author: LEVY, Judge. COPE, J.

text:
    ACT REALTY, CO., INC., Appellant, v. ROTEMI REALTY, INC., et al., Appellees.
    No. 3D02-1707.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.
    Rehearing and Rehearing En Banc Denied Jan. 16, 2004.

      Craig J. Troeino, Miami, for appellant.
    Sheldon R. Rosenthal, Miami, for appel-lees.
    Melinda L. McNichols, for the School Board of Miami-Dade County as amicus curiae.
    Before COPE and LEVY, JJ., and NESBITT, Senior Judge.
   LEVY, Judge.

“What are you going to believe ... .what you see with your own eyes or what I tell youV’

Although the parties in this case say that the contract and events that form the basis of this case are just part of a routine real estate transaction, anyone who reads the Record in this case, including the contract at issue and the transcript of the proceedings below, will quickly realize that what took place here is violative of, and repugnant to, the public policy of this State which, in the final analysis, seeks to promote and protect the integrity of gov-eminent and, ultimately, the best interests of the public at large.

Appellant, ACT Realty Co. (“ACT Realty”), appeals from a Final Judgment in favor of Appellees/Brokers Rotemi Realty, Inc. and Martin-Hidalgo & Associates Realty, Inc. (“the brokers”) in which the trial court concluded that the brokers were the procuring cause of a sale of property to the Miami-Dade County School Board (“School Board”), thereby entitling the brokers to a commission on the sale. We reverse and remand to the trial court with instructions.

ACT Realty owned a 10-acre parcel of property that was surrounded by a 50-acre parcel of property controlled by Michael Cease. On January 21, 1999, ACT Realty entered into a Commission Agreement with the brokers. In this agreement, ACT Realty agreed to pay a real estate brokerage commission to the brokers on the sale of the 10-acre parcel. According to the Commission Agreement, the agreement would be valid only if the brokers were “able to procure a sale with the school board of Dade County Florida as the buyer.” The Commission Agreement further provided that “[t]he amount of the commission will be equal to the amount of the sale proceeds due [to ACT Realty] at closing that is over $1,000,000.” On August 25, 1999, the School Board and ACT Realty entered into a contract for the purchase of the 10-acre parcel. The selling price for the 10 acres was $1,164,650.50. After the School Board and ACT Realty completed the sale, $164,650.50 remained in the trust account of the escrow agent. Although the commission to the brokers was to be $164,650.50 under the terms of the Commission Agreement, the Record reflects some arrangement wherein $20,000.00 was withdrawn from the escrow account for the purposes of paying a fee to a lobbyist hired to facilitate the sale. After the sale, a dispute arose as to whether the brokers were entitled to a commission on the sale of the property. Francis X. Santana, the escrow agent, initiated this interpleader action for the purpose of obtaining a judicial determination of which party was entitled to receive the remaining escrow funds in the amount of $144,650.50. ACT Realty and the brokers filed cross-complaints and a trial was conducted.

At trial, ACT Realty contended that the brokers were not entitled to a commission because they had little to do with the sale ultimately occurring. Specifically, ACT Realty argued that (1) the School Board decided to purchase the property before the brokers became involved in the transaction, (2) the brokers learned of the School Board’s interest in the property when they observed certain materials at the School Board’s office, and (3) the transaction was concluded as a result of the efforts of Cease and Melton. The trial court entered a Final Judgment in favor of the brokers, concluding that they were the procuring cause of the sale of the property. This appeal follows.

We conclude, on the authority of this Court’s well-reasoned opinion in City of Hialeah Gardens v. John L. Adams & Co., Inc., 599 So.2d 1322, 1323-24 (Fla. 3d DCA); rev. denied, 613 So.2d 5 (Fla.1992), that the Commission Agreement entered into between ACT Realty and the brokers is void and unenforceable because contracts which provide for contingency awards for securing public monies are against public policy. In City of Hialeah Gardens, we explained that contracts which provide for contingency awards for securing public monies, among other things, have been found to be void as against public policy because such agreements “suggest the use of sinister and corrupt means for the accomplishment of the ends desired.” City of Hialeah Gar dens, 599 So.2d at 1323 (quoting Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884, 885 (1946)). We went on to explain that there is a legitimate public policy concern that contingent fee arrangements promote the temptation to use improper means to gain success. See City of Hialeah Gardens, 599 So.2d at 1324.

The test applied by courts to determine whether a contract offends public policy is whether “the contract has a tendency toward such an evil.” City of Hialeah Gardens, 599 So.2d at 1323. Moreover,

the test to be applied is not what is actually done but that which may or might be done under the terms of the contract; it is the evil tendency of the contract and not its actual injury to the public that is determinative, as the law looks to its general tendency and closes the door to temptation by refusing to recognize such agreements.

City of Hialeah Gardens, 599 So.2d at 1323-24. As previously stated, the Commission Agreement provided that, assuming the brokers procured a sale of the property to the School Board, “[t]he amount of the commission will be equal to the amount of the sale proceeds due [to ACT Realty] at closing that is over $1,000,000.” In other words, ACT Realty sought a price of $1,000,000 for its property, with the brokers’ commission to be contingent on the degree of success the brokers had in obtaining a price higher than $1,000,000. Without examining what actually transpired following the signing of the Commission Agreement, this agreement undoubtedly created a situation in which there was a possibility for the use of “sinister and corrupt means” in order (1) to influence the School Board to purchase this particular property from ACT Realty, and (2) for the brokers to earn the highest possible commission by obtaining as high a price as possible, over and above $1,000,000, from the School Board. Thus, there is little doubt that we are required to conclude that the Commission Agreement involved in the instant case is void and unenforceable for public policy reasons. Moreover, given that the Commission Agreement is void for public policy reasons, we also conclude that the escrow agent should be directed to return the amount currently in escrow — $144,-650.50 — to the School Board. Clearly, these funds should not be remitted to ACT Realty because doing so would undoubtedly allow ACT Realty to benefit via a windfall from the illegal contract it entered into.

With regard to the contention that the real estate broker is entitled to a commission based on quantum meruit, we note that the decisions relied upon by the real estate broker did not involve contracts which were void for reasons of public policy and did not involve sales to governmental entities. Here, by contrast, there was a non-customary seller/broker arrangement targeted to a specific governmental buyer and calling for a commission of all funds received in excess of $1 million. The strong public policy which invalidates the parties’ contract also precludes recovery on the basis of quantum meruit As we stated with regard to a real estate commission in Bradley v. Banks, 260 So.2d 256, 257 (Fla. 3d DCA 1972): “The contract being void as a matter of public policy, the services rendered in connection therewith cannot be made the basis for a quantum meruit claim ...” See also Vista Designs, Inc. v. Silverman, 774 So.2d 884, 888 (Fla. 4th DCA 2001).

Accordingly, we remand to the trial court to direct the escrow agent to return the escrowed funds to the School Board.

Reversed and remanded.

NESBITT, Senior Judge, concurs.

COPE, J.

(dissenting).

The majority opinion is contrary to a controlling decision of the Florida Supreme Court, Robert & Co. v. Mortland, 160 Fla. 125, 33 So.2d 732 (1948).

In the present case the real estate brokers obtained a listing from the property owner under which they would earn a commission if they procured a sale of the 10-acre tract to the Miami-Dade County School District. The School District bought the property. The owner then refused to pay the agreed commission, contending that the brokers had not been the procuring cause of the sale. ■

There was a bench trial in which the trial court ruled that the brokers had earned their commission. There was no claim that the brokers ever lobbied the School Board members, obtained the contract by favors, or used corrupt means.

On this appeal, the majority has on its own motion concluded that a real estate commission agreement is void where the real estate commission is contingent on procuring a sale to a public body. The majority has decided to make a gift of the real estate commission to the School District.

The majority opinion never cites Robert & Co v. Mortland, nor does the majority explain how it avoids the rule stated in that case, which is:

We understand the general rule to be that an employment in which compensation is contingent on success in securing contracts from public officials is not illegal on its face. It must be shown that it was induced by favors or corrupt means. The record in this case is devoid of any showing that plaintiff had any personal or political influence or that the contract was induced by illegal influence.

Robert & Co., 33 So.2d at 734 (emphasis added; citations omitted).

I.

This case comes to us on appeal from a final judgment entered after a bench trial. It is therefore essential to review the evidence pertaining to the commission agreement.

Maria Martin-Hidalgo is a real estate broker (and architect) with her own company, Martin-Hidalgo Realty. She had a listing for an unrelated tract of 20 acres in the western part of Miami-Dade County. She made an appointment with Leon Valentine, director of the real estate department of the Miami-Dade County School District, to determine whether the School Board might have an interest in the 20 acres. This was the first time Ms. Martin-Hidalgo ever met Valentine.

In their meeting, Mr. Valentine explained that 20 acres is too small for a school site. Because of overcrowding in existing high schools, the School District was looking for a site for a new high school. However, the recommended minimum size for a high school was 40 acres. Thus, the School District would have no interest in the 20-acre site Ms. Martin-Hidalgo was representing.

While in the office Ms. Martin-Hidalgo looked at a wall map, which had certain tracts of land marked in yellow highlighter. One of these was a U-shaped site consisting of 50 acres. In response to her question, Mr. Valentine said that the School District was interested in the 50-acre site.

Ms. Martin-Hidalgo asked about the 10-acre tract in the center of the “U” — the hole in the doughnut or more correctly, the hole in half-a-doughnut. According to Ms. Martin-Hidalgo’s trial testimony, Mr. Valentine responded that it would be nice to have the 10 acres, but it was not essential because the 50-acre tract would give the School District sufficient land for a new high school.

