author: POLEN, J.

text:
    Bernard COHEN, Irwin Cohen, individually and as General Partners of Cobis, a Florida General Partnership, Cobis, and Cohen & Cohen, P.A., Appellants, v. Kenneth ARVIN and Ziskind & Arvin, P.A., Appellees.
    No. 4D02-5076.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Rehearing Denied Aug. 20, 2004.

      Albert Louis Frevola, Jr., Vanessa A. Reynolds and Susanne E. Riedhammer of Conrad & Scherer, LLP, Fort Lauderdale, for appellants.
    Shawn B. McKamey and W. Tucker Craig of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., Fort Lauder-dale, for appellees.
   POLEN, J.

This appeal arises from a final order granting summary judgment in favor of Kenneth Arvin and Ziskind & Arvin, P.A. and a subsequent order awarding attorneys’ fees based on a settlement proposal. For the reasons outlined below we affirm the order granting summary judgment and reverse the order awarding fees.

Bernard and Irwin Cohen are brothers and sole shareholders of the law firm of Cohen & Cohen. They hired their brother Stanford as the office manager. Stanford’s two children were also hired, Elena Romagni as a secretary and Harvey Cohen as an attorney. The firm eventually made Harvey a partner. They also made Gary Juda a partner. Juda was a longtime friend and law school classmate of Harvey’s.

While employed at Cohen & Cohen, Stanford’s lawyer, Ken Arvin, formed Cohen Family Holdings, Inc. Cohen Family Holdings, according to Cohen & Cohen, was to be the corporate general partner for the Stanford Cohen Family Limited Partnership. In addition, while Harvey and Juda were still partners of Cohen & Cohen, they used Ken Arvin, as their attorney, to file articles of incorporation to form Cohen & Juda, P.A.

Two days after Cohen & Juda, P.A., filed its articles of incorporation, Stanford and Elena told Cohen & Cohen they were resigning.

Arvin was hired by Stanford Cohen to negotiate his severance package. He was also hired to do some estate planning for Stanford. Irwin and his accountant met with Arvin in early December of 1999. Arvin allegedly assured Irwin that Harvey was very happy working for Cohen & Cohen and had no intention of leaving. Arvin did not mention that he had incorporated Cohen & Juda, P.A., several weeks earlier.

On December 31, 1999, Juda told Irwin he was leaving the firm. He also told Irwin that Harvey was leaving. Thereafter, three secretaries admitted they were going to work for Cohen and Juda. In addition, Cohen & Cohen began receiving letters from clients advising the firm they were discharged and that the files should be sent to Cohen & Juda. Cohen and Cohen discovered that Harvey and Juda began sending solicitation letters to clients. Cohen and Cohen alleged that in a two-week time period, it had been discharged on over 150 files.

Litigation ensued among all three Cohen brothers. Cohen and Cohen alleged that Harvey and Juda conspired to steal clients from the firm, leave the firm, and start the new firm of Cohen and Juda. Cohen and Cohen also alleged that Stanford and Elena were involved in the conspiracy as were Kenneth Arvin and Ziskind & Arvin, P.A. Cohen and Cohen raised ten counts in a counterclaim. Only one count included Ar-vin: Conspiracy to Commit Tortious Interference with Advantageous Business Relationships.

Arvin moved for summary judgment primarily on the basis that the claim relied on impermissible inference stacking. The trial court properly granted the motion.

The applicable standard of review on orders granting summary judgment is de novo. Bruckner v. City of Dania Beach, 823 So.2d 167 (Fla. 4th DCA 2002) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000)). Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Reeves v. N. Broward Hosp. Dist., 821 So.2d 319 (Fla. 4th DCA 2002). Additionally, all inferences must be made in favor of the non-moving party. See id.

As the supreme court explained in Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla.1960):

[I]n a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof • of one fact, it cannot construct a further inference upon the initial inference- in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences. Gelco Convention Servs. v. Pettengill, 710 So.2d 581, 583 (Fla. 4th DCA 1998).

The factual allegations made by Cohen and Cohen, in their counterclaim are lengthy and detailed. However, of the fifty-five numbered paragraphs of factual allegations, only four include any allegations related to Arvin. Moreover, the allegations relating to Arvin are based exclusively on Cohen and Cohen’s beliefs as to what occurred in the firm’s split-up and necessarily rely on multiple inferences.

Cohen asserts that impermissible inference stacking does not apply to a motion for summary judgment as a matter of law and that if any inferences exist they must be drawn in favor of the non-moving party.

If a party could simply allege their beliefs as evidence of events that give rise to a cause of action to sufficiently overcome summary judgment, summary judgement would be meaningless. Moreover Cohen and Cohen’s position is unsupported by case law. The Gelco opinion cites Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla.1960), for the rule on impermissible inference stacking in civil cases. Nielsen was a summary judgment case. Thus, it is clear the rule prohibiting impermissible inference stacking is applicable in a summary judgment context.

There are no disputed issues of material fact and Arvin was entitled to judgment as a matter of law. As such the trial court properly granted the summary judgment motion and we affirm the ruling of the trial court in that regard.

Cohen and Cohen also contend the trial court’s award of fees and costs was erroneous due to the failure of the proposal for settlement and offer of judgment to apportion amounts attributable to each of-feror. We agree.

The proposal for settlement and offer of judgment was filed by Kenneth Arvin and Ziskind & Arvin, P.A., jointly. The proposal specified that it was being directed to Bernard Cohen and Irwin Cohen individually and as General Partners of CO-BIS, COBIS and Cohen & Cohen, P.A. The proposal offered $10,000 to settle all claims.

Both parties acknowledge that the Florida Supreme Court recently clarified the law regarding apportionment of offers of judgment in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). In Willis Shaw, the court noted that Florida Rule of Civil Procedure 1.442 was amended in 1996 to require greater detail in settlement proposals. Based on that rule the court held “[a] proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Id. at 278.

Arvin contends the offer of judgment in this case was proper, although it did not apportion the offer, because the claims raised against Arvin and Ziskind and Ar-vin, P.A., are not separate causes of action. Rather the claims are based on an allegation of vicarious liability through the doctrine of respondeat superior. Arvin cites, inter alia, Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003).

In Barnes, the second district held, although normally an offer would need to be apportioned, a unified offer was permissible because the damages could not be apportioned between the two defendants. The court reasoned:

There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer’s liability is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow the defendants to apportion damages between themselves. They are jointly and severally liable for all damages. Under these circumstances, we see nothing improper with a joint offer.

Id. at 571.

Initially we note that Barnes predated Willis Shaw. We agree with the fifth district that, in light of Willis Shaw, Barnes is no longer accurate. See Matetzschk v. Lamb, 849 So.2d 1141 (Fla. 5th DCA 2003). Lamb questioned the validity of two undifferentiated offers of judgment made by a plaintiff to two defendants, one who was allegedly liable only on a vicarious basis. Id. In rejecting the validity of the offer of judgment that failed to apportion the offer, the Lamb court expressly opined that the rationale of Barnes was no longer accurate:

[I]n addition to the explicit language of the rule and Willis Shaw, there is a logical basis for requiring differentiated offers of settlement, even in cases of alleged vicarious liability.
As Barnes correctly observed, it may be impossible to apportion fault among parties who are jointly and severally liable when the basis of at least one party’s liability is purely vicarious. However, that observation presupposes that vicarious liability is not a disputed issue. It may be, and this case provides a prime example. Lamb’s complaint alleged that Margie’s liability was purely vicarious as a co-owner of the vehicle. As discovery later demonstrated, that allegation could not be supported; Margie apparently was not a co-owner of the vehicle and therefore, had no vicarious liability for her husband’s negligent operation of his vehicle. If we were to follow Barnes, Margie would have been required either to reject Lamb’s offer or pay it entirely. We think such a result is inconsistent with the purpose and language of the rule. In many cases, the issue of vicarious liability is disputed and the party against whom it is asserted should have a right to settle an advance claim based upon that party’s individual evaluation of many factors, including damages and the likelihood that a fact finder might find that party to be vicariously liable.
Moreover, the settlement value of a claim is impacted by the financial responsibility of a party defendant, whether that party’s liability is direct or vicarious. For example, a defendant who is directly liable may be penniless and bankrupt, and a claim against him virtually worthless, whereas the vicariously liable defendant in the same action may be wealthy and any claim against the latter quite valuable.

Id.

Although the example given in Lamb may be inapplicable to the case at bar, the plain language of the rule, as well as the holding in Willis Shaw does not differentiate between the necessary apportionment in offers of judgment in cases when re-spondeat superior is involved and cases where it is not.

Rule 1.442(c)(3) provides: “A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Further Willis Shaw made clear, without distinction, “offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror.” Willis Shaw, 849 So.2d 276, 278-79 (Fla.2003) (emphasis added).

As a result, the trial court improperly awarded fees based on the proposal and offer of judgment which failed to apportion the amounts attributable to each offeror. As a result, we reverse that order.

We therefore remand this case to proceed in a manner consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

SHAHOOD and MAY, JJ., concur.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Thomas J. FLOOD, Appellant, v. UNION PLANTERS BANK of Florida, Appellee.
    No. 3D03-1766.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.

      Richard A. Sherman, Fort Lauderdale; and Kalis & Kleiman, Davie, for appellant.
    Greenberg Traurig, and Hilarie Bass, and Charles M. Auslander, and Sabrina G. Ferris, Miami, for appellee.
    Before GERSTEN and RAMIREZ, JJ., and BARKDULL, THOMAS H., JR., Senior Judge.
   RAMIREZ, J.

