author: SHARP, W., J.

text:
    Kenya R. DOSS, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 5D02-3310.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2003.

      Eric W. Ludwig of Eric W. Ludvig, P.A., Altamonte Springs, for Appellant.
    Ashley N. Rosenthal and John R. Hamilton, of Foley & Lardner, Orlando, for Ap-pellee.
   SHARP, W., J.

Kenya Doss appeals from a final summary judgment against her and in favor of Bank of America (Bank), in a malicious prosecution suit she filed against the Bank. The underlying suit on which the malicious prosecution is based was a civil action in which the Bank sued Doss to collect approximately $5,000.00. The Bank paid $5,000.00 to an unknown person or persons, who presented bogus checks, on which Doss’ endorsement was forged. In granting summary judgment, the trial court ruled that Doss’ malicious prosecution suit could not proceed because, based on the undisputed facts in the record, there had not been a bona fide termination of the underlying suit in Doss’ favor, which is an essential element in a malicious prosecution suit. We reverse because we find, based on this record, that the first suit was terminated in favor of Doss, even though it was dismissed on joint stipulation by the parties.

In contrast to some of the cases cited by the parties in this appeal, the facts and circumstances of the underlying case and its joint dismissal are not in dispute. Thus, it is not necessary for us to remand this case to a fact-finder to resolve disputed questions of fact. See Alamo Rent-A-Car, Inc. v. Mancusi, 599 So.2d 1010 (Fla. 4th DCA 1992), approved in part, quashed in part, 632 So.2d 1352 (Fla.1994); Guzman v. Toyota Motor Credit Corp., 745 So.2d 1123 (Fla. 5th DCA 1999). Rather, the issue is one of law for the court to resolve. See Jones v. State Farm Mutual Automobile Ins. Co., 578 So.2d 783 (Fla. 1st DCA 1991); Della-Donna v. Nova University, Inc., 512 So.2d 1051 (Fla. 4th DCA 1987); Union Oil of California v. Watson, 468 So.2d 349 (Fla. 3d DCA 1985). See also Villa v. Cole, 4 Cal.App.4th 1327, 6 Cal.Rptr.2d 644 (1992).

The Facts.

The record establishes that Doss opened an individual savings account with the Bank in May of 2000, with a deposit of $200.00. She was employed at that time by Miracle Ear as a telemarketer, and she used the savings account to deposit her earnings. She had no checking account and no checks on this account, but would make cash withdrawals from it to pay her rent and other living expenses. There was little activity in this account, and the balance was always quite low.

Some time between July 14, 2000 and July 17, 2000, twenty-eight checks were presented to various branches of the Bank in central Florida to be cashed. Their total exceeded $5,000.00. The checks were drawn on an account in the name of Layla King, which purported to be with the First Union Bank. They named Doss as the payee of the check, and they were endorsed on the back with what purported to be Doss’ signature. The person cashing the checks presented identification indicating she was Doss. The Bank accepted the checks, and paid the person the cash value of each check.

As it turned out, there was no account in the name of Layla King at the First Union Bank, or at least no current one, and First Union returned the checks. The Bank then charged Doss’ savings account based upon their claim of her liability allegedly created by her endorsement on the bogus checks. At that time, Doss had a small balance in her savings account of $37.14. The Bank set that off and closed her account.

The Bank referred this matter to its fraud investigation department. Roy Gon-zaque was assigned to investigate it. He and others from the Bank called Doss to determine whether she had cashed the twenty-eight checks, or had participated in cashing them in any way. Gonzaque testified in his deposition that he concluded Doss had nothing to do with the check-cashing scheme, and that a “customer impersonator” had defrauded the Bank. This kind of fraud had been perpetrated against the Bank more than ten times in the past five years. In concluding that Doss was not responsible for the fraudulent activity, he recommended that no collection be pursued against her. His report was filed with his supervisor, Donald Blinn, in September of 2000 and placed on the Bank’s computer system.

Blinn testified in his deposition that he had no basis to question Gonzaque’s report and he “closed out” the file in January of 2001. He had heard nothing more about this matter until shortly before his deposition in March of 2002, in connection with this malicious prosecution suit, when he learned that the Bank had filed suit against Doss, seeking collection of the bogus or forged checks, fees, interest, and other penalties.

On May 12, 2001, for reasons no one could explain the Bank filed suit against Doss in the County Court for Orange County, Florida, for damages in the sum of $5,309.80, plus interest, costs and attorney’s fees. The case had not proceeded very far before the Bank discovered it had a problem based on its fraud investigation report. On August 22, 2001, an attorney for the Bank wrote a letter to Doss’ attorney offering to settle the case “for the amount you say is due, that being $37.14.” He also enclosed a copy of the savings account contract between Doss and the Bank, which indicated there was no basis for an award of attorney’s fees. Doss and her attorney agreed to a joint stipulation for dismissal on that basis, and the County Court dismissed the lawsuit and counterclaim with prejudice. The Bank paid Doss $37.14.

Thus the stage was set for this proceeding. In December 2001, Doss sued the Bank in circuit court for malicious prosecution, based on its having sued her to collect the sums it lost in paying the bogus or forged checks. The Bank filed an answer and an affirmative defense, claiming that there had not been a “bona fide termination” of the collection suit because it was dismissed by the joint stipulation of the parties. The Bank argued the joint dismissal was bargained for because Doss received $37.14 (the balance of her savings account prior to the Bank’s wrongful setoff due to the bogus or forged checks), waived any interest due on that sum, and neither party pursued attorney’s fees. The Bank filed a motion for summary judgment on the same grounds. After hearing argument of counsel at the summary judgment hearing, the trial court granted the Bank’s motion.

The Law.

It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a “bona fide termination” in that party’s favor. Alamo Rent-A-Car; Union Oil of California at 353. This is a fancy phrase which means that the first suit, on which the malicious prosecution suit is based, ended in a manner indicating the original defendant’s (and current plaintiffs) innocence of the charges or allegations contained in the first suit, so that a court handling the malicious prosecution suit, can conclude with confidence, that the termination of the first suit was not only favorable to the defendant in that suit, but also that it demonstrated the first suit’s lack of merit. Prosser, Torts 4th ed, at 838; 850-51; Restatement of Torts 2d (1077), § 660 Comment a; Villa v. Cole. Therefore, suits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not “bona fide terminations” and will not support a malicious prosecution suit. See Union Oil (comprehensive discussion by Judge Ferguson).

Because lawsuits that end as the result of settlements or joint stipulations generally do not clearly demonstrate the lack of merit of the first suit, they are usually found insufficient to constitute “bona fide terminations” of the prior litigation. Della-Donna; Webb v. Youmans, 248 Cal.App.2d 851, 57 Cal.Rptr. 11 (1967); Villa v. Cole; Prosser, Torts 4th ed., at 854. However, Florida courts take the view that bargaining or negotiating for the termination of litigation does not always negate the bona fide nature of the termination. Alamo Rent-A-Car at 1355. Whether a withdrawal or abandonment of a lawsuit constitutes a bona fide termination in favor of a person against whom the suit was brought, depends on the total circumstances surrounding the withdrawal or abandonment. Union Oil of California, 468 So.2d at 355; Restatement Torts 2d, § 674 comment on clause (b). It is favorable if the dismissal indicates the lack of merit of the case against the defendant in a civil case.

Analysis.

The Bank argues that its payment of $37.14 was “bargained for” as part of the joint stipulation, and although not a substantial sum, it was sufficient to indicate the conclusion of the collection suit was not a bona fide termination. In our view, it is not the paucity of the amount involved in the counterclaim that is critical; it is its nature.

In the collection suit, the Bank had sought to recover the sums from Doss which it paid out on the bogus or forged checks, as it admitted in this lawsuit, completely without legal justification. As part of the effort to recover those losses, it unilaterally “setoff’ her savings account, which then had the small balance of $37.14. But the Bank had no more legal right to take Doss’ savings account balance than it did to sue her for the bogus or forged checks it cashed. Restitution of Doss’ savings account balance was inextricably connected with the Bank’s misguided collection suit, and if anything, its payment demonstrated the Bank’s opinion of Doss’ complete innocence in the total circumstances surrounding the collection suit.

The Bank also argues that the joint stipulation to dismiss was bargained for because Doss waived her right to claim interest on her $37.14 savings account balance. In Doss’ response to the Bank’s attorney’s letter, he said his client was willing to waive her claim to interest. Thus, the Bank argues, the termination of the collection suit was not totally in Doss’ favor. Considering the rate at which the Bank pays interest on savings accounts, the principal sum on which interest should have been paid ($37.14), and the time involved during which the Bank should have paid interest, this sum is de minimus. As suggested by Doss’ attorney, it might be sufficient to pay postage on two items of first class mail, but that’s about it.

