author: SAWAYA, C.J. SAWAYA, C.J.

text:
    MARRIOTT INTERNATIONAL, INC., Appellant/Cross-Appellee, v. Zaira PEREZ-MELENDEZ, Appellee/Cross-Appellant.
    No. 5D02-1624.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.
    Opinion Denying Rehearing, Clarification and Certification Sept. 26, 2003.

      Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa and John H. Ward of Brown, Ward, Salzman & Weiss, Orlando, for AppellanVCross-Appellee.
    Elizabeth H. Faiella of Elizabeth H. Faiella, P.A., Winter Park and Marcia K. Lippineott of Marcia K Lippincott, P.A., Lake Mary, for Appellee/Cross-Appellant.
   SAWAYA, C.J.

Marriott International, Inc., (Marriott) appeals a final judgment entered in favor of Zaira Perez-Melendez (Perez-Melendez) based on a jury verdict awarding Perez-Melendez damages for the injuries she sustained when she fell into a drain inlet located on property owned by Marriott. The issue we will address is whether the trial court erred in failing to direct a verdict in favor of Marriott because Perez-Melendez failed to establish any negligence on Marriott’s part. In order to resolve this issue, we will discuss in the following order the factual and procedural background of the instant case, the two-issue rule, the standard of review we must apply, and our legal analysis.

Factual And Procedural Background

Perez-Melendez, a Puerto Rico resident employed by the city of San Juan as the Director of Senior Citizens Volunteers, came to Orlando for a convention that was to be held at the Marriott World Center (hereinafter “World Center”). Perez-Melendez testified that she made reservations for a room at the World Center before leaving Puerto Rico. However, when she arrived to check in, she was advised that no more rooms were available. She was then provided accommodations at the Residence Inn, which is also owned by Marriott. The walking distance between the two hotels is approximately three-fourths of a mile.

On June 25, 2000, at approximately 10:30 p.m., Perez-Melendez, two other women, and their children decided to go from Perez-Melendez’s room at the Residence Inn to the World Center. Unfortunately for Perez-Melendez, on her journey, she stepped into a drainage inlet and fractured her ankle. Perez-Melendez filed a personal injury suit against Marriott for damages. Encased within the same count of the complaint are four separate theories of liability. The first is based on the alleged active negligence of Marriott in failing to provide a reasonably safe transportation system for Perez-Melendez between the two hotels. The other three are premises liability theories based on allegations that Marriott failed to maintain its premises in a reasonably safe condition, failed to correct a dangerous condition that Marriott knew or should have known about, and failed to warn Perez-Melendez of an existing dangerous condition of which Marriott knew or should have known. We note, parenthetically, that whether it is appropriate to plead more than one theory of liability in a single count of a complaint is not an issue before us.

At the conclusion of Perez-Melendez’s case-in-chief and again at the conclusion of the trial, Marriott moved for a directed verdict, alleging that Perez-Melendez had failed to establish a prima facie case of negligence. The trial court denied both motions. The jury instructions that were read to the jury instructed the jury on each theory of liability. The verdict form, submitted to the jury without objection, did not request findings as to each theory of liability; rather, it simply requested the jury to determine whether Marriott was negligent and, if so, the amount of the damages. The jury returned a verdict in favor of Perez-Melendez, finding Perez-Melendez thirty-percent comparatively negligent.

Marriott argues that as a matter of law it did not owe a duty to Perez-Melendez to provide her a reasonably safe transportation system because it was not reasonably foreseeable that she would fall into the drain inlet and injure her ankle. Marriott contends that the issue of foreseeability as it relates to establishing a duty of care is a legal issue to be decided by the court and, therefore, the trial court should have granted its motion for directed verdict. Perez-Melendez argues that the incident she was involved in was foreseeable as a matter of law and Marriott did owe her a duty of care. Perez-Melendez also argues that she alleged three premises liability theories of recovery and that, pursuant to the two-issue rule, Marriott must establish that a directed verdict was appropriate for each theory alleged. Since Marriott cannot, asserts Perez-Melendez, the judgment should be affirmed.

The Two-Issue Rule

The two-issue rule provides that “where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.” Whitman v. Castlewood Int’l Corp., 38B So.2d 618, 619 (Fla.1980). The rule applies to separate theories of liability and defenses; it does not apply to the elements of a cause of action or defense. Grenitz v. Tomlian, 2003 WL 21290887 (Fla. June 5, 2003); Barth v. Khubani, 748 So.2d 260 (Fla.1999). Hence, when a verdict is rendered in favor of the plaintiff, as in the instant case, the two-issue rule applies to actions brought on two or more theories of liability where the finding of liability as to one theory entitles the plaintiff to recover the same measure of damages recoverable under the other theories of liability. Grenitz; Barth; First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Johnson v. Thigpen, 788 So.2d 410 (Fla. 1st DCA 2001). In Barth, the court explained:

When a general verdict for the plaintiff is on review, the rule is applied by focusing on the causes of action, such that an appellate claim of error raised by the defendant as to one cause of action cannot be the basis for reversal where two or more theories of liability (or causes of action) were presented to the jury.

748 So.2d at 261. The burden of establishing error as to each theory of liability or defense is on the non-moving party. Barth.

For example, in Zimmer, Inc. v. Birnbaum, 758 So.2d 714 (Fla. 4th DCA), review denied, 786 So.2d 1193 (Fla.2000), the court applied the two-issue rule in a products liability case because the jury instructions included two standards for determining whether the product was unreasonably dangerous — the ordinary consumer test and the risk benefit test — and the verdict form did not require the jury to identify its basis for deciding that the product was defective. In a wrongful death action, the court in Penske Truck Leasing Co., LP v. Moore, 702 So.2d 1295 (Fla. 4th DCA 1997), applied the two-issue rule by presuming that the jury found for the plaintiffs on both theories of negligence submitted to the jury. The court reasoned that the verdict form did not request a finding based on each theory and, therefore, the court could not determine on which theory of negligence the jury based its finding of liability.

Similarly, in the instant case, Perez-Melendez filed her action based on four theories of liability. The jury instructions submitted to the jury instructed the jury on each theory of liability. Our review of the transcripts of the closing arguments clearly shows that argument on each theory of liability was presented to the jury. Without objection from Marriott, a general verdict form was submitted to the jury that did not itemize each theory of liability and request a finding by the jury as to each. Under these facts, it is impossible to determine on which theory the jury predicated liability. Moreover, the same measure of damages is attributable to each theory of liability advanced by Perez-Melendez. Therefore, it is appropriate to apply the two-issue rule in this instance.

Having concluded that the two-issue rule applies, we must next determine whether Marriott has met its burden of establishing error as to each legal theory of liability submitted to the jury. In order to make this determination, we must consider and apply the correct standard of review.

Standard of Review

It is appropriate to grant a motion for directed verdict when there is no reasonable evidence upon which a jury could legally render a verdict in favor of the nonmoving party. Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001); Goss v. Permenter, 827 So.2d 285 (Fla. 5th DCA 2002), review denied, 845 So.2d 889 (Fla.2003); Scott v. TPI Restaurants, Inc., 798 So.2d 907 (Fla. 5th DCA 2001); St. Johns River Water Mgmt. Dist. v. Fernberg Geological Servs., 784 So.2d 500, 504 (Fla. 5th DCA), review denied, 805 So.2d 806 (Fla.2001). Stated differently, a motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party and the trial court determines that no reasonable jury could render a verdict for that party. Goss; Scott; St. Johns. “When considering a motion for directed verdict, the trial court is required to evaluate the evidence in the light most favorable to the plaintiff and every reasonable inference therefrom must be indulged in the plaintiffs favor.” Scott, 798 So.2d at 909 (citations omitted). “If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.” Id. (citation omitted). This standard should be applied by both trial courts and appellate courts when considering the propriety of a motion for directed verdict. Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999).