Thomas J. Flood appeals to this Court the trial court’s Final Judgment in favor of appellee Union Planters Bank of Florida. Because we find that the trial court did not abuse its discretion in finding that comparable substitute benefits were offered to Flood following the merger of Union Planters, we, affirm. We further affirm the judgment on Union Planters’ counterclaim, finding that Flood must pay the amount owed on the promissory note to Union Planters, together with the accrued default interest rate.

Flood began working for Capital Bank as a vice-president in 1978. At the time he terminated his Employment Agreement, Flood was the Executive Vice-President and Chief Retail Banking Officer of Union Planters, the successor to Capital Bank.

On June 11, 199.6, Flood entered into an Employment Agreement with Capital Bank which was effective January 1, 1996 through May 31, 1998. The Agreement was amended on November 21, 1996 and again on March 27, 1997. Section 5.6 of the Agreement allowed Flood to terminate his Agreement and receive a severance benefit upon a “Change in Control” at Capital Bank and the occurrence of one of the conditions precedent set forth in section 5.6(a) of the Agreement. In pertinent part, section 5.6(a) provides:

In the event that a Change in Control ... in the Company shall occur during the Initial Term, and within one year after the date of the Change in Control, (i), the Executives Base Salary in effect immediately prior to the Change in Control is reduced or (ii) the Executive is (x) assigned any position, duties, or responsibilities that are significantly diminished or changed when compared with the position, duties or responsibilities of the Executive prior to such Change in Control, (y) forced to relocate to another location more than 25 miles from his location prior to the Change in Control, or (z) no longer provided coverage under benefit programs in existence prior to the Change in Control (unless a comparable substitute is offered); then the Executive, by written notice to the Company at any time within the thirty (30) day period following the occurrence of an event described in clauses (i) and (ii) of this Section 5.6(a), shall have the right to terminate his employment hereunder. (emphasis in original).

The Employment Agreement also referenced a loan for $50,000.00 to be made by Capital Bank to Flood, as evidenced by a promissory note dated January 1, 1996. The Agreement further provided that in the event Flood terminated his employment pursuant to the Change in Control provisions of the Agreement, Flood would not be required to repay that portion of the loan equal to the outstanding principal and accrued interest.

On August 12, 1997, Union Planters and Capital Bank entered into a Merger Agreement, whereby Union Planters would acquire Capital Bank and its subsidiaries. The “Change in Control” took place when the merger closed and when Union Planters acquired Capital Bank, on December 31, 1997. Paragraph 8.11(a) of the Merger Agreement provided that Union Planters was required to provide to Capital Bank employees benefits which when' taken as a whole were substantially similar to those provided at the time to Union Planters’ own employees. As a Capital Bank shareholder, Flood voted to approve the merger with Union Planters.

During the latter part of 1997, Flood participated in several meetings with other Capital Bank senior executives to discuss the merger and to evaluate the comparability of the benefits to be provided to Capital Bank employees by Union Planters. Flood received and discussed with other executives the Benefits Comparison for Capital Bank, the Merger Agreement and the Prospectus and Proxy Statement. Also in the latter part of 1997, Flood interviewed for, but did not obtain, the position as CEO of Union Planters’ South Florida division.

Flood terminated his employment on January 27, 1998. He then sued Union Planters for breach of contract and slander of credit and alleged that his termination was pursuant to section 5.6(a)(ii)(z) of the Employment Agreement, which allowed termination if the executive was no longer provided coverage under benefit programs in existence prior to the Change in Control, unless a comparable substitute was offered. Union Planters counterclaimed, alleging that Flood failed to pay on the $50,000 promissory note.

A non-jury trial was held before the trial court. Jerry Reiss, an actuary, testified as Floods expert witness. Union Planters presented the testimony of Ellen Hennessy, its expert witness. Both expert witnesses testified on the evaluation of comparability of benefits.

The trial court found Hennessy’s expert testimony superior and more persuasive than Reiss’ testimony. The court made extensive findings in its eleven-page final judgment.

The trial court ordered that final judgment be entered in favor of Union Planters and against Flood on all counts of the complaint and counterclaim. The court further ordered that Union Planters was entitled to recover from Flood $42,299.50, with accrued interest, for Union Planters’ claim on the promissory note. The trial court also awarded Union Planters attorneys’ fees and costs. While we agree with Flood’s contentions that because Union Planters unilaterally drafted the Employment Agreement, ambiguities in the contractual document should be construed against Union Planters, the trial court’s findings and conclusions were nevertheless correct.

To begin, the trial court’s findings of fact come to this court “clothed with a presumption of correctness.” See Gergora v. Goldstein Prof'l Ass’n Defined Benefits Pension Plan & Trust, 500 So.2d 695, 697 (Fla. 3d DCA 1987). The credibility determinations made by the trial court are also reviewed under the abuse of discretion standard, due to the superior vantage point the trial court has in seeing and hearing the expert witnesses presenting the conflicting testimony. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

a. Flood’s Claim for Severance.

We agree with Union Planters that the trial court did not abuse its discretion in finding that comparable substitute benefits were offered to Flood following the merger. There was competent substantial evidence to support the trial court’s determination that when taken as a whole, there was a comparable substitute benefits plan offered to Flood.

First, the trial court evaluated conflicting expert testimony to determine that Union Planters offered benefit programs that were a comparable substitute for those benefits previously offered by Capital Bank before the merger. The trial court adopted Union Planters’ expert’s testimony that the two benefit plans in question should be evaluated on the basis of the benefits package as a whole, rather than on a benefit by benefit basis.

The court further found Floods expert’s testimony less credible than that of Union Planter’s expert because Flood’s expert made assumptions that the trial court found were not credible. This was a proper determination well within the trial court’s discretion. See Iden v. Kasden, 609 So.2d 54, 57 (Fla. 3d DCA 1992).

Second, the term “comparable substitute” in the Employment Agreement is not ambiguous, as Flood contends. The absence of a definition for this term in the Employment Agreement does not mean that the term is ambiguous. See State Farm, Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998). Furthermore, just because a provision may be complex and needs to be analyzed in order to be applied does not mean that it is ambiguous. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003).

Simply because there was a difference of opinion between the experts about the comparable substitute benefits does not mean that the phrase “comparable substitute” itself is ambiguous. The judge heard the experts and made credibility determinations against Flood. The court based its findings on substantial competent evidence, the testimony of Union Planters’ expert, that there was comparable substitute, as required by the Agreement. As such, no ambiguity exists and no rules of construction were necessary to be applied against Union Planters, the drafter of the Employment Agreement. The trial court therefore determined that no severance payment was owed by Union Planters to Flood because the conditions precedent to severance had not been met when Flood terminated his Employment Agreement. Thus, because there was competent substantial evidence to support the trial court’s final judgment and no abuse of discretion has been demonstrated by Flood, the trial court’s judgment is affirmed on this issue. See Location 100, Inc. v. Gould S.E.L. Computer Sys., Inc., 517 So.2d 700, 705 (Fla. 4th DCA 1987).

b. Union Planters’ Counterclaim for Repayment of Principal and Interest.

We also agree with Union Planters and find there is competent, substantial evidence in the record to support the trial courts finding that Flood must pay the amount owed to Union Planters on the promissory note, together with the accrued default interest rate. Because Flood did not terminate his employment pursuant to the Change in Control provisions of his Employment Agreement, the $50,000 loan is not forgiven and Flood is required to repay the loan plus accrued interest. Thus, the judgment in favor of Union Planters on its counterclaim is also affirmed.

c. Conclusion.

In sum, the trial court did not abuse its discretion in finding that comparable substitute benefits were offered to Flood following the merger and that Flood was required to repay the outstanding loan due to Union Planters. The trial court’s eleven-page, clear and concise final judgment relied on competent substantial evidence to support its determinations. We therefore affirm the final judgment under review.

Affirmed.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Harry BARMEIER, Appellee.
    No. 3D03-1376.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Rehearing Denied Aug. 4, 2004.

      Charles J. Crist, Jr., Attorney General, and Jill Traína and Jason Helfant, Assistant Attorneys General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K Blumberg, Assistant Public Defender, for appellee.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

The State of Florida appeals from an Order granting the Defendant’s Motion to Suppress evidence. We reverse.

A trial court’s ruling on a Motion to Suppress is clothed with a presumption of correctness, requiring the reviewing court to interpret the evidence and reasonable inferences in a manner most favorable to sustaining the ruling. Shannon v. State, 753 So.2d 148, 149 (Fla. 3d DCA 2000). Recently, in Connor v. State, 803 So.2d 598 (Fla.2001), the Supreme Court of Florida explained that mixed questions of law and fact, such as whether the defendant was in custody or the determination of probable cause or reasonable suspicion, that ultimately determine constitutional rights, require that the reviewing court defer to the trial court on questions of historical facts but review the constitutional issue de novo. Connor, 803 So.2d at 605-06 (citing U.S. v. Bajakajian, 524 U.S. 321, 337 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998)). “[AJppellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth ... Amendment....” Connor, 803 So.2d at 608.