The Bank also argues that the joint stipulation to dismiss was bargained for because Doss did not pursue her claims for attorney’s fees or costs. These items were pled for by both parties in the collection suit, but were not mentioned in the joint stipulation, or the parties’ correspondence. However, there was an indirect reference to attorney’s fees in a letter that Doss’ attorney sent to the Bank’s attorney, accepting the Bank’s proposed settlement. Doss’ attorney said his client accepted the Bank’s proposal “in reliance” on the fact that the Bank had furnished him with an accurate copy of the contract governing the savings account. The contract apparently indicated no basis for an attorney’s fee award for either party. Since there was no basis to claim attorney’s fees under the contract, it seems quite a stretch to say attorney’s fees were “waived” by the joint stipulation for dismissal.

It is true that an award of section 57.105, Florida Statutes, attorney’s fees in the collection suit were foreclosed by the joint stipulation and dismissal of it, since Doss did not move for or pursue them. However, we do not think that a party should be foreclosed from bringing a malicious prosecution suit merely because the party did not move for and pursue section 57.105 fees in the first proceeding. Nor could we find any authority for that proposition. The Bank has presented no evidence in this case that section 57.105 was a factor in the joint stipulation. An award of fees under section 57.105 does not come easily, even though amendments have apparently expanded this remedy. See, e.g., John P. Fenner, New Section 57.105 Lawyer Sanctions, Our Ethics and the Florida Constitution, 77 Fla. B.J. 26 (May 2003). Further, it is likely that only a small amount of attorney’s fees had been earned in the collection suit by Doss’ counsel, since the suit was brought in the county court, and there had been little or no discovery.

Nor do we think Doss’ tacit surrender or failure to pursue costs in connection with the collection suit is a sufficient basis to show that the termination was not in her favor. As stated above, she was a defendant in a county court case which ended very shortly after it was filed, with little legal work or effort on the part of either side. Her costs were not shown to be anything but minimal. The Bank has not demonstrated that there was any basis to conclude there was a compromise on costs sufficient to disqualify the dismissal as a bona fide termination.

Further, the policy in this state is to encourage settlement of cases expeditiously, especially ones which the parties agree have no merit. If we refused to allow Doss to pursue her malicious prosecution case because she did not require that the collection suit be played out in county court to its finality on the merits, including her $37.14 counterclaim, we would be in derogation of this policy.

The undisputed circumstances of the joint stipulation to dismiss the Bank’s collection case demonstrate the Bank’s recognition that it had no legal basis to claim Doss was responsible for the bogus or forged checks, or that it had any legal basis to seize her savings account to setoff its losses on the forged checks. Both the collection suit and the counterclaim arise out of the same facts and fall by the same legal principles.

Wisely, the Bank’s attorney sought to drop the collection suit when apprized of the facts. However, as Doss points out in her appellate brief, under the current Rules of Civil Procedure, the Bank could not take a voluntary dismissal of its suit because Doss had filed a counterclaim. Thus, a joint stipulation was necessary to obtain dismissal of the collection suit. These circumstances weigh on the side of finding a bona fide termination in this case, because the joint stipulation looks more like a voluntary dismissal, "which is generally considered a termination in favor of the defendant in the underlying action, where the record contains evidence indicating a lack of probable cause.

We conclude that the joint stipulation and dismissal of the collection suit does not bar Doss from bringing this malicious prosecution suit against the Bank on the ground that there was no bona fide termination in her favor. The Bank has failed to show that the joint stipulation for dismissal was entered into for any reason not consistent with its recognition of Doss’ lack of liability in the collection suit and its wrongful seizure of her savings account balance. There was no genuine compromise on Doss’ part as she gave up nothing of value. There was no other reason apparent in this record or suggested by the Bank apart from the merits of the collection suit, for the joint stipulation and dismissal.

Accordingly, we reverse. On remand, Doss must establish the other essential elements of a malicious prosecution suit, about which we venture no opinion.

REVERSED and REMANDED.

PETERSON and TORPY, JJ., concur.

      . See Prosser, Torts 4th ed., Misuse of Legal Procedure, at 850; Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994); Union Oil of California v. Watson, 468 So.2d 349, 353 (Fla. 3d DCA 1985).

      . He could offer no explanation as to why this matter had been sent for collection, except that it was handled by a different department of the Bank, which had not communicated with him, or his department.

      . When the judge asked at the summary judgment hearing, why the Bank brought the collection suit, the Bank’s attorney simply said: "One arm of the Bank didn’t talk to the other. That's why.”

      . Union Oil of California v. Watson, 468 So.2d 349, 354 (Fla. 3d DCA 1985).

      . The Bank’s wrongful closing of the account and the termination of the collection lawsuit.

      . A defendant in a malicious prosecution case has the burden to bring forward evidence to show the termination was not "bona fide” once the plaintiff submits evidence of a bona fide termination. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994).

      . The offer of judgment statute, section 768.79, adds the strong inducement of attorney's fees in an effort to promote settlements. See City of Delray Beach v. Keiser, 699 So.2d 855, 857 n. 3 (Fla. 4th DCA 1997), Farmer, J., dissenting.

      . Florida Rule of Civil Proc. 1.420(a)(2). See Rogers v. Publix Super Markets, Inc., 575 So.2d 214 (Fla. 5th DCA 1991). See also Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So.2d 507 (Fla. 2d DCA 1993).

      . See Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393 (1979); Kennedy v. Byrum, 201 Cal.App.2d 474, 20 Cal.Rptr. 98, 100-02 (1962).


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Javier FERNANDEZ, Appellant, v. Patricia Dana FERNANDEZ, etc., et al., Appellee.
    No. 5D02-1657.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2003.

      Norman D. Levin, Norman D. Levin, P. A., Longwood and Cynthia L. Greene, Greene, Smith & Associates, P. A., Miami, for Appellant.
    Jerri A. Blair, Lockett & Blair, P. A., Tavares and George H. Russ, Sellar, Se-well, Russ, Saylor & Johnson, P. A., Lees-burg, for Appellee.
   ORFINGER, J.

Javier Fernandez appeals a final judgment determining that Michael McKenney is the biological and legal father of two children conceived and born while Mr. Fernandez was married to Patricia D. Fernandez (now Mrs. McKenney), the children’s mother. Because we conclude that competent, substantial evidence supports the trial court’s order, we affirm.

This is the second appearance in this court of the litigation between the parties regarding the paternity of Mrs. McKenney’s children. See Fernandez v. McKenney, 776 So.2d 1118 (Fla. 5th DCA 2001). In our earlier opinion, Judge Sharp summarized the dispute as follows:

This case involves unique circumstances. The children can be described as “quasi-marital children” of either type two or type three, as set out by Judge Alten-bernd in his article, [FN1] since they were conceived and born during the time Javier Fernandez and Patricia McKen-ney were married, but (depending on the testimony believed by the finder of fact) after the parties were separated. Based on testimony, Javier and Patricia did not live together except for the first few months of their marriage in Miami. After they moved to Central Florida, she lived separate from him: sometimes with her mother, or on her own, or with Michael McKenney, although she visited Javier at his various residences from time to time.
FN1. Chris W. Altenbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. (1999).
Javier and Patricia were divorced in 1993, and Patricia married Michael McKenney shortly thereafter. Although Javier was named as the children’s father and required to pay child support in the dissolution proceedings, for one reason or another, he has not consistently done so, and although he was given reasonable visitation rights, they have not been consistently exercised. Although there is controverted testimony to some degree, the two children have little or no relationship with Javier. Michael and Patricia have lived as an intact family since before 1993 and earlier, and the only “father” relationship the girls have is with Michael. Patricia and Michael have had a third child born to them since their marriage.
In 1997, Javier discovered that Patricia had married Michael. This led to a discussion concerning her prior relationship with Michael and the actual paternity of the children. They agreed to have a DNA test performed and the results established that Michael was the biological father of both children. Javier accepted the results, but insisted on his visitation rights, which the children apparently resisted. Thus, the ground work for this paternity suit by Michael was laid.

Fernandez, 776 So.2d at 1120 (Sharp, J., concurring specially). We remanded this matter for a determination of whether the children’s best interests would be served by overcoming the presumption that Mr. Fernandez is their father. On remand, the trial judge carefully considered the evidence and entered a detailed final order reaching that conclusion. Our review of the record indicates that the trial court’s order is supported by competent, substantial evidence. Accordingly, we affirm.

