author: KAHN, J.

text:
    FIVE POINTS HEALTH CARE, LTD. d/b/a Park Ridge Nursing Center, a Florida limited partnership, Appellant, v. Michael ALBERTS, Appellee.
    No. 1D02-4713.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.
    V. James Facciolo of Hayden, Facciolo & Vaughn, P.A., Fernandina Beach, for Appellant.
    Michael J. Carter of Morgan, Colling & Gilbert, P.A, Orlando, for Appellee.
   KAHN, J.

Because the case law construing and applying Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999), would require arbitration of the present claim, we must reverse a trial court order denying a motion to compel arbitration. Contrary to the conclusion of the trial court, the present case does arise from the agreement, and therefore the matter is subject to arbitration.

Appellee Michael Alberts obtained admission to Park Ridge Nursing Center by entering into an Agreement for Care. Under the Agreement for Care, the nursing home agreed, among other things, to:

3. Furnish room, meals as required by the resident, nursing care, or custodial care, as may be required for the well-being of the resident. This provision expressly excludes extraordinary services, including but not limited to physician care, private duty nursing, private sitters, and therapies not required by law. In the event that at any time during the furnishing of these services by the facility the resident is not in need of the specific service, refuses the service (e.g., meals), requires additional supplements (not including feeding by invasive procedures), no adjustment will be made in the daily rate for that resident’s care.
5. Provide required assistance in daily living, and restorative nursing care, in accordance with the resident’s care plan, where appropriate. The resident reserves the right to refuse said treatment.

The Agreement contains the following arbitration provision:

Any controversy or claim arising out of or relating to the Agreement or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code....

The complaint in this case purports to be an action for damages in excess of $15,000, and for violation of Mr. Alberts’ rights as a nursing home resident under sections 400.022 and 400.023, Florida Statutes. The complaint recites in conclusory terms, without underlying factual allegations, violations of section 400.022, a law that details nursing home residents’ rights. Although pleading a number of rights granted by the statute, the operative portion of the complaint in this matter alleges that a staff member of Park Ridge Nursing Center negligently placed Mr. Alberts in a tub of hot water, causing him severe burns to both feet and his left leg. This alleged misfeasance on the part of nursing home staff can only be seen as arising out of, or relating to, the obligations taken on by the nursing home pursuant to paragraphs 3 and 5 of the Agreement for Care. Accordingly, the trial court’s order concluding that this dispute does not arise out of the Agreement because it does not “raise some issue, the resolution of which requires a reference to or construction of some portion of the contract” is clearly erroneous.

Even more to the point, the dispute in this case arises out of, or is related to, the admission agreement, because the obligations imposed by section 400.022 do not arise until a person is admitted to a Florida nursing home, presumably under an admission agreement. Section 400.022(2) requires that a written statement of a patient’s rights be provided “to each resident or the resident’s legal representative at or before the resident’s admission to a facility.” From this we must conclude that the statutory rights enumerated in section 400.022 arise only as a result of an admission and, hence, an admission agreement, with a nursing home facility. Such conclusion is completely consistent with the supreme court’s ruling in Seifert. The court stated, “ Tf the contract places the parties in a unique relationship that creates new duties not otherwise imposed by law, then a dispute regarding a breach of a contractually-imposed duty is one that arises from the contract.’ ” Seifert, 750 So.2d at 640 (quoting Dusold v. Porta-John Corp., 167 Ariz. 358, 807 P.2d 526, 531 (Ct.App.1990)). The statutory duties under section 400.022 arose because of Mr. Alberts’ admission to Park Ridge Nursing Center pursuant to the Agreement for Care.

The remaining issue is whether, as the trial court’s order contends, the fact that the complaint seeks recovery for duties imposed by law and in recognition of public policy thwarts the contractual right to arbitration. Under Seifert, a court must consider three elements before ruling on a motion to compel arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” 750 So.2d at 636. In the present case, the only issue raised by ap-pellee in opposition to the motion to compel arbitration concerned the second Sei-fert prong — whether an arbitrable issue exists. As noted above, the trial court felt that the complaint did not arise out of the Agreement because it did not require construction of the Agreement. The trial court went further, however, and recited its conclusion that the duties alleged to have been breached are wholly independent from the Agreement because these duties are imposed by law in recognition of the public policy of this state. Having veered down this path, the trial court concluded that the second Seifert prong had not been met and that arbitration would not be appropriate.

Statutory claims in Florida are subject to arbitration in numerous instances. A claim brought under the Florida Deceptive and Unfair Trade Practice Act, Chapter 501, Part II, Florida Statutes, is subject to arbitration. See Aztec Med. Servs. Inc. v. Burger, 792 So.2d 617 (Fla. 4th DCA 2001). This is true even though a claim under the Deceptive and Unfair Trade Practice Act “does not arise out of the contract, nor does it exist solely for the benefit of the parties to the contract.” Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 632 (Fla. 1st DCA 1999). Violations of the Florida Securities Act, Chapter 517, Florida Statutes, are, under the Seifert analysis, subject to arbitration. See Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001). The “arising out of or related to” language is broad enough to encompass claims of fraud or deceptive trade practices in the context of automobile sales, even when such claims are brought under the federal Magnuson-Moss Act and the Florida Deceptive and Unfair Trade Practice Act. See Stacy David, Inc. v. Consuegra, 845 So.2d 303 (Fla. 2d DCA 2003).

The question of substantive unconsciona-bility of the arbitration clause is not an issue in this case. Nevertheless, the agreement here would not be found substantively unconscionable merely because it requires arbitration of a statutory claim. See Stewart Agency, Inc. v. Robinson, 855 So.2d 726 (Fla. 4th DCA 2003) (finding that a provision compelling arbitration of a claim under the Florida Deceptive and Unfair Trade Practice Act is subject to arbitration); Brasington v. EMC Corp., 855 So.2d 1212 (Fla. 1st DCA 2003) (requiring arbitration of statutory civil rights claim where plaintiff sought, among other things, systemic injunctive relief that would restrain illegal practices affecting persons other than the plaintiff). In fact, in Gainesville Health Care Center v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003), we upheld an arbitration provision against a claim of unconscionability in an action for negligence brought under section 400.022. In that case, we found a similar arbitration clause neither substantively nor procedurally unconscionable and remanded with directions that the trial court compel arbitration.

The complaint filed here alleges the nursing home failed to render adequate care to Mr. Alberts, thus resulting in his injury, in violation of section 400.022. The claim arises directly from care provided to Mr. Alberts under the Agreement for Care. The trial court’s order refusing to compel arbitration is erroneous and is REVERSED.

ERVIN and BOOTH, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles G. STANICK, Appellant, v. T & B METAL WORKS INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 1D03-380.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.
    Charles G. Stanick, pro se, Lake City.
    John D. Maher, General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

In this unemployment compensation case, the appeals referee and the Florida Unemployment Appeals Commission erred by failing to properly consider and apply section 443.101(l)(a)l., Florida Statutes (2002). The law provides that an unemployed worker may qualify for unemployment compensation benefits unless “he or she has voluntarily left his or her work without good cause attributable to his or her employing unit....” § 443.101(l)(a), Fla. Stat. (2002). Although the referee purported to consider the question of good cause, the order fails to apply the relevant definition:

[T]he term “good cause” as used in this subsection includes only such cause as is attributable to the employing unit or which consists of illness or disability of the individual requiring separation from his or her work.

§ 443.101(l)(a)l., Fla. Stat. (2002).

Here, the referee acknowledged evidence establishing that appellant quit his job as the result of work-related injuries that left him unable to perform his previous duties. Unfortunately, the referee analyzed the good cause requirement without acknowledging that good cause statutorily includes illness or disability requiring separation from work. See Vajda v. Fla. Unemployment Appeals Comm’n, 610 So.2d 645, 646 (Fla. 3d DCA 1992) (explaining that “[ujnder the Unemployment Compensation Law, ‘good cause’ for leaving a job includes ‘illness or disability of the individual requiring separation from his work’ ”). Under a proper application of the statute here, “[t]he inquiry is whether there is an illness or disability which makes the employee physically unable to perform the duties of the job.” Id.; see Krulla v. Barnett Bank, 629 So.2d 1005 (Fla. 4th DCA 1993). Here, the referee denied benefits based upon a finding that appellant “made no attempt to secure another position with the employing company.” Acknowledging this finding, we are nonetheless compelled to reverse because the proper inquiry is whether the employee, because of illness or disability, is no longer able to physically perform the job. Our reading of the order convinces us that the referee resolved this particular issue in favor of appellant.

REVERSED.

ALLEN, KAHN and POLSTON, JJ., Concur.


text:
    Jenny CASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4167.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charles A. Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Leonard v. State, 760 So.2d 114 (Fla.2000); Paulk v. State, 765 So.2d 147 (Fla. 1st DCA 2000).

ERVIN, BARFIELD, and POLSTON, JJ., concur.


author: BARFIELD, J. BROWNING, J.,

text:
    Leland AHLERS, Petitioner, v. Daniel WILSON and International Restaurant Equipment Co., Respondent.
    No. 1D02-4852.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.

      Mary L. Wakeman, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Petitioner.
    Gregory Stone, Orlando, and Bill McCabe, Longwood, for Respondent Daniel Wilson.
   BARFIELD, J.

