author: GREEN, J. COPE, J.,

text:
    FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC.; United States Fidelity & Guaranty Co.; and International Insurance Co., Appellants, v. FEDERATED DEPARTMENT STORES, INC., d/b/a Bloomingdale’s; Bloomingdale’s, Inc.; and Bernard Kroll, individually, Appellees.
    Nos. 3D01-1216, 3D01-1227.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing and Rehearing En Banc Denied May 16, 2003.

      Simmons & Dunlap and Judith W. Simmons (Tampa); Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A. and Gary Khutorsky; Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. (Ft. Lauderdale), for appellants.
    Larson«King, LLP, and Lowry Barfield, and Adam B. Leichtling, for appellees.
    Before COPE, GERSTEN, and GREEN, JJ.
   GREEN, J.

On this appeal, appellants, Fidelity Guaranty Insurance Underwriters, Inc. and United States Fidelity and Guaranty Company (collectively “USF & G”) appeal an adverse final summary declaratory judgment determining that appellees, Federated Department Stores, d/b/a Bloomingdale’s (collectively “Bloomingdale’s”), and Bernard Kroll, individually, were entitled to insurance coverage under its policy. On cross-appeal, the appellees assert that the trial court erred in failing to award them pre-judgment interest. For the reasons outlined herein, we affirm the final summary judgment and reverse the order denying pre-judgment interest to the appellees.

I. BACKGROUND

Bloomingdale’s department store, located at the Falls Shopping Center in Miami-Dade County, Florida, sustained severe structural damage as a result of Hurricane Andrew in August, 1992. After an investigation, Bloomingdale’s concluded that its building construction and design had not been in compliance with numerous requirements of the South Florida Building Code at the time of the storm. Bloomingdale’s filed suit against the general contractor, Bernard Kroll, individually, and several of his companies.

Mr. Kroll had been the permit holder/qualifying agent for the construction of the Bloomingdale’s store as well as its licensed general contractor. The building permit remained in Kroll’s name throughout the completion of the project. At the commencement of the construction, Kroll was an officer and director of Kroll Enterprises, Inc. (“Kroll I”) and its wholly owned subsidiary, Kroll Construction Company. Kroll sold his ownership interest in these companies and formed B.K. General Contractors, Inc. in January, 1984. Kroll, however, remained the permit holder/qualifying agent for the Bloomingdale’s project. He transferred his general contracting license from his old company to his new company, B.K. General Contractors. Kroll continued to provide construction services to the Bloomingdale’s project through B.K. General Contractors, of which he was an officer, director, and sole shareholder. Further, Kroll personally, and as president of Kroll Enterprises, Inc., granted Kroll Construction Company performance for the Bloomingdale’s project.

After Kroll sold all of his stock and interest in Kroll I, that company’s name was changed to Coutinho Construction International, Inc. (“Coutinho Construction”), and Coutinho Construction was sued in Bloomingdale’s underlying action as a company formerly known as Kroll Enterprises, Inc. Additionally, on February 11, 1985, Kroll Construction Company changed its name to Coeng Enterprises, Inc. (“Coeng Enterprises”), and this entity was sued in the underlying action as a company formerly known as Kroll Construction Company.

On February 19, 1986, Kroll formed a second corporation which was also named Kroll Enterprises, Inc. (“Kroll II”). Like Kroll I, Bernard Kroll was its president and director. Kroll II was an active business entity on the date of the losses alleged in Bloomingdale’s underlying litigation.

II. THE USF & G POLICY

Kroll had purchased a “completed operations coverage” policy from USF & G. This policy was issued in 1991, and was in effect at the time of the alleged losses. The policy identified the “named insured” as:

BK GENERAL CONTRACTORS, INC.
AND KROLL; CMT, INC.
KROLL ENTERPRISES, INC.
KROLL REPUBLIC, INC.
B.K. GENERAL CONTRACTORS OF NEW JERSEY
Suite 275,150 Interstate North Pkwy. Atlanta, GA 30339

The policy stated that it also provided coverage for the officers, directors, and sole shareholders of B.K. General Contractors, Inc. (i.e. Kroll). The policy also contained an exclusion for liability contractually assumed by the insured.

USF & G defended Kroll in Bloomingdale’s suit with a reservation of rights, but maintained that it owed no duty to indemnify him under its policy. Kroll and his companies disputed this and demanded that they be provided a full defense and indemnification.

III. SETTLEMENT AND INSURANCE DECLARATORY SUIT BELOW

During the pendency of Bloomingdale’s suit, a settlement agreement was reached between Bloomingdale’s, Coutinho Construction (the successor corporation for Kroll I), Kroll individually, and USF & G. According to the terms of this agreement, the parties agreed, inter alia, that USF & G would make an immediate payment to Bloomingdale’s, USF & G would litigate coverage with Kroll and his companies, as well as Bloomingdale’s in a declaratory action, and if coverage was found to exist for any claims brought against Kroll or his companies, USF & G would pay, in addition to amounts previously paid, the full amount of its indemnity coverage plus an additional 55%. Pursuant to this agreement, the appellees filed the declaratory action below against USF & G seeking to establish the existence of an indemnity obligation under the USF & G policy for claims asserted against Kroll and/or the Kroll entities in the Bloomingdale’s litigation.

Cross-motions for summary judgment on the coverage issue were subsequently filed. The material undisputed facts established from the record evidence in support of these motions were as follows:

1. The named insureds listed under the USF & G policy at issue were:
BK GENERAL CONTRACTORS, INC.
AND KROLL; CMT, INC.
KROLL ENTERPRISES, INC.
KROLL REPUBLIC, INC.
B.K. GENERAL CONTRACTORS OF NEW JERSEY
Suite 275,150 Interstate North Pkwy.
Atlanta, GA 30339
2. The policy provides completed operations coverage.
3. There is no policy requirement that any of the named corporate insured be an active company during the policy period.
4. Kroll I was involved in the construction of Bloomingdale’s at least through the summer of 1984 and remained liable for the defective construction of the store through the running of the applicable statute of limitations period.
5. Bernard Kroll was individually liable for the defective construction of Bloomingdale’s by virtue of being the permit holder/qualifying agent for the construction.
6. Kroll sold his interest in Kroll I and its subsidiary Kroll Construction Company in January, 1984, but continued to be the permit holder/qualifying agent for the Bloomingdale’s construction. Kroll also continued to provide construction services to the project.
7. Kroll formed B.K. General Contractors, Inc. in January 1984 and continued to provide construction services to the Bloomingdale’s project as its sole shareholder.
8. The USF & G policy provides coverage for B.K. General Contractors, Inc. and its officers, directors and sole shareholder.
9. The claims asserted against Kroll in the underlying action were limited to his role as the qualifying agent for the general contractor, Kroll Construction Company, and as personal guarantor of Kroll Construction Company’s obligations, and the claim asserted against Kroll Enterprises, Inc. was under the guaranty.
10. The guaranty was executed by Kroll on May 26, 1983 individually and as president of Kroll I. It personally and unconditionally guaranteed Kroll Construction Company’s performance to Bloomingdale’s under the 1982 contract for the construction of the Bloomingdale’s store.
11. Kroll I was the party to the guaranty at issue with Bloomingdale’s.
12. Kroll Construction Company was a wholly owned subsidiary of Kroll I as of the date of the construction contract.
13. In January 1984, Kroll, after the execution of the construction con-trad and guaranty, sold all of his stock in Kroll I and resigned as its officer and director.
14. Kroll I changed its name to Coutin-ho Construction International, Inc. and was sued in the underlying suit as a company formerly known as Kroll Enterprises, Inc.
15. On February 11, 1985, Kroll Construction Company changed its name to Coeng Enterprises, Inc. and Coeng Enterprises was sued in the underlying suit as a company formerly known as Kroll Construction Company.
16. On February 19, 1986, Kroll formed a second corporation with the name Kroll Enterprises, Inc. (“Kroll II”) and was its president and director.

The dispositive issue for the respective cross-motions for summary judgment was which of the two Kroll Enterprises, Inc. (i.e. Kroll I or Kroll II) was the named insured under USF & G’s policy. USF & G took the position that Kroll II was its named insured under the policy since Kroll I and not Kroll II was involved in the Bloomingdale’s construction project and underlying litigation, and Kroll had sold all of his interest in Kroll I prior to the issuance of this USF & G policy. Kroll, on the other hand, responded that Kroll I was indeed a named insured on USF & G’s policy. According to Kroll, he purchased “completed operations coverage” from USF & G for Kroll I to protect it and himself against potential ongoing legal liabilities for latent structural defects which manifested themselves only years later. Moreover, Kroll pointed out that USF & G’s policy did not limit coverage to only those business entities in which Kroll currently had an active interest.

The trial court granted summary judgment in favor of the appellees and found that both Kroll and Kroll Enterprises, Inc. were covered under USF & G’s policy for the underlying suit. In its final judgment, the trial court awarded post-judgment interest, but not pre-judgment interest. The instant appeal and cross-appeal were then taken.

On the main appeal, USF & G argues that the trial court erred in finding that the appellees had coverage under USF & G’s policy. First, USF & G asserts that the entry of summary judgment for Kroll Enterprises, Inc. was error because a latent ambiguity exists for which extrinsic evidence is required to be taken to determine which Kroll Enterprises, Inc. was the named insured under its policy. Further, USF & G maintains that the record evidence supports its assertion that Kroll II, rather than Kroll I, was the intended named insured, and since Kroll II was not involved in the Bloomingdale’s construction project or the underlying litigation, no coverage is available. For this reason, USF & G asserts that there is similarly no coverage for Kroll, individually, because for coverage to exist, Kroll’s acts must have arisen out of the business of a named insured. USF & G further maintains that Kroll’s name individually, on its policy as an insured is a mere scrivener’s error as both Kroll and his agent testified that their intent was to have Kroll covered to the extent of his liability as an officer or employee of the corporations that were named insureds. For these reasons, USF & G contends that it is entitled to have summary judgment entered in its favor or at the very least, have the summary judgment entered in favor of appellees reversed and have this cause remanded for extrinsic parol evidence to be taken as to the intent of the parties. The appellees respond that the undisputed record evidence established that both Kroll, individually and Kroll I were named insureds under USF & G’s policy. Alternatively, but equally important, they maintain that any ambiguity as to which Kroll Enterprises, Inc. was the named insured under the policy has to be construed in their favor as a matter of law. For that reason, they urge that the final summary judgment in their favor was appropriately entered.

