This argument would be persuasive if the $100,000 cap in § 768.28(5) were pegged to “incidents and occurrences” rather than “claim[s] or judgment[s].” Unfortunately for Comer this is not the case. Comer proved his single claim of negligent supervision through various incidents, resulting in one judgment.
In support of his novel reading of § 768.28(5), Comer cites Pierce v. Town of Hastings, 509 So.2d 1134 (Fla. 5th D.C.A.1987). In Pierce, the plaintiff pled four separate counts in his complaint, but was not allowed to present special interrogatories to the jury. The jury returned a single verdict in the .amount of $65,000, which was in excess of the lower (then $50,000) cap in § 768.28(5). The trial court limited Pierce’s judicial (as opposed to legislative) recovery to $50,000. The appellate court reversed, stating that “[t]he finding by the trial court that there was only one incident because both arrests arose out of enforcement of the same ordinance is patently incorrect as a matter of law.” Pierce, 509 So.2d at 1136. The Pierce court’s reasoning rests on the erroneous assumption that even if Pierce had presented multiple claims to the jury, he would have been entitled to the benefit of separate § 768.28(5) caps with respect to each one of his multiple underlying claims rather than a single cap with respect [to] the resulting judgment. This is simply an incorrect reading of § 768.28(5). (Footnote omitted.)

Id. at 1299. Thus, Comer concludes that a single plaintiff will always have at most one claim of $100,000. Pierce authorizes consideration of the number of incidents. As Comer, 147 F.Supp.2d at 1299 n. 7, explains:

• The Pierce court’s confusion might have been due in part to § 768.28(5)’s reference to a $200,000 cap on “all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence” [the “$200,000 clause”]. However, the $200,000 clause does not apply to a case (like Pierce) involving a single claim and multiple incidents or occurrences. Rather, it applies only to the converse case — multiple claims arising out of a single incident or occurrence. See, e.g., Rumbough v. City of Tampa, 403 So.2d 1139 (Fla.2d D.C.A.1981) (multiple homeowners sued a city over the operation of a single landfill).

Our task is not to set out a rule for every eventuality. Rather, we must apply the statute to the instant case. Here, for the purposes of considering the $100,000 cap of section 768.28(5), each girl had a single claim for the Department’s negligence while under its care. The girls may certainly seek recovery for all injuries suffered as a result of the Department’s negligence in the performance of its operational level decisions. However, the fact that the behavior at issue spanned a number of years and included a number of different actions by a number of state employees does not change the fact that the claims in full amounted to no more than each girl’s single claim against the Department for the injuries she suffered while under its supervision. Therefore, the single statutory cap of $100,000 per girl must apply. Again, this is not to say that the girls may not seek their full recovery, but merely that the portion of the judgment exceeding $100,000 per girl must be sought from the Legislature. See § 768.28(5); Gerard, 472 So.2d at 1173.

We believe the reading of the statute advocated by the plaintiffs could lead to the absurd result of making the statutory cap prescribed by section 768.28(5) meaningless. For example, such a reading would allow a plaintiff, after having been operated on, to accuse a state hospital surgeon of using the wrong medicine, performing some procedure too slowly, and closing in an improper manner, and as such performing three separate “incidents” of negligence, thereby subjecting the state hospital to three separate $100,000 caps. Moreover, in the weeks that followed, if this patient’s doctors or nurses did several more things in a negligent fashion, the plaintiff could proceed to tack on a few more incidents, and take advantage of a few more $100,000 statutory caps. We do not find such an interpretation of section 768.28(5) to be either reasonable or functional.

Based on the jury’s identification of eight incidents of negligence, the result, as argued by the plaintiffs, is to provide for the recovery of $800,000 from the Department, before proceeding to the Legislature. While we do not doubt the severity of the girls’ injuries, their recovery must be within the bounds as set out by the Florida legislature.

III. Conclusion

Two distinct errors mandate reversal. First, the jury was allowed to hear and consider matters for which recovery was completely barred by the doctrine of sovereign immunity. Second, acting under the misapprehension that the plaintiffs could recover for each “incident” identified, the jury was instructed to identify the number of incidents of negligence which occurred. What should have been the focus of the court’s inquiry was the operational level decisions which exposed the girls to specific dangers. Because the damages awarded in the instant case may have been based in part on evidence of the Department’s planning level decisions, the jury’s award cannot stand.

On remand, it will be the jury’s task, guided by the trial judge, to determine the nature and extent of any damages these girls suffered as a result of the Department’s operational level decisions. Each of the two girls may recover the statutory maximum of $100,000 from the Department and seek the balance of the jury’s award from the Legislature. Reversed and remanded.

GERSTEN, J., concurs.

COPE, J.

(concurring).

I entirely agree with Judge Nesbitt’s opinion. I write separately to address a procedural point.

The trial court denied the request of the Department of Health and Rehabilitative Services for an interrogatory verdict, and submitted the case to the jury on a general verdict form.

On this appeal, the Department appears to take the position that where a trial court erroneously denies a request for an interrogatory verdict, it follows that the aggrieved party is entitled to an automatic reversal. The Department reasons that in the absence of an interrogatory verdict, the Department cannot address the claims of error with particularity. The law is otherwise.

The requirement for an interrogatory verdict is a means to an end, and not an end in itself. Even where the request for an interrogatory verdict has been wrongly denied, it nonetheless is incumbent on the appellant to show that there has been harmful error in the case (apart from the failure to grant the request for an interrogatory verdict).

In Ryan v. Atlantic Fertilizer & Chemical Co., 515 So.2d 324 (Fla. 3d DCA 1987), the trial court had denied a request for an interrogatory verdict. This court said:

Ryan’s two-count counterclaim, breach of implied warranty of fitness for a particular purpose and negligence, substantiated Atlantic’s request for a special verdict. It was error to refuse and to provide only a general verdict form. Where the court refuses a request for a special verdict and the evidence is insufficient on one theory of liability, a new trial is required. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978). In Colonial Stores, the court held:
Had petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts.

515 So.2d at 328 (emphasis added; citation omitted); see also Barbour v. Brinker Florida, Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). See generally Ryan Patrick Phair, Appellate Review of Multi-Claim General Verdicts: The Life and Premature Death of the Baldwin Principle, 4 J.App. Prac. & Process 89 (2002).

In the present case the Department has demonstrated harmful error as spelled out in the majority opinion, and for that reason we have ordered a new trial. But the failure to grant an interrogatory verdict is not a ground for a new trial unless there is a showing of harm.

      . In Lee, a mentally retarded woman, D.L., became pregnant while in HRS custody. Her guardian brought an action against HRS, asserting the breach of its duty of care by failing to use reasonable care in D.L’s oversight and supervision. The claimant argued that HRS was negligent in establishing the level of supervision in the facility to which D.L. was assigned, particularly because it implemented a 1:8 and a 1:16 ratio of employee for patient care rather than the 1:2 ratio required by state administrative rules. Second, she argued that HRS employees were negligent in failing to properly follow rules and carry out their assigned duties. This claim was supported by evidence that patients had been left at a dance without proper supervision and that an HRS employee had failed to file a incident report, despite having witnessed the inappropriate touching of D.L. by another patient.
      The court decided recovery was barred as to the first claim, observing that "[t]he record clearly establishes that the claimant was arguing against the interpretation and implementation of rules governing the supervision of patients and the normalization policy, which are immune discretionary policy-level functions.” Lee, 698 So.2d at 1198. However, the claim of negligence on the part of HRS employees in supervising patients was not barred.

      . We acknowledge that dicta in School Board of Broward County v. Greene, 739 So.2d 668 (Fla. 4th DCA 1999), might indicate that court’s analysis of section 768.28(5), may be different than our own. In Greene, a teacher brought an action against a school board for negligence and invasion of privacy after the school board released derogatory statements about the teacher. The Fourth District concluded that the teacher’s award of damages from the school board for releasing derogatory information about the teacher was limited to the recovery for one occurrence under the sovereign immunity statute, rather than recovery for two occurrences, even though the teacher prevailed on his claims of both negligence and invasion of privacy. However the court observed that while the plaintiff asserted that there were two occurrences, i.e., placing the information in his file, and releasing the information to the public, neither the jury instructions nor the verdict form presented the issue of placing the information in the personnel file to the jury. Thus, the court left open the possibility of a different result on proper allegation and proof.

      . Contrary to the DCF’s position, we agree with the trial court's conclusion that the evidence of negligence from the years 1986 to 1992 was not barred by the Statute of Limitations. See Drake v. Island Cmty. Church, Inc., 462 So.2d 1142, 1144 (Fla. 3d DCA 1984).