Leland Ahlers, the owner of International Restaurant Equipment Co. (IREC) at the time the claimant, an employee of IREC, was injured in a work-related accident, appeals an order of the Judge of Compensation Claims (JCC) finding him personally responsible for payment of all benefits awarded to the claimant in the order, notwithstanding that Ahlers had in the meantime sold IREC. Because the parties agree that at the time the claimant was injured, he was not covered by workers’ compensation insurance, the employer, as defined in section 440.02(16)(a), Florida Statutes, is subject to the sanctions set out in section 440.06, Florida Statutes.

On June 7, 2000, after the claimant’s petition for benefits had been filed, Ahlers signed an agreement with Mack Cartwright, as president of Restaurant Services, Inc. (RSI), in which Ahlers and IREC agreed to sell to RSI “all of the physical assets of Seller from a going business known as International Restaurant Equipment Co. presently located at 1014 Sligh Boulevard, Orlando, Florida 32806,” as well as “all of the Sellers’ business as a going concern, including the right to use the name ‘International Restaurant Equipment Co.’ and any trade mark or marks associated therewith,” for the sum of $400,000 to be paid by a purchase money note payable in full within five years. Ah-lers and IREC agreed to indemnify RSI for various damages, expenses, or loss, including claims against IREC “arising from the conduct of the business of the Corporation prior to the Closing Date” or any proceedings “incident to the foregoing.” The parties to this appeal appear to agree that by these provisions, Ahlers agreed (in his individual capacity) to indemnify RSI for any expenses arising out of the claimant’s workers’ compensation claim. Paragraph 14.2 provided that the agreement would be construed according to Georgia law, and Paragraph 12 stated:

In the event the Purchaser or the Sellers fail to perform their obligations hereunder, the other shall have the right (i) to terminate its obligations hereunder by giving written notice of such termination or (ii) to require specific performance of the obligation not performed. Either party has the right to waive the other party’s compliance with a condition to Closing and to require specific performance of this Agreement. 30 days Notice.

In August 2000, the claimant apparently learned that the company had been sold, and Ahlers retained an attorney (Thomas E. Mooney) to represent him and IREC in the workers’ compensation proceeding. In the parties’ September 2000 pretrial stipulation signed by the attorneys, IREC accepted the claimant’s accident as compen-sable, but did not accept the claimant’s injuries as compensable, the parties agreed that medical benefits would be handled administratively, and both sides stipulated to timely notice of pretrial and final hearing.

The record on appeal contains no evidence of any further activity in the workers’ compensation proceeding until April 18, 2002, when Mooney filed a motion to withdraw as attorney for IREC. Attaching the contract with RSI, Mooney asserted that he had been hired to defend Ahlers and IREC in the workers’ compensation proceeding; that in the RSI contract, Ah-lers had “agreed to fund the defense of the employer in this workers compensation claim”; that Cartwright had recently ceased making payments on the purchase of the business and had fled the state with all the property in which Ahlers had a secured interest; and that therefore Ah-lers “is no longer obligated under the agreement of sale to defend International Restaurant Co. in this workers compensation claim.”

On April 22, 2002, Mooney signed another pretrial stipulation in which IREC stipulated to proper notice of the pretrial and final hearing, and disputed the claims for temporary disability and permanent impairment benefits. On April 30, 2002, Mooney’s motion to withdraw was granted. The case was thereafter transferred to another JCC, who timely mailed to “International Restaurant Equipment Co., 1014 Sligh Blvd, Orlando Florida 32806” a certified letter notifying IREC of the September 23, 2002, hearing; the letter was eventually returned to the court unsigned. On the same day the JCC’s certified letter was sent, the claimant’s attorney also prepared an amended notice of the final hearing, certifying that it had been served by mail to the JCC, as well as to “Leland Ahlers and International Restaurant Equipment Co.”; the certified mail receipt addressed to Leland Ahlers at his home address was signed by his wife.

At the final hearing, neither Ahlers, nor Mooney, nor any representative of IREC appeared. The JCC considered the live testimony of the claimant, the petitions for benefits and pretrial stipulations, the notices of hearing, Mooney’s motion to withdraw, the attached contract for sale of IREC, the order granting Mooney’s motion to withdraw, and various documents related to the workers’ compensation claims.

Based upon Mooney’s assertions in the motion to withdraw and the attached contract for sale of IREC, the JCC found in the final order that Leland Ahlers “is the party that is personally responsible for payment of all benefits awarded in this Order.” He found that Ahlers “had proper notice of the scheduled Merits Hearings in this claim and intentionally failed to attend,” and imposed “Waiver of Defenses” as a sanction for Ahlers’ failure to attend the two hearings. He adopted the parties’ two pretrial stipulations, accepted the claimant’s testimony as “highly credible,” and accepted the opinions of the claimant’s treating physician “expressed in his medical records.” He determined the average weekly wage and compensation rate, found that the claimant was entitled to temporary disability benefits offset by the indemnity benefits already paid by Ah-lers, and awarded $4,933.34 in indemnity benefits, including penalties and interest, reserving jurisdiction on the issue of attorney fees and costs.

The first question to be considered is whether, and under what circumstances, Ahlers is entitled to review of the JCC’s order. Because in Florida, the right to appeal is available only to those who were parties to the action in the lower tribunal, Ahlers’ filing of a notice of appeal of the JCC’s order implies that he was a party below, but he argues in his brief that the JCC did not have jurisdiction to adjudicate him personally responsible for the amounts awarded to the claimant because he was never made a party to the proceedings. However, to obtain cer-tiorari review of an adjudication, a petitioner need not be a party to the proceeding if he or she has an interest in the subject matter which would entitle him or her to such review. See State ex rel. Landis v. Crawford, 104 Fla. 440, 140 So. 333, 335 (1932). See also State ex rel. Boyles v. Florida Parole and Probation Commission, 436 So.2d 207, 210 (Fla. 1st DCA 1983).

We reject the claimant’s argument that the JCC acquired jurisdiction over Ahlers, who was not named as a party in the proceeding below, because Ahlers made an appearance in the proceeding through Mooney’s motion to withdraw. We treat the notice of appeal as a petition for writ of certiorari, and find that the JCC violated the essential requirements of law by finding Ahlers, who was not a party to the proceeding, personally responsible for payment of all benefits awarded in the final order. The JCC’s order is therefore QUASHED to the extent it applies to Ah-lers, and the case is REMANDED to the JCC for further proceedings.

WEBSTER, J., concurs.

BROWNING, J., dissents with written opinion.

BROWNING, J.,

dissents.

I respectfully dissent.

I would affirm the JCC’s order, as Ah-lers voluntarily submitted himself to the JCC’s jurisdiction. See Baker v. Petway, 740 So.2d 1235 (Fla. 1st DCA 1999). From the time Mooney made his appearance, which commenced on April 27, 2000, and continued until his withdrawal on April 30, 2002, he “was retained by Leland Ahlers” to represent “Mr. Ahlers and International Restaurant Equipment Company.” Notwithstanding that Mr. Ahlers was not named as a party, he recognized he was the real party in interest and affirmatively protected his interest by retaining an attorney to represent him individually throughout the proceeding. There is no stronger evidence of a party’s participation in a proceeding than his retaining an attorney who appears in a proceeding to represent his interest, as Ahlers did here. It seems incredible that Mr. Ahlers now argues that he retained Mr. Mooney to represent his defunct corporation only. Thus, I cannot discern any plausible reason for relieving Ahlers from the consequences of the final order issued in this action he now attempts to renounce, as an “innocent bystander,” after some two years of participation in the proceeding, and of his paying Mr. Mooney to represent his interest.

I realize the majority decision does not conclusively bar claimant from subsequent relief. However, even if claimant is able to secure benefits in the future, which I seriously doubt because of a limitations problem, I see no reason on this record for delaying claimant’s receipt of benefits that all admit are due to him. Also, unnecessary costs, including attorney’s fees, will necessarily follow subsequent litigation that could be avoided by an affirmance of the JCC for the reasons stated.

For these reasons, I would elevate substance over form and affirm the JCC. I respectfully dissent.

      . See Deans v. Wilcoxon, 18 Fla. 531, 1882 WL 3005 (1882) ("As to an appeal or writ of error it is the rule that a party to the proceedings can alone prosecute it”). See also Philip J. Padovano, FLORIDA APPELLATE PRACTICE § 11.2 (2004 ed.). And see 5 Am.Jur.2d Appellate Review § 264.

      . It should be noted that a person in Ahlers’ position who is aggrieved in an Article V court proceeding would have a remedy through Florida Rule of Civil Procedure 1.540 to challenge the civil judgment as void. However, such relief is not available under the current Florida Rules of Workers’ Compensation Procedure.


text:
    Braxton Randolph FOSSETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0072.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.
    Braxton Randolph Fossett, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: PETERSON, J.

text:
    HUTCHINSON ISLAND REALTY, INC., et al., Appellant, v. BABCOCK VENTURES, INC., Appellee.
    Nos. 5D02-3179, 5D03-718.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.