On the cross appeal, the appellees further maintain that they are entitled to prejudgment interest. They assert that they are entitled to it as a matter of right under section 55.03, Florida Statutes (2001), and where it was not otherwise expressly waived in the parties’ settlement agreement.

IV. MAIN APPEAL

As to the main appeal, we agree with the trial court’s determination that coverage under the USF & G policy must be afforded to both Kroll Enterprises, Inc. and Kroll individually. First of all, this policy undisputedly insured a Kroll Enterprises, Inc., and a Kroll Enterprises, Inc. was sued in the underlying Bloomingdale’s litigation. On the one hand, the insurer essentially argues that there is no coverage because its policy was only intended to insure Kroll II. On the other hand, Kroll maintains that he paid USF & G premiums for coverage for Kroll I. We agree with the appellees that any ambiguity as to which Kroll Enterprises, Inc. was covered under the policy has to be liberally interpreted in favor of the insured and strictly against the insurer in accordance with well-entrenched Florida law. See Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla.1997); Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 359 (Fla. 4th DCA 2001); U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467, 471 (Fla. 3d DCA 1999); Utica Mut. Ins. Co. v. Pa. Nat’l Mut. Cas. Ins. Co., 639 So.2d 41, 43 (Fla. 5th DCA 1994); Nat’l Merch. Co., Inc. v. United Serv. Auto. Ass’n, 400 So.2d 526, 532 (Fla. 1st DCA 1981); Drisdom v. Guar. Trust Life Ins. Co., 371 So.2d 690, 692 (Fla. 3d DCA 1979); Travelers Ins. Co. v. C.J. Gayfer’s & Co., Inc., 366 So.2d 1199, 1201 (Fla. 1st DCA 1979).

If USF & G, as the drafter of this policy, wanted to limit its coverage only to a business entity in which Kroll currently had an active interest (i.e. Kroll II), it certainly could have done so in clear, unambiguous language. By failing to so limit coverage in its policy, USF & G cannot now insist upon a more restrictive interpretation of coverage under its policy. See Nat’l Merck, 400 So.2d at 530 (stating that: “The insurer cannot, by failing to define the terms ‘auto accident’ or to include any additional qualifying or exclusionary language, insist upon a narrow, restrictive interpretation of the coverage provided.”). There was nothing in USF & G’s “completed operations” policy to preclude Kroll from insuring his former company (i.e. Kroll I). Moreover, given the fact that both Kroll individually and Kroll I had continuing exposure or liability for this project, it was perfectly reasonable for Kroll to want to do so.

Since we conclude that coverage existed for Kroll I as a named insured, it necessarily follows that Kroll individually was also covered under USF & G’s policy. That is because the policy also provided “completed operations” coverage for officers and directors of the named insureds. We therefore need not consider USF & G’s alternative arguments, and turn our attention to the cross-appeal.

V. CROSS-APPEAL

The appellees assert that the trial court erred in not awarding them pre-judgment interest where it is an element of pecuniary damages and where their settlement agreement with USF & G did not contain an explicit waiver of pre-judgment interest. The insurer responds that pre-judgment interest was properly denied by the trial court where pursuant to the terms of the parties’ settlement agreement, its payment obligation to the appellees was outlined therein and triggered only if and when the appellees prevailed in this insurance declaratory action. Thus, the insurer maintains that the only reasonable construction of the settlement agreement is that pre-judgment interest was waived as there is no right to payment until judgment was entered.

We agree with the appellees that they are entitled to an award of pre-judgment interest where there was no explicit waiver of the same in the settlement agreement. Pre-judgment interest is recognized as merely another element of pecuniary damages such that when a verdict liquidates damages on a plaintiffs out-of-pocket pecuniary losses, plaintiff is entitled, as a matter of law, to pre-judgment interest at the statutory rate from the date of that loss. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214-15 (Fla.1985). Florida, like other jurisdictions, has adopted the “loss theory” approach to pre-judgment interest. Under this approach,

neither the merit of the defense nor the certainty of the amount of loss affects the award of prejudgment interest. Rather, the loss itself is a wrongful deprivation by the defendant of the plaintiffs property. Plaintiff is to be made whole from the date of the loss once a finder of fact has determined the amount of damages and defendant’s liability therefor.

Id. at 215; see also Nielsen-Miller Constr. Co. v. Pantlin/Prescott, Inc., 602 So.2d 1366, 1367 (Fla. 4th DCA 1992).

Contrary to the argument advanced by USF & G, the fact that there was an honest and bona-fide dispute between the parties as to whether there was coverage under the policy (and hence a debt due) has no bearing on the question of pre-judgment interest. See Lumbermens Mut. Cas. Co. v. Percefull, 653 So.2d 389, 390 (Fla.1995), citing Parker v. Brinson Constr. Co., 78 So.2d 873, 874 (Fla.1955). The rule is that if it is finally determined that the debt was due, the person to whom it was due is entitled not only to the payment of the principal of the debt but to interest at the lawful rate from the due date thereof. Id. Thus, in this case, where the parties stipulated to an amount to be paid once a judgment for coverage was rendered, the damages became liquidated as of the date of the stipulation and pre-judgment interest began to run from that date. See Underwriters Ins. Co. v. Kirkland, 490 So.2d 149, 154 (Fla. 1st DCA 1986).

For all of the foregoing reasons, we therefore affirm the summary judgment under review, but reverse that part which denied pre-judgment interest and remand with directions that such interests be awarded.

Affirmed in part and reversed in part with directions.

COPE, J.,

(specially concurring).

On the appeal, I agree on the result but do not entirely agree on the reasoning. Bernard Kroll was the qualifying agent in the joint venture which built Bloomingdale’s at the Falls. He remained personally liable as the qualifying agent after the joint venture split up. He created a new company, B.K. General Contractors, Inc., and while doing business there continued to have some, although limited, responsibility for the Bloomingdale’s project.

Kroll was eventually sued individually because he was the qualifying agent on the job. B.K. General was an insured entity and it is my view that under the terms of the policies, Kroll was entitled to coverage. The policies provided coverage for an individual who was an officer of an insured entity, and Kroll qualified as such. The insurer makes much of the fact that B.K. General was not a defendant, but that seems to me to be immaterial to the coverage issue.

I therefore concur in the result on the main appeal, and join the opinion on the cross-appeal.

      . Although International Insurance Company was a named appellant to this appeal, the parties stipulated to its dismissal prior to oral argument. For that reason, no further reference will be made to this party.

      . See section 302.1(d), S. Fla. Bldg.Code (1979 & 1984 eds.); section 553.73, Fla. Stat. (1991).

      . The sale agreement under which Kroll sold his interest in Kroll I and Kroll Construction Company had precluded Kroll from using the name ''Kroll” or any derivative thereof as a corporate name for a period of one year.

      . Exclusion b. provides that the coverage did not extend to:
      "Bodily injury” or "property damage” to which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
      (1) Assumed in a contract or agreement that is an "inured contract,” provided the "bodily injury" or "property damage” occurs subsequent to the execution of the contract or agreement; or
      (2) That the insured would have in the absence of the contract or agreement.

      . Florida's applicable statute of repose for actions for such defects is 15 years. See section 95.11-3(c), Fla. Stat. (1991).

      . Specifically, the settlement agreement provides:
      8. If a final order or judgment is entered in the insurance action, including any appeals therefrom, determining that USF & G policy, for any portion of the claims asserted against Kroll or the Kroll entities in the underlying litigation, USF & G will pay to plaintiffs above and beyond the previously paid one hundred fifty thousand ($150,-000.00) dollars, an additional one million five hundred fifty thousand ($1,550,000.00) dollars in full and final satisfaction of any further obligation allegedly existing under the USF & G policy or otherwise the "Additional USF & G Payment” ...

      14. Except for the enforcement of this agreement and USF & G’s ... potential indemnity obligations under paragraph 8 ... of this agreement, the plaintiff releasors and the Kroll releasors hereby release the insurer releasors from any and all claims ... already sustained or which may hereafter be sustained or allegedly sustained in consequence of, arising out of, resulting from, or relating to those allegations, claims, counterclaims, or defenses raised or which could have been raised in the underlying litigation ... and, as specifically related to these same matters released by this paragraph 14, under or arising out of USF & G’s ... obligations for the claims asserted or which could have been asserted in the underlying litigation under the USF & G policy ...


source: Caselaw Access Project

author: VAN NORTWICK, J. WEBSTER, J.,

license: Public Domain

text:
    Michael MOECKER, Appellant, v. Thomas ANTOINE, Donna Antoine, Magdalena Matthews and James M. Matthews, Appellees.
    No. 1D02-0036.
    District Court of Appeal of Florida, First District.
    March 13, 2003.

      David E. Otero and Jacob A. Brown of Akerman, Senterfitt & Eidson, P.A., Jacksonville, for Appellant.
    Thomas Antoine, Donna Antoine, Magdalena Matthews and James M. Matthews, appellees, pro se.
   VAN NORTWICK, J.

Michael Moecker (Moecker), who, pursuant to chapter 727, Florida Statutes (1997), is the assignee for the benefit of creditors of the assets of First Street Mortgage Corporation, an insolvent corporation, appeals an order overruling objections by Moecker to claims filed by Thomas Antoine, Donna Antoine, Magdalena Matthews and James M. Matthews, appel-lees. The appellees initially filed their claims below as shareholders of First Street, rather than as creditors. After Moecker filed objections to their claims, appellees filed notice of their rescission of their purchases of First Street stock and asserted revised claims as creditors. The trial court allowed the appellees’ claims as unsecured, nonpriority claims based on its finding that the appellees had timely rescinded their purchases of First Street common stock pursuant to section 517.061 (ll)(a)5, Florida Statutes (1997). Moecker asserts that the trial court erred in allowing the appellees’ claims, arguing that the appellees’ rescission claims arose after the date of assignment and were therefore not allowable under section 727.112(1), Florida Statutes (1997), and that the appellees’ rescission under section 517.061(ll)(a)5 was untimely. For the reasons that follow, we affirm.