Ms. Martin-Hidalgo decided to investigate the 10-acre tract further, in hopes that she could obtain a listing and persuade the School Board to acquire the 10 acres along with the 50. She called Jose Perez-Urrutia, of Rotemi Realty, a broker with twenty-seven years experience who was very knowledgeable about land in that area.

Mr. Perez-Urrutia was familiar with the 10-acre tract and the 50-acre tract. The 50-acre tract was controlled by Michael Cease. The 10-acre tract was owned by David Moliver through his company, Act Realty Co. Moliver had placed a “for sale” sign on the 10-acre tract. Mr. Perez-Urrutia knew Cease and Moliver.

Perez-Urrutia and Martin-Hidalgo met with Moliver. The brokers explained that the School District was considering the acquisition of Cease’s 50 acres. They offered to represent Moliver in an effort to convince the School District to buy the 10 acres along with Cease’s 50 acres. This would give the School District a rectangular tract which would be easier to work with than the U-shaped 50-acre tract.

Moliver agreed. He told the brokers that he wanted $1 million for his 10 acres. He proposed that the brokers keep anything over $1 million as their commission. The brokers testified that they agreed to this because they believed that the School District would wind up paying Cease over $100,000 per acre for his 50 acres. They reasoned that if the School District bought Moliver’s 10 acres in addition, it would be at the same price. They thus concluded that they had reasonable prospects for earning a commission under the arrangement that Moliver proposed.

Moliver then personally typed the Commission Agreement which states:

Commission Agreement
This agreement is between ACT Realty (owner) and Martin-Hidalgo & Associates and Rotemi Realty (brokers).
The owner agrees to pay a real estate brokerage commission to the brokers on the sale of the property described as: Tract 3, Miami Everglades Land Co., section 29, township 54 south, range 30 east, PB 2, Pg 3 of the public records of Dade County.
This commission agreement is only valid if the brokers are able to procure a sale with the school board of Dade County Florida as the buyer.
The amount of the commission will be equal to the amount of the sales proceeds due the owner at closing that is over $1,000,000.
This commission agreement is valid for a period of ninety days from the date of execution below. If there is no signed contract between ACT Realty and the school board of Dade County after ninety days, this agreement becomes null and void.

/s/-

ACT Realty

/s/_

Martin-Hidalgo & Ass.

/s/-

Rotemi Realty

R. 131. It was agreed that the listing price would be $1.2 million.

Mr. Moliver next typed a letter authorizing the brokers to represent Act Realty on this proposed sale and faxed it immediately to the School District.

The following month, Moliver entered into the identical nonexclusive arrangement with Perez-Urrutia, to sell the 10 acres to Lennar Homes. Once again, the commission to be paid to the broker was the excess over $1 million in the event of a sale to Lennar.

Soon after this, Leon Valentine left the School Board staff. The brokers pursued the matter with other staff members.

In June 1999, Kathryn Wilbur wrote to Ms. Martin-Hidalgo to offer $800,000 for the 10 acres. Ms. Wilbur was at that time executive director of Governmental Affairs and Land Use Policy and Acquisition for the School District. Moliver made a counteroffer. According to the brokers’ testimony, Ms. Martin-Hidalgo’s responsibility was to communicate with the School District staff, while Mr. Perez-Urrutia’s responsibility was to coordinate with Moliver and Cease. By Moliver’s account, he and Cease became personally involved in the negotiations.

Eventually the School District agreed to buy both tracts: the 50-acre tract from Cease and the 10-acre tract from Act Realty. The School District paid the same price per acre for all of the land. The price for the 10 acres was $1,164,650.

The School Board approved the transaction on a 6-3 vote, which was the minimum vote necessary. After this, but before the closing, the brokers were told that Cease had retained a lobbyist, Dusty Melton, who had lobbied the School Board members in connection with this transaction.

Cease requested that Moliver pay $20,000 towards Melton’s fee, reasoning that Melton’s efforts had resulted in a favorable vote by the School Board members for the entire transaction. The brokers testified that this was the first time they were aware that a lobbyist was involved in this transaction. Moliver testified similarly, although Cease stated that Moliver had been aware of Melton’s involvement at an earlier stage.

Under Moliver’s agreement with the brokers, Moliver’s company (Act Realty) was to receive $1 million net at closing. This meant that a $20,000 lobbyist expense would have to be treated as an expense of the sale, and would not come out of Act’s $1 million net. The $20,000 amount would come out of the funds which otherwise would have gone to the brokers.

The brokers claimed a commission of $144,650. Moliver refused to pay it. He reasoned that the lobbyist, not the real estate brokers, had procured the sale. The disputed commission amount was es-crowed at closing.

The escrow agent filed an interpleader action for the $144,650. Act Realty and the brokers each made claims for the money, and the trial court conducted a bench trial. Based on the evidence presented and the wording of the Commission Agreement, the trial court concluded that the brokers were entitled to them commission. The owner (Act Realty) has appealed.

On its own motion, this court directed the parties to address whether the real estate Commission Agreement in this case is void as being against public policy, under dictum contained in City of Hialeah Gardens v. John L. Adams & Co., 599 So.2d 1322 (Fla. 3d DCA 1992). The court also directed the parties to address what disposition should be made of the escrow in the event that the Commission Agreement is found to be void.

II.

It should be obvious that it is permissible for a landowner to hire a real estate broker to sell the owner’s land, and to compensate the broker by a commission in the event the real estate broker procures a sale. It. makes no difference whether the buyer is a public agency or a private person. There is nothing inherently illegal about such an arrangement.

The Florida Supreme Court has said:

It is quite true that if the contract with a public body is secured as a favor in exchange for personal or political influence, it is contrary to public policy and cannot be enforced. There is not the slightest showing here that the contract in question was induced by favor or reward, nor is it shown that any corrupt influence was used or that anything more than competency and square dealing induced placing the contract.
Appellant relies on Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884 (1946), and similar cases, but we think these cases clearly support the rule announced in the previous paragraph. We understand the general rule to be that an employment in which compensation is contingent on success in securing contracts from public officials is not illegal on its face. It must be shown that it was induced by favors or corrupt means. 46 A.L.R. 196. Edwards v. Miami Transit Co., 150 Fla. 315, 7 So.2d 440 (1942). The record in this case is devoid of any showing that plaintiff had any personal or political influence or that the contract was induced by illegal influence.

Robert & Co., 33 So.2d at 734 (emphasis added).

When this case was pending in the trial court, no one alleged — much less proved— that there were any corrupt means involved in this land sale at all. The evidence showed that the brokers had no special influence with anyone. One of Mo-liver’s complaints was that he and Cease were more effective negotiators than the brokers.

The contract was negotiated by the brokers, Cease, and Moliver with the School District staff. The contract was then presented to the School Board itself for approval. The brokers had no contact with the School Board members whatsoever. The brokers did not even know that a lobbyist was involved at the School Board level until after the transaction had already been approved. And the lobbyist had been hired by the neighboring landowner — Cease—not Moliver, and not the brokers.

Under the controlling legal standard, a contract of this type can be set aside in Florida only if there is proof of improper favors or corrupt means. There has been no such proof in the trial court nor any such proof in this court. The fact that this transaction was criticized in the press is no substitute for proof in court. The majority’s citation of a musical — a work of fiction — and footnote reference to “suspicious circumstances,” majority opinion at-n. 1, are ironic when measured against the legal test. “Suspicious circumstances” is no substitute for proof of impermissible favors or corrupt means.

III.

The majority opinion relies primarily on dictum from City of Hialeah Gardens v. John L. Adams & Co., Inc., 599 So.2d 1322 (Fla. 3d DCA 1992), but that case is of no assistance here. To begin with, a Third District case cannot overrule a controlling decision of the Florida Supreme Court. The decision in Robert & Co., remains good law and has not been receded from by the Florida Supreme Court.

The City of Hialeah Gardens case involved a lobbying contract, not real estate commission agreement. In City of Hialeah Gardens, the City hired a lobbyist to procure an appropriation for the public roads. The lobbyist was to be paid a percentage of the appropriation obtained. However, there was never any appropriation and the contingency never occurred. Id. at 1325. The City of Hialeah Gardens’ discussion of contingency agreements is dictum. Furthermore, that case did not involve a commission agreement for sale of property or goods, so any discussion which could be construed as relating to sales commission agreements is likewise dictum.

The City of Hialeah Gardens case quoted extensively from the plurality opinion in Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884 (1946). In 1948, however, the Florida Supreme Court announced the Robert & Co., decision, which expressly explained and limited the Wechsler opinion. The limiting language was quoted at the outset of part II of this opinion.

In sum, the rule set forth in Robert & Co. is controlling and must be followed here.

IV.

The Florida rule announced in Robert & Co. is in harmony with the general rule followed in other jurisdictions. As summarized by the Williston treatise:

A person having something to sell has the right to sell it through an agent, and this right is an incident to his ownership. To declare that he may not employ an agent, upon commission, where the government is the prospective buyer, is to take away what is ordinarily one of the elements of the enjoyment of ownership — the unrestricted right to sell. Upon this line of reasoning, commission agreements for a sale to the government have been upheld and enforced in this state where the agreement did not actively require corruption in its performance. Treated as a matter distinct in its nature from agreements to procure legislation, an agreement to compensate an agent for his successful efforts in traffic with the government has been held binding, where unfairness in the dealings or an intention to resort to corruption did not actually appear from the facts.

7 Richard A. Lord, Williston on Contracts § 16:5, at 357-58 (4th ed.1997) (footnote omitted).

V.

Under the relevant legal standard, there is no basis for holding this commission agreement void.

On the merits, there is competent substantial evidence to support the trial court’s conclusion that the brokers earned their commission by procuring a sale.

The trial court judgment should be affirmed.

