author: WALLACE, Judge.

text:
    Edward GRAEF, Jr., as Personal Representative of the Estate of Edward Graef, deceased, Appellant, v. DAMES & MOORE GROUP, INC., f/k/a Dames & Moore, Inc., Appellee.
    No. 2D02-3675.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 16, 2003.

      Todd R. McPharfin and Gregg A. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for Appellant.
    Kimberly S. Mello and David B. Wein-stein of Bales Weinstein, Tampa, for Ap-pellee.
   WALLACE, Judge.

Edward Graef, Jr., as personal representative of the estate of Edward Graef (Graef), appeals the trial court’s final judgment awarding attorney’s fees to defendant Dames & Moore Group, Inc. (Dames & Moore), pursuant to section 57.105(1), Florida Statutes (1993). Because Dames & Moore’s motion for attorney’s fees was not filed within a reasonable time after the trial court entered final summary judgment in Dames & Moore’s favor, we reverse.

Standard of Review and Applicable Law

The unique circumstances of this case present mixed questions of law and fact. Accordingly, we review the trial court’s final judgment awarding attorney’s fees to Dames & Moore for legal error to the extent that it is based upon pure questions of law and for abuse of discretion to the extent that it is based upon an exercise of the trial court’s discretion.

Dames & Moore was required to move for section 57.105(1) attorney’s fees within a “reasonable time” after entry of final judgment. See Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991). Dames & Moore filed its motion before the effective date of Florida Rule of Civil Procedure 1.525, which established a thirty-day time limit for the filing of postjudgment motions for costs and attorney’s fees. See Amendments to the Florida Rules of Civil Procedure, 773 So.2d 1098, 1099 (Fla.2000) (establishing January 1, 2001, as the effective date of the rule). Because the bright line of rule 1.525 does not apply to this case, our inquiry does not end by simply counting the days between the date of final judgment and the motion for attorney’s fees. Indeed, measuring the length of the delay is merely the beginning of our inquiry into whether Dames & Moore timely filed its motion for attorney’s fees under the facts of this case.

Measuring the Delay

The length of Dames & Moore’s delay in filing its section 57.105(1) motion for attorney’s fees is properly measured from the date the trial court entered an order on June 9, 1999, granting summary judgment in Dames & Moore’s favor. In an earlier appeal, Dames & Moore questioned whether this order was a “final order” for the purpose of measuring when a motion for attorney’s fees should be filed. It was settled as the law of the case, however, that the June 9, 1999, order on summary judgment was sufficiently final to constitute entry of final judgment for the purposes of subsequent litigation in both the trial and appellate courts. See Graef v. Hegedus, 827 So.2d 394, 395-96 (Fla. 2d DCA 2002) (reversing an award of attorney’s fees to Dames & Moore based upon an offer of judgment because its motion for fees under section 768.79, Florida Statutes (1991), was filed more than thirty days after entry of final judgment). Thus June 9, 1999, marked the end of Graefs lawsuit and the beginning of postjudgment proceedings between these parties. On December 15, 2000, Dames & Moore filed a motion for attorney’s fees pursuant to section 57.105(1) on the ground that Graefs complaint against Dames & Moore was frivolous and completely lacked a jus-ticiable issue of law and' fact. Dames & Moore filed this motion 555 days after entry of summary judgment on June 9, 1999.

Dames & Moore argues that June 6, 2000, should be considered as the starting date to measure the delay in the filing of its motion for attorney’s fees pursuant to section 57.105(1). On that date, the trial court entered an order titled “Summary Final Judgment.” This order purported to grant summary judgment in favor of Dames & Moore and specified that Graef would take nothing on his claim. It referred to the summary judgment order of June 9,1999, and to this court’s affirmance of that order. The June 6, 2000, judgment also reserved jurisdiction to the trial court to consider “any motions relating to attorneys’ fees and costs.” By contrast, the summary judgment order of June 9, 1999, did not contain such an express reservation of jurisdiction.

The trial court’s express reservation of jurisdiction to consider attorney’s fees on June 6, 2000, does not require the conclusion that the judgment of that date should prevail over the judgment of June 9, 1999, as the starting point to measure Dames & Moore’s delay in filing a motion for attorney’s fees. After June 9, 1999, in the absence of such an express reservation of jurisdiction, the trial court retained continuing jurisdiction to entertain a motion for attorney’s fees as a collateral and independent claim if filed within a reasonable time, notwithstanding that the litigation of the main claim was concluded with finality. See Finkelstein v. N. Broward Hosp. Dist., 484 So.2d 1241, 1243 (Fla.1986). Dames & Moore did not need to wait for the trial court to expressly reserve the jurisdiction that it inherently retained after entry of final judgment.

Under different circumstances, if the trial court had expressly reserved jurisdiction to consider attorney’s fees in the June 9, 1999, order, such a reservation may have been a factor in determining whether a postjudgment motion for attorney’s fees was timely filed. In United States Fidelity & Guaranty v. Martin County, 669 So.2d 1065, 1068 (Fla. 4th DCA 1996), the prevailing party based its claim for attorney’s fees in part on a contract that was the subject of the lawsuit. The prevailing party pleaded entitlement to attorney’s fees at the outset of the litigation and reiterated its claim in the motion for summary judgment. The trial court reserved jurisdiction to determine attorney’s fees when it granted summary judgment, and the losing party appealed. The prevailing party delayed filing a motion for attorney’s fees until eight days after the appeal was final. Id. at 1066. In finding the motion timely, the court’s chief concern was notice. Id. at 1067. The losing party was aware that liability for attorney’s fees would result from its liability for breach of contract, and its liability on the contract would become final when the adverse summary judgment was affirmed.

In Martin County, the trial court reserved jurisdiction before the appeal was taken and contemporaneously with entering summary judgment. By contrast, in this case, the trial court reserved jurisdiction one month after the appellate mandate issued on May 5, 2000, and nearly one year after it entered summary judgment on June 9,1999. By June 6, 2000, the time had long passed for Graef to have received the sort of indirect notice described by Martin County of Dames & Moore’s intent to seek attorney’s fees under section 57.105(1) through the trial court’s reservation of jurisdiction. Therefore, the time for Dames & Moore to file its section 57.105(1) motion for attorney’s fees is properly measured from June 9,1999.

Other Facts Relevant to Timeliness

On June 21, 2000, Dames & Moore filed a motion for attorney’s fees based upon an offer of judgment pursuant to section 768.79. This motion did not include a claim for attorney’s fees pursuant to section 57.105(1), and it was the subject of a separate final judgment and a separate appeal. See Graef, 827 So.2d 894. Dames & Moore served its section 57.105(1) motion for attorney’s fees on Graef on Thursday, December 14, 2000, and filed it on December 15, 2000, shortly before a hearing on Monday, December 18, 2000. The subject of the hearing was Dames & Moore’s section 768.79 motion for attorney’s fees, but the section 57.105(1) motion was also discussed. Graef objected to the section 57.105(1) motion as untimely filed. The trial court continued consideration of the section 57.105(1) motion until a hearing on October 15, 2001. On December 7, 2001, the trial court entered a nonfinal order finding that Dames & Moore was entitled to attorney’s fees pursuant to section 57.105, but this order did not include findings of fact or determine an amount. Finally, on July 5, 2002, the third circuit judge assigned to this case entered a final judgment awarding $14,212.50 in attorney’s fees pursuant to section 57.105(1). Neither the order on Dames & Moore’s entitlement to attorney’s fees nor the final judgment awarding attorney’s fees addressed the timeliness of Dames & Moore’s motion.

The Reasonableness of the Delay

Having determined that 555 days — approximately 18]é months — was the length of delay between entry of final judgment and Dames & Moore’s filing of its motion for section 57.105(1) attorney’s fees, we next consider whether such delay was reasonable under the circumstances of this case. Courts have identified several factors in determining reasonableness, including the danger of unfair surprise or prejudice to a party against whom fees are sought, the existence of special or extenuating circumstances justifying the delay, the pendency of an appeal, whether the policy underlying the requirement of reasonableness is served or offended, and the actual length of delay. No one factor is dispositive, and the weight assigned to any given factor depends on the circumstances of the case.

The question of whether a party may be unfairly surprised or prejudiced by a claim for attorney’s fees under section 57.105 necessarily involves whether the claim is founded on an allegation of frivolousness under section 57.105(1) or a claim for prevailing party fees under section 57.105(2). Although both types of claims are collateral to the main litigation, a claim under section 57.105(2) must be pleaded before entry of final judgment so that the losing party is on notice that the prevailing party will seek such fees after the conclusion of the litigation. See Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So.2d 325, 325-26 (Fla. 2d DCA 1998) (reversing an award of attorney’s fees to the party that successfully sued for default on a promissory note that contained a provision for attorney’s fees because the party did not plead attorney’s fees before entry of final judgment and did not seek such fees until two months afterwards). By contrast, a claim under section 57.105(1) need not be pleaded before entry of final judgment. Indeed, our supreme court has advised that it is appropriate for a litigant to wait until the conclusion of litigation before filing a claim under section 57.105(1) to insure that such a claim is not precipitously filed. Ganz v. HZJ, Inc., 605 So.2d 871, 872 (Fla.1992). It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party’s action or defense was completely frivolous. Id. Thus, whether or not a claim for section 57.105(1) attorney’s fees is pleaded before entry of final judgment, the losing party properly receives notice that it must prepare to defend a claim seeking such fees when the prevailing party files a motion after the conclusion of the main litigation.