Background

Thomas Antoine and James Matthews were employees of First Street, which lent money for residential property buyers who did not generally qualify for bank or government-sponsored lending programs. In July 1998, jointly with their respective wives, they purchased shares of common stock in First Street in response to a solicitation made to First Street employees by the management of First Street. Mr. and Mrs. Antoine purchased .1718 share of common stock for a price of $125,000 while the Matthews purchased .0687 share of common stock for a price of $50,000. The stock sale was structured as a private placement, unregistered with the Securities and Exchange Commission or the State of Florida. On December 14, 1998, First Street and Michael Moecker & Associates, Inc., executed an assignment for the benefit of creditors. First Street was thereafter declared an insolvent corporation, and on December 15, 1998, Moecker filed a petition in the circuit court commencing a proceeding under chapter 727, Florida Statutes.

In February 1999, the Antoines filed a claim in the amount of $125,000 in the chapter 727 proceeding, expressly representing that the basis of the claim was “as shareholders.” In April 1999, the Matthews similarly filed a claim as shareholders in the amount of $50,000. Moecker objected to the claims, asserting that because the appellees made equity contributions to First Street, not loans, they were not creditors. In October 2001, the An-toines and the Matthews filed in the circuit court proceeding notices of the rescission of their stock purchases pursuant to the rescission privilege provided by section 517.061(ll)(a)5, Florida Statutes.

The assignees’ objections were heard by the trial court and, following that hearing, the trial court entered an order allowing the appellees’ claims. In the order under review, the trial court found that the October 2001 rescissions by the Antoines and Matthews were timely “because First Street Mortgage Corporation never communicated the right to rescind under § 517.061(ll)(a)5, Fla. Stat., to the Claimants.” The trial court reasoned that, because First Street had not informed the Matthews and the Antoines of their rights to rescind the stock purchase pursuant to section 517.061(ll)(a)5, their right to rescind had not expired. The trial court further ruled that, even though the Matthews and Antoines eventually gained actual knowledge of a rescission right, such knowledge, by itself, was not a sufficient basis for commencing the three day rescission period provided by section 517.061(ll)(a)5. Finally, the trial court found that the appellees’ claims arose prior to the filing date of the petition for assignment because their right to rescind existed at the time of filing. Thus, the claims were allowed as unsecured, nonpriority claims.

The issues presented in this appeal are issues of law. Thus, the standard of review is de novo. See Walter v. Walter, 464 So.2d 538 (Fla.1985); Rittman v. Allstate Ins. Co., 727 So.2d 391 (Fla. 1st DCA 1999).

Rescission under Section 517.061(ll)(a)5

The federal Securities Act of 1933 requires that all securities sold or offered for sale in interstate commerce or through the mail must be registered with the United States Securities and Exchange Commission, 15 U.S.C. § 77e (1997), subject to certain exemptions, including an exemption for transactions not involving any “public offering.” 15 U.S.C. § 77d(2). States have adopted similar registration requirements and exemptions, commonly called “blue sky” laws. Under the Florida blue sky laws, the Florida Securities and Investor Protection Act provides:

It is unlawful and a violation of this chapter to any person to sell or offer to sell a security within this state unless the security is exempt under s. 517.051, is sold in a transaction exempt under s. 517.061, is a federal covered security, or is registered pursuant to this chapter.

§ 517.07(1), Fla. Stat. (1997).

It is without dispute that First Street did not register its offer or sale of common stock to the appellees and that the only issue raised here with respect to the offering concerns the rescission privilege included in the exemption provided by section 517.061(ll)(a), Florida Statutes (1997). This exemption “applies only if all five specified statutory conditions are established, an issue upon which the parties relying upon the exemption ... bear the burden of proof.” Weinberg v. Pennington, 462 So.2d 862, 863 (Fla. 3d DCA 1985); see also § 517.171, Fla. Stat. (1997).

When sales of securities are made to five or more persons in Florida, a fact not in dispute here, subparagraph 5 of subsection 517.061(ll)(a) makes the purchase voidable “either within 3 days after the tender of consideration [was] made by the purchaser to the issuer, an agent of the issuer, or an escrow agent or within 3 days after the availability of that privilege is communicated to such purchaser, whichever occurs later.” § 517.061(ll)(a)5 (emphasis added). The statute contains no provision for the tolling of the right to rescind the sale in the event availability of the right to rescind is never communicated to the purchaser.

The trial court found that the ap-pellees “had actual knowledge of their right to rescind their stock purchase more than one year in advance of their rescis-sions .... ” The trial court further concluded, though, that the “actual knowledge” possessed by the appellees was “not enough to trigger the three day period under § 517.061(ll)(a)5, Fla. Stat.” Under the facts in the record before us, we are not persuaded that the trial court erred in reaching this latter ruling.

Moecker asserts that, since appellees admit that they had knowledge of a general rescission right, some communication of the rescission right must have been made to them. Therefore, Moecker argues, the statutory communication requirement must have been satisfied and the three-day rescission period has long expired. We do not agree.

The statutory obligations of the offering party in an unregistered sale are to be strictly construed. Barnebey v. E.F. Hutton & Co., 715 F.Supp. 1512, 1532 (M.D.Fla.1989). The purpose of laws requiring the registration of securities is to protect the public from fraudulent and deceptive practices in the sale and marketing of securities. See Stottler Stagg and Associates, Inc. v. Argo, 403 So.2d 617, 618 (Fla. 5th DCA 1981). By engaging in a sale of securities exempt from state registration requirements, an issuer is able to avoid significant expense and regulatory oversight. Thus, the issuer must strictly comply with the requirements for engaging in an exempt transaction to protect innocent purchasers of securities. Henderson v. Hayden, Stone Inc., 461 F.2d 1069, 1072 (5th Cir.1972).

As did the trial court, we find the reasoning of the court in Barnebey v. E.F. Hutton & Co. persuasive. As the court there explained, the intent of section 517.061(11)(a)5, in part, is to provide purchasers with a fixed event from which to calculate the time available for voiding a purchase under the statute. Id. at 1532. The statute sets that fixed event as being either one of two possible happenings, both of which a “purchaser would or should be aware, and from which a purchaser could easily calculate the running of the clock on his privilege [to rescind the purchase].” Id. at 1531. The written notice in Bame-bey provided that the right to rescind the purchase commenced at the submission of the subscription agreement to the general partner of the offering company, an event which a purchaser could not be aware until well after the fact. Thus, the Bamebey court ruled that the issuer did not satisfy its burden of demonstrating compliance with the conditions necessary for claiming an exemption from registration of securities. Id.

Here, the trial court found, and Moecker does not dispute, that First Street failed to communicate to appellees their right to rescind the purchase of stock under section 517.061(ll)(a)5. While we agree with Moecker that the literal text of the statute does not require the issuer to communicate the rescission right to purchasers, the issuer nonetheless has the burden of establishing that such a communication is made. See Weinberg; Barnebey. Thus, in private placements to Florida residents issuers commonly include a disclosure in the subscription or offering documents notifying purchasers of their rescission rights under Florida law.

Moecker argues that, since the trial court found that the appellees had actual knowledge of a rescission right over a year prior to their rescissions, they should not be allowed to sit on their rights indefinitely. We agree that “a person has no right to shut his eyes or ears to avoid information and then say he had no notice.” Symons v. State Dep’t of Banking and Fin., 490 So.2d 1322, 1324 (Fla. 1st DCA 1986). Nevertheless, “[i]n order to charge a person with notice of information which might have been learned by inquiry, the circumstances must be such as should reasonably suggest inquiry. A determination of whether there are sufficient facts known to require further investigation generally is one of fact.” Id. (citing Rafkind v. Beer, 426 So.2d 1097, 1099 (Fla. 3d DCA 1983)). The task of determining whether the circumstances should give rise to such notice is left to the trier of fact. Symons, 490 So.2d at 1324. On review, our role is to determine whether there is competent substantial evidence to support the trial court’s finding. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (“If the ruling consists of a pure question of fact, the ruling must be sustained if supported by competent substantial evidence.”).

Moecker has not claimed or shown that First Street, its agent or any third party communicated to any appellee the right to rescind under chapter 517. The record contains no evidence of the specific event that made the appellees aware of their right to rescind, when they learned of the right, the extent or detail of their knowledge, or the period in which they must exercise the right to rescind. Compare Barnebey, 715 F.Supp. at 1532. Further, although it is undisputed that First Street employed Mr. Antoine as chief accounting officer and Mr. Matthews as an attorney, there is no evidence in the record that either of them possessed specialized professional expertise or knowledge with respect to the rescission provisions of chapter 517.

While we agree with Moecker that a person with actual and complete knowledge of the rescission rights under section 517.061(ll)(a)5 in a particular offering, including when the rescission period commences, should not be able to sit on his or her knowledge and play “gotcha” with the rescission right, those facts do not exist in this record. That the appellees somehow learned of a general rescission right sometime after the insolvency of First Street does not, without more, obviate First Street’s failure to show that the availability of the rescission right was communicated to appellees. Needless to say, the decision of a trial court comes to the appellate court clothed in a presumption of correctness. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). It is the burden of the appealing party to demonstrate a basis in the record for overturning the presumptively correct decision of the trial court. See Klette v. Klette, 785 So.2d 562 (Fla. 1st DCA 2001). Because there is no record basis for determining how and when the rescission right was communicated to appellees, or the nature of information communicated, we affirm the trial court’s ruling that the appellees possessed the right to rescind.

