author: GRIFFIN, J.

text:
    CAMP, DRESSER & McKEE, INC., et al., Appellants, v. PAUL N. HOWARD COMPANY, et al., Appellees.
    No. 5D01-2539.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2003.
    Rehearing Denied Sept. 10, 2003.

      James D. Kisio, of Irby G. Pugh, P.A., Orlando, and William H. Selde, of Sodoro, Daly & Sodoro, P.C., Omaha, Nebraska, for Appellants.
    Michael M. Bell, of Bell, Leeper & Roper, P.A., Orlando, for Appellees Paul N. Howard Company, INA of Texas, Pacific Employers Insurance Company, INA Insurance Company of Illinois, and Atlantic Employers Insurance Company.
    H. Gregory McNeill, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellee Insurance Company of North America.
   GRIFFIN, J.

Camp, Dresser & McKee, Inc., and its insurers, Imperial Casualty & Indemnity Company and International Insurance Company [collectively “CDM”] appeal a summary final judgment entered in favor of Paul N. Howard Company [“Howard”], Insurance Company of North America [“INA”] and their insurers, INA of Texas, Pacific Employers Insurance Co., INA Insurance Company of Illinois, and Atlantic Employers Insurance Company in the underlying contractual indemnity action. We reverse.

Background

When Orange County [“the County”] undertook to construct the Southwest Orange County Water Conservation Effluent Transmission Main [“the project”] in 1984, it hired CDM to provide the necessary engineering work and Howard as its contractor for the project. Howard hired Affholder, Inc., and Kern Affholder [“Aff-holder”] to construct underground tunnels necessary for the project. Affholder in turn contracted with Ed Waters & Sons Contracting Company, Inc. [‘Waters”] to construct steel reinforced pits necessary to set up Affholder’s tunneling apparatus. Construction of the pits required the use of sheet piling for reinforcement. As Robert Eiler, an employee of Waters, was unhooking the sheet piling from a crane, the crane got too close to a power line and electricity arced from an overhead power line to the crane and from the crane to Mr. Eiler. Mr. Eiler received an electrical shock which caused severe and permanent brain damage.

Suit was instituted by Mr. Eiler’s guardian against CDM, Howard, and Affholder, as well as other parties connected with the project. Summary judgments, which were subsequently affirmed by this court, were entered in favor of Howard and Affholder based on their immunity from liability for Mr. Eiler’s claims under Florida’s Workers’ Compensation Act. In the end, only CDM was left as a defendant in the Eiler suit.

On January 27, 1993, CDM contacted Howard by letter informing them of the current status of the suit and the scheduled settlement mediation set for February 12, 1993, and asserted a right of indemnification from Howard under the project’s construction contract documents. CDM explained:

As discovery has progressed in this matter it has become increasingly apparent that Mr. Eiler was injured as the sole result of the negligence of your subcontractor or sub-subcontractor on this project. As a result, Camp Dresser & McKee, Inc. will look to your firm to indemnify it against any recovery had by the Plaintiff against Camp Dresser & McKee, Inc. in this matter.

The letter asked that a representative of Howard attend the mediation and explained that if Howard failed to attend, CDM would “hear no objection” as to the reasonableness of any settlement it might reach. On February 9, 1993, CDM’s counsel wrote an even more extensive letter explaining that Eiler’s injuries were not due to CDM’s design of the project and that CDM was convinced it was entitled to indemnity from Howard notwithstanding the fact that Orange County had earlier asserted a similar indemnification claim under the same contract provisions that had failed in court. Howard made no response to these and subsequent demands. In the case below, Howard filed an affidavit claiming it did not respond to CDM because it considered CDM’s notice to be “inadequate” and because, having obtained a summary judgment in its favor on Orange County’s claim for indemnity based on the same indemnification clause, it believed that it had no duty to CDM under the indemnification agreement.

After Howard and INA failed to respond to CDM’s demand, CDM eventually settled Mr. Eiler’s claim for the sum of $3.55 million dollars. CDM then filed a complaint against Howard, INA, and their insurers seeking contractual indemnity.

The indemnity action was based on the following indemnity provisions contained in the County’s agreement with Howard:

Indemnification:
6.30. To the fullest extent permitted by law, CONTRACTOR [Howard] shall indemnify and hold harmless OWNER [Orange County] and ENGINEER [CDM] and their agents and employees from and against all claims, damages, losses, and expenses including but not limited to attorneys’ fees arising out of or resulting from the performance of the work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death ... and (b) is caused in whole or part by any negligent act or omission of CONTRACTOR [Howard], any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be hable, regardless of whether or not it is caused in part by a party indemnified hereunder.

Eiler v. Camp, Dresser & McKee, Inc., 594 So.2d 753 (Fla. 5th DCA 1992); Eiler v. Camp, Dresser & McKee, Inc., 591 So.2d 641 (Fla. 5th DCA 1992). There was also a provision limiting the scope of the indemnification.

6.32 The obligations of CONTRACTOR [Howard] under paragraph 6.30 shall not extend to the liability of ENGINEER [CDM], his agents or employees arising out of the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications.

INA, as Howard’s surety, was named as a party to the indemnity action based on a performance bond INA issued for the project which included an indemnity clause whereby INA was to indemnify the County and CDM as follows:

[INA] shall indemnify and save harmless the said Owner [Orange County] and the Engineer [CDM] and his agents against payments of any and all damages that may happen to persons or property by reason of the excavations or embankments, obstructions and all other work in the streets or alleys or in the site in connection with the said work, or arising out of any act, neglect or omission of said principal [Howard], his or its agents, suppliers, subcontractors or employees with relation to said work....

The summary final judgment presently on appeal is the second judgment rendered in favor of Howard and INA and against CDM. Earlier in the proceedings, the trial court had granted summary judgment in favor of Howard and INA on the ground that section 725.06, Florida Statutes (1983), precluded CDM’s claim absent specific consideration from CDM; that there was no special relationship by which CDM was vicariously liable for the negligence of Howard or its subcontractors; and that the exclusive remedy provision of the Worker’s Compensation Act barred the action because Howard was Mr. Eiler’s statutory employer. CDM subsequently appealed and this court reversed. We held that the action was not barred by the exclusive remedy provision of the Worker’s Compensation Act; that CDM could seek indemnity as a third party beneficiary to the contract where the County gave consideration in exchange for the agreement to indemnify the County and CDM; and that in attempting to recover under a contractual indemnity clause CDM was not required to establish a special relationship between itself and Howard that would make its liability vicarious, constructive, derivative or technical. Camp Dresser & McKee, Inc. v. Paul N. Howard Co., 721 So.2d 1254, 1257 (Fla. 5th DCA 1998) [“Camp Dresser I.”] We remanded the case to the trial court because the issue of CDM’s negligence appeared to remain unresolved.

On remand, the trial court resisted Howard’s impassioned argument that our opinion in Camp Dresser I was just plain wrong and was based on a misreading of the indemnity agreement. Notwithstanding our opinion in Camp Dresser I, Howard continued to press the view that CDM could have no right to indemnity under paragraph 6.30 of the contract because CDM had been sued only for CDM’s own negligence, not Howard’s, Waters’ or Aff-holder’s negligence. Howard’s unwavering view then and now is that unless CDM had been sued on a theory of vicarious liability for Howard’s negligence, both common law and contractual indemnity were simply not available to CDM.

Howard is wrong. As we tried to explain in Camp Dresser I, common law indemnity is an equitable remedy that arises out of obligations imposed through special relationships, but contractual indemnity is not concerned with “special relationships” or vicarious, constructive, derivative or technical liability; it is concerned with the express terms of the agreement to indemnify. See Metropolitan Dade County v. Florida Aviation Fueling Co., 578 So.2d 296 (Fla. 3d DCA 1991); Grain Dealers Mut. Ins. Co. v. Quarrier, 175 So.2d 83 (Fla. 1st DCA 1965). In cases involving contractual indemnity, the terms of the agreement will determine whether the indemnitor is obligated to reimburse the indemnitee for a particular claim. See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999); Arison v. Cobb Partners, Ltd., 807 So.2d 101 (Fla. 3d DCA 2002); ICA Const. Corp. v. Fredrick R. Harris, Inc., 701 So.2d 113, 115 (Fla. 3d DCA 1997).

Howard is also wrong in its contention that under no reading of paragraph 6.30 could it be said that Howard is contractually bound to provide indemnity to CDM for claims alleging CDM’s own negligence. Certainly contracts purporting to indemnify a party against its own negligence will only be enforced if they clearly express such an intent, Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So.2d 487, 489 (Fla.1979); Comptech Int’l, Inc. v. Milam Commerce Park, Ltd., 711 So.2d 1255 (Fla. 3d DCA 1998), and a general provision indemnifying the indemnitee “against any and all claims,” standing alone, is not sufficient. University Plaza Shopping Ctr. v. Stewart, 272 So.2d 507, 510-11 (Fla.1973); see also Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205 (Fla. 4th DCA 1973); see also Cox Cable Corp. v. Gulf Power Co., 591 So.2d 627 (Fla.1992). However, paragraph 6.30 also specifically provides that Howard shall indemnify CDM for any claim “regardless of whether or not it is caused in part by a party indemnified hereunder.”