Initially, Mr. Fernandez challenged Mr. McKenney’s ability to maintain a paternity action because as a matter of law, the children already had a legal father. In G.F.C v. S.G., 686 So.2d 1382, 1387 (Fla. 5th DCA 1997), we said that a man claiming to be the biological father of a child born to an intact marriage, may have a right to bring a suit for adjudication of paternity under the due process clause of our state constitution, if he has established a relationship with the child, and the legal father has been remiss in fulfilling his role as a father. We qualified our holding by limiting such a claim only when compelling reasons are alleged and established to justify the transfer of parental status from one man to the other, premised generally on findings concerning the child’s best interests. This is just such a case. Although the children were born while Mr. Fernandez’s marriage to Mrs. McKenney was legally intact, this was hardly an intact family in a practical sense. As Judge Sharp’s factual summary demonstrates, Mr. McKenney is the only father the children know. While it is clear that Mrs. McKenney’s conduct has been duplicitous, despite her less than honorable conduct, in the final analysis, the trial court properly made its determination based on a finding concerning the children’s best interests, as was required.

In G.F.C., we expressed concern about recognizing lawsuits instituted by those professing to be biological fathers, thereby impugning the legitimacy of children and disrupting their lives. However, that concern is not warranted under the circumstances in this case. Here, the parties voluntarily submitted to DNA paternity testing that conclusively established Mr. McKenney’s biological connection to the children. Further, the children’s legitimacy is not affected by this paternity action. See Daniel v. Daniel, 695 So.2d 1253 (Fla.1997) (holding that a child’s legitimacy is not affected by a determination of paternity). Lastly, this action cannot be said to disrupt the children’s lives because they have only known their family to include Mr. and Mrs. McKenney. They have never known Mr. Fernandez as an integral part of their family life.

AFFIRMED.

SAWAYA, C.J. and PLEUS, J., concur.

      . In addition to seeking a determination of paternity, Mr. McKenney also sought declaratory relief pursuant to chapter 86, Florida Statutes. That is also a proper method to resolve the instant dispute. See Kendrick v. Everheart, 390 So.2d 53 (Fla.1980).


author: THOMPSON, J.

text:
    N.S., Parent of M.M., I.S., N.S., Etc., et al., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D02-1571, 5D02-1609, 5D02-2247.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2003.
    Rebecca L. O’Neill, of Jonathan P. Cul-ver, P.A., for Appellant, N.S.
    Douglas L. Kirkland, Ocala, for Appellant, K.S.
    Ralph J. McMurphy, Department of Children and Families, Wildwood, for Ap-pellee.
   THOMPSON, J.

N.S., the father, and K.S. (“the mother”) appeal the order adjudicating their children, I.S., N.J.S., and A.S. (collectively “the younger children”), dependent and granting the maternal grandparents “party” status. Separately, N.S. contends that the trial court erred when it ordered him to complete a batterer’s intervention program. We reverse the part of the order adjudicating the younger children dependent, but affirm in all other respects.

N.S. and the mother have three children together, I.S., N.J.S., and A.S. The mother also has a child, M.M., who is not the child of N.S. The amended petition for dependency alleged that M.M. said that marks observed on his arm were caused when the mother squeezed his arm. The petition also alleged that M.M. stated that his stepfather, N.S., did not like him and that N.S. and his mother whipped him with belts. He also stated that N.S. had beaten him with a shoe. The petition alleged that the allegations concerning M.M. placed the younger children at risk. There were no allegations in the petition that the parents had abused or neglected any of the younger children, nor were there allegations that the children might be abused in the future.

At the dependency hearing, the guardian ad litem admitted that she had only spoken with the parents once for about twenty or thirty minutes, and she admitted that the younger children were removed solely based on the allegations concerning M.M. A protective investigator testified that the recommendation had been to shelter all of the children although no child protective team member had seen the younger children. A former department employee testified that she had worked with the family, and that although she felt that N.S. was stricter than most parents and could use parenting classes, N.S. would not hurt a child. Witnesses testified that M.M. had been a troubled child since he was three years old. Although witnesses testified about M.M.’s bruises, his behavioral problems, and his chronic absenteeism from school, there was no testimony that the younger children had been abused or neglected.

We agree that adjudicating the younger children dependent was an abuse of discretion. The only reason given by the trial court for adjudicating the younger children dependent was the testimony concerning abuse or neglect of M.M. The adjudication order states in part:

From the parents’ failures and apparent disinclinations to respond to the apparent mental health and bonding needs of [M.M.] and [A.G.], the conclusion from the greater weight of the evidence is that [I.S.], [N.J.S.], and [A.S.] are in danger of harm, abuse, or neglect as well.

Without more, abuse or neglect of a child is an insufficient basis upon which to adjudicate the child’s siblings dependent. In re M.F., 770 So.2d 1189, 1194 (Fla.2000); see also M.N. v. Department of Children and Families, 826 So.2d 446 (Fla. 5th DCA 2002) (holding that evidence that father had physically abused his stepchild did not support a finding that his natural child was dependent). This court has held that in order to adjudicate a child dependent based upon the treatment of a sibling, there must be evidence “that establishes a nexus between the prior abuse and the allegation of prospective abuse.” M.N., 826 So.2d at 448.

In the instant case, the court made no findings that drew a connection between the treatment of M.M. and the probable treatment of the younger children in the future. Indeed, the department offered no evidence to support a conclusion that the younger children were at risk. Here, because there was no showing that the abuse or neglect of M.M. predicted abusive or neglectful behavior toward the younger children, the order finding them at risk of abuse or neglect was not supported by competent, substantial evidence and must be reversed.

The mother and N.S. also contend that the trial court erred when it granted the maternal grandparents “party” status. The trial court ruled that the maternal grandparents were “participants” and allowed them to participate, but did not grant them “party” status. Because the grandparents were the legal guardians and actual custodians of M.M. and the younger children, they were “participants” in the proceedings pursuant to section 39.01(50), Florida Statutes (2001). Under that section, a participant may be granted leave by the court to be heard without filing a motion to intervene. See also Rule 8.210(b), Fla. R. Juv. P. (2001).

Finally, we conclude that the father has waived the issue of his being required to complete a batterer’s intervention program. The court invited objections before accepting the case plan, and N.S. made none.

The order on appeal is affirmed except the part adjudicating I.S., N.J.S., and A.S. dependent, which is reversed.

AFFIRMED in part; REVERSED in part.

SAWAYA, C.J., and HARRIS, C., Senior Judge, concur.

      . Section 39.01 (14)(£), Florida Statutes, defines a dependent child in part as one found “to be at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians.”

      . The language in the amended petition is not a model of clarity. The language reads: "The natural [parents], although able, [have] neglected or abused the children, and by [their] actions [have] inflicted or created the risk of significant mental, physical or emotional injury to the children....”

      . In another case involving this family, M.M. was removed based on allegations of sexual molestation, mental injury, and inadequate supervision. This court reversed the disposition order based on numerous procedural errors and the lack of a dependency finding and remanded the cáse to the trial court to comply with the rules of juvenile procedure. See K.S. v. Department of Children and Families, 760 So.2d 1068 (Fla. 5th DCA 2000).

      .A.G. is not related to the parties in this case. A.G. is the daughter of N.S.'s former girlfriend and was living with N.S. before his marriage to the mother. A.G. alleged that she had been sexually abused by her mother's uncle and her mother’s boyfriend and asked to live with N.S. The department placed A.G. with N.S. and helped him collect child support for the child. According to N.S., he surrendered A.G. because she killed a cat and because the department was beginning to "hassle" him about the child. A.G. was not involved in this case.

      . Section 39.01(50), Florida Statutes, reads in part:
      Participant, for purposes of a shelter proceeding, dependency proceeding, or termination of parental rights proceeding, means any person who is not a party but who should receive notice of hearings involving the child, including foster parents or the legal custodian of the child, identified prospective parents, grandparents entitled to priority for adoption consideration ...., actual custodians of the child, and any other person whose participation may be in the best interest of the child.
      (emphasis added).

      . Because the order adjudicating the younger children dependent is reversed, the case plan will be effective only for M.M.


author: PLEUS, J.

text:
    Elvis T. FRANCES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3742.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2003.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant’s sole point on appeal concerns the denial of his motion to suppress his confession. The defendant, age 16 at the time he confessed, urged suppression claiming his statements during police questioning were involuntary because he was not afforded an opportunity to talk with his mother prior to the questioning. We affirm.