Assignment for the Benefit of Creditors

In an assignment for the benefit of creditors, the debtor voluntarily assigns its assets to a third party as trustee for the purpose of liquidating the assets to satisfy, in full or in part, creditors’ claims against the debtor. See Brainard v. Fitzgerald, 3 Cal.2d 157, 44 P.2d 336, 339 (Cal.1935); see generally Lynn M. Lopucki, The Death of Liability, 106 Yale L.J. 1, 18 n. 70 (1996). An assignment for the benefit of creditors is an alternative to bankruptcy, but unlike federal bankruptcy proceedings, which operate upon a uniform procedure in all jurisdictions, the procedure for assignments for the benefit of creditors varies from jurisdiction to jurisdiction. Further, assignment is seen as a cooperative effort which can benefit creditors by affording prompt and relative inexpensive resolution of claims. See generally 19 Fletcher Cyclopedia of Private Corp. § 6:13 (2002). The practice of assignment for the benefit of creditors existed at common law, see, e.g., Donegan v. Baker & Holmes, Co., 73 Fla. 241, 74 So. 202 (1917), but has been codified since Roman times. See David S. Kennedy & R. Spencer Cleft III, An Historical Analysis of Insolvency Laws and Their Impact on the Role, Power and Jurisdiction of Today’s United States Bankruptcy Court and its Judicial Officers, 9 J. Bankr.L. & Prac. 165, 167 (2000). Florida codified the law governing assignments for benefit of creditors by the enactment of chapter 727 in 1987. See Ch. 87-174, Laws of Florida.

Chapter 727 is intended “to provide a uniform procedure for the administration of insolvent estates,” section 727.101, Florida Statutes (1997), subject to the supervision of the circuit court. Section 727.104 provides a form of assignment, and requires the assignee to record the assignment in the public records as well as to file a petition and bond in the circuit court. Section 727.114 sets the priority for the claims against the insolvent estate. In the event there are insufficient assets to satisfy all proper claims made against the estate, claims are to be paid on a pro rata basis and in proportion to the scheme of priority provided in section 727.114. See § 727.104(l)(b).

Section 727.112(1) provides that all claims, which arose prior to the filing date, other than those claims made by creditors with liens upon assets in the insolvent estate, must be filed in accordance with chapter 727. A claim must be filed within 120 days of the filing date of the petition for assignment. §§ 727.112(2), (5). Claims not filed in accordance with chapter 727 are barred. § 727.112(1). The term “claim” is not defined in chapter 727, nor has the term been defined by case law in the context of chapter 727. A “creditor” is defined in section 727.103(6) as “any person having a claim against the assignor, whether such claim is contingent, liquidated, unliquidated, or disputed.” There is been little decisional law construing Chapter 727.

Moecker asserts that the trial court erred in allowing the appellees’ claims for rescission, arguing that the claims arose after the filing date of the petition and were, thus, barred by section 727.112(1). We cannot agree. Section 727.112(1) limits claims to those which “arose” prior to the filing of the petition. Although the term “arose” is not defined in chapter 727, we find case law defining the same term under the Bankruptcy Code instructive. Although “federal law controls which claims are cognizable under the Code, the threshold question of when a right to payment ... arises ‘is to be determined by reference to state law.’ ” In Re M. Frenville Co., 744 F.2d 382, 337 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985)(quoting Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946)). Further,

[procedural and extraneous factors such as the timing of the filing of a summons and complaint by a third party, which is not associated with the underlying nature of the cause of action ... simply should not determine the existence or nonexistence of a “claim.” Rather the focus should be on the time when the acts giving rise to the alleged liability were performed....

In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986).

As discussed above, the appellees rescinded their purchases of First Street stock based upon the rescission rights provided by section 517.061(ll)(a)(5). That statute makes an applicable unregistered purchase voidable within three days after the tender of consideration by the purchaser or within three days after the availability of the rescission privilege is communicated to the purchaser. § 517.061(11)(a)(5). Thus, if the appellees possessed the right to rescind their purchases of First Street common stock, that right arose as a result of the unregistered sale of securities by First Street and existed at the date of their purchase of First Street stock in 1998. Because the transaction and conduct giving rise to the appellees’ rescission right occurred prior to the petition date, we conclude that the appellees’ claims “arose” prior to that date.

Moecker also urges this court to interpret chapter 727 in a manner that would treat claims arising from the rescission of a purchase of common stock of the debtor with the same priority as holders of that common stock. The sole authority cited by Moecker for this argument is section 510(b) of the Bankruptcy Code and the case law interpreting that section.

Section 510(b) of the Bankruptcy Code provides, in pertinent part, that:

For the purpose of distribution under this title, a claim arising from rescission of a purchase or sale of a security of the debtor ... shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented by such security, except that if such security is common stock, such claim has the same priority as common stock.

11 U.S.C. § 510(b). The policy underlying section 510(b) recognizes the difference in the risk expectations between creditors and shareholders.

[B]oth investors and credits accept the risk of enterprise insolvency but to a different degree.... This stems from their dissimilar expectations. Even if the business prospers, the creditor anticipates no more than the repayment of his fixed debt. Further, the shareholder’s investment provides an equity cushion for the repayment of the claim.... The investors, on the other hand, share the profits to the exclusion of the creditors. The shareholder’s enhanced risk of insolvency represents the flipside of his unique right to participate in the profits. The allocation of the risk, as between the investor and the creditor, is reflected by the absolute priority rule....

In re Granite Partners, L.P., 208 B.R. 832, 336 (Bankr.S.D.N.Y.1997) (citations omitted); see also In re Int’l Wireless Comm. Holdings, Inc., 257 B.R. 739, 746 (Bankr.D.Del.2001). Thus, under section 510(b), equity investors such as the appellees are prevented from converting their equity interests into higher priority general unsecured claims by asserting fraud or rescission claims. See, e.g., Christian Life Ctr. Litig. Defense Comm. v. Silva (In re Christian Life Ctr.), 821 F.2d 1370, 1375 (9th Cir.1987); The Ltd. Partners’ Comm. v. Official Trade Creditors’ Comm. (In re Amarex, Inc.), 78 B.R. 605 (W.D.Okla.1987).

The Florida legislature, however, has not included in chapter 727 any provision expressing an intent to subordinate rescission claims in a manner similar to the subordination scheme adopted by Congress in section 510(b). Further, prior to the 1978 adoption of section 510(b), courts generally allowed defrauded shareholders to rescind their subscription and treated the rescission claim as a general unsecured claim. See Oppenheimer v. Harriman Nat’l Bank & Trust Co., 301 U.S. 206, 57 S.Ct. 719, 81 L.Ed. 1042 (1937); see also MacNamee v. Bankers’ Union for Foreign Commerce & Fin., 25 F.2d 614 (2d Cir.1928); Jagels v. Cox, 50 Idaho 67, 294 P. 515 (1930); Burningham v. Burke, 67 Utah 90, 245 P. 977 (1926); Atwood v. McKenzie-Waterhouse Co., 120 Wash. 214, 206 P. 978 (1922); see generally Annotation, 41 A.L.R. 674 (1926); Annotation, 46 A.L.R. 484 (1927); Kenneth B. Davis, Jr., The Status of Defrauded Security Holders in Corporate Bankruptcy, 1983 Duke L.J. 1. Thus, even though the public policy underlying section 510(b) seems sound, we decline the invitation to interpret the unambiguous provisions of chapter 727 as if it included a provision subordinating the appellees’ rescission claims to those of all creditors. See A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (1931)(“The intention and meaning of the Legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... for the statute must be given its plain and obvious meaning.”); Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)(explaining that courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications” because to do so “would be an abrogation of legislative power.”).

Accordingly, for the reasons discussed above, we affirm.

PADOVANO, J, CONCURS AND WEBSTER, J., DISSENTS WITH WRITTEN OPINION.

WEBSTER, J.,

dissenting.

I find myself constrained to dissent because I am unable to reconcile the majority’s decision with the clear language of section 517.061(ll)(a)5, Florida Statutes (1997).

As the majority points out in the last substantive paragraph of its opinion, we are obliged to glean meaning from legislation principally by reference to the language used. When that language is clear and unambiguous, there is nothing for us to construe. In such a case, our job consists of nothing more than applying the plain meaning of the statute to the facts presented. I am of the view that section 517.061(ll)(a)5 is such a piece of legislation.

Reduced to its essentials, section 517.061(ll)(a)5 says that “any sale ... is voidable by the purchaser ... either within 3 days after the first tender of consideration ... or within 3 days after the availability of that privilege is communicated to such purchaser, whichever occurs later.” “Communicate” is a word with which we are all familiar. There is nothing in the statute to suggest an intent on the part of the legislature that the word have other than its most common meaning. The Random House Dictionary of the English Language (2d ed. unabridged 1987) lists the most common meaning of “communicate” as “to impart knowledge of; make known.” Id. at 414. Accordingly, in this case the key question is when availability of the privilege to void the stock transactions was made known to appellees. For our purposes, the trial court has answered that question. It found that appellees “had actual knowledge of their right to rescind their stock purchase more than one year in advance of the rescissions,” and appellees have not challenged this finding by cross-appeal. Because I can find nothing in the statute that places any importance on how such knowledge was acquired, I would end our inquiry at this point, and hold that the attempt to rescind was untimely. While it may well be true (as the majority notes) that such a common-sense reading of the words used by the legislature carries with it the possibility of difficult application in some fact situations, that is a problem to be dealt with by the legislature, not us.

On the record before us, it is undisputed that Messrs. Antoine and Matthews were employed by First Street Mortgage Corporation, the former as vice-president and chief accounting officer and the latter as a lawyer. The trial court found that all of the appellees had “actual knowledge” of their right to rescind for more than a year before they attempted to exercise that right. Given these facts, it strikes me as utterly irrelevant whether someone speaking for First Street actually informed them of that right.

The trial court’s error was one of law. It incorrectly construed the statute as requiring that the issuer communicate to the purchaser the fact that the purchaser might void the transaction. As a matter of law, the attempted rescission was untimely. Accordingly, I would reverse and remand with directions that the trial court sustain the objections to appellees’ claims. Because the majority affirms, respectfully, I dissent.