In negligence cases, whether a duty of care exists is generally an issue of law to be determined by the court and, therefore, may be resolved pursuant to a motion for directed verdict. Whether the duty, once established, has been breached by the defendant and whether that breach proximately caused the plaintiffs injuries are generally issues of fact to be resolved by the jury and, therefore, are usually inappropriate for resolution via a motion for directed verdict. The courts have repeatedly and consistently held that motions for directed verdict in negligence cases must be treated with extreme caution because of the applicable standard of review and because it is the province of the jury rather than the trial or appellate court to weigh and evaluate the evidence. Guided by these principles, we proceed with our legal analysis.

Analysis

Marriott primarily argues that Perez-Melendez failed to establish that Marriott owed Perez-Melendez a duty to provide her with a reasonably safe transportation system. Specifically, Marriott contends that the type of injury Perez-Melendez suffered did not fall within the reasonably foreseeable zone of risk established by Marriott’s conduct in operating its shuttle service and, therefore, this court may determine as a matter of law that Marriott did not owe her a duty of care. We agree that the issue of foreseeability as it relates to establishing a duty of care is an issue of law for the court to determine. McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). But, under the two-issue rule, even if we were to agree with Marriott that as a matter of law, Marriott did not owe Perez-Melendez a duty to provide her with a reasonably safe transportation system, our inquiry would not end because we must also consider the premises liability theories advanced by Perez-Melendez.

Perez-Melendez was an invitee on Marriott’s premises and Marriott does not contend otherwise. Moreover, Marriott concedes in its brief that as an invitee, it owed Perez-Melendez two duties: 1) to use ordinary care in maintaining its premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which were known, or by the exercise of due care should have been known, by Marriott and which were not known and would not have been discovered by Perez-Melendez by the exercise of due care. Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001); Green v. School Bd. of Pasco County, 752 So.2d 700 (Fla. 2d DCA 2000). Hence we are not presented with the legal issue whether Perez-Melendez was owed a duty of care by Marriot.

Rather than argue that it did not owe Perez-Melendez a duty of care as an invitee, Marriot instead argues that Perez-Melendez failed to prove that it breached those duties because Perez-Melendez failed to present evidence to establish that the inlet was dangerous or that Marriott knew or should have known that it was dangerous. But these issues are factual issues that should be resolved by the jury. For us to hold that the trial court erred in failing to grant a directed verdict in favor of Marriott would require us to ignore the evidence in the record that we have thoroughly reviewed, including the photographs, the videotape of the scene where Perez-Melendez fell, and the testimony of the expert witnesses called by Perez-Melendez to testify regarding the dangerous condition of the drain inlet. After evaluating the evidence in the light most favorable to Perez-Melendez and indulging all reasonable inferences therefrom in her favor, we are unable to conclude that no reasonable jury could have found Marriott liable on one or more of the premises liability theories advanced by Perez-Melendez. To do so in the instant case would require us to ignore the admonition that directed verdicts in negligence cases involving factual issues should not be granted unless there is no reasonable evidence upon which the jury could have legally predicated the verdict in favor of Perez-Melendez. We therefore conclude that Marriott did not meet its burden of demonstrating error for each theory of liability advanced by Perez-Melendez, and thus the trial court did not err in failing to direct a verdict for Marriott.

Conclusion

The claims of error raised by Marriott as to the theory of failure to provide Perez-Melendez with a reasonably safe transportation system cannot be the basis for reversal where other legal theories of liability were presented to the jury that may have been the basis for its verdict. Because Marriott failed to establish error as to each of the theories submitted to the jury via an unobjected-to general verdict form, we affirm.

AFFIRMED.

PLEUS and MONACO, JJ., concur.

ON MOTION FOR REHEARING, CLARIFICATION AND CERTIFICATION

SAWAYA, C.J.

Marriott International, Inc. (Marriott) has filed a motion for rehearing, clarification and certification with respect to our opinion entered in this appeal on July 25, 2003. Although we deny Marriott’s motion, we will address certain of the issues raised therein.

Marriott contends in its motion for rehearing, clarification and certification that this court has misapprehended the proper standard of review because the issue of whether the condition on the premises is dangerous is a question of law rather than an issue of fact for the jury to resolve. In support of that contention, Marriott cites several cases from this court: City of Melbourne v. Dunn, 841 So.2d 504 (Fla. 5th DCA 2003); Taylor v. Universal City Property Management, 779 So.2d 621 (Fla. 5th DCA), review denied, 799 So.2d 219 (Fla.2001); Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001); Rosenfeld v. Walt Disney World Co., 651 So.2d 811 (Fla. 5th DCA 1995); Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA), review denied, 604 So.2d 486 (Fla.1992); and Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990). Marriott also cites several cases from other courts: Casby v. Flint, 520 So.2d 281 (Fla.1988); Schoen v. Gilbert, 436 So.2d 75 (Fla.1983); Hoag v. Moeller, 82 So.2d 138 (Fla.1955); Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA), review denied, 574 So.2d 142 (Fla.1990); McAllister v. Robbins, 542 So.2d 470 (Fla. 1st DCA 1989). Marriott contends that the decision in the instant case directly conflicts with these decisions and that certification of conflict is appropriate. We disagree.

All of the cases cited by Marriott are inapplicable to the instant case because the basis for the ruling in each was the open and obvious danger doctrine, a doctrine not raised in the proceedings before the trial court in the instant case. We have thoroughly reviewed each citation to the record in Marriott’s motion where it claims to have raised the open and obvious danger doctrine in the trial proceedings, and it is not there. This court and others have consistently held that an issue that is not raised in the trial court may not be raised for the first time on appeal. Cowart v. West Palm Beach, 255 So.2d 673 (Fla.1971) (holding that an appellate court may not consider an issue not presented to the trial judge on appeal from final judgment on the merits); J.T.A Factors, Inc. v. Philcon Servs., Inc., 820 So.2d 367 (Fla. 3d DCA 2002); Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002) (“A legal argument must be raised initially in the trial court by the presentation of a specific motion or objection at an appropriate stage of the proceedings.”) (citation omitted); Lee v. City of Jacksonville, 793 So.2d 62 (Fla. 1st DCA 2001); U.S. Sugar Corp. v. Henson, 787 So.2d 3 (Fla. 1st DCA 2000), approved, 823 So.2d 104 (Fla.2002).

Moreover, as we have indicated and as Marriott concedes in these proceedings, Perez presented four theories of liability that included the premises liability theories of failure to warn of a dangerous condition and failure to maintain the premises in á reasonably safe condition. The courts have consistently held that while the open and obvious danger doctrine may in certain circumstances discharge the duty to warn, it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition. Knight v. Waltman, 774 So.2d 731 (Fla. 2d DCA 2000); Kersul v. Boca Raton Cmty. Hosp., Inc., 711 So.2d 234 (Fla. 4th DCA 1998); Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970 (Fla. 1st DCA 1991); Hogan v. Chupka, 579 So.2d 395, 396 (Fla. 3d DCA 1991); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). In Pittman, this court explained why the doctrine does not extend to the duty to maintain the premises in a reasonably safe condition:

The fallacy is in the premise that the discharge of the occupier’s duty to warn by the plaintiffs actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge. To extend the obvious danger doctrine to bar a plaintiff from recovery by negating a landowner’s or occupier’s duty to invitees to maintain his premises in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), that liability should be apportioned according to fault.