      . Prior to this opinion the case was styled under the name of “Two Forgotten Children ...” For obvious reasons, such styling was employed to create sympathy for the children. This was inappropriate. Every trial attorney knows that a jury is instructed by the trial judge before the jury retires that "you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party.” Fla. Std. Jury Instr. (Civ.) 7.1. For this reason, the style of this case has been properly changed to the children's initials followed by their guardian. Of course, the appellees' attorney is free to present such an argument during summation, so long as there is reasonable evidence to support it.


author: WELLS, J.

text:
    MAGNETIC IMAGING SYSTEMS, I, LTD., Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D02-888.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Rehearing En Banc and Clarification Denied May 28 and July 9, 2003.

      John G. Crabtree, Key Biscayne; Zeber-sky & Payne and Edward H. Zebersky, Hollywood; Keith Hope, Tallahassee; Sheftall & Torres and Brian Torres, Miami, for appellant.
    Weinstein, Bavly & Moon and Alvin N. Weinstein; Arthur J. Morburger, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
   WELLS, J.

Magnetic Imaging Systems I, Ltd. (“Magnetic”) appeals a final summary judgment in favor of Prudential Property & Casualty Insurance Company (“Prudential”) in which the lower court found that Magnetic was not entitled to a fee award. We disagree and reverse.

Magnetic is a medical service provider that accepts assignment of PIP insurance benefits from its patients. As the assignee of such benefits, Magnetic is entitled to receive PIP payments directly from insurers. On April 18, 1995, Magnetic filed suit against Prudential Insurance Corporation of America (“Prudential of America”), alleging that the insurer had regularly failed to pay interest on late-paid PIP benefits as required by sections 627.736(4)(b) and (c), Florida Statutes (1995).

Magnetic brought suit as the assignee of one of its patients and, as a putative class representative, sought to certify a class consisting of two subgroups: (1) individual insureds to whom interest on late PIP benefits had not been paid; and (2) medical-provider assignees (like itself) to which interest on late PIP benefits had not been paid. After a little more than a year of litigation, Prudential of America moved for summary judgment, arguing that Prudential, not Prudential of America, had issued the insurance policy involved in the action, and that Prudential had timely paid the patient-assignor’s benefits as mandated by section 627.736(4)(b). Rather than ruling on the motion for summary judgment, the lower court permitted Magnetic to amend its complaint to substitute Prudential for Prudential of America and to substitute a different patient-assignor, Felix Gentile (whose PIP benefits presumably had not been timely paid), for the patient-assignor named in the original complaint.

Upon substitution, Prudential promptly moved to compel arbitration claiming that disputes “between the insurer and any person providing medical services ... [who] has agreed to accept assignment of [PIP] benefits” had to be arbitrated under section 627.736(5), Florida Statutes (1995). The request was granted; but, before arbitration could begin, two things occurred. First, in August 1998, Prudential tendered a check for $22.12, the amount purportedly due as interest on Mr. Gentile’s late-paid benefits. Second, in February 2000, the Florida Supreme Court held that the provision pursuant to which the action had been referred to arbitration, section 627.736(5), was unconstitutional. See Nationwide Mut. Fire Ins. v. Pinnacle Med., Inc., 753 So.2d 55 (Fla.2000). Consequently, and at Magnetic’s request, the trial court’s previous orders compelling arbitration were vacated, and the matter was returned to circuit court.

Following a skirmish over whether the action should be dismissed for lack of prosecution while the arbitration was pending, Prudential moved for summary judgment claiming that the forms executed by Magnetic’s assignor did not constitute a valid assignment. Prudential also argued that its tender of payment extinguished the entire claim.

On February 27, 2002, the lower court entered final summary judgment in Prudential’s favor, concluding that the action should have been dismissed following Prudential’s tender of interest due on the late-paid benefits without provision for payment of Magnetic’s attorney’s fees, because: (1) Magnetic had inappropriately sought to litigate rather than arbitrate as mandated by section 627.736(5); and (2) Magnetic had incurred no fees between the time arbitration was ordered and the time payment was tendered. For the following reasons, we disagree and reverse.

In Central Magnetic Imaging v. State Farm Mut. Auto. Ins. Co., 745 So.2d 405, 407 (Fla. 3d DCA 1999), this court held that an insurer’s payment of PIP benefits demanded by a medical provider assignee following commencement of arbitration constituted a settlement which “is equivalent to a confession of judgment,” entitling the assignee to an award of attorney’s fees as the prevailing party under section 627.736(5). This court also rejected the notion that an insurer could escape a fee award under 627.736(5) by holding out until an arbitration demand is made, and then paying benefits before action is taken in the arbitration proceeding:

An insurer cannot escape the penalty of attorney’s fees simply by ignoring an outstanding medical bill, paying it when an arbitration demand is made and then arguing that arbitration was not held because full payment of benefits was subsequently made.

Id. (citation omitted).

The fact that little occurred following referral of this case to arbitration did not, therefore, negate Magnetic’s entitlement to a fee award. Moreover, Magnetic’s entitlement to a fee award was not limited to recovering for services rendered only after arbitration was ordered. See Criterion Ins. Co. v. Gutierrez, 319 So.2d 70 (Fla. 3d DCA 1975) (affirming an award of fees for services incurred both before an action to recover PIP benefits was filed and after an offer of judgment was made). Accordingly, Prudential’s tender of payment entitled Magnetic to a fee award.

The Florida Supreme Court’s invalidation of section 627.736(5), and its prevailing party fee provision, does not change this result. Section 627.428(1), Florida Statutes (2002), provides that in any dispute “which leads to judgment against the insurer in favor of the insured, attorney’s fees shall be awarded to the insured.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000). As the Florida Supreme Court has explained, current PIP law (as evidenced by sections 627.428(1) and 627.736(8)) “is outcome-oriented. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney’s fees.” Id. at 684. Where an insurer makes payment of a claim after suit is filed, but before a judgment is rendered, such payment operates as a confession of judgment, entitling the insured to an attorney’s fee award. See id. at 684-85. These general principles apply not only to disputes between insurers and their insureds, but also to disputes between insurers and those like Magnetic, to whom PIP benefits have been assigned. See § 627.736(8), Fla. Stat. (2001) (confirming that section 627.428 applies to disputes “between an assignee of an insured’s rights and the insurer”); Superior Ins. Co. v. Libert, 776 So.2d 360, 365-66 (Fla. 5th DCA 2001)(finding that an assignee of an insured’s PIP benefits was entitled to attorney’s fees under section 627.428(1), where the insurer paid the benefits after suit was filed); see also Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977)(noting that attorney’s fees are available under section 627.428(1) to assignees of an insured). Magnetic was entitled to a fee award.

We also find no merit in Prudential’s argument that the forms executed by Magnetic’s assignor did not constitute a valid assignment of benefits. This is especially so since Prudential obtained an order compelling Magnetic, as assignee, to arbitrate by affirmatively alleging that arbitration was mandatory “between the insurer and any person providing medical services ... [who] has agreed to accept assignment of [PIP] benefits.”

Accordingly, the summary judgment denying Magnetic a fee award is reversed and this cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Sections 627.736(4)(b) and (c), Florida Statutes (1995), in pertinent part provided:
      (b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same....
      (c) All overdue payments shall bear simple interest at the rate of 10 percent per year.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    INVO FLORIDA, INC., a Florida Corporation, Appellant, v. SOMERSET VENTURER, INC.; C & L Somerset Lakes, Inc., et al., Appellees.
    Nos. 3D01-3056, 3D02-1016.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Rehearing, Rehearing En Banc and Certification of Conflict Denied June 11, 2003.
    Hoffman & Hertzig and Carl H. Hoffman, Coral Gables, for appellant.
    Goldstein, Tanen & Trench, Miami; Elizabeth K. Russo, Miami; Yelen & Yelen and Jan A. Yelen, Coral Gables, for appel-lees.
    Before SCHWARTZ, C.J., and LEVY and GREEN, JJ.
   PER CURIAM.

Affirmed.

LEVY and GREEN, JJ., concur.

SCHWARTZ, Chief Judge

(dissenting).