      . The above line, from the musical "Chicago", was uttered by a man, whose wife found him with two women, as he tried to explain away the rather suspicious circumstances that he found himself in.

      . The original amount in escrow was $164,650.50 prior to the $20,000 payment to the lobbyist. We leave the decision to the School Board to determine whether to seek remuneration for this "outstanding” $20,000. This is not to suggest that the lobbyist may not be entitled to be paid a fee for lawfully rendered services. Accordingly, if the School Board were to seek, and recover, remuneration for the $20,000.00 paid to the lobbyist out of the proceeds of the sale, in excess of one million dollars, received by the landowner, then further proceedings could determine which party might be financially responsible to pay those fees.

      . The prior year, Perez-Urrutia represented Cease when Cease attempted to buy Moliver's 10 acres. Cease had offered $850,000 and Moliver had countered at $950,000. The parties never reached agreement, but through that negotiation Mr. Perez-Urrutia knew Mo-liver and Cease.

      . The parties subsequently extended the time period of the Commission Agreement.

      . The letter of authorization stated:
      ACT Realty ("Owner") authorizes Martin-Hidalgo & Associates and Rotemi Realty ("Brokers”) to represent their interest in Tract 3, Section 29 with the specific client known as the Miami-Dade County School Board.
      Purchase Price: $1,200,000
      Mitigation on approximately 8 acres to be
      paid by Buyer
      Existing Zoning: RUI-M(b)
      /s/-
      Act Realty
      David A. Moliver, President /s/ —:-
      Martin-Hidalgo & Associates Realty Maria A. Martin-Hidalgo, Broker
      /s/_
      Rotemi Realty
      Jose M. Perez-Urrutia, Broker

      . This letter agreement stated:
      Pursuant to my conversation with David, I have presented your property to the same company that Mr. Cease has offered the adjacent property to. Should a sale be consummated, then my commission would be the same as with my other listing agreement with you, except that I am the sole realtor on this Buyer.
      This Buyer has shown great interest, and I am confident that an offer is going to materialize.
      Please acknowledge your agreement below so that I can formally present the property to this Buyer.
      The potential Buyer referred to above is Lennar Homes.
      The commission to be paid is that amount that is over $1,000,000 net proceeds on the closing statement to the seller.
      JOSE PEREZ-URRUTIA Agreed:
      ACT REALTY
      By: /s/-
      President

      . Under School Board policy, there must be appraisals of land that is being acquired. The School District paid above the appraised value, but the record does not reveal the magnitude of the excess.

      . Cease testified that he retained Melton in 1998 to assist him with regard to the 50 acres. Moliver and his 10 acres were not involved at that time.

      .Purchase price of $1,164,650 minus $1,000,000 to Act Realty minus $20,000 to lobbyist = $144,650.

      . As relates to the lobbyist, no one has suggested that there was any prohibition on retaining a lobbyist in connection with this transaction, nor has anyone suggested that there was any illegal conduct by the lobbyist. The lobbyist did not testify at trial and there is no evidence regarding the lobbyist's fee agreement — which was a fee agreement negotiated with Cease — not Moliver, and not the brokers.

      . The City of Hialeah Gardens opinion cites the decision in Markon v. Unicorp American Corp., 645 F.Supp. 62 (D.D.C.1986). 599 So.2d at 1324. The Markon case actually supports the allowing of a real estate commission in this case. In Markon, the agent was denied a commission on the renewal of a lease. Under the applicable federal regulation, only a licensed real estate agent could earn a commission, and Markon had no real estate license. 645 F.Supp. at 66. In the present case, the real estate brokers are licensed.


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    SHANDS TEACHING HOSPITAL AND CLINIC, INC., Appellant/Cross-Appellee, v. Gary JULIANA, II, a minor child, by and through his parents and natural guardians, Gary Juliana and Kimberly Juliana, and Gary Juliana and Kimberly Juliana, individually, Appellees/Cross-Appellants.
    No. 1D02-1530.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.

      Arthur J. England, Jr., Esquire and Elliot B. Kula, Esquire of Greenberg Trau-rig, P.A., Miami and John D. Jopling, Esquire and David M. Delaney, Esquire of Dell Graham, P.A., Gainesville, for Appellant/Cross-Appellee.
    Christopher Jayson, Esquire, Arthur B. Skafidas, Esquire and Barry Cohen, Esquire of Cohen, Jayson & Foster, P.A., Tampa, for Appellees/Cross-Appellants.
   BENTON, J.

Shands Teaching Hospital and Clinic, Inc. (Shands) asks us to reverse a final judgment (and antecedent partial summary judgment) holding it responsible for injuries that a heart-lung machine operator’s conceded negligence caused Gary Juliana, II, (Gary) during open-heart surgery. On cross-appeal, Gary’s parents, individually and on Gary’s behalf, argue that the trial court erred in denying their motion for leave to amend their complaint to add a claim for punitive damages; in refusing to grant leave to amend two counts without a showing of compliance with presuit requirements; and in allowing certain testimony on future economic damages at the trial on damages. We affirm in all respects.

When he was two months old, Gary was rushed to Shands on January 30, 1996. A pediatrician in Ocala had detected both a heart murmur and respiratory distress. At Shands, Gary’s parents signed a “Shands Hospital Certification and Authorization” form (admission form) consenting to “such diagnostic procedures, hospital care, [and] medical treatment ... which in the judgment of my physician may be considered necessary or advisable while a patient at Shands” and agreeing to pay for such services at rates “listed in the current Billing Charge Manuals which are available for inspection upon request and incorporated herein by reference.” The form excluded the services of “all physicians, residents and students who provide services in Shands,” but not any other services, from the definition of “hospital care, [and] medical treatment,” by notifying the reader that “all physicians, residents and students who provide services in Shands ... are employees, agents or servants of the University of Florida, Board of Regents, and are not employees, agents or students of Shands....”

After Gary’s physicians decided that he needed open-heart surgery and his parents had given their consent by signing a form “Anesthesia and Operating Permit,” he underwent surgery on February 2, 1996. Among the operating room personnel was a perfusionist, although Gary’s parents did not know it at the time. Perfusion entails “the artificial passage of fluid, usually blood, through blood vessels (as by a pump during open-heart surgery).” J.E. Schmidt, M.D., 4 Att’ys Dictionary of Med. & Word Finder P-8445 (MB 2002). The perfusionist operates a heart-lung or cardiopulmonary bypass machine, which “consists of a pump with tubes which are used to suction blood from the patient’s body and return it to his arteries after the blood has been oxygenated.” Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331, 1333 (La.1978). Blood gas analyzers, one of which the perfusionist operates, make it possible to monitor blood gas and pH levels. Part of the perfusionist’s job is regulating the “proper oxygen and carbon dioxide content and the proper acid/base ratio in the blood by adjusting blood flow and pressure and by adding drugs and solutions to the circulation. Deviations from acceptable levels endanger the patient.” Robinson v. Magovem, 521 F.Supp. 842, 856 (D.C.Pa.1981).

Before and during surgery, the perfu-sionist evaluates intermittent blood samples using a blood gas analyzer in the operating room. Occasionally, in order to verify the calibration of the operating room’s blood gas analyzer, the perfusionist requests the “stat lab,” which at Shands is located approximately 150 feet from the operating room, to run a blood sample on the stat lab’s blood gas analyzer. Both the perfusionist and the “stat lab” receive data from the operating room’s blood gas analyzer. A stat lab technician is charged with the responsibility of advising the per-fusionist of any abnormalities in blood gas levels by calling him at a telephone in the operating room. If the perfusionist detects blood gas levels in an abnormal range or if the stat lab reports abnormal ranges to the perfusionist, the perfusionist is supposed to communicate the situation to the surgeon and to the anesthesiologist, to recheck the blood gas levels in the operating room, and to make necessary adjustments to bring the blood gas levels within normal ranges.

In Gary’s case, blood gas levels at 10:15 on the morning of his surgery, as recorded in the stat lab’s report, were abnormal, dangerous, and different from the (normal) blood gas levels the perfusionist recorded in the operating room’s report for the same time. The perfusionist neither notified the surgical team of problematic blood gas levels nor attempted to make any adjustments. Shands stipulated that Gary’s injuries resulted from the perfusionist’s negligence, stating: “Defendant Shands concedes, for purposes of trial and any future appellate review, both the negligence of [the] perfusionist ... and the causal relationship of that negligence to the injury complained of by the Plaintiffs.” The surgery successfully corrected Gary’s heart malformation, but, as a result of the perfusionist’s negligence, Gary suffered severe brain damage and now has cerebral palsy, among other things.

In the trial court, the Julianas moved for partial summary judgment, arguing that Shands was vicariously liable as a matter of law for the perfusionist’s negligence. The Julianas maintained that Shands had undertaken to provide perfusion services when it agreed to provide “hospital care, [and] medical treatment,” and that Shands had breached a nondelegable duty both because it had a contractual obligation it could not extinguish by subcontracting with Cardiovascular Perfusionists, Inc. (CVP), and because providing perfusion services is inherently dangerous. See generally Restatement (Second) of Torts § 416 (1965) (“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”).

Shands filed a cross-motion for summary judgment arguing that it was not responsible for the perfusionist’s negligence because neither the perfusionist nor his employer, CVP, was Shands’s agent in fact or reasonably appeared to have been, and contending no dispute of material fact existed on either question.

In a supplemental motion for summary judgment, the Julianas argued that Shands was under a nondelegable duty, not only for the reasons stated in its initial motion, but also because it was acting pursuant to a state license under regulations that required it to furnish perfusionists’ services as part of offering open-heart surgery. See generally NME Props., Inc. v. Rudich, 840 So.2d 309, 313 (Fla. 4th DCA 2003) (holding nursing home owner hable for independent contractor’s negligence); Restatement (Second) of Torts § 424 (1965) (“One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”).