      . The appellant, Michael Moecker, an individual, has been substituted as assignee for Michael Moecker and Associates, Inc.

      . The term “blue sky” is attributed to a variety of origins. See, e.g., Hall v. Geiger-Jones Co., 242 U.S. 539, 550, 37 S.Ct. 217, 61 L.Ed. 480 (1917) ("speculative schemes which have no more basis than so many feet of ‘blue sky’ "); L. Loss & E. Cowett, Blue Sky Law, 7 n. 22 (1958)("the term 'blue sky’ was first used to describe the business practices of promoters and securities salesmen in Kansas at the turn of the century. The activities of these individuals, it was claimed, bordered on the sale of building lots in the blue sky in fee simple.”).

      . Section 517.061 provides that the registration requirements of section 517.07 do not apply to, among other transactions, to:
      (1 l)(a) The offer or sale, by or on behalf of an issuer, of its own securities, which offer or sale is part of an offering made in accordance with all of the following conditions:
      1.There are no more than 35 purchasers, or the issuer reasonably believes that there are no more than 35 purchasers, of the securities of the issuer in this state during an offering made in reliance upon this subsection or, if such offering continues for a period in excess of 12-months, in any consecutive 12 month period.
      2. Neither the issuer nor any person acting on behalf of the issuer offers or sells securities pursuant to this subsection by means of any form of general solicitation or general advertising in this state.
      3. Prior to the sale, each purchaser or the purchaser's representative, if any, is provided with, or given reasonable access to, full and fair disclosure of all material information.
      4. No person defined as a "dealer” in this chapter is paid a commission or compensation for the sale of the issuer’s securities unless such person is registered as a dealer under this chapter.
      5. When sales are made to five or more persons in this state, any sale in this state made pursuant to this subsection is voidable by the purchaser in such sale either within 3 days after the first tender of consideration is made by such purchaser to the issuer, an agent of the issuer, or an escrow agent or within 3 days after the availability of that privilege is communicated to such purchaser, whichever occurs later.

      . By contrast, the federal Truth-in-Lending Act avoids the problem presented in the instant case by limiting to three years the period within which the right to rescind a purchase may be exercised in the event the right to rescind is not communicated. See 15 U.S.C. § 1635(f); see generally Elwin Griffith, Truth in Lending — The Right of Rescission, Disclosure of the Finance Charge, and Itemization of the Amount Financed in Closed In Transactions, 6 Geo. Mason L.Rev. 191 (1998).

      . See, e.g., Jeff Mihm, Private Placements in Florida After the National Securities Markets Improvement Act of 1996, 73 Fla. B.J. 44, 48 n. 20 (Feb. 1999); and Peter M. Fass & Derek A. Wittner, Blue Sky Prac.App. 9F ¶ 1352 (2002).

      . The record on appeal is very limited as to facts relating to the appellees’ knowledge of their rescission rights. The only record evidence of the appellees' knowledge is a bare admission of knowledge of section 517.061(1 l)(a)5 contained in the appellees' rescission notice filed below. The record before us does not include a transcript of the hearing held on the assignee’s objections and the appellees’ rescission, at which testimony was apparently taken on this issue. At the February 2, 2002, hearing on the parties’ rehearing motions directed to the order on appeal, appellees objected to the trial court’s finding that they had actual knowledge of the right to rescind. They asserted that, while they had knowledge of the rescission statute, they had no "actual knowledge of a fully vested and ripened right to rescind.” Nevertheless, the trial court’s finding that appellees had actual knowledge of their rescission right has not been challenged on appeal.

      . Although the Bankruptcy Code preempts state laws governing insolvent debtors, Int’l Shoe Co. v. Pinkus, 278 U.S. 261, 265-66, 49 S.Ct. 108, 73 L.Ed. 318 (1929), state laws governing voluntary assignments for the benefit of creditors are permitted if such laws do not provide for a discharge of debts. Id. at 268, 49 S.Ct. 108.

      . By comparison, under the Bankruptcy Code, a creditor is an entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor. 11 U.S.C. § 101(10)(A) (1993). Under section 101(5) of the Bankruptcy Code, a claim is defined as
      (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
      (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, un-matured, disputed, undisputed, secured, or unsecured.
      11 U.S.C. § 101(5) (1993).

      . The parties do not dispute, and we do not address, whether, if the rescission claim is held to arise prior to the filing date, the appellees may amend their claims more than 120 days after the filing date by converting a claim filed as a shareholder to a claim of a general unsecured creditor.

      . State courts often look to federal bankruptcy law for guidance as to legal issues arising in proceeding involving assignments for the benefit of creditors. See Blonder v. Cumberland Eng’g, 71 Cal.App.4th 1057, 84 Cal.Rptr.2d 216 (1999); Angeles Elec. Co. v. Superior Court, 27 Cal.App.4th 426, 32 Cal.Rptr.2d 660 (1994); In the Matter of the General Assignment for Benefit of Creditors of M.S. Ackerman, Inc., 19 Misc.2d 260, 186 N.Y.S.2d 406 (N.Y.Sup.Ct.1959); Pavone Textile Corp. v. Bloom, 302 N.Y. 206, 97 N.E.2d 755 (1951).

      . The appellees have argued that officers of First Street misrepresented the financial condition of the corporation to induce appellees to purchase stock. Nevertheless, appellees have not filed any claims based on fraud.


author: PER CURIAM.

text:
    OFFICE OF THE STATE ATTORNEY, on behalf of the Members of the South Florida Impact Task Force, Appellant, v. Adolfo JIMENEZ, Appellee.
    No. 3D01-3468.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Rehearing and Rehearing En Banc Denied May 28, 2003.

      Katherine Fernandez Rundle, State Attorney and Steven Ellison, Assistant State Attorney; and Robert S. Glazier, for appellant.
    Ricardo R. Corona, for appellee.
    Before JORGENSON, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Appellant, the State of Florida (“State”), appeals an adverse order finding that the appellee, Adolpho Jimenez (“Jimenez”), has standing in a civil forfeiture proceeding to contest the seizure of $200,000 in U.S. currency. We affirm.

On December 7, 2000, pursuant to an ongoing money laundering/illegal drug investigation, officers conducted surveillance at a motel. The officers observed Carlos Sakazaki (“Sakazaki”) drive from the motel, into a parking lot and park his car next to Luis Tocuyo (“Tocuyo”), an employee of Jimenez. Tocuyo exited his vehicle, had a brief conversation with Sakazaki and placed a suitcase into Sakazaki’s back seat. Tocuyo then re-entered his car and drove off with his passenger, Rodolfo Sanz (“Sanz”).

Police investigators separately followed both parties and subsequently pulled over Sakazaki. Sakazaki consented to a search and a trained K-9 police dog alerted to the suitcase in the back seat of his car. The consensual search revealed approximately $200,000 in U.S. currency. Sakazaki swore the money did not belong to him and that he was unaware of the source of the money-

Tocuyo and Sanz were separately approached by surveillance officers and informed that the police were conducting a money laundering and illegal drug investigation. The officers received consent from Tocuyo to search his residence and seized additional contraband/currency. Tocuyo and Sanz both disclaimed any ownership interest in the currency seized. Tocuyo told the investigators that he delivered the suitcase to Sakazaki at the instruction of Jimenez.

The State filed a forfeiture action in rem which included the $200,000 of seized currency. Notice of the forfeiture proceedings was provided to Jimenez, Tocuyo, Sanz and Sakazaki. On April 18, 2001, Jimenez filed an answer to the petition for forfeiture making a claim for the $200,000. The State filed a motion to strike the answer alleging that Jimenez had not previously made a claim for the $200,000; that he was not in possession of the money when it was seized; and that he did not have standing to contest the forfeiture. Jimenez filed an amended answer and a sworn affidavit.

In the amended answer, Jimenez stated that he was a cattle rancher in Latin America and he purchased cattle in Venezuela for $800,000. He stated that he arranged to pay the seller $100,000 in local currency in Venezuela and the balance of $200,000 in U.S. currency in Miami. Jimenez stated that his employee, Tocuyo delivered a suitcase containing the $200,000 to the seller’s representative, Sakazaki. Jimenez explained that he did not claim the $200,000 at first because he had paid the money to settle a debt and he believed that the $200,000 had been credited to the amount he owed. He later learned that the seller had not credited him for the funds or released the claim of hen for the purchase of the cattle, so he then made a claim for a return of the money.

The trial court held a hearing on the motion to strike and found that Jimenez had standing to contest the forfeiture of the $200,000. The State alleges on appeal that Jimenez only established that he is the former owner and therefore lacks standing to contest the forfeiture. We disagree.

To establish standing, a claimant must demonstrate ownership, or an ownership interest, in the property which has been seized. Gonzalez v. City of Homestead, 825 So.2d 1050 (Fla. 3d DCA 2002); Vasquez v. State, 777 So.2d 1200 (Fla. 3d DCA 2001); Munoz v. City of Coral Gables, 695 So.2d 1283 (Fla. 3d DCA 1997). In order to demonstrate such an ownership interest, a claimant must provide a sworn statement setting forth the factual basis of the claim. Id. The claimant need not prove the merits of his claim but he must prove a facially colorable interest in the seized property. Vasquez, 777 So.2d at 1202; United States v. $515,060.42 in United States Currency, 152 F.3d 491 (6th Cir.1998). An ownership interest may be evidenced for standing purposes in a number of ways including actual possession, control, title or financial stake. United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 647 F.2d 864 (8th Cir.1981).

The mere assertion of ownership over the res, without more is insufficient to establish standing. Standing is established where the mere assertion is coupled with an admission by the government that the claimant has a relationship to the seized property. United States v. $8,221,877.16 in United States Currency, 148 F.Supp.2d 427 (D.N.J.2001); United States v. Forfeiture, Stop Six Center, Located at 3340 Stallcup, Fort Worth Tex., 794 F.Supp. 626 (N.D.Tex.1992).