In the instant case the facts are undisputed. The defendant called 911 in the early morning hours, complaining that his tenant was yelling and banging on his car. The officers were dispatched to the defendant’s residence. Upon arriving, the officers remembered previous calls to the home. As officers approached the defendant’s house, the front door was wide open. The officers knocked and yelled out. After no response, the officers went to the adjoining house where the tenant lived and asked the tenant about the incident. The tenant indicated that he did not know of any calls to police. The officers then returned to the defendant’s home. They then knocked and yelled out but received no response. At this point, the officers entered and proceeded through the home. As they approached the kitchen area, they saw the defendant walking through the backyard, approaching the house with a green leafy substance in his hand. The green leafy substance was a marijuana leaf. Simultaneously, the officers noticed pots inside the house, which also contained marijuana leaves. The defendant was arrested as a result.

The defendant filed a Motion to Suppress, challenging the search, and disputed the officers’ suggestion that exigent circumstances existed for a warrantless search. The trial court agreed with the defendant and granted the motion.

This Court has previously recognized that the “Fourth Amendment does not bar police officers from making war-rantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” Grant v. State, 374 So.2d 630, 631 (Fla. 3d DCA 1979). Moreover, police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Id. at 632 (citing Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). In Grant, officers responded to a 911 call from the defendant that his son had been shot. When the officers entered the apartment they discovered a shotgun and a .32 caliber handgun in plain view near the decedent’s body. Officers then recovered several guns from around the defendant’s apartment. This Court affirmed, among other things, the trial court’s denial of the defendant’s Motion to Suppress the guns that were in plain view. Id.

Similarly, in Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967), the Court found that exigent circumstances existed for warrantless entry into the defendant’s home where officers, who proceeded through the defendant’s house to advise family members of defendant’s attempted suicide, saw a person lying on the bed with a pillow over her head, and did not respond to the officers’ loud knocking or to the shine of their flashlight. Webster, 201 So.2d at 790-91. Officers also had information that the defendant previously indicated that he would kill himself if anything happened to his wife. Id. at 791. The Court recognized the applicability of the exigency rule. “The reasonableness of an entry by police upon private property is measured by the circumstances then existing. ... [A] search warrant is not required to legalize an entry by police for the purpose of bringing emergency aid to an injured person. Id. at 792.

In State v. Boyd, 615 So.2d 786 (Fla. 2d DCA 1993), the Court found that an officer’s warrantless search of defendant’s home was justified under the exigency rule where the officer was dispatched to the residence on reports that there was a man setting off a firearm in defendant’s yard. When officers arrived, the defendant was holding a gun and appeared angry. The officer found several shells in the yard near the open front door and received no response from within. The officer testified that he entered to see if there were injured persons in the house. See also State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973)(where officers responding to a call, found the front door slightly ajar, music playing loudly, and the defendant sitting limply on a chair. The officers entered the defendant’s apartment to determine the defendant’s condition and, in plain view, saw a clear plastic baggie containing marijuana. The Court found that under the circumstances, exigent circumstances existed).

The instant case appears to be on all fours with Webster and Boyd. The officers were responding to a 911 call from the defendant regarding a disturbance and confrontation with a tenant. Upon arriving at the defendant’s house, the officers knocked on the open door and announced their presence but received no response. After additional investigation, and discussion with the neighbor/ tenant, officers again went to the defendant’s house, knocked on the door, and announced their presence. The officer in the instant case testified that, because of his history of responding to calls at this address, he was concerned that the defendant might be inside the house and injured. Not hearing any response from within, the officers entered the house and proceeded through to the back where they saw the defendant holding a marijuana plant and, in plain view inside the house, noticed additional marijuana plants. At the hearing on defendant’s Motion to Suppress, and here on appeal, the defendant makes much of the fact that he told the 911 operator to forget that he called. However, there is no evidence in the Record that the officers were advised of this information. Accordingly, based on the information provided to them, and the totality of the circumstances, the officers properly proceeded into the defendant’s house.

In light of the foregoing, we find that the exigency rule applies to support the officers’ entry into the defendant’s home. Accordingly, the Order granting the defendant’s Motion to Suppress is reversed, and the matter is remanded for further proceedings.

Reversed and remanded.


text:
    Jeffrey ROWAN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D03-4030.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Rehearing Denied July 30, 2004.
    Jeffrey Rowan, pro se, petitioner.
    Rosa Carson, General Counsel, Department of Corrections, and Carolyn J. Mosley, Assistant General Counsel, Tallahassee, for respondent.
   PER CURIAM.

Denied on the merits. Duncan v. Moore, 754 So.2d 708 (Fla.2000).

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Carmen ST. CLAIRE-ROUKE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D04-0840.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Rehearing Denied Aug. 2, 2004.
    Appellant, pro se.
    Geri Atkinson-Hazleton, General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s March 11, 2004 order, the appeal is hereby dismissed for lack of jurisdiction. This dismissal is without prejudice to the appellant’s right to seek any further relief from the agency that is available. See Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Gloria VARGAS, Appellant, v. Darlene SCHWEITZER-RAMRAS, and Schweitzer & Schweitzer-Ramras, P.A., Appellees.
    No. 3D04-563.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing Denied Aug. 4, 2004.

      Warren Trazenfeld; Kimberly L. Boldt (Boca Raton), for appellant.
    Bernstein, Chackman, Bronstein & Liss (Hollywood) and V. Julia Luyster and Jennifer S. Lodge, for appellees.
    Before SHEVIN, RAMIREZ and WELLS, JJ.
   PER CURIAM.

Gloria Vargas appeals an order staying her legal malpractice case against attorney Darlene Schweitzer-Ramras, and the law firm of Schweitzer & Schweitzer-Ramras, P.A., and requiring the parties to submit the case to arbitration. We reverse.

Schweitzer-Ramras represented Vargas in her dissolution of marriage action. After the dissolution, Vargas sued Schweitzer-Ramras, and the firm [collectively “defendants”], for legal malpractice asserting that Vargas was harmed as a result of incorrect legal advice given during the representation. In response to Vargas’s action, defendants filed a motion to stay proceedings and require arbitration of the action. Defendants relied on the following paragraphs in the retainer agreement:

9.... When we submit our final bill, you agree to pay us within ten (10) days from the date thereof: except, however, if you feel that any additional fee over and above the hourly rate is not reasonable considering all of the factors involved, then you and we agree that such additional fee over and above the minimum hourly fees shall be settled by a panel of three (3) arbitrators, all of whom are lawyers who are Board Certified in Marital and Family Law by the Florida Bar, one of whom shall be selected by you, one by us and the third by the two already selected, and you and we agree that the award of the arbitrators shall be accepted as the final determination of the matter.
13. In the event it is necessary to institute proceedings against you for the collection of fees and advances due to us by you, you will pay, in addition to any adjudication for such fees and advances, all costs and expenses necessitated thereby, including reasonable attorney’s fees.
14. In the event of any dispute as a result of any provision hereof for the interpretation hereof or otherwise or in any way [sic] arising out of our relationship as attorney and client, if we shall be the prevailing party, then we shall be entitled to collect from you all costs and expenses necessitated by us in such dispute, including reasonable attorney’s fees. All such disputes and any counterclaim against us in an action for collecting for [sic] set off because of any alleged improper act or acts on our part shall be submitted to and shall be determined by the arbitrators named in paragraph 9 hereof and the decision of the arbitrators shall be final and binding on both you and us.

The trial court granted defendants’ motion. Vargas appeals.

When ruling on a motion to compel arbitration of a particular dispute a court must consider three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, Inc., 776 So.2d 940, 942 (Fla. 3d DCA 2000). The issue in this case involves the first two elements and can be summarized as whether the legal malpractice claim is subject to arbitration based on the language in the agreement. We hold that the arbitration references in the retainer agreement do not support a conclusion that the client agreed to arbitrate any and all claims arising out of representation, including legal malpractice claims, as defendants suggest.

Arbitration provisions are construed following principles of contract interpretation. Seifert, 750 So.2d at 636. It is well settled that arbitration “may be required only as to those disputes concerning which the parties have expressly agreed.” Atencio v. U.S. Sec. Ins. Co., 676 So.2d 489, 490 (Fla. 3d DCA 1996); Miller v. Roberts, 682 So.2d 691, 692 (Fla. 5th DCA 1996); Regency Group, Inc. v. McDaniels, 647 So.2d 192, 193 (Fla. 1st DCA 1994). “Although arbitration clauses are generally favored, the clause must refer to the subject matter being contested.” All Am. Semiconductor, Inc. v. Unisys Corp., 637 So.2d 59, 60 (Fla. 3d DCA 1994). To determine whether the parties in this case agreed to arbitrate the legal malpractice dispute, we begin by considering the scope of the language in the agreement.

Notably, the language in the pertinent paragraphs does not constitute a general arbitration clause establishing arbitration as the means for resolving any dispute relating to the representation. These paragraphs by their plain language apply to fee disputes or collection disputes: Paragraph nine clearly applies to fee disputes; paragraph thirteen clearly applies to fee collection proceedings; and paragraph fourteen applies to the collection of costs and expenses the firm may be entitled to by virtue of being the prevailing party in any dispute between the parties. In this context, paragraph fourteen incorporates by reference the arbitration provision in paragraph nine that clearly requires arbitration of any dispute over the firm’s final bill. The second sentence in paragraph fourteen cannot be taken out of context and used to impose an obligation to arbitrate any claim between the parties. A clear reading of the agreement demonstrates that the parties intended to arbitrate fee disputes, and disputes surrounding the firm’s entitlement to monies. This does not support a conclusion that the client agreed to arbitrate all claims, of any nature, including legal malpractice.