At the hearing on these motions, the Julianas argued that Shands’s cross-motion should be denied because material factual questions pertinent to the agency issues remained in dispute. At the same time, the Julianas repeatedly contended below, as they contend here, that Shands is liable for the perfusionist’s negligence on all three of the theories of nondelegable duty that they have advanced. We find it necessary to discuss only the first of these theories.

The trial court (the Hon. Nath C. Doughtie) granted partial summary judgment in favor of the Julianas, and denied Shands’s cross-motion for summary judgment, holding:

It might be said that the perfusionist has been hired by the hospital to provide services in the same way that an operating room nurse provides services.
When a patient enters a hospital, the patient agrees to pay the hospital for certain unspecified services. Although the contract between the patient and the hospital may not completely spell out the services, it is generally understood that nursing services will be provided. If the hospital opts to sub-contract out nursing services to a private nursing firm, that does not relieve the hospital of its obligations under its contract with the patient to provide nursing services. If a nurse commits negligence, the hospital will be liable since in effect it agreed- to provide competent nursing services to the patient.... The patient did not employ Cardiovascular Perfu-sionists, Inc. It was Shands that did. Shands was billed by its sub-contractor at the rate of $550.00 for the perfusionist and $250.00 for a “cell saver”. Shands then billed the patient $2,500.00 for the open heart pump equipment and operator, plus $953.00 for the “cell saver”.
Shands is clearly liable as a matter of law for the negligence of its sub-contractor.

In the order denying motion for rehearing, the trial court (the Hon. Chester B. Chance) ruled:

In .the case before the Court the duty of the hospital arose from contract. The duty could not be delegated since the service was contracted for. The hospital provided the services of the perfusionist. If the hospital had wished for the patient to obtain his own perfusionist it might have been possible to advise the patient that this was his responsibility. This certainly was not done. The fact that the hospital chose to retain the services of the perfusionist as an independent contractor rather than an employee is immaterial in the relationship between the hospital and .the patient.
... Certainly a hospital should have the ability to refer a patient to an independent contractor for services. That was not done in this case. The perfu-sionist was legally a subcontractor to the hospital and was not retained in any way by the Plaintiff. The duty [to] the Plaintiff could not be unilaterally delegated by the hospital without some very specific notice to the Plaintiff.
... Perfusionists are not physicians, and the apparent agency law need not be considered any more than [in] the case of nurses. It would be contrary to public policy for a hospital to try to avoid liability for nurse negligence by retaining them as “independent contractors” without clearly advising patients of this upon admission.

Liability thus established, only the amount of damages was tried to the jury. After various offsets, judgment was entered against Shands on the basis of the verdict in the amount of $9,138,848.03.

On appeal, Shands argues that the Julia-nas were not entitled to recover on any theory of nondelegable duty and that the case should be remanded for trial on the agency theories that the Julianas conceded below depended on facts in dispute. The rule of decision is:

Summary judgment should be granted only where it is clear that no issues of material fact exist. Craig v. Gate Maritime Properties, 631 So.2d 375, 377 (Fla. 1st DCA 1994); Hancock v. Department of Corrections, 585 So.2d 1068 (Fla. 1st DCA 1991), review denied, 598 So.2d 75 (Fla.1992). The movant’s proof must be conclusive; all reasonable inferences which may be drawn in favor of the opposing party must be overcome. Landers v. Milton, 370 So.2d 368, 370 (Fla.1979); Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Craig, 631 So.2d at 377. “[I]f the record raises even the slightest doubt that an issue [of material fact] might exist, summary judgment is improper.” Craig, 631 So.2d at 377, citing, Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991). Particular eaution should be employed when granting summary judgment in negligence actions. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); Johnson v. Deep South Crane Rentals, Inc., 634 So.2d 1113, 1113-14 (Fla. 1st DCA 1994).

Lindsey v. Bill Arflin Bonding Agency Inc., 645 So.2d 565, 566-67 (Fla. 1st DCA 1994). Accord Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Applying these precepts, we approve the trial court’s analysis regarding nondelegable duty and affirm, because any factual disputes on other theories are immaterial.

Shands argues that it can have no vicarious liability for the perfusionist’s negligence if CVP is an independent contractor, and that it is entitled to prove at trial that CVP is an independent contractor. Although Shands’s arrangement with CVP is apparently not the norm, it is not clear what purpose a trial would serve. The parties agreed in effect that the summary judgment motions should be decided on the assumption that Shands obtains perfusionists’ services, not by employing perfusionists directly, but by contracting with CVP, which was organized for that purpose in 1991, and that CVP has agreed to and does supply perfusionists who provide perfusion services exclusively at Shands. No dispute of material fact exists under the theory of nondelegable duty relied on by the trial court.

When it rejected Shands’s contention that its arrangement with CVP insulated CVP from liability for the perfusionist’s negligence, the trial court did not grant summary judgment on an undeveloped record. Among other things, it considered the contract between Shands and CVP. Under this contract, Shands is responsible for providing perfusion equipment, including cardiopulmonary bypass machines and blood gas analyzers, for the perfusionists’ use in the operating room, as well as office space and supplies for the perfusionists’ administrative duties. The contract recites:

Both parties expressly intend that with regard to the provisions of this Agreement, said parties shall be independent contractors and no party hereto shall receive any other benefits besides those expressly provided for herein. Further, it is the express intent of the parties hereto that no agent, servant, contractor or employee of one party be deemed any agent, servant, contractor or employee of the other party.

But this recital is not determinative (either on the question whether perfusionists should be deemed Shands’s employees or) on the question of Shands’s liability to third parties for breach of its agreements with them. See Mills v. Krauss, 114 So.2d 817, 820 (Fla. 2d DCA 1959) (reversing summary judgment in favor of a general contractor on grounds that a general contractor may be liable for the negligence of a subcontractor in discharging contractual obligations to a third party, despite language in the contract between the general and the sub declaring the subcontractor an independent contractor).

The present case differs importantly from cases in which physicians, as opposed to nurses or technologists, have established independent contractor relationships with hospitals. The general rule is that a hospital is not liable for the negligent acts of a physician who is not its employee, but an independent contractor. See Pub. Health Trust of Dade County v. Valcin, 507 So.2d 596, 601 (Fla.1987) (“Generally, however, a hospital may not fairly be held liable for a plaintiffs entire damages solely based on the omissions of an independent contractor merely granted practicing privileges in the hospital.”). This general rule mirrors longstanding custom and usage: Patients normally contract separately for physicians’ services, but do not normally contract separately for the services of hospital-based nurses and technologists.

Unlike Shands’s disclaimer of liability for the negligence of the physicians, residents, and students in the employ of the University of Florida, nothing in the admission form or operating permit gave notice that the perfusionist was not discharging Shands’s duties under its contract with the Julianas. Shands schedules the perfu-sionists’ hours. It provides them with a tentative schedule of the week’s operations every Monday, and daily with a confirmed schedule of the following day’s operations. Perfusionists cannot work at Shands without the surgery department’s prior approval. They must first be credentialed in accordance with standards set out in Shands’s bylaws. For its own account, Shands billed the Julianas for the perfusionist’s services.

The possibility that CVP could be found to be an independent contractor (and the perfusionist its employee, not Shands’s) does not alter the fact that Shands breached the contractual undertaking it made to the Julianas. See Atchley v. First Union Bank of Fla., 576 So.2d 340, 344 (Fla. 5th DCA 1991) (reversing summary judgment in bank’s favor on grounds that the bank could be liable for a roofer’s negligence, despite the general rule that an employer is not liable for the negligence of an independent contractor, where the bank specifically, contractually undertook to repair the roof).

The pleadings, depositions, answers to interrogatories, admissions on file and affidavits reveal no dispute about the fact that the admission form the Julianas signed reflected a broad undertaking by Shands to provide “hospital care, [and] medical treatment,” in exchange for the Julianas’ agreement to pay for those services. Perfusion services plainly fall within the definition of “hospital care, [and] medical treatment.” Shands’s counsel acknowledged that “the patients have a contract with Shands.” Shands agreed to and did furnish Gary hospital services, including the services the perfusionist negligently provided to Gary.

Shands also argues that liability on the part of Gary’s surgeon cannot categorically be ruled out, and that entry of summary judgment holding Shands liable was improper for that reason. This argument ignores the fact that more than one person or entity may have to answer in damages for the same injury. A hospital and a surgeon may both be liable for a perfusionist’s negligence in certain circumstances. See Vargas v. Dulzaides, 520 So.2d 306, 308 (Fla. 3d DCA 1988). (Here CVP’s liability and that of the perfusionist has already been conceded.) At issue at this point in the present case, however, is Shands’s liability, not that of any other person or entity. On this record, Shands’s vicarious liability for the perfusionist’s negligence is clear.

Affirmed.

POLSTON, J., concurs.

WEBSTER, J., concurs in result only.

      . On the cross-appeal, our affirmance is without further discussion of the cross-appellants’ contentions.

      . By signing the admission form, the Julianas acknowledged that they had been advised that:
      [A]ll physicians, residents and students who provide services in Shands ... are employees, agents or servants of the University of Florida, Board of Regents, and are not employees, agents or students of Shands .... [and] that the law limits the liability for acts or omissions of employees, agents or servants of the State of Florida, including the Board of Regents, to $100,000 per claim and $200,000 per incident.
      The Billing Charge Manuals are not part of the record.