I do not agree that the movants-defen-dants satisfied their burden of conclusively demonstrating the absence of a genuine issue concerning the dispositive question on appeal — -whether the plaintiff was financially able to perform in accordance with the terms of the offer as to which it had the right of first refusal. See Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So.2d 705, 708-709 (Fla. 4th DCA 1985). Therefore, I would reverse the summary judgment below.


author: PER CURIAM.

text:
    ASSURANCEFORENINGEN SKULD (GJENSIDIG), and Skuld Mutual Protection and Indemnity Association (Bermuda), Ltd., Appellants, v. APOLLO SHIP CHANDLERS, INC., Sun Holiday Cruise Services, Inc., Discovery Sun Partnership, and Discovery Dawn Partnership, Appellees.
    Nos. 3D02-2385, 3D02-2245.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Rehearing, Rehearing En Banc and Certification Denied June 18, 2003.

      Hill, Betts & Nash, and Frank H. Loom-is; Akerman Senterfitt, and Nina K. Brown, Miami, Anthony J. Cuva, Tampa, Jennifer Cohen Glasser and Antonio D. Morin, for appellants.
    Schulte & Bisbing, and John H. Schulte, Miami, and Stephen S. Bodden, for appel-lees.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Assuranceforeningen Skuld (Gjensidig) and Skuld Mutual Protection and Indemnity Association (Bermuda), Ltd. (“Skuld”) appeal a trial court’s order staying arbitration as well as a trial court’s order denying Skuld’s motion to compel arbitration. We reverse because the arbitration agreement is enforceable under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.

Skuld is a protection and indemnity (“P & I”) club which provides P & I insurance coverage to ship owners and charterers. Appellees, Apollo Ship Chandlers, Inc., Sun Holiday Cruise Services Inc., Discovery Sun Partnership and Discovery Dawn Partnership (collectively “Apollo”), as the insured under a Skuld policy, sought coverage of a maritime claim filed by one of its former employees, Evaristo Alvarez. Skuld disclaimed coverage of Mr. Alvarez’s claim and referred the resultant coverage dispute to arbitration in Oslo, Norway, pursuant to arbitration clauses contained in the P & I policies.

Both the employee and Apollo filed cross-claims against Skuld under the P & I policies after Skuld’s refusal to cover the claims. Thereafter, Apollo moved to stay the pending arbitration in Oslo and Skuld moved to compel arbitration in Oslo, pursuant to the parties’ agreements. The trial court granted Apollo’s motion to stay the Oslo arbitration and denied Skuld’s motion to compel arbitration. This appeal followed.

Skuld asserts that arbitration should be compelled because Florida law does not apply to the dispute and the arbitration agreement is enforceable under the FAA and governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (“Convention”), adopted by and incorporated as Chapter Two of the Federal Arbitration Act, 9 U.S.C. §§ 201-208.

Apollo contends that the dispute is subject to Florida law rather than the FAA; and further contends that under Florida law, insurance coverage disputes cannot be arbitrated. See State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285 (Fla.1996)(insurance disputes are to be decided by the courts rather than arbitrators). Apollo also contends that the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. supports this argument. We disagree.

Under the McCarran-Ferguson Act, a federal provision which regulates insurance is reversely preempted or superced-ed by any conflicting state provision. Although federal legislation is normally supreme to state legislation, the McCar-ran-Ferguson Act provides that state legislation takes precedence over federal legislation for the purpose of regulating the business of insurance. The McCar-ran-Ferguson Act does not apply in the present case because the parties’ dispute involves foreign commerce. See Antillean Marine Shipping Corp. v. Through Transp. Mut. Ins., Ltd., No. 02-22196, 2008 A.M.C. 251 (S.D.Fla. October 31, 2002).

In Antillean, the insured argued that arbitration could not be compelled because, pursuant to the McCarran-Fer-guson Act, Florida law reversely preempts the FAA and the Convention. The Southern District Court of Florida rejected the insured’s argument and held:

[Rjeverse preemption under the McCar-ran-Ferguson Act, 15, U.S.C. § 1011, et. seq. does not apply here as the McCar-ran-Ferguson Act does not apply to international insurance contracts made under the Convention.... Accordingly, the Court finds that the McCarran-Fergu-son Act does not provide the basis for which to apply Florida law to preclude arbitration in this case.

Antillean Marine Shipping Corp., No. 02-22196 at * 6-7. The McCarran-Ferguson Act does not apply to contracts made under the Convention because the Act was intended to apply only to interstate commerce, and not foreign commerce. See McDermott Int’l, Inc. v. Underwriters at Lloyd’s London Subscribing to Memorandum of Ins. No. 104207, 1992 WL 37695 (E.D.La.1992); Matter of an Arbitration Between England Ship Owners Mut. Ins. Ass’n (Luxembourg) and American Marine Corp., 1992 WL 37700 (E.D.La.1992). As this case involves foreign commerce rather than interstate commerce, the McCarran-Ferguson Act does not provide the basis for which to apply Florida law to preclude arbitration.

Having determined that Florida law does not apply, we now look to resolve whether the arbitration agreement is enforceable under the FAA. There are four questions which a court must answer to determine whether a dispute is subject to the FAA and the Convention:

(1) is there an agreement in writing to arbitrate the subject dispute?; (2) does the agreement provide for arbitration in the territory of a signatory of the Convention?; (3) does the agreement arise out of a legal relationship, whether contractual or not, which is considered as commercial?; and (4) is a party to the agreement not an American citizen, or does the commercial relationship have some reasonable relation with one or more foreign states?

Benefit Ass’n Int’l, Inc., v. Mount Sinai Comprehensive Cancer Ctr., 816 So.2d 164 (Fla. 3d DCA 2002); see Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co.(Pemex), 767 F.2d 1140 (6th Cir.1985); Ledee v. Ceramiche Ragno, 684 F.2d 184, 186-7 (1st Cir.1982). If all four elements are satisfied, then the contract is subject to the provisions of the FAA and a court must order arbitration.

The written agreement between Skuld and Apollo contains a provision which dictates that any disputes between the parties would be arbitrated in Oslo, Norway, a signatory to the Convention. In addition, the agreement arose out of a legal, commercial relationship and one of the parties, Skuld, is not an American citizen. Thus, each of the four elements is satisfied and the P & I policies are subject to both the FAA and the Convention. See Benefit Ass’n Int’l, Inc., 816 So.2d at 168.

Accordingly, the FAA, rather than Florida law controls this case. “Florida courts must enforce arbitration agreements that are valid and enforceable under the Federal Arbitration Act, even where, as here, the arbitration agreement would not be enforceable under Florida law.” See Jensen v. Rice, 809 So.2d 895 (Fla. 3d DCA 2002) (citations omitted).

Since the FAA is not superceded by Florida law, the trial court erred in denying Skuld’s motion to compel arbitration and in granting Apollo’s motion to stay arbitration. We reverse the order below based upon our finding that the agreement is enforceable under the FAA.

Reversed.

      . Mr. Alvarez’s claims against Skuld and Apollo are not at issue in this appeal and sure still pending in the trial court.


author: LEVY, Judge. SCHWARTZ, Chief Judge

text:
    Pedro ORTEGA, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D02-2436.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Rehearing and Certification of Conflict Denied June 11, 2003.

      Stephens, Lynn, Klein, La Cava, Hoffman & Puya and Marlene S. Reiss, Miami; John H. Ruiz, Miami, for petitioner.
    Johnson, Letter & Belsky and Eric G. Belsky, Fort Lauderdale, for respondent.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   LEVY, Judge.

Petitioner Pedro Ortega filed a Petition for Writ of Certiorari, seeking to quash an opinion of the Appellate Division of the Circuit Court which affirmed a directed verdict of the County Court entered in favor of Respondent United Automobile Insurance Company (United Auto). We grant the Petition, quash the opinion of the Appellate Division of the Circuit Court, and remand for further proceedings consistent with this Opinion.

Ortega suffered injuries in a May 1999 automobile accident and sought personal injury protection (PIP) benefits from United Auto. In August 1999, United Auto suspended benefits based on the opinion of its IME physician. Ortega subsequently filed an action in the County Court. At trial and on appeal, United Auto contended that, by virtue of Section 627.736(5)(d), Florida Statutes (Supp.1998), Ortega was required to prove, as part of his prima facie case, that his medical providers were licensed to perform the services that they rendered. Ortega contended that the issue of licensure of his providers would be more appropriately raised as an affirmative defense by United Auto. The trial court agreed with United Auto and directed a verdict in favor of United Auto because Ortega failed to introduce any evidence that his medical providers possessed the valid licenses required to perform their services. On appeal to the Appellate Division of the Circuit Court, the court affirmed the order entered by the County Court. This Petition follows.