In addition, the rules of construction require that contracts be construed against the drafter, Seifert, and retainer agreements are construed against the attorney and in favor of client. Arabia v. Siedlecki, 789 So.2d 380 (Fla. 4th DCA 2001), review denied, 817 So.2d 848 (Fla.2002); May v. Sessums & Mason, P.A., 700 So.2d 22 (Fla. 2d DCA 1997). The specificity of the language in paragraphs nine, thirteen and fourteen, coupled with the absence of any mention of the parties’ rights in the event of a malpractice allegation, demonstrates the parties’ intent to arbitrate any dispute arising from a fee or collection matter. See Seifert. However, nowhere is there any language that the client agreed to arbitrate a legal malpractice claim. We cannot conclude that the parties agreed to submit the subject dispute to arbitration.

Based on the foregoing, we reverse the order staying the proceedings and requiring arbitration.

Reversed and remanded.


text:
    GREAT LAKES PRODUCTS, INC., etc., Appellant, v. Ricardo WOJCIECHOWSKI, Appellee.
    No. 3D03-2880.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Karmin, Adler Padowitz; and Nancy Little Hoffmann, Pompano Beach, for appellant.
    Stormie Stafford, Coral Gables, for ap-pellee.
    Before GODERICH, FLETCHER and RAMIREZ, JJ.
   RAMIREZ, J.

Plaintiff Great Lakes Products, Inc. appeals the trial court’s Final Summary Judgment entered in favor of Defendant Ricardo Wojciechowski. We reverse the Final Summary Judgment, finding that the trial court erred in failing to hold as a matter of law that Wojciechowski was personally liable for the debt of Brave Coast, Inc., the corporate defendant in this case.

Brave Coast, Inc. (Brave Coast) obtained a credit application from Great Lakes Products, Inc. (Great Lakes), an Illinois corporation, so that Brave Coast could purchase seafood from Great Lakes. On July 16, 2001, Brave Coast’s president, Ricardo Wojciechowski, signed the credit application. Under Wojciechowski’s signature, the word “president” was typed in the blank following the word “title.” Immediately underneath this, the following preprinted language appeared:

I personally guarantee payment on this account and agree to the terms of this credit application which is incorporated into this guarantee.

Great Lakes subsequently made several seafood deliveries to Brave Coast from September 20 through October 15, 2001. Great Lakes rendered six statements of account to Brave Coast. Brave Coast submitted checks in partial payment, however those checks were dishonored. Great Lakes then filed suit for account stated and goods sold, alleging that Brave Coast owed Great Lakes $80,649.32. Count III of the complaint was an action against Wojciechowski for his personal guarantee.

Great Lakes moved for summary judgment against Brave Coast and Wojcie-chowski, and then submitted the affidavit of its president, Joe Schuetz. Wojciechow-ski also filed an affidavit stating that in signing the credit application as president of Brave Coast, he did not intend to sign a personal guarantee in his individual capacity. The trial court granted summary judgment in favor of Great Lakes as to Brave Coast, but denied the summary judgment as to Wojciechowski. A final judgment was entered against Brave Coast for $80,649.32. The claim against Wojcie-chowski was set for non-jury trial. Wo-jciechowski thereafter filed a motion for summary judgment on the issue of his personal liability for Brave Coast’s debts. The trial court granted the motion for summary judgment and cited to Delta Airlines, Inc. v. Wilson, 210 So.2d 761 (Fla. 3d DCA 1968). Great Lakes then appealed.

We disagree with the trial court. The issue here is whether Wojciechowski’s signature on the credit application gives Great Lakes recourse to proceed against him individually as a guarantor. See Robert C. Malt & Co. v. Carpet World Distributors, Inc., 763 So.2d 508, 510 (Fla. 4th DCA 2000). This is a question of law. Id. We hold that the trial court erred as a matter of law in finding that Wojciechow-ski was not personally liable for Brave Coast’s debt. The language of the credit application signed by Wojciechowski is clear and unambiguous in its statement that Wojeiewchowski personally guaranteed payment on the subject account. Florida law is clear that an individual who executes a guarantee as an officer of a corporation by inserting his corporate title after his name on a document cannot defeat the purpose of the guarantee when, by its terms, the document contains provisions for individual liability. See Laboratory Corp. of America v. McKown, 829 So.2d 311, 313 (Fla. 5th DCA 2002). See also Nelson v. Ameriquest Technologies, Inc., 739 So.2d 161, 164 (Fla. 3d DCA 1999) (holding that the fact that a guarantor added letters “V.P.” after his signature, and thus allegedly executed a guaranty only in his corporate capacity, did not defeat a finding that the guarantor was individually liable; the express and unambiguous provisions of the guaranty made the guarantor individually liable); Saada v. Grumman Credit Corp., 583 So.2d 430, 431, fn. 1 (Fla. 3d DCA 1991) (finding no error in the trial court finding that the appellant individually guaranteed the obligation of a corporation in which he was a principal; “[T]o adopt appellant’s argument that he executed the guarantee only in a corporate capacity would make the guarantee superfluous or a legal nullity because the corporation would be guaranteeing its own debt.”); Central Nat’l Bank of Miami v. Muskat Corp. of America, Inc., 430 So.2d 957, 958 (Fla. 3d DCA 1983) (holding that the fact that a corporate president added the word “president” after his name on a guaranty agreement could not defeat the agreement’s purpose of making the president a guarantor of the corporation’s promissory note; the addition of the word “president” did not create a corporation guaranty of its own obligation).

Furthermore, we find the trial court’s reliance on Delta Airlines, Inc. v. Wilson, 210 So.2d 761 (Fla. 3d DCA 1968) to be misplaced. In Delta Airlines, Inc., there was no explicit promise to personally guarantee payment, as is present in the case before us. As such, we reverse the final summary judgment in favor of Wojciechowski and remand with directions that the trial court enter final judgment in favor of Great Lakes, Inc. and against Wo-jciechowski on the personal guarantee claim.

Reversed and remanded with directions.


text:
    Roosevelt HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 3D03-610.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing Denied Aug. 4, 2004.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, and Roy A. Heimlich, for appellant.
    Charles J. Crist Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, and Annette Lizardo, for appel-lee.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Affirmed. See Young v. State, 744 So.2d 1077 (Fla. 4th DCA 1999); Davis v. State, 691 So.2d 1180 (Fla. 3d DCA 1997).


text:
    Dale M. CARSRUD, et al., Appellant, v. ALPHA & OMEGA CONSTRUCTION COMPANY, Corp., and Alpha & Omega Construction Services, Inc., Appellees.
    No. 3D03-1260.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing Denied July 28, 2004.

      Hoffman, Larin, Agnetti Karas and David L. Perkins, Fort Lauderdale, for appellant.
    Kubicki Draper and Sharon C. Degnan, Miami, for appellees.
    Before SCHWARTZ, C.J., and GODERICH, J., and DELL, JOHN W., Senior Judge.
   PER CURIAM.

Affirmed. See §§ 440.10(1)(b), 440.11, Fla. Stat. (2003); Aerovias Colombianas, Ltd. v. Paiz, 695 So.2d 822 (Fla. 3d DCA 1997), review denied, 700 So.2d 687 (Fla.1997); Broward County v. Rodrigues, 686 So.2d 774 (Fla. 4th DCA 1997), cause dismissed, 690 So.2d 1300 (Fla.1997); Delta Air Lines, Inc. v. Cunningham, 658 So.2d 556 (Fla. 3d DCA 1995), review denied, 668 So.2d 602 (Fla.1996). Compare § 713.01(19), Fla. Stat. (2003)(“ ‘Material-man’ means any person who furnishes materials under contract to the owner ... who performs no labor in the installation thereof.” [e.s.]); Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958).


text:
    RELIANCE DEVELOPMENT CORPORATION, Appellant, v. Leroya J. PITTS, Appellee.
    No. 3D04-116.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing Denied Aug. 4, 2004.
    Corey B. Collins, for appellant.
    Hyman, Kaplan, Ganguzza, Spector Mars, P.A. and Peter L. Meltzer, Miami, for appellee.
    Before GERSTEN, GREEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Richards v. Hasty, 158 Fla. 459, 28 So.2d 876, 878 (1947); Dickson v. Ridge Realty Co., 141 Fla. 807, 194 So. 241, 243 (1940).


text:
    Barbara TAYLOR, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Department of Health, Appellees.
    No. 4D03-3056.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 17, 2004.

      Barbara Taylor, Lake Worth, Pro Se.
    Stephen W. Foxwell, Tallahassee, for Appellee-Department of Health.
   PER CURIAM.

Barbara Taylor appeals the order of the Public Employees Relations Commission (PERC) dismissing her whistle-blower complaint. PERC dismissed the complaint after determining that it was barred by her election of remedies. We affirm.

Ms. Taylors employer, the Department of Health (DOH), reprimanded her for allegedly making offensive remarks about a DOH attorney. Taylors collective bargaining representative filed a grievance on her behalf. After the grievance was denied at Step 1, Taylor filed a whistle-blower complaint with the Florida Commission on Human Relations (FCHR) concerning the reprimand. Taylor, however, did not withdraw her grievance; instead she proceeded to Steps 2 and 3, where decisions at both levels resulted in the denial of her grievance.

The FCHR notified Taylor that her whistle-blower complaint was denied as being without merit. Taylor then appealed this decision to PERC. After a formal administrative hearing, PERC dismissed Taylors complaint, determining that it was barred by her election to pursue the collective bargaining grievance to conclusion.