      . An essential member of an open-heart' surgical team, the perfusionist is a technician or technologist who works closely with surgeons and anesthesiologists. The Attorneys Medical Deskbook 3D indicates no requirement for higher education beyond training that "[v]ar-ies from 12-24 months in a perfusionist program.” 1 Dan J. Tennenhouse, Att’ys Med. Deskbook 3D § 6:13 (3d ed.1993). At Shands, the Chief Cardiovascular Perfusionist must now, according to Cardiovascular Perfusion: Policy and Procedure Manual (1994) (attached as an exhibit to the deposition given by Shands's Chief of the Division of Thoracic and Cardiovascular Surgery), be a "[graduate in cardiac perfusion from an accredited school,” including "[t]wo years of sciences and two years of cardiovascular perfusion study,” and “[sjhall have filed an application toward Board Certification by the American Board of Cardiovascular Perfusion.”

      . After a period of working under a colleague's supervision following being out of work altogether for more than a year, the perfusionist had recently resumed working without the supervision of another perfusionist. His time off work began when an aneurysm in one of his vertebral arteries burst, resulting in neurologic injury "as if he had had a stroke.”

      . Whether this argument was fully consonant with the Julianas' position on their own motions for summary judgment may be questioned, as Shands has done. In context, the Julianas' concession went to the question of independent contractor status. Their position boiled down to the contention that Shands had a nondelegable duty, even if CVP was an independent contractor, and the perfusionist was not deemed a hospital employee.

      . In its description of health professionals, the Attorneys Medical Deskbook 3D includes the following in its discussion of perfusionists:
      "SALARIED: Usually by acute care hospitals.” Tennenhouse, supra note 3, § 6:13.

      . Neither CVP nor the perfusionist was employed by or under contract to the surgeon, the anesthesiologist or any other person or entity that played a part in Gary's open-heart surgery, other than Shands.

      . Shands, rather than CVP, is solely responsible for quality control assessments and maintenance of the cardiopulmonary bypass machines and blood gas analyzers.

      . Even where a physician is an independent contractor, however, a hospital that "undertakes by [express or implied] contract to do for another a given thing” is not allowed to "escape [its] contractual liability [to the patient] by delegating performance under a contract to an independent contractor.” Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 57 n. 2, 59, 60 (Fla. 4th DCA 1982)(revers-ing summary judgment in favor of hospital at plaintiff's behest and remanding with directions that the jury be instructed on nondel-egable duty). See also Orlando Reg’l Med. Ctr. v. Chmielewski, 573 So.2d 876, 880 (Fla. 5th DCA 1990); Hippocrates Mertsaris v. 73rd Corp., 105 A.D.2d 67, 482 N.Y.S.2d 792, 801 (1984)("The evidence at trial established that ... the anesthesiologist, had an office within the hospital, had a 'practice' exclusively limited to hospital patients, would have the hospital bill patients for his services, ... [and] would be summoned to patients by a nurse when needed.... In circumstances like these, where the physician is not privately retained by the patient and his activities are controlled by the hospital, courts have held hospitals vicariously liable for the malpractice of the doctor notwithstanding any claim that he was an independent contractor.”).

      . When surgeons schedule operations requiring a perfusionist's services on nights or weekends, a Shands operating room or intensive care employee summons the perfusionist on call.

      . This contention rings hollow inasmuch as Shands has never alleged the slightest fault on the part of the surgeon, despite the requirements laid down by Fabre v. Marin, 623 So.2d 1182 (Fla.1993), and Nash v. Walls Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla.1996). The Julianas' claim against the surgeon was decided in the surgeon’s favor on summary judgment, which was not appealed.


author: RAMIREZ, J.

text:
    CITY OF NORTH MIAMI BEACH, etc., Appellant, v. H. Randolph REED, et al., Appellees.
    No. 3D02-3014.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Howard B. Lenard, Coral Gables, and Darcee S. Siegel, North Miami Beach; and Adorno & Yoss, and Jack R. Reiter, Miami, for appellant.
    John C. Lukács, Coral Gables; and Lauri Waldman Ross, Miami, for appellee.
    Before GERSTEN, SHEVIN, and RAMIREZ, JJ.
   RAMIREZ, J.

The City of North Miami Beach appeals the award of attorney’s fees to appellees H. Randolph Reed, Gina T. Reed, Leonard R. St. Germain, and Sandra St. Germain. We affirm the award of attorney’s fees, but reverse the application of the risk multiplier because we conclude that such a multiplier is not authorized in an inverse condemnation action.

The appellees are the owners of real property located on Northeast 172nd Street in the City of North Miami Beach. They brought an inverse condemnation proceeding because the City eliminated vehicular access to their properties when it constructed raised concrete curbs along the frontage of their properties. The trial court granted partial summary judgment in the property owners’ favor and declared that the City’s action constituted a taking. This decision was previously affirmed by this court. See City of North Miami Beach v. Reed, 749 So.2d 1275 (Fla. 3d DCA2000).

The jury awarded $20,700 to the Reeds and $22,950 to the St. Germaines, plus prejudgment interest and costs. Additionally, they recovered $23,726.52 in expert fees. The City has not challenged these awards, only the subsequent assessment of $96,520 in attorney’s fees. The trial court found that counsel for the homeowners had expended 241.30 hours at an hourly rate of $200 for a sum of $48,260, and found that the appropriate multiplier was 2.0 because the degree of success achieved by the homeowners’ attorney was unlikely at the time the case was initiated.

The Application of a Multiplier

The first issue raised in this appeal is whether the trial court properly utilized the 2.0 multiplier in this inverse condemnation case. To justify the multiplier, the property owners argue that there is no statute applicable to inverse condemnation proceedings which would limit the amount a trial judge may award a prevailing party. Chapter 73, Florida Statutes (1997), which governs eminent domain matters, contains two sections which discuss attorney’s fees. Section 73.091 sets forth the parameters within which to award attorney’s fees. It basically provides that “the petitioner,” which in eminent domain cases is the condemning authority, “shall pay attorney’s fees as provided in s. 73.092.” Section 73.092 provides the criteria to be used to determine the amount of the attorney’s fees award and contemplates that the condemning authority make a written offer by which the “benefits achieved” can be measured. The owners argue that these statutes do not apply because the City was not the petitioner, and no written offer was made because the City took the position that no taking had been effected.

The City, on the other hand, argues that we are bound by Schick v. Dep’t of Agric. and Consumer Servs., 599 So.2d 641, 644 (Fla.1992). In Schick, the Florida Supreme Court denied the application of a contingency risk multiplier and identified chapter 73 as the basis for an attorney’s fee award to a successful inverse condemnation plaintiff. It concluded that “where the legislature has set forth specific criteria for determining reasonable attorney’s fees to be awarded pursuant to a fee-authorizing statute, the trial judge is bound to use only the enumerated criteria.” Id. at 643. It thus held that “in determining the reasonableness of an attorney’s fee award, made pursuant to section 73.091 in an inverse condemnation action, a Rowe contingency risk multiplier should not be utilized.” See also Division of Admin. v. Ruslan, 497 So.2d 1348, 1349 (Fla. 4th DCA 1986)(aeknowledging that “[t]he award of attorneys’ fees in condemnation proceedings is governed by the provisions of sections 73.091-.092, Florida Statutes (1985), rather than Rowe.”).

The owners would have us disregard this clear supreme court precedent because the owners in Schick assumed without question that sections 73.091 and 73.092 applied. It would seem, however, that the parties and the supreme court assumed the applicability of these sections because it is the only logical approach.

The Florida Supreme Court in Schick referred to Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), in which the court had examined the use of contingency fee multipliers under three basic categories of attorney’s fees cases: 1) public policy enforcement eases; 2) tort and contract claims; and 3) family law, eminent domain, and estate and trust matters. It was only logical and natural to categorize inverse condemnation cases under the rubric of eminent domain, the third category. The Quanstrom court stated: “[ujnder ordinary circumstances, a contingency fee multiplier is not justified in this category, although the basic lodestar method of computing a reasonable attorney’s fee may be an appropriate starting point”. Id. at 835. An argument could be made that inverse condemnation cases should be treated differently than straight condemnation actions because entitlement to a fee is not assured in the former as it is in the latter. Although this argument persuaded two members of the Florida Supreme Court, the majority of the court thought otherwise.

While we agree that the provisions in chapter 73 were drafted with condemnation cases in mind, other decisions besides Schick have applied them to inverse condemnation actions. The Florida Supreme Court did not hesitate to apply chapter 73 in an inverse condemnation case with respect to appellate attorney’s fees. See Dep’t of Trans. v. Gefen, 636 So.2d 1345, 1347 (Fla.1994)(stating that “[t]he statute [section 73.131(2), as part of chapter 73 that deals with eminent domain cases] was obviously enacted in contemplation of condemnation actions brought by the State. In the interest of fairness, it has been construed to include successful inverse condemnation actions.”). See also State Road Dept. v. Lewis, 190 So.2d 598, 600 (Fla. 1st DCA 1966) (affirming the award of attorney’s fees because it would be absurd for the Department to be liable for fees if it instituted an eminent domain action, but escaped liability if it unlawfully appropriated a citizen’s property without instituting such an action).

Section 73.092(2) states:

(2) In assessing attorney’s fees incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for, the court shall consider:
(a) The novelty, difficulty, and importance of the questions involved.
(b) The skill employed by the attorney in conducting the cause.
(c) The amount of money involved.
(d) The responsibility incurred and fulfilled by the attorney.
(e) The attorney’s time and labor reasonably required adequately to represent the client in relation to the benefits resulting to the client.
(f) The fee, or rate of fee, customarily charged for legal services of a comparable or similar nature.
(g) Any attorney’s fee award made under subsection (1).