The indemnity provision at issue in paragraph 6.30 is almost verbatim the indemnification provision contained in the American Institute of Architects (AIA) Standard Document A201 for General Conditions of the Contract for Construction. The United States Supreme Court has cited this language as being a paradigm of clarity in shifting the risk of a negligent indemnitee’s loss to the indemnitor. United States v. Seckinger, 397 U.S. 203, 212, 90 S.Ct. 880, 25 L.Ed.2d 224, n. 17 (1970). The AIA’s own commentary describes the intent of this provision as follows:

The contractor’s obligation to indemnify is triggered by an act or omission of the contractor or one of the contractor’s agents or employees, and covers the in-demnitee’s loss only to the extent that it was caused by such act or omission. This is comparative fault language: for example, if the indemnitee and all other third parties are found to be 20 percent responsible, the contractor’s obligation to indemnify would extend to 80 percent of the loss.

American Institute of Architects, “Commentary on AIA Document A201-1997” ¶ 3.18 at 32

We conclude that this provision clearly expresses the parties’ intent that CDM may be indemnified by Howard even if CDM is sued for its own wrongful conduct. See Gulfstream Park Racing Ass’n v. Gold Spur Stable, Inc., 820 So.2d 957 (Fla. 4th DCA 2002)(citing Marino v. Weiner, 415 So.2d 149 (Fla. 4th DCA 1982), Leonard L. Farber Co. v. Jaksch, 335 So.2d 847 (Fla. 4th DCA 1976)), review denied, 842 So.2d 845 (Fla.2003). Certainly, when reading paragraphs 6.30 and 6.32 together, it is even more clear that the intent of the parties was to indemnify CDM for any claim arising out of negligence of Howard or its subcontractors even if CDM was also negligent. The document makes no sense if paragraph 6.30 has the meaning Howard and INA ascribe to it.

The Current Appeal

After an initial false start, the trial court determined that there were two issues to be tried as predicates to CDM’s entitlement to indemnity: (1) whether Howard, Affholder, and/or Waters were negligent, an express requirement for application of section 6.30, and (2) whether CDM beached any of its design related duties specifically referenced in paragraph 6.32, because CDM could not claim indemnity under 6.30 if the indemnity claim was based on such acts.

The jury returned a verdict finding that Howard (30%), Affholder (10%), and Waters (60%) were 100% negligent and were the legal cause of the injury to Richard Eiler. The jury also found that CDM was not negligent in the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications. Having succeeded completely at trial, CDM may have imagined it was on its way to obtaining a judgment in its favor.

Undeterred, INA and Howard filed further motions for summary judgment on the issue of indemnity, yet again reiterating its position that because CDM had been sued only for its negligence and not acts of Howard, CDM could never be indemnified by Howard:

“What is missing from CDM’s argument is the necessary ingredient that it reached a settlement with Richard Eiler based on the negligence of Howard and its subcontractors for which CDM [is] vicariously liable.”

The trial court granted summary judgment in favor of INA and Howard, but the court did so for a reason largely unrelated to the issues raised at trial or the summary judgment motions. The court explained its reason for ruling against CDM as follows:

The record clearly shows there was potential liability for CDM to be found negligent under the duties set out in Paragraph 6.32. However, the court finds the record as it existed at the time of the settlement and at the present time fails to show any fact to support a claim that CDM had a reasonable basis to believe that it could be found negligent for acts done or not done outside the duties set out in Paragraph 6.32.
Since Paragraph 6.32 duties were excepted from the indemnity provision, CDM did not sustain or suffer any damages because of CDM’s payment of the settlement monies for which it would be entitled to be contractually indemnified by Howard. The settlement monies were, strictly speaking, paid due to its potential liability arising out of a violation of its duties as set out in paragraph 6.32 and not because of any negligent act or omission of Howard or its subcontractors or of any violations of duties outside of Paragraph 6.32’s penumbra; therefore, they would not be covered by the indemnity provisions of the general contract.

The trial court entered its summary final judgment in accordance with this order, which CDM now challenges on appeal. Although the appealed order is a perceptive and accurate analysis of the controlling legal principles, we believe that the court’s ultimate conclusion is premature and not supported by the record. For that reason, we reverse.

The general rule of indemnification is that an indemnitor who has notice of the suit filed against the indemnitee by the injured party and who is afforded an opportunity to appear and defend it is bound by a judgment rendered against the in-demnitee as to all material questions determined by the judgment. Hull & Co. v. McGetrick, 414 So.2d 243, 244 (Fla. 3d DCA 1982); Hoskins v. Midland Ins. Co., 395 So.2d 1159 (Fla. 3d DCA 1981); MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973); Westinghouse Elec. Corp. v. J.C. Penney Co., 166 So.2d 211 (Fla. 1st DCA 1964). The judgment, however, must be rendered without fraud or collusion. Florida courts often refer to the effect of this rule as “vouching in” the indemnitor. Hull.

Premised on the concepts of estop-pel and res judicata, the judgment rendered in the main action establishes for purposes of the indemnity action all of the material facts litigated in the main action. See Hull, 414 So.2d at 244 (“It is well settled that a judgment rendered against an indemnitee ... is conclusive for res judicata or estoppel by judgment purposes against a potential indemnitor ... but only upon the condition that the indemnitor has been given timely notice and an opportunity to appear and defend the action.”); Hoskins, 395 So.2d 1159; Westinghouse, 166 So.2d 211.

The vouching in rule also applies to settlements. See Continental Cas. Co. v. Godur, 476 So.2d 242 (Fla. 3d DCA 1985); Post Houses, Inc. v. Fireman’s Fund Ins. Co., 469 So.2d 863 (Fla. 1st DCA 1985); Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, 385 So.2d 676, 681 (Fla. 3d DCA 1980). In Godur, the court set forth the general rule:

Ms. Godur, as a defendant in the primary action and a cross-defendant to Continental’s cross-claim, was on notice of (and obviously had the opportunity to defend) both the underlying action and the indemnity claim long before the settlement took place. In these circumstances — in the admitted absence of any claim of fraud or collusion — it is established Florida law that she is conclusively bound by the terms of the subsequent settlement agreement to reimburse Continental for the amounts expended.

476 So.2d at 244. Although variously described in the cases, courts generally agree that a party seeking indemnification must establish that the settlement was made based on his potential liability to the plaintiff. A showing of “potential liability” is required because the indemnitee must not be a mere volunteer who has settled the underlying claim when there was no exposure to legal liability that obligated him or her to do so. See Arison, 807 So.2d 101; Dade County School Bd., 731 So.2d 638. Only if the indemnitor is not given notice and an opportunity to assume responsibility for the claim must the settling indemni-tee show that it was actually liable to the plaintiff.

The rule is the same in a case such as this where theories both within and without the indemnity agreement are asserted against the indemnitee and the indemnitor does not assume the defense of the claims within the contract’s coverage. Heckart v. Viking Exploration, Inc., 673 F.2d 309, 313 (10th Cir.1982). The indem-nitee may settle for a reasonable amount and then recover that amount from the indemnitor by showing it was not liable on any theory outside the indemnity agreement and was potentially liable on a theory covered by the agreement. Id.

The question whether an in-demnitee must establish “actual liability” to the plaintiff or only “potential liability” based upon notice given to the indemnitor is a question for the court to decide. See In re Cooper Mfg. Corp., 131 F.Supp.2d 1238 (N.D.Okla.2001). The trial court in this case apparently concluded that Howard had adequate notice of the claim because the court applied the “potential liability” test. This conclusion that Howard received adequate notice is supported by the record. The record reveals that Howard was well aware of the underlying suit filed against CDM by Eiler; Howard had been a party to the suit until extricating itself on summary judgment based on worker’s compensation immunity. Moreover, CDM timely and repeatedly notified Howard of the impending settlement mediation date and its intent to initiate settlement discussions with Eiler, inviting Howard’s participation. Under the circumstances of this case, three weeks’ notice of the settlement mediation was adequate and did not prejudice Howard. We agree that, for purposes of applying the vouching in rule, Howard was given adequate sufficient notice of the suit. Godur; see also Hull.

Where the trial court erred was in concluding that summary judgment in Howard’s favor was appropriate because there was no potential liability on the part of CDM for any acts other than breach of those duties set out in paragraph 6.32 which were specifically excluded from the indemnity provisions of the agreement.