Pittman, 380 So.2d at 1193-94 (footnotes omitted); see also Hogan, 579 So.2d at 396 (citing Pittman). Hence, even if the open and obvious danger doctrine had been raised in the trial proceedings and we could properly consider it here, it would not reheve Marriott of its duty to keep the premises in a reasonably safe condition.

We do not feel it is necessary to burden this opinion with the detailed testimony of Perez’s witnesses, including the testimony of her two expert witnesses, who offered testimony regarding the dangerous condition of the drain inlet. Apparently the jury did not accept the testimony of Marriott’s expert or at least gave it less weight than the testimony of the witnesses presented by Perez, but that is the prerogative of the jury. It is not for us to weigh the testimony and judge the credibility of the witnesses. Based on our review of the record in light of the appropriate standard of review, we conclude that the trial court did not err in denying Marriott’s motion for directed verdict.

We take this opportunity to note that rule 9.330(a), Florida Rules of Appellate Procedure, allows a party to file a motion for rehearing to bring to the court’s attention a point of law or fact that the court has overlooked or misapprehended. The purpose of the rule, however, is not to bring to the court’s attention an issue that was not properly raised in the trial court. We have now expended valuable time and effort to review this record a second time in search of the obvious danger doctrine, and what has become quite obvious to us is that it is nowhere to be found. The trial court never considered the doctrine because Marriott never asked it to. If we will not consider the issue during our consideration of this case after submission of the briefs and oral argument, we certainly will not consider the issue in a motion for rehearing.

MOTION FOR REHEARING, CLARIFICATION AND CERTIFICATION DENIED.

PLEUS and MONACO, JJ., concur.

      . As to the issue raised by Perez-Melendez in her cross-appeal regarding the trial court's refusal to apply a contingency risk multiplier to the fee awarded her pursuant to section 768.79, Florida Statutes, we affirm based on our decision in Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), review granted, 826 So.2d 992 (Fla.2002). We certify conflict with Island Hoppers, Ltd. v. Keith, 820 So.2d 967 (Fla. 4th DCA 2002). We affirm, without discussion, all other issues raised by the parties.

      . See Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.1983), receded from on other grounds, Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995); Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520 (Fla. 5th DCA 1999) (citing Department of Health & Rehabilitative Servs. v. Yamuni, 529 So.2d 258, 262 (Fla.1988)); Keene v. Chicago Bridge & Iron Co., 596 So.2d 700 (Fla. 1st DCA 1992); Walt Disney World Co. v. Goode, 501 So.2d 622 (Fla. 5th DCA 1986); Jackson v. Williams, 385 So.2d 190 (Fla. 5th DCA 1980); Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla. 1st DCA 1960); see also Lubell v. Roman Spa, Inc., 362 So.2d 922 (Fla.1978); Selvin v. DMC Regency Residence, Ltd., 807 So.2d 676, 682 (Fla. 4th DCA 2001); Sanderson v. Eckerd Corp., 780 So.2d 930, 933 (Fla. 5th DCA 2001) (“While the question of whether a duty exists is a question of law for the court to decide, the questions of whether an existing duty has been breached and if so, whether such breach was the legal cause of a claimant's injury or damage are questions of fact which have generally been left to the trier of fact in negligence cases.”); Maher v. Best Western Inn, 717 So.2d 97, 99 (Fla. 5th DCA 1998) (“It is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.”) (citation omitted); Hancock v. Department of Corr., 585 So.2d 1068 (Fla. 1st DCA 1991), review denied, 598 So.2d 75 (Fla.1992). In Selvin, 807 So.2d at 682, the court explained;
      How the duty of due care should be met in a given case is for the jury. As the court held in Orlando Executive Park v. Robbins, 433 So.2d 491 (Fla.1983), receded from on

        other grounds, Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995), "it is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.” 433 So.2d at 493. Thus, in Nichols v. Home Depot Inc., 541 So.2d 639, 641 (Fla. 3d DCA 1989), the court pointed out that “[w]hat is and what is not reasonable care under the circumstances is, as a general rule, simply undeterminable as a matter of law.”

      . Scott; Blake v. Hi Lu Corp., 781 So.2d 1122 (Fla. 3d DCA 2001); Nunez v. Lee County, 777 So.2d 1016, 1016 (Fla. 2d DCA 2000) ("Florida law cautions against a motion for directed verdict in negligence cases, since the evidence to support the elements of negligence are frequently subject to more than one interpretation.”) (quoting Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970, 972 (Fla. 1st DCA 1991)); Jacobs v. Westgate, 766 So.2d 1175 (Fla. 3d DCA 2000); Pascale v. Federal Express Corp., 656 So.2d 1351 (Fla. 4th DCA), review denied, 666 So.2d 143 (Fla.1995).

      . See Post v. Lunney, 261 So.2d 146, 148 (Fla.1972); Emerine v. Scaglione, 751 So.2d 73, 74 (Fla. 2d DCA 1999), review denied, 767 So.2d 460 (Fla.2000) ("Because Emerine should be classified as an invitee, a jury issue exists as to whether Scaglione acted with reasonable care in maintaining the mobile home ... and the surrounding area in a safe condition.”); see also Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 330 (Fla.2001) ("It is undisputed that under Florida law, all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.”).

      . Cold Storage Cafe, Inc. v. Barone, 779 So.2d 371, 373 (Fla. 2d DCA 2000) ("The issue of whether a negligent condition exists on premises generally involves, as here, a disputed material fact which precludes summaty judgment.”); Emerine; Everett v. Restaurant & Catering Corp., 738 So.2d 1015, 1016 (Fla. 2d DCA 1999) (holding that a directed verdict for the defendant was error because "[wjhether the restaurant had actual or constructive knowledge of these conditions, and whether one or more of these conditions created a dangerous condition, thus violating the restaurant’s duty of reasonable care, were questions for a jury to decide.”).

      . In most of the cases cited by Marriott and in the vast majority of the other cases we have reviewed that apply the obvious danger doctrine, the issue is raised in the trial court via a motion for summary judgment. In the others cases, the issue is raised in a motion to dismiss, a motion for directed verdict or as an affirmative defense. We have again reviewed the record in the instant case and the doctrine was never raised in the trial proceedings. The trial court, therefore, never had an opportunity to consider whether the doctrine applied to the instant case. Since the doctrine was not raised in the trial court, we will not consider it in this appeal.


source: Caselaw Access Project

author: KELLY, Judge. ALTENBERND, Chief Judge,

license: Public Domain

text:
    Peggy WORLEY, Appellant, v. Michael Brady WORLEY, Appellee.
    No. 2D01-4488.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
    Rehearing Denied Oct. 7, 2003.

      Cynthia L. Greene of Law Offices of Cynthia L. Greene & Associates, P.A., Miami, and Law Offices of Alison Copley, Sebring, for Appellant.
    John W. Frost, II, and Mark A. Sessums of Frost Tamayo Sessums & Aranda, P.A., Bartow, for Appellee.
   KELLY, Judge.