      Robert Bruce Snow of Robert Bruce Snow, P.A., Brooksville, for Appellant.
    Alan S. Zimmet and Julia Mandell Cole of Zimmet, Unice, Salzman & Feldman, P.A., Clearwater, for Appellee.
   PETERSON, J.

Hutchinson Island Realty, Inc. et al. (“Hutchinson”), appeals a final judgment in which the title to real property was quieted in favor of Babcock Ventures, Inc. (“Babcock”), who acquired title by a tax deed.

Hutchinson acquired a parcel of realty in 1987 by a warranty deed that indicated Hutchinson’s address as “1920 Palm Beach Lakes Boulevard, West Palm Beach, Florida” (“West Palm Beach address”). In 1991, it sold a portion of the realty, leaving a remainder of 21.3 acres, the title to which creates the controversy in the instant case (“Property”). Hutchinson also granted a mortgage on the Property to Appellant, T. Brayl Copp (“Copp”), in 1991, and the address shown on the mortgage as Copp’s address was also the same West Palm Beach address used by Hutchinson.

From 1991 through 1997, Hutchinson received the tax notices in the name of Hutchinson Isle Realty, Inc. at the West Palm Beach address, but failed to pay the real estate taxes on the Property for the tax years 1991 through 1994. A tax certificate holder made an application for a tax deed in 1996, and after the clerk of the circuit court for Hernando County sent a notice of the tax deed application to Hutchinson Isle Realty, Inc. at the West Palm Beach address, Hutchinson paid the outstanding taxes thereby avoiding a tax sale.

However, in 1997, after Hutchinson again failed to pay real estate taxes on the Property for the tax year 1996, another tax certificate was issued and that holder applied later for a tax deed. When the tax certificate holder applied for a tax deed sale, the tax collector engaged a private firm, Accu-Search Title Examination (“Accu-Search”), to conduct a title search. Following the title search, the tax collector prepared a statement as required by section 197.502(4), Florida Statutes (2000), and forwarded it to the clerk of court for the purpose of giving notice to the title and lienholders so that the sale may be conducted. The tax collector’s statement:

1. Described the property as “21.3 Acres MOL in SE 1/4 Lying E of Springwood Est. & N of Spring Hill Blvd.;”
2. Named the apparent title holder as “Hutchinson Island Realty, Inc.;”
3. Named the owner to whom taxes were assessed on the current role as “Hutchinson Isle Realty, Inc.;”
4. Named the mortgagee as “T. Brayl Corp.”

(Emphasis added). Apparently, the legal description was an abbreviated one used by the taxing authorities to facilitate ree-ord keeping and does not include a section, township, range or even the county in which the Property is located. The erroneous name of the corporation shown on the assessment role also appears to be an effort to abbreidate “Island” to “Isle” and the error showing the mortgagee as “Corp.” rather than “Copp” must have been an error committed by the tax collector since a copy of the mortgage with the correct spelling of Copp’s name was attached to Accu-Search’s title report.

Hutchinson’s and Copp’s inattention to the ad valorem taxation process compounded the taxing authorities’ deficiencies. Although Hutchinson had avoided a tax sale in 1996 for non-payment of taxes for 1991 through 1994, it again failed to pay taxes for 1996, 1997 and 1998 on property assessed for $213,000. Additionally, Hutchinson closed its West Palm Beach office in 1997 or 1998 where all previous tax bills and notices had been sent, but failed to notify the tax collector of a new address.

The clerk of court properly relied on the statement supplied by the tax collector, and thereby, innocently perpetuated the deficiencies by including them in four attempts to notify Hutchinson of the impending tax sale. Separate notices were sent by certified mail to Hutchinson Isle Realty, Inc. and T. Brayl Corp. to the lYest Palm Beach address. Not surprisingly, these notices were returned to the clerk as undeliverable because Hutchinson had closed the office at that address. Notice of the application was published for four consecutive weeks in a newspaper located in the county where the Property was located employing the abbreviated word “Isle” for “Island” and the abbreviated property description. The Palm Beach county sheriff also attempted personal service at the West Palm Beach address. Finally, a notice was posted upon a parcel of the Property.

On October 4, 2000, the clerk conducted a sale of the Property. Babcock submitted the highest and winning bid and a tax deed was recorded containing the tax collector’s abbreviated description of the Property.

Having acquired title by the tax deed, Babcock filed an action to quiet title. Hutchinson filed a counterclaim seeking to set aside the tax deed claiming that it and the mortgagee were misnamed and that the abbreviated legal description of the Property contained in the documents prepared, issued and advertised in connection with the tax deed sale were defective, vague, and indefinite and failed to properly identify the Property sufficient to put Hutchinson on notice of the sale. Hutchinson claimed that because title to the Property was taken from it without due process of law, the tax deed was void.

I. NOTICE REQUIREMENTS

Hutchinson and Copp contend that they have been deprived of their respective interest in the Property without due process of law because the notice requirements of section 197.522(1), Florida Statutes (2000), were not met when the clerk failed to mail a notice to Hutchinson Island Realty, Inc. and Copp, and only mailed notices to Hutchinson Isle Realty, Inc. and T. Brayl Corp.

Upon receipt of an application from a certificate holder for a tax deed, the tax collector prepares a statement with the names of the persons to be notified prior to the sale of the property. § 197.502(4) Fla. Stat. (2000). Among the persons to be named by the tax collector under section 197.502(4) are: (a) any legal titlehold-

er of record; (b) any mortgagee of record; and (c) any person whom the property was assessed on the tax roll for the year the property was last assessed. §§ 197.502(4)(a), (c), (£), Fla. Stat. (2000). The tax collector then delivers the statement to the clerk of the circuit court.

Upon receipt of the tax collector’s statement, the clerk is required to notify the persons listed in it. § 197.522(1), Fla. Stat. (2000); Dawson v. Saada, 608 So.2d 806 (Fla.1992). Section 197.522(1) provides:

The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed on the tax collector’s statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector’s statement, then no notice shall be required.

The clerk is not required to search all public records available to determine the actual status of ownership. E.g., Bostwick v. Clukies, 801 So.2d 961, 962 (Fla. 5th DCA 2001); see also Baron v. Rhett, 847 So.2d 1032, 1034 (Fla. 4th DCA 2003). In addition, the clerk has no general duty to determine the accuracy of the tax collector’s statement. Bostivick, 801 So.2d at 962. In Bostwick this court determined that the .clerk’s responsibility is to notify the persons whose names are provided in the tax collector’s statement and any failure to provide notice to others not named in the tax collector’s statement does not invalidate the tax deed. Id. Reviewing the clerk’s compliance with the notice requirements of section 197.552(1), Florida Statutes (2000), the trial court relied on Dawson v. Saada, 608 So.2d 806 (Fla.1992), which held that the notice required by section 197.552(1) is notice that is “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Dawson, 608 So.2d at 808 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).' “Section 197.522(1) meets constitutional due process requirements by mandating notice reasonably calculated to apprise landowners of the pending deprivation of their property.” Id. In addition, “[t]he failure of anyone to receive notice as provided in section 197.122(1) does not affect the validity of the tax deed as long as the clerk complies with the notice requirements of subsection (1).” Id.

In the instant case, the due process notice requirements of section 197.522(1) were met by the clerk of court when the clerk adhered to those mandatory provisions. The clerk properly informed the interested parties listed on the tax collector’s statement by sending notices to the West Palm Beach address. Even if the clerk had sent a notice addressed to Hutchinson Island Realty rather than to Hutchinson Isle Realty, Inc., at the West Palm Beach address, Hutchinson would not have received the notice because it had not been at that address since at least 1998. Furthermore, Hutchinson had received, accepted and responded to numerous tax notices in the past dating back to 1992 in the name of Hutchinson Isle Realty at the West Palm Beach address without protest.

II. CRITERIA FOR INVALIDATING A TAX DEED OR TAX SALE

Section 197.122, Florida Statutes (2000), specifies the criteria by which a tax deed or tax sale may be invalidated when there is compliance with the notice requirements of section 197.522(l):(a) the property was not subject to taxation; (b) the taxes have been paid before the sale of personal property; or (c) the real property had been redeemed before the execution and delivery of a deed based upon a certificate issued for the nonpayment of taxes. §§ 197.122(l)(a), (b), (c), Fla. Stat. (2000). Under Dawson, if the notice requirements of section 197.522(1) are met, a sale of real property for the nonpayment of taxes must be held valid unless one of the criteria for invalidation in section 197.122(1) is not met. In the instant case, it is undisputed that the Property was subject to taxes, and that Hutchinson failed to pay the taxes or redeem the tax certificate prior to the sale of the Property and prior to the delivery of the deed to Babcock. Therefore, there is no basis for invalidating the tax deed or tax sale under section 197.122, Florida Statutes (2000).

III. INADEQUACY OF LEGAL DESCRIPTION

Hutchinson lastly contends that the tax deed was invalid because the legal description of the Property was inadequate, the legal description was patently ambiguous and the trial court erred by relying on extrinsic evidence to determine the adequacy of the description in the tax notices.