Section 447.401, Florida Statutes, (2003) governs grievance procedures for public employee union members. It states, in pertinent part, as follows:

A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures.

This statute has been applied on multiple occasions to bar attempts to pursue more than one avenue of redress. See, e.g., Hallandale Profl Firefighters v. City of Hallandale, 777 So.2d 435 (Fla. 4th DCA 2001)(holding that by filing an unfair labor practice before PERC, the union was barred from also seeking arbitration concerning the same grievance). The election of remedies doctrine has been applied even where the first avenue pursued was unsuccessful. See Metro. Dade County v. Dade County Ass’n of Firefighters, 575 So.2d 289 (Fla. 3d DCA 1991)(holding that firefighters appeal of his discharge through civil service appeal procedure foreclosed any relief under the union grievance procedure); Bass v. Dept. of Transp., 516 So.2d 972 (Fla. 1st DCA 1987)(holding that PERC was required to dismiss employees civil service appeal after employee had previously sought relief through a grievance procedure).

That the requirement to elect a remedy also applies to whistleblower actions is made clear in section 112.3187, Florida Statutes (2003), the Florida Whistleblow-ers Act. Subsection (11) of that statute states:

Sections 112.3187-112.31895 do not diminish the rights, privileges, or remedies of an employee under any other law or rule or under any collective bargaining agreement or employment contract; however; the election of remedies in s. W.JpOl also applies to whistle-blower actions.

(emphasis added).

PERC has previously decided two cases in which it applied section 112.3187(11) to bar a whistle-blower complaint in circumstances indistinguishable from those here. In Snyder v. Univ. of South Florida, 22 FPER 27095 (1994), the agency stated:

When read together, these statutory provisions require the Complainant to elect to utilize either a grievance, a civil service appeal, an-unfair labor practice charge or a whistle-blower complaint procedure.

In Snyder, because the employee had filed a grievance and failed to withdraw it before it was acted on (apparently adversely), PERC held that he was barred from maintaining his related whistle-blower complaint. See also Dale v. Dept of Corr., FPERC 94-001.

Because we conclude that this case is also governed by the aforementioned statutes precluding more than one course of redress, we affirm the order dismissing appellants whistle-blower complaint.

AFFIRMED.

GUNTHER, TAYLOR and MAY, JJ„ concur.


text:
    Brian J. BEDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-142.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 18, 2004.
    Brian J. Bedwell, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Brian J. Bedwell challenges the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review on one point.

Having reviewed the motion, the state’s responses, and the records provided, we hold that the plea colloquy and forms do not conclusively refute Bedwell’s claim of misadvice associated with his entitlement to gain time. See Griffin v. State, 869 So.2d 773 (Fla. 4th DCA 2004); see also State v. Leroux, 689 So.2d 235 (Fla.1996).

Accordingly, we reverse the trial court’s ruling and remand for the trial court to conduct an evidentiary hearing to address the merits of BedwelFs claim.

STEVENSON, GROSS and HAZOURI, JJ., concur.


author: SHEPHERD, J.

text:
    Felix M. LO, Appellant, v. Lynn S. LO, Appellee.
    No. 3D03-1874.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    David H. Freedman, Miami, for appellant.
    Kohlman Hamlin, LLP, and Robert F. Kohlman, and Laura Fabar, Miami, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   SHEPHERD, J.

Appellant Felix Lo appeals an order adjudicating him in contempt of court and sentencing him to ninety (90) days’ incarceration in the Dade County jail. We reverse.

Felix and Lynn Lo were divorced in October 1996. Lynn was awarded custody of their two minor children. However, the Final Decree of Divorce signaled just the beginning of post-marital controversy between them over custody, visitation, and other provisions of the divorce decree, particularly as they pertain to the children. The couple’s recriminations led to a three-day trial in 2001, and an omnibus order finding Felix Lo guilty of harassing his former wife, fabricating abuse allegations to bolster his custody claims, and routinely flouting parental obligations ranging from failure to pay child support and interference with their schooling to continuously returning the children late and sometimes not at all. Based upon the testimony received, the Court issued a finely-detailed order relating to the parties’ obligations inter se concerning the children, down to the number of times a day telephone calls could be made between the respective residences. It is clear, however, that the order was transparently directed at Felix and it concluded with this warning:

Noncompliance with any provision of this Order, particularly to the return time of the children, shall subject the offending party to involuntary criminal contempt charges which may include incarceration in the Miami-Dade County Jail.

Despite this yeoman’s effort by the trial judge, the controversy was not stemmed, and Lynn Lo lodged additional motions to compel compliance against her former husband, including a motion for contempt. These additional motions came to a head in a special hearing in June 2003, wherein Lynn accused her former husband of taking their minor son for dental visits without notifying her in writing, taking their minor son on a cruise to Mexico without obtaining her consent, and continued late pick-up and drop-off of the children from visitations — all violations of previous court orders. At the conclusion of the special hearing, the Court found Felix’s testimony to be completely devoid of candor. Then, briefly pausing to note that “[but] for all of the prior violations by the former husband the instant matters ... might not seem so significant,” the court nevertheless held the former husband in “willful contempt” of court, sentencing him to ninety days in jail for what it described as “repeated violations” of court orders and “continued ‘thumbing of his nose’ ” at the trial judge and his predecessors. The relevant part of the order reads as follows:

Based upon the foregoing, it is hereby Ordered and Adjudged
A. That Felix Lo is found to be in willful contempt of this Court’s Orders.
B. That Felix Lo as -punishment for said contempt is sentenced to 90 days in the Dade County jail or any such other secured facility at the discretion of the Department of Corrections. (Emphasis added.)

Felix sought an emergency stay and appeals the order. We address the merits of his appeal.

Although we appreciate the frustration faced by the trial judge in this case, the trial court nevertheless failed to satisfy the legal requirements necessary to hold the former husband in either civil or criminal contempt of court. Contempt of court can be either civil or criminal. Parisi v, Broward, Co., 769 So.2d 359, 363-64 (Fla.2000). Additionally, criminal contempt can be either direct or indirect.

Direct criminal contempt results from conduct committed in the actual presence of a judge, and may be punished summarily by the judge who witnessed the offending conduct; indirect criminal contempt concerns conduct that has occurred outside the presence of the judge.

Martinez v. State, 799 So.2d 313, 314 (Fla. 2d DCA 2001). Unfortunately, for purposes of review by us, the Order does not enlighten us as to the nature of the contempt that the trial judge intended to impose upon Mr. Lo. It appears from the trial court’s use of the term “punishment” that the court may have intended to place Mr. Lo in indirect criminal contempt of court. But the touchstone of indirect criminal contempt is not “punishment,” but rather an express finding of “guilty” or “not guilty.” See Fla. R.Crim. P. 3.840(f). Moreover, before any sentence for indirect criminal contempt can be imposed, Fla. R.Crim. P. 3.840 requires notice of the accusations against a defendant, an opportunity for a defendant to show cause the sentence should not be imposed, and pronouncement of the judgment and sentence by the court. Here, the Order does not contain a finding of guilt; nor did the proceedings afford Felix the chance to be heard prior to the Court’s sentence of ninety days’ incarceration. Thus, even if the Court intended that Felix be found guilty of indirect criminal contempt, lack of the procedural safeguards mandated under Fla. R.Crim. P. 3.840 renders the Order defective.

Conversely, if the Court found Felix guilty of civil contempt, the Order fails for want of a purge provision, i.e., a proviso within the Order giving the condemner power to avoid imposition of the sentence. See Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). Bowen made clear that “the purpose of civil contempt is not to punish, but to obtain compliance with a court order.” Id. at 1277. “Because incarceration is utilized solely to obtain compliance, it must be used only when the condemner has the ability to comply. This ability to comply is the condemner’s ‘key to his cell.’ ” Id. See also, Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997).

Repeated disregard of court orders and lack of candor by a party toward the Court justifies findings of either civil contempt or indirect criminal contempt so long as lawful procedures and conditions adhere. Fla. R.Crim. P. 3.840. See South Dade Farms, Inc. v. Peters, 88 So.2d 891, 897 (Fla.1956) (“There can be no doubt of the authority of a court to administer appropriate punishment for contemptuous conduct of parties bound by its decree.”) But given the ambiguity of the proceedings below, and failure of the trial court to afford the procedural safeguards of Fla. R.App. P. 3.840 if the proceeding was intended to be criminal in nature, we are compelled to reverse and remand this case for a new hearing on the former wife’s motion. At the same time, while acknowledging and commending the not inconsiderable investment that the trial judge below has made in ameliorating the differences between the parties and fostering the best interests of the children, we also find that in the interests of insuring fairness, any further proceedings on this issue should be held before a different trial judge. Porter v. Porter, 698 So.2d 643 (Fla. 3d DCA 1997).

      . During the course of these proceedings one of the children has achieved the age of majority.


author: BARFIELD, J.

text:
    Michael DEE, as Personal Representative of the Estate of Nicole Dee, deceased, Appellant, v. WAL-MART STORES, INC., and Roberto Morales, M.D., Appellees.
    No. 1D02-4997.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Rehearing Denied July 29, 2004.

      J. Bruce Bowman, Robert G. Churchill, Jr., and Craig A. Dennis, of Dennis, Bowman, Jackson, Martin & Fontela, P.A., Tallahassee, for Appellant.
    James Evangelista, Tampa, and Cecil Davis, Tallahassee, for Appellee Wal-Mart Stores, Inc.; and Maria Santora, Tallahassee, for Appellee Roberto Morales. M.D.
   BARFIELD, J.