The allegations of the complaint filed against CDM by Eiler, show that CDM was being sued for diverse negligent acts or omissions, including:

25. [CDM] negligently failed to adequately design the Project and supervise the work in that it knew or should have know that in carrying out its plans, it created an unreasonably dangerous condition because the work required to be performed at the injury site necessitated the use of a crane in, around, and near uninsulated power lines. Nevertheless, [CDM] negligently failed until after the accident to correct the plans or take other appropriate action to protect workmen at the site.
26. [CDM] negligently failed to prepare plans which complied with the applicable professional standards of engineers in that the plans provided for the work which was performed by plaintiff Richard A. Eiler and others to be performed in an unreasonably dangerous location without proper warning or protection. Further, the plans of [CDM] failed to adequately provide the reasonable means by which the work could be performed safely in light of existing conditions and were defective in that the means provided on the design documents to perform the work safely were impossible to carry out at the work site.
27. [CDM] failed to adequately supervise the Project in that it required work to be performed at an extremely dangerous location, more likely than not, to cause an injury to the plaintiff Richard A. Eiler; failed to notify FPC [Florida Power Company, the company who owned the power line that transferred the current to the crane] of impending work to be done with a crane in, around, and near its power lines; failed to adequately or sufficiently warn the plaintiff and other workers of the dangerous condition; and failed to use proper means that it knew or should have known would negate the danger from uninsulated power lines to the plaintiff Richard A. Eiler as he performed his work on the ground below.
28. The failure of [CDM] to adequately supervise the Project and its defective design is the direct and proximate cause of the injuries, damages, and losses to the plaintiff Richard A. Eiler, described in paragraph 18.

[emphasis supplied.] Within these allegations are claims of breaches of duties covered in paragraph 6.32 which are excluded from the indemnity provisions of the agreement. Notably, however, there are also allegations of negligence by CDM which are not excluded from the indemnity provisions of the agreement by paragraph 6.32.

Howard consistently and aggressively contended throughout the proceedings that CDM did have significant liability exposure to Eiler and that there was ample evidence in the underlying case that CDM was actively negligent. In support, Howard often referred to the memorandum of law filed by Eiler in opposition to CDM’s second motion for summary judgment to demonstrate how plain CDM’s own negligence was. Howard, of course, so readily took the position that CDM, its indemni-tee, was negligent because of its mistaken view that, so long as CDM was sued for its own negligence and not for any vicarious liability for Howard’s negligence, Howard was safe from liability under the contractual indemnity in paragraph 6.30.

The Eiler memorandum in opposition to CDM’s motion for summary judgment often referred to by Howard laid out in detail Eiler’s three main theories of liability against CDM: (1) negligent design; (2) negligent supervision; and (3) section 324A of the Restatement (Second) of Torts.

As to the theory of negligent supervision, Eiler asserted in part:

CDM’s liability for defects in its design of the project, to the extent that they posed an unreasonable risk of danger to plaintiff Eiler, must be considered separately from potential liability associated with CDM’s negligent supervision of the project.
Moore v. P.R.C. Engineering, Inc., 565 So.2d 817 (Fla. 4th DCA 1990) is dispositive on the issue of supervisory liability. In that ease, Moore was injured in the collapse of a toll facility being constructed by a state agency and Moore filed suit against the supervisory engineers who had agreed to act as the agency’s general consultant for the project and be responsible for monitoring, inspection, testing and observation and assurance of the quality of the work. After the trial court granted summary judgment in favor of the engineers on the basis of its finding that the sole responsibility for assuring safety on the job rested with the general contractor, the Fourth District reversed and found that the engineering and inspection duties assumed by the engineer encompassed a duty to ensure that the construction proceeded safely and that material issues of fact existed as to whether or not the engineers breached the duties imposed upon them. 565 So.2d at 820.

Eiler also relied on Restatement (Second) of Torts, section B24A, previously applied by the Fourth District Court of Appeal in Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257 (Fla. 4th DCA 1985):

One who undertakes, gratitutiously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm....

484 So.2d at 1261.

Eiler argued:

“The language of the contract between Orange County and CDM called for CDM to approve change orders (page numbers omitted) to ‘review field conditions’ and ‘identify and resolve potential short-range problems.’.... “In fact, CDM reserved the right to modify the location of the pipeline in order to avoid interference with existing structures. In light of these contractual duties and the readily foreseeable prospect of electrocution of workers on the project in the event that ineffective changes in the location of the pit in question were approved by CDM, issues of fact are presented as to CDM’s failure to perform a reasonably careful inspection of the site and evaluation of the proposed change in the pit location before approving the change.”

For its part, CDM points out that before it elected to settle, the trial court had denied two motions for summary judgment filed by CDM in an attempt to extricate itself from Eiler’s claim. CDM’s second motion for summary judgment was opposed not only by the memorandum but was supported by the affidavits of three engineers who concluded that CDM’s negligent actions caused Eiler’s injuries.

The trial court refused CDM indemnity because it lacked “potential liability” for any claim other than one encompassed by paragraph 6.32. The court said: the “record as it existed at the time of settlement and at the present time” failed to show “any facts to support a claim that CDM had a reasonable basis to believe it could be found negligent for acts done or not done outside of the exceptions in paragraph 6.32.” However, the record of the proceedings in the Eiler case, as described above, is some evidence of a reasonable basis for CDM to believe that it had exposure for claims outside paragraph 6.32. It is difficult to draw a bright line between the alleged acts of negligence that are excluded from indemnity in section 6.32 and those that are not excluded, but that uncertainty militates in favor of CDM, not against it. Further, we now know that the jury below, when presented with all the evidence of CDM’s negligence, determined that CDM was not guilty of negligent design.

Doubt about the trial court’s conclusion is heightened because the trial court’s ruling on this point is not based on what the court told the parties they were to litigate. The parties only litigated the paragraph 6.30 and 6.32 issues: Were Howard and the subcontractors negligent and was CDM guilty of negligent design? Pretrial, the trial court had even (correctly) rejected the suggestion of asking the jury whether CDM could be liable for negligent supervision because at the time the court expressed the view that the only issues that mattered were whether Howard and the subs were negligent, which would trigger indemnity, and whether CDM was hable for negligent design, which would nullify the right to indemnity. Nothing identifies as an issue CDM’s “potential liability” or “reasonable basis to believe” it could be found liable to Eiler for negligent supervision of the work as aheged in Eiler’s complaint.

It is also unclear what criteria the trial court was using to evaluate CDM’s potential for liability to Eiler. Florida law is a bit fuzzy on the question of “potential liability” in the contractual indemnity context. Many Florida cases suggest that when the indemnitor has had notice and an opportunity to defend, but has refused or failed to do so, the indemnitor may not litigate the reasonableness of the indemni-tee’s decision to settle unless fraud or collusion with the plaintiff is demonstrated.

Other courts have used a variety of words to illustrate “potential liability” in the context of the settlement of a claim subject to contractual indemnity. In Chicago Title Insurance Co. v. IGM Exeter Associates Ltd. Partnership, 985 F.2d 553 (4th Cir.1993), the Fourth Circuit Court of Appeals in evaluating a “potential liability” issue used terms such as “not frivolous,” “reasonable apprehension of liability,” “untainted by fraud or collusion.” See also Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1217 (5th Cir.1986). In Manley v. AmBase Corp. 121 F.Supp.2d 758 (S.D.N.Y.2000), the court found it sufficient that counsel for the indemnitee, after evaluating the strength of the case, “believed there was a possibility that a substantial judgment would be rendered” against the indemnitee. Other courts speak of reasonableness and good faith. Volkswagen of America, Inc. v. Bob Montgomery, Inc., 1985 WL 2824 n. 4 (E.D.Pa.1985).

The threshold for “potential liability” is not high, nor should it be. Where notice has been given to the indemnitor and the indemnitor has elected not to act to protect himself, he, in effect, consents to allow the indemnitee to act for him and will not be heard to complain about the outcome — except in the very limited circumstance where the indemnitee was not, in fact, at risk, but nevertheless paid money that it would never have owed to the plaintiff. See Burke v. Ripp, 619 F.2d 354, 358 (5th Cir.1980). The cases suggest that the test for “potential liability” may be both subjective and objective, ie. was the indemnitee at any risk of loss due to the claim and did the indemnitee have reason to believe he was at risk at the time the settlement was entered into? See In re Cooper Mfg. Corp., supra, at 1258.

Courts generally hold that it is for the court to determine whether actual liability or potential liability is the indemnitee’s burden, but questions pertaining to whether there was “potential liability” often involve questions of fact. We are not convinced that the issue of CDM’s reasonable apprehension of liability for negligent supervision was fully aired below or is so clearly established on the record that we should decide it as a matter of law at this level any more than should the trial judge have done. It is appropriate to remand for further proceedings on this issue.

If it is determined after taking evidence that CDM paid all or part of the $3.55 million to Eiler based on potential liability for negligence not described in paragraph 6.32, then CDM would be entitled to indemnity for those monies paid to Eiler. We accordingly reverse the summary judgment in favor of Howard and INA and remand for further proceedings, specifically, whether CDM settled the Eiler claim based on a reasonable potential for liability based on negligence unrelated to design, if so, what portion of the payment to Eiler was for such potential liability and what were CDM’s recoverable costs and attorney’s fees for defending the negligent supervision claim.