Hutchinson relies upon Carson v. Palmer, 139 Fla. 570, 190 So. 720 (1939), in which the Florida Supreme Court defined a patent ambiguity in a property description as “such an uncertainty appearing on the face of the instrument that the Court, reading the language of the instrument in the light of all facts and circumstances [contained in it], is unable to derive ... the intention of the parties as to what land is to be conveyed.” Carson, 190 So. at 722. Carson reasons that a patent ambiguity may not be removed by parol evidence, since that would necessitate the insertion of new language which under the parol evidence rule is not permissible. Id. The Carson deed had two inconsistent descriptions, either of which would identify a different parcel of property from that described by the other. The court found that this description was void for uncertainty because there was nothing in the deed that indicated which parcel was intended to be conveyed, and the description omitted a section, township and range.

Review of cases subsequent to Carson indicates that this “patent ambiguity” doctrine has been continually eroded by the courts since 1939 so as to now be virtually nonexistent. Instead, the rule enunciated in an earlier 1893 case has been embellished to the point that almost any description that could possibly be explained by parol evidence or research of historical records will suffice. That case is Campbell v. Carmth, 32 Fla. 264, 13 So. 432 (1893), which incorporated the often repeated rule that if the description in a deed is such that a surveyor, by applying the rules of surveying, can locate and identify the land intended to be conveyed, such description is sufficient and the deed will be sustained. Language in Mendelson v. Great Western Bank, F.S.B., 712 So.2d 1194 (Fla. 2d DCA 1988), lends some help in explaining what a surveyor’s bag of tools may contain in interpreting a deficient description in a deed:

Although we do not believe that a deed may be rendered sufficient by a “conversation with the parties,” a property description may be aided by reference to the public records if the instrument contains information sufficient to identify the property through that line of inquiry. “Extrinsic facts pointed out in the description may be resorted to to ascertain the land conveyed, and the property may be identified by extrinsic evidence, as in the case of records of the county where the land is situate.” (citation omitted)

Id. at 1197.

Examples of the erosion of the “patent ambiguity” rule by the judiciary include:

1. The property description in Western World, Inc. v. Dansby, 566 So.2d 866 (Fla. 1st DCA 1990), consisted only of the premises located at “2809 Apalachee Parkway” in Tallahassee, Florida. The court found no patent ambiguity in that description and any latent ambiguity regarding the extent of the parcel intended to be conveyed could be overcome by parol evidence.

2. In Bajrangi v. Magnethel Enterprises, Inc., 589 So.2d 416 (Fla. 5th DCA 1991), this court found that “1101 1/2 East Plant Street ... and the surrounding real estate” was a sufficient legal description when the parties’ intent was to describe a particular parcel. In doing so, it reviewed other liberal interpretations of descriptions of property that would be impossible to locate unless parol evidence was allowed to establish boundaries. Cases reviewed included Simons v. Tobin, 89 Fla. 321, 104 So. 583 (1925), in which the Florida Supreme Court required specific performance of a contract referring merely to “the Esmeralda Hotel property” and Lente v. Clarke, 22 Fla. 515, 1 So. 149 (1886), in which “my forty near the Garrison lands” was held to be a valid description. Lente cited Hurley v. Brovm, 98 Mass. 545 (Mass.1868), and Scanlan v. Geddes, 112 Mass. 15, (1873), cases approving descriptions of property as “a house and lot of land situated on Amity Street, Lynn, Mass” by supplying the language “owned by me” and “a house on Fifth Street between D & E Streets” as a valid description of not only the building but the land upon which it stands. This court made the observation that:

“[t]he distinction between latent and patent ambiguities in relation to parol evidence appears to be disappearing. The modern tendency is to allow a liberal interpretation of the description of land and to uphold the validity of such description if there is any way possible to arrive at the intention of the parties thereto ...”
Originally ambiguities were classified as “latent” and “patent”, and this classification still exists in many jurisdictions. However, the distinction is gradually disappearing, and parol evidence is held admissible to explain an ambiguity whether latent or patent.

Bajrangi, 589 So.2d at 420 n. 5.

In view of the precedent allowing liberal interpretations of faulty descriptions supplemented by extrinsic evidence, we must find that the tax collector’s abbreviated description was sufficient because a particular parcel to be conveyed was intended and the property could be identified by reference to the county records. Indeed, this issue could have been completely avoided by taxing authorities had the abbreviated form not been used in the tax foreclosure proceedings. We note that the real property description used in the final judgment quieting title was the same legal description contained in the mortgage from Hutchinson to T. Brayl Copp. The legal description was in the form of a detailed survey attached to the mortgage. A copy of that mortgage was attached to the title search performed by Accu-Search and used by the tax collector to furnish the statement to the clerk of court so that tax foreclosure proceedings could begin.

Hutchinson alleges that the trial court reformed the deed by using the more detailed legal description in the judgment quieting title. This, however, was done with the aid of extrinsic evidence supplied by the surveyors. Both the tax collector’s abbreviated description and the detailed description found in the Copp mortgage and used in the final judgment quieting title refer to the same parcel of real property.

The opinion in D.R.L., Inc. v. Murphy, 508 So.2d 413 (Fla. 5th DCA 1987), recognized the harsh but constitutional remedies used to collect taxes and while the fairness of the procedure may be questioned, resolution of that issue is one for the Legislature. The Legislature also seems to have eliminated accuracy in tax foreclosure proceedings by taxing authorities when it enacted section 197.122, thereby limiting the grounds for attacking tax foreclosures. The limitations on the ability to attack a tax foreclosure make the tax deed in the instant case, close enough for government work. Moreover, it is well-established that most citizens understand that “if you don’t pay your taxes the government will take your land.” Id. at 416.

The judgment quieting title is affirmed.

PLEUS and ORFINGER, JJ., concur.

      . Tax certifícate holders must hold the tax certificate for a statutory minimum two-year period before applying for a tax deed. § 197.502(1), Fla. Stat. (2000).

      . There is no contention that the posting of the notice was not made within the boundaries of the Property that was the intended parcel incurring the unpaid taxes.

      . Additional, but not mandatory, notice is provided by the statute: service of notice by the sheriff, section 197.522(2), Florida Statutes (2000), and publication of notice in a general circulation newspaper, section 197.512, Florida Statutes (2000).


text:
    Earl Tracey NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3357.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    James Dickson Crock of James Dickson Crock, P.A., Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. 'Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Earl Tracey Nelson appeals the denial of his motion to suppress and his judgment and sentence for trafficking in cocaine. We affirm.

A registration clerk for the Holiday Inn in Palatka called the police to report that Nelson had registered as a guest of the hotel. The clerk testified at the. suppression hearing that a lot of guests were complaining about drug trafficking at the hotel and that suspicions are aroused when someone fits a certain profile. The profile includes the location and type of room in the hotel, payment in cash, nervousness and the fact that the registering guest is a local resident.

The Palatka Police Department was familiar with Nelson since he had been involved in several drug investigations in the past and was currently the target of an ongoing drug investigation. With the permission of the hotel management, a K9 officer took his narcotics sniff dog to the hotel and walked the hallway outside of Nelson’s room. The dog was asked to sniff all room entrance doors in the hallway, but the dog alerted only at Nelson’s door. The information was then included in an affidavit to obtain a search warrant. ■The affidavit included the history of the dog who had been a narcotic detection dog for the Palatka Police Department for the past three years. With several handlers, the dog had over 200 documented narcotics finds and was trained to detect the odor of cocaine as well as several other substances. The K9 officer also provided a detailed listing of the dog’s experience, and training.

After a search warrant was issued to search Nelson’s room, police officers entered the unoccupied room and found several small plastic bags of cocaine that through subsequent testimony were tied to Nelson.

Nelson contends that the trial court erred when it determined that the police had the right to walk the hotel’s hallways in search of drugs after the hotel’s management requested that action. He claims that the management had no right to waive his Fourth Amendment privacy rights to what was the equivalent of his private residence. He also complains that the police did more than walk the hallways of the hotel; they enlisted the use of a sensory enhancing animal that was unable to detect contraband until it was within eighteen inches to three feet of the lower door jam area of his hotel room.

HOTEL MANAGEMENT’S INVITATION TO POLICE

Nelson cites Turner v. State, 645 So.2d 444 (Fla.1994), Gnann v. State, 662 So.2d 406 (Fla. 2d DCA 1995), and Wass-mer v. State, 565 So.2d 856 (Fla. 2d DCA 1990), for the general rule that constitutional rights and privileges that apply to occupants of private permanent dwellings also apply to hotel guests and that a hotel manager has no power by consent or invitation to waive a guest’s Fourth Amendment privacy rights. We find this general rule is not applicable to the circumstances surrounding the instant case where Nelson did not have a valid expectation of privacy. Areas outside of a hotel room, such as hallways, which are open to use by others may not be reasonably considered as private. E.g., Brant v. State, 349 So.2d 674 (Fla. 3d DCA 1977). In the instant case, the hallway was on the premises controlled by the hotel management and was a common walkway for the use of hotel guests, visitors, employees and probably by the general public. The hotel management was within its rights to invite the police to walk the hallway and no violation of Nelson’s Fourth Amendment rights took place. In fact, the Fourth Amendment was not even applicable to any action that took place in the hallway where the police had the right to be.