In this case, although Dames & Moore raised the section 57.105(1) fee issue in its motion for summary judgment, it did not file a motion seeking such fees until 18/6 months after entry of summary judgment in its favor. This delay subjected Graef to the danger of unfair surprise in two respects. First, after litigation had long been concluded and Dames & Moore had not moved for section 57.105(1) attorney’s fees, Graef should have been able to assume safely that such fees were not being sought. See Nat’l Envtl. Prods., Ltd. v. Falls, 678 So.2d 869, 871 (Fla. 4th DCA 1996). This is particularly so when, six months previously, Dames & Moore inexplicably failed to include a claim for attorney’s fees under section 57.105(1) when it first moved for attorney’s fees based upon an offer of judgment. Although the losing party may be said to be on continual notice that attorney’s fees may be awarded under section 57.105(1) within a reasonable time after entry of final judgment, such notice is not perpetual. The Fourth District has identified a nineteen-month postjudgment delay as beyond the boundary of reasonableness after which the losing party was unfairly surprised by the prevailing party’s motion for attorney’s fees under section 57.105(1). Id. at 871-72. Dames & Moore’s 18)6-month delay similarly falls outside the boundary of reasonableness.

Graef was also subjected to the danger of unfair surprise by the filing of Dames & Moore’s section 57.105(1) motion shortly before a scheduled hearing on Dames & Moore’s motion for attorney’s fees based upon an offer of judgment. The trial court did not rule on the motion at the hearing; nevertheless, the 57.105(1) request was discussed at the hearing. Although the trial court’s June 6, 2000, judgment generally reserved jurisdiction to consider motions for attorney’s fees, this judgment cannot be said to have put Graef on notice that Dames & Moore would seek section 57.105(1) attorney’s fees.

Although Graef was subjected to the danger of unfair surprise by Dames & Moore’s section 57.105(1) motion for attorney’s fees, it is difficult for Graef to demonstrate that the delay resulted in prejudice. See Shipley v. Belleair Group, Inc., 759 So.2d 28, 30 (Fla. 2d DCA 2000) (stating in dictum that before the prevailing party is denied its ability to recover fees, “the losing party probably should be required to demonstrate some degree of prejudice” arising from the delay). Nevertheless, the patent unreasonableness of Dames & Moore’s delay outweighs Graefs lack of demonstrated prejudice. In this respect, Shipley is instructive by contrary analogy.

In Shipley, a party successfully sued for default on a promissory note that provided for the costs of collection in the event of default, including attorney’s fees. Id. at 29. The complaint expressly alleged a right to attorney’s fees, and the trial court expressly reserved jurisdiction to consider attorney’s fees when it entered final judgment awarding damages on the promissory note. The losing party did not pay the judgment when it was entered, and the prevailing party initiated collection proceedings. Eventually, the losing party paid the judgment in full, but this payment did not include an amount for the costs of collection or attorney’s fees. The prevailing party then filed a motion to tax fees and costs eighty days after entry of final judgment. Id. In holding the delay reasonable, we emphasized that the losing party failed to show that it was prejudiced by the eighty-day delay, which was caused in large part by ongoing collection efforts. Under the circumstances, the prevailing party’s delay was more appropriately measured from the conclusion of collection efforts, rather than entry of final judgment. Id. at 30. Thus the losing party could not reasonably complain that it was unfairly surprised or prejudiced by the motion to recover collection costs, including attorney’s fees, because it was on notice from the inception of the litigation that it would be liable for such costs, even as it increased those costs by delaying payment of the final judgment.

By contrast, Dames & Moore’s basis for seeking attorney’s fees did not arise from a contract that was the subject of the litigation. Whether Graefs lawsuit was frivolous was a wholly collateral matter appropriately reserved for postjudgment proceedings. However, without any intervening event to indicate that Dames & Moore intended to seek attorney’s fees on the ground that Graefs lawsuit was frivolous, Dames & Moore filed its section 57.105(1) motion 18)é months after entry of final judgment. Eighteen and one-half months is significantly longer than the eighty days during which the prevailing party in Shipley waited before seeking the costs of collection while it was incurring additional costs while attempting to collect. The factors indicative of reasonableness in Shipley are absent in this case.

Rather than Shipley, the closer case is Falls, 678 So.2d at 871. In Falls, the prevailing party sought attorney’s fees on the ground that the losing party’s lawsuit was frivolous, but the prevailing party delayed filing its motion until nineteen months after entry of final judgment and six months after the appellate court affirmed the judgment without opinion. The issue of section 57.105(1) fees was raised for the first time in a postjudgment motion, with apparently no intervening activity by the prevailing party to give notice that such fees would be sought. Id. at 870. The Fourth District observed that after such a lengthy delay, it would be incumbent upon the prevailing party to demonstrate special or extenuating circumstances for failing to file the motion previously. Id. at 871. The prevailing party in Falls did not demonstrate extenuating circumstances, and neither does Dames & Moore in this case.

The pendency of an appeal from the judgment on the merits is another factor to be considered in assessing the reasonableness of the delay in the filing of a postjudgment motion for attorney’s fees. Under different circumstances, it may be reasonable for a party to delay filing a motion for attorney’s fees until the resolution of the appeal. See Martin County, 669 So.2d at 1067-68 (recognizing that litigants may want to avoid the time and expense of a lengthy attorney’s fee hearing when the order on appeal has an arguable chance of being reversed, thus rendering the fee issue moot).

The Falls court, however, described “practical reasons” for a party to file the motion for attorney’s fees promptly after judgment is entered instead of waiting until the conclusion of the appeal. Falls, 678 So.2d at 871. These practical reasons are applicable to this case. First, the trial court was in a better position to assess the issue of frivolousness promptly after the termination of the main action instead of nineteen months later. This is especially true where, as in this case, a new presiding judge was required to adjudicate the issue without the benefit of first-hand knowledge of the prior proceedings. Second, a prompt filing and determination of Dames & Moore’s motion for attorney’s fees would very likely have enabled this court to consider the issues raised on this appeal together with the appeal of the final summary judgment. This would have facilitated our consideration of both matters. It would also have made possible a more efficient use of judicial resources. Third, a prompt filing and determination of Dames & Moore’s motion for attorney’s fees may also have promoted a resolution of the case and made it unnecessary for Graef to pursue an appeal from the summary judgment or the judgment for attorney’s fees. Finally, a prompt filing by Dames & Moore of its motion for attorney’s fees would have avoided a further prolongation of this litigation, which has been pending since 1992. Taking all of the circumstances into consideration, it was not reasonable for Dames & Moore to delay the filing of its motion for attorney’s fees until after the determination of the appeal from the summary judgment in its favor.

It is entirely possible that the trial court could have benefitted from our consideration of the merits of the summary judgment in its determination of Dames & Moore’s motion for attorney’s fees. This factor, considered in isolation, tends to make waiting to file the motion for attorney’s fees until after the determination of the appeal seem more, rather than less, reasonable. In Bal Bay Realty, Ltd. v. Pepsomers Corp., 838 So.2d 320, 323 (Fla. 4th DCA 2003) (en banc), the Fourth District recognized that the time during the pendency of the appeal could be a factor in determining the timeliness of a motion for attorney’s fees. However, the Fourth District held that the trial court abused its discretion in finding reasonable a delay of eight months from the issuance of the appellate court’s mandate to the filing of the motion for attorney’s fees. Id. at 324. In this case, our mandate affirming the June 9, 1999, summary judgment in Dames & Moore’s favor issued on May 5, 2000. Graef v. Dames & Moore, Inc., 758 So.2d 677 (Fla. 2d DCA 2000) (table decision). Dames & Moore delayed 224 days — approximately Tk months — from the issuance of our mandate to the fifing of its motion for attorney’s fees on December 15, 2000. Even if one views the pendency of the appeal as making the delay prior to the conclusion of the appeal reasonable, the delay after the conclusion of the appeal was not reasonable. See Bal Bay Realty, 833 So.2d 320; Falls, 678 So.2d 869.

The purpose of section 57.105(1) is to dissuade litigants and attorneys from pursuing baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag on losing parties who engage in these activities. State, Dep’t of Highway Safety & Motor Vehicles v. Salter, 710 So.2d 1039, 1041 (Fla. 2d DCA 1998). Requiring motions under section 57.105(1) to be filed within a reasonable time after entry of final judgment preserves the statute’s purpose by curbing needless prolongation of the litigation. Dames & Moore’s lengthy delay served neither the purpose of section 57.105(1) nor the requirement of filing a post-judgment motion for attorney’s fees within a reasonable time.

Accordingly, the final judgment for attorney’s fees is reversed.

FULMER and SILBERMAN, JJ., Concur.

      . In considering a trial court’s determination of the timeliness of a postjudgment motion for attorney's fees, few appellate courts have expressly articulated the standard of review guiding their analyses. In reviewing a judgment granting attorney’s fees, the Fourth District clearly applied an abuse of discretion standard to the trial court's ruling that the motion was timely. Bal Bay Realty, Ltd. v. Pepsomers Corp., 833 So.2d 320, 324 (Fla. 4th DCA 2003) (en banc). The case was factually complex but did not appear to involve the sort of pure questions of law presented by this case, questions such as the legal effect of the trial court’s prior judgments and the interpretation of prior appeals. On the other hand, in reviewing an order striking a motion for attorney’s fees as untimely, we reversed because the delay was "not unreasonable as a matter of law.” Shipley v. Belleair Group, Inc., 759 So.2d 28, 30 (Fla. 2d DCA 2000); see also U.S. Fid. & Guar. v. Martin County, 669 So.2d 1065, 1067-68 (Fla. 4th DCA 1996) (appearing to review de novo a trial court’s denial of a motion for attorney's fees as untimely filed). Thus the relevant standard of review appears to depend in part on whether the trial court granted the motion for attorney's fees or denied it as untimely. If the trial court awarded fees and found expressly or implicitly that the motion was timely, review should be for abuse of discretion to determine whether the trial court erred by finding the filing timely under the circumstances. If the trial court denied a motion for attorney's fees as untimely, review should be de novo to determine whether the delay was not unreasonable as a matter of law. This distinction preserves the trial court’s discretion over questions to which "no strict rule of law is applicable, but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court,” Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); at the same time, the distinction recognizes that the trial court should not cause a prevailing party to be "entirely stripped of its ability to recover fees” when the prevailing party's delay in filing the motion was not unreasonable as a matter of law, Shipley, 759 So.2d at 30. In this case, the trial court granted attorney’s fees, but the issue of whether the delay in filing the motion was reasonable under the circumstances also involved pure questions of law; thus a mixed standard should apply.