In the instant case, Jimenez filed a sworn affidavit setting forth the factual basis for his ownership claim. He claimed that he was a cattle rancher in Venezuela and he had entered into a deal to purchase cattle for $800,000. He further claimed that he asked his employee, Tocuyo to deliver a suitcase with $200,000 of the money owed to the seller in Miami. Finally, he contends that the seller did not credit him with the delivery of the currency. Jimenez’s affidavit alleges an ownership interest evidenced by title and financial stake. The forfeiture complaint is consistent with this version of events.

In the complaint, the State alleged that Tocoyo was observed delivering the suitcase to Sakazaki. The State further alleged that Tocuyo recounted that he worked for Jimenez and that “Jimenez had called him to inform him some luggage that was at the house had to be delivered to this gentleman.” As such, the State admitted Jimenez’s relationship to the currency. See United States v. $38,570 U.S. Currency, 950 F.2d 1108 (5th Cir.1992)(elaim of ownership, coupled with government’s allegations of claimant’s involvement with seized res sufficient to establish standing).

The State tries to overcome this argument by suggesting that once the money left the hands of Jimenez’s employee, Jimenez no longer had title and was no longer the owner. While this might well be a plausible argument on the merits, the State has not submitted any evidence to support their claim. Just as a claimant must submit sworn proof of ownership, the seizing agent must also submit an affidavit setting forth the facts which refute the claim of ownership. Gonzalez, 825 So.2d at 1052.

The State never offered an affidavit or any other evidence setting forth facts in order to refute Jimenez’s claim of ownership. There was no evidence that Saka-zaki was the seller’s representative or that title to the money passed with the delivery of the suitcase. The men observed completing the transaction all denied ownership and admitted they had no standing to challenge the forfeiture proceeding. No other claimant or alleged owner, such as the seller, has come forward making a claim for this currency. Jimenez’s sworn affidavit and the facts alleged in the complaint are consistent on the issue of ownership and are not refuted.

“Where a person’s property is the object of a forfeiture action, the owner is entitled to an opportunity to litigate the case on the merits. The inquiry on standing is simply to determine whether the claimant has shown an ownership interest such that he is entitled to be heard in the forfeiture proceeding.” Gonzalez, 825 So.2d at 1053.

Jimenez has demonstrated an ownership interest sufficient enough to confer standing to be heard in the forfeiture proceeding. Accordingly, we affirm the order below.

Affirmed.

      . Other contraband/currency was found pursuant to the police's investigation and was part of the state’s petition for forfeiture. However, only $200,000 in currency is subject to this appeal.

      . Tocuyo further stated that he did not know there was money in the suitcase or who that money belonged to.


author: COPE, J.

text:
    AGRIPOST, INC., a Florida corporation, and Agri-Dade, Ltd., a Florida limited partnership, Appellants, v. METROPOLITAN MIAMI-DADE COUNTY, through its Manager and Board of County Commissioners, Appellee.
    No. 3D01-1898.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Rehearing Denied May 28, 2003.
    Orans, Elsen & Lupert; Josephs, Jack & Gaebe, Coral Gables, and Joseph W. Beasley, for appellants.
    Holland & Knight and Daniel S. Pearson; Robert A. Ginsburg and Robert L. Krawcheck and James J. Allen, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   COPE, J.

Agripost, Inc. and Agri-Dade, Ltd. appeal an adverse summary judgment in their suit against Miami-Dade County for inverse condemnation, breach of contract, and violation of section 403.7063, Florida Statutes (1989). We affirm.

I.

In 1986, Miami-Dade County “sought proposals for the construction and operation of a waste disposal plant that would create an environmentally safe, useful end product from the County’s solid waste. Agripost submitted a proposal, which the Board [of County Commissioners] subsequently accepted.” Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 1227 (11th Cir.1999).

In 1987, Agripost subleased a twenty-acre site from the Florida Department of Health and Rehabilitative Services for construction of the waste disposal plant. The site was near an elementary school and other public institutions.

Because the property was zoned for agricultural use, Agripost obtained a conditional, revocable unusual use zoning approval. There were a number of conditions, and the unusual use was revocable upon violation of the conditions. Among the conditions was the prohibition of any nuisance on the property. Agripost had made assurances that its process would prevent any odor problem associated with the facility.

Soon thereafter, the County entered into a contract with Agripost to supply garbage to the facility for processing. The County was to pay a fee to Agripost, called a “tipping” fee, per ton of garbage supplied. Under the contract, the County had no financial responsibility for the design, construction, or operation of the facility.

The contract provided that “[objectionable odors should not be detected at the company’s property limits as a result of the processing operation.... Continual generation of obnoxious odors, if not corrected within a reasonable time after written notice by the County, shall constitute a default by Agripost.”

As summarized in an opinion in related litigation:

Agripost’s facility began operating in the fall of 1989, and soon thereafter, area residents began complaining that finely ground waste particles were emanating from the plant and that a vile stench covered the area. According to officials from an adjacent elementary school, a “black, thick glue-like mold” was covering nearly every surface of the school, and students and teachers alike were developing various illnesses.
In October 1990, [the County Department of Environmental Resource Management (“DERM”) ] informed Agripost that its facility was creating a nuisance; DERM alleged both that noxious odors were emanating from the plant, and that Agripost was storing waste products in a manner contrary to the conditions of its permit and in a location other than that prescribed by the plot use plan.

Agripost, 195 F.3d at 1228.

Agripost submitted a plan to the County to correct the cited problems. This involved modifications to the existing facility to improve odor control. The proposal included expansion of the site to include an adjacent thirty acres, to which some of the operations would be relocated.

The important point for present purposes is that Agripost proposed to pay for these changes by increasing the tipping fee that the County paid to Agripost.

In December 1990, Agripost’s package of curative measures was presented to the County’s Commission for approval. At that meeting, the Agripost president informed the County Commission that the plant would not continue to operate “if we don’t pass the things that are before you today.” After a public hearing, the County Commission voted to reject the Agripost modification proposal, and directed County officials to initiate proceedings before the Zoning Appeals Board to revoke Agri-post’s conditional zoning.

In 1991, the Zoning Appeals Board concluded after a hearing that Agripost had violated the conditions of its unusual use permit, and revoked it. This ruling was affirmed by the County Commission as well as a three-judge panel of the Appellate Division of the Circuit Court. This court denied Agripost’s petition for certio-rari review without opinion. Agri-Dade, Ltd. v. Metropolitan Dade County, 605 So.2d 1272 (Fla. 3d DCA 1992). Agripost ceased operations.

In 1994, Agripost brought an inverse condemnation suit against the County in the United States District Court for the Southern District of Florida. Agripost alleged that by revoking the unusual use zoning permit, the County deprived Agri-post “of all economically viable use of its leasehold interests, of its facility, and of its rights under the Agreement.” Agripost, 195 F.3d at 1228. “The district court dismissed Agripost’s takings claim as unripe because Agripost had failed to pursue Florida’s inverse-condemnation remedy.” Id. at 1227. The United States Court of Appeals for the Eleventh Circuit affirmed. Id. at 1233-34.

In 1997, after the federal district court ruled, Agripost filed the instant action in state court. Agripost has alleged a claim under the Florida Constitution for inverse condemnation (count one); breach of contract (count two); and violation of section 403.7063, Florida Statutes (count three). In count four, Agripost states that it intends to reserve an inverse condemnation claim under the federal Constitution to be pursued in the federal court, should this lawsuit be unsuccessful. See Agripost, 195 F.3d at 1227, 1229-30, 1233-34; Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299, 1305-06 (11th Cir.1992).

The trial court entered summary judgment in favor of the County, and Agripost has appealed.

II.

In the context of a federal inverse condemnation claim, it has been said, “Generally, when a government entity acts to create property rights yet retains the power to alter those rights, the property right is not considered ‘private property,’ and the exercise of the retained power is not considered a ‘taking’ for Fifth Amendment purposes.” Democratic Cent. Comm. v. Washington Metro. Area Transit Comm’n, 38 F.3d 603, 606 (D.C.Cir.1994) (citations omitted); see also Smalleylogics Corp. v. Dade County, 176 So.2d 574, 578 (Fla. 3d DCA 1965). We follow that principle here in the context of the inverse condemnation claim under the Florida Constitution.

In the present case Agripost obtained an unusual use zoning approval which was conditional and revocable. The County brought revocation proceedings against Agripost for violation of the prescribed conditions. The Zoning Appeals Board revoked the unusual use zoning approval, and the revocation was upheld in the subsequent administrative and judicial review. Since the zoning approval was conditional and revocable, and Agripost violated the conditions, it follows that the revocation of the permit did not amount to a compensa-ble taking for inverse condemnation purposes. Democratic Central Committee; see Smalleylogics.

Agripost argues, however, that under its contract with the County, it was entitled to a reasonable opportunity to cure the violation of the zoning conditions. Agripost correctly states that the contract had a cure provision. Agripost contends that the County Commission was obligated to accept Agripost’s proposal to solve the odor problem. Agripost argues that in rejecting the proposal, the County breached the contract. We disagree.

Agripost’s proposal was not a straightforward plan to accomplish a cure at Agri-post’s expense. Instead, Agripost proposed to pay for the facility modifications by charging higher fees to the County than were called for under the existing contract.

In his oral presentation to the County Commission, the Agripost president indicated that Agripost would not continue to operate unless the County agreed to the package of proposed modifications. The County Commission was certainly within its rights in rejecting a proposal that in substance required the County to pay Agripost more money to cure the odor problem.

It would present different issues if Agri-post had simply requested forbearance by the County for a reasonable time so that Agripost could correct the facility problems at its own expense. That was not, however, Agripost’s proposal. The trial court correctly rejected the breach of contract claim.

Agripost maintains that the County violated section 403.7063, Florida Statutes, which states in part that “no county or municipality shall adopt or enforce regulations that discriminate against privately owned solid waste management facilities because they are privately owned.” Agri-post argues that at the time relevant here, the County was paying a higher tipping fee at other facilities. Assuming that is so, there is no statutory violation. The statute does not provide a right to increase a contractually negotiated fee.