DOG SNIFF AT THRESHOLD OF HOTEL ROOM DOOR

The trained drug detection dog brought by the police to explore the hotel hallway was not directed to any particular door in the vicinity of Nelson’s hotel room. Several doors in the hallway were passed by the dog before it alerted at Nelson’s

Nelson argues that the use of a dog’s sense of smell is tantamount to the use of a far superior, sensory instrument that enables a human being to detect articles normally discoverable only after entry into residences. Because that entry would require a search warrant, Nelson concludes that such a warrant is necessary before the talents of a narcotics canine is employed. Nelson’s argument is supported by his cite to Nebraska v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999). Ortiz in turn cited United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), which held that the defendant’s heightened expectation of privacy inside his apartment dwelling rendered a canine sniff at the entrance door to the apartment an illegal search. However, the Thomas decision has been criticized by all federal courts that have considered it, primarily because of the Thomas court’s assertion that the defendant had a legitimate expectation that contraband in his closed apartment would remain private. For example, that assertion was challenged by United States v. Colyer, 878 F.2d 469, 475 (D.C.Cir.1989):

As an initial matter, the very correctness of the Thomas decision is called into question by its assertion that the defendant “had a legitimate expectation that the contents of his closed apartment would remain private.” As was shown above, the Supreme Court’s analyses in Place and Jacobsen indicate that a possessor of contraband can maintain no legitimate expectation that its presence will not be revealed. No legitimate expectation of privacy is impinged by governmental conduct that can “reveal nothing about noncontraband items.”

See also United States v. Hogan, 122 F.Supp.2d 358 (E.D.N.Y.2000). United States v. Reed, 141 F.3d 644 (6th Cir.1998); United States v. Lingenfelter, 997 F.2d 632 (9th Cir.1993); United States v. Sklar, 721 F.Supp. 7 (D.Mass.1989);

U.S. v. Roby, 122 F.3d 1120, 1124-25 (8th Cir.1997), considered a factually similar incident to the instant case and is dispositive of the issue raised by Nelson:

The sniff of a trained police dog is quick, and the dog’s reaction can frequently signal the presence or absence of contraband. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (“[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Id. at 707, 103 S.Ct. at 2644-45). Because a dog’s sniff “could reveal nothing about non-contraband items,” it does not generally intrude into a person’s reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (a test that merely discloses whether a substance is or is not cocaine is not a search within the meaning of the Fourth Amendment).
In this case, we consider whether a canine sniff in the common corridor of a hotel intrudes upon a legitimate expectation of privacy. See United States v. Thomas, 757 F.2d 1359 (1985). “The test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity. Rather, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-183, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984). It has long been recognized that reasonable expectations of privacy vary according to the context of the area searched. See O’Connor v. Ortega, 480 U.S. 709, 719, 107 S.Ct. 1492, 1498-99, 94 L.Ed.2d 714 (1987).
Here, Nero walked the Hampton Inn’s fourth floor hallway. During this walk, he alerted at Room 426, the room occupied by Mr. Roby. Roby contends the dog’s detection of the odor molecules emanating from his room is the equivalent of a warrantless intrusion. We find that it is not. The fact that the dog, as odor detector, is more skilled than a human does not render the dog’s sniff illegal. See United States v. Sullivan, 625 F.2d 9, 13 (4th Cir.1980). Just as evidence in the plain view of officers may be searched without a warrant, see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968), evidence in the plain smell may be detected without a warrant. See United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir.1992); See also Horton v. Goose Creek Independent School District, 690 F.2d 470, 477 (5th Cir.1982); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.1994) (“plain feel,” no reasonable expectation of privacy in heat emanating from a home).
Mr. Roby had an expectation of privacy in his Hampton Inn hotel room. But because the corridor outside that room is traversed by many people, his reasonable privacy expectation does not extend so far. Neither those who stroll the corridor nor a sniff dog needs a warrant for such a trip. As a result, we hold that a trained dog’s detection of odor in a common corridor does not contravene the Fourth Amendment. The information developed from such a sniff may properly be used to support a search warrant affidavit.

We find that the remaining issues raised by Nelson on appeal were either not preserved for appellate review or are without merit.

We affirm the trial court’s denial of Nelson’s motion to suppress and affirm the judgment and sentence.

AFFIRMED.

SHARP, W., and TORPY, JJ„ concur.

      . The Place decision cited in Colyer refers to United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), in which the Supreme Court stated that no legitimate expectation of privacy exists when a procedure only reveals the existence of contraband. The Jacobsen reference is to United States v. Ja-cobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

      . For an excellent 43-page opinion reviewing the issues raised in a dog sniff case see Fitz

        gerald v. State of Maryland, 153 Md.App. 601, 837 A.2d 989 (2003), authored by Judge Moyer.


author: SHARP, W., J.

text:
    Harold R. LEIFFER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-76.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    Harold R. Leiffer, Zephryhills, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Leiffer appeals from the circuit court’s denial of his motion to correct “awarded jail time credit,” which the circuit court treated as a Rule 3.800(a) motion to correct illegal sentence. Leiffer seeks an additional 69 days of credit. We affirm.

The dates for which Leiffer seeks credit are March 14, 2001 through May 22, 2001. He was initially sentenced on January 18, 2001, and on March 9, 2001, the circuit court corrected his sentence to reflect 636 days of jail credit, nunc pro tunc, to January 18, 2001. He was then apparently released by mistake on March 14, 2001, and not returned to custody until May 22, 2001. He was not in custody for those 69 days. If the merits were to be addressed, it appears Leiffer is entitled to no relief.

However, there are two reasons this cause should be affirmed. First, the circuit court correctly concluded that it had no jurisdiction over this matter because the 69 days related to “post sentencing” credit. See § 921.161(2), Fla. Stat. (2003). And second, this motion is successive. The order being appealed in this case was dated November 14, 2003. It stated that the circuit court had previously considered and ruled on the merits that Leiffer was not entitled to credit for the 69 days he was erroneously at liberty, and attached a copy of an order dated September 4, 2003. This order, in turn, referenced and attached a June 4, 2001 order which was filed in a prior proceeding, and provided a ruling on the merits for this issue. Although somewhat confusing the November order is in the nature of a corrected final order, because the September order may have been perceived as incomplete, as it failed to notify Leiffer of his right to appeal in 30 days. We see no error in treating the two orders as essentially one for purposes of this appeal.

AFFIRMED.

PETERSON and THOMPSON, JJ., concur.

      . For issues involving post-sentencing credit, a defendant must first exhaust his administrative remedies and then seek mandamus relief in the Circuit Court in Leon County, where DOC maintains its headquarters. See Washington v. State, 662 So.2d 1027 (Fla. 5th DCA 1995); Curry v. Wainwiight, 419 So.2d 744 (Fla. 5th DCA 1982).

      . See State v. McBride, 848 So.2d 287 (Fla. 2003).

      . Although the trial court in the November order advised Leiffer of his right to appeal within 30 days, this information is only required under Rule 3.850, not Rule 3.800(a). See Dunbar v. State, 688 So.2d 993 (Fla. 5th DCA 1997).


text:
    Gary DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5536.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Gary Davis, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant has failed to demonstrate that the notice of appeal was placed into the hands of prison officials for mailing within 30 days of the date of the final order sought to be reviewed. See Fla. R.App. P. 9.420(a)(2). Accordingly, this appeal is DISMISSED for lack of jurisdiction. Fla. R.App. P. 9.110.

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


author: BENTON, J.

text:
    Frederick LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4057.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.

      Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; James W. Rogers, Senior Assistant Attorney General and Daniel A. David, Assistant Attorney General, Tallahassee, for Appel-lee.
   BENTON, J.

Frederick Lane appeals his conviction for resisting a merchant’s employee’s efforts to recover stolen property in violation of section 812.015(6), Florida Statutes (2002), arguing that the trial court’s failure to instruct the jury on two of the elements of the crime constituted fundamental error. We affirm.

Mr. Lane was tried on an information that charged not only resisting a merchant’s employee’s efforts to recover stolen property, but also felony petit theft of the same property in violation of section 812.014(3)(c), Florida Statutes (2002), and was convicted on both charges.

The trial court gave the standard jury instruction regarding felony petit theft and, regarding resisting a merchant’s employee’s efforts to recover stolen property, instructed the jury:

Now as to Count II, before you can find the defendant guilty of resisting retail merchant without violence the State must prove the following three elements beyond a reasonable doubt, first that Frederick Lane ... resisted the reasonable efforts of Kevin Riddle to recover merchandise, second, at the time Kevin Riddle had probable cause to believe that Frederick Lane ... had concealed or removed merchandise from its place of display, and third, at the time Kevin Riddle was merchant employee.

While appellant now contends that this instruction omitted two elements of the statutory offense, at no time did trial counsel state any objection to any aspect of the jury instructions, or offer any alternative.

On appeal for the first time, appellant complains specifically that the jury was not required to find either that he had offered resistance while he was committing (or after he had already committed) a theft of the merchandise he had removed or concealed; or that he knew or had reason to know that Mr. Riddle was a Walgreens employee. In pertinent part, the statute proscribing resisting a merchant’s employee’s efforts to recover stolen property provides:

An individual who, while committing or after committing theft of property, ... resists the reasonable effort of a ... merchant’s employee ... to recover the property ... which the ... merchant’s employee ... had probable cause to believe the individual had concealed or removed from its place of display or elsewhere ... commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a ... merchant’s employee.... For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.