The trial court found and the record contains competent substantial evidence that (1) the defendant was Miran-dized twice before being questioned, (2) he was fully aware of why he was being questioned, (3) he indicated he understood his rights and never asked for an attorney, (4) he was a good student, (5) he had been in legal trouble before at which time he had been read his Miranda rights, and (6) he was informed that his mother had been contacted whereupon he told the officers that he did not get along with his mother. At no time did he ask for an opportunity to speak with her.

There is no constitutional requirement that police notify a juvenile’s parents prior to questioning the juvenile. See Brancaccio v. State, 773 So.2d 582, 583-84 (Fla. 4th DCA 2000), rev. denied, 791 So.2d 1095 (Fla.2001), cert. denied, 534 U.S. 1022, 122 S.Ct. 549, 151 L.Ed.2d 426 (2001). Likewise, there appears to be no affirmative obligation on the part of the police to extend an opportunity to a juvenile to speak with his parents prior to questioning where the juvenile does not request such opportunity. What is clear, however, at least in the context of custodial interrogation, is that if a juvenile indicates to police that he or she does not wish to speak to them until he or she has had an opportunity to speak with parents, the questioning must cease. B.P. v. State, 815 So.2d 728 (Fla. 5th DCA 2002). The defendant here did not make such a request.

The voluntariness of the defendant’s confession is determined by an examination of the totality of the circumstances surrounding the confession. See Ramirez v. State, 739 So.2d 568 (Fla.1999). As stated in Brancaccio:

For a juvenile’s confession, the relevant circumstances include: (a) the manner in which the police administered Miranda rights, (b) the juvenile’s age, experience, education, background, and intelligence, (c) whether the juvenile had an opportunity to speak with his/her parents before confessing, and (d) whether the juvenile executed a written waiver of the Miranda rights prior to making the confession.

773 So.2d at 583-84.

Based on the totality of the evidence, there is no basis for concluding that the defendant’s confession was in any way coerced or involuntary. See, e.g., Snipes v. State, 733 So.2d 1000 (Fla.1999); Brancacdo. The trial court correctly denied the motion to suppress.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.

      . Section 985.207(2), Florida Statutes, does require police to attempt to notify a juvenile's parents upon talcing the juvenile into custody, though the failure to do so does not per se
        render a confession involuntary. Ramirez v. State, 739 So.2d 568 (Fla.1999). In any event, the detectives here contacted the defendant’s mother prior to questioning her son.


author: PER CURIAM.

text:
    Kenneth ACEVEDO, et al., Appellants, v. Frank DEL TORO, et al., Appellees.
    No. 3D02-1259.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Robert A. Ginsburg, County Attorney, and Ronald J. Bernstein, Assistant County Attorney, for appellants.
    Anthony F. Sanchez, for appellees.
    Before GERSTEN, GODERICH and RAMIREZ, JJ.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

The appellees’ point is well-taken, thus we grant their motion for clarification, withdraw our prior opinion rendered September 3, 2003, and substitute the following in its place.

Kenneth Acevedo, Douglas R. McCoy, Jr., and James A. McDonald appeal the denial of their motion for summary judgment based upon claims of qualified immunity. Because the trial court did not depart from the essential requirements of the law, we affirm.

Appellants are Miami-Dade County police officers and members of a special response team that aids in the execution of search warrants. On April 28, 1999, a six-member special response team and departmental police officers executed a search warrant at the home of appellees Frank and Diana del Toro. The search warrant sought evidence related to the attack on Betty Velez by Frank del Toro’s brother. At the time of the search, six minor children and twenty-six year old Ben Narvaez were in the home.

Upon entering the home, Officers Acevedo, McCoy, and McDonald shot and killed the del Toro’s dog. The del Toros sued the Miami-Dade County police department, as well as the individual police officers, and alleged that the police officers used excessive force in the execution of the search warrant, falsely arrested one of the minor children and Ben Narvaez, failed to train and discipline its officers, and failed to investigate the officers’ use of fire arms or otherwise correct the officers’ conduct. They also alleged that the Department created an environment that fostered such police conduct.

It is undisputed that the officers in this case were at the del Toro home to execute a valid search warrant. We conclude, however, as did the trial court, that the evidence is disputed as to whether the officers knocked and announced their presence prior to entry into the del Toro residence. “Where the facts on which the determination of qualified immunity hinges are in dispute, then those facts may require a jury determination.” Brescher v. Pirez, 696 So.2d 370, 374 (Fla. 4th DCA 1997). Qualified immunity cases are no different from other civil cases in which there are genuine issues of material fact. See Redo v. Sylvestri, 690 So.2d 731 (Fla. 4th DCA 1997). The officers, therefore, are not entitled to summary judgment based on their affirmative defense of qualified immunity against personal liability.

Affirmed.


text:
    Rollie GILLIAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1628.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Rollie Gilliam, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Rollie Gilliam appeals the summary denial of his Rule 3.850 motion for postcon-viction relief alleging ineffective assistance of counsel in the failure to convey a plea offer. We reverse and remand for an evidentiary hearing.

Gilliam was arrested and charged with driving with no license. After jury trial, he was convicted and, based on this offense, found in violation of probation for a prior case. Gilliam filed the instant motion for postconviction relief wherein he alleged that he contacted defense counsel after sentencing and learned for the first time that the State had offered a plea bargain prior to trial of nine years in prison in exchange for guilty pleas to all outstanding charges. Gilliam attached to his motion a handwritten note allegedly from defense counsel explaining that a motion for rehearing would be filed on the ground Gilliam “did not know [he] could have got 9 years for everything-aii the cases.” Gilliam also attached to his motion a copy of a Motion to Set Aside Findings of Guilt filed by defense counsel a few days after sentencing.

In response, the State asserted that “the undersigned Assistant State Attorney has further consulted both the prosecutor and defense counsel ... who recall this case clearly and neither party recalls any nine year State Prison offer prior to trial.” The State’s response was sworn and notarized. No record attachments were included or referenced in the state’s response. The trial court denied Gilliam’s motion based solely on this response.

On appeal, the State challenges the genuineness of the handwritten note Gilliam attached to his motion. The State also contends the response below provided “documentation, under oath, that no plea had been offered to Appellant.” Further, the state argued the Motion to Set Aside Findings of Guilt filed in the underlying case did not support Gilliam’s claim that a plea offer had been made. We reject the State’s arguments.

Failure to properly convey a plea offer can constitute ineffective assistance of counsel. Smith v. State, 825 So.2d 1012 (Fla. 4th DCA 2002), rev. denied, 842 So.2d 846 (Fla.2003). When the alleged ineffectiveness concerns the rejection of a plea offer, the defendant must prove: (1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced; (2) defendant would have accepted the plea offer but for the inadequate notice; and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence. Cottle v. State, 733 So.2d 963, 967 (Fla.1999).

Gilliam’s motion was legally sufficient. As a result an evidentiary hearing is necessary unless the trial court attaches “a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief.” Fla. R.Crim. P. 3.850.

In this case, the trial court relied on the factual assertions in the State’s response in denying the motion. No portions of the record were attached to conclusively refute Gilliam’s claim. The State’s “sworn” response that the prosecutor and defense counsel were contacted and denied the existence of such a plea offer was not record evidence refuting Gilliam’s claim. The State’s attempt to refute Gilliam’s claim by going outside the record was legally insufficient. The trial court erred in relying on that information to summarily deny the claim. Vencil v. State, 715 So.2d 334 (Fla. 1st DCA 1998).

The attachment of portions of the record to the order of denial is essential for this court to perform its review function under Florida Rule of Appellate Procedure 9.140(g). Jackson v. State, 602 So.2d 696 (Fla. 4th DCA 1992). If the record does not conclusively refute a facially sufficient claim, then an evidentiary hearing must be held. Otherwise, a mov-ant would have no way to challenge the assistant state attorney’s assertions of fact.

The State’s contention that the note provided by Gilliam is not genuine does not refute Gilliam’s claim. A court reviewing the summary denial of a post-conviction motion must assume the truth of the movant’s allegations unless refuted by the record. See Valle v. State, 705 So.2d 1331, 1333 (Fla.1997).

Furthermore, the State’s assertion that the Motion to Set Aside Findings of Guilt in no way supports Gilliam’s claim that a plea offer was made is inaccurate. The Motion to Set Aside Findings of Guilt stated as grounds that the defendant “feels he was laboring under a misunderstanding as to the State’s Plea Offer.” Thus, the motion shows a plea offer was made at some point. The record indicates a hearing was held on the motion. A transcript of this hearing could have shed light on the issue in this case.