REVERSE and REMANDED.

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

      . The County paid Howard $1,000 consideration in exchange for this indemnification, and CDM was named a third party beneficiary to the contract.

      . INA’s counsel explained to the trial court that it was “not the Fifth DCA’s best day.’’

      . Howard’s Motion for Summary Judgment, filed June 11, 2001.

      . We note, in any event, that where the indemnification claim is based on a written contract of indemnification, many courts recognize that a showing of potential liability is all that is required even if notice is not given. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1216 (5th Cir.1986).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A.M. and Z.M., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D03-662, 4D03-914, 4D03-885, 4D03-913.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Rehearing Denied Sept. 26, 2003.
    Kathleen K. Pena of Law Offices of Kathleen K. Pena, Fort Lauderdale, for appellant A.M.
    Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant Z.M.
    No appearance for appellee.
   PER CURIAM.

The trial court entered a default against parents of S.M. who were late for a hearing in their termination of parental rights case filed against them by the Florida Department of Children and Families. Because they were mistaken about the public transportation schedule, the parents arrived at the courthouse about one hour after their hearing was to begin. The default had the effect of consenting to the termination of their parental rights. The trial court held a hearing on the parents’ motion to set aside the default, and denied the motion.

This court recently decided two strikingly similar cases. See A.J. v. Dep’t of Children and Families, 845 So.2d 973 (Fla. 4th DCA 2003); R.P. v. Dep’t of Children and Families, 835 So.2d 1212 (Fla. 4th DCA 2003).

Significant in the present case, as in R.P., this court discussed section 39.801(3)(d), Florida Statutes, explaining that although the statute authorizes a default at the advisory hearing in termination of parental rights eases,

courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control.

835 So.2d at 1214.

We find the refusal to vacate the default an abuse of discretion.

REVERSED.

STONE, FARMER and HAZOURI, JJ., concur.

      . Section 39.801(3)(d), Florida Statutes (2001), provides "If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice.”


text:
    Bart PETERSCHICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2212.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    James T. Miller, Jacksonville, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

KAHN, WEBSTER and DAVIS, JJ., concur.


author: MONACO, J.

text:
    MSM GOLF, L.L.C., Appellant, v. J. Steven NEWGENT, Raymond T. Watson, Newgent Golf, Inc., d/b/a JSN Golf Enterprises, Appellees.
    No. 5D02-3204.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.
    Rehearing Denied Sept. 9, 2003.
    Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for Appellant.
    Peter A. Robertson, Jeffrey L. Price, and T.J. Frasier, Gainesville, for Appel-lees.
   MONACO, J.

MSM Golf, L.L.C. (“MSM”) appeals an order of the trial court denying its motion for new trial on damages, or in the alternative, for additur, in this case involving breaches of two contracts by the appellees, J. Steven Newgent, Raymond T. Watson, and Newgent Golf, Inc., d/b/a JSN Golf Enterprises (collectively, “Newgent”). Because we conclude that MSM was entitled to a new trial, we reverse.

Reduced to their essence, the facts of this case are relatively simple. MSM entered into two contracts with Newgent concerning the development of a golf course. Newgent purportedly breached both contracts, and MSM brought suit for damages. The case proceeded to jury trial and the jury returned a verdict finding that Newgent breached both contracts and answered in the negative questions dealing with defenses raised by Newgent. The jury, however, failed to award any damages to MSM on either breach.

MSM timely moved for a new trial on the issue of damages only, or alternatively, for additur. The trial court denied the motion for new trial, as well as a motion for rehearing addressed to it, and entered final judgment. In his order denying the motion for rehearing the trial judge concluded that:

Based on the evidence and the instructions of law presented to the jury, the Court agrees that the jury’s verdict is inconsistent. The jury should have either found for Plaintiff and awarded damages or, alternatively, found there was no breach of contract by the Defendants. Accordingly, either side should be entitled to a new trial upon filing a timely motion requesting same.

The trial judge then held, however, that despite the inconsistent verdict, he would deny MSM’s motion because it sought a new trial only on damages, and not on both liability and damages. We note that at the hearing before the trial court on its motion, MSM did indicate that it would rather request a new trial on all issues than accept a verdict for zero damages.

There is no question that the trial judge was correct in recognizing that the verdict was inconsistent and should not stand. It is a fundamental principle of contract law that once liability for a contract breach is established, an injured party is entitled as a matter of right to compensatory damages. See, e.g., St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983); Fisher v. Miami, 172 So.2d 455 (Fla.1965). At the very least, MSM was entitled to nominal damages once the jury found that the contracts had been breached by Newgent. See Onontario of Florida, Inc. v. R.P. Trucking Co., Inc., 399 So.2d 1117 (Fla. 4th DCA 1981); Muroff v. Dill, 386 So.2d 1281 (Fla. 4th DCA 1980), rev. denied, 392 So.2d 1377 (Fla.1981). As the verdict was patently inconsistent, either party was, as the trial court correctly observed, entitled to a new trial.

The question to be examined is whether the trial court abused its discretion in denying a new trial on all issues, when MSM filed its motion for a new trial on damages only. The answer is found in Fla. R. Civ. P. 1.530(d), which provides:

Not later than ten days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court may on its oum initiative order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party. (Emphasis added).

While this rule sounds in discretionary language, it seems to us that once the trial court specifically recognized the patent inconsistency of the verdict, it was the court’s obligation to order a new trial. That MSM only asked for a new trial on damages should not have been a limiting factor, particularly where, as here, the trial court concluded that a new trial on damages alone was not justified, but that a new trial on all issues was, and the party seeking relief orally acknowledged that it would move for a new trial on all issues, rather than risk having no retrial at all.

We fully agree with the trial court that a new trial should be conducted on both liability and damages. The trial judge observed that:

[I]t would be improper to award the Plaintiff an additur or a new trial on the issue of damages only, because to do so, the Court would have to make the highly questionable and speculative assumption that the jury properly followed the Court’s instructions in determining liability while totally ignoring the Court’s instruction on damages. Under the facts of this case, the Court cannot in good conscience do so.

Accordingly, we reverse the final judgment rendered in this cause and remand for a new trial on all liability and damage issues raised by the pleadings.

REVERSED and REMANDED.

SAWAYA, C.J., and ORFINGER J., concur.

      . The issue of whether the aggrieved party is obligated to object to the verdict prior to the discharge of the jury is not raised in this appeal.


text:
    William D. WILKINSON, Appellant, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 1D02-1841.
    District Court of Appeal of Florida, First District.
    July 28, 2003.
    John H. Shearer, Jr., Ft. Myers, for Appellant.
    Ross Stafford Burnaman and Michael Yaun of Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appel-lee.
   PER CURIAM.

The appellant challenges a summary final judgment which was entered for the appellee Fish and Wildlife Conservation Commission in a declaratory judgment action by which the appellant challenged an administrative rule. We conclude that the appealed order was properly entered upon a determination that the appellant could not obtain declaratory relief without exhausting his administrative remedies.

In his declaratory judgment complaint the appellant challenged the Lee County Manatee Protection Rule, as promulgated by the Commission at Florida Administrative Code Rule 68C-22.005. The appellant indicated that he was cited for violating this rule, which he described as establishing zones within Lee County where the use of the waterways is restricted or prohibited so as to protect manatees from collisions with motorboats. The appellant noted that he was charged with a criminal violation which was amended to a civil violation, and he attached copies of the citation and the criminal information charging a misdemeanor. The action was originally filed with the Commission and Lee County being named as defendants. However, the action was dismissed as to Lee County by court order, and after the appeal in Fish and Wildlife Conservation Com’n v. Wilkinson, 799 So.2d 258 (Fla. 2nd DCA 2001), venue was transferred and the case proceeded to disposition by summary judgment.

Although the Commission was established as a constitutional entity by the 1998 revision of the Florida Constitution at article IV, section 9, and article XII, section 23, the Commission’s constitutional authority does not encompass regulatory control of threatened and endangered species, as explained in Caribbean Conservation Corp. v. Florida Fish and Wildlife Conservation Comm’n, 838 So.2d 492 (Fla.2003). This limitation is recognized in section 370.025, Florida Statutes, which provides at subsection (4)(a) that the Commission’s constitutional rulemaking authority does not pertain to endangered or threatened marine species “for which rulemaking shall be done pursuant to chapter 120 .... ” The legislature thus gave the Commission rulemaking authority pursuant to chapter 120 with regard to the protection of manatees, as indicated in section 370.12(2), Florida Statutes. In the summary judgment order now being appealed the trial court referred to the Commission’s authority under section 370.12(2)(f), (m), and (n), and relied on this court’s decision which the supreme court approved in Caribbean Conservation, as establishing that the challenged rule here was subject to the chapter 120 procedures. The trial court concluded that the appellant could not circumvent the administrative process, and thus was not entitled to declaratory relief without exhausting his chapter 120 administrative remedies.