      . Dames & Moore designated this filing as an "amendment” to its previously filed motion for attorney’s fees based upon an offer of judgment pursuant to section 768.79.
      The parties stipulated that Dames & Moore’s motion was governed by a former version of section 57.105(1). In 1999, the statute was substantively amended to require an award of attorney’s fees when the losing party

        knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.
      Ch. 99-225, § 4, at 1406, Laws of Fla.; Gahn v. Holiday Prop. Bond, Ltd., 826 So.2d 423, 426 (Fla. 2d DCA 2002). The 1999 amendment, which does not apply in this case, effected a substantive change in the standard under which section 57.105(1) attorney's fees are to be awarded. See Forum v. Boca Burger, Inc., 788 So.2d 1055, 1060-61 (Fla. 4th DCA 2001).

      . The ten-year duration of the litigation twice necessitated the replacement of the presiding trial court judge. In 1992, Graef sued multiple defendants for alleged negligence arising from an automobile accident. Dames & Moore first appeared as a defendant in 1995 when Graef amended the complaint. In 1996, Judge Ficarrotta granted summary judgment in Dames & Moore's favor in an order that was reversed in part and remanded. Graef v. Hegedus, 698 So.2d 655 (Fla. 2d DCA 1997). Later, Judge Bonanno entered the summary judgment of June 9, 1999, the judgment of June 6, 2000, and the nonfinal order on Dames & Moore's entitlement to attorney’s fees pursuant to section 57.105(1). Following Judge Bonanno’s retirement, Judge Little entered the final judgment granting section 57.105(1) attorney's fees to Dames & Moore, which is the subject of this appeal.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Charles D. SKINNER, Appellant, v. DEPARTMENT OF REVENUE on Behalf of Theresa K. SKINNER, Appellee.
    No. 2D02-5284.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 16, 2003.
    Charles D. Skinner, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   NORTHCUTT, Judge.

Charles Skinner, who is incarcerated in the Florida prison system, challenges the order denying his petition to modify his child support obligation. The Florida Supreme Court has recently stated the procedure to be followed in cases such as these. See Dep’t of Revenue v. Jackson, 846 So.2d 486 (Fla.2003). Pursuant to Jackson, we reverse with instructions to the circuit court to hold Skinner’s petition in abeyance on its inactive calendar until his term of incarceration has ended.

Reversed and remanded with instructions.

STRINGER and CANADY, JJ., Concur.


author: PER CURIAM. BROWNING, J.,

text:
    Mary SEWELL, Appellant, v. DOVE HEALTHCARE & ASSOCIATED INDUSTRIES INSURANCE COMPANY, Appellee.
    No. 1D02-2775.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 23, 2003.

      Laurie Thrower Miles of Smith, Fedde-ler, Smith, Miles, P.A., Lakeland and Betsy E. Gallagher of Gallagher & Howard, P.A., Tampa, for appellant.
    Mary Ann Stiles and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Tallahassee, for appellee.
   PER CURIAM.

In the compensation order under review, the judge of compensation claims found the claimant permanently and totally, physically disabled, and awarded compensation payments accordingly, along with medical benefits for the physical sequelae of her slip and fall at work. Claimant appeals only the ruling that she did not prove that her industrial accident also caused her psychiatric problems.

Both psychiatrists who testified at the hearing reported that the claimant had suffered recurring depression beginning some decades before she fell. Dr. Weller attributed the claimant’s current depression to her industrial accident, while Dr. Forman testified that none of her psychiatric problems should be attributed to the slip and fall.

In denying the claim for psychiatric care, the judge of compensation claims expressly “reject[ed] the testimony of Dr. Weller,” and concluded that the claimant had not met her burden to prove causation by clear and convincing evidence. See § 440.09(1), Fla. Stat. (1999). This ruling has not been shown to be error. The judge of compensation claims was under no duty to explain his ruling more fully than he did. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003).

Affirmed.

BENTON and PADOVANO, JJ., concur; BROWNING, J., dissents with separate opinion.

BROWNING, J.,

dissents.

I respectfully dissent.

The majority correctly opines that we are compelled to affirm a JCC who without explanation makes a decision based on competent substantial evidence (CSE). Chavarria, 840 So.2d at 1071. However, we are not compelled to affirm when a JCC relies on testimony that does not constitute CSE. Jackson v. Columbia Pictures, 610 So.2d 1349 (Fla. 1st DCA 1992). That is the case here which impels me to dissent.

The JCC accepted the testimony of Dr. Forman (relating to Appellant’s claim for psychiatric care), who opined on cross-examination:

Q. Okay. So if I understand you correctly, you’re not willing to attribute any psychiatric problems or symptoms that she reported to you to the industrial accident; is that correct?
A. Not on the basis of a one percent impairment rating for her wrist and a zero percent impairment rating for her knees; no, I would not.

And on redirect:

Q. Okay. Doctor, let’s assume that Ms. Sewell had a six percent impairment rating on her knee. Would that make any difference in your psychiatric evaluation of her?
A. I don’t know, to be honest with you.

The above testimony shows that the competency of psychiatrist Dr. Forman’s testimony was premised on impairment ratings given by non-psychiatric physicians. While this is a common practice, the impairment ratings relied upon by Dr. Forman were expressly rejected by the JCC when he determined that Appellant was permanently and totally, physically disabled as of a certain date that was contested by the Appellees. Even more significantly, the parties stipulated to Appellant’s permanent and total, physical disability based on impairment ratings of doctors, who testified to significantly higher impairment ratings, not relied upon by Dr. Forman. It is inconceivable to me that the JCC was at liberty to accept (along with the parties) the doctors’ higher impairment ratings that were rejected by Dr. Forman, and then accept Dr. Forman’s total reliance upon the lower impairment ratings rejected by the JCC and the parties. An appellate court is not permitted to re-weigh a JCC’s measurement of conflicting CSE, but an appellate court does have the prerogative and, I believe, crucial duty to determine if proffered testimony reaches the threshold of CSE. When testimony is “inherently incredible and improbable,” it does not constitute CSE, and an appellate court has the authority and duty to correct the testimony’s usage. Shaw v. Shaw, 334 So.2d 13, 17 (Fla.1976). To accept any other principle removes logic and reason from the legal process and thereby relegates the system to one no better than one based upon chance. That is clearly the case here, and by failing to correct the JCC’s acceptance of Dr. For-man’s clearly erroneous testimony, Appellant is denied her entitlement to psychiatric benefits by a misapplication of the standard of appellate review.

For the foregoing reasons, I would reverse and remand for entry of an order granting to Appellant psychiatric benefits and attorney’s fees.

      . Dr. Forman’s testimony was presented by deposition. When this occurs the appellate constraints are not as confining as when a JCC or trial court hears and sees the witness. H & A Frank’s Constr., Inc. v. Mendoza, 582 So.2d 780 (Fla. 1st DCA 1991).

      . The parties and the JCC relied upon Appellant's impairment ratings of 15 percent for her knees and 6 percent for her wrist.


author: PER CURIAM.

text:
    Joe Louis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1831.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Rehearing Denied Oct. 24, 2003.
    Joe Louis Smith, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for appellee.
   PER CURIAM.

Convicted of first-degree murder and robbery, Joe Louis Smith appeals the trial court’s order summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rule of Criminal Procedure. He alleges three instances of ineffective assistance of trial counsel, only one of which merits discussion.

Smith complains that his trial counsel was ineffective for failure to object to a six-person jury in a capital murder case, claiming that neither he nor his trial counsel agreed to waive the right to a twelve-person jury. He alleges that while the State at a pretrial conference informed the trial court that it would not be seeking the .death penalty, there was “no indication” of any agreement between the State and the defense to try his case with a six-person jury. The State in its response to this court acknowledges that the record “does not reflect an on-the-record waiver by defense counsel,” but argues that Smith has failed to demonstrate prejudice because his claim that a twelve-person jury would have been more susceptible to reasonable doubt than a six-person jury is “purely speculative” and more is required by the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which originated in the Florida state courts, the United States Supreme Court rejected the argument that a criminal defendant was entitled to a twelve-person jury in a robbery prosecution and explained in some detail why a twelve-person jury is not necessarily more advantageous to a criminal defendant than a six-person jury. The Supreme Court’s reasoning supports the trial court’s denial of Smith’s Rule 3.850 motion in the instant case:

[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representatives cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12— particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size. It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more ‘chances’ of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal. What few experiments have occurred — usually in the civil area — indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.
Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, ... the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.
We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance ‘except to mystics.’ To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions — reflected in the provisions of most States and in our federal system — are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury’s primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors — -a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society’s decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury.