We reverse and remand for an eviden-tiary hearing on Gilliam’s claim. Gilliam must be appointed counsel for the hearing.

KLEIN, TAYLOR and MAY, JJ, concur.


text:
    Katherine LEACH, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-493.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Katherine Leach, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the summary denial of Appellant’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and remand for the trial court to attach additional portions of the record that conclusively refute the claim or, if that is not possible, for an evidentia-ry hearing. The state argues that Appellant waived her right to a pre-sentence investigation by entering into a negotiated plea for a specific sentence. However, no portion of the trial court’s order denying relief demonstrates such a waiver or that it was, in fact, a negotiated sentence.

STONE, POLEN and GROSS, JJ., concur.


text:
    Robert KLECKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2759.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Robert Kleekley, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert Kleekley seeks review of an order denying his motion for postconviction relief as untimely. We reverse and remand for further review.

By opinion dated May 1, 2002, this court affirmed the trial court’s denial of Kleck-ley’s motion for postconviction relief due to his failure to comply with the requirements of Florida Rule of Criminal Procedure 3.987 when filing the motion. See Kleekley v. State, 815 So.2d 737 (Fla. 4th DCA 2002). The affirmance was without prejudice to him re-filing with the trial court, within thirty days after the date of the opinion, his motion for postconviction relief in compliance with the rule. See id. at 737 (citing Lawson v. State, 754 So.2d 86 (Fla. 4th DCA 2000)).

Kleekley claims to have timely filed the motion that was not received by the lower court. As there exists a good faith factual dispute regarding the date Kleekley filed the renewed motion, we remand for the trial court to conduct an evidentiary hearing on the issue of timeliness. See Jones v. State, 854 So.2d 773, 774 (Fla. 2d DCA 2003); Jones v. State, 785 So.2d 561, 561 (Fla. 2d DCA 2001). Should the state opt to withdraw its objection on timeliness, the trial court should consider the motion on the merits. See Thompson v. State, 761 So.2d 324, 325 (Fla.2000).

FARMER, C.J., GUNTHER and WARNER, JJ., concur.


text:
    Sean MEILLAREC, Appellant, v. Lisa MEILLAREC, Appellee.
    No. 4D03-2609.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Sean Meillarec, Tamarac, pro se.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding trial court’s decision comes to appellate court with presumption of correctness and must be affirmed where appellant fails to provide transcript of proceedings or record demonstrating reversible error).

WARNER, POLEN and KLEIN, JJ„ concur.


text:
    Jean C. FLEURIMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-864.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Bennett H. Brummer, Public Defender and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

This is an appeal from the denial of a 3.800 motion seeking additional credit for time served. Upon review of the record as supplemented by the defendant and of the state’s forthright agreement that his position is well taken, we conclude that Fleuri-mond should be awarded the following additional credits:

(a) 221 days in case no. 98-16350 (for a total of 780 days);
(b) 221 days in case no. 98-16484 (for a total of 780 days); and
(c) 113 days in case no. 98-40208 (for a total of 670 days).

See Tal-Mason v. State, 515 So.2d 738 (Fla.1987)(holding prisoner is entitled to jail-time credit for pre-conviction coercive detention in mental institution for incompetence to stand trial, since commitment was indistinguishable from pretrial detention in “jail”). It should be noted that the sentences imposed in these cases are concurrent both with each other and the sentence imposed in case no. F99-26350. Since Fleurimond has been awarded all the jail credit to which he is entitled in that case, the additional credit now awarded as to the three concurrent sentences will likely not affect his date of release.

Modified in part.


text:
    Julio Enrique LASPRILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2443.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Julio Enrique Lasprilla, in proper person.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

On the State’s confession that the defendant raised facially sufficient claims for ineffective assistance of counsel, we reverse the lower court’s summary denial of his 3.850 motion for postconviction relief and remand this cause for further consideration. On remand, the trial court may either again summarily deny the motion, attaching to its order those portions of the record which conclusively show that the defendant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations raised in the motion. See Peede v. State, 748 So.2d 253, 257 (Fla.1999)(“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record”) (citation omitted).


author: 1WEIMER, Justice.

text:
    Bonnie D. REED v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2003-C-0107.
    Supreme Court of Louisiana.
    Oct. 21, 2003.

      Katherine P. Martin, Gretchen H. Mar-ard, Counsel for Applicant.
    Anne E. Watson, Dupre & Watson, Sunset, Counsel for Respondent.
   1WEIMER, Justice.

We granted a writ in this matter to review the lower courts’ award of penalties and attorney fees for the failure of an uninsured motorist insurer to make a timely and reasonable tender of its policy limits following a vehicular accident. See, LSA-R.S. 22:658 and LSA-R.S. 22:1220. Plaintiff filed suit shortly after the insurer made a partial tender; subsequently, the insurer tendered its policy limits prior to trial. Thus, the only issue at trial was whether the insurer was arbitrary, capricious, or without probable cause in initially withholding the policy limits. After review of the information available to the insurer at the time of its partial tender, we reverse.

FACTS

Essential to the resolution of this case is a chronological consideration of the facts as revealed in the trial testimony and documentary evidence. Events which preceded the vehicular accident that gave rise to the claim sued upon had a significant impact on what transpired after the vehicular accident, particularly on the insurer’s assessment of the plaintiffs claim.

In June 2000, Bonnie D. Reed stepped in a hole in her yard and incurred an injury to her right knee. Her family physician, Dr. Chuck Aswell, III, referred her to |j)Dr. Barry J. Henry, an orthopaedic surgeon. At an August 31, 2000 visit to Dr. Henry, Reed reported having chronic ankle instability problems for many years, but not many problems with her right knee prior to the at-home accident. Dr. Henry diagnosed a degenerative joint disease with acute meniscus tear. He recommended physical therapy for the knee and ankles, continuation of medication prescribed by Dr. Aswell, and a follow-up visit in four weeks if the pain continued. He noted: “We will consider knee arthroscopy for debridement of the medial meniscus tear. The [50-year-old] patient understands that she has some beginnings of moderate arthritis in the right knee at this point and may eventually need a total knee replacement as she ages.” (Underlining supplied.)

On October 13, 2000, Dr. Henry performed arthroscopic surgery on Reed’s right knee. Despite a serious reaction to medication administered during the surgery, Reed recuperated well and Dr. Henry found her to be “quite stable” following the arthroscopic surgery. Reed was scheduled for a return visit to Dr. Henry in early March of 2001.

Before the return visit to Dr. Henry, Reed was involved in a vehicular accident on February 27, 2001, when Mary Fonte-not ran a red light and struck the Reed vehicle. Reed was able to drive away from the accident. The fact that Fontenot was 100 percent at fault was not contested. Both drivers were insured by State Farm Mutual Automobile Insurance Company (State Farm). Because Reed’s claims involved separate policies, State Farm followed its usual practice and assigned the claims to separate claim specialists.

laShortly after the vehicular accident State Farm assigned claim specialist Cedric Roy to handle Reed’s claim for damages pursuant to its automobile liability policy issued to Fontenot. Later, on June 22, 2001, Reed asserted a UM claim by calling Shawn Smith, the first claim specialist assigned to the UM file, and telling him she needed a knee replacement as a result of the accident. She did not mention to any State Farm claim specialist the facts that she had injured the same knee in an at-home accident a year before, that she had had arthroscopic surgery as a result of the at-home accident, and that prior to the vehicular accident Dr. Henry had counseled her about eventually needing total knee replacement.

Smith forwarded a medical authorization form to Reed, asking her to execute and return the form to him. He also contacted Roy about the liability file, and Roy informed him that at that time Reed had a four-month injury which did not exceed the $10,000.00 liability policy limits.

On June 27, 2001, when Reed’s executed medical authorization was received by State Farm, Monica Domingue was the claim specialist assigned to handle the UM coverage claim. Her initial action was to forward the medical authorization to Roy to obtain all records in the State Farm liability file. On July 5, 2001, Domingue received medical bills totaling $3,273.32 and records reflecting treatment through May 21, 2001, less than three months post accident.