Michael Dee, as Personal Representative of the Estate of Nicole Dee, deceased, appeals the dismissal of a negligence claim against Wal-Mart Stores, Inc., for failure of the amended complaint to state a cause of action. The complaint alleged negligence on the part of the pharmacy at Wal-Mart in filling a prescription for Nicole Dee. We reverse.

It is alleged that Nicole Dee received a prescription for a 50 mierogram Duragesic patch from her physician following a Cesarean section. There was no time limit on the face of the prescription. More than four months later Mrs. Dee had the prescription filled at Wal-Mart’s pharmacy and used it to treat pain from a fractured ankle. A Duragesic patch contains the opioid analgesic “fentanyl.” Mrs. Dee died in her sleep as a result of a toxic overexposure to fentanyl.

A pharmacy must use due and proper care in filling a prescription. McLeod v. W.S. Merrell Co. Div. Of Richardson-Merrill, Inc., 174 So.2d 736 (Fla.1965). When a pharmacy fills a prescription which is unreasonable on its face, even though it is lawful as written, it may breach this duty of care. It is alleged that the prescription for this Duragesic patch, without a time limit for filling or using the prescription, renders the prescription unreasonable on its face. It is alleged that this Duragesic patch, if used by one not on a fentanyl regimen, will likely cause hypo-ventilation resulting in death. It is alleged that a pharmacist viewing this prescription which is more than four months old would reasonably conclude that the patient is opioid-naive. The pharmacist should warn of this danger and/or inquire of the physician whether the prescription should be filled for this patient. It is alleged that the pharmacist did neither. These allegations of the amended complaint state a cause of action in negligence.

We agree with the trial court that the pleadings do not sufficiently allege a voluntary undertaking.

The decision of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

ALLEN and DAVIS, JJ., concur.


text:
    Byron J. TISDOL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1031.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Rehearing Denied Aug. 4, 2004.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and FLETCHER, JJ.
   PER CURIAM.

Byron J. Tisdol appeals an order denying postconviction relief. We reverse for further proceedings.

Defendant-appellant Tisdol is incarcerated on Miami-Dade County circuit court case numbers 93-2188 and 94-5876. He filed a motion for postconviction relief arguing, among other things, that the sentence in the 1994 case exceeded the legal maximum or was otherwise invalid.

In preparing its response in this court, the State candidly pointed out that the sentences the defendant received upon revocation of probation on September 22, 1998 appear to exceed the amount provided by his plea agreement approved by the court on April 15, 1998. The April 15 plea agreement resolved an earlier affidavit of violation of probation and provided that in the event of any further violation, the defendant would be sentenced to seventeen years imprisonment. Upon adjudication of a subsequent violation of probation at the hearing conducted September 22, 1998 the court imposed consecutive sentences in excess of the seventeen year term.

The State acknowledges that unless there was a subsequent modification of the April 15, 1998 plea agreement, the defendant would be entitled to be resentenced in accordance with the terms of the April 15, 1998 agreement.

Accordingly we remand for further proceedings to determine if there was any subsequent modification to the April 15, 1998 plea bargain and if not, to resentence the defendant according to the agreement. If there was a subsequent modification then the subsequent modification would, of course, control.

The defendant also argues that his term of probation in the 1994 case expired prior to the filing of the affidavits of violation of probation in mid 1998. He argues that the trial court lost jurisdiction in the 1994 case and that his sentence in the 1994 case must therefore be vacated. See Francois v. State, 695 So.2d 695 (Fla.1997).

At the time the trial court imposed its initial probationary disposition in the 1994 case, the defendant was of juvenile age. The court’s oral pronouncement was that the defendant met the criteria of, and qualified as, “a serious delinquent child.” TR. July 27, 1994, at 14. See §§ 39.01(46), 39.058, Fla. Stat. (1993). Under the applicable statute, a serious or habitual delinquent child remained under the jurisdiction of what was then the Department of Health and Rehabilitative Services until age twenty-one or until sooner discharged. See id. § 39.059(4)(c). The written disposition order in the 1994 case, however, stated that the defendant was being committed to the Department until he was nineteen or until sooner discharged. Order, July 27,1994.

When the State filed its affidavits of violation in mid 1998 in both cases, the defendant was twenty years old. He argues that under the terms of the written sentencing order, jurisdiction expired in the 1994 case when he turned nineteen, the previous year. He thus argues that his sentence in the 1994 case must be vacated. We disagree.

At the original disposition, the trial court twice stated that the defendant qualified as a serious delinquent child. We conclude that disposition was imposed as a serious delinquent child and that jurisdiction over the defendant continued until the defendant’s twenty-first birthday. See § 39.059(4)(e), Fla. Stat. (1993). That being so, we reject the claim that the court’s jurisdiction in the 1994 case expired on the defendant’s nineteenth birthday. To the extent that the written order says otherwise, it does not accurately reflect the court’s oral pronouncement.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


text:
    Joanne GARONE, Appellant, v. Martin James GOLLER, Appellee.
    No. 3D03-1215.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Greene, Smith & Associates and Cynthia L. Greene, Miami, for appellant.
    Marks and West and Carolyn W. West, Miami; Deanna S. Shifrin, Miami, for ap-pellee.
    Before COPE, LEVY, and GREEN, JJ.
   PER CURIAM.

Joanne Garone, the former wife, appeals from a trial court Order denying her Petition for Modification of Child Support.

The parties’ Final Judgment of Dissolution of Marriage was entered on September 19, 1995, and awarded child support of $800.00 per month for the parties’ two minor children. Former wife subsequently sought a modification of support, and an agreed Order was entered on December 8, 2000, increasing child support to $950.00 per month. The instant matter arises from the former wife’s Petition for Modification of Support filed on October 23, 2002, which sought modification of child support for the parties’ two minor children as a result of former husband’s promotion and increase in salary.

After a hearing on the motion, the trial court found among other things, that Martin James Goller, the former husband, received a promotion with an increase in salary; that “former wife is remarried to an attorney and owns three rental properties (single family homes) of significant value, in addition to her current marital residence valued in the $300,000.00 range[;]” and that former wife testified that she earned approximately $15,000.00 per year. The court noted that the former wife’s testimony concerning her professional and rental properties income and values were “vague and suspicious” which left the court “with no accurate means of determining her actual income.” The court also noted that “former wife has remained underemployed and has been less than credible in matters relating to her investment properties in an apparent attempt to prevent an increase in what would be her required participation under the child support guidelines were she to fully utilize her earning ability.” Lastly, the court found that former wife failed to prove an increased need for additional support. Consequently, the trial court denied the former wife’s motion for modification of support and reserved ruling on attorney fees. This appeal follows. We reverse and remand for specific findings.

The child support guidelines apply to petitions for modification and may provide the basis for finding a substantial change in circumstances. 61.30(1)(b), Fla. Stat. (2002); State Dept. of Revenue by and on Behalf of Young v. Sumblin, 675 So.2d 691, 692 (Fla. 1st DCA 1996); Pitts v. Pitts, 626 So.2d 278, 284 (Fla. 1st DCA 1993). Additionally, section 61.30(l)(a), Florida Statutes permits a court to deviate more than five percent from the presumptive guideline amount “upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.” Niemann v. Anderson, 834 So.2d 319 (Fla. 5th DCA 2003). Thus, the guidelines amount is presumptively the amount the trier of fact shall order in a modification proceeding, and a substantial change in the paying parent’s income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need. Miller v. Schou, 616 So.2d 436 (Fla.1993); Sumblin, 675 So.2d at 692.

In the instant case, it is undisputed that the former husband received an increase in salary. Additionally, it is undisputed that the former wife earned approximately $15,000 from her law practice, in addition to some rental incomes. The court, however, found that former wife’s testimony concerning her professional income as well as her rental properties income and values [was] vague and suspicious, and [left the court] with no accurate means of determining her actual income. Additionally, the court found that the former wife ... remained underemployed and has been less than credible in matters relating to her investment properties in an apparent attempt to prevent an increase in what would be her required participation under the child support guidelines were she to fully utilize her earning ability. Consequently, the court denied former wife’s Motion for Modification of Support.

The Order, however, lacks any finding or indication that the court imputed income to the former wife. Section 61.30(2)(b), Florida Statutes, requires that the trial court impute income to an unemployed or underemployed parent “when such employment or underemployment is found to be voluntary on that parent’s part.” 61.30(2)(b), Fla. Stat. (2002). Thus, section 61.30 requires a finding that the parent is capable of earning more through the use of his or her best efforts. Brock v. Brock, 695 So.2d 744, 745 (Fla. 1st DCA 1997)(the decision to impute income to the paying parent must be supported by specific finding that the former spouse’s underemployment was voluntary); Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997); Gildea v. Gildea, 593 So.2d 1212, 1213 (Fla. 2d DCA 1992); Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991). The trial court’s finding that the parent is underemployed must be based on evidence presented at the hearing. In addition, if the trial court decides to impute income, it must consider the parent’s “recent work history, occupational qualifications, and. prevailing earnings level in the community.” 61.30(2)(b), Fla. Stat. (2002); see also Cushman, 585 So.2d at 486.

In State Department of Revenue by and on Behalf of Young v. Sumblin, the Court found that the denial of a request for modification of child support by a custodial parent, based upon a finding of underemployment of the custodial parent, was error. The Court held that the trial court should have determined whether it was appropriate to impute income to custodial parent. Id. at 692.