When section 73.092(2) applies, application of the Rowe risk multiplier is inappropriate to determine the attorney’s fee award because the statute sets forth the statutory factors to consider in an inverse condemnation action.

Even if chapter 73 did not govern, we would have concerns about the application of the multiplier because the trial court did not sufficiently articulate the criteria enumerated in rule 4-1.5 of the Rules Regulating the Florida Bar and Rowe in its determination of the reasonableness of the attorney’s fee award and did not set forth specific findings to support the application of the fee multiplier. In its final order awarding attorney’s fees, the trial court only addressed three of the factors to be considered: (1) the experience, skill and expertise of attorney John C. Lukács, attorney for the property owners; (2) the difficulty of the case in consideration of the City’s stern position that they were not liable for any damages whatsoever and of the liability and damage issues involved in the case; and (3) the considerable amount involved from the standpoint of the property owners, as well as the significant responsibility attorney Lukács undertook and fulfilled. The order does not mention other factors, such as the “novelty,” “complexity” and “difficulty” of the questions involved, and the “skill requisite to perform the legal service properly;” the “likelihood” that the lawyer’s employment would “preclude” that lawyer from other employment; the fee that is “customarily charged in the locality for similar legal services;” the “nature and length of the professional relationship with the client;” and whether the fee is “fixed or contingent.” See also Rowe, 472 So.2d at 1150.

Thus, we conclude that the application of the Rowe risk multiplier is inapplicable under these circumstances.

The Limitation on the Fee Award

The City has also challenged the amount awarded because it was not based on a percentage of the benefits achieved. The City argues that the benefits achieved percentage should be calculated as the difference between the ultimate recovery and a “zero” settlement offer, because it made no offer to settle.

In eminent domain proceedings, the condemning authority generally tenders a settlement offer because the condemning authority acknowledges that there has been a taking from the outset. In such cases, under section 73.092(l)(a), the condemning authority would preserve its statutory right to limit an attorney’s fee award. On the other hand, when an authority, like the City in this case, defends an inverse condemnation action, it undertakes the position that the City’s actions did not constitute a taking.

Section 73.092(1) provides the measure to set an award of fees “based solely on the benefits achieved for the client.” Section 73.092(l)(a) calculates that fee based on the difference between the final result and the condemning authority’s last written offer. The plain language of section 73.092(l)(a) thus establishes a written offer as a prerequisite to the application of section 73.092(1). See State Dep’t of Transp. v. Smithbilt Indus., Inc., 715 So.2d 963, 966 (Fla. 2d DCA 1998) (“The definition of ‘benefits’ in subsection (l)(a) unquestionably requires that the condemning authority make a written settlement offer.”). Section 73.092(1), however, does not provide a method to calculate a fee award when the condemning authority fails to make a written offer. We thus conclude that a written offer is mandated to award attorney’s fees based solely on the “benefits achieved” under section 73.092(1) and hold that a limitation on the fee award is inappropriate to inverse condemnation cases where the condemning authority makes no written offer.

In this inverse condemnation case, there is no written offer. Attorney’s fees must thus be awarded under the enumerated factors set forth in section 73.092(2), applicable to supplemental proceedings.

We therefore affirm the attorney’s fee award, reverse the multiplier-enhanced portion of the award, and remand the cause with directions to award attorney’s fees in the amount of $48,260.

Affirmed in part and reversed in part, and remanded.

      . Costs of the proceedings.—
      (1) The petitioner shall pay attorney's fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court, including, but not limited to, reasonable appraisal fees and, when business damages are compensa-ble, a reasonable accountant's fee, to be assessed by that court.

      . Specifically, section 73.092(1) provides, in pertinent part:
      Attorney's fees. — •
      (1) Except as otherwise provided in this section, the court, in eminent domain proceedings, shall award attorney's fees based solely on the benefits achieved for the client.
      (a) As used in this section, the term 'benefits’ means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.


author: PER CURIAM.

text:
    Xaviar WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2872.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.
    Rehearing Denied Jan. 12, 2004.
    Xaviar Walker, pro se, petitioner.
    Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Xaviar Walker seeks a belated appeal from the circuit court’s orders denying his motion to withdraw plea and motion to modify sentence. Because neither order apprised Walker that he had only thirty days within which to file an appeal, Walker asserts he is entitled to a belated appeal. We deny the petition.

Walker’s motion to withdraw plea was filed pursuant to Florida Rule of Criminal Procedure 3.170(i), and his motion to modify sentence was filed pursuant to rule 3.800. Unlike rule 3.850, neither rule 3.170(i) nor rule 3.800 required the circuit court to advise Walker of his appellate rights. See, e.g., Simmons v. State, 684 So.2d 860 (Fla. 5th DCA 1996)(holding that Simmons was not entitled to a belated appeal because an order denying a rule 3.800 motion does not have to advise a movant of his appellate rights). Accordingly, Walker is not entitled to a belated appeal.

DENIED.

KAHN, WEBSTER and POLSTON, JJ., concur.

      . Walker also contends that the letter which the circuit court treated as a motion to modify sentence should have been construed as a timely notice of appeal. The letter did not come close to complying with Florida Rules of Appellate Procedure 9.110(d) and 9.900(a), and therefore, we find no error in the circuit court’s treatment of the letter as a motion to modify sentence pursuant to rule 3.800.


author: THOMPSON, J.

text:
    Gary S. SELWAY, Appellant, v. STATE of Florida, Appellee.
    Rehearing Denied Jan. 23, 2004.
    No. 5D02-2506.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Gary S. Selway appeals an order denying his motion to correct sentence. We affirm.

In April 1994, Selway was convicted of aggravated battery and armed trespass in a structure. At sentencing, utilizing an Ohio sexual battery conviction as a predicate, the court classified and sentenced Selway as a habitual violent felony offender. On numerous occasions, Selway has filed 3.800 motions contending that he is entitled to relief because the Ohio sexual battery statute is not analogous to Florida’s sexual battery statute and should not have been used as a predicate for habitual-ization. These motions have been denied, and this court has affirmed the trial court’s orders denying relief. See, e.g., Selway v. State, 683 So.2d 502 (Fla. 5th DCA 1996); Selway v. State, 704 So.2d 539 (Fla. 5th DCA 1997); Selway v. State, 787 So.2d 874 (Fla. 5th DCA 2001); Selway v. State, 793 So.2d 972 (Fla. 5th DCA 2001).

In March 2001, Selway filed another motion to correct sentence. At the hearing, Selway cited Rager v. State, 720 So.2d 1134 (Fla. 5th DCA 1998), and argued that the Ohio and Florida sexual battery statutes were not analogous. Although the trial court believed that Selway’s issue had been properly determined and was barred by the doctrine of res judicata, it denied the motion based on its conclusion that the Ohio and Florida sexual battery statutes were analogous and that therefore the Ohio conviction was a proper predicate for habitualization.

On appeal, Selway argues that Rager holds that the Ohio and Florida sexual battery statutes are not analogous. We disagree. In Rager, while we stated that the fact-specific nature of Florida’s sexual battery statute prevented an analogy being drawn between Ohio’s code and any specific Florida subsection regarding felony degrees and different offense levels, we also stated that the two states’ general proscriptions against sexual conduct and sexual battery were analogous. Rager, 720 So.2d at 1136. Furthermore, this court noted:

Penetration is a necessary element of Ohio’s sexual battery statute; it is not a necessary element in Florida ... This difference would not preclude finding the Florida sexual battery statute analogous because the element of penetration is one of the alternatives in Florida’s sexual battery statutes.

Id. at n. 2 (emphasis added). Because we find that the Ohio and Florida sexual battery statutes are analogous under these circumstances, we affirm.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

      . § 2907.03 Oh. Stal.

      . § 794.011 Fla. Stat.


text:
    INTERNATIONAL PAPER COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D02-3947.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Rehearing Denied Jan. 21, 2004.
    John T. Sefton of Foley & Lardner, Jacksonville, for Appellant.
    Mitchell I. Horowitz and Tracy R. Gunn, Fowler, White, Boggs, Banker, P.A., for Amicus Curiae National Association of Office and Industrial Parks of Florida, Inc.
    Charles J. Crist, Jr., Attorney General and Charles Catanzaro, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Crescent Miami Center, LLC v. Dep’t of Revenue, 857 So.2d 904 (Fla. 3d DCA 2003).

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


author: SHEVIN, Judge.

text:
    Gabriel D. SIERRA, a minor, by and through his mother and next friend, Christina Duarte Sierra and Christina Duarte Sierra, individually, Appellants, v. A BETTERWAY RENT-A-CAR, INC., d/b/a Budget Rent-A-Car of Atlanta, a foreign corporation, Ahmad Shikhsajadieh a/k/a Ahmad Shsajadieh a/k/a Ahmad S. Sajadieh, individually, Juan F. Leon, Jr., and Betterway Leasing, L.L.C. d/b/a Budget Rent-A-Car of Atlanta, a foreign corporation, Appellees.
    No. 3D02-2854.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing Denied Jan. 16, 2004.

      Kandell & Kandell; Ralph 0. Anderson, Miami, for appellants.
    Holland & Knight and Dominic C. Mac-Kenzie, Jacksonville, for appellees.
    Before COPE, GODERICH and SHEVIN, JJ.
   SHEVIN, Judge.

Gabriel D. Sierra, and his mother, Christina Duarte Sierra, appeal an order dismissing their fourth amended complaint for lack of personal jurisdiction over defendants A Betterway Rent-A-Car, Inc., d/b/a Budget Renb-A-Car of Atlanta [“Budget”], and A Betterway Leasing, L.L.C. [“Betterway”]. We reverse.