Peggy Worley (“the Wife”) appeals from the final judgment dissolving her marriage to Michael Brady Worley (“the Husband”). She argues that the trial court erred in finding that the prenuptial agreement entered into between the parties was valid, and that the terms of the agreement constituted a waiver of her right to seek alimony and equitable distribution of marital assets. We affirm without discussion the trial court’s decision that the agreement was valid and entered into knowingly and voluntarily. We reverse the trial court’s decision that the prenuptial agreement waived the Wife’s claims to alimony and equitable distribution of assets.

The parties lived together for five years before marrying in 1978. At the time of dissolution in June 2001, the parties had been married for twenty-two years and had two children. According to the Husband’s financial affidavit dated March 6, 2000, the Husband had an annual income of approximately $80,000, and a net worth of $1,411,677. The Wife was working as a day-care provider earning slightly above minimum wage.

In the final judgment of dissolution, the trial court stated:

This Court has interpreted the prenuptial agreement to waive Wife’s claims to all forms of alimony and hereby interprets the prenuptial agreement to waive Wife’s claim to any enhancement and/or appreciated value in the real and/or personal property acquired during the marriage but titled solely in Husband’s name, inclusive of citrus groves, the former marital residence; M & M Citrus, Inc., etc.

The Wife argues that the trial court erred in interpreting the agreement. We agree. The prenuptial agreement provides in pertinent part:

1. Any property, either real or personal, acquired by either prospective spouse, before or after their marriage, shall be the separate property of the party owning or obtaining the property, and the other party shall make no claim or demand on the separate property, or on the heirs or personal representative of the owner’s estate, for that separate property.
3. Each of the parties forever waives, releases, and relinquishes any right or claim of any kind, character or nature whatsoever, which either may have in and to the estate, property, assets, or other effects of the other under any present or future law of the State of Florida or of any other state of the United States, except as otherwise specifically provided for in this agreement or any subsequent agreement executed by the parties.

A prenuptial agreement does not waive the right to alimony or support unless the waiver is unambiguously expressed in the agreement. White v. White, 617 So.2d 732 (Fla. 2d DCA 1993). Here, as in White, there is no mention of alimony or support in the prenuptial agreement. Accordingly, the trial court erred when it concluded that the Wife waived her right to seek future support by executing the agreement. See also Baas v. Baas, 718 So.2d 359 (Fla. 2d DCA 1998) (holding without merit the husband’s contention that the alimony award violates the parties’ separation agreement as the agreement failed to contain an unambiguous waiver of the right to seek alimony).

Likewise, we conclude that the trial court erred in interpreting the provisions of the prenuptial agreement as a waiver of the Wife’s right to seek distribution of assets that were acquired during the marriage as a result of the contribution of marital labor and funds or a waiver of her right to a distribution of the enhanced or appreciated value of the Husband’s separately titled assets. We agree with the Wife that our decisions in Witowski v. Witowski, 758 So.2d 1181 (Fla. 2d DCA 2000), and Doig v. Doig, 787 So.2d 100 (Fla. 2d DCA 2001), are controlling.

As noted in Witowski, section 61.075, Florida Statutes (2000), governs equitable distribution. Section 61.075(5)(b) provides that assets and liabilities excluded from marital assets and liabilities by a valid written agreement are nonmarital. Accordingly, in Witowski, this court found that because the prenuptial agreement did not specifically protect the husband’s salary from consideration as a marital asset, the fact that the husband placed the money in a retirement account that was non-marital did not put the funds beyond the reach of the other spouse. Witowski, 758 So.2d at 1184.

As in Witowski, the prenuptial agreement in this case does not specifically protect the Husband’s salary from consideration as a marital asset and, by extension, does not protect property he purchased with that income from being considered as a marital asset. Here, the Wife argues that both before and during the marriage, the Husband acquired a number of citrus groves from his father but that he paid for all the groves during the marriage through his labor or the use of marital funds. Likewise, she contends that the marital home was paid for with marital funds and that the family business, M & M Citrus, was the product of both parties’ marital labor. To the extent the Wife can establish that these properties or the business were acquired in whole or in part with marital funds or labor, the marital properties and the enhanced value of the non-marital properties attributable to marital contributions are subject to equitable distribution.

Section 61.075(5)(a)(2) provides that “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds” is a marital asset. In Doig, the parties’ agreement provided: “Neither party shall make any claim or acquire any interest in the other party’s separate property if it increases in value during the marriage.” This court construed that provision to address passive appreciation but not increases in value attributable to marital labor and funds. Id. at 103.

As in Doig, the prenuptial agreement here made no reference to the appreciation or enhancement in value of the Husband’s premarital or nonmarital property attributable to marital labor or funds. Accordingly, to the extent that the Wife can establish that the value of the Husband’s premarital or nonmarital property was enhanced by virtue of contributions of marital funds or labor, that enhanced value is subject to equitable distribution.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge,

Concurring.

I fully concur in the court’s opinion. If the critical sentence in paragraph one of the prenuptial agreement regarding property had contained the phrase, “even if acquired with marital income or by virtue of marital labor,” I expect that we would reach a different result on the issue of equitable distribution.

This case demonstrates the need for some standard, approved language for use in prenuptial agreements. In my opinion, it also demonstrates the need for legislation regulating the situations in which such agreements can be used.

These agreements may have merit in second marriages between older people who wish to preserve most of their premarital assets for their children and grandchildren. At least for a term of ten or fifteen years, a prenuptial agreement to protect assets may be sensible in a case where one party has extensive family assets and the other does not. There are undoubtedly other instances in which prenuptial agreements serve a valid purpose.

All too often, these agreements are used when one member of the marriage simply wants to opt out of the general public policies established by the legislature in chapter 61 for the well-being of the citizens of this state. In this case, for example, the parties were in their late twenties and had lived with one another for several years before the marriage in 1978. The Wife was several months pregnant when the Husband insisted on an agreement pri- or to the wedding. Neither party had an extraordinary earning ability. The Husband apparently expected that his family would transfer ownership of portions of the citrus groves to him during the term of the marriage in exchange for his labors in caring for this land.

I see no reason why the legislature would want the Husband in such a situation to be able to permanently opt out of the statutory obligation to pay alimony or attorneys’ fees. It is perhaps more debatable whether the legislature should permit a person to forfeit a claim for equitable distribution of marital assets. If I were a legislator, I would question whether it was good public policy to allow a man to obtain a waiver of equitable distribution in consideration for a wedding that legitimizes a child.

If the legislature were to enact a law addressing prenuptial agreements, I doubt that it would permit young couples with limited assets and income who are intending to raise a family to divert what would otherwise be marital assets to the sole benefit of one party at the expense of the other party and any children. As shown in this case, permitting prenuptial agreements under these circumstances could allow a party to leave a lengthy marriage with assets in excess of $1,000,000, most acquired during the marriage as a result of the family’s labor, and to leave the other spouse, who may have responsibility for the children, with virtually nothing. However, unless and until the legislature addresses this subject, young couples are free to enter into such contracts so long as they are precisely worded, and the courts are compelled to enforce them absent fraud, duress, or overreaching.


author: PER CURIAM.

text:
    Anthony J. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2018.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2003.
    Rehearing Denied Sept. 17, 2003.
    Anthony J. Henderson, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.Crim. P. 3.850(b).