Other details revealed in the medical records at that time were pertinent to Domingue’s handling of the claim. Reed had consulted the same orthopedist with whom she was still treating, Dr. Henry, two days after the vehicular accident, stating complaints of various aches and pains. The office visit report states Reed was concerned about her knees since she had previously undergone right knee arthros-copy Ron October 13, 2000. Having previously performed the right knee arthrosco-py, Dr. Henry noted that although the knee showed moderate degenerative changes, Reed had been “quite stable” in her knees following the surgery and prior to the 2001 vehicular accident. With radiological examination of the knees showing no objective findings, Dr. Henry’s assessment at the first examination following the vehicular accident was “lumbo sacral strain ... with acute flare bilateral knee arthritis.” He recommended Reed have physical therapy once a week for four weeks for mobilization stretching of the back and lower extremities and massage therapy. He instructed Reed to return in one month.

As instructed, Reed returned to Dr. Henry approximately a month later, on March 30, 2001, stating she had been unable to complete the physical therapy because of family illness. She voiced complaints of right knee swelling and more pain. Dr. Henry’s examination revealed moderate effusion of the right knee with pain around the patella and with flexion. An injection was administered to relieve the condition. The doctor’s recommendation was a continuation of physical therapy and a follow-up visit in three months.

Reed did not wait three months, but returned to Dr. Henry on May 3, 2001. The office visit report of that date was the first mention after the vehicular accident of a total knee replacement. He stated: “The patient was doing quite well up until a car accident and patient has increased pain and swelling when she had been down to hardly any pain.... [W]e have tried physical therapy without much relief.... I recommend Synvisc injections to try to resolve the inflammation.... Hopefully we can do Synvisc injections to avoid early total knee arthroplasty.” (Underlining supplied.) According to two more reports in May, the injections were affording Reed some relief.

| sReed’s next visit with Dr. Henry was June 21, 2001, at which time he ordered a bone scan to examine the area of pain she had been experiencing since the vehicular accident. Dr. Henry’s report is specific about his discussion with Reed, as follows:

The patient reports that her RIGHT knee pain has been constant.... Most of her pain is around the front of the knee ... and it feels like a burning kind of pain on the medial aspect of the RIGHT knee at the area of her chondro-malacia noted at arthroscopy.... At this point she is 51 years of age and we both realize that she will probably require total knee arthroplasty in the future.
We have a long discussion about the benefits of total knee arthroplasty and the problems encountered with early wear implanted [sic] in young patients; however the patient also understands with modified activities we can increase the life of the prosthesis and we will keep this in mind in the next few years when we are discussing total knee ar-throplasty. (Underlining supplied.)

The day after Dr. Henry included in his report that he talked to Reed about total knee arthroplasty “in the next few years,” Reed called State Farm to assert a UM claim on the basis of needing a total knee replacement because of the accident. State Farm did not receive Dr. Henry’s June 21, 2001 report until July 16, 2001.

As noted above, the record of Reed’s March 1, 2001 visit to Dr. Henry two days after the vehicular accident made reference to the fact she had had right knee surgery before the vehicular accident, specifically, she had “undergone RIGHT knee arthroscopy with medial and lateral partial menisectomy with chrondroplasty on 10/13/00.” This fact, which Reed had not revealed in her communications with State Farm, raised a causation question in Do-mingue’s mind. She sent Reed’s authorization to her treating physicians, Dr. Henry and Dr. Aswell, in an effort to procure the records of the medical treatment Reed received prior to the vehicular accident for the purpose of investigating the apparent pre-existing condition of the right knee.

Reserving her rights against State Farm as her own UM insurer, with UM limits of $25,000.00, Reed settled with State Farm for the $10,000.00 liability policy limits on July 23, 2001.

IfiA week later State Farm received the requested records of Dr. Henry’s treatment of Reed prior to the vehicular accident. In addition to giving details of the right knee arthroscopy on October 13, 2000, these records revealed Dr. Henry made the following prognosis at Reed’s August 31, 2000 visit: “The patient understands that she has some beginnings of moderate arthritis in the right knee at this point and may eventually need a total knee replacement as she ages.” (Underlining supplied.) This mention of the possible need for a total knee replacement predated the vehicular accident by six months.

Thus, Dr. Henry’s prognosis for Reed that included total knee replacement was similar before and after the vehicular accident. Before the vehicular accident, he stated Reed “may eventually need a total knee replacement as she ages”; following the vehicular accident, he stated that “she will probably require total knee arthro-plasty in the future[,] ... in the next few years.”

It was not until July 30, 2001, that State Farm received the report of Reed’s visit with Dr. Henry on July 5, 2001, the purpose of which was a discussion of her bone scan. In his report the doctor noted her problem with her right knee was consistent with degenerative arthritis. She was given a prescription and told to return in three months. This office visit report contained no mention of a total knee replacement.

By the end of July 2001, Domingue had in her possession the following documented information. Six months prior to the vehicular accident, Dr. Henry had cautioned Reed that she “may” need total knee replacement as she aged; Dr. Henry had performed right knee arthroscopy four and a half months prior to the vehicular accident, a procedure occasioned by Reed’s at-home accident; and following the vehicular accident, Dr. Henry was still predicting Reed would need total knee replacement only “in the next few years.”

| Nevertheless, Reed did not inform State Farm of these pertinent facts in making demand on State Farm for payment pursuant to its UM coverage on the basis of her need for total knee replacement. Reed informed State Farm she needed a total knee replacement, but she did not tell State Farm Dr. Henry had told her of this need before the vehicular accident. Thus, Domingue’s decision not to make a tender at that time without further investigation was justified.

Domingue drafted a letter to Dr. Henry, dated August 3, 2001, in which she stated Reed “informs me that you have recommended a total knee replacement.” The letter continued: ‘Tve read in your records that such procedure was forthcoming prior to the accident. To what extent did the [motor vehicle accident] aggravate her pre existing condition?” Additionally, Do-mingue wrote to Reed to report that she was still working on her claim; that she had not received Dr. Aswell’s response; that she had received Dr. Henry’s reports; and that she had written to Dr. Henry inquiring about the aggravation of Reed’s degenerative joint disease.

Dr. Henry responded to Domingue’s inquiry by letter dated August 28, 2001, which states in pertinent part:

In response to your question “to what extent did the motor vehicle accident ... aggravate her pre existing condition?” The motor vehicle accident seems to have aggravated Miss Bonnie Reed’s arthritis in her knee such that she has had persistent pain in the knee with giving way and swelling with recurrent effusions in the knee since the time of the accident. The patient was doing quite well with regards to her knee problems since her arthroscopy was performed and chondroplasty of the cartilage flaps and meniscus tears. I do think the patient will require total knee arthroplasty in the future for relief of her pain and this was recommended to her prior to her motor vehicle accident. However the most recent aggravation of her knee during the motor vehicle accident may cause her to have this total knee replacement at an earlier age if she persists with pain that is not relieved by conservative measures.
I do not [know] if this helps answer your question. There was aggravation of her preexisting condition from the motor vehicle accident, | ¿which may lead to earlier interventions with total knee arthroplasty in this patient's future. [Underlining supplied.]

Although Dr. Henry had the opportunity in responding to Domingue’s inquiry to state the vehicular accident caused the need for total knee replacement, he did not do so; he merely stated the aggravation of her preexisting condition “may” lead to earlier total knee replacement.

An entry in State Farm’s “ACTIVITY LOG” on September 5, 2001, by Domingue indicated she received Dr. Henry’s response that the vehicular accident aggravated Reed’s preexisting condition which “may lead to earlier interventions with a total knee arthroplasty in [the] future.... [S]he is still undergoing conservative treatment and the total knee arthroplasty has not been mentioned for the near future.” (Underlining supplied.) Domingue concluded there was a total claim value of $17,500.00 to $18,500.00. She recommended an unconditional tender of $7,500.00 at that time, with instruction to Reed as to the prescriptive date of February 27, 2003, and with an assurance that Domingue would continue to evaluate the claim if Reed continued to treat. The date of the tender was approximately one month before Reed was to return to Dr. Henry as he had instructed her in July. Domingue noted the $7,500.00 would take care of outstanding medical bills of $2,500.00 and, together with the portion of the liability policy limits not earmarked for medical expenses, would give Reed $2,000.00 per month for general damages for the six months following the accident.

After accepting the partial tender, Reed initiated no further contact with State Farm prior to filing suit on October 3, 2001. The suit alleged State Farm was arbitrary and capricious in failing to tender its UM limits of $25,000.00 and/or a reasonable amount under the policy. Do-mingue’s ACTIVITY LOG entry for October 26, 2001, states that she was served with the suit and that the only other activity in the file since |9the partial tender had been the submission to State Farm two days earlier of chiropractic bills which were not identified as being related to the vehicular accident.