Gabriel was struck by a van while crossing a street on Miami Beach. The van was driven by Ahmad Shikhsajadieh. The driver rented the vehicle from Budget in Atlanta, Georgia. At the time of the rental, the driver informed Budget’s personnel that he was going to Florida, and the rental form indicates the driver’s local contact information as “FLA.” Budget did not prohibit the driver from coming to Florida with the van. Gabriel and his mother sued Budget and Betterway asserting that the vehicle was negligently driven, and asserting that defendants were vicariously liable, under the dangerous instrumentality doctrine, for the driver’s negligence. The defendants filed a motion to dismiss the fourth amended complaint asserting lack of personal jurisdiction. In conjunction with the dismissal motion, defendants filed affidavits asserting that they do no business in Florida. Betterway’s sole business is to lease the vehicles it owns to Budget. Budget asserts that its sole business is renting vehicles in Atlanta. The trial court granted the defendants’ motion, and dismissed the complaint. Plaintiffs appeal.

We are not persuaded that the fourth amended complaint, and the discovery that followed, fail to allege sufficient facts to demonstrate that these defendants are amenable to the court’s exercise of personal jurisdiction. Our analysis of this issue must begin with the two-part test for long-arm jurisdiction enunciated in Venetian Salami v. Parthenais, 554 So.2d 499 (Fla.1989): Whether the “complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the [long-arm] statute[,]” section 48.193, Florida Statutes (2002); and whether defendant has sufficient minimum contacts with Florida to satisfy due process requirements. Venetian Salami 554 So.2d at 502. Both parts of the test are satisfied in this case.

The facts in this case demonstrate that the defendants were aware that its vehicles were driven in Florida. Defendants did not discourage or prohibit its customers from driving in Florida. Moreover, there have been three accidents involving the defendants’ vehicles in Florida. In addition, Budget advertises itself as part of a global system of rental agencies, available for worldwide rental arrangements; Betterway has not alleged ignorance of these representations. Budget knew that this particular van was being brought into Florida and did not prohibit the driver from coming here. When Budget rented the vehicle with no restrictions as to where it could be driven, it was reasonable to expect it could come to Florida, be involved in an accident here and Budget be haled into court here. See Lavender v. Northeast Transp., Ltd., 674 So.2d 157 (Fla. 5th DCA 1996)(New Hampshire car rental agency subject to personal jurisdiction in Florida when car leased for use anywhere in country collides with another vehicle in Florida).

The factual scenario in this case was addressed in Stevenson v. Brosdal, 813 So.2d 1046 (Fla. 4th DCA 2002). In Stevenson, a California resident loaned his car to his son and daughter-in-law to drive to Florida, where the couple resided. The daughter-in-law had an accident in Florida, while driving the vehicle. The victim sued the California owner. Based on these facts, the Fourth District held that personal jurisdiction over the non-Florida-resident defendant was proper because “consent to the operation of a vehicle in Florida constitutes sufficient contacts to support jurisdiction.” 813 So.2d at 1047. This applies equally to the case before us. It is disingenuous for the defendants here to argue that they do not reasonably expect to be sued in Florida when they do nothing to discourage their clients from using defendants’ vehicles in Florida, and the record shows a course of dealing in allowing the vehicles to come to Florida.

Defendants argue that under AVH Daily Rental Cars, Inc. v. Smith, 640 So.2d 168 (Fla. 1st DCA 1994), out-of-state car rental agencies lack sufficient minimum contacts to be required to appear in court in Florida. While that premise is correct under the facts in AVH, it is not correct with respect to the facts in this case. In AVH, Florida residents were involved in an accident in New Jersey while driving a vehicle rented in Delaware, that was to be returned to Delaware at the end of the rental period. These facts were insufficient to justify the exercise of personal jurisdiction in Florida. However, that is not the circumstance in the case before us. The defendants were aware that its car was brought to Florida, where it struck a Florida resident.

A factor that must be considered to determine whether sufficient minimum contacts exist to justify personal jurisdiction is the foreseeability that the defendant’s conduct will result in suit in the forum state. Flight Int’l Aviation Training Ctr., Inc. v. Rivera, 651 So.2d 1265 (Fla. 1st DCA 1995). Certainly, the facts alleged here demonstrate the foreseeability that defendants’ vehicles would be involved in accidents in this state, resulting in lawsuits. Hence, the exercise of personal jurisdiction over defendants is proper, and the trial court erred in concluding otherwise.

Next, we address the trial court’s conclusion that the plaintiffs’ vicarious liability claim against the defendants is barred because Georgia law applies to this issue, and Georgia law does not have a dangerous instrumentality doctrine under which defendants would be liable for the driver’s negligence. Contrary to the trial court’s conclusion, Florida law applies to the issue of vicarious liability in this case.

Florida has adopted the significant relationship test for determining which state’s law applies to a tort action. Restatement (Second) of Conflict of Laws § 145 (1971); State Farm Mut. Auto. Ins. v. Olsen, 406 So.2d 1109 (Fla.1981); Bishop v. Fla. Specialty Paint Co., 389 So.2d 999 (Fla.1980). “In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence and the parties.... ” Restatement (Second) of Conflict of Laws § 146 (1971). Under section 145(2), the significant relationship test, we must consider four factors: the place of injury and the place where the conduct causing the injury occurred — in this case, Florida; and the place of business of the parties and where the relationship of the parties is centered — in this case, Georgia. From this cursory examination, it would appear the factors are at equipoise. However, despite defendants’ protestations to the contrary, its activities are not isolated to Georgia. Defendants rent cars that can be driven into any state of the nation. As Georgia’s neighbor, it’s not unexpected that its cars are driven into our state. Budget is part of a nationwide chain of car rental companies that promotes itself as a global rental agency. Budget was aware that its cars were driven into Florida, and, more importantly, it was aware that the car that struck the plaintiff was being brought into Florida. Under these circumstances, “[tjhere is nothing unfair or disruptive of interstate relations in holding a vehicle owner who leases its car in one state liable for its lessee’s negligent driving in another. Florida’s interest in protecting its citizens supports applying Florida law.” Brown v. Nat’l Car Rental Sys., Inc., 707 So.2d 394 (Fla. 3d DCA 1998). Moreover, the place where the rental agreement is entered into is not the most significant factor in deciding this issue, and that is not the holding in Stallworth v. Hospitality Rentals, Inc., 515 So.2d 413 (Fla. 1st DCA 1987). Stallworth applies Florida law to a vicarious liability issue in a case where injury and conduct occurred in Louisiana but the plaintiffs were Florida residents, suing a Florida rental agency where the car was issued and was to be returned to Florida. Stallworth found that the mere happenstance that a car crosses state lines on a trip doesn’t alter the law to be applied. In our case, however, the trip was directed at Florida, and the rental transaction was directed at Florida. Although Georgia may have an interest in protecting its corporations from liability, this interest is outweighed by the consideration of the other factors in the test.

Additionally, under Restatement (Second) of Conflict of Laws, section 174 comment a (1971), the imposition of vicarious liability is reasonable in this case: the defendants provided the driver with the vehicle and permitted its use in Florida; and there is a reasonable relationship between the defendants and Florida — defendants hold out their vehicles for rental and these vehicles are used in Florida on many occasions. This relationship affords a “fair and reasonable basis for the imposition of such liability.” Restatement (2d) of Conflict of Laws § 174 cmt. b (1971). To the extent that this holding may be in conflict with Stallworth and Deemer, we certify conflict with those cases.

While in some cases, “[o]ther factors may combine to outweigh the place of injury as a controlling consideration,” Bishop, 389 So.2d at 1001, a consideration of the contacts to be taken into account under the significant relationship test leads us to conclude that the appropriate law to be applied in this case is Florida law.

Based on the foregoing, we reverse the order dismissing the fourth amended complaint, and remand for reinstatement thereof.

Reversed and remanded.

      . The order on appeal does not address the other defendants involved in the lawsuit.

      . Deemer v. Budget Rent-A-Car Systems, 704 So.2d 133 (Fla. 1st DCA 1997) applied Stall-worth and concluded that the law of the State where the rental transaction takes place applies to determine vicarious liability.


author: BROWNING, J.

text:
    FIRST COAST COMMUNITY BANK, Appellant, v. CHESHIRE CONTRACTORS OF NASSAU, INC., Christopher D. Cheshire, Grover C. Cheshire, Anne Coonrod and Hertz Equipment Rental Company, Appellees.
    No. 1D02-4116.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2003.
    Rehearing Denied Jan. 16, 2004.
    Calvin E. Hayden and W. David Vaughn of Hayden, Facciolo & Vaughn, P.A., Jacksonville, for Appellant.
    Clyde W. Davis, Fernandina Beach, Attorney for Anne Coonrod, for Appellees.
   BROWNING, J.

First Coast Community Bank (FCCB) appeals from an Amended Final Judgment of Foreclosure. FCCB alleges three grounds for reversal, and we find that one of the grounds has merit, is dispositive, and removes any necessity for addressing the remaining grounds.

FACTS

Cheshire Contractors owned a piece of real estate, and executed a mortgage to FCCB on that property in 1994 to secure a $155,000 promissory note. Between 1996 and 1998, Anne Coonrod (Coonrod) made several loans to Cheshire Contractors totaling $46,900. In 1998, Cheshire Contractors gave a mortgage to Coonrod on the property previously mortgaged to FCCB to secure a $45,000 promissory note.

In January 1999, FCCB filed a complaint seeking to foreclose on its mortgage and to receive payment on the note. FCCB later amended the complaint to add Coonrod as an additional defendant on the grounds that she had a subordinate interest in the property. Coonrod filed an answer and counterclaim seeking payment from Cheshire Contractors or foreclosure on her subordinate mortgage. After a hearing, the trial court entered a final judgment of foreclosure in favor of FCCB and ordered a public sale of the property. The final judgment provided that the principal amount secured by the FCCB mortgage was $28,000, and that Coonrod’s mortgage was a valid second mortgage subordinate to that amount only rather than to the $155,000 promissory note as claimed by FCCB. Appellant’s motion to stay the foreclosure sale was granted and this appeal ensued.