The proper inquiry under certio-rari review is whether the Circuit Court afforded procedural due process and whether it observed the essential requirements of the law. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (citing Haines City Community Development v. Heggs, 668 So.2d 523, 525 (Fla.1995)). Certiorari jurisdiction is to be sparingly invoked in a situation where the District Court of Appeal is asked to review a decision of the Circuit Court sitting in its appellate capacity. See State v. Miketa, 824 So.2d 970, 973 (Fla. 3d DCA 2002) (citing Ivey, 774 So.2d at 682-83). As stated in Ivey, the precedent cases “suggest that the district court should examine the seriousness of the error and use its discretion to correct an error ‘only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice.’ ” Ivey, 774 So.2d at 682 (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997)).

In the instant case, Ortega contends that the Circuit Court departed from the essential requirements of the law when (1) it determined that Section 627.736(5)(d), Florida Statutes (Supp.1998), required an additional statement of medical providers’ licensure in addition to the other items required to provide notice to the insurer; and (2) based on the foregoing determination, concluded that Ortega was required to prove, as part of his prima facie case, that his medical providers were licensed to perform the services that they rendered. We agree with Ortega. ■ Section 627.736(5)(d), Florida Statutes (Supp. 1998), provides as follows:

All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration 1500 form, TJB 92 forms, or any other standard form approved by the department for purposes of this paragraph.
All billings for such services shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) in the year in which services are rendered. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph.

This section contains two affirmative requirements. First, the statements and bills for the medical services rendered are required to be submitted on a Health Care Finance Administration 1500 form, UB 92 forms, or another standard form approved by the Department of Insurance. Second, those bills are required, to the extent applicable, to follow the Physicians’ Current Procedural Terminology (CPT) in the year in which the services are rendered. While Section 627.736(5)(d) contains no other affirmative requirements, it states that no such statement for medical services may include charges performed by a person or entity who did not possess the valid licenses to perform such services. On appeal, the Circuit Court interpreted the foregoing to impose a third affirmative requirement — that “the notice must contain in addition to the bills some statement that the providers had the required licenses.” Ortega v. United Auto. Ins. Co., No. 01-234 AP (Fla. 11th Cir.Ct. Aug. 13, 2002). Given that Ortega did not have proof that the medical bills were accompanied by a statement that the providers had the required licenses, the Circuit Court affirmed the directed verdict on the basis that Ortega failed to provide a legally sufficient notice, considered by the Circuit Court as a condition precedent to recovery of benefits, to United Auto.

The Circuit Court, sitting in its appellate capacity, departed from the essential requirements of the law because it granted a directed verdict to United Auto which was premised upon non-compliance with a non-existent statutory requirement. That is, the Circuit Court applied the incorrect law in the instant case. “The Legislature’s intent must be determined primarily from the language of the statute.” Rollins v. Pizzarelli 761 So.2d 294, 297 (Fla.2000) (citing Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992)). When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning. See Rollins, 761 So.2d at 294 (citations omitted). Here, the language of Section 627.735(5)(d), Florida Statutes (Supp.1998), makes it clear that the affirmative requirements for the statutory notice pertain to the form of the bill completed by the medical providers, and the terminology utilized to describe the services listed on the bill. The statute does not contain an affirmative requirement that an additional statement of licensure be appended to the bills. Rather, the statute only declares that the statement of medical services cannot contain charges for services performed by unlicensed individuals or entities. This is a far cry from requiring substantiation of a medical provider’s licensure. Thus, the Circuit Court departed from the essential requirements of the law by affirming the directed verdict entered in favor of United Auto based upon Ortega’s failure to provide evidence of compliance with a statutory requirement that simply does not exist. That being said, given that “[t]he burden is clearly upon the insurer to authenticate the [PIP] claim within the statutory time period,” we hold that the fact that a provider is not licensed is more appropriately raised as an affirmative defense by the insurer. Fortune Ins. Co. v. Pacheco, 695 So.2d 394, 395 (Fla. 3d DCA 1997) (citing Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502, 502 (Fla. 1st DCA 1974)). Accordingly, the opinion of the Circuit Court is quashed and this cause is remanded for further proceedings consistent with this Opinion.

Certiorari granted, opinion quashed.

WELLS, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

I agree with the result, but do so on grounds not directly related to the substantive issue discussed by the court. In my judgment, the carrier waived or was estopped to assert the alleged defect in the plaintiffs case (which was easily correctable merely by showing what should anyway be presumed: that the person who treated him was licensed to do so) by failing to raise the issue timely and properly in the trial court. See Fla.R.Civ.P. 1.120(c); Sobel v. Jefferson Stores, Inc., 459 So.2d 433 (Fla. 3d DCA 1984).

      . In Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla.1995), the Florida Supreme Court concluded that the term "applied the correct law" is synonymous with "observing the essential requirements of the law.”

      . Under the current statute, this provision is found in Section 627.736(5)(e), Florida Statutes.


text:
    Francisco Perez VIRUET, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2794.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    Rehearing Denied June 6, 2003.

      Francisco Perez Viruet, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002); Krischer v. Faris, 838 So.2d 600 (Fla. 4th DCA Feb.12, 2003).

THOMPSON, C.J., SAWAYA and MONACO, JJ., concur.


author:
RAMIREZ, J.
      GREEN, J.

text:
    Jorge ARELLANO and Ana Laura Arellano, Appellants, v. Lisette Arellano BISSON and Lower Randolph J. Bisson, Appellees.
    No. 3D02-91.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Rehearing, Rehearing En Banc and Clarification Denied June 25, 2003.

      Linda L. Carroll, Miami; and Gary W. Pollack,Coral Gables, for appellants.
    Fulvia A. Morris, Coral Gables, for ap-pellees.
    Before COPE, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Jorge Arellano and Ana Laura Arellano, defendants at the trial level, appeal an order denying their motion for proceedings supplementary to execution and to implead a third party. We affirm the decision of the circuit court because it would be unjust and inequitable to allow the appellants, as judgment creditors, to defeat the validity of a spendthrift trust.

Appellees Lisette Arellano Bisson and Randolph J. Bisson, plaintiffs at the trial level, brought suit against a number of defendants, including the appellants and Vilma Schueg Ramirez de Arellano. The appellants are Lisette Arellano Bisson’s brother and sister, respectively, and Vilma Schueg Ramirez de Arellano is the siblings’ mother. In her complaint, Lisette Arellano Bisson alleged that she was an intended recipient of a revocable trust which the defendants, among other individuals, converted into an irrevocable trust through the use of trickery and deceit upon Vilma Schueg Ramirez de Arellano who was the settlor of the revocable trust. The irrevocable trust contains a spendthrift provision which states that:

No beneficiary of any trust herein created shall have any right or power to anticipate, pledge, sell, transfer, alienate, assign or encumber in any way his or her interest in the income or principal
of such trust. Furthermore, no creditor shall have the right to attach, lien, seize or levy upon the interest of the beneficiary in this Trust and such interest shall not be liable for or subject to the debts, liabilities or obligations of any such beneficiary or any claims against any such beneficiary.

The trial court entered a final judgment in favor of the appellants and reserved jurisdiction to award attorney’s fees and costs. That order was appealed to this court, and the appeal was dismissed without reaching the merits. On August 23, 1999, the trial court denied the appellants’ motion for attorney’s fees and costs. On appeal, this Court reversed that ruling holding that the appellants were entitled to recover legal fees and costs pursuant to section 57.105, Florida Statutes (1997). Upon remand, the trial court entered a final judgment awarding legal fees and costs to the appellants. This Court affirmed that judgment.

On November 6, 2001, the appellants filed a Motion for Proceedings Supplementary to Execution and to Implead Third Party, namely Vilma Schueg Ramirez de Arellano, together with attached exhibits, including an affidavit in support of the motion. The appellants sought to implead Vilma Schueg Ramirez de Arellano so as to satisfy the attorney’s fees and costs final judgment they now hold against any proceeds which may become due in the appellees’ favor in the latter’s suit against Vilma Schueg Ramirez de Arellano. The trial court denied the appellants’ motion and that order forms the basis of the present appeal.

Section 56.29(5), Florida Statutes (2000), governs proceedings supplementary to execution, and provides that:

The judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.

This statute is intended to empower circuit courts with the right to subject all property or property rights of any defendant in execution, however fraudulently conveyed, covered up, or concealed, and whether in the name or possession of third parties or not, to the satisfaction of an execution outstanding against a defendant. See State ex rel. Phoenix Tax Title Corp. v. Viney, 120 Fla. 657, 163 So.2d 57, 60 (1935). We hold, however, that the property which the appellants seek to reach through supplementary proceedings does not constitute property or a property right which a judgment creditor may reach in proceedings supplementary to execution.