SHARP, W., THOMPSON and ORFINGER, JJ., concur.


author: STRINGER, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Catherine M. HODGES, Respondent.
    No. 2D03-281.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2003.

      Richard A. Sherman, Sr., of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale; and Lynne E. Dailey of George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, Fort Myers, for Petitioner.
    Thomas M. Pflaum, Micanopy; and Randall L. Spivey of Associates & Bruce L. Schemer, Fort Myers, for Respondent.
   STRINGER, Judge.

Allstate Insurance Company seeks cer-tiorari review of the trial court’s order granting Catherine M. Hodges’ motion to compel discovery in this automobile injury case. Allstate argues that the trial court departed from the essential requirements of the law in (1) ordering Allstate to answer interrogatories concerning the relationship between Allstate and three medical groups with which Allstate’s doctors were affiliated, and (2) declining to require Hodges to post a bond for the estimated cost of complying with the court order. We conclude that the trial court did not depart from the essential requirements of the law in ordering Allstate to answer the interrogatories or in denying Allstate’s request that Hodges post a bond in this case. Accordingly, we deny the petition.

This was a standard automobile accident, alleging soft-tissue injuries. Hodges propounded the following interrogatories to Allstate:

1. Please identify each case in which members, employees, or experts of Florida Neurology Group and/or Neurology Specialists of Southwest Florida have testified as an expert witness by deposition during the past three years for ALLSTATE INSURANCE COMPANY.
2. Please identify each case in which members, employees, or experts of Florida Neurology Group and/or Neurology [Specialists of Southwest Florida have testified as an expert witness in trial during the past three years for ALLSTATE INSURANCE COMPANY.
3. For the past three years, how many litigation cases [h]as Florida Neurology Group and/or Neurology [Specialists of Southwest Florida performed an analysis, examination or rendered opinions for ALLSTATE INSURANCE COMPANY.
4. Please identify the total amount of money that members, employees, or experts of Florida Neurology Group and/or Neurology [Specialists of Southwest Florida have been paid during the past three years by ALLSTATE INSURANCE COMPANY.
5. Please identify each case in which members, employees, or experts of Neurology Associates of Lee County have testified as an expert witness by deposition during the past three years for ALLSTATE INSURANCE COMPANY.
6. Please identify each case in which members, employees, or experts of Neurology Associates of Lee County have testified as an expert witness in trial during the past three years for ALLSTATE INSURANCE COMPANY.
7. For the past three years, how many litigation cases [h]as Neurology Associates of Lee County performed an analysis, examination or rendered opinions for ALLSTATE INSURANCE COMPANY.
8. Please identify the total amount of money that members, employees, or experts of Neurology Associates of Lee County have been paid during the past three years by ALLSTATE INSURANCE COMPANY.
9. Please state the taxpayer identification number of the Defendant, ALLSTATE INSURANCE COMPANY.

Allstate’s answers to the interrogatories refer to the attached affidavit of James McKay. In the affidavit, McKay states that there is no central file, document, record, or database currently in existence at Allstate that contains all the information requested. Allstate can furnish the total amount paid to the doctors from the 1099 tax forms, but this does not reveal the specific medical or healthcare services provided by the doctors. Payments reflected in the 1099s could be for (1) treatment of an Allstate insured, (2) treatment of a claimant injured by an Allstate insured, (3) reimbursement for deposition or trial testimony, (4) consulting, or (5) an independent medical examination.

The affidavit further reveals that for the calendar years of 1999 through 2001, Allstate made 683 payments to Neurology Specialists of Southwest Florida and 162 payments to Neurology Associates of Lee County, for a total of 845 payments. Allstate paid Neurology Specialists of Southwest Florida $225,725.34 from 1999 through 2001 and paid Neurology Associates of Lee County $22,253.07 during the same period. The list does not identify the purpose of the payments or which specific physician performed the service. A review of the actual claim files would need to be made to determine the purpose of the payments. It would take two minutes to locate each file, and since approximately fifty percent are in storage and it costs Allstate $2 per file for retrieval from storage, this would cost $845. Then it would take two to four weeks to retrieve the flies. It would take approximately thirty minutes per file to review the file, which would be 422 hours. This would take two adjusters, working forty hours a week, five weeks to complete the review. The total cost of providing complete answers to the interrogatories would be $11,885.

Also attached to the answers are the affidavits of Joseph Bonk, David Rogers, and Jule Mann. Bonk states that Allstate has a mainframe computer which purges information after a period of time, except for payments reported to the IRS, and that the computer system does not have, and cannot retrieve, the information requested. Rogers avers that once a claim check is received from the bank, the status of the check is changed to a “paid” status and is purged from the data list in thirty to ninety days. The information requested is not on the computers and cannot be retrieved. Mann states that there is no information on the computer from which the specific purpose of payments can be retrieved.

Hodges filed a motion to compel better interrogatory answers, which alleged that the Florida Supreme Court case of Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla.1999), requires Allstate to answer these interrogatories. The trial court agreed and subsequently entered an order granting Hodges’ motion to compel. Allstate filed a motion for rehearing and/or to post bond for discovery costs, which the trial court denied. It is from these orders that Allstate seeks certiorari review.

Discovery

In order for a party to be entitled to a writ of certiorari, it must show that the order departs from the essential requirements of the law causing material injury to the petitioner. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94-95 (Fla.1995). In other words, the petitioner must show that there has been a violation of a clearly established principle of law that resulted in a miscarriage of justice. Combs v. State, 436 So.2d 93, 96 (Fla.1983). Most economic concerns regarding the cost of litigation do not involve the essential requirements of the law or a violation of a clearly established principle of law resulting in a miscarriage of justice. Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1199 (Fla. 4th DCA 2000).

Information regarding the frequency of an expert’s testimony and the corresponding payments to the expert is discoverable from the defendant insurer in a personal injury action. Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999). Specifically, information regarding how often the expert testified on behalf of the insurer and how much money the expert has been paid due to its relationship with the insurer is “directly relevant to a party’s efforts to demonstrate to the jury a witness’s bias.” Id. The rationale for allowing such discovery has been explained as follows:

A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship. A party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness’s financial incentive to continue the financially advantageous relationship.
Any limitation on this inquiry has the potential for thwarting the truth-seeking function of the trial process.... To limit this discovery would potentially leave the jury with a false impression concerning the extent of the relationship between the witness and the party by allowing a party to present a witness as an independent witness when, in fact, there has been an extensive financial relationship between the party and the expert. This limitation thus has the potential for undermining the truth-seeking function and fairness of the trial.

Id. at 997-98.

Since Boecher, this court has dismissed a petition for certiorari seeking to quash an order requiring the petitioner to produce copies of billing invoices submitted by the experts to the petitioner’s counsel for the previous three years. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1 (Fla. 2d DCA 2001). In so ruling, this court noted the following four factual similarities between its case and Boecher: (1) each respondent sought information regarding the extent of a financial relationship between an expert witness and a key party in the litigation; (2) the information would disclose the amount of money the expert was paid as a result of its relationship with the petitioner; (3) the information was directly relevant to show bias of the witness; and (4) limiting the discovery of the information “would affect the truth-seeking function of a jury, for the failure to present any ultimately admissible information would diminish the jury’s right to assess the potential bias of the witness.” Id. at 2-3.