399 U.S. at 100-102, 90 S.Ct. 1893 (footnotes and citations omitted). In summary, the Supreme Court in Williams, while recognizing the prerogative of legislatures to provide for twelve-person juries when the death penalty is sought, nonetheless takes the position that there is no evidence that a twelve-person jury is necessarily more advantageous than a six-person jury to a criminal defendant. Assuming ar-guendo in the instant case that there was in fact no agreement between the State and defense counsel, and that defense counsel simply failed to object to a six-person jury, in light of Williams, Smith has failed to demonstrate the requisite prejudice required by Strickland. The burden placed on Smith by Strickland is to show that there is a reasonable probability that, but for his attorney’s alleged unprofessional errors, the result of the trial with six jurors rather than twelve would have been different. A reasonable probability is a possibility sufficient to undermine confidence in the outcome.

We note that Florida law recognizes a distinction between a criminal defendant’s right to a jury trial with six jurors and a criminal defendant’s right to a twelve-person jury in a capital case. On the one hand, a criminal defendant’s right to a jury trial consisting of “not fewer than six” jurors is guaranteed by Article I, section 22 of the Florida Constitution. A criminal defendant’s right to a twelve-person jury in a capital case is not guaranteed by the Florida Constitution but is provided for by rule and statute. Article I, section 22 states that the number of “jurors, not fewer than six, shall be fixed by law.” The legislature has enacted section 913.10, Florida Statutes to provide that, “Twelve persons shall constitute a jury to try all capital cases.... ” This language is repeated in Rule 3.270 of the Florida Rules of Criminal Procedure. The significance of the form of enactment is that a criminal defendant’s constitutional right to a jury trial with six jurors is fundamental in nature, and a criminal defendant’s statutory right to a twelve-person jury in a capital case is not fundamental. Therefore, a defendant’s personal waiver of this right is not required, as explained in State v. Griffith, 561 So.2d 528, 530 (Fla.1990):

The decision to proceed to trial with a jury of six persons, in lieu of twelve, in exchange for the state’s agreement to waive the death penalty, must be considered a tactical decision.... This tactical decision should be equated with other instances wherein this Court has held a defendant’s personal on-the-record waiver unnecessary for a waiver to be effective.

(footnote and citations omitted).

The trial court’s summary denial of Smith’s motion for post-conviction relief is affirmed.

AFFIRMED.

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

      . Of course, it may well be that there was an agreement that took place either off-the-record or at a hearing that was not transcribed.

      . In a companion opinion released on the same date as Griffith, the supreme court in State v. Joseph, 561 So.2d 534 (Fla.1990), also held that while a twelve-person jury could be waived by the defendant or his counsel, the waiver must appear on the record. However, Joseph was a direct appeal, not a post-conviction proceeding, and unlike the instant case, the defendant in Joseph was not required to prove the required prejudice established by the Supreme Court in Strickland.


author: ALTENBERND, Chief Judge.

text:
    Dedrick POPE, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D02-846, 2D02-864.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Dedrick Pope appeals his judgments and sentences for armed robbery, resisting arrest without violence, and felon in possession of a firearm. He argues that the trial court erred when it denied his motion to withdraw his plea. We affirm. We write only to explain that a defendant is authorized to file a motion to withdraw a plea prior to sentencing even if the defendant pleaded nolo contendere.

Mr. Pope was charged with these three offenses in April 2001. Because he had four prior robbery convictions and an aggravated battery conviction, he qualified for treatment as a habitual violent felony offender. Under the guidelines, the shortest sentence he could receive if convicted was approximately eleven years’ incarceration. The armed robbery could have resulted in a life sentence.

On August 24, 2001, Mr. Pope signed a written plea agreement. He agreed to plead nolo contendere in exchange for a fifteen-year term of incarceration as a habitual violent felony offender. The trial court conducted a thorough plea hearing, explaining that the fifteen-year term was the minimum mandatory term for the armed robbery. The trial court accepted the plea and adjudicated Mr. Pope guilty of the offenses. Sentencing was scheduled for a later date.

Prior to sentencing, Mr. Pope filed a pro se motion to withdraw his plea. The trial court held a hearing on the motion. At the hearing on the motion to withdraw plea, the State argued that Mr. Pope had no right to file a motion to withdraw his plea prior to sentencing because Florida Rule of Criminal Procedure 3.170(f) does not provide for a withdrawal of a nolo contendere plea prior to sentencing. The trial court rejected the State’s argument but denied the motion as legally insufficient. We affirm both aspects of the trial court’s ruling.

Admittedly, rule 8.170(f) is entitled “Withdrawal of Guilty Plea.” This rule was first adopted as a statute in 1939 and has remained substantially unchanged since that time. See ch. 19554, § 149, Laws of Fla. (1939); see also § 909.13, Fla. Stat. (1941); In re Florida Rules of Criminal Procedure, 272 So.2d 65, 93 (Fla.1972). The language of the rule only discusses the possibility of withdrawing a guilty plea. Pleas of nolo contendere simply are not mentioned in the rule.

Despite the language in rule 3.170(f), we conclude that Mr. Pope was authorized to file this motion. Appellate courts have often reviewed cases in which defendants have filed motions to withdraw nolo pleas without any serious discussion of the matter. See, e.g., Peterson v. State, 350 So.2d 565 (Fla. 1st DCA 1977). While dissenting in a case in which the Third District reversed an order granting a motion to withdraw a nolo contendere plea, Judge Barkdull parenthetically noted that a nolo contendere plea was the same as a guilty plea. See State v. Braverman, 348 So.2d 1183, 1188 (Fla. 3d DCA 1977) (Barkdull, J., dissenting). In other contexts, the courts have often equated a plea of nolo contendere to a guilty plea. Smith v. State, 184 So.2d 458 (Fla. 2d DCA 1966); Peel v. State, 150 So.2d 281 (Fla. 2d DCA 1963); Russell v. State, 233 So.2d 148, 149 (Fla. 4th DCA 1970). Appellate courts have continued to review such motions in recent years. See Ayers v. State, 831 So.2d 1260 (Fla. 2d DCA 2002); Glispy v. State, 846 So.2d 1262 (Fla. 4th DCA 2003); Smith v. State, 840 So.2d 404 (Fla. 4th DCA 2003); Moore v. State, 831 So.2d 1237 (Fla. 1st DCA 2002).

Additionally, Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(b), (c) permits an appeal by a defendant who pleads guilty or nolo contendere only when the defendant has properly preserved certain issues by filing a motion to withdraw a plea. It would be inconsistent to interpret the Florida Rules of Criminal Procedure as not permitting a motion to withdraw a nolo contendere plea when the Florida Rules of Appellate Procedure require such a motion to preserve an issue for appeal.

Finally, Florida Rule of Criminal Procedure 3.170(Z), which became effective on January 1, 1997, permits a defendant to file a motion to withdraw a plea after sentencing without regard to whether the plea is one of guilty or nolo contendere. See Amendments to the Florida Rules of Criminal Procedure, 685 So.2d 1253, 1255 (Fla.1996). Thus, if we were to literally construe rule 3.170(f), a defendant who wished to withdraw a plea of nolo conten-dere could do so only after sentencing, while pleas of guilty could be withdrawn both before and after sentencing. There seems to be no rational basis to create such a distinction.

Accordingly, we will continue to treat nolo contendere pleas and guilty pleas the same for purposes of rule 3.170(f).

Affirmed.

SALCINES, J., and GREEN, OLIVER L., Senior Judge, concur.


author: COVINGTON, Judge.

text:
    Britt L. NORTON, SR., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1782.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
   COVINGTON, Judge.

Britt L. Norton, Sr. challenges the summary denial of his petition to expunge or seal the record of his June 1988 arrest. Because Norton failed to follow the proper procedure, we affirm without prejudice.

Section 943.0585(2), Florida Statutes (2002) relates to the expunction of criminal history records, and section 943.059(2) relates to the sealing of such records. Both sections require the petitioner to obtain a certificate of eligibility from the Florida Department of Law Enforcement (FDLE). As no such certificate appears in the record, Norton would not be entitled to ex-punction or sealing under these sections. Therefore, we affirm without prejudice to any right Norton has to once again file his petition in accordance with the applicable statutory requirements.

Affirmed without prejudice.

FULMER and WALLACE, JJ., Concur.


author: DAVIS, Judge.

text:
    FLEET SERVICES CORP., Appellant, v. Gary F. REISE, Appellee.
    No. 2D02-585.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
    Rehearing Denied Oct. 23, 2003.

      Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.
    Bradley W. Lang, Sarasota, for Appel-lee.
   DAVIS, Judge.

Fleet Services Corp. (Fleet) challenges the circuit court order awarding Gary Reise $18,134.50 in attorney’s fees and costs. We affirm the trial court’s determination that Reise is entitled to the award of fees and costs but reverse as to the amount awarded. While Fleet raises other issues on appeal, we decline to address them because we conclude that they have no merit.

The award of fees and costs arises from litigation in which Fleet attempted to collect on a promissory note that Reise allegedly executed in favor of People’s Bank. Although Fleet alleged that it had acquired the promissory note, Fleet did not attach a copy of the note to its complaint. Rather, Fleet attached a copy of a credit application Reise had signed, along with a document entitled “Credit Line Agreement Supplemental Schedule A,” both of which bore the letterhead of People’s Bank. The credit application included the following language: “I/we understand that I/we must pay the bank any expenses it incurs in collecting what I/we owe it, to the extent permitted by law, and that this includes reasonable attorney’s fees and court costs, if the bank sues me to collect.” In its complaint, Fleet requested attorney’s fees, alleging that Reise had contractually agreed to pay the costs of collection, including reasonable attorney’s fees. Reise’s answer denied all allegations but venue, requested dismissal with prejudice, and asked for attorney’s fees pursuant to section 57.105, Florida Statutes (1997).