In the instant case, the trial court found that the former wife was underemployed, that she chose to continue to remain underemployed and that she had the ability to earn more income. However, the Record fails to show that the court imputed income to the former wife. Instead, it appears that the court simply denied the former wife’s Petition for Modification of Support without considering the support guidelines as required by section 61.14, Florida Statutes. Accordingly, the Order on review must be reversed and remanded for the trial court to determine whether the Record supports imputing income to the former wife, considering the parties Settlement Agreement which envisions that the former wife will work part-time during the childrens minority, and for a determination of the merits of modification pursuant to the support guidelines.

The court also found that while the former husbands salary did increase, the former wife failed to prove an increased need for the additional child support. This finding was clearly erroneous because an increase in the payers income is sufficient to satisfy the substantial change in circumstance standard contemplated by section 61.30(l)(b), Florida Statutes. Miller v. Schou, 616 So.2d at 438.

Reversed and remanded.

      . We note that the former husband did not offer any testimony or evidence to suggest that former wife’s testimony regarding her income was inaccurate. Berges v. Barges, 871 So.2d 919 (Fla. 3d DCA 2004); see also Wendel v. Wendel, 852 So.2d 277 (Fla. 2d DCA 2003). Additionally, we note that former husband had the power to subpoena former wife’s financial records pursuant to Florida Rule of Civil Procedure 1.410.


author: BENTON, J. ERVIN, J.,

text:
    Patricia A. McCARTY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and St. Augustine Trains, Inc., Appellees.
    No. 1D03-3116.
    District Court of Appeal of Florida, First District.
    July 9, 2004.

      Carol S. Miller, Esquire, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    Geri Atkinson-Hazelton, General Counsel; John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   BENTON, J.

Patricia McCarty appeals the order of the Unemployment Appeals Commission upholding the appeals referee’s determination that she was ineligible to receive unemployment compensation benefits even though she was discharged from her position with St. Augustine Trains, Inc., as tour guide, salesperson, and driver of an articulated tram. We reverse.

A seven-year employee, Ms. McCarty lost her job after she drove into a driveway that she had been told not to use, and' — when upbraided — defended her choice as necessary to avoid an accident with another tram driver. James Wettach, the president of St. Augustine Trains, explained the reason for the termination and the circumstances that gave rise to his decision:

I did not fire [her] for the driveway. As I told her I fired her for the noncooperation when I went down to talk about the driveway. If I was going to fire her I wouldn’t have gone down to speak with her. I got no cooperation.... Other than that I think both of us pretty much agree on the facts and how it happened ....

The “noncooperation” to which Mr. Wet-tach alluded consisted of Ms. McCarty’s telling him “four times to speak to another driver with whom [Ms. McCarty] alleged she had ‘almost’ had a head-on collision.” Ms. McCarty “would not really admit that she should not have pulled in there. She firmly believed that she should have.”

A majority of the Unemployment Appeals Commission concluded that Ms. McCarty was guilty of “misconduct” disqualifying her for unemployment compensation benefits under section 443.036(29), Florida Statutes (2002), but we share the views Chairman Alan Orantes Forst cogently expressed in dissent.

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

Section 443.036(29), Florida Statutes (2002). “In defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee.” Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000).

Even if Ms. McCarty’s deportment justified her discharge, “ ‘[w]hether an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria set out in the unemployment compensation statute are separate issues. See Cooks v. Unemployment Appeals Comm’n, 670 So.2d 178, 180 (Fla. 4th DCA 1996); Livingston v. Tucker Constr. & Eng., Inc., 656 So.2d 499, 500 (Fla. 2d DCA 1995); Hummer v. Unemployment Appeals Comm’n, 573 So.2d 135, 137 (Fla. 5th DCA 1991).’ Lusby v. Unemplmt. App. Comm’n, 697 So.2d 567, 568 (Fla. 1st DCA 1997). A single, isolated act of negligence does not constitute disqualifying misconduct. See, e.g., Cooks, 670 So.2d at 180; Johnson v. Unemplmt. App. Comm’n, 513 So.2d 1098, 1099 (Fla. 3d DCA 1987). ‘While a violation of an employer’s policy[ ] may constitute misconduct, ‘[r]epeated violations of explicit policies, after several warnings, are usually required.’ Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001).’ Cooksey-James v. Unemplmt. App. Comm’n, 869 So.2d 1209 (Fla. 2d DCA 2004).” Ash v. Unemplmt. App. Comm’n, 872 So.2d 400, 402 (Fla. 1st DCA 2004).

Ms. McCarty’s discharge resulted from a single, isolated incident, and did not amount to disqualifying misconduct. See Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031, 1032 (Fla. 2d DCA 1998) (holding claimant’s actions did not disqualify her from receiving unemployment compensation benefits, where she had been a good employee for three years, but failed to follow a new policy regarding garbage can liners, which led to a loud argument with her supervisor when he confronted her, and ended in claimant’s discharge); see also Cullen v. Neighborly Senior Servs., Inc., 775 So.2d 392, 393-94 (Fla. 2d DCA 2000) (holding that an argument in a private office during which the claimant raised his voice and accused the supervisor of not being truthful was an isolated incident that did not preclude unemployment compensation benefits).

While an isolated incident can be disqualifying, if sufficiently egregious, the single-incident cases cited by the Commission involve unexcused, unequivocal, and deliberate disobedience. The present case is devoid of any evidence that Ms. McCarty deliberately or intentionally acted against her employer’s interests, even though a policy was violated. See Finish Line Feed, Inc. v. Acosta, 748 So.2d 1089, 1090 (Fla. 4th DCA 2000) (“[P]roof of the claimant’s violation of the employer’s known policy did not rise to the level of disqualifying misconduct connected with work. The employer cites ... cases in which a single act of misconduct was found as disqualifying. A common thread running through all of the cited cases is a finding, supported by competent substantial evidence, that the claimant acted in deliberate and intentional disobedience (in some instances, in flagrant disregard) of a supervisor’s order.”). While it was disputed whether safety really required Ms. McCarty to use the forbidden driveway, the evidence that Ms. McCarty “firmly believed that she should have” done it — in her employer’s as well as her own interest — was clear and uncontroverted, and expressing these views to Mr. Wettach after the fact was not disqualifying misconduct.

Reversed and remanded.

LEWIS, J., concurs; ERVIN, J., dissents.

ERVIN, J.,

dissenting.

Although not clearly stated by the appeals referee, the finding that Patricia McCarty’s “deviations from her route, without asking permission, evince an intentional and willful or wanton disregard of the employer’s interests,” is, in my judgment, a tacit finding of insubordination, on evidence showing that claimant on two separate occasions willfully and intentionally refused to follow her employer’s express directions to operate her tram on a driveway in front of the employment headquarters other than on the center driveway. As such, I consider the finding supported by competent, substantial evidence.

After first being told by the dispatcher of the company’s policy to avoid using the driveway in question because of the management’s concern for the safety of its customers, Ms. McCarty was seen three days later again entering the center drive, and, when confronted by her employer asking why she had disregarded established policy, she became defensive and argumentative, resulting in her then being relieved from her duties. When she returned to work the following day, she met with her employer, James Wettach, and her attitude had not improved. Wettach described the meeting in the following terms: “[W]e met the next day[;] the conversation ... did not go much better and she would not really admit that she should not have pulled in there. She firmly believed that she should have. It’s my final call she shouldn’t have[,] so I dismissed her at that time at our meeting.”

Obviously, the claimant’s willful refusal to comply with the employer’s policy cannot be viewed as “[a] single, isolated act of negligence.” Ante at 435. Moreover, a single act of insubordination can establish misconduct. See Pascarelli v. Unemployment Apps. Comm’n, 664 So.2d 1089 (Fla. 5th DCA 1995). Indeed, an employee’s noncompliance with an employer’s known policy on only one occasion has been held to constitute misconduct. In Ford v. Southeast Atlantic Corp., 588 So.2d 1039 (Fla. 1st DCA 1991), this court affirmed a finding of misconduct on evidence showing that an employee was terminated because of his single act of failing a drug test in violation of his employer’s policy that no employee be present at work with drugs in his or her system. In answering his argument that he could not be disqualified from benefits because of only one infraction, we stated:

[W]e reject appellant’s argument that repeated instances of misconduct were necessary before he could be found guilty of misconduct, because repeated acts in violation of company policy are not necessary to constitute misconduct within the meaning of Chapter 443, Florida Statutes. See, e.g., Clay County Sheriff’s Office v. Loos, 570 So.2d 394 (Fla. 1st DCA 1990) (employee who attended radar training course in direct disobedience of superior’s denial of his request was guilty of misconduct); National Ins. Servs., Inc. v. Unemployment Appeals Comm’n, 495 So.2d 244 (Fla. 2d DCA 1986) (employees who refused to perform requirement that they clean the coffee area acted unreasonably and were guilty of misconduct); Sears, Roebuck & Co. v. Unemployment Appeals Comm’n, 463 So.2d 465 (Fla. 2d DCA 1985) (employee who admitted kissing minor female employee on the cheek during working hours in violation of company policy was guilty of misconduct); Rosa v. Jefferson’s Stores, Inc., 421 So.2d 818 (Fla. 4th DCA 1982) (employee who allowed her son to use her employee discount card against company policy was guilty of misconduct). Moreover, although there is case law which stands for the proposition that a single negligent act cannot support a finding of misconduct, and that a single act of bad judgment by the employee does not constitute bad faith, this is not a case of negligence or bad judgment, but rather a direct violation of company policy.