The trial court further determined that the appellant failed to show any basis for bypassing the administrative process under the exceptions recognized in cases such as Communities Financial Corp. v. Florida Dept. of Environmental Regulation, 416 So.2d 813 (Fla. 1st DCA 1982). See also Sarnoff v. Florida Dept. of Highway Safety and Motor Vehicles, 825 So.2d 351 (Fla.2002). And while the appellant now asserts that he did not have standing for a § 120.56 rule challenge, it would appear that he was substantially affected by the rule so as to be accorded standing under section 120.56(l)(a), Florida Statutes, being impacted in a real and sufficiently immediate manner so as to comport with the standing requirements in cases such as NAACP, Inc. v. Florida Bd. Of Regents, 822 So.2d 1 (Fla. 1st DCA 2002), review granted, 837 So.2d 411 (Fla. 2003). See also Lanoue v. Florida Dept. of Law Enforcement, 751 So.2d 94 (Fla. 1st DCA 1999). But in any event, it is unnecessary for us to resolve the standing argument as the appellant did not present this issue below, and it is therefore not properly asserted on appeal. E.g. Couch v. Commission on Ethics, 617 So.2d 1119 (Fla. 5th DCA 1993).

The appellant also suggests that the challenged rule impacts his constitutional rights, for which declaratory relief might have been given without the appellant having otherwise proceeded through the administrative process as to his nonconsti-tutional claims. But as the trial court expressly found, the constitutional assertions presented below do not provide a basis for relief. The appellant relies on a constitutional right to travel, but this does not appear to be implicated under the Florida Constitution, and such right under the United States Constitution pertains to interstate travel, which is not involved here. See Wilkinson. And the appellant’s due process claim relates to the police power for regulatory action, with such claims being routinely adjudicated through the administrative process. E.g. Marine Industries Ass’n of South Florida v. Florida Dept. of Environmental Protection, 672 So.2d 878 (Fla. 4th DCA 1996).

Because the appellant did not present a basis for bypassing the administrative remedy available through a section 120.56 rule challenge, the court properly entered summary judgment for the Commission. The appealed order is therefore affirmed.

VAN NORTWICK and POLSTON, JJ„ and SMITH, LARRY G., Senior Judge.


text:
    B.A.C.H. ENTERPRISES, INC., Barry Edelson and Arthur Edelson, Appellants, v. POST-NEWSWEEK STATIONS, Florida, Inc., d/b/a WPLG Channel 10, Appellee.
    No. 3D02-1504.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.
    Rehearing Denied Sept. 5, 2003.
    Nicolas A. Manzini, for appellants.
    Mitrani, Rynor, Adamsky & Macaulay, and Karen Williams Kammer, Miami, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Karp v. Miami Herald Publishing, Co., 359 So.2d 580 (Fla. 3d DCA 1978); Bishop v. Wometco Enterprises, 235 So.2d 759, 762-63 (Fla. 3d DCA 1970).


text:
    Ronnie FRALEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1481.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.
    Rehearing Denied Sept. 10, 2003.
    Ronnie Fraley, for appellant.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Defendant is appealing the denial of his “Motion to Correct Illegal Sentence” in the trial court below. He claims that his sentence of two consecutive life terms, with twenty-five year mandatory mínimums, for two counts of attempted murder of a law enforcement officer are illegal because the state failed to prove the essential elements of its case (i.e. that the police officers were engaged in the discharge of their duty, or that the crime was motivated by the victims’ status as law enforcement officers). He also contends that the jury was not instructed on, and therefore made no findings of, the same. This claim was previously appealed to, and affirmed by, this court. See Fraley v. State, 795 So.2d 212 (Fla. 3d DCA 2001). Since this issue has previously been reviewed, the defendant is not entitled to relitigate this claim. See Raley v. State, 675 So.2d 170 (Fla. 5th DCA 1996) (defendant not entitled to successive review of specific issue already decided against him).

Defendant next contends, and the State correctly agrees, that pursuant to Traylor v. State, 785 So.2d 1179 (Fla.2000), his enhanced sentence for attempted first degree murder is illegal. In that case, the court held that enhancing a sentence for use of a firearm is illegal where the use of that firearm in an essential element of the underlying felony. Id. at 1181. Here, it cannot be determined from the verdict whether the defendant was convicted for attempted felony murder or attempted premeditated murder, and the underlying felony which supports the attempted felony murder conviction involved a firearm. Thus, the enhanced sentence is illegal and the trial court erred in denying relief on this claim.

Affirmed in part, reversed in part.


author: VAN NORTWICK, J.

text:
    A.F.E., a minor, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-5146.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Rehearing Denied Sept. 10, 2003.

      Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

A.F.E., a juvenile, appeals a final order adjudicating him guilty of a delinquent act and sentencing him to placement within a high risk commitment facility. For the reasons that follow, we affirm and certify a question of great public importance.

Appellant and several other juveniles were referred to the Department of Juvenile Justice (DJJ) after a note containing a bomb threat was found in their high school. It was appellant’s first referral to the DJJ. He was charged with being a delinquent for violating section 790.163, Florida Statutes (2001), which forbids the making of a false report, with the intent to deceive, concerning the placement of a bomb or explosive device. Appellant did not contest the charge.

In its predisposition report, the DJJ recommended a disposition of probation with an adjudication. The DJJ alternatively recommended that, in the event that the trial court committed appellant, the commitment should be in a moderate risk facility. The trial court declined to impose either recommended commitment. The trial court, noting that probation had not theretofore deterred the rash of bomb threats experienced in Pensacola, committed appellant to the DJJ for placement in a high risk residential commitment facility. The trial court thereafter entered an order of adjudication and disposition in which the court stated that it was departing from the DJJ’s recommendation because the recommended restrictiveness level “did not provide sufficient protection for [the] community.”

Appellant’s appointed appellate counsel filed a brief with this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), thereby representing to this court that counsel could not, in good faith, argue that reversible error occurred below. Counsel did not file a motion to correct the disposition or commitment order pursuant to rule 8.135(b)(2), Florida Rules of Juvenile Procedure.

Our own review of the record raises a concern that, under C.C.B. v. State, 828 So.2d 429 (Fla. 1st DCA 2002), A.C.N. v. State, 727 So.2d 368 (Fla. 1st DCA 1999), and A.G. v. State, 737 So.2d 1244 (Fla. 5th DCA 1999), the disposition order is erroneous because the trial court’s departure from the disposition recommendation by the DJJ does not appear to be supported by competent substantial evidence in the record. The state argues on appeal that this court may not consider the propriety of the disposition ordered below, however, because an objection was not specifically made at the time the trial court entered its disposition order and because no motion was filed under rule 8.135(b)(2). Despite our concerns, explained below, we agree and affirm.

In Anders, the United State Supreme Court held that a defendant’s Sixth Amendment right to the assistance of counsel, made applicable to defendants in state criminal proceedings through the Fourteenth Amendment, was not satisfied when appointed appellate counsel reported in a letter to the reviewing court that no meritorious issues were presented on appeal. 486 U.S. at 743-4, 108 S.Ct. 2117. The Court has explained that the constitutional requirement to provide adequate and effective appellate review to an indigent defendant is met where the review procedure “reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” Smith v. Robbins, 528 U.S. 259, 276-7, 120 S.Ct. 746, 759, 145 L.Ed.2d 756 (2000). An appeal in which the appellant files a so-called Anders brief requires the appellate court to conduct “a full and independent review of the record.” In re Anders Briefs, 581 So.2d 149, 151 (Fla.1991); see also State v. Causey, 503 So.2d 321, 322 (Fla.1987).

In Washington v. State, 814 So.2d 1187 (Fla. 5th DCA), rev. dismissed, 831 So.2d 675 (Fla.2002), the reviewing court discovered a fundamental sentencing error in an Anders appeal. Despite that fundamental sentencing error, the Washington court concluded that it was constrained to affirm under Maddox v. State, 760 So.2d 89 (Fla.2000), the Criminal Appeal Reform Act of 1996, and the rules adopted to implement that act. 814 So.2d at 1189. The Washington court, however, reached such a conclusion “with misgivings and concerns for how [it] as an appellate court can faithfully carry out [its] constitutional duties pursuant to Anders and Causey.” Id. We share those misgivings and concerns. That a party may seek collateral relief, such as making a claim that he received an ineffective assistance of counsel, is of little practical assistance in juvenile cases, where the sentence imposed may be completed before any relief is granted.

Had appellate counsel found that a good faith basis existed to argue that appellant’s disposition was erroneous, competent counsel would have filed a motion pursuant to rule 8.135. Anders and its progeny suggest that an appellate court is not bound by counsel’s view of a case when an Anders brief is filed. In re Anders Briefs, 581 So.2d at 151; see also State v. Causey, 503 So.2d at 322-323 (‘While courts should not assume the role of appellate counsel, reversible error should not be ignored simply because an indigent appellant or a public defender failed to point it out.”). The question posed here is whether an appellate court likewise should not be bound by the consequence of counsel’s failure to file a motion under rule 8.135, lest independent appellate review under An-ders be frustrated.