Admitting that he had made no payments to Fleet, Reise consistently denied having any knowledge of the note or having any relationship with Fleet. After eleven months of discovery, the trial court granted Reise’s motion to strike Fleet’s pleadings as a sanction against the conduct of Fleet’s attorney. Immediately, Fleet filed a notice of voluntary dismissal. However, the trial court sua sponte entered a final order of dismissal with prejudice, finding that because the earlier order striking the pleadings had effectively dismissed the complaint, there was no complaint left for Fleet to voluntarily dismiss. Fleet appealed both the order striking the pleadings and the final order of dismissal. This court determined that Fleet’s voluntary dismissal both divested the trial court of jurisdiction and rendered moot Fleet’s appeal of the order striking its pleadings. See Fleet Servs. Corp. v. Reise, 775 So.2d 383 (Fla. 2d DCA 2000). Accordingly, this court reversed the dismissal with prejudice for lack of jurisdiction and dismissed as moot the appeal of the imposed sanction. Id.

During the pendency of the appeal, Reise moved for attorney’s fees and costs. However, because the appeal was still pending, the trial court ruled the motion premature. At the conclusion of the appeal, Reise again moved for fees, alleging that the provisions of the contested documents and section 57.105 provided the basis for his recovery. The trial court granted Reise’s motion and subsequently entered a judgment against Fleet in the amount of $18,134.50; Fleet appeals that award.

We initially note that the trial court was correct in finding that Reise was entitled to an award of attorney’s fees. When Fleet filed its voluntary dismissal, Reise became entitled to an award of “costs” pursuant to Florida Rule of Civil Procedure 1.420(d). The Florida Supreme Court has held that when an agreement between the parties provides that the term costs includes attorney’s fees, such fees are taxable pursuant to rule 1.420(d). See Wilson v. Rose Printing Co., 624 So.2d 257 (Fla.1993). The parties’ agreement here, as contained in the credit application that Fleet attached to its complaint, defines “expenses” incurred in collection as including court costs and reasonable attorney’s fees. Furthermore, Fleet’s complaint alleged that pursuant to the language of the agreement, Reise had contractually obligated himself to pay attorney’s fees. Although this agreement specifically provides that only the borrower is obligated to the bank, section 57.105(2) renders such an agreement reciprocal in application. Since Fleet voluntarily dismissed its action, the merits of the action were not reached and the validity of the obligations was not determined. Accordingly, pursuant to rule 1.420(d), Fleet is obligated to pay costs, which are defined by the agreement to include attorney’s fees.

Reise concedes that the trial court erred in determining the amount of the fees awarded by including fees incurred after entry of the April 26, 2001, order determining his entitlement to fees. See Barron Chase Sec., Inc. v. Moser, 794 So.2d 649 (Fla. 2d DCA 2001). We agree that the fees incurred after that date were improperly assessed because the sole issue that remained after April 26, 2001, was the amount of the fees. Based on this miscalculation, Reise suggests that the final judgment on fees be modified to reflect an award of $14,194.50 plus interest.

Fleet, however, argues that a further reduction is appropriate. It maintains that the fee agreement between Reise and his attorney provided:

I authorize you to do and perform all acts on my behalf only through trial, final hearing and final judgment. This does not include appeals, modifications of any final orders, or any other post-judgment proceedings.

Based on this agreement, Reise’s attorney refused to represent Reise in Fleet’s appeal of the dismissal with prejudice because Reise did not have the money to pay for the appeal. Upon completion of the appeal, Reise again contacted his attorney and asked him to “go ahead and finish this, so you can get paid.” Fleet argues that this statement did not amount to either an oral employment contract or an oral extension of the written fee agreement. Fleet therefore maintains that Reise was not obligated for attorney’s fees for services performed after the entry of the final order of dismissal and that the trial court erred in awarding fees for those services.

If a client is not obligated to pay his attorney for work performed, the attorney is not entitled to collect any fees incurred in an effort to obtain an order of entitlement to fees. Moore v. Excal Enters., Inc., 769 So.2d 1062 (Fla. 2d DCA 2000). Whether an obligation to pay exists is a factual determination. Here, the testimony of Reise’s attorney regarding the oral agreement is susceptible of more than one understanding. However, we cannot say that the trial court abused its discretion in finding that the conversation obligated Reise to pay the additional attorney’s fees. Thus, we affirm as to the trial court’s determination that fees should be awarded for the services rendered in litigation of the entitlement to fees issue.

Accordingly, we affirm the trial court’s judgment awarding Reise attorney’s fees for services rendered up until the entry of the April 26, 2001, order. However, we reverse the amount of the fees awarded by the final judgment and remand for modification of the amount consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

SALCINES and VILLANTI, JJ„ Concur.

      . The specific nature of that conduct is irrelevant to this analysis.


text:
    Robert AYER and Audree Ayer, Appellants, v. Melvin BUSH, Appellee.
    No. 4D02-4149.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    James A. Freese, Stuart, for appellants.
    Julie K. Oldehoff of Oldehoff Law Offices, P.A., Stuart and Leif J. Grazi of Grazi & Gianino, Stuart, for appellee.
   PER CURIAM.

We affirm the Second Amended Final Judgment. However, the parties agree that footnote two (2) of the judgment incorrectly characterizes Mr. Bush and Mrs. Malkus as joint tenants with rights of sur-vivorship. For that reason, we remand the case to the trial court to strike footnote two from the Second Amended Final Judgment.

AFFIRMED.

STEVENSON, MAY, JJ. and CHAVIES, MICHAEL B., Associate Judge, concur.


text:
    Michael ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2224.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2003.
    James Marion Moorman, Public Defender, and Maura J. Kiefer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Sr., Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Allen might have to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a). See Smith v. State, 824 So.2d 263 (Fla. 2d DCA 2002); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000).

CASANUEVA, CANADY, and VILLANTI, JJ., Concur.


author: CASANUEVA, Judge.

text:
    George CHERRYHOMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1929.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2003.
   CASANUEVA, Judge.

George Cherryhomes challenges the order of the trial court denying his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the trial court’s denial of the motion on the ground that it is facially insufficient. Our affirmance is without prejudice to any right Cherry-homes might have to file a facially sufficient rule 3.853 motion containing an adequate oath within sixty days from the date of the issuance of our mandate in this case. See Saffold v. State, 850 So.2d 574 (Fla. 2d DCA 2003).

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.

      . An affirmation that the statements made in the motion are true "to the best of my knowledge and belief" is not an adequate oath where the Florida Rules of Criminal Procedure require that a postconviction motion be under oath. See Braun v. State, 789 So.2d 1250, 1251 n. 1 (Fla. 4th DCA 2001).


author: WEBSTER, J.

text:
    GAINESVILLE HEALTH CARE CENTER, INC., as licensee and d/b/a Integrated Health Services at Gainesville, Appellant, v. Margaret WESTON, as Personal Representative of the Estate of Isabella Brooks, Appellee.
    No. 1D02-5101.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2003.
    Rehearing Denied Oct. 23, 2003.

      R. Daniel Noey and Charles G. Eich-horn, Jr., of Dore, Lanier, Noey, & Fan-nin, Chartered, Jacksonville, for Appellant.
    Gerald D. Schackow of Schackow & Mercadante, PA, Gainesville, for Appellee.
   WEBSTER, J.

Appellant seeks review of a non-final order denying its motion to compel arbitration and abate appellee’s civil action. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.030(b)(1)(B), 9.130(a)(3)(C)(iv). The trial court held that appellant is not entitled to arbitration because the arbitration provision is unconscionable. We conclude that the trial court’s determination that the arbitration provision is procedurally unconscionable is erroneous as a matter of law, and that appellee’s alternative arguments regarding unenforceability of the arbitration provision are legally without merit. Accordingly, we reverse.

I.

Appellee, as personal representative of the estate of Isabella Brooks, filed a civil damage action against appellant, asserting claims based on negligence, wrongful death and violation of section 400.022, Florida Statutes (sometimes referred to as the nursing home residents’ bill of rights). Appellant responded by filing a motion to compel arbitration and abate proceedings. Attached to that motion was a six-page document titled “Admission Contract,” which appellant asserted had been executed on Isabella Brooks’ behalf by her daughter, Barbara West, pursuant to a power of attorney previously executed by Ms. Brooks. That document includes the following provision:

VI. ARBITRATION
Except as prohibited by applicable law, pursuant to the Federal Arbitration Act, any action, dispute, claim, or controversy of any kind (e.g., whether in contract or in tort, statutory or common law, legal or equitable, or otherwise) now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with the provision of healthcare services, any agreement between the parties, the provision of any other goods or services by the Health Care Center or other transactions, contracts or agreements of any kind whatsoever, any past, present, or future incidents, omissions, acts, errors, practices, or occurrence causing injury to either party whereby the other party or its agents, employees or representatives may be liable, in whole or in part, or any other aspect of the past, present, or future relationships between the parties shall be resolved by binding arbitration administered by the National Health Lawyers Association (the “NHLA”).

Immediately below this provision is the following:

THE UNDERSIGNED ACKNOWLEDGE THAT EACH OF THEM HAS READ AND UNDERSTOOD THIS CONTRACT, AND THAT EACH OF THEM VOLUNTARILY CONSENTS TO ALL OF ITS TERMS

The signature lines are immediately below this language. In two memoranda opposing appellant’s motion to compel arbitration, appellee raised a number of issues, including that the arbitration provision is procedurally and substantively unconscionable.