Florida has long recognized the validity of spendthrift trusts. See Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (Fla.1947); Bacardi v. White, 463 So.2d 218, 221 (Fla.1985). The principal purpose of a spendthrift trust is to protect a beneficiary against debtors. See Preston v. City Nat’l Bank of Miami, 294 So.2d 11, 14 (Fla. 3d DCA 1974). Although spendthrift trusts have been subjected to garnishment in certain instances, such as to enforce child support orders and judgments, see, e.g., Southeast Bank of Sarasota v. Stone, 500 So.2d 737 (Fla. 1st DCA 1987), the power of the trial court to invade a spendthrift trust is not an unfettered one. See Bacardi v. White, 463 So.2d 218 (Fla.1985). See also Mason v. Mason, 798 So.2d 895 (Fla. 5th DCA 2001).

In Bacardi, the Florida Supreme Court placed certain limitations on the power of the trial court to invade spendthrift trusts. The supreme court stated that the invasion of a spendthrift trust was a last resort remedy which should be used only after all traditional methods of enforcement had been exhausted. Id. at 222. Furthermore, a basic tenet in the construction of trusts is to ascertain the intent of the settlor and to give effect to this intent. Id. at 221. Some courts in other jurisdictions have refused to invade spendthrift trust income, even for alimony and support, solely on the basis that a settlor’s intent controls. See, e.g., Erickson v. Erickson, 197 Minn. 71, 266 N.W. 161 (1936). The garnishment of income which emanates from the spendthrift trust in this case would thus defeat the settlor’s intent.

Furthermore, the trust at issue here states that the beneficiary does not have a right to assign her interest in the trust and that no creditor has the right to attach any interest of the beneficiary. Even if the appellees prevail in their suit against Vilma Schueg Ramirez de Arellano and become beneficiaries, the trust precludes them from assigning their interest. Likewise, the trust language precludes the appellants, as judgment creditors, from attaching the appellees’ interest to satisfy any outstanding debt. Therefore, the income derived from the trust is exempt from an execution of judgment and falls outside the purview of section 56.29(5). As the property the appellants seek to attach is not property that can be awarded to satisfy a debt, the trial court properly denied their motion for proceedings supplementary to execution and to implead a third party.

We therefore affirm, and find it unnecessary to entertain the remaining issues which the appellants raised.

COPE, J., concurs.

GREEN, J.

(dissenting).

I respectfully dissent.

Proceedings supplementary to execution are the means intended to be used by a judgment creditor to receive satisfaction of a judgment. See United Farm Agency of Fla., Inc. v. DKLS, Inc., 585 So.2d 1139 (Fla. 3d DCA 1991) (stating that: “the proper means of executing a judgment is to institute proceedings supplementary.”). In this case, the appellees were deposed in aid of execution and admitted that they lacked the assets to satisfy appellants’ judgment. It was also admitted that the appellees have asserted claims against a third-party, Vilma Schueg Ramirez de Ar-ellano, which potentially could have substantial value. These allegations reach beyond the irrevocable trust and its spendthrift provision, and include claims for beach of fiduciary duty, fraud, conspiracy and conversion. Finally, it is undisputed that appellants satisfied the procedural requirements of section 59.29. Thus, I believe that the appellants have the right to have the appellees’ action against Vilma Schueg Ramirez de Arellano applied to satisfy their outstanding judgment. See Puzzo v. Ray, 386 So.2d 49 (Fla. 4th DCA 1980) (judgment debtor’s right of action for conversion constituted a “property” right which could be reached by a judgment creditor in proceedings supplementary to execution).

Moreover, I believe that the appellants were entitled to implead Vilma Schueg Ramirez de Arellano. Although she was a co-defendant with the appellants in the underlying main suit, she is effectively a stranger to the attorney’s fees and cost judgment against the appellees. Impleader would merely subject her to an examination regarding her assets and would provide her with notice that appellees’ claim against her was subject to supplementary proceedings. See Cont'l Cigar Corp. v. Edelman & Co., Inc., 397 So.2d 957 (Fla. 3d DCA 1981) (judges have both power and duty to bring in third parties when relief against them may be warranted).

Accordingly, I would reverse the trial court’s order and grant the appellant’s motions for proceeding supplementary to execution and to implead a third party.

        .See 3d DCA Case No. 3D98-1318. Purportedly, the appellants could not afford to order the transcripts necessary to consummate their appeal.

      . See Arellano v. Bisson, 761 So.2d 365 (Fla. 3d DCA 2000).

      . See Bisson v. Arellano, 844 So.2d 648 (Fla. 3d DCA 2003).


author: THOMPSON, C.J.

text:
    Richard Larry GOOLSBY, et al., Appellant, v. Ahktar QAZI, M.D., et al., Appellee.
    No. 5D01-3055.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.
    Rehearing Denied June 26, 2003.

      Mayanne Downs of King, Blackwell & Downs, P.A., Orlando, for Appellant.
    Michael A. Estes and Eric P. Gibbs of Hannah, Estes & Ingram, P.A., Orlando, for Appellee.
   THOMPSON, C.J.

Richard and Dana Goolsby, as parents of Ashley Goolsby, appeal an order directing a verdict in favor of Ahktar Qazi, M.D. The Goolsbys contend that the evidence was sufficient to pose to the jury the question whether Qazi’s alleged negligence in reading an x-ray as normal caused damages to Ashley. We agree and reverse.

When Ashley was born, nurses notified her pediatrician that they heard hip clicks. The pediatrician wrote in her notes: “rule out congenital hip dysplasia,” and “positive hip click bilateral.” Hip clicks usually resolve themselves, but they can also be a sign that the hips are dislocated, and Ashley’s family had a strong history of hip dysplasia. If noted, the dislocation can be treated successfully with a Pavlik’s harness followed by another device. The harness holds the joints in place until they become aligned properly. The pediatrician ordered x-rays from Qazi, and referred Ashley to an orthopedic surgeon, but neither diagnosed dysplasia. Ashley’s expert testified that she was born with dysplasia.

Ashley’s condition was not discovered until she was 36 months old. Because her bones had ossified by this time, she needed procedures involving surgical fractures and shortening of the socket. By the time of trial, Ashley had undergone reconstructive surgery which involved cutting the pelvis, shortening bone, and adding screws, plates, and bone grafts for each hip. She would most likely require more surgery. Experts testified that the x-rays showed dysplasia of the hip and that both Qazi and the orthopedic surgeon were negligent in reading the x-rays as normal.

The trial court apparently directed a verdict in favor of Qazi because there was no evidence that his misreading of the x-ray caused the failure to timely treat Ashley with a Pavlik harness. A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999) (citing American Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla. 5th DCA 1981)). “In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiffs favor.” Id. (quoting American Motors Corp.). This is the test used by the trial court as well as the standard of review on appeal. Id. (citing Ritz v. Florida Patient’s Compensation Fund, 436 So.2d 987, 989 (Fla. 6th DCA 1983)).

In support of the court’s ruling, Qazi points out that the court held in Gooding v. University Hospital Building, Inc., 446 So.2d 1015 (Fla.1984), that “a patient in a medical malpractice case must show that the injury more likely than not resulted from the defendant’s negligence in order to establish a jury question on proximate cause.” Id. at 1020. “In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” Id. Qazi further points out that the evidence did not show that the orthopedic surgeon saw Qazi’s report, and that the only person shown by the evidence to have seen the report is the pediatrician. Qazi points out that there was no showing that the pediatrician would have changed her treatment if she had been informed that the x-rays showed dysplasia, or that she would have attempted to influence the treatment being provided by other doctors. Further, there is no evidence that any other doctor would have acceded to any attempt by the pediatrician to intervene. That being so, Qazi argues, there is no showing that his reading of the x-rays had any effect on the outcome.

Qazi cites Ewing v. Sellinger, 758 So.2d 1196, 1197-98 (Fla. 4th DCA 2000) in which the plaintiffs alleged that Dr. Sel-linger, an obstetrician, was negligent in failing to make a risk assessment. Had the obstetrician done so, the plaintiff claimed, he would have been required to direct that a physician, rather than nurse/midwives, attend her labor and delivery. The plaintiffs labor was prolonged, and the nurse/midwives eventually sought the assistance of Dr. Anderson, the on-call physician, but both mother and child suffered permanent injuries. The plaintiff claimed that the outcome would have been different if her labor and delivery had been attended by a physician because a physician would have noted distress shown on fetal monitors strips and would have ordered a caesarian section.