We acknowledge the dilemma posed in Anders eases when a potentially meritorious issue is not preserved for appellate review. As Judge Warner has observed:

The Anders opinion raises concerns about the appellate court’s method of reviewing Anders-type cases. First, Anders draws a distinction between meritless and wholly frivolous cases, as noted by some early critics of the case: “[Anders] is seen as having established a rarefied distinction between appeals which are merely meritless and those which are wholly frivolous. Under An-ders, so interpreted, the constitutional guarantee of effective assistance of counsel assures representation to criminal appellants for meritless, but not for frivolous, appeals.” Other commentators viewed Anders as addressing solely the manner in which counsel communicates to the court the conclusion that the appeal was meritless, not the conclusion itself. Certainly, the primary concern of appellate counsel has been not in how to communicate the conclusion that an appeal is meritless, but in the very suggestion that a client’s case lacks any substance, for that has been seen as contrary to ethical standards requiring zealous representation of the client. In practice, however, issues presented for review in Anders briefs frequently raise questions that cannot be deemed frivolous, even though they will not support a reversal because, for example, a lack of a timely objection fails to preserve the issue for review. This, in and of itself, presents a dilemma for the appellate court. If, for instance, there were a clear error in admitting evidence to which there was no objection, should counsel file an Anders brief noting that the issue is one of arguable merit but is procedurally barred? Or should counsel file a standard brief and compel the State to raise the issue of lack of preservation in the answer brief? In the author’s experience, such issues have been presented both ways. Some counsel file an Anders brief that acknowledges lack of preservation and triggers the court’s independent review of the entire record. Other counsel file a brief arguing the error but without acknowledging its lack of preservation — a brief that prompts an answer brief from the State raising preservation but does not trigger the appellate court’s independent duty to review the record for issues of arguable error. Anders thus leads to inconsistency in the presentation of issues to the appellate court, and this results in inconsistency in the method of review by the court.
Another related issue not fully addressed in the Anders opinion is whether the appellate court’s review is limited to the arguable points raised or whether Anders requires the court to raise any issues it finds from the record. The court must decide whether the case is frivolous, but if it finds any legal point arguable on merit, it must require further briefing. If the appellate court’s review is limited to the points raised in the appointed counsel’s brief, then the appellate court performs its review similarly to that of any other criminal appeal. Certainly, if the court must determine whether the appeal is frivolous, it cannot ignore those issues that would not be frivolous if properly raised by the appellant. But if it considers issues not raised by counsel, then it is performing for the indigent appellant a function that it does not provide for any other class of appellee.

Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection More Equal Than Others? 23 Fla. St. U.L.Rev. 625, 632-633 (1996)(footnotes omitted).

Notwithstanding these concerns, like our sister court in Washington, we conclude that we are constrained to affirm because the issue of whether the trial court properly departed from DJJ’s recommendation has not been preserved and is not cognizable on appeal. Accordingly, the order under review is AFFIRMED. However, we certify as a question of great public importance the following question:

NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY IN SUCH A CASE?

DAVIS and POLSTON, JJ„ concur.


author: COPE, J.

text:
    Charles STRONG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3589.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing Denied Sept. 5, 2003.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   COPE, J.

Charles Strong appeals his convictions of sexual battery and kidnapping. We conclude that the trial court acted within its discretion in giving a jury instruction on subsection 794.022(5), Florida Statutes (2001). That statute addresses the relevance of prophylactic use to the issue of consent in a sexual battery prosecution.

I.

The victim testified that an assailant (who turned out to be defendant-appellant Strong) grabbed her from behind when she was walking by some woods near her home after dark. He forced her at knife-point to go to a nearby clearing. He kept her face covered with a cloth for part of the time and struck her in the forehead when she attempted to lift her head. The defendant produced a condom and put it on, but it came off when he was unable to maintain an erection. The defendant then demanded oral sex.

The defendant attempted intercourse a second time. The victim had a condom in her purse and, fearing disease, produced it for the defendant to use. The defendant was again unsuccessful and the condom again came off.

The defendant tied the victim’s hand with some type of elastic which seemed like surgical tubing. The defendant told the victim that they were going to go to his boat and forced the victim to accompany him down a pathway to the vicinity of the beach. There the defendant accomplished intercourse without a condom.

The victim asked the defendant to let her go, but the defendant said he could not let her go because she probably would go to the police. The victim had been able to untie her hands but the defendant tied them again. The victim concluded that the defendant would try to kill her. She decided that she had to keep talking and try to befriend the defendant in hopes that he would let her go or she would have an opportunity to escape. This went on for about two hours.

Eventually someone came down the pathway, carrying a flashlight. It turned out to be the defendant’s wife, who had come to look for him because he had not met her as he was supposed to do after work. She became very upset when she saw the defendant with the victim. The defendant walked away from the victim to talk to his wife, and the victim escaped. She went to a nearby business where a friend worked, who escorted her home. Because it had been dark and her face had been covered part of the time, the victim was only able to give a general description of height and hair type of the defendant, but was never able to identify him from a photograph or in court.

By prompt investigation and good luck, the next day the police were able to identify the defendant as the likely suspect. He was interviewed at the police station and admitted the sexual encounter. His account closely corresponded to that of the •victim, except that the defendant told the police the entire encounter was consensual and that he had not used a knife or any force.

Photographs of the victim revealed a small bruise on her forehead, a larger bruise on her chin, a small cut or abrasion on her neck where the victim said the knife was held, and bruises on her upper arms where the victim said the defendant had grasped her. She also had scratches on her legs from walking through the woods.

The victim testified at trial. The defendant’s statement to the police came in through the police detective, including the defendant’s claim that the sexual encounter was consensual. From his convictions, the defendant appeals.

II.

The trial court granted the State’s request to instruct the jury on subsection 794.022, Florida Statutes (2001), which provides:

(5) An offender’s use of a prophylactic device, or a victim’s request that an offender use a prophylactic device, is not by itself relevant to either the issue of whether or not the offense was committed or the issue of whether or not the victim consented.

(Emphasis added).

The court agreed to read subsection (5) to the jury verbatim, and to emphasize the words, “by itself.” The defense objected to this instruction.

While much of the defense closing argument dealt with other issues, defense counsel did address the use of condoms including the following:

And it’s certainly inconsistent with performing these sexual acts against her will. You know, sounds like it’s not against her will. Oh, you finished with that condom, oh, I got one here. Here you go.
Doesn’t sound like rape to me.

TR. 512.

On appeal, the defendant argues that the special jury instruction should not have been given. The defense points out that section 794.022, Florida Statutes, is entitled “Rules of Evidence.” Subsection (5) speaks in terms of relevancy, an evidentia-ry concept.

The defense argues that in a companion part of section 794.022, subsection (4) addresses consent where the victim suffers mental incapacity or defect. Id. § 794.022(4). That provision states:

(4) When consent of the victim is a defense to prosecution under s. 794.011, evidence of the victim’s mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary, and the court shall instruct the jury accordingly.

(Emphasis added). The defendant points out that the final part of subsection (4) creates a mandatory jury instruction. The defense argues that since there is not similar provision in subsection (5), this reflects a legislative intent that there be no jury instruction regarding subsection (5).

We acknowledge that the legislature has treated subsections (4) and (5) differently, but cannot agree with the defendant’s argument. The legislature’s silence on the issue of a jury instruction in subsection (5) simply leaves the question of a jury instruction within the sound discretion of the trial court. If the legislature wished to prohibit an instruction to the jury, it would have said so.

The defense argues that subsection (5) was added to Florida’s Rape Shield Law after an incident which occurred in Texas several years ago, where a Texas grand jury declined to indict a defendant because the rape victim had provided the defendant with a condom. See William R. Eleazar & Glen Weissenberger, Florida Evidence 2003 Courtroom Manual 211-12 (2003); Kathryn Abrams, Sex Wars Redux:Agency and Coercion in Feminist Legal Theory, 95 Columbia L.Rev. 304, 363-64 & n. 233 (1995); Sean P. Lafferty & Decio C. Rangel, Jr., Review of Selected 1994 California Legislation, 26 Pacific L.J. 419, 419-20 & n. 5 (1994).

In our view, that background strengthens, rather than weakens, the case for instructing the jury. Rather than rely on the (possibly incorrect) intuitive reaction of the jurors, it is entirely appropriate to tell the jurors what Florida law is on this issue. Under the statute, condom use is a factor which can be argued and considered, but is not dispositive standing alone and must be considered in light of the other facts of the case.

Instructions quoting an applicable statute have been upheld. Bayer v. State, 788 So.2d 310, 313 (Fla. 5th DCA 2001); Castaline v. State, 645 So.2d 561, 562 (Fla. 3d DCA 1994).