On the date of service, Domingue left a telephone message for Reed’s attorney requesting an extension of time. The attorney returned her call on the next business day. They discussed the information Do-mingue had in her file concerning Reed’s problem with her knee prior to the accident, and Domingue agreed to supply Dr. Henry’s reports to the attorney for her review.

■ Thereafter, on November 2, 2001, Do-mingue received a letter from Reed’s attorney, which states in pertinent part:

It appears that Bonnie [Reed] was doing quite well after her knee problem and the accident has caused her to need surgery sooner. It has also caused her much more pain and physical limitation.
[Reed] had a very unfortunate experience approximately one (1) year ago and almost' died from a reaction to medicine administered during a [knee] surgery. Therefore, she is not psychologically prepared to undergo another surgery at this time. ... State Farm is responsible for her additional pain and suffering and limitations resulting from the accident, despite her justifiable reluctance to undergo another surgery so soon after her unfortunate experience. [Underlining supplied.]

Shortly thereafter, State Farm turned the matter over to a defense attorney. Interrogatories were propounded to Reed’s attorney on November 19, 2001, with a letter stating that once State Farm received Reed’s response to discovery, State Farm would schedule Reed’s deposition. The interrogatories were not answered until January 16, 2002. In her answers Reed made two assertions: 1) that she had been unable to work since June of 2001 because of the instability and pain in her knee and | inbecause of cerebral migraines; and 2) that she needed a knee replacement which she could not afford because State Farm had not tendered its policy limits of $25,000.00. On January 22, 2002, State Farm noticed Reed’s deposition for March 1, 2002.

Meanwhile, on January 29, 2002, Reed consulted Dr. Charles L. Johnson, an or-thopaedic surgeon. She stated to him that she had misgivings about further surgery because of her past experience, but she could not foresee any other way to be relieved of the knee problem. Dr. Johnson agreed with her that a total knee replacement was her only viable option.

Reed’s deposition was rescheduled for February 18, 2002, because her knee surgery had been scheduled for February 25, 2002. After State Farm became aware of Reed’s consultation with Dr. Johnson, State Farm requested his records and began the process of scheduling his deposition.

State Farm requested Dr. Johnson’s records on February 1, 2002. At his deposition on March 4, 2002, Dr. Johnson testified that the damage to Reed’s knee which precipitated the total knee replacement was caused by the vehicular accident. Following this deposition, State Farm tendered the balance of the UM limits, which amounted to $17,500.00. Its check dated April 3, 2002, was for $18,128.87, an amount that included $628.87 for legal interest.

Trial on the merits was held during May of 2002. The trial court rendered judgment in favor of Reed, assessing State Farm with penalties of $1,800.00 plus interest; $15,000.00 in attorney fees, plus interest; costs of the proceeding; and a $350.00 expert witness fee for Timothy Fontenot, the physical therapist. In its reasons for judgment, the trial court stated that State Farm was unreasonable in not taking Dr. | n Henry’s deposition and in not procuring an independent medical examination after receipt of Dr. Henry’s office reports and his written response to the letter inquiry sent to him by Domingue in the course of her handling of the State Farm file.

State Farm appealed, and Reed answered the appeal. The appellate court rejected State Farm’s argument that the trial court committed manifest error by: 1) concluding State Farm’s September 7, 2001 tender was not a reasonable tender within thirty days from satisfactory proof of loss; 2) concluding a second tender was mandated more than thirty days prior to April 3, 2002; 3) finding State Farm was arbitrary and capricious in failing to make a reasonable investigation; and 4) finding State Farm was arbitrary and capricious in failing to properly evaluate Reed’s claim at the time of its partial tender.

DISCUSSION

As noted, by the time this matter was tried, State Farm had tendered the remainder of its UM limits. Thus, the only issue was whether State Farm had violated either LSA-R.S. 22:658 or LSA-R.S. 22:1220 or both.

Louisiana Revised Statutes 22:658 provides in pertinent part:

A. (1) All insurers issuing any type of contract ... shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1) ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten | ^percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

Louisiana Revised Statutes 22:1220 provides in pertinent part:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured.... Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious or without probable cause.
C.In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.

The conduct prohibited in LSA-R.S. 22:658(A)(1) is virtually identical to the conduct prohibited in LSA-R.S. 22:1220(B)(5): the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Calogero v. Safeway Insurance Company of Louisiana, 99-1625, p. 7 (La.1/19/00), 753 So.2d 170, 174. The primary difference is the time periods allowed for payment. Id. Furthermore, LSA-R.S. 22:658 and LSA-R.S. |1322:1220 are penal in nature and must be strictly construed. Hart v. Allstate Insurance Company, 437 So.2d 823, 827 (La.1983).

One who claims entitlement to penalties and attorney fees has the burden of proving the insurer received satisfactory proof of loss as a predicate to a showing that the insurer was arbitrary, capricious, or without probable cause. Id. at 828. It logically follows from this burden that a plaintiff who possesses information that would suffice as satisfactory proof of loss, but does not relay that information to the insurer is not entitled to a finding that the insurer was arbitrary or capricious. Id.; see also, McClendon v. Economy Fire & Casualty Insurance Company, 98-1537, p. 5 (La.App. 3 Cir. 4/7/99), 732 So.2d 727, 730 (Plaintiffs failure to provide insurer with information to confirm that the other driver was under insured barred finding of arbitrary or capricious failure to tender within 60 days.) The sanctions of penalties and attorney fees are not assessed unless a plaintiffs proof is clear that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Block v. St. Paul Fire & Marine Ins. Co., 32,306, p. 7 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 751. The statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Rudloff v. Louisiana Health Services and Indemnity Co., 385 So.2d 767, 771 (La.1980), on rehearing. Especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Block, 32,306 at 8, 742 So.2d at 752.

Both LSA-R.S. 22:658 and LSA-R.S. 22:1220 require proof that the insurer was “arbitrary, capricious, or without probable cause,” a phrase that is synonymous |uwith “vexatious.” Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993). This court has noted that “vexatious refusal to pay” means unjustified, without reasonable or probable cause or excuse. Id., citing COUCH ON INSURANCE 2d, § 58:70. Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense. Id.

Whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action, which in the instant case was at the time of its tender of $7,500.00. See Scott v. Insurance Company of North America, 485 So.2d 50, 52 (La.1986). Because the question is essentially a factual issue, the trial court’s finding should not be disturbed on appeal absent manifest error. Id. However, when the record does not support the trial court’s determination on this issue, the trial court’s decision will be reversed. See Darby v. Safeco Insurance Company of America, 545 So.2d 1022, 1028 (La.1989) (An insurer’s refusal to tender policy limits pending a legal decision on possible intentional misrepresentation by insured was not unreasonable or without probable cause; a jury’s finding to the contrary was clearly wrong.). In the instant case, where the extent of plaintiffs damages was the center of dispute, especially the timing of and need for total knee replacement, the existence of facts such as a previous accident with injury to the same knee can be the basis for reasonable doubt on the insurer’s part as to plaintiffs entitlement to the policy limits. Cf. Fontana v. Louisiana Sheriffs’ Automobile Risk Program, 96-2752, pp. 4-5 (La.App. 1 Cir. 6/20/97), 697 So.2d 1037, 1040 (Insurer was not arbitrary in refusing payment or tender when two |15accidents subsequent to the accident giving rise to his claim could have been the cause of eventual need for back surgery.).

The legislature specifically used the terms “good faith” and “fair dealing” in LSA-R.S. 22:1220, but not in LSA-R.S. 22:658. In that respect, LSA-R.S. 22:1220 restates that which is already stated in the civil code. “Contracts must be performed in good faith.” LSA-C.C. art. 198S. The statutes, LSA-R.S. 22:658 and LSA-R.S. 22:122o, impose specific consequences if the insurer’s actions do not conform to the obligations imposed therein.

In the instant case, State Farm argues the lower courts erred in finding that its failure to tender more than $7,500.00 was unreasonable, that is, not in good faith, in light of the fact that State Farm never received satisfactory proof of loss from Reed. We agree.

Both LSA-R.S. 22:658 and LSA-R.S. 22:1220 impose upon the claimant an obligation to produce a satisfactory proof of loss. “Satisfactory proof of loss” in a claim pursuant to UM coverage is receipt by the insurer of “sufficient facts which fully apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or under insured; (2) that he [or she] was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages.” McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, 1089 (La.1985). Thus, the issue in the instant case, as it was in McDill, is whether the insurer received satisfactory proof of loss; specifically, both cases address whether the insured “fully apprised” the insurer of the extent of damages occasioned by the accident. After an insurer receives notice of the claim, the basis of the claim, and the identity of the doctors involved, in order for the insurer to avoid being arbitrary or capricious, it is necessary for the insurer to determine whether there exists a legitimate basis for not paying at least what it considers to be undisputed. Id. at 1091.