This case contains the same four factual similarities to Boecher that were noted in Pope. First, in this case, the respondent, Hodges, sought information regarding the extent of the financial relationship between expert witnesses and the petitioner. Hodges specifically sought information regarding the name of the cases in which the experts testified in deposition or at trial, performed an analysis, or rendered an opinion for the past three years and the corresponding payments. Second, the information would disclose the amount of money the experts were paid as a result of their relationship with Allstate. The information sought in this case is necessary to determine the amount of money the experts were paid because the total amount paid to the experts included payments for nonlitigation-related services that are not relevant to the experts’ bias. If Hodges did not receive the information requested, it is quite likely that the trial court would not allow Hodges to use the total amount paid to the experts for impeachment purposes because it would not be an accurate statement of how much Allstate actually paid the experts to help it in litigation. Third, for the above-mentioned reasons, the information was directly relevant to show the bias of the experts, and fourth, limiting the discovery of the information would affect the truth-seeking function of the jury and its right to assess the experts’ credibility.

The trial court’s decision to require Allstate to provide better answers to the interrogatories in this case is also consistent with the policy behind Boecher. In order to ensure fairness of the trial, the Boecher court expressly contemplated the type of discovery sought here. The court explained that it was attempting to ensure a party’s right to argue to the jury that a witness is biased because of its financial relationship with a party. Boecher, 733 So.2d at 997-98. However, in the three years following the issuance of Boecher, Allstate still has not implemented a computer program or system for keeping track of the information. In fact, Allstate used two of the very same affidavits it used in Boecher to explain that its computer system did not have the information requested readily accessible. In this day of the computer age, and in light of the Boecher court’s serious emphasis on the need for the very type of information requested, Allstate may want to reconsider adapting its computer system to provide easier access to the requested information.

Furthermore, under Topp Tele-com, Allstate’s economic concerns would not rise to the level of an undue burden necessary to support a finding of a departure from the essential requirements of the law. See 763 So.2d at 1200. That court has specifically stated that “[a]n erroneous order compelling discovery when the cost and effort to do so is burdensome but not destructive is simply not ‘sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari.’” Id. (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). The court also noted that, as in this case, the party imposed upon may later seek reallocation of the costs incurred for the discovery as the prevailing party. Topp Telecom, 763 So.2d at 1200 n. 5.

Allstate relies upon Allstate Insurance Co. v. Pinder, 746 So.2d 1255 (Fla. 5th DCA 1999), and Olivas v. Bravo, 795 So.2d 103 (Fla. 3d DCA 2001), to support its position. Pinder concerns a request for production that seeks information almost identical to that requested in the interrogatories in this case. 746 So.2d at 1255. There, the court granted the writ of certio-rari and quashed the trial court’s order requiring production of the discovery. Id. at 1257. The court distinguished Boecher because Boecher involved interrogatory responses, as opposed to the production of documents, and the information requested in Boecher was not nearly as detailed as the information requested in Pinder. Id. at 1256. The court concluded that “Boecher does not hold that a party is entitled to the amount of detail requested here or to have the data sorted out as requested by the plaintiffs in this case. Even if it were, nothing in Boecher suggests a party should be entitled to have another party respond to a request to produce by creating a nonexistent document.” Id. at 1256-57.

The Pinder court did not determine the issue of whether the defendants would have been required to provide the information in the form of answers to interrogatories, which is the issue before this court. In fact, the Pinder court stated that it would have required the defendant to produce at least some of the requested information if it had been addressing interrogatories. Id. at 1257.

In Olivas, the court did not disclose the exact nature of the discovery sought, but concluded that the request “improperly requires the defendants’ liability insurance carrier and their attorneys to produce information ... which was not only overly burdensome and irrelevant but is reflected in records which do not exist and which the company was erroneously required to create.” 795 So.2d at 103-04. The court concluded that the respondents were entitled only to the carrier’s tax identification number and the 1099 tax forms concerning the expert. Id. at 104.

These decisions are distinguishable because they both appear to address document production, as opposed to interrogatory responses. Therefore, this case does not raise the issue of the creation of nonexistent documents addressed in Pinder and Olivas. The interrogatories in this case do not require the creation of a nonexistent document, but merely require the documentation of information already in Allstate’s possession. Allstate has not asserted that it could not access the requested information, it merely suggested that doing so would take several weeks because it would have to retrieve many of the flies from storage and an adjuster would have to retrieve the information from the flies.

Because the trial court’s order is consistent with Boecher and does not create an undue burden on Allstate, we conclude that it does not depart from the essential requirements of the law causing material injury to Allstate.

Bond

Allstate argues that the trial court departed from the essential requirements of the law in denying its request that Hodges post a bond for the estimated cost of responding to the interrogatories. It is appropriate for a court to require a party to post a bond to indemnify the producing party against the costs of discovery when the cost is unreasonable and unduly burdensome. Mt. Sinai Med. Ctr., Inc. v. Perez-Torbay, 555 So.2d 1300, 1301 (Fla. 3d DCA 1990); Schering Corp. v. Thornton, 280 So.2d 493, 494 (Fla. 4th DCA 1973). However, the bond requirement “must necessarily be a case by case decision under the applicable circumstances.” Schering, 280 So.2d at 494; see also Rinker Materials Corp. v. Navistar Int’l Transp. Corp., 654 So.2d 279, 281 (Fla. 4th DCA 1995). In this case, the trial court may very well have determined that Allstate’s discovery costs were not unreasonable and unduly burdensome. Accordingly, it cannot be said that the court departed from the essential requirements of the law in denying Allstate’s request for a bond.

Petition for writ of certiorari denied.

WHATLEY and SILBERMAN, JJ„ concur.


author: ERVIN, J.

text:
    RJ & RK, INC., a Florida Corporation, Appellant, v. Kimberly Keeton SPENCE, as Personal Representative of the Estate of Ronald G. Keeton, Appellee.
    No. 1D02-3806.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Rehearing Denied Oct. 3, 2003.

      Albert H. Mickler of the Law Offices of Mickler & Mickler, Jacksonville, for Appellant.
    Michael G. Tanner of Holland & Knight, L.L.P., Jacksonville, for Appellee.
   ERVIN, J.

This is an appeal from a final judgment in a mortgage foreclosure suit in which the lower court awarded $95,000 in attorney’s fees to the mortgagee, Kimberly Keeton Spence, personal representative of the estate of Ronald G. Keeton, against RJ & RK, Inc., the mortgagor, pursuant to a contractual provision in the promissory note authorizing fees to the lender in any proceeding to enforce the obligation. We reverse the fee award, because the conduct of the mortgagee that resulted in the denial of her right to accelerate the note and mortgage also warranted the denial of fees.

Ronald Keeton was the sole stockholder of Keeton Correctional Institutions, Inc. (KCI), which operated halfway houses on properties owned by RJ & RK. KCI paid a monthly rental to RJ & RK for the use of the property in Duval County, Florida, for such purpose, and the parties agreed that the rents would be used to fund a note and mortgage taken out on the properties by RJ & RK. The note and mortgage were assigned to Keeton’s estate upon his death. After Spence, as personal representative, had directed a number of the rental payments to be paid by KCI on behalf of RJ & RK toward the mortgage obligation, Spence ceased making them once negotiations with RJ & RK to reduce the rent failed. The mortgage went into default and Spence, on behalf of the estate, commenced suit against RJ & RK to foreclose the mortgage.