At the hearing held on appellant’s motion to compel arbitration, the parties relied exclusively on the documents executed by Ms. West on her mother’s behalf and the depositions of Ms. West and Tammy Miller, the employee of appellant with whom Ms. West dealt. Viewed in a light most favorable to appellee, those depositions establish that Ms. West and her sister (appellee) desired to transfer Ms. Brooks from the nursing home where she was residing to appellant’s facility because they were dissatisfied with the care their mother had received at the first facility. Ms. Brooks was admitted to appellant’s facility on February 9, 2001. After Ms. Brooks had been admitted to appellant’s facility, Ms. West made an appointment to meet with Tammy Miller. That meeting occurred at appellant’s facility on March 28, 2001.

The meeting between Ms. West and Ms. Miller took place during the former’s lunch break. It probably lasted 15 to 20 minutes. During that meeting, Ms. West told Ms. Miller that she possessed a power of attorney on behalf of her mother, and executed several documents in that capacity. One of those documents was the Admission Contract. No substantive discussion occurred regarding that document. Ms. West (who is a high school graduate and, at the time, held a clerical/administrative position with a major healthcare provider) asked no questions about it; nor did she indicate that she had not read and understood it, as the acknowledgment immediately preceding the signature line recited (although she now claims that she did not read it before she executed it). Ms. West did not ask to be permitted to take the documents with her, so that she might study them or seek the advice of a lawyer or other more knowledgeable person before signing. Had she done so, that would have been permitted. It is clear that any haste associated with reviewing and signing the documents was self-imposed by Ms. West. There is no suggestion that the Admission Contract was presented on a “take-it-or-leave-it” basis; nothing to suggest that, had Ms. West requested to amend that document in some material respect, such a request would have been denied; and no evidence that Ms. West could not have obtained a satisfactory placement for her mother except by acquiescing to the terms of the contract.

During the hearing, the trial court observed that it appeared Ms. West had had “ample opportunity” to read the documents before she executed them. It noted that Ms. Brooks had been residing at appellant’s facility for several weeks before the documents were executed and that, had Ms. West been uncomfortable with the documents, she might have taken them home to study or discuss “with other family members or trusted friends or advisers.” The court also noted that Ms. West could have had a lawyer review them, had she so desired. Notwithstanding those observations, however, at the conclusion of the hearing the trial court held that the Admission Contract was procedurally and substantively unconscionable. (It did not expressly hold that the arbitration provision contained in that document was, likewise, unconscionable, but it is clear that such was its intent.) It based that holding on the findings that the Admission Contract was a “contract of adhesion”; that nobody on behalf of appellant explained the terms of the arbitration provision to Ms. West, including what arbitration is and what rights appellee would be giving up; and that Ms. West did not understand the arbitration provision. More particularly, the trial court was of the opinion that appellant was obliged to explain to Ms. West that, by signing the Admission Contract, appellee would be giving up the right to a trial in a court; that appellee’s choice of arbitrators would be limited to a group likely to be biased in favor of appellant; that the burden of persuasion on some types of claims would be greater than it would in a court; and that appellee would be subject to a different rule regarding the award of attorney’s fees from that applicable in a court. The trial court incorporated its findings and holding by reference in a subsequent order denying appellant’s motion to compel arbitration and abate the action. This appeal follows.

II.

-A.

The arbitration provision in the Admission Contract provides that the Federal Arbitration Act (9 U.S.C. §§ 1-16) is to apply to any subsequent dispute. The parties have not specifically addressed whether that Act or the Florida Arbitration Code (ch. 682, Fla.Stat.) controls, and the trial court made no ruling on this question. However, for purposes of this appeal, the answer is irrelevant because the analysis is the same in either case.

According to our supreme court,

[ujnder both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitra-ble issue exists; and (3) whether the right to arbitration was waived.

Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int’l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). Accord John B. Goodman Ltd. P’ship v. THF Constr., Inc., 321 F.3d 1094 (11th Cir.2003). Pursuant to the first element for consideration, it is relatively clear that the issue is “whether a valid written agreement to arbitrate exists,” not whether a valid written contract containing an arbitration provision exists. Seifert, 750 So.2d at 636; John B. Goodman Ltd. P’ship, 321 F.3d at 1095-98. This focus on the validity of the arbitration provision, rather than of the contract containing the provision, is the result of the holding by the United States Supreme Court in a case construing the Federal Arbitration Act “that[,] in passing upon a[n] ... application for a stay while the parties arbitrate, a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). It has become known as the “separability” doctrine. John B. Goodman Ltd. P’ship, 821 F.3d at 1095. See also Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344, 347 (Fla. 4th DCA 1992) (discussing “separability” pursuant to section 682.03 of the Florida Arbitration Code). While the trial court did not expressly hold that the arbitration provision, as opposed to the Admission Contract, was unenforceable, it is clear that such was its intent, and that the parties presented the issue that way. No issue has been raised as to either the existence of an arbitrable issue or waiver by appellant of the right to arbitrate. Accordingly, we are concerned only with whether the arbitration provision contained in the Admission Contract is ‘Valid.”

Both the Federal Arbitration Act and the Florida Arbitration Code permit a challenge to the validity of an arbitration provision based upon any state-law contract defense. See Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (holding that section 2 of the Federal Arbitration Act permits “generally applicable contract defenses, such as fraud, duress, or uncon-scionability, [to] be applied to invalidate arbitration agreements”); Medident Constr., Inc. v. Chappell, 632 So.2d 194, 195 (Fla. 3d DCA 1994) (fraud and other grounds for avoidance or invalidation of a contract may be applied to invalidate an arbitration agreement). In Florida, a court may decline to enforce a contract on the ground that it is unconscionable. E.g., Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). Because the trial court refused to enforce the arbitration provision contained in the Admission Contract on the ground that it was unconscionable, we must review the propriety of that determination.

The trial court’s decision was based in part on factual findings. Accordingly, it presents a mixed question of law and fact. The standard of review applicable to the trial court’s factual findings is whether they are supported by competent, substantial evidence. E.g., State v. Wilford, 720 So.2d 617, 618 (Fla. 1st DCA 1998). However, the standard of review applicable to the trial court’s construction of the arbitration provision, and to its application of the law to the facts found, is de novo. See, e.g., Powertel, 743 So.2d at 573 (construction of contracts, including arbitration provisions, presents an issue of law, subject to de novo review); Connor v. State, 803 So.2d 598, 608 (Fla.2001) (the application of the law by the trial court to the facts found by it presents an issue of law, subject to de novo review).

B.

The concept of uneonscionability has been described as “chameleon-like,” Steinhardt v. Rudolph, 422 So.2d 884, 890 (Fla. 3d DCA 1982), and as “ ‘so vague ... that neither the courts, practicing attorneys, nor contract draftsmen can determine with any degree of certainty ... ’ when it will apply in any given situation.” Fotomat Corp. of Fla. v. Chanda, 464 So.2d 626, 628 n. 1 (Fla. 5th DCA 1985) (quoting from 15 Samuel Williston, A Treatise on the Law of Contracts § 1763A (3d ed.1972)). It has been referred to as a “safety valve in our law of contracts” to permit courts to refuse to enforce a contract when to enforce it “ ‘would not be in keeping with the basic function of any court — the administration of justice.’ ” Steinhardt, 422 So.2d at 890 (citation omitted). One Florida court has said that “[s]ynonyms for the term unconscionable include ‘shocking to the conscience’ and ‘monstrously harsh.’ ” Garrett v. Janiewski, 480 So.2d 1324, 1326 (Fla. 4th DCA 1985) (quoting from Jeffery v. Weintraub, 32 Wash.App. 536, 648 P.2d 914 (1982), and Montgomery Ward & Co. v. Annuity Bd. of S. Baptist Convention, 16 Wash.App. 439, 556 P.2d 552 (1976)).

In an early case explaining the modern application of unconscionability, the court said that “[u]nconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965) (citing Campbell Soup Co. v. Wentz, 172 F.2d 80 (3d Cir.1948), and Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960)). Florida courts have adopted this description. E.g., Fotomat, 464 So.2d at 628; Steinhardt, 422 So.2d at 889; Kohl v. Bay Colony Club Condo., Inc., 398 So.2d 865, 867-68 (Fla. 4th DCA 1981). However, Florida courts have also emphasized that the concept is to be used with great caution:

[The concept of unconscionability] does not mean, however, that a court will relieve a party of his obligations under a contract because he has made a bad bargain containing contractual terms which are unreasonable or impose an onerous hardship on him. Indeed, the entire law of contracts, as well as the commercial value of contractual arrangements, would be substantially undermined if parties could back out of their contractual undertakings on that basis. “‘People should be able to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain. Also, they should be permitted to enter into contracts that actually may be unreasonable or which may lead to hardship on one side. It is only where it turns out that one side or the other is to be penalized by the enforcement of the terms of a contract so unconscionable that no decent, fairminded person would view the ensuing result without being possessed of a profound sense of injustice, that equity will deny the use of its good offices in the enforcement of such uncon-scionability.’ ”

Steinhardt, 422 So.2d at 890 (quoting from 14 Samuel Williston, A Treatise on the Law of Contracts § 1632 (3d ed.1972)). Accord Fotomat, 464 So.2d at 630.