On appeal, the court affirmed a directed verdict in favor of Sellinger:

Dr. Anderson, who was the on-call physician at the hospital on the night of Ewing’s labor, testified that based upon his review of the patient, if he had been asked at any point during her labor to intervene in Ewing’s care and had reviewed the fetal monitor strips, he would not have elected to perform a c-section, as the labor was progressing adequately. Thus, what Ewing failed to do, i.e., continue Ewing’s supervision under the care of a physician, would not have affected the outcome in the instant case because the physician who was available to intervene and perform a c-section testified that he would not have done so.

Id. at 1198 (emphasis in original).

We disagree -with Ewing if it means that the negligent failure to diagnose a condition cannot be the cause of damages if a subsequent treater testifies that he would have shrugged off the correct diagnosis. Further, Ashley’s pediatrician did not testify that she would have ignored a reading of dysplasia if that had been Qazi’s opinion. Nor is it a fair inference to say that the pediatrician would have ignored an opinion she herself ordered.

Instead, we agree with the majority in Munoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000):

And it is not for the defendants, who putatively violated their standard of care by failing to warn, to argue that their not doing so had no effect on the situation, when their doing the appropriate thing would have removed all doubt. As was said in Seley v. G.D. Searle & Co., [67 Ohio St.2d 192, 423 N.E.2d 831 (Ohio 1981) ]:
[0]nly speculation can support the assumption that an adequate warning, properly communicated, would not have influenced the course of conduct adopted by a physician, even where the physician had previously received the information contained therein. “What the doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case.”
67 Ohio St.2d [192,] 201, 423 N.E.2d at 839 (footnote omitted) (quoting Hamilton v. Hardy, 37 Colo.App. 375, 387, 549 P.2d 1099, 1109 (1976), overruled on different grounds by State Bd. of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo.1994)).

Id. at 857.

We reverse the judgment in favor of Qazi because the Goolsbys were not obliged to prove that the pediatrician would not have been negligent, or the precise steps the pediatrician would have taken to insure the health of her patient, if Qazi’s reading had been positive for hip dysplasia.

REVERSED.

SAWAYA, J., and HARRIS, Senior Judge, concur.


text:
    Thomas W. STERLING, Appellant, v. SEMINOLE COUNTY SCHOOL BOARD and USIS, Appellees.
    No. 1D02-156.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Rehearing Denied June 18, 2003.
    Monte R. Shoemaker, Attorney, Alta-monte Springs, for Appellant.
    Michael L. Peterson, Kevin S. Murphy and Brian C. Dowling of Moore, Peterson & Zeitler, P.A., Orlando, for Appellees.
   PER CURIAM.

This case poses a question of first impression whether a petition for benefits seeking palliative care and treatment only, as opposed to remedial care and treatment, is subject to the managed-care grievance procedures. It is appellant’s position that because his petition for benefits sought only palliative care, he was not required to exhaust the managed-care grievance procedures prior to filing his petition. The judge of compensation claims (JCC) found otherwise and dismissed the petition for lack of jurisdiction, because appellant had not exhausted the grievance procedures before filing the petition, as required by section 440.192(3), Florida Statutes (1997). We find no basis to distinguish between petitions seeking remedial, as opposed to palliative, care for the purpose of complying with section 440.192(3).

Because appellant did not exhaust the managed-care grievance procedures prior to filing his petition, the JCC lacked jurisdiction to consider the claim and properly dismissed it. See Castro v. AT & T Wireless Servs., 780 So.2d 917 (Fla. 1st DCA 2000).

AFFIRMED.

ERVIN, BOOTH and BROWNING, JJ., concur.


author: WELLS, Judge.

text:
    CITY OF MIAMI, Appellant, v. Marcos VALDEZ, Appellee.
    No. 3D02-2305.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Rehearing, Rehearing En Banc and Certification Denied June 11, 2003.

      Alejandro Vilarello, City Attorney and Christropher A. Green and Mimi V. Turin, Assistant City Attorneys, for appellant.
    Robert Rossano, Miami, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   WELLS, Judge.

The City of Miami appeals from a final judgment ordering it to pay $100,000 to Marcos Valdez pursuant to section 768.28, Florida Statutes (2002).

On December 6, 1996, Valdez and his passenger, Oscar Ortiz, were injured in an automobile accident with a City of Miami police car. Ortiz filed suit against the City in 1997 for injuries sustained in the accident and obtained a multi-million dollar judgment on a single claim sounding in negligence. The City and Ortiz subsequently entered into a $5 million settlement agreement.

Pursuant to the settlement agreement, the City paid $100,000 to Ortiz in accordance with the recovery limits of Florida’s sovereign immunity tort statute, section 768.28(5), and agreed to assist in passage of a special claims bill to the Florida legislature for the' $4.9 million balance. The claims bill was passed by the legislature and approved by the Governor on June 14, 2001. That bill authorized and directed the City to appropriate from City funds amounts sufficient to pay Ortiz $4.9 million in a series of three payments over three years.

On December 28, 1999, Valdez filed suit against the City for injuries that he sustained in the same accident. At mediation, the parties agreed to settle Valdez’s claim for $100,000 subject to the City’s right to contest Valdez’s entitlement to collect from the City without submission of a special claims bill to the Florida legislature.

Pursuant to this agreement, the City argued below that the $200,000 per incident aggregate cap provided in section 768.28(5) had been exhausted by its payment of $100,000 to Ortiz and by its compliance with the $4.9 million special claims bill in Ortiz’s favor. Valdez maintained that the $200,000 per incident aggregate cap had not been exhausted by Ortiz’s recovery on a single claim (only $100,000 of which had been satisfied in an action at law under section 768.28) and that the claims bill procured by Ortiz had no effect on the City’s obligation to make payment to resolve his action. The trial court adopted Valdez’s position. We agree.

Sovereign immunity, a doctrine that predates the founding of this country, operates to shield the sovereign (generally referred to here as governmental entities) from suit in the sovereign’s courts. See Cauley v. City of Jacksonville, 403 So.2d 379, 381 (Fla.1981); D. Stephen Kahn, Legislative Claim Bills, FLA. B.J., Apr. 1988, at 23. Under this doctrine, adopted in Florida in 1822, compensation for wrongs committed by governmental entities may be obtained solely from the legislature through the arduous legislative claims bill process. See D. Stephen Kahn at 23; see also 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 9.18 (2002-2003 ed.)(outlining multi step procedure for securing claims bill from Florida Legislature).

In 1969, the legislature waived this otherwise absolute immunity from suit and conferred limited jurisdiction on Florida’s courts to entertain actions sounding in tort against governmental entities. See Ch. 69-116, Laws of Fla. (1969); Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla.1977). This waiver, now encompassed in section 768.28 of the Florida Statutes, establishes both the mechanism by which those injured by a governmental entity’s tortious conduct may directly recover and the extent to which recovery may be had without resort to the cumbersome claims bill procedure:

Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages ... may be prosecuted subject to the limitations specified in this act....
# # #
The state and its agencies and subdivisions shall be hable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

§§ 768.28(1), (5), Fla. Stat. (2002) (emphasis added).

An action at law is not a legislative claims bill. See Dickinson v. Bradley, 298 So.2d 352, 354 (Fla.1974) (confirming that the purpose of a legislative claims bill is to discharge a “moral obligation”). Legislative claims bills are utilized either after procurement of a judgment in an action at law or as a mechanism to avoid an action at law altogether. See Gerard v. Department of Transp., 472 So.2d 1170, 1172-73 (Fla.1985). And section 768.28 does not state that a legislative claims bill award may be applied to satisfy the per claim/per judgment or aggregate caps applicable to claims and judgments in actions at law under that section. See Berek v. Metropolitan Dade County, 422 So.2d 838, 840 (Fla.1982) (confirming that section 768.28 limits the amount that may be recovered in a judicial proceeding); Rice v. Brown, 645 So.2d 1020, 1022 (Fla. 2d DCA 1994) (stating that tort judgments against governmental agencies “may not be judicially enforced in an amount exceeding $200,000 for all claims arising out of one incident”) (emphasis added); see also Comer v. City of Palm Bay, 147 F.Supp.2d 1292, 1298 (M.D.Fla.2001) (holding that “the $100,000 clause limits the maximum judicial (as opposed to legislative) recovery to $100,000 for all claims that a single plaintiff brings ... in a single action resulting in a single judgment”)(emphasis added). Rather, as pertinent here, section 768.28 plainly states only that: (1) a governmental entity may, in an action at law, be compelled to pay up to a total of $200,000 on all claims and judgments, no matter how many, arising from a single incident or occurrence; and (2) a single claimant may recover in an action at law, up to $100,000 for each of his, her or its claims or judgments arising from a single incident, so long as the total amount paid to all claimants in all such legal proceedings does not exceed a total of $200,000. See Comer, 147 F.Supp.2d at 1298. This statute does not state that any amounts awarded pursuant to a legislative claims bill may or should be applied against the statutory caps imposed by section 768.28 in actions at law.