Recognizing the unique financial arrangement between the parties, the lower court denied Spence the right to accelerate the note and mortgage, because Spence was responsible for stopping payments on the note and mortgage. Nevertheless, the court awarded Spence $666,367.56, the remaining balance on the mortgage, directed that the mortgage be canceled, and declared Spence the prevailing party, thereby entitling her to an award of attorney’s fees.

Spence defends the fee determination, contending that she is the prevailing party because she prevailed on the significant issues before the court. See Moritz v. Hoyt Enters., 604 So.2d 807 (Fla.1992). Under the circumstances present in this appeal, we consider that the “significant issues” theory is immaterial to Spence’s entitlement to fees. The contractual obligation under which Spence seeks fees does not condition such award on whether she prevailed, but permits the same simply as a means of enforcing or collecting the obligation. See, e.g., B & H Constr. & Supply Co. v. Dist. Bd. of Trustees of Tallahassee Cmty. Coll., Fla., 542 So.2d 382, 387 (Fla. 1st DCA 1989).

It is true that Spence was successful in collecting damages under the note and mortgage; nevertheless, her triumph in such regard does not automatically entitle her to a fee award. Courts generally have no discretion to decline enforcement of a contractual provision authorizing an allowance of attorney’s fees. See Baker Protective Servs. v. FP, Inc., 659 So.2d 1120 (Fla. 3d DCA 1995). A recognized exception to the rule, however, occurs in situations in which conduct on the part of the mortgagee bars acceleration and foreclosure of the mortgage. See Jobert-Ken-dall, Inc. v. Kendall Commercial Assoc., 491 So.2d 1301 (Fla. 3d DCA 1986); Fed. Home Loan Mortgage Corp. v. Taylor, 318 So.2d 203 (Fla. 1st DCA 1975). In the case at bar, it was the conduct of Spence, the mortgagee, by no longer applying rental payments toward the satisfaction of the mortgage obligation, which caused the note and mortgage to be defaulted — conduct that the court below correctly found disallowed Spence from her right to acceleration. Accordingly, the award of attorney’s fees is

REVERSED.

BARFIELD and ALLEN, JJ., CONCUR.

      . The monthly rental amounts were the same as the payments on the note and mortgage.

      . This court affirmed the validity of the assignment in Parziale v. First Union National Bank of Florida, 837 So.2d 970 (Fla. 1st DCA 2003).

      . In a separate judgment, the court found that RJ & RK was entitled to $784,634.45 in unpaid rents from KCI, from which the court offset the $666,367.56 awarded as damages in the instant foreclosure action, before the additional deduction of attorney’s fees and costs.


author: FULMER, Judge. ALTENBERND,

text:
    Timothy CONDON, Appellant, v. OFFICE DEPOT, INC., a Delaware corporation d/b/a Office Depot, Appellee.
    No. 2D02-1688.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.
    Rehearing Denied Oct. 7, 2003.

      Michael C. Addison of Addison & Delano, P.A., Tampa, for Appellant.
    Richard M. Zabak and Rebecca O’Dell Townsend of Gray, Harris & Robinson, P.A., Tampa, for Appellee.
   FULMER, Judge.

In this appeal we consider whether Florida recognizes a private cause of action arising under the Telephone Consumer Protection Act (TCPA), 42 U.S.C. § 227 (1999), in the absence of specific state legislation authorizing such action. We hold that no enabling legislation is required before this claim can be heard in state courts. Therefore, we reverse.

In a complaint filed in circuit court, Timothy Condon alleged that Office Depot violated the TCPA by sending him thirteen unsolicited facsimile advertisements. The TCPA prohibits, among other things, the sending of certain unsolicited facsimile advertisements. 47 U.S.C. § 227(b)(1)(C). The TCPA provides a private cause of action only in state court “if otherwise permitted by the laws or rules of court of a State.” 47 U.S.C. § 227(b)(3). Interpretation of the phrase “if otherwise permitted by the laws or rules of court of a State” was the crux of the dispute in the underlying proceeding.

Office Depot filed a motion to dismiss Condon’s complaint, asserting that the “if otherwise permitted” language required the Florida Legislature to enact substantive legislation before this claim was cognizable in state court and that Florida had taken no such action to opt in. The trial court agreed and dismissed the suit with prejudice.

On appeal, Office Depot reiterates the arguments made in the trial court. Con-don argues, as he did below, that the “if otherwise permitted” language does not require the state to opt in by taking affirmative action to permit suits under the TCPA. It simply means that when a TCPA claim is brought in a state court, local laws control procedure, jurisdiction, venue, administration, and the like.

Interpretation of this language has been addressed by other state and federal courts, although it appears that we are the first appellate court in Florida to do so. We join the majority view and conclude that the State is not required to adopt enabling legislation before a state court of competent jurisdiction can entertain this federal law claim. Rather, we interpret the language “if otherwise permitted” to acknowledge the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules or to create courts to accommodate TCPA claims. “The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the state create a court competent to hear the case in which the federal claim is presented.” Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 372, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). The “federal law takes the state courts as it finds them.” Howlett, 496 U.S. at 372, 110 S.Ct. 2430 (citing Henry Hart, The Relations Between State and Federal Law, 54 Colum. L.Rev. 489, 504 (1954)). “The States thus have great latitude to establish the structure and jurisdiction of their own courts.” Howlett, 496 U.S. at 372, 110 S.Ct. 2430. It is these principles of federal law that we conclude are the subject of the “if otherwise permitted” language.

We align ourselves with the majority view because we are of the opinion that the minority view requiring opt-in legislation runs afoul of the Supremacy Clause of the United States Constitution. There is a presumption of state court jurisdiction over claims arising under federal law. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). And, while exclusive jurisdiction in state court for a federal claim is unusual, it does not negate controlling principles of constitutional law.

Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws “the supreme Law of the Land,” and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure.

Howlett, 496 U.S. at 367, 110 S.Ct. 2430; see also Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947) (holding that Rhode Island state courts could not refuse to enforce a federal statute when the courts had jurisdiction that was adequate and appropriate to adjudicate the type of claim covered by the federal statute).

The Supreme Court has recognized a presumption of state-court jurisdiction over federal claims, which “can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). The ambiguous language “if otherwise permitted” does not explicitly direct the enactment of enabling state legislation. Nor does the legislative history support such a requirement. According to Senator Hollings, the bill sponsor:

The substitute bill contains a private right-of-action provision that ... would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court.
Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.

137 Cong. Rec. S16,205-06 (1991) (statement of Sen. Hollings) (emphasis added). Senator Hollings thus expected state legislation to address issues like venue. Finally, we see no incompatibility between state-court jurisdiction and federal interests. To the contrary, “although Congress created the private TCPA action, it was from the beginning a cause of action in the states’ interests.” Int’l Sci & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1154 (4th Cir.1997) (reciting Congressional findings that over half the states had similar statutes but they were being evaded through interstate operations and that the states had expressed a desire for federal legislation to supplement their restrictions). Given the presumption of state-court jurisdiction and the absence of any factors that would rebut its existence, we would require an explicit mandate from Congress that the private cause of action it created was conditioned on prior state approval.