Despite the similarities, there are two significant distinctions between McDill and the instant case. First, the insurer in McDill did not make any tender, whereas State Farm made a tender of $7,500.00, thirty percent of the UM limits. Second, the insurer in McDill admitted it had no evidence to support a contention that the disc surgery which was eventually performed was not causally related to the injuries sustained in the accident, whereas Reed’s medical records prior to the tender of $7,500.00 contained no evidence that a total knee replacement was imminent and causally related to the injuries she sustained in the accident. Thus, the record in McDill supported a finding that the insurer was arbitrary and capricious, but the record in the instant case does not.

Other facts in the instant case support a conclusion that State Farm was not dilatory in making its partial tender and that the amount of the tender was not unreasonable. Reed continued to see Dr. Henry until July 5, 2001, and she was scheduled to return to him in October 2001. Although Reed later testified she had a “conflict” with Dr. Henry, she never alerted State Farm that she intended not to return to him. Instead, she simply did not seek further medical treatment until January of |172002, seven months after her last visit with Dr. Henry. There is no evidence in the record that Reed told State Farm she needed or wanted to go to another doctor.

The trial court criticized State Farm for not deposing Dr. Henry or scheduling an independent medical examination. However, State Farm’s decision not to depose Dr. Henry after he responded to State Farm’s letter inquiry was reasonable in light of State Farm’s legitimate expectation that Reed would be seeing Dr. Henry in October of 2001. It was reasonable to believe any deposition response would not contradict Dr. Henry’s medical records and his written response. Additionally, it was unnecessary for State Farm to seek an independent medical examination of Reed because State Farm never disputed her medical condition as reported by Dr. Henry. In this respect the instant case can be distinguished from Mader v. Babineaux, 526 So.2d 505, 508 (La.App. 3 Cir.1988), in which the insurer questioned the medical opinion of plaintiffs treating physician and the medical test results. In Mader, the court held the insurer should have obtained its own medical opinion to negate the deposition testimony of the treating physician and the MRI report in order to avoid arbitrarily fading to make any tender in a timely fashion. In the instant case, State Farm was not obliged to obtain its own medical opinion because it did not disagree with the medical opinion of the treating physician, Dr. Henry.

Although State Farm eventually paid Reed the remainder of the UM limits when it discovered in Dr. Johnson’s deposition testimony that the total knee replacement was causally related to the 2001 vehicular accident, State Farm’s handling of the file cannot be evaluated by hindsight. From the date of Reed’s first statement that she would need a total knee replacement, State Farm investigated her prior medical history, as well as her treatment post accident with Dr. Henry, and considered her claim as it stood in September of 2001 to be satisfied by the tender. The medical records available to State Farm at that time showed the vehicular accident aggravated a |1Rpreexisting condition. Until the time Reed consulted Dr. Johnson for the surgery, there were causation questions as to the source of Reed’s complaints. Additionally, when State Farm made the partial tender Domingue informed Reed that her file would remain open and told Reed to keep her apprized of further treatment. Thus, the fact that State Farm subsequently tendered the full UM limits is immaterial; State Farm presented a reasonable defense for the timetable in which it tendered payment. Cf. Duncan v. Allstate Insurance Company, 01-840, pp. 8-9 (La.App. 5 Cir. 12/26/01), 803 So.2d 420, 425, writ denied, 02-0575 (La.4/26/02), 814 So.2d 562 (In light of claimant’s preexisting condition, insurer’s delay of 15 months in making tender was not arbitrary or capricious.).

CONCLUSION

To summarize, we conclude State Farm’s September 7, 2001 partial tender was neither untimely nor inadequate, as Reed did not supply State Farm with satisfactory proof of loss in excess of the $7,500.00 tendered more than 30 days pri- or to the tender. The trial court was clearly wrong in its contrary finding. Additionally, because State Farm first received a medical opinion at Dr. Johnson’s deposition that there was a causal connection between Reed’s total knee replacement and the vehicular accident, its tender of the remainder of the UM limits was timely and reasonable. Thus, the record fails to support the trial court’s finding to the contrary.

Having found that the lower courts erred, we reverse the judgment against State Farm Mutual Automobile Insurance Company and in favor of plaintiff, Bonnie D. Reed, and dismiss her suit with prejudice. We pretermit all other issues urged by the parties.

REVERSED AND RENDERED.

      . State Farm indicates this procedure is used in order to protect their insureds' privacy. Each claims file is handled separately as if each claim were being handled by different insurance companies, requiring a separate authorization for each claims file to allow sharing of medical information between the files. If the underlying liability coverage is adequate, there is no reason for the UM claim specialist to have medical records. Although the plaintiff questioned the need for her to provide two authorizations, there was no evidence to establish State Farm's procedure was designed to prejudice a claimant.

      . Significantly, Reed's allegations that State Farm was arbitrary, capricious, or without probable cause relate to State Farm's handling of her claim for the UM policy limits. She asserted no action against State Farm for its processing of her claim for the liability policy limits.

      . State Farm's "ACTIVITY LOG” reveals that Dr. Aswell responded on August 15, 2001, that he had not treated Reed after the accident.

      . The ACTIVITY LOG reveals Domingue ordered a request that the medical records be properly identified prior to consideration by her of payment of these expenses.

      . At trial Reed admitted she was making no claim that the vehicular accident caused or aggravated the migraine headaches. In her answers to interrogatories, Reed also admitted she had applied for Social Security disability benefits in August of 2001. At her deposition she testified that she had filed an earlier application in 1999, which had been denied. Her 2001 application listed numerous other ailments in addition to the knee pain and migraine headaches.

      . Because of our decision concerning the lower courts’ dispositions of these questions, it is unnecessary to discuss the other issues addressed by the court of appeal. See Reed v. State Farm Mutual Automobile Insurance Company, 02-804 (La.App. 3 Cir. 12/11/02), 832 So.2d 1132.

      . We note the jurisprudence generally uses the terms "arbitrary and capricious” despite the fact the statutory provisions use the disjunctive "arbitrary, capricious, or without probable cause.” Regardless, the definitions of the terms "arbitrary” and "capricious” are almost indistinguishable from each other. An "arbitrary” act is an act "based on random choice or personal whim, rather than any reason or system.” THE NEW OXFORD AMERICAN DICTIONARY 80 (Elizabeth J. Jewell & Frank Abate eds., 2001). "Capricious” action is "given to sudden and unaccountable changes of behavior.” Id. at 256. A judicial "decision founded on prejudice or preference rather than on reason or fact” is often termed “arbitrary and capricious.” BLACK’S LAW DICTIONARY 100 (7th ed.1999).

      . The same language is used in the workers' compensation law. For example, reasonable attorney fees are awarded as a penalty when an employer discontinues payment of benefits if the “discontinuance is found to be arbitrary, capricious, or without probable cause.” LSA-R.S. 23:1201.2. In that context, this court has defined arbitrary and capricious behavior as "willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” J.E. Merit Constructors, Inc. v. Hickman, 00-0943, p. 5 (La.1/17/01), 776 So.2d 435, 437.

      . Thus, the legislature has legally imposed the moral and ethical obligation of good faith and fair dealing, concepts which should be self-evident and self-imposed. No law should be necessary to impose an obligation of good faith and fair dealing.

      . See also, LSA-C.C. art. 1759 which provides: "Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation.”

      . The parties point out there is a split in the circuit courts regarding whether the penalty in LSA-R.S. 22:1220 is mandatory or discretionary. See for example, Reed, 02-804 at 10, 832 So.2d at 1140; The Sultana Corporation v. Jewelers Mutual Insurance Company, 01-2059, p. 2 (La.App. 1 Cir. 12/31/02), 837 So.2d 134, 136, writ granted, 2003-0360 (La.4/25/03), 842 So.2d 387; Harrington v. Cato Corporation, 32,055, pp. 3-4 (La.App. 2 Cir. 6/16/99), 740 So.2d 732, 735; Adams v. Stratton, 02-224, p. 4 (La.App. 5 Cir. 10/16/02), 831 So.2d 290, 291, writ denied, 02-2792 (La.2/7/03), 836 So.2d 101. Because we resolve the instant case by concluding there was no violation of the statutes by State Farm, this is not the proper forum in which to address the split in the appellate court decisions.