Affirmed.

      . Agripost filed for bankruptcy protection. The only asset of the bankruptcy estate is its claim against Miami-Dade County.

      . Although we need not reach it, the County also argues that the Commission was well within its rights in rejecting the proposal to expand the facility by an additional thirty acres, given the already severe odor problems on the existing twenty.


author:
PER CURIAM.
      GREEN, J.

text:
    The STATE of Florida, Appellant, v. John Maxwell WATKISS, Appellee.
    No. 3D02-744.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellant.
    Bennett H. Brunimer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the reversal of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution, accord Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002).


text:
    Charles A. LANKAU, M.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellees.
    No. 3D02-882.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Rehearing Denied May 28, 2003.
    Holland, Singer & Miller and Sam Holland; Hinshaw & Culbertson, Gina E. Caruso and Ofelia Damas-Rodriguez, for appellant.
    Pamela H. Page, for appellee.
    Before GODERICH and GREEN, JJ„ and NESBITT, Senior Judge.
   PER CURIAM.

The respondent, Charles A. Lankau, M.D., appeals from a final order of the Board of Medicine [Board] concluding that he deviated from the applicable standard of care. We affirm.

A review of the record shows that the Board properly rejected or modified those findings of fact of the administrative law judge [ALJ] that were not based upon competent, substantial evidence. Gross v. Department of Health, 819 So.2d 997, 1000-01 (Fla. 5th DCA 2002). Furthermore, the modified findings of fact, coupled with the ALJ’s other findings, support the conclusion that Dr. Lankau fell below the applicable standard of care.

Affirmed.


author: TAYLOR, J.

text:
    MARYLAND SOUND INDUSTRIES, INC. and The Hartford, Appellants, v. Roy Alan SIMMONS, Bernadette Mooney, Pavilion Partners, a Delaware General Partnership, Innovative Stage Concepts, Inc., a Pennsylvania Corp., and Superstar Stages & Tops, Inc., a Florida corporation, Appellees.
    No. 4D01—4124.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Rehearing Denied June 2, 2003.

      Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and Michael Reidhammer of Law Offices of Alan L. Landsberg, Hollywood, for appellants.
    Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, and Eric H. Faddis of Faddis, Oldham & Smith, P.A., Orlando, for Appellees Roy Alan Simmons and Bernadette Mooney.
   TAYLOR, J.

In this appeal from a final judgment granting equitable distribution, a workers’ compensation carrier and its insured contend that the trial court erred in holding that the carrier’s lien did not attach to the injured plaintiffs jury award of non-eeo-nomie damages. We agree and reverse the order granting equitable distribution.

Roy Alan Simmons, a resident of Maryland and employee of Maryland Sound Industries, Inc., was injured in Palm Beach County while working upon a stage at the South Florida Fairgrounds. Simmons and his wife, Bernadette Mooney, filed a negligence suit against three defendants: 1) Pavilion Partners; 2) Innovative Stage Concepts, Inc.; and 3) Superstar Stages and Tops, Inc. During the course of the litigation, Simmons received workers’ compensation benefits from The Hartford Insurance Company (The Hartford), through a benefits policy issued by The Hartford to Maryland Sound Industries. The Hartford paid the workers’ compensation amount and notified the parties of a pro-rata lien upon any judgment or settlement recovered by Simmons and Mooney. Simmons’s negligence claim proceeded to trial against the three defendants. The jury found liability and awarded damages as follows:

Future Medical Expenses: $ 25,175.00
Past Lost Earnings: $ 78,000.00
Past Pain and Suffering: $ 20,000.00
Future Pain and Suffering: $ 80,000.00
TOTAL: $203,175.00

No damages were awarded to Bernadette Mooney.

While a number of post-trial motions were pending, the parties settled the case for $220,000.00. Thereafter, because of the workers’ compensation herí and the parties’ disagreement over allocation of the settlement proceeds, the plaintiff moved for equitable distribution. At the hearing, one main issue was whether The Hartford was permitted to calculate its hen recovery based on the entire settlement amount or whether the jury’s $100,000 award for pain and suffering was to be subtracted prior to determining the proper amount of the hen. After deciding that Maryland law controlled equitable distribution, the court concluded that the $100,000 in non-economic damages were not subject to The Hartford’s hen or subrogation rights. In its written order, the court first noted that Maryland law was silent on the subject. It then reasoned that because The Hartford had no obligation to pay Simmons for pain and suffering and did not advance funds for such damages, it thus had no standing to claim recoupment for those damages. Accordingly, the court held that the $100,000 for pain and suffering would be excluded from the amount available for equitable distribution.

In apportioning the amount of the lien as to the remaining $120,000, the trial court made the following calculations: it determined that 45% of plaintiffs total recovery was for non-economic damages and 55% was for economic damages; it then allocated the attorney’s fees and costs in those same percentages. After deducting the allocated attorney’s fees and costs from the economic damages, the court reached the following result:

Total recovery of economic damages: $ 120,000
less attorney’s fees (55% of $88,000): $ 48,400
less costs (55% of $38,000): $ 20,900
TOTAL: $ 50,700

The court thus granted the plaintiffs Motion for Equitable Distribution and awarded The Hartford $50,700. The Hartford and Maryland Sound Industries appealed, contending that the trial court erred in excluding the $100,000 non-economic damages when calculating the amount of equitable distribution. According to appellants, the lien attached to the total amount of the settlement.

We first note that the trial court correctly applied Maryland law in ruling on this issue. See Carriers Ins. Co. v. LeRoy, 309 So.2d 35, 37 (Fla. 3d DCA 1975)(noting that “matters bearing upon the execution, validity, interpretation and obligations of contracts are determined by the laws of the situs where the contract is made”). As such, the appropriate standard of review is de novo. See Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4, 5 (Fla. 3d DCA 1993)(“A trial court’s determination of foreign law is treated as a ruling on a question of law over which an appellate court exercises plenary review.”).

Pursuant to the Maryland Workers’ Compensation Act:

The employer has the exclusive right to pursue a cause of action against the third-party tortfeasor for two months. Thereafter, the employee also has a right to bring an action against the third-party, but the employer retains subrogation rights in the employee’s claim. The employer’s subrogation interest in the third-party claim acts as a “statutory lien” on any recovery the employee may obtain from the third-party. In other words, if the employee recovers compensation from the third-party tort-feasor, the employer is entitled to obtain reimbursement for its workers’ compensation payments from the proceeds. Where recovery from the third party is less than the employee is entitled to receive in benefits, the employee retains the right to recover the difference between the amount received from the third party and the amount payable under the statute.

Franch v. Ankney, 341 Md. 350, 357-58, 670 A.2d 951, 954-55 (Md.1996) (citations omitted).

Maryland Code Annotated [Labor and Employment] § 9-902(e) (2002), which governs actions against third parties, provides:

(e) If the covered employee or the dependents of the covered employee recover damages, the covered employee or dependents:
(1) First, may deduct the costs and expenses of the covered employee or dependents for the action;
(2) Next, shall reimburse the self-insured employer, insurer, Subsequent Injury Fund, or Uninsured Employers’ Fund for:
(I) The compensation already paid or awarded; and
(ii) Any amounts paid for medical services, funeral expenses, or any other purpose under Subtitle 6 of this title; and
(3) Finally, may keep the balance of the damages recovered.

Unfortunately, as both parties have recognized, Maryland law has not specifically addressed the issue of whether an insurance company or employer may base its lien on the entire amount an employee recovers from a third-party suit or whether, because the workers’ compensation award did not specifically provide for pain and suffering, such amount should be subtracted prior to calculating the lien. Nevertheless, Maryland law does provide some insight into whether the trial court’s holding in this case was proper.

In Keyworth v. Israelson, 240 Md. 289, 214 A.2d 168 (Md.1965), an employer obtained a lien against an injured worker’s settlement fund. The contract provided that the injured worker, Keyworth, receive $40 a week from the workers’ compensation carrier “ ‘which sum shall remain the sole property of the employee except for any subrogation rights that the insurance carrier may have.’ ” Id. at 178. The court found:

Despite the lack of any express provision creating an equitable lien, it is apparent from all the circumstances, as well as the language of the agreement, that the parties intended that, if Key-worth was successful in his third-party action, the Employer was to have an equitable lien against the proceeds for the repayment of the sums which it had advanced, and that the agreement in effect assigned any proceeds of the action as security for the repayment of the advances.

Id. at 178-79. Although neither the insurance contract nor the settlement obtained itemized the purpose of the payments, the court recognized the right of the employer to be reimbursed for all of the benefits paid to the injured employee. Id. Key-worth made no mention of excluding pain and suffering damages from the lien.

Recently, in Chesapeake Haven Land Corp. v. Litzenberg, 141 Md.App. 411, 785 A.2d 859 (2001), a worker was injured while driving a vehicle owned by his employer. The employer’s compensation insurer provided the worker with medical, vocational rehabilitation and temporary total disability benefits. The worker also filed a third-party tort action in which he was awarded damages which included future loss of earnings. However, the future loss of earnings damages were awarded to the worker for his inability to continue his real estate business, a separate enterprise from his employment with the employer. The court held that the compensation insurer could not attach its subrogation rights against the award for future loss of earnings because those damages were not part of the compensation insurer’s past or future liability to the worker. Id. at 861-64. In addition to third-party suit damages for future loss of earnings, past lost earnings, future medical and expenses and past medical and rehabilitation expenses, the jury awarded the injured worker $60,000 in non-economic damages. Id. at 860. The trial court subtracted the future loss of earning damages prior to calculating the lien amount, but included the non-economic damages. Although the appellate court did not specifically hold that non-economic damages were properly made part of the calculation, it implied that including such damages was proper. Id. at 860-64.