“What is important is that sufficient instructions ... be given as adequate guidance to enable a jury to arrive at a verdict based upon the law as applied to the evidence before them.” State v. Bryan, 287 So.2d 73, 75 (Fla.1973).

“A trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.” Chesnoff v. State, 840 So.2d 423, 426 (Fla. 5th DCA 2003) (citing Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001)).

The defense relies on Fenelon v. State, 594 So.2d 292 (Fla.1992) and Whitfield v. State, 452 So.2d 548 (Fla.1984). Those cases are distinguishable from this one. Fenelon dealt with an instruction that flight could be considered as reflecting consciousness of guilt. Whitfield involved an instruction that a refusal to submit to fingerprinting was a circumstance reflecting consciousness of guilt. In both cases there was no statute involved, and the common experience of the jurors could be trusted to tell them that fleeing or refusing to be fingerprinted can be matters reflecting a consciousness of guilt.

Sexual battery, however, is something about which most jurors will have little or no firsthand knowledge. The statute appears to have been adopted to counteract some laypersons’ intuitive belief that condom use automatically signifies consent. We conclude that the instruction was proper and agree with Judge Garcia’s ruling.

III.

The defendant was sentenced as a Prison Release Reoffender. For preservation purposes, he argues that the statute is unconstitutional, but acknowledges that the constitutional issues have been decided adversely to his position in Grant v. State, 770 So.2d 655 (Fla.2000), and State v. Cotton, 769 So.2d 345 (Fla.2000). We reject this argument on authority of those cases.

Finally, the defendant argues that there was fundamental error in an unob-jected-to portion of the State’s closing argument. When the arguments are read as a whole, they all appear to be either fair comment on the evidence presented or fair response to the arguments made by the defense in closing. Even if it could be said that any isolated comment was objectionable, no contemporaneous objection was made and there was nothing that would amount to fundamental error. See Cooper v. State, 28 Fla. L. Weekly S497, S500, S501 n. 9, — So.2d —, —, — n. 9, 2003 WL 21467509 (Fla. June 26, 2003).

Affirmed.

       The defendant did not testify at trial.


author: FARMER, C.J.

text:
    Francis JEANTILUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-85.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    Rehearing Denied Sept. 26, 2003.
    Francis Jeantilus, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

In his motion for post conviction relief under rule 3.850, defendant contends that his trial counsel was ineffective. He alleges eighteen grounds of ineffectiveness, but we conclude that only one is not conclusively refuted by the record portions attached to the trial judge’s order denying the motion.

With regard to counsel’s alleged failure to challenge the admissibility of his confession, the record shows that Jeantilus read and signed the “Miranda rights” waiver card. He also testified at trial that he was read and understood his rights. His defense to the taped confession was that he was “subtly coerced.” He claims detectives told him that he was facing the death penalty or life imprisonment and that he would walk out of jail that day, a free man, if he gave the statement police wanted. Before the second day of trial, there was a “discussion” about the admissibility of the confession, but it was off the record. After, the court ruled the confession admissible.

There is some authority that a confession obtained as a result of a direct or implied promise of benefit or leniency is involuntary and inadmissible. See Wittemen v. State, 735 So.2d 538, 539 (Fla. 2d DCA 1999); Fillinger v. State, 349 So.2d 714, 716 (Fla. 2d DCA 1977) (“If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded.”). The supreme court has held that a confession should be suppressed if:

“the attending circumstances, or declarations of those present, be calculated to delude the prisoner as to this true position, and exert an improper and undue influence over his mind.”

Almeida v. State, 737 So.2d 520, 524 (Fla.1999) (quoting Simon v. State, 5 Fla. 285, 296 (1853)).

On the other hand, in Traylor v. State, 596 So.2d 957, 972 (Fla.1992), where the court upheld a trial court finding that a confession was voluntary, the court expressly noted that “[d]efendant had not been offered any hope of reward, better treatment, promise of leniency, or inducement in order to get him to make those statements.” To note those factors at all is to imply that “offering] any hope of reward, better treatment, promise of leniency or inducement” to make a confession renders it categorically involuntary.

Without at this point ourselves holding that any hope of reward, better treatment, promise of leniency or inducement renders a confession categorically involuntary, we nevertheless recognize that some such inducements may in fact render some confessions involuntary. Indeed, if as the supreme court itself has noted in another context, “custodial utterances are extraordinarily rich in diversity,” Almeida, 737 So.2d at 523, the circumstances inducing them must be equally diverse. The admissibility of such utterances is dependent on their own unique facts and the well-known “totality of the circumstances.” Whether this particular incentive, “you can walk right out of here,” is an improper inducement overcoming this custodial suspect’s free will, thus rendering his confession involuntary, would be greatly influenced by all the surrounding facts and circumstances.

A motion to suppress such a confession is hence of great importance, in order that a full evidentiary hearing may be had to explicate those circumstances. Without such a hearing, the issue cannot be fairly joined.

In this case, we face a critical omission in the record. It appears that the volun-tariness of the confession was addressed in some fashion during trial. In a most curious turn of events, however, that confrontation was — without an explanation — off the record. We have no idea just what defense counsel did or argued or why the judge ruled as he did.

We thus have no hesitancy at this point in holding that the failure of defense counsel to insure a proper record on an issue as crucial as this is facially well below the level expected for competency. There may well prove to be a good reason for such an omission, but we simply cannot say at this point that the record conclusively belies the claim of ineffectiveness. We therefore reverse for an evidentiary hearing on this issue only.

WARNER, J., concurs.

POLEN, J., concurs in result only.

      . All other grounds are sufficiently refuted and are thus affirmed.


text:
    Darrian WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2952.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Darrian Williams, Mayo, pro se.
    No appearance required for appellee.
   PER CURIAM.

The summary denial of Appellant’s motion for post-sentencing jail credit is affirmed, without prejudice to his pursuing his administrative remedies against the Department of Corrections, and, if he is dissatisfied after exhausting his administrative remedies, then seeking mandamus relief against the department in the circuit court for the county in which he is incarcerated. See Reese v. State, 707 So.2d 943 (Fla. 4th DCA 1998); Washington v. State, 662 So.2d 1027 (Fla. 5th DCA 1995).

GUNTHER, SHAHOOD and HAZOURI, JJ., concur.


text:
    Leonard Jerome SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-703.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Leonard Jerome Smith, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Leonard Jerome Smith, appeals the trial court order summarily denying his motion for post-conviction relief alleging eight claims of ineffective assistance of trial counsel. We affirm as to claims one through seven, but reverse and remand as to ground eight.

Appellant argues that counsel was ineffective in advising him not to testify at trial. The trial court’s attachment of portions of the record identified in the state’s response did not conclusively refute this claim. We therefore reverse and remand for an evidentiary hearing on ground eight.

Affirmed in part, reversed in part and remanded.

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    Larry SEXTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3089.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Larry Sexton, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Larry Sexton timely appeals from his June 28, 2002 resentencing, which effectively denied his motion for postconviction relief. We affirm. Sexton expressly waived all postconviction challenges in court and on the record before his last sentencing. This overcomes all of Sexton’s claims, including his argument that the trial court erred in relying on an allegedly incomplete transcript of his 1997 sentencing to determine the basis of his original plea agreement.

AFFIRMED.

WARNER, STEVENSON and GROSS, JJ., concur.


author: WARNER, J.

text:
    Stanley VORSTEG, Appellant, v. Edmund THOMAS and Patricia, his wife, individually, and Patricia Thomas, as parent and natural guardian of Giselle Thomas, a minor, Appellees.
    No. 4D02-1952.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Rehearing Denied Sept. 26, 2003.

      H. Mark Purdy of Purdy & Flynn, P.A., and Fred L. Fulmer of Law Offices of Fred Land Fulmer, Fort Lauderdale, for appellant.
    Patrice A. Talisman of Hersch & Talisman, P.A., Miami, and Silverstein, Silver-stein & Silverstein, Aventura, for appel-lees.
   WARNER, J.

We affirm the final judgment awarding appellee damages. While appellant contends that the court abused its discretion in admitting speculative testimony regarding appellee’s future lost earning capacity, counsel did not object to the evidence. As to both future lost earning capacity and future medical expenses, appellant and appellee offered conflicting expert testimony. The jury returned a verdict favoring appellee’s experts’ view of the evidence.

A jury is free to determine the credibility of experts and, where there is conflicting evidence, the weight to attach to their opinions. See Easkold v. Rhodes, 614 So.2d 495, 498 (Fla.1993). A damages award supported by competent, substantial evidence should be affirmed. See Perma Builders, Inc. v. JBM Assocs., 472 So.2d 1381, 1383 (Fla. 4th DCA 1985); see also Owens-Corning Fiberglas Corp. v. McKenna, 726 So.2d 361, 363-64 (Fla. 3d DCA 1999). We also conclude that the award in this case is not so excessive as to shock the judicial conscience, given the severe injuries to appellee and the future care required. See Allstate Ins. Co. v. Shilling, 374 So.2d 611, 613 (Fla. 4th DCA 1979).