Section 812.015(6), Florida Statutes (2002). To convict under this statute, the state must indeed prove that the defendant resisted “while committing or after committing theft of property”; and that the person whose efforts to secure the property’s recovery the defendant resisted was someone the defendant knew or had reason to know was (a merchant or) a merchant’s employee.

But jury “[instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So.2d 701 (Fla.1978); Brown v. State, 124 So.2d 481 (Fla.1960).” State v. Delva, 575 So.2d 643, 644 (Fla.1991). Whether an omission or other error in jury instructions is fundamental depends, under the cases, on whether it pertains to a factual determination the jury must make in the particular case. While it can be “fundamental error to give a ... jury instruction which contained an erroneous statement as to the knowledge element of the charged crime,” Reed v. State, 837 So.2d 366, 369 (Fla.2002) — or omitted the element altogether — “[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” Delva, 575 So.2d at 645. In the present case there was no dispute about Frederick Lane’s knowledge that Kevin Riddle worked for Walgreens. His defense rested on his testimony that he had brought the merchandise into the store with him. Defense counsel made no other argument to the jury-

Otherwise stated, appellant’s defense was that no property had been stolen. Reasonable doubt as to this element would have required acquittal, yet the theft element was also omitted from the jury instruction defining the crime of resisting a merchant’s employee’s efforts to recover stolen property. As we have held, such an omission is error. Williams v. State, 745 So.2d 465, 466 (Fla. 1st DCA 1999) (“Appellant correctly argues that the jury should have been instructed that in order to convict appellant of resisting a retail merchant it had to find that appellant was committing or had committed theft.”). Because this element was in dispute, the error would require reversal here, notwithstanding the lack of an objection below, but for the fact that the same jury found Mr. Lane guilty on the same evidence on the theft count that was tried simultaneously.

The defendant in Williams was acquitted on the theft count. Here, where appellant was convicted on the theft count, we cannot say that the error in the instruction on the resisting count “reach[ed] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So.2d 481, 484 (Fla.1960). The conviction for theft transformed the omission of theft as an element of the resisting count from fundamental error to error requiring preservation by trial counsel. See generally Pope v. State, 702 So.2d 221, 223-24 (Fla.1997) (“The objection at trial must attack the instruction itself, either by submitting a[n] ... instruction or by making an objection to the instruction as worded.”).

Affirmed.

BOOTH and LEWIS, JJ., concur.


text:
    Tareyan COOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5506.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Tareyan Cooks, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

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


author: KAHN, J. ERVIN, J.,

text:
    Mary BUSSEY, Appellant, v. WAL-MART STORE # 725 and Integrated Administrators, Appellees.
    No. 1D02-4804.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Ervin, J., concurred and dissented with opinion.

      Nora Leto of Kaylor & Kaylor, Winter Haven, for Appellant.
    Thomas P. Yecchio of Ross, Vecchio, & Trussed, P.A., Lakeland, for Appellees.
   KAHN, J.

In this case we are asked to decide whether failure of an employer/carrier (E/C) to respond within 134 days to a section 440.192(8) petition for workers’ compensation benefits waives the E/C’s right to later contest the injured employee’s entitlement to particular requested benefits. We affirm because no such waiver occurred.

Claimant, Mary Bussey, worked for Wal-Mart as a cashier. On November 17, 2001, claimant fell at work and broke her wrist while trying to avoid a collision with a small child. Instead of immediately reporting the injury, Bussey completed her day’s work and sought treatment at a local emergency room the next day. Bussey told the emergency room personnel that she had tripped over her dog while at home. She later admitted that she chose this course of action because she feared a post work-related accident urinalysis would indicate marijuana use. On November 20, 2001, Wal-Mart’s manager learned that Bussey’s injury occurred on the job. She instructed Bussey to go to Wal-Mart’s designated treatment provider. Bussey complied and submitted to a urinalysis. On November 26, 2001, Wal-Mart terminated Bussey because the results of her urinalysis confirmed marijuana use. Wal-Mart did not attempt to invoke the provisions of the drug-free workplace program outlined in section 440.102 and continued to pay for claimant’s medical expenses after her termination.

On February 1, 2002, the claimant filed a petition requesting, among other things, payment of temporary partial disability (TPD) benefits. The E/C did not deny or otherwise respond to the petition. The parties agreed during the final hearing held on September 27, 2002, that Bussey’s entitlement to TPD benefits was the only disputed issue remaining. After the hearing, the Judge of Compensation Claims issued a final order denying claimant’s entitlement to TPD benefits. The JCC found that Bussey’s lost earnings resulted from the termination for drug use rather than the work-related injury. He further found that the E/C’s failure to respond to claimant’s petition for benefits did not amount to a waiver of defenses under section 440.192(8) or section 440.20(4), Florida Statutes.

On appeal, claimant argues that the E/C’s failure to deny the petition for benefits mandates payment of the requested TPD benefits. Resolution of the issue requires a review of this court’s previous decisions construing section 440.192(8) and 440.20(4). We focus upon the interpretation of statutory language relating to the “pay and investigate” rule and the effect of an E/C’s failure to file a denial of a section 440.192(8) petition for benefits.

Section 440.192 outlines the procedure for resolving benefit disputes. By its terms, “any employee who has not received a benefit to which the employee believes she or he is entitled” may file a petition for benefits with the Office of the Judges of Compensation Claims. § 440.192(1), Fla. Stat. (2002). Upon receiving the petition for benefits, an E/C has 14 days to “either pay the requested benefits without prejudice to its right to deny within 120 days from receipt of the petition or file a response to the petition .... A carrier that does not deny com-pensability in accordance with s. 440.20(4) is deemed to -have accepted the employee’s injuries as compensable.” § 440.192(8), Fla.Stat. (2002). In this case, claimant argues that because the E/C failed to file a denial or response in either the 14 days after receipt of the petition or the 120 days after that period, it should not be allowed to contest her entitlement to TPD benefits. We reject this argument.

In Waffle House v. Hutchinson, we addressed the effect of failure to respond to a petition for benefits within 14 days of receipt. 673 So.2d 883 (Fla. 1st DCA 1996). There, we held that such a failure'resulted in a procedural default in which the E/C “was properly deemed by operation of the statute to have accepted the claim as com-pensable.” Id. at 885. We have since expressly overruled our holding in Waffle House.

In North River Insurance Co. v. Wuelling, this court, sitting en banc, reversed an order holding that an E/C’s failure to deny compensability within 14 days barred- assertion of a statute of limitations defense against a claim for benefits.' 683 So.2d 1090 (Fla. 1st DCA 1996). We analyzed the interrelationship between section 440.192(8) and section 440:20(4). Section 440.20(4) provides in part:

If the carrier is uncertain of its obligation to provide benefits or compensation, it • may initiate payment without prejudice and without admitting liability. The carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8).... A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability.

We noted, “the third sentence of 440.192(8) which reads: ‘A carrier that does not deny compensability in accordance with s. 440.20(4) is deemed to have accepted the employee’s injuries as compensable ... ’ refers to and is a reiteration of the waiver provision of 440.20(4) as it relates to the opportunity to pay and investigate.” Wuelling, 683 So.2d at 1092. We concluded that neither section 440.192 nor section 440.20 imposed a penalty for failing to timely deny a petition for benefits or barred an E/C from defenses to a petition for benefits. Id. Accordingly, we receded from our contrary holding in Waffle House. Id.

Thereafter, we had occasion to comment further upon the effect of an E/C’s failure to respond to a petition for benefits within 14 days. In Russell Corp. v. Brooks, we reiterated our disapproval of Waffle House and stated that an E/C’s failure to respond to a petition for benefits operates “not as an admission of compensability but as a denial of every allegation in the petition for benefits.” 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). From that point forward, we have consistently adhered to this interpretation. See, e.g'., Mitchell v. Sunshine Cos., 850 So.2d 632, 633 (Fla. 1st DCA 2003) (noting that a failure to timely respond is the procedural equivalent of a notice of denial); Denestan v. Miami-Dade County, 789 So.2d 515, 516 (Fla. 1st DCA 2001) (holding that the late filing of notice of denial did not bar E/C from asserting statute of limitations defense); McDonald’s Rest. # 7160 v. Montes, 736 So.2d 768, 769 (Fla. 1st DCA 1999) (noting that a “carrier that fails to respond to a claimant’s petition for benefits within 14 days is deemed to have denied the claim”); Alachua County Bd. of County Comm’rs v. Starling, 699 So.2d 310, 311 (Fla. 1st DCA 1997) (holding that failure to respond does not amount to a procedural default). Thus, our precedent establishes that the E/C’s decision not to respond within 14 days operates as a denial. Bussey, nevertheless, places a great deal of emphasis upon the language in section 440.192(8) referring to the 120-day “pay and investigate” period outlined in section 440.20(4). We agree that an E/C opting to pay benefits while reserving the right to deny com-pensability pursuant to section 440.20(4) must deny within 120 days or waive the right to challenge compensability. Here, however, the E/C did not invoke the pay and investigate option.