Before a court may hold a contract unconscionable, it must find that it is both procedurally and substantively unconscionable. E.g., Bellsouth Mobility LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002); Powertel, 743 So.2d at 574; Complete Interiors, Inc. v. Behan, 558 So.2d 48, 52 (Fla. 5th DCA 1990); Steinhardt, 422 So.2d at 889; Kohl, 398 So.2d at 867. To determine whether a contract is procedurally unconscionable, a court must look to the “circumstances surrounding the transaction” to determine whether the complaining party had a “meaningful choice” at the time the contract was entered. Williams, 350 F.2d at 449. Accord Steinhardt, 422 So.2d at 889; Kohl, 398 So.2d at 869. Among the factors to be considered are whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract, or whether the terms were merely presented on a “take-it-or-leave-it” basis; and whether he or she had a reasonable opportunity to understand the terms of the contract. As one Florida court has noted, while this may “require[ ] an examination into a myriad of details including [the complaining party’s] experience and education and the sales practices that were employed by the [other party] ..., the basic concept is ‘an absence of meaningful choice.’ ” Kohl, 398 So.2d at 869. To determine whether a contract is substantively unconscionable, a court must look to the terms of the contract, itself, and determine whether they are so “outrageously unfair” as to “shock the judicial conscience.” See, e.g., Belcher v. Kier, 558 So.2d 1039, 1043 (Fla. 2d DCA 1990) (declining to equate “unconseionability” with mere “unreasonableness”); Free Unitholders of Outdoor Resorts at Orlando, Inc. v. Outdoor Resorts of Am., Inc., 460 So.2d 382, 383 (Fla. 2d DCA 1984); Steinhardt, 422 So.2d at 889.

III.

As discussed above, to determine whether a contract is procedurally unconscionable, a court must look to the “circumstances surrounding the transaction” to determine whether the complaining party had a “meaningful choice” at the time the contract was entered. Williams, 350 F.2d at 449. Accord Steinhardt, 422 So.2d at 889; Kohl, 398 So.2d at 869.

A.

It is apparent that a principal basis for the trial court’s conclusion that the arbitration provision is procedurally unconscionable was its finding that the Admission Contract (and, therefore, the arbitration provision) is a “contract of adhesion.” Either the trial court applied a legally incorrect definition of what constitutes a “contract of adhesion,” or its finding in this regard is unsupported by competent, substantial evidence.

We have previously defined “an adhesion contract” as

a “standardized contract form offered to consumers of goods and services on essentially [a] ‘take it or leave it’ basis without affording [the] consumer [a] realistic opportunity to bargain and under such conditions that [the] consumer cannot obtain [the] desired product or services except by acquiescing in the form contract.”

Powertel, 743 So.2d at 574 (quoting Black’s Law Dictionary (6th ed.1990)). As we said in Powertel, the fact that a contract is one of adhesion is a strong indicator that the contract is procedurally unconscionable because it suggests an absence of “meaningful choice.” Id. at 574-75. Although the parties appear to have agreed in their legal memoranda filed in the trial court that the foregoing definition is correct, it is unclear whether the trial court used it. To the extent that it did, however, it is clear that the evidence was insufficient as a matter of law to permit the finding that the Admission Contract is a “contract of adhesion.”

It appears that the Admission Contract was pre-printed. However, there is no evidence to support a finding that it was offered to Ms. West (or anybody else) on a “take-it-or-leave-it” basis. More particularly, there is nothing to suggest that, had Ms. West so requested, the arbitration provision would not have been deleted. There is also no evidence that Ms. West could not have obtained a satisfactory placement for her mother except by acquiescing to the terms as written. Certainly, nothing on the face of the Admission Contract permits such findings.

B.

The trial court also based its conclusion that the arbitration provision is procedurally unconscionable on its findings that nobody associated with appellant explained its terms to Ms. West, and that Ms. West did not understand the provision. More particularly, the trial court found that Ms. West was not told that, by signing the Admission Contract, appellee would be giving up the right to a trial in a court; that appellee’s choice of arbitrators would be limited to a group likely to be biased in favor of appellant; that the burden of persuasion on some types of claims would be greater than it would in a court; and that appellee would be subject to a different rule regarding the award of attorney’s fees from that applicable in a court. These findings are in part unsupported by competent, substantial evidence. They are also insufficient, as a matter of law, to support the conclusion that the arbitration provision is procedurally unconscionable.

1.

There is no evidence to support the determination that appellee’s choice of arbitrators would be limited to a group likely to be biased in favor of appellant. The evidence regarding the organization from which the arbitrators must be chosen according to the arbitration provision was limited to a stipulation. It recited that the organization “is the nation’s largest! ] nonpartisan, ... educational organization devoted to legal issues in the healthcare field”; that it “is now the nation's largest educational association devoted to legal issues in the health industry[,] with 9,000 members”; that, while it “is made up of primarily health-related attorneys who represent and counsel hospitals and hospital systems, physicians, managed care organizations, insurers, long term care facilities, home health agencies, and other healthcare entities on business, corporate and regulatory matters,” it also has members who are “physicians, accountants, and healthcare executives”; and that its “Alternative Dispute Resolution Service ... [has] established] and maintain[s] panels of trained healthcare arbitrators, mediators, hearing officers and other dispute resolvers.” No evidence was presented to indicate that Ms. West would be unable to obtain an unbiased arbitrator from the organization. Like the United States Supreme Court, in the absence of such evidence, “ ‘[w]e decline to indulge the presumption that the parties and arbi-tral body conducting a proceeding will be unable or unwilling to retain competent, conscientious and impartial arbitrators.’” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 30, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (rejecting a claim that arbitration panels would be biased, and quoting from Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 634, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

2.

There is, likewise, no evidence to support the determination that appellee’s burden of persuasion would be greater in arbitration than it would in a court on any of the claims raised in the complaint. The parties stipulated that, pursuant to the rules of the organization designated to arbitrate any disputes, punitive damages may only be recovered if “the arbitrator determines ... that there is clear and convincing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual or presumed.” This standard is not different in substance from the standard generally applicable in Florida. See Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486-87 (Fla.1999). However, appellee argued in the trial court that the burden of persuasion required to obtain punitive damages pursuant to the claim for violation of the nursing home residents’ bill of rights (§ 400.022) was only by the greater weight of the evidence. According to appellee, the arbitration provision was unconscionable because it failed to disclose that the burden of persuasion on such a claim would be greater in arbitration than it would in a court. Appellee also claimed that the arbitration provision was unconscionable because it failed to disclose that, while the arbitrator may award attorney’s fees to the prevailing party, a party prevailing in court on a damage claim for a violation of the nursing home residents’ bill of rights must be awarded attorney’s fees. Apparently, the trial court accepted these representations regarding a claim for violation of a nursing home resident’s rights. Our review of the relevant statutory provisions, however, leads us to conclude that the representations were incorrect.

Appellee’s claim for a violation of the nursing home residents’ bill of rights (§ 400.022) is controlled by the 2001 versions of the relevant statutory provisions. Effective May 15, 2001, those provisions were amended in significant respects. Ch.2001-45, Laws of Fla. Section 400.0237 was created, providing (in subsection (4)) that “[t]he plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages.” Ch.2001-45, § 9, at 229, Laws of Fla. In addition, section 400.023(1) was amended to provide that attorney’s fees to a prevailing party “shall be awarded solely for ... injunctive or administrative relief and not for any claim or action for damages whether such claim or action is brought together with a request for an injunction or administrative relief or as a separate action, except as provided under s. 768.79 [relating to offers of judgment] or the Florida Rules of Civil Procedure.” Ch.2001-45, § 4, at 221, Laws of Fla. Accordingly, there was no basis for the representations made by appellee in the trial court.

3.

The trial court’s conclusion that the arbitration provision is procedurally unconscionable also appears to have been based upon either a misunderstanding regarding the law, or a misapplication of the law to the facts. This is because, as we have previously stated, to determine whether a contract is procedurally unconscionable, a court must look to the “circumstances surrounding the transaction” to determine whether the complaining party had a “meaningful choice” at the time the contract was entered. Williams, 350 F.2d at 449. Accord Steinhardt, 422 So.2d at 889; Kohl, 398 So.2d at 869. It appears that the trial court either failed to apply this law, or misapplied it to the facts.

There is competent, substantial evidence to support the trial court’s findings that nobody associated with appellant explained the terms of the arbitration provision to Ms. West, and that Ms. West did not understand the arbitration provision. However, these are only two of the “circumstances surrounding the transaction.” To determine whether Ms. West had a “meaningful choice” at the time she executed the Admission Contract, all of the circumstances must be considered. Although the trial court noted that Ms. West had had “ample opportunity” to read the documents before she executed them and that, had she been uncomfortable with them, she might have taken them home to study or discuss “with other family members!,] ... trusted friends or advisers” or a lawyer, it does not seem to have given these facts any weight. Among the other circumstances which the trial court does not appear to have given any weight are the facts that Ms. West asked no questions about the arbitration provision and said or did nothing to indicate she had not read and understood that provision before she executed the contract (as the acknowledgment immediately above the signature lines recited); there is nothing to suggest that the contract was presented on a “take-it-or-leave-it” basis, or that, had Ms. West requested that the arbitration provision be deleted, it would not have been; there is no evidence that Ms. West could not have obtained a satisfactory placement for her mother except by acquiescing to the terms of the contract; and that, to the extent Ms. West did not, in fact, read the arbitration provision, nothing appellant did or said had any impact on her failure to do so. In short, if one looks to all of the “circumstances surrounding the transaction,” it is simply not reasonably possible to reach the conclusion that Ms. West had no “meaningful choice” at the time she executed the Admission Contract.

C.

To permit one to avoid the requirements of the arbitration provision on the basis of the evidence presented to the trial court would stand contract law on its head. One should not be permitted to avoid the consequences of a contract freely entered into simply because he or. she elected not to read and understand its terms before executing it, or because, in retrospect, the bargain turns out to be disadvantageous. To sanction such a result would be to render contracts worthless as a tool of commerce.