Familiar rules of statutory construction teach that when a law expressly describes a particular situation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded. See Lowe v. Broward County, 766 So.2d 1199, 1208 (Fla. 4th DCA 2000); see also Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234, 239 (1944). A reading of section 768.28 supports the conclusion that had the legislature intended that any amounts procured by means of claims bills be applied to exhaust the per person/per incident waiver of immunity, the legislature would have included such a provision. While section 768.28 provides for a number of eventualities and gives instruction on how the waiver of immunity works, it makes no mention of the novel exhaustion argument advanced by the City.

Where, as here, the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain and obvious meaning. See Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 329 (Fla. 1st DCA 2003); Prewitt Management Corp. v. Nikolits, 795 So.2d 1001, 1005 (Fla. 4th DCA 2001); see also Capers v. State, 678 So.2d 330, 332 (Fla.1996); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982). A court’s function is to interpret statutes as they are written and give effect to each word in the statute. See Fla. Dep’t of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla.2001). Courts are obligated to adopt a construction of statutory provisions which harmonizes and reconciles them with other provisions of the same act. See Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977); State v. Putnam County Dev. Auth., 249 So.2d 6, 10 (Fla.1971); Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1032 (Fla. 4th DCA 2000). Here, the City advocates a limitation not provided for in the statute and that the express language of the statute directly refutes.

While the per person/per incident limitations may, in some instances, make unavoidable a race to the courthouse, the reading of the statute advocated by the City will clearly eviscerate one of essential purposes of this waiver which is to obviate for as many claimants as possible resort to the more cumbersome legislative claims bill route to recovery. See D. Stephen Kahn, supra at 24 (concluding that the intended effect of section 768.28 is to reduce the number of claims bills submitted to the legislature). Take for example a government agency that commits a tor-tious act injuring twenty one individuals. Individual A has serious injuries, with damages of $1,000,000. The same incident results in minor injuries, with damages of $3,000, to each of the other twenty individuals — Individuals B through U. Under the City’s analysis, the procedure encompassed by section 768.28 would result in no more than a race to .the courthouse and then to the legislature. If Individual A acts with speed, he can collect $100,000 in a court judgment, proceed to the legislature for the balance, wipe out the $200,000 aggregate cap and leave Individuals B through U with no alternative but to proceed to Tallahassee to initiate twenty claims bills in the hopes of being compensated for their cumulative $60,000 in damages. If B through U fail to take those steps required to obtain legislative claim bills, their injuries will go unredressed.

Moreover under this analysis, Individual Z, a new claimant, may dash in front of Individual A, directly seeking a claims bill without first obtaining a judgment and wipe out the entire $200,000 aggregate cap, leaving even A, as well as B through U, with only the option of seeking claims bills before a single penny is directly paid by the government agency. This is not what the limited waiver of sovereign immunity encompassed in Chapter 768, with its by-pass of the legislative claims bill procedure, purports to accomplish.

In sum, the amounts procured through means of a legislative claims bill have no application to the limited amounts that may be directly procured in an action at law in accordance with section 768.28, a provision that must be strictly construed. Berek, 422 So.2d at 840. Valdez is not, therefore, precluded from collecting the $100,000 statutory cap on his claim arising from the accident because when that amount is combined with the $100,000 paid as a result of the Ortiz judgment, the total amount does not exceed the $200,000 statutory cap. See State Dept, of Health and Rehabilitative Servs. v. T.R. ex rel. Shapiro, 27 Fla. L. Weekly D1837, 2002 WL 1841554, 847 So.2d 981 (Fla. 3d DCA Aug.14, 2002) (holding that two claimants each could obtain $100,000 from the Department of Health and Rehabilitative Services pursuant to a judgment, but that “the portion of the judgment exceeding $100,000 per [claimant] must be sought from the Legislature”).

Accordingly, the final judgment of the lower court is affirmed.


text:
    Todd Kelly WHITFIELD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2787.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Rehearing, Rehearing En Banc and Certification Denied June 18, 2003.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

The order under review revoking the defendant’s probation is affirmed, but the cause is remanded for filing of a written order to that effect. See Hurtado v. State, 719 So.2d 876 (Fla. 3d DCA 1998).


text:
    STATE of Florida, Appellant, v. Arthur Lee BURKE, Appellee.
    No. 5D01-3618.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    Rehearing Denied June 26, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
    Robert R. Mulcahy of Furnell & Mul-cahy, Orlando, for Appellee.
   THOMPSON, C.J.

The state appeals the trial court’s order which granted a motion to suppress because the state’s key witness, a police officer, failed to appear at the suppression hearing. We affirm.

Arthur Lee Burke was charged with possession of cocaine with intent to sell or deliver, possession of less than 20 grams of marijuana, and resisting an officer without violence. Burke filed a motion to suppress, alleging that he was illegally stopped and seeking exclusion of the evidence obtained as a result of the stop. The motion alleged that police officer Larry Kamphus observed Burke driving a motor vehicle. In his report, Kamphus had stated that he had probable cause to believe that Burke was driving with a suspended license, and he had further cause to stop Burke because he believed Burke’s car radio was audible from a distance of 250 feet. Kamphus stated in his report that, as he approached Burke, Burke exited his car and walked away from Kam-phus. Kamphus stated that Burke pulled away when Kamphus attempted to grab him. Burke was arrested for driving while his license was suspended and resisting an officer without violence.

Incident to the arrest, Kamphus searched Burke and found 6.5 grams of cannabis in Burke’s one pocket and $665 in cash in another pocket. According to Kamphus’s report, because Burke made a “furtive movement by placing his hands inside his pants (groin area),” he searched that area and found a clear plastic bag with numerous pieces of a cake-like substance that was subsequently determined to be crack cocaine.

At the suppression hearing, the state commented that it was surprised that Kamphus was not presént because Kam-phus had confirmed that he would be present for the hearing. The court deputy called the halls for Kamphus, but there was no response, and the defense requested that the motion to suppress be granted.

The trial court told the state, “of course, if you had — I could work with you time-wise, and I don’t mind waiting around, but there’s not much to do at this point,” and later stated, “I will leave up to you before I rule the opportunity to nolle pros it, but as far as I’m concerned, I’m granting the motion to suppress. You know, it may be a righteous arrest, righteous stop, but if we can’t get anybody to show up, I’m just spinning my wheels.” The state did not file a nolle prosequi or move for a continuance; it simply stated that the trial court was creating an onerous burden for the state.

After the trial court granted the motion to suppress, the state filed a motion to vacate the order. In its motion, the state alleged that Kamphus had called the state attorney’s office advising that he would be about five minutes late for court, but the prosecutor had already left for the suppression hearing. Further, the state alleged that Kamphus arrived at the courthouse approximately twenty minutes after the hearing and informed the state that he was late because he worked the midnight shift the night before and was getting a late start for the day. In Burke’s response to the state’s motion, he pointed out that the state did not request a continuance during the hearing and argued that the state’s motion to vacate failed to allege sufficient legal grounds to overcome the trial court’s discretion. The trial court denied the motion to vacate the order.

On appeal, the state contends that the trial court abused its discretion when it granted the motion to suppress. We do not agree. The prosecution has certain evidentiary burdens, see Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000), and here, the trial court advised the state of its alternatives when Kamphus failed to appear. See State v. Pope, 675 So.2d 165, 167-168 (Fla. 3d DCA 1996)(when something unforseen occurs such as the prosecution’s main witness failing to appear, such options for the state are to file a nolle prosequi and re-file at a later time, or to proceed without its main witness); see also State v. Bouma, 554 So.2d 641, 642 (Fla. 4th DCA 1989)(the trial court abused its discretion in dismissing a case for lack of prosecution when the state was unable to produce a witness at a deposition without permitting other alternatives such as continuance or nolle prosequi). Here, the trial court stated, “I will leave up to you before I rule the opportunity to nolle pros it, but as far as I’m concerned, I’m granting the motion to suppress ... do you have a decision you want to make?” The state had an opportunity to request a continuance or file a nolle prosequi, but failed to do either. Therefore, the trial court was within its discretion to grant the motion to suppress.

AFFIRMED.