The 120-day period becomes relevant only when an E/C has elected to pursue the “pay and investigate” option. Section 440.20(4) applies to a carrier that is “uncertain of its obligation to provide all benefits or compensation” and gives the E/C an option to pay benefits while reserving the right to later deny compensability after investigation. See Wuelling, 683 So.2d at 1092 (finding that the “deemed compensa-ble” language in section 440.192(8) “refers to and is a reiteration of the waiver provision of 440.20(4) as it relates to the opportunity to pay and investigate ” (emphasis added)). Here, the E/C was not uncertain and needed no investigation because Wal-Mart knew it had discharged claimant for drug use. As a result, the 120-day period was never triggered in this case.

Under section 440.20(4), the 120-day period is measured from the “initial provision of benefits or payment of compensation as required under ... s.440.192(8).” Here, claimant filed her petition for benefits pursuant to section 440.192(8) and the E/C made no payments in response to that petition. Wal-Mart never denied com-pensability, but by operation of law, denied Bussey’s right to temporary partial disability. A claim for temporary partial disability, temporary total disability, permanent total disability, or impairment benefits may well, as in this case, raise questions quite different from the question of com-pensability of an accident. We do not read “entitlement to benefits” to mean the same as “compensability.” Section 440.20(l)(a) directly recognizes that a carrier may deny “compensability or entitlement to benefits.” (emphasis added). See Wuelling, 683 So.2d at 1092 (noting that compensability and entitlement to benefits are separate concepts, and that the last sentence of section 440.20(4) refers to “the issue of compensability” indicating a distinction from other concepts). Bussey’s temporary partial disability claim raises questions not concerning the compensability of her accident, but concerning the causal relationship between her injury and her lost earnings.

The purpose of the 120-day limit is to ensure that an E/C complies with the mandate of section 440.20(4) to “immediately and in good faith commence investigation of the employee’s entitlement to benefits.” Our interpretation is consistent with the legislative goal of speedy resolution of claims and protects a claimant from prolonged periods of uncertainty regarding the E/C’s position on the claim’s compens-ability.

The dissent would require further briefs on an issue never before even remotely hinted at in this case. At the short hearing below, the only issue involved application of section 420.20(4). As stated by counsel for Bussey:

MS. LETO: This is a very simple, and yet, at the same time, very complicated case. There’s only just — -it’s just one issue. And that issue is a legal issue. I don’t think the facts in this case are really in dispute.
The only issue for this Court to decide, I believe, is that — is whether the 120-day rule applies in this case, and renders Ms. Bussey’s claim, for temporary partial disability to be allowable because the employer/carrier failed to deny the claim within 120 days.

(emphasis added). In the order on review, the judge acknowledged that no facts were in dispute, and the only “dispute in this case centers around whether the 120-day ‘pay-and-investigate’ rule as set forth in § 440.24(4), Florida Statutes, bars the Employer/Carrier from controverting entitlement to TPD.” Finally, in her brief, Bussey does not suggest the argument made by the dissenting opinion. Instead, in the only issue on appeal, Bussey argues that section 440.20(4) “requires a payment of benefits not specifically controverted within 120 days of the request for benefits.” Nothing in this case supports even an inference that Bussey attempted to avoid the E/C’s defense with any evidence. Thus, no record exists to support the argument Judge Ervin would make on Bussey’s behalf.

Accordingly, we find that an E/C which neither denies a petition for benefits within 14 days of receipt nor elects to pay and investigate pursuant to section 440.20(4) is placed in the “identical position as the E/C that files a notice of denial.” Russell Corp., 698 So.2d at 1336 (Ervin, J., concurring). Therefore, the order of the JCC is AFFIRMED.

BOOTH, J., concurs; ERVIN, J., concurs and dissents w/ opinion.

ERVIN, J.,

concurring and dissenting.

I agree with the majority’s conclusion that the payment of claimant’s medical expenses for a period of time in excess of 120 days from the initial provision of same does not obligate the employer/carrier (E/C) to pay as well claimant’s temporary partial disability (TPD) benefits. The clearly expressed language of sections 440.192(8) and 440.20(4), Florida Statutes (2001), when considered in pari materia, provides that an employer’s waiver of its right to contest applies only to the com-pensability of an alleged injury, not to every claimed benefit requested. The burden remains on the claimant to establish whether a covered injury causes a change in employment status that entitles him or her to benefits. See Thompson v. City of Jacksonville, 654 So.2d 1178, 1180 (Fla. 1st DCA 1995). Obviously, the occurrence of a compensable injury does not necessarily mean that claimant has suffered a disability, meaning an “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(12), Fla. Stat. (2001) (emphasis added). Therefore, claimant must prove that her compensable injury caused a loss in her wage-earning capacity.

The judge’s order, did not, however, simply reject the claimant’s section 440.20(4) waiver argument. It specifically addressed the E/C’s defense that claimant was not entitled to indemnity benefits because claimant was terminated from her employment for reasons unrelated to her industrial injury, i.e., her positive post-accident drug test, and if it had not been for this violation of the employer’s policy, work would have been available to her within her assigned medical restrictions. As a consequence, the E/C maintained, claimant failed in her burden to establish a causal connection between the injury and loss of earning capacity after termination.

Although it is true, as observed in the majority’s opinion, the judge’s order recited that the parties’ dispute “centers around whether the 120-day ‘pay-and-investigate’ rule ... bars the Employer/Carrier from controverting entitlement to TPD,” the order also inconsistently stated:

Based on the foregoing[] and based on explanations and stipulations of counsel, the primary issue for the Court’s determination at the time of the Final Heating was the Claimant’s entitlement to TPD. The Claimant asserts that she is entitled to TPD for all times after 11/17/01 [the date of her industrial injury] because she was not working and therefore suffered a reduction in wages/earnings. The Employer/Carrier asserts that the Claimant is not entitled to TPD because Wal-mart could have offered her employment within her physical restrictions, but her termination for cause (the positive post-accident drug test) precludes any entitlement to TPD.

(Emphasis added.) At the conclusion of the hearing, the JCC denied the claim for TPD for the specific reason that claimant’s misconduct was the sole cause of her wage loss.

The majority’s opinion obviously affirms not only the JCC’s rejection of claimant’s default argument, but the judge’s acceptance of the E/C’s defense to the request for TPD benefits. Appellant did not raise the latter determination as an issue on appeal. Although I am well aware of the rule requiring preservation of an issue as a precondition to our prerogative to consider an issue on appeal, there is, nevertheless, a very narrow exception to this rule, which recognizes that once an appellate court assumes jurisdiction over an appeal, it may, if it decides it necessary to do so, consider any issue that could affect the appeal. See Cantor v. Davis, 489 So.2d 18, 20 (Fla.1986); Drains v. Drains, 627 So.2d 505, 508-09 (Fla. 2d DCA 1993). The case at bar is an appropriate case for the application of the exception in that if we do not address the reason the JCC gave for denying the TPD claim, i.e., claimant’s misconduct, a possible erroneous conclusion may bar a disabled employee from the indemnity benefits to which she might be entitled if the issue were properly before us.

It appears to me, without the benefit of further briefing, that the JCC incorrectly focused on the fact that claimant’s misconduct in using drugs resulted in her termination from employment, and concluded therefrom that this was the sole cause of her loss of wages, without explicitly deciding whether the industrial injury may have independently contributed to her wage loss. The rule is well established that once evidence is submitted showing that a claimant was terminated from employment for reasons unrelated to the work-related accident, the judge is required to decide whether the claimant satisfied her burden of establishing a causal connection between the injury and loss of earning capacity after termination. See Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173, 1178 (Fla. 1st DCA 2003); Jefferson v. Wayne Dalton Corp., 793 So.2d 1081, 1084 (Fla. 1st DCA 2001). The required nexus can only “be determined by the JCC upon a consideration of the totality of the circumstances.” Stewart, 855 So.2d at 1177 (emphasis added). I am unable to discern from my review of the order whether the judge, in denying the requested benefits, took into consideration the above rules.

Substantial case law permits this court to direct the parties to furnish it with additional briefing on an unraised issue. For example, in Department of Health and Rehabilitative Services v. Lee, 665 So.2d 304, 305 (Fla. 1st DCA 1995), this court decided the case, after further briefing, on an issue that the parties had not initially briefed, i.e., that of sovereign immunity. The opinion recited that notwithstanding the failure of the parties to address the issue, it had been raised at the trial level, and it could therefore properly be considered on appeal. Id. at 305, n.3.

Under the circumstances, I am not prepared to join the majority in affirming the order in its entirety without additional briefing from the parties on the question whether claimant may, despite her termination from employment for reasons unconnected with her compensable injury, otherwise be entitled to indemnity benefits for the reason that the industrial injury may have independently contributed to her loss of earning capacity after termination.

      . The preceding paragraph of the order stated, among other things, the E/C's position that claimant had been provided all benefits which she was entitled, and, in particular, it disputed her entitlement to TPD benefits.


text:
    Roland VINES, Appellant, v. James MATHIS and Bettye Mathis, Appellees.
    No. 1D03-426.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Ross McCloy and Kevin D. Obos of Harrison, Sale, McCloy & Thompson, Chartered, Panama City, for Appellant.
    Joseph A. Zarzaur, Jr., and Phil Hall, of McKenzie, Taylor & Zarzaur, P.A., Pensacola, for Appellees.
   KAHN, J.