Id. at 1041 (footnotes omitted).

Nor can I agree with the majority’s characterization that the “present case is devoid of any evidence that Ms. McCarty deliberately or intentionally acted against her employer’s interests, even though a policy was violated.” Ante at 435. Insubordination and a refusal to comply with a legitimate work order constitutes misconduct, disqualifying a claimant from benefits. See Fort Myers Pump & Supply, Inc. v. Fla. Dep’t of Labor & Employment Sec., 373 So.2d 429 (Fla. 2d DCA 1979). It is well settled that the appeals referee is the finder of fact in an unemployment claims procedure, and that the referee’s findings must be upheld if supported by competent, substantial evidence. See Ford, 588 So.2d at 1040. Under the circumstances, I consider that we have no reasonable alternative other than to affirm.

      . At the time of her discharge on July 3, 2002, Ms. McCarty had worked for St. Augustine Trains without interruption for more than three years, and off and on since February of 1989.

      . Mr. Wettach clearly testified that merely entering the driveway — in contradistinction to refusing to concede that the driveway should not have been entered — was not the rationale for the termination, but the appeals referee overlooked this testimony in finding that:
      The claimant's deviations from her route, without asking permission, evince an intentional and willful or wanton disregard of the employer's interests. Accordingly, the claimant was discharged for misconduct connected with the work as defined in the unemployment compensation law and she should remain disqualified from receipt of benefits.
      Mr. Wettach's testimony that "[i]t's my final call she shouldn’t have [pulled into the driveway] and we weren't getting anywhere so I dismissed her at that time at our meeting” does not support the referee's finding that "deviations from her route, without asking permission” occasioned the firing.

      . Chairman Forst concluded that "the employer has failed to demonstrate that the claimant's actions constitute disqualifying misconduct connected with work.” Chairman Forst summarized the operative facts, as follows:
      The claimant testified, without rebuttal, that she was using the center driveway during the incidents at issue in order to avoid an accident. As such, her actions were taken with the intent of furthering the employer’s interests. Moreover, the employer's president testified that he did not terminate the claimant because of these [ ] incidents, but because of her being uncooperative when he questioned her about the [ ] incident. However, the record indicates that the claimant did inform the employer’s president that she used the center driveway to avoid a head-on collision and repeatedly implored the president to speak with the other bus driver. As such, the record does not support a conclusion that the claimant was insubordinate. Additionally, the claimant had worked for the employer, on and off, for approximately seven years and there is no indication in the referee's decision that the claimant had been previously disciplined.

      . Mr. Wettach specifically testified at the hearing that there was nothing else in Ms. McCarty’s employee file that contributed to her discharge.


text:
    Dean STOLZER, Appellant, v. MAGIC TILT TRAILER, INC. and United Self Insured Services, Appellees.
    No. 1D03-2747.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    Rehearing Denied July 30, 2004.
    William H. McRnight, Tampa, for Appellant.
    Elizabeth P. Lynch and David K. Beach of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appel-lees.
   PER CURIAM.

Dean Stolzer, claimant below, appeals a final order of the Judge of Compensation Claims determining that section 440.34(3), Florida Statutes (2002) retroactively applied to the petition for permanent total disability benefits filed as a result of his compensable motor vehicle accident on April 11, 2000, and therefore an award of attorney’s fees was precluded. We reverse.

The parties agree that this amendment to the attorney’s fee statute, which allows the employer/carrier 30 days rather than 14 days within which to provide benefits before being responsible for payment of attorney’s fees, is a substantive change to the statute. Accordingly, the established precedent from the Florida Supreme Court and this court is clear that the amendment cannot be retroactively applied. Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960); Phillips v. City of West Palm Beach, 70 So.2d 345, 346 (Fla.1953); Vilches v. City of Dunedin, 738 So.2d 990, 991 (Fla. 1st DCA 1999); Baptist Manor Nursing Home v. Madison, 658 So.2d 1228, 1230 (Fla. 1st DCA 1995); City of Crestview v. Howard, 657 So.2d 73, 74 (Fla. 1st DCA 1995); Kraft Dairy Group v. Sorge, 634 So.2d 720, 721 (Fla. 1st DCA 1994); Mueller v. Searcy, 418 So.2d. 397, 399 (Fla. 1st DCA 1982); Ship Shape v. Taylor, 397 So.2d 1199, 1201 (Fla. 1st DCA 1981); see also Ace Disposal v. Holley, 668 So.2d 645, 646 (Fla. 1st DCA 1996).

REVERSED.

KAHN, WEBSTER and VAN NORTWICK, JJ„ concur.

      . That statute provides in pertinent part:
      Regardless of the date benefits were initially requested, attorney's fees shall not attach under this subsection until 30 days after the carrier or employer, if self-insured, receives the petition.


text:
    Martin DRYMON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4053.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Martin Drymon, pro se, petitioner.
    Rosa Carson, Acting General Counsel, and Judy Bone, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks a writ of certiorari to review an order from the circuit court which denied his petition for writ of mandamus. We grant the petition for writ of certiorari and direct the circuit court to issue the writ of mandamus.

On December 11, 1995, petitioner was sentenced to 15 years for lewd or lascivious act in case # 87-2759. After pleading nolo contendere, petitioner was also sentenced as a habitual offender to a concurrent term of 20 years, followed by 2 years of probation for sexual battery in case # 94-3290. Petitioner subsequently filed a motion to withdraw his plea in case # 94-3290, contending that his counsel misad-vised him that he qualified as a habitual offender. The trial court ultimately determined that petitioner did not qualify as a habitual offender. Therefore, on November 20, 1997, the court resentenced petitioner to a split sentence of 150 months in prison followed by 30 months probation, to be served consecutively with case #87-2759. The trial court ordered that petitioner be. allowed credit for all time served on this count prior to resentencing.

The Department of Corrections recalculated petitioner’s release date. Because the sentences were now consecutive, the Department awarded basic and incentive gain time in case # 87-2759, which was earned from the December 11, 1995, sentencing date, to arrive at an ending sentence date of February 28, 2001. After resentencing in case # 94-3290, the Department only awarded petitioner incentive gain-time starting on February 28, 2001, when the consecutive sentence began. The Department applied 710 days as credit for prison time served in case # 7b 94-3290 between the date of the original sentence and the date of resentencing but did not include any incentive gain time petitioner earned while the sentences were concurrent.

After exhausting his administrative remedies, petitioner filed a petition for writ of mandamus in the circuit court. He argued that the Department’s recalculation of his release date effectively forfeited all his gain time credits awarded from December 11, 1995, to November 20, 1997, in case # 94-3290. In response, respondent contended that petitioner had received benefit of the gain time earned during the serving of the concurrent sentences because the sentence in case # 87-2759 terminated early.

The circuit court denied the petition for writ of mandamus. The court found that the Department had properly applied the amount of jail credit, previous prison time served, and gain time to the sentences imposed in the two cases. The court stated that petitioner received the collateral benefit of the incentive gain time earned when the sentences were concurrent by virtue of an earlier expiration date of the sentence in case # 87-2759.

The circuit court departed from the essential requirements of the law in denying the petition for writ of mandamus. See Sheley v. Florida Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997). In its order denying the petition, the circuit court states that petitioner was not eligible to receive an additional award of incentive gain time for a period when he was not serving the sentence imposed in case # 94-3290. However, petitioner did serve 710 days under the original concurrent sentences and earned 412 days of gain time on both sentences during that period. Upon resentencing, the trial court specifically awarded the 710 days of credit for time served. As the trial court awarded petitioner 710 days credit for time served in prison prior to resentencing, the credit should include any unforfeited gain time accrued prior to resentencing. Cf. Davidson v. State, 780 So.2d 984, 985 (Fla. 1st DCA 2001) (stating that defendants “who have been resentenced through no fault of their own are entitled upon resentencing to credit for all actual time served and gain time earned during their initial prison term”); Jones v. State, 633 So.2d 482 (Fla. 1st DCA 1994) (stating that, where a defendant is resentenced following violation of probation, credit for time served does not include forfeited gain time); see also Tillman v. State, 693 So.2d 626 (Fla. 2d DCA 1997); § 948.06(6), Fla. Stat. (1997). Respondent has not shown that the gain time credit was forfeited for any reason. Therefore, petitioner is entitled to the 412 days of gain time earned between December 11, 1995, and November 20, 1997, in case # 94-3290.

This case is similar to the facts in Walker v. State, 619 So.2d 518 (Fla. 1st DCA 1993). Walker received concurrent terms of imprisonment for two counts of lewd and' lascivious acts. After successfully moving to correct an illegal sentence, Walker was resentenced to consecutive terms of incarceration. Id. at 518. The written judgment reflected credit for jail time and prison time already served but did not mention gain time. Walker then filed a direct appeal from his resentence seeking credit for gain time accumulated during his concurrent terms of incarceration. Id. at 519. This Court determined that the trial court had no authority to rule on the issue as it was a function of the Department of Correction. Id. In dicta, however, this Court stated that “Walker should be given credit for gain time he had earned up to the resentencing herein.” . Id.

Accordingly, we grant the petition for writ of certiorari and quash the order denying the petition for writ of mandamus. The circuit court is directed to enter an order compelling respondent to credit petitioner in case # 94-3290 with 412 days of gain time earned between December 11, 1995, and November 20,1997.

PETITION GRANTED.

WOLF, C.J., KAHN and LEWIS, JJ., concur.