As the party seeking to avoid the arbitration provision on the ground of un-conscionability, the burden was on appellee to present evidence sufficient to support that claim. E.g., Complete Interiors, 558 So.2d at 53; Meeting Makers, Inc. v. Am. Airlines, Inc., 513 So.2d 700, 701 (Fla. 3d DCA 1987). That burden encompassed the obligation to prove both procedural and substantive unconscionability. E.g., Bellsouth Mobility, 819 So.2d at 173; Powertel, 743 So.2d at 574; Complete Interiors, 558 So.2d at 52; Steinhardt, 422 So.2d at 889; Kohl, 398 So.2d at 867. Because appellee failed to present evidence sufficient to establish that the arbitration provision is procedurally unconscionable, she failed to carry this burden, and we need not decide whether the provision is substantively unconscionable. Having been afforded one opportunity to do so, she is not entitled to a second. Complete Interiors, 558 So.2d at 53 n. 4.

IV.

Perhaps anticipating our decision, appellee argues that, even if the trial court was incorrect on the unconscionability issue, the order denying appellant’s request for arbitration should still be affirmed because the arbitration provision is unenforceable for other reasons — i.e., that the trial court reached the right result, but for the wrong reason. See, e.g., Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002) (explaining what has come to be known as the “tipsy coachman rule”). First, appel-lee claims that there is no arbitration provision to enforce because the Admission Contract, by its own terms, terminated on the date of Ms. Brooks’ death. However, in an identical case, the Second District Court of Appeal has held that such an issue is for the arbitrator, not for the trial court. Estate of Blanchard v. Central Park Lodges (Tarpon Springs), Inc., 805 So.2d 6, 8 (Fla. 2d DCA 2001) (citations omitted). We agree with the Second District. Second, appellee claims that the arbitration provision is unenforceable because it is illegal under federal law which prohibits a nursing home from accepting any additional consideration from a Medicare/Medicaid patient aside from the standard rate paid by Medieare/Medicaid. 42 C.F.R. § 483.12(d)(3). We have found no authority from any jurisdiction which holds that an arbitration provision constitutes “consideration” in this sense; nor do we believe that the federal regulation was intended to apply to such a situation. Finally, appellee claims that the arbitration provision is invalid and unenforceable because it constitutes an act of self-dealing in violation of appellant’s fiduciary duty to Ms. Brooks. In the first place, no evidence was presented sufficient to establish the existence of a fiduciary duty owed by appellant to Ms. Brooks. Moreover, assuming that a fiduciary duty did exist, we have found no authority which holds that a fiduciary breaches that duty by entering into an otherwise valid arbitration agreement. Arbitration agreements are a favored means of dispute resolution, and doubts concerning their scope should generally be resolved in favor of arbitration. E.g., Grektorp v. City Towers of Fla., Inc., 644 So.2d 613, 614 (Fla. 2d DCA 1994).

V.

The burden was on appellee to present evidence sufficient to establish that the arbitration provision is unconscionable and, therefore, unenforceable. Because that burden was not carried and appellee’s alternative arguments regarding unen-forceability of the arbitration provision are legally without merit, we reverse and remand with directions that the trial court enter an order granting appellant’s motion to compel arbitration and abate the civil action.

REVERSED and REMANDED, with directions.

KAHN and DAVIS, JJ., concur.


author: STRINGER, Judge.

text:
    Bobby R. GANDY, a/k/a Bobby Degrate, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1703.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
   STRINGER, Judge.

Bobby R. Gandy, a/k/a Bobby Degrate, challenges the order of the trial court summarily denying her “motion to define and clarify.” We treat it as a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without prejudice to any right Gan-dy may have to file a motion to withdraw her plea as involuntarily entered.

Gandy is correct in her claim that, pursuant to her plea form, she was to be sentenced to thirteen months for one count of grand theft and one count of uttering a forged instrument to be served concurrently with any other sentence. However, in pronouncing sentence, the trial court did not specifically state that the sentences were to run concurrently with the sentences previously imposed upon her. The Department of Corrections will therefore run the sentences for the grand theft and uttering a forged instrument consecutively to the sentences previously imposed upon Gandy for offenses that were charged by separate informations. See § 921.16, Fla. Stat. (2002) (requiring sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit to be served consecutively unless the court directs that two or more of the sentences shall be served concurrently).

Gandy’s sentence is not illegal, so rule 3.800(a) is not the proper vehicle for her challenge. Therefore, we affirm without prejudice to any right Gandy may have to seek to withdraw her plea as involuntarily entered in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

WHATLEY and CANADY, JJ., Concur.

      . According to the transcript of the sentencing hearing, Gandy’s attorney informed the court that the plea form indicated that she had agreed to concurrent terms.


author: SILBERMAN, Judge.

text:
    HOME SHOPPING NETWORK, INC. and HSN, LP f/k/a Home Shopping Club, LP, Petitioners, v. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY and National Union Fire Insurance Company of Pittsburgh, PA, Respondents.
    No. 2D03-1153.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
    David T. Knight of Hill, Ward & Henderson, P.A., Tampa, for Petitioners.
    Gary L. Sasso and Jill Bowman of Carlton Fields, P.A., St. Petersburg, and Steven J. Brodie and K. Renee Schimkat of Carlton Fields, P.A., Miami, for Respondents.
   SILBERMAN, Judge.

Home Shopping Network, Inc., and HSN, LP (the petitioners), seek certiorari review of the trial court’s order denying their motion to stay a declaratory judgment action filed by American International Specialty Lines Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pa. (the insurers). Because the petitioners have failed to establish that the denial of their motion to stay constitutes a departure from the essential requirements of law, we deny the petition.

In their declaratory judgment action, the insurers sought to have the trial court determine their duty to defend and to indemnify the petitioners with respect to claims raised against the petitioners in two separately-filed class action lawsuits. The insurers alleged that the class action claims arose prior to the inception of the petitioners’ insurance coverage and that several policy exclusions precluded coverage.

The petitioners sought to stay the declaratory judgment action as to any determination of the insurers’ duty to indemnify. The petitioners argued that (1) if the declaratory judgment action were allowed to proceed while the class actions were pending, a potential existed for inconsistent results; (2) the declaratory judgment action would require the trial court to adjudicate the identical facts and issues that were pending in the class action cases; and (3) the petitioners would suffer prejudice if they had to defend against the declaratory judgment action while also defending against the class actions.

The insurers opposed a stay and argued that (1) an early coverage determination was critical because of the huge potential exposure involved in the class actions; (2) the petitioners had already sued the insurers for bad faith refusal to settle, and the insurers would be forced to evaluate settlement proposals and to possibly settle cases within policy limits without any determination of whether coverage even existed; and (3) the insurers’ defenses against coverage could be established based on exclusions that do not involve disputed issues of fact and the determination of coverage would have no bearing on the factual disputes existing in the class action cases. The trial court denied the motion to stay.

In order to obtain certiorari relief, the petitioners must establish that the trial court’s order departs from the essential requirements of law, that the order will cause material injury to the petitioners throughout the remainder of the proceedings, and that the injury cannot be remedied on plenary appeal after entry of final judgment. Edgar v. Cape Coral Med. Ctr., Inc., 712 So.2d 1209, 1211 (Fla. 2d DCA 1998). After reviewing the arguments and the limited record that is before us, we conclude that the petitioners have not met their burden to show that the trial court departed from the essential requirements of law by denying their motion for stay.

If resolution of the insurer’s duty to indemnify does not require the trial court to determine factual questions that are at issue in the class action lawsuits, then a stay or abatement is a departure from the essential requirements of law. See Indem. Ins. Co. of N. Am. v. Ridenour, 629 So.2d 1053, 1054 (Fla. 2d DCA 1993); TIG Ins. Co. v. Wagner, 707 So.2d 945, 945 (Fla. 4th DCA 1998). Here, at least at this point in the declaratory judgment litigation, it appears that resolution of the indemnity issue does not necessarily involve a determination of facts or issues that are of central concern in the class action lawsuits. Additionally, as noted in Britamco Underwriters, Inc. v. Central Jersey Investments, Inc., 632 So.2d 138, 141 (Fla. 4th DCA 1994),

A prompt determination of coverage potentially benefits the insured, the insurer and the injured party. If coverage is promptly determined, an insurance carrier is able to make an intelligent judgment on whether to settle the claim. If the insurer is precluded from having a good faith issue of coverage expeditiously determined, this interferes with early settlement of claims. The plaintiff certainly benefits from a resolution of coverage in favor of the insured. On the other hand, if coverage does not exist, the plaintiff may choose to cut losses by not continuing to litigate against a defendant who lacks insurance coverage.

We reject without discussion the other arguments raised by the petitioners and, therefore, conclude that the petitioners have not demonstrated that the trial court departed from the essential requirements of law in denying the motion to stay.

Petition denied.

FULMER and CASANUEVA, JJ„ Concur.


text:
    James C. PERMENTER, Petitioner, v. YORK BRIDGE CONCEPTS, INC., a Florida corporation, Respondent.
    No. 2D03-1307.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2003.
    John A. Yanchunis of James Hoyer Newcomer & Smiljanich P.A., Tampa, for Petitioner.
    Richard C. McCrea, Jr., and Ryan D. Barack of Zinober & McCrea, P.A., Tampa, for Respondent.
   PER CURIAM.

Denied. The denial of the petition for writ of certiorari is without prejudice to petitioner’s right to apply to the trial court for a modification of the stay.

FULMER, COVINGTON, and WALLACE, JJ., Concur.