Finally, appellant argues that the court erred by sending in to the jury during deliberations appellee’s rehabilitation expert’s report, when the appellant’s expert’s report was not also sent in. However, appellant’s expert’s report was not admitted into evidence, and appellant does not raise the trial court’s evidentiary ruling on the report as an issue on appeal. Moreover, appellant never objected to sending appellee’s admitted evidence to the jury on the grounds asserted on appeal. As such, the issue is not preserved. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); Lacey v. State, 831 So.2d 1267, 1268 (Fla. 4th DCA 2002).

Affirmed.

POLEN and GROSS, JJ., concur.


author: POLEN, J.

text:
    Thomas Jerome BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1776.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Thomas Byrd (“Byrd”) was charged by information with one count of driving under the influence with priors, one count of driving while license suspended-habitual offender, and one count of driving while license suspended or permanently revoked. He entered an open plea of no contest to count one, driving under the influence with priors. Part of the agreement was that the offense would be treated as a first offense. Byrd also entered a plea of no contest on count two and count three was nolle prosed.

After commenting on Byrd’s extensive record, and agreeing that Byrd needed help with his addiction, the court orally pronounced his sentence. As to count II, the trial court imposed a sixty month sentence, with the sentence to be suspended after the completion of thirty-six months if Byrd was admitted to an in-patient rehabilitation facility. Byrd would then be placed on drug offender probation and be required to remain in inpatient treatment for six months followed by one year of probation. Byrd was also sentenced to one year probation on count I, the driving under the influence charge. Initially the judge commented that the probation terms would be served concurrently. However, defense counsel commented that the sentence would be illegal if the terms were to be served concurrently and the state attorney stated that: “It’s got to be consecutive.” After asking how he should word the order, the judge ordered that the probation be served consecutively. On the written sentence order, the court ordered that Byrd serve 280 days on count one followed by one year of probation.

Initially, Byrd contends the trial court erred in sentencing him to 280 days imprisonment, followed by one year probation on count I, driving under the influence. The state agrees that the sentence violates the legal maximum sentence of 180 days pursuant to section 316.193, Florida Statutes, but that the trial court’s oral pronouncement would not.

This court has recognized that a trial court’s oral pronouncement controls over a written sentencing order. See, e.g., Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982). As a result we remand this case to the trial court and instruct that the written order be corrected.

Byrd next argues that on remand the trial court should have the opportunity to revisit the issue of whether the two probationary periods should be concurrent or consecutive. We agree. Byrd accurately points out that the trial court initially imposed the two probation periods to run concurrently. However, at the hearing, defense counsel commented that it would be an illegal sentence if it were concurrent. Ultimately, after also being advised by the state that it had to be consecutive, the court changed the order to consecutive.

Section 921.16(1), Florida Statutes, provides that “[a] defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.”

In McCarthur v. State, 766 So.2d 292 (Fla. 4th DCA 2000), this court reversed an order where the trial court left the decision of whether the sentence would run consecutively or concurrently in the hands of the parole commission. Id In MeCarthwr, the panel pointed out that the legislature had vested this discretion to the trial court.

Although certainly distinguishable from McCarthur, it appears the trial court in this case did not truly exercise its discretion. Rather the court let the decision rest in the hands of counsel. The record makes clear that the trial court initially sought to impose this sentence concurrently. However, after being erroneously advised by counsel that it had to be consecutive, the sentence was changed.

On appeal, the state accurately contends the trial court has the power to enter the order concurrently, but that the written order comports with the trial court’s true intentions. However, the record indicates otherwise. It is apparent that the court changed its ruling only after being advised that the order had to be consecutive.

As a result, on remand we instruct the trial court to exercise its discretion and reconsider the imposition of the consecutive order.

REMANDED.

FARMER, C.J., and GROSS, J., concur.


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    Patricia A. ALDAY, Appellant, v. Delbert D. GLEASON, Appellee.
    No. 5D03-149.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      Francis P. Roche, Jr., of Law Office of Francis P. Roche, Jr., Orange City, for Appellant.
    Debra S. Johnson, of Debra S. Johnson, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Patricia Alday, i/k/a Patricia Gleason [“Patricia”], appeals a final judgment of modification of a dissolution of marriage. She raises five issues. First, she contends that, in designating Delbert Gleason [“Delbert”], her ex-husband, as primary residential parent of their son, the trial court did not make the required finding that it was in the child’s best interests. Second, she maintains that the trial court erred as a matter of law by awarding retroactive child support for two years prior to the filing of Delbert’s petition for modification. Third, Patricia asserts that the trial court erred in awarding certain relief that she claims was not specifically requested in the pleadings. Fourth, she complains that the trial court erred in adopting verbatim the final judgment prepared by Delbert’s attorney. Finally, Patricia maintains that the trial court abused its discretion in failing to award her attorney’s fees for defending against Delbert’s motions for contempt. We affirm.

Because there is no transcript of the trial, we are unable to determine whether the trial court made a finding on the record during the trial that it was in the best interests of the parties’ child that Delbert be designated the primary custodial parent. See Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002). Nor did Patricia complain of such an omission in the trial court. Similarly, because, section 61.30(ll)(c), Florida Statutes (2001), allows the trial court, in some circumstances, to award retroactive child support prior to the time the petition/motion was filed, we have no basis to reverse that award.

The record does not support Patricia’s contention that the trial court awarded Delbert relief not contained in the pleadings. Nor do we find harmful error in the trial court’s use of the husband’s proposed judgment. Patricia did not demonstrate that the final judgment was inconsistent with any earlier pronouncement of the trial court. See Ford Motor Co. v. Starling, 721 So.2d 335, 337 n. 4 (Fla. 5th DCA 1998)(citing White v. White, 686 So.2d 762 (Fla. 5th DCA 1997)); Polizzi v. Polizzi, 600 So.2d 490 (Fla. 5th DCA 1992). Finally, we find no abuse of discretion in the denial of Patricia’s request for attorney’s fees. AFFIRMED.

THOMPSON and TORPY, JJ., concur.


author: KAHN, J.

text:
    Judith BURNS, Appellant, v. HILTON ENTERPRISES and Feisco Risk, Appellees.
    No. 1D01-4725.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Woodburn S. Wesley, Jr. of Woodburn S. Wesley, Jr. & Associates, Ft. Walton Beach, for Appellant.
    Tracey J. Hyde of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Panama City, for Appellees.
   KAHN, J.

Claimant Judith Burns challenges a workers’ compensation order by which the judge of compensation claims (JCC) rejected the opinion of an expert medical advisor (EMA) on the grounds that it was lacking in impartiality and medical objectivity and declined to reconsider a previously denied claim for wage loss benefits from February 13, 1997, to May 28, 1999, on grounds of res judicata and estoppel by judgment. We affirm the second challenged ruling without discussion. As to the first issue, we conclude that the JCC here improperly determined that the statutory presumption of correctness, with regard to the EMA’s opinion, was overcome by clear and con-vineing evidence to the contrary. See § 440.13(9)(c), Fla. Stat. (Supp.1994).

We recognize that a determination by a JCC rejecting the opinion of an EMA will not be disturbed on appeal so long as it is “predicated on competent substantial record evidence which the judge could reasonably find to be clear and convincing.” Jacaranda Manor v. Randolph, 755 So.2d 781, 782 (Fla. 1st DCA 2000); see also Walgreen Co. v. Carver, 770 So.2d 172 (Fla. 1st DCA 2000). Here, the final order fails to point out evidence that the EMA’s opinion is false or unreliable on its merits. See, e.g., Carver, 770 So.2d at 174-75 (finding “that an expert medical advisor’s opinion has ‘nearly conclusive effect’ ” (citations omitted)); Jacaranda Manor, 755 So.2d at 782. See also Allen v. Protel, Inc., 852 So.2d 916, 920 (Fla. 1st DCA 2003) (following Carver). Criticism by the EMA of one of the disagreeing physicians is not alone a reasonable basis for rejecting the report of an EMA when, under section 440.13(9), the EMA is appointed with an expectation that his testimony will contradict one of the health care providers already in the record. See § 440.13(9)(b), Fla. Stat. (Supp. 1994) (EMAs are engaged “to provide peer review or medical consultation to the division or to a judge of compensation claims in connection with resolving disputes ... ”). In this case, nothing in the EMA’s report or deposition establishes bias or predisposition to disagreeing with the employer/carrier’s independent medical examiner (IME). Instead, the EMA’s report and deposition are a reasoned and thorough critique of the IME’s evaluation of the claimant — apparently as contemplated by the statute. See § 440.13(9)(b), Fla. Stat. (Supp.1994).

The Final Order is AFFIRMED IN PART, REVERSED IN PART and REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK and BROWNING, JJ., concur.