In researching case law from other jurisdictions on this issue, we observe that several courts have similarly held that such liens are calculated using the total award or settlement. See Am. States Ins. v. See-Wai, 472 So.2d 838 (Fla. 5th DCA 1985)(holding that wife’s loss of consortium claim could not be separated from the equitable distribution formula of the applicable statutes and that the carrier’s pro rata recovery was not to be reduced by reason of the factor of pain and suffering); Estate of Eddington v. Eppert Oil Co., 441 Mich. 200, 490 N.W.2d 872 (1992)(finding that an employer is entitled to seek reimbursement from the entire tort recovery obtained to the extent that benefits had been paid or are payable by the employer to the date of recovery); Nelson v. Rothering, 165 Wis.2d 601, 478 N.W.2d 44 (Ct.App.1991)(noting that a subrogated carrier is entitled to recover from the third party the full amount of the employee’s damages; it would be inequitable to the insurance company to distribute the major share of third party settlement to the employee without reimbursing the insurance company for compensation the employee would not have received but for the workers’ compensation “safety net”); Page v. Hibbard, 119 Ill.2d 41, 115 Ill.Dec. 544, 518 N.E.2d 69, 72 (1987)(holding that Department of Law Enforcement was entitled to workers’ compensation benefits it paid out to the injured employee out of the portion of the employee’s third-party recovery that was designated as compensation for pain and suffering; “That the employee is assured compensation from the employer under the [Workers’ Compensation] Act, though the employer might not be responsible for causing the employee’s injuries, warrants the legislature in giving priority to the employer’s right of reimbursement over the common law recovery interest of the injured employee.”); see also Billingsley v. JEA Co., 114 N.M. 168, 836 P.2d 87 (1992); Liberty Mut. Ins. Co. v. W. Cas. & Sur. Co., 111 Ariz. 259, 527 P.2d 1091 (1974); Szpera v. Mohican Ref. Corp., 121 N.J.Super. 569, 298 A.2d 281 (1972).

Under Maryland law, the insurer is entitled to reimbursement for “compensation already paid or awarded.” § 9-902(e)(2)(I). The statute does not exclude non-economic damages from recovery. Here, the trial court began with a settlement amount of $220,000, subtracted $100,000 for pain and suffering, and then determined the amount awardable to The Hartford by subtracting a percentage of fees and costs. Based on our understanding of Maryland’s Workers’ Compensation law, we conclude that an insurer’s entitlement to reimbursement for “compensation already paid or awarded” includes both economic and non-economic damages. We thus hold that the trial court erred in subtracting the jury’s award of $100,000 in non-economic damages before calculating the equitable distribution award. Accordingly, we reverse and remand with instructions to calculate the carrier’s lien from $220,000, the amount actually recovered pursuant to the settlement.

We agree with appellees’ argument on cross appeal that the final judgment and equitable distribution order failed to take into account his contractual obligation to pay an appellate attorney’s fee of an additional five percent, as well as appellate costs. Therefore, on remand, the trial court shall include appellate fees and costs when recalculating the equitable distribution amounts.

REVERSED and REMANDED.

KLEIN and GROSS, JJ., concur.


text:
    Monte D. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-751.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2003.
    Rehearing Denied May 20, 2003.
    Monte D. Moore, Raiford, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

Young v. State, 645 So.2d 965, 967 (Fla.1994); Jones v. State, 845 So.2d 55, 2003 WL 297074 (Fla. Feb. 13, 2003).

AFFIRMED.

PALMER, ORFINGER and TORPY, JJ., concur.


author: MAY, J.

text:
    Lauren Richard ROSECAN, Appellant, v. Carol Ann SPRINGER, Appellee.
    Nos. 4D01-2930, 4D01-4478.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Rehearing Denied June 2, 2003.

      Cynthia Greene of Cynthia Greene & Associates, P.A., Miami and Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellant.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   MAY, J.

The former husband appeals a final dissolution order and raises two issues. We find the award of permanent periodic alimony in need of reversal and affirm the order in all other respects.

Before we begin our analysis, we pause to acknowledge the work of the trial judge in this case. This judge worked diligently, capturing all relevant facts, and dissected this complicated dissolution with the skill of a surgeon. It is obvious to us that great thought was given to the court’s decision. The trial judge dedicated long hours to articulating its ruling. We also acknowledge counsel for restricting their arguments on appeal to essential points and for arguing their respective positions in a clear and professional manner.

With that said, we are compelled to reverse the award of permanent periodic alimony to the former wife.

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established during the marriage of the parties. In determining whether to award permanent periodic alimony, the court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.

Zeigler v. Zeigler, 635 So.2d 50, 53 (Fla. 1st DCA 1994) (citations omitted). The Florida Legislature has identified the criteria to use in making this determination: the standard of living established during the marriage, duration of the marriage, age and physical and emotional condition of the parties, financial resources of each party, time necessary to acquire sufficient education or training, contribution to the marriage, and all sources of income available to either party. § 61.08(2)(a)-(g), Fla. Stat. (2001).

It is not within our purview to reweigh the facts. This trial court did an excellent job at that. Nevertheless, it is the trial court’s specific findings of fact that drew our attention to the error in its conclusion.

The trial court specifically found the following:

1) The marital estate is worth several millions of dollars.
2) The parties have had plentiful domestic and childcare assistance for the bulk of the marriage.
3) Even though the wife claims to have worked only 15 hours per week, the home and child care providers remained on staff for the great part of the week.
4) A review of the exhibits generated by both accountants causes the court to conclude that the figures of ... the husband’s accountant, are more in line with credible and non-recurring expenses.
5) Husband’s accountant suggests the Wife’s monthly personal expenses are $18,289.00....
6) The length of this marriage is in the “grey area” for purposes of considering permanent periodic alimony.
7) The wife is forty nine.
8) An objective evaluation of the credible evidence suggests a desire on the part of the wife for a voluntary lifestyle change.
9) The wife has income potential from her rental property which the evidence establishes is clearly rented below capacity. Her equitable distribution will yield her substantial passive income, the amounts of which are dependant on the use of the liquid assets and whether she converts certain property to cash.
10) [T] he troubling part of this alimony issue is that there are grains of truth to the husband’s contention that the wife has exaggerated her needs, that she minimized her capacity to work given the fact that she really is not a true stay-at-home-mom and given the testimony of the sale of her practice, that she minimized her earning capacity given the income reported to the IRS for only 15 hours of work a week, and that she minimized her potential for income from rental property that she collects no rent in one instance and the amount of rent she has chosen to charge in others.
11) The assets and resources of the parties are commensurate with one another based upon equitable distribution [$6,750, 947.50] per spouse.
12) The evidence presented is not overwhelming to suggest that the wife made personal sacrifices in her career to promote or benefit the husband’s career.
13) Working full time as a non-surgical ophthalmologist, her wages in the short ran would not likely exceed $130,000.00. Her annual wages in the long ran of $200,000.00 to $300,000.00 (three to five years) will still never approach that of her husband. However, her ability to reach that level of earnings do not require her to re-train for surgical skills.
14) The primary factor weighing in favor of permanent periodic alimony is the income disparity.

With all of these findings, the court awarded a permanent periodic alimony of $20,000.00 a month, taxable to the wife. We cannot reconcile this conclusion with the court’s finding of the wife’s need being $18,289.00. This is especially true in light of the passive income to be generated from the equitable distribution to the wife and the wife’s earning capacity now and in the future. The figures simply do not compute.

We are mindful of the narrow scope of our review — abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Nevertheless, the numbers and the findings do not add up to $20,000.00 a month in permanent periodic alimony.

Absent special circumstances which do not appear in the judgment, an alimony award should not exceed a spouse’s need. See McCray v. McCray, 493 So.2d 1117 (Fla. 1st DCA 1986). One spouse’s need is a crucial component in the alimony equation.

Disparity in income alone does not justify an award of permanent periodic alimony. See Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Langevin v. Langevin, 698 So.2d 601 (Fla. 4th DCA 1997); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1993). Yet, this seems to have been the court’s primary reason for its award.

Reading the trial court’s order, one is led to expect a conclusion that there will be no award of permanent periodic alimony. Then, near the end of the discussion of alimony, the trial court wrote: “The primary factor weighing in favor of permanent periodic alimony is the income disparity.” The court then concludes that permanent periodic alimony, in an amount unsupported by the record, is appropriate. It is in this conclusion that we find error.

The purpose of permanent periodic alimony is not to divide future income to establish financial equality. It “is to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). In Mallard, the supreme court rejected the idea that, by including a savings component, an alimony award could exceed the recipient spouses’s current needs and necessities, where the couple routinely saved 25% of their income during the marriage. Id. at 1140-41. We read Mallard as forbidding a court from using alimony as a tool to forge economic equality, without regard to the needs of the recipient spouse.

We remand to the trial court for reconsideration of the award of alimony, while removing income disparity from the equation. The husband’s income is relevant, since it establishes his ability to pay any award up to the dollar amount of the wife’s need as determined in the trial court’s order. This remand is not an invitation for these litigious parties to relitigate the issue of alimony. We contemplate that the trial judge will be able to use the extensive findings in its original order to come to a decision.

We note that “[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.” Aresty v. Weinstein, 667 So.2d 846, 847 (Fla. 3d DCA 1996) (quoting Wismar v. Wismar, 522 So.2d 552, 553 (Fla. 5th DCA 1988)).

Rehabilitative alimony may also be an option. As this court has recognized, “[cjourts award rehabilitative alimony to provide an opportunity for the former spouse to establish the capacity for self-support commensurate with the standard of living established during the course of the marriage.... ” Martire v. Martire, 792 So.2d 631, 632 (Fla. 4th DCA 2001).

Upon remand, the trial court should consider its existing findings concerning the wife’s current and future earning capacity and passive income in relation to the court’s finding of her need. The court may then fashion alimony (rehabilitative or permanent periodic) to bridge the gap between her current and future earning capacity (including passive income) and the standard of living established during the course of the marriage to insure that her needs are met.

We reverse and remand the award of permanent periodic alimony and affirm the judgment in all other respects.

GROSS, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.