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


author: SHAHOOD, J.

text:
    Loretta PRISCO, Appellant, v. FOREST VILLAS CONDOMINIUM APARTMENTS, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D02-1409.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Rehearing Denied July 3, 2003.
    James L. Kershaw, Eustis, for appellant.
    Rhonda Hollander of The Law Office of Rhonda Hollander, P.A., Hollywood, for appellee.
   SHAHOOD, J.

Appellant, Loretta Prisco (Prisco), appeals the final judgment entered in favor of appellee, Forest Villas Condominium Apartments (Forest Villas). The main issue presented in this appeal is whether the trial court erred in granting summary judgment, and ultimately final judgment, in favor of Forest Villas in its action to enjoin appellant from keeping a dog in contravention of the association’s pet restriction. A secondary issue is whether the court further erred in finding that the appellee did not selectively enforce the pet restriction provision of the association’s rules with respect to appellant’s dog. Holding the trial court erred as to both issues raised, we reverse and remand with directions that this matter proceed to trial.

Forest Villas filed a complaint against Prisco, seeking to enjoin her from keeping a dog in violation of the condominium association’s pet restriction. Prisco had signed a form acknowledging receipt of Forest Villa’s rules and restrictions and agreeing to abide by them at the time she purchased her unit in Forest Villas in 1995. The specific restriction she was alleged to have violated was added to the Declarations in 1979 and states the following:

ARTICLE V, PARAGRAPH 8
Use Restrictions — Pets shall be permitted only in the portions of the public condominium areas as may be designated by the Association from time to time. Such pets must be at all times under the owner’s control and restraint. Pets shall be limited to not more than one common, domestic, household pet. The owner shall indemnify the Association and hold it harmless against any loss or liability of any kind or character whatsoever arising from or growing out of having any pet at FOREST VILLA.
The Board is cognizant that dogs are currently being harbored in units of FOREST VILLA CONDOMINIUM. These dogs shall be permitted to remain so long as they shall live. It is emphatically agreed that upon their demise, these animals shall not be replaced. Further, with the exception of these dogs, no pet of any kind whatsoever, except fish and/or birds, shall ever be permitted to be harbored in FOREST VILLAS....

Prisco answered the complaint raising the affirmative defense of selective enforcement of the rules. Specifically, she asserted that since the 1979 amendment to the Declarations and at all times subsequent, there have been numerous cats harbored in the condominium units and the Association has made no attempt to enforce the pet restriction against those owners. In addition, Prisco asserted that there were two other dogs on the premises, yet no attempt to enforce the restrictions had been made against their owners.

Thereafter, Forest Villas filed a Motion for Summary Judgment. The affidavit of Ann Taylor (Taylor) was filed in support of the motion. Taylor’s affidavit stated that this action was begun when a neighbor complained of hearing barking dogs in Prisco’s unit. As a result, two Board members approached Prisco and verbally warned her to remove the dogs as they were in violation of the declaration. The dogs were not removed and the Board issued several additional verbal warnings. Finally, a written letter was forwarded to Prisco by the Board’s attorney; the letter gave notice that the dogs should be removed or suit would be filed. When Pris-co did not respond, the Association filed suit. According to Taylor, when Prisco raised the issue of other pets being on the premises and provided names and addresses of the violating unit owners, the Association began the enforcement process with those owners as well. Taylor claimed that all other violations were either pursued and resolved, or the enforcement process was still pending.

In response, Prisco filed the affidavit of Patricia Devin who stated that she resides at Forest Villas and has, for eight of the last nine years, had a cat in her residence, and now has two cats. She stated that it was Taylor who gave her permission to keep the cats and Taylor who assured her that the cats would be grandfathered in and the Board would not enforce the restriction against her. In addition, Devin stated that she has seen cats in the windows and on the balconies of many units and there are at least five or six cats whose presence in the apartments is open and notorious.

Prisco also filed the affidavit of Michael Malicoat who stated that he moved into Forest Villas in 1993. From that time to the present he has had the same dog. In 1998, the Association attempted to enforce the “no pet” restriction against him, but was unsuccessful. The result was an agreed judgment allowing him to keep his dog. Malicoat also stated that he has seen cats in apartment windows and on apartment balconies and their presence is open and notorious.

Following a hearing, the court entered an order granting Forest Villas’ motion for summary judgment only on the issue of selective enforcement of the restriction with regard to cats. In the order, the court stated, “Cats are not the same as dogs, and the condominium allowing a cat on the premises does not equal to disallowing a dog” because “dogs clearly bark, cats do not, dogs need to be walked outside of their home, cats do not as they use litter boxes for the most part.” The court acknowledged that the restrictions allow only fish and birds and no other animal of any kind, but nevertheless found that “[n]one of them require outside activity and they don’t require to defecate and urinate. As such, this Court finds that cats and dogs are not similarly alike.” However, summary judgment was not granted as to the entire case. The court scheduled a trial on the sole issue of “why the Association allowed Mr. Malicoat to remain on the premises with his dog, (by virtue of an Agreed Final Judgment), and why they are not allowing Ms. Prisco to remain on the premises with her two dogs.”

A trial was had on the issue of Mali-coat’s dog. The evidence was that Mali-coat purchased his unit in 1974 and lived there until approximately 1978. In 1979, the Declaration was amended; however, Malicoat apparently had no knowledge of the amendment. In 1994, he moved back into the condominium, this time with a dog. Prior to the 1979 amendment, the Declarations allowed one dog per unit, weighing less than twenty pounds.

Following trial, the court entered final judgment in favor of Forest Villas. The court found that, in Malicoat’s case “what the Board did was exactly that which is contained in the 1979 amendment to Article V Paragraph 8 of the Bylaws.” In other words, the Board allowed Malicoat’s dog to be grandfathered in and not be replaced upon his demise. Although this result was based on the Board’s erroneous understanding that the dog had lived in the condominium prior to the 1979 amendment, the court found that the Board had entered into the agreed judgment with Malicoat with a good faith belief that the dog was entitled to be grandfathered in. With regard to Prisco, the court ruled that she had no ability to rely on the fact that there was another dog on the property and she was “charged with the knowledge of the Amendment to which she signed in acknowledgment of receipt that any dogs that existed were grandfathered in or allowed to remain for their lifetime and could not be replaced upon their demise.”

Consequently, the court concluded that there is no arbitrary or capricious enforcement of the Bylaws of the Condominium Association. There is no selective enforcement. The Bylaws seek to serve a legitimate right of the Association to protect it’s [sic] property, it’s [sic] values, and for health and well-being of all who live there.

“Restrictions found within a Declaration are afforded a strong presumption of validity, and a reasonable unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms, and only where intent cannot be ascertained will the covenant not be enforced.” See Emerald Estates Cmty. Ass’n v. Gorodetzer, 819 So.2d 190, 193 (Fla. 4th DCA 2002)(citing Eastpointe Property Owners’ Ass’n v. Cohen, 505 So.2d 518, 519 (Fla. 4th DCA 1987)) (noting each owner purchases knowing of and accepting the restrictions found within the Declaration). A party challenging the enforcement of an otherwise valid restrictive covenant has the burden to prove defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner. Id. (citing Killearn Acres Homeowners Ass’n v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 1992)).

With regard to the Board allowing cats, the court ruled in favor of Forest Villas, finding that there was no selective enforcement because cats are not the same as dogs. Appellant argues, and we agree, that this was error. The restriction is clear and unambiguous and states that, other than fish and birds, “no pets whatsoever” shall be allowed. The fact that cats are different from dogs makes no difference. What does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited. Restrictive covenants should be narrowly construed, but should not be construed in a manner that would defeat the plain and obvious purpose and intent of the restriction. See generally Brower v. Hubbard, 643 So.2d 28, 29 (Fla. 4th DCA 1994). In this case, the clear purpose of the restriction is to prohibit all types of pets except fish and birds. The trial court’s interpretation defeats that plain and obvious purpose. Thus, with regard to this issue, Prisco has shown that the Board is selectively enforcing the restriction and the summary judgment in favor of Forest Villas must be reversed.

With regard to Malicoat’s dog, Prisco argues that, by virtue of entering into an agreed judgment in which Malicoat was allowed to keep his dog, the Board was selectively and arbitrarily enforcing the pet restriction because the evidence clearly showed that Malicoat’s dog was not on the premises prior to the change in the declaration. Again, we agree with Prisco’s position as to Malicoat’s dog.

We, accordingly, reverse and remand with directions that this matter proceed to trial with appellant being allowed to raise her affirmative defense of selective enforcement.

REVERSED AND REMANDED.

TAYLOR, J., and FLEET J. LEONARD, Associate Judge, concur.