Appellant, Roland Vines, appeals an order denying his motion for attorneys’ fees and costs pursuant to section 768.79(1), Florida Statutes (2001). Because appel-lees, James and Bettye Mathis, refused Mr. Vines’ offer of judgment and later failed to obtain a judgment against him, we reverse.

The Mathises sued Mr. Vines and Panama Country Club, Inc. (PCC) for injuries sustained by Mr. Mathis when he fell into a hole created by a leaking drainage pipe located in his yard. The Mathises alleged that Mr. Vines and PCC had negligently repaired the pipe. Prior to trial, Mr. Vines served separate offers of judgment on Mr. and Mrs. Mathis totaling $10,000. Post offer, Mr. and Mrs. Mathis settled with PCC for $60,000. The Mathises never accepted Mr. Vines’ offer of judgment and they proceeded to jury trial on their claims. The jury found no liability as to Mr. Vines and the trial court entered a judgment accordingly.

Mr. Vines timely filed a motion seeking attorneys’ fees and costs pursuant to section 768.79(1) which provides:

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

The trial court denied the motion. Relying upon the decision in Florida Gas Transmission Co. v. Lauderdale Sand & Fill, Inc., 813 So.2d 1013 (Fla. 4th DCA 2002), it concluded that the $60,000 that Mr. and Mrs. Mathis received from PCC should be considered in determining whether they received a judgment which was at least 25% less than Mr. Vines’ offer of judgment. Mr. Vines argues that the trial court misapprehended both the offer of judgment statute and the Florida Gas decision. We agree.

The use of the disjunctive “or” in section 768.79(1) between the phrase “the judgment is one of no liability” and the phrase “the judgment obtained by the plaintiff is at least 25 percent less than such offer,” indicates that no further analysis of the judgment need occur when a no liability judgment is entered. Absent a finding that Mr. Vines’ offer of judgment was not made in good faith, the trial court’s entry of a no liability judgment mandated an award of attorneys’ fees and costs incurred after the date the offer was served. See Jordan v. Food Lion, Inc., 670 So.2d 138, 140 (Fla. 1st DCA 1996) (holding that section 768.79 “creates a mandatory right to attorney’s fees” when a party has made an offer of judgment and the judgment entered against that party is at least 25% less than the offer). The $60,000 settlement between PCC and the Mathises did not affect Mr. Vines’ entitlement to an award of fees and costs.

Under section 768.79, settlements with co-defendants need only be considered when those settlement amounts have been applied to offset a verdict against a non-settling defendant. Section 768.79(6) provides, in part, that “the term ‘judgment obtained’ means the amount of the net judgment entered, plus any postoffer collateral source payments ..., plus any pos-toffer settlement amounts by which the verdict was reduced.” (emphasis added). Here, there was no judgment against Mr. Vines which might have been reduced.

The Mathises’ reliance upon Florida Gas is misplaced. That decision does not compel a different interpretation of section 768.79(1). There, Florida Gas appealed the denial of attorneys’ fees after the trial court determined that settlement amounts from Florida Gas’s co-defendants could be considered in determining the plaintiffs net judgment obtained. The Fourth District, however, reversed and held that “based on the no liability verdict, alone, the trial court should have found that Florida Gas was entitled to fees.” Florida Gas, 813 So.2d at 1014.

Nevertheless, Mr. and Mrs. Mathis argue that because their claims against Mr. Vines and PCC were identical, the $60,000 received from PCC should be considered the net “judgment obtained” under section 768.79(1). They, rely on dicta in Florida Gas which stated:

In calculating “judgments obtained” for purposes of a defendant’s offer of judgment, it is proper to include as setoffs amounts recovered by the plaintiff in settlements with other defendants when the suits against all of the defendants involve the same claims. When a plaintiff has separate and distinct claims against more than one defendant,- however, setoff is inappropriate.

Florida Gas, 813 So.2d at 1015 (citation omitted). This language, however, served only to illustrate that even if the plaintiff had obtained judgment against Florida Gas, the settlement amounts with other defendants should not have been considered because they arose from different claims. See generally § 768.041(2), Fla. Stat. (2001) (allowing for setoffs against judgments where co-defendants have settled “in partial satisfaction of the damages sued for”). The hypothetical nature of the court’s comments in Florida- Gas is revealed in the opinion’s closing language which provides that “even in the absence of a no liability verdict, it would have been improper for the trial court to consider the payments received by appellees in settlement of the unrelated claims.” Florida Gas, 813 So.2d at 1015. Mr. and Mrs. Mathis go astray by implicitly assuming that a no liability judgment is actually a net judgment for zero dollars, thus triggering the mechanism of section 768.79(6). We reject this assumption because section 768.79(1) is clear and unambiguous.

Consequently, we hold that entry of the no liability judgment in favor of Mr. Vines mandated an award of attorneys’ fees and costs absent a finding that his offer of judgment was not made in good faith. We, therefore, REVERSE and REMAND for further proceedings consistent with this opinion.

BENTON and VAN NORTWICK, JJ., CONCUR.


text:
    Eugene DUCKWORTH, Petitioner, v. DEPARTMENT OF CORRECTIONS and Florida Parole Commission, Respondents.
    No. 1D03-3842.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.

      Eugene Duckworth, petitioner, pro se.
    Louis A. Vargas, General Counsel, and Beverly Brewster, Assistant General Counsel, for respondent Florida Department of Corrections.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, for respondent Florida Parole Commission.
   PER CURIAM.

We conclude that the circuit court departed from the essential requirements of law when it denied Eugene Duckworth’s petition for writ of habeas corpus without issuing an order to show cause. Duck-worth challenged the revocation of his conditional release supervision, and alleged in his sworn petition that the hearing examiner failed to subpoena two witnesses he requested for the revocation hearing. In addition, he adequately alleged a basis for concluding that the testimony of these witnesses would have been relevant and material. The allegations of the petition were thus sufficient to require the issuance of an order to show cause. Cf. Holcomb v. Department of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992) (inmate alleging denial of right to call witnesses in disciplinary hearing should identify the requested witnesses and provide a brief statement of what their testimony would have been); Kendrick v. Florida Parole Commission, 855 So.2d 248 (Fla. 1st DCA 2003) (sworn allegations concerning absence of subpoenaed witness at conditional release revocation hearing sufficient to warrant order to show cause). Accordingly, the order of the circuit court summarily denying the petition is hereby quashed, and the matter is remanded for further proceedings.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Myron D. TYSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5550.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Myron Tyson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

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


text:
    Antwain S. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0090.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Antwain S. Kelly, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Brown v. Florida Parole Comm’n, 763 So.2d 1262 (Fla. 1st DCA 2000).

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    Steven ALLMOND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0093.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Steven Allmond, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as proeedurally barred. Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Michael P. LaMADLINE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D03-5377.
    District Court of Appeal of Florida, First District.
    March 1, 2004.

      Michael P. LaMadline, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

Michael P. LaMadline appeals a nonfinal order denying his request to proceed as an indigent in the circuit court. We dismiss the appeal in accordance with Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000). Despite LaMadline’s suggestion that jurisdiction to review such an order exists under Florida Rule of Appellate Procedure 9.430, that rule only authorizes the review of an order of a lower tribunal relating to a request to proceed as an indigent in appellate proceedings. As we observed in Brown, the proper means for LaMadline to seek review of the denial of his request for leave to proceed as an indigent in the trial court is to timely appeal any final order dismissing the petition he filed in that forum.

APPEAL DISMISSED.

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    R. F., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2966.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

PALMER, ORFINGER and MONACO, JJ., concur.


text:
    Jacob Herman BAAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2723.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Jacob H. Baas, Wewahitehka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., THOMPSON and PALMER, JJ., concur.


text:
    Ishmael Mathious ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2507.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See, e.g., Davidson v. State, 701 So.2d 123 (Fla. 5th DCA 1997).

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


text:
    Mario Maurice SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2477.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., THOMPSON and TORPY, JJ., concur.


text:
    Sunny S.D. DURSO, Appellant, v. Brian W. DURSO, Appellee.
    No. 5D03-2273.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.

      Sunny S.D. Durso, Brooksville, pro se.
    Glen E. Greenfelder of Greenfelder, Mander, Murphy, Dwyer & Morris, Dade City, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979); Prymus v. Prymus, 753 So.2d 742 (Fla. 3d DCA 2000).

PLEUS, PALMER and ORFINGER, JJ., concur.


text:
    J.M.C., Jr., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2157.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See A.B.G. v. State, 586 So.2d 445 (Fla. 1st DCA 1991).

PETERSON, THOMPSON and MONACO, JJ., concur.


text:
    Speed Edward MUSICA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2059.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    Speed Edward Música, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Madrigal v. State, 683 So.2d 1093 (Fla. 4th DCA 1996); and Davis v. State, 677 So.2d 1366 (Fla. 4th DCA 1996).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Christopher WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1903.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2004.
    James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Baldwin, 709 So.2d 636 (Fla. 2d DCA 1998).

PLEUS, PALMER and ORFINGER, JJ., concur.