ANALYSIS

The trial court premised its final judgment on the finding that only $28,000 was secured by FCCB’s mortgage because, for intangible tax purposes, FCCB declared the fair market value of the mortgaged premises to be $28,000.

There is patent ambiguity on the face of the FCCB mortgage, which says in one part, in typewritten terms, “the amount of the loan considered to be secured by this real property is $28,000,” and in another, in printed terms, “this instrument is given to secure the payment of a promissory note dated January 28, 1994, in the principal sum of $155,000,” with the date and the amount typewritten into blanks. Because the ambiguity is patent, no parol or extrinsic evidence is admissible as to the intent of the contract. See, e.g., Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1973). It is true that typewritten language trumps printed language. See § 673.1141, Fla. Stat. (1994). However, the typewritten date and amount in the latter phrase put it on equal footing with the former phrase. The correct interpretation of the mortgage is that the $28,000 amount was noted on the face of Appellant’s mortgage for declaring the amount due for nonrecurring intangible tax purposes only, which, the document reveals, was paid in the amount of $56 under section 199.282(5), Florida Statutes^ — the correct amount due for a $28,000 statement of market value.

Section 199.282(5) does not limit recovery in foreclosure to the amount on which the non-recurring intangible tax was paid. § 199.282(5), Fla. Stat. (2002). This section dictates that the mortgage is not enforceable until all the proper taxes have been paid. Any deficiency in the tax is a matter for governmental enforcement and not a limitation on the amount secured as erroneously determined by the trial court. The required taxes on a mortgage are set by other statutes, such as section 199.133, Florida Statutes, without limitation as to the amount. The nonrecurring tax of two mills per dollar is a one-time payment, and it is limited to the value of the real property without any limitations on the amount actually secured by a mortgage. Here, at the time the mortgage was agreed upon, the value of the property was $28,000, and the proper tax was paid on that amount.

This interpretation of the statutes is in line with the expert testimony that nothing in chapter 199 precludes FCCB from foreclosing its mortgage securing an outstanding principal sum greater than $28,000. Further, it is in accord with the parties’ intent. FCCB’s witnesses testified without objection that it was not their intent to limit recovery to $28,000. Neither of Cheshire Contractors’s representatives testified that the property secured any particular amount of the loan.

Because the trial court erred, we REVERSE the trial court’s Amended Final Judgment of Foreclosure and REMAND for entry of a final judgment of foreclosure for the unpaid amount plus attorney’s fees, costs, and insurance, if any, due under Appellant’s $155,000 promissory note.

WOLF, C.J., and HAWKES, J., concur.


author: HAWKES, J.

text:
    FLORIDA POWER CORPORATION and RSKCO, Appellant, v. Thomas S. BROWN, Appellee.
    No. 1D02-3894.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2003.
    Rehearing Denied Jan. 15, 2004.

      Scot E. Samis, St. Petersburg; Abbey, Adams, Byelick, Kiernan, Mueller, and Lancaster, L.L.P., St. Petersburg, for Appellant.
    Michael Broussard, James R. Spears; Broussard, Cullen & DeGailler, Orlando, for Appellee.
   HAWKES, J.

The Employer/Carrier (E/C) appeal the Judge of Compensation Claims’ (JCC) order which awarded medical monitoring to Claimant Thomas Brown, based solely upon Brown’s exposure to asbestos. The E/C argue that, because Brown’s exposure to asbestos has not resulted in a work place “injury” as that term is defined by Florida law, the JCC erred by awarding benefits. We agree and reverse.

An employer is required to pay compensation or furnish benefits only if an employee suffers an injury by accident. See § 440.09(1), Fla. Stat. (2000). Two situations meet the statutory criteria to establish an injury by accident. The first is found in section 440.02(1), Florida Statutes (2000), where “accident” is defined, in pertinent part, as “an unexpected or unusual event or result that happens suddenly.” Id. The second situation is when an employee suffers disablement, resulting from an occupational disease. See § 440.151(l)(a), Fla. Stat. (2000).

It is well settled that asbestosis is an occupational disease. See Hyatt v. Armstrong Cork Co., 121 So.2d 793, 794-795 (Fla.1960); Fla. State Hosp. v. Potter, 391 So.2d 322, 323 (Fla. 1st DCA 1981); Combustion Eng’g, Inc. v. Cote, 505 So.2d 533, 534 (Fla. 1st DCA 1987). However, under the Workers’ Compensation Act, an occupational disease becomes compensable only upon the employee’s disablement. See Glasrock Home Health Care v. Leiva, 578 So.2d 776, 779 (Fla. 1st DCA 1991). Thus, in occupational disease cases, it is the disability, not the diagnosis of the disease, which determines compensability of a claim. See Hoppe v. City of Lakeland, 691 So.2d 585, 587 (Fla. 1st DCA 1997); see also Hyatt, 121 So.2d at 794-795 (noting time of “injury” for occupational disease is date an employee actually became disabled).

Accordingly, under the plain language of the statutes, Brown is entitled to benefits only if he suffers injury from “an unexpected or unusual event” that “happens suddenly” or he suffers disablement resulting from an occupational disease. Brown has not established that he suffered from either. Brown’s exposure to asbestos, standing alone, does not meet the definition of an injury by accident, because his exposure was not “an unexpected or unusual event” that “happened suddenly.” Similarly, Brown’s exposure to asbestos, standing alone, does not meet the definition of an occupational disease, because his exposure must also result in disablement. At this time, there is no evidence Brown has suffered any disability from his exposure.

Because Brown has not suffered an injury by accident as that term is defined by Florida law, the JCC’s award of medical monitoring is reversed. Additionally, because Brown was not entitled to the benefits awarded, the JCC’s award of attorney’s fees pursuant to section 440.34(2), Florida Statutes (2000), which was based solely on benefits secured, is reversed as well.

REVERSED.

VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Jeffrey B. NELLUMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D01-4947, 1D01-4949.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Rehearing Denied Jan. 9, 2004.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the action of the trial court in resentencing him on November 14, 2001. We agree with the appellant that such resentencing is precluded by the constitutional protections against double jeopardy. Spear v. State, 632 So.2d 201 (Fla. 1st DCA 1994) (“The appellant had begun serving the lawful sentence which the court originally imposed, and resentencing is not permitted merely because of a misapprehension as to the court’s sentencing prerogatives”).

We reverse the sentence imposed on November 14, 2001, and remand with instructions to the trial court to reinstate the original sentence imposed on November 5, 2001.

BARFIELD, WEBSTER and BROWNING, JJ., concur.


author: PLEUS, J.

text:
    Jackie Lavern BRIDGES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-485.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

This appeal is dismissed for lack of jurisdiction. The notice of appeal was untimely. Bridges’ pro se letter to the court which requested reconsideration of the denial of his motion to withdraw pleas was unauthorized because Bridges was represented by counsel. Even if we were to treat the letter as a valid motion for rehearing, there is no authority under Florida Rule of Criminal Procedure 3.170(i) or Florida Rule of Appellate Procedure 9.020(h), for filing a motion for rehearing of an order denying a motion to withdraw pleas.

In Mincey v. State, 789 So.2d 492 (Fla. 1st DCA 2001), the appeal was dismissed because an unauthorized motion for rehearing did not toll the time for filing a notice of appeal. See also Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992). Thus, Bridges’ letter did not toll the time for filing a notice of appeal.

We also deny Bridges’ request for belated appeal. Petitions seeking belated appeal are governed by Florida Rule of Appellate Procedure 9.141(c). This rule requires, among other things, a petition containing “a specific act(s) sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel or basis for entitlement for belated appeal, including in the ease of a petition for a belated appeal whether the petitioner requested counsel to proceed with the appeal.” Fla. R.App. P. 9.141(c)(3)(F). Bridges requested a belated appeal in the body of his reply brief, not in a sworn petition. Furthermore, the request simply alleges that Bridges repeatedly sought to withdraw his plea based on ineffective assistance of counsel. He does not allege whether he informed his counsel to proceed with an appeal or why his notice of appeal was untimely. He did not allege any specific facts demonstrating how his counsel’s ineffectiveness resulted in an untimely appeal. Accordingly, Bridges’ request for belated appeal is insufficient.

APPEAL DISMISSED.

GRIFFIN and ORFINGER, JJ., concur.


text:
    Gregory O’LEARY, Appellant, v. USA WASTE MANAGEMENT and Gallagher Bassett Services, Appellees.
    No. 1D02-2732.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Rehearing Denied Jan. 14, 2004.
    Dennis Smejkal, Orlando, and Bill McCabe, Longwood, for Appellant.
    Pamela Craig of Stump, Webster, Craig, Staten & Recksiedler, P.A., Orlando, for Appellees.
   PER CURIAM.

The claimant appeals a workers’ compensation order by which a claim was denied upon a determination that the claimant made false, fraudulent, or misleading statements and omitted or concealed material information, thereby violating section 440.105(4)(b)3, Florida Statutes, and being disqualified from receiving benefits pursuant to section 440.09(4), Florida Statutes. In making this finding the judge relied on a recorded statement which was not confirmed on this record as being properly authenticated under section 90.901, Florida Statutes. Unless so authenticated, the statement should not have been received into evidence over the claimant’s objection. The appealed order is therefore reversed, and the case is remanded for further proceedings.

ALLEN, DAVIS and BENTON, JJ., CONCUR.