“Federal law confers rights binding on state courts, the jurisdiction of which is governed in the first instance by state laws.” Gulf Offshore Co., 453 U.S. at 478, 101 S.Ct. 2870 (footnote omitted). The Florida Constitution is the source of jurisdiction for Florida’s courts. Under article V, section 5(b), Florida circuit courts are courts of general jurisdiction. As such, they are competent to hear the type of claim filed by Condon. And they do hear similar claims under section 365.1657, Florida Statutes (2001), which makes it unlawful to send unsolicited fax advertisements and provides for enforcement by the Attorney General. Because section 365.1657 was passed prior to the 1991 enactment of the TCPA, see ch. 89-95, Laws of Fla., we do not consider it as a legislative refusal to permit a private cause of action under this later-enacted federal law.

For the reasons expressed, we conclude that the trial court erred by dismissing Condon’s complaint. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT, J, Concurs.

ALTENBERND, C.J., Dissents with opinion.

ALTENBERND,

Chief Judge, Dissenting.

I recognize that the court’s ruling in this case is supported by the majority of jurisdictions that have considered this issue. It may be that I am simply troubled by the questionable precedent created by a federal statute that effectively enacts a uniform state law for all fifty states by enacting a single federal law that can only be enforced in state courts. Nevertheless, I am persuaded by Maryland’s opinion in R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 149 Md.App. 219, 815 A.2d 816 (2003), and accordingly dissent. I do not believe that the federal statute should be interpreted as requiring a state court to handle these federal claims merely because a state’s constitution provides for a trial court of general jurisdiction.

In 1989, the Florida Legislature enacted a statute that prohibited certain unsolicited advertising by facsimile machine. See ch. 89-95, Laws of Fla. (codified at § 365.1657, Fla. Stat. (2002)). The statute provided for a civil penalty not to exceed $500 per violation. Significantly, it did not expressly provide for a private right of action. In this state, there is no question that this consumer protection statute did not implicitly create a private right of action. See Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003).

In 1991, Congress enacted the Telephone Consumer Protection Act. See Telephone Consumer Protection Act of 1991, Pub.L. No. 102-243, § (3)(a), 105 Stat. 2394 (1991). In addition to enforcement by government agencies, this federal statute provided a private right of action allowing for $500 in damages for each violation and treble damages for certain intentional violations. See 47 U.S.C. § 227(b)(3). Congress had detailed knowledge about the volume of facsimile advertising occurring at that time, and it realized that this advertising could result in extensive litigation. See Int’l Sci. & Tech. Inst., Inc. v. Inacom Communications, 106 F.3d 1146, 1156 (4th Cir.1997). Congress declined to fund a federal judicial forum to resolve this new federal claim for relief. Instead, it decided to shift the public cost of these private lawsuits entirely to the states. Congress was clearly aware that it was treading close to the edge of its powers under the Tenth Amendment. See Int’l Sci. & Tech. Inst., 106 F.3d at 1154, 1157. As a result, the statute does not mandate that states must or shall extend state court jurisdiction to include this new federal cause of action. The statute states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection....

47 U.S.C. § 227(b)(3)(A).

No one suggests that Florida has any “rules of court” that expressly allow the circuit courts to entertain this federal claim. The Florida Legislature never amended section 365.1657 to create a private right of action or to give Florida courts jurisdiction over the federal claim. Additionally, the Florida Legislature never adopted a statute, either before or after 1991, that would authorize Florida’s courts to consider this unusual federal statutory cause of action. Instead, this court’s opinion holds that the general jurisdiction clause in the Florida Constitution is sufficient, without any legislative action, to give circuit courts jurisdiction over these federal claims.

The issue in this case is not whether the federal statute is unconstitutional under the Tenth Amendment. The issue is not whether Florida’s circuit or county courts could exercise jurisdiction over this federal claim. The dispositive issue in this case is one of statutory interpretation. The question is whether Congress intended the phrase, “may if permitted by law,” to mean “shall unless expressly prohibited hereafter by that state’s legislature” when a state’s constitution provides for a trial court of general jurisdiction. I do not see this meaning within the text of the statute. I do not find anything that suggests that Congress intended its polite wording to have such impact. Congress is familiar with the Tenth Amendment and the limitations upon its power to “commandeer” state agencies. See Printz v. United States, 521 U.S. 898, 117 S.Ct. 2865, 138 L.Ed.2d 914 (1997); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). See generally F.E.R.C. v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982). Congress probably could not compel a state agency to provide an exclusive administrative forum to enforce this consumer statute, and I question whether it intended state courts to become the equivalent of a consumer enforcement agency without any authorization by the state’s legislature. If Congress wishes to compel state courts to be the exclusive judicial forum implementing such a federal policy — unless and until a state’s legislature enacts a law relieving its courts of this task — it should be required to state that mandate explicitly.

I do not view the Supremacy Clause as a major factor in this analysis. This court and all state courts must obviously obey valid federal laws as the supreme law of the land. However, when the United States Constitution was adopted, the Tenth Amendment was quickly added to ensure states’ rights and to explain that the federal government obtained its power by “delegation” from the people and the states. See United States v. Sprague, 282 U.S. 716, 733, 51 S.Ct. 220, 75 L.Ed. 640 (1931); United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 85 L.Ed. 609 (1941); see also U.S. Const, amend. X. The question in this case is whether Congress intended to claim that it had been delegated the power to expand the jurisdiction of Florida’s state courts to include claims not authorized by Florida’s own legislature. I see no evidence that Congress had such an intent. Given the permissive language used in section 227(b)(3), I would interpret the statute to avoid any possible Tenth Amendment issue. Accordingly, I would interpret the federal statute as requiring that the Florida Legislature enact, either before or after the enactment of the federal statute, a state law permitting Florida’s courts to resolve these federal claims.

Because advertising by facsimile has become less common with the advent of the Internet, I would be less concerned with the outcome in this case were it not for another similar section of this statute. Section (c)(5) of this same federal statute, like section (b)(3), contains the same language concerning a private right of action for unwanted telephone solicitations in state courts. See 42 U.S.C. § 227(c)(5) (stating that persons “may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State”). With the advent of nationwide do-not-call lists, and potential do-note-mail lists, Congress may greatly expand its use of state courts to implement federal law. This is occurring at a time when state court budgets are very tight. These courts simply lack the state funding to serve the federal government as its exclusive consumer protection dispute resolution forum.

      . Condon also alleged that Office Depot violated 47 U.S.C. § 227(d)(1)(B) by sending facsimiles that were not clearly marked in the margins with certain identifying information. Office Depot argued, and the trial court held, that the federal statute did not allow a private cause of action for this type of claim. Con-don does not appeal this portion of the trial court's order.

      . 47 U.S.C. § 227(b)(3) states:
      A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
      (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
      (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
      (C) both such actions.

      . See, e.g.. Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468 (2000) (construing TCPA to create private cause of action and to confer jurisdiction on state courts without need for enabling state legislation); R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 149 Md.App. 219, 815 A.2d 816 (2003) (holding that Maryland’s prior enactment of statute prohibiting unsolicited fax ads, which provided for enforcement by Attorney General only, and Maryland’s subsequent failure to amend the statute to create a private cause of action, was sufficient evidence of the legislature’s intent not to accept the federal grant of state jurisdiction over private actions); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907 (Mo.2002) (holding that state enabling legislation was not necessary to create state jurisdiction over private cause of action under TCPA); Zelma v. Mkt. U.S.A., 343 N.J.Super. 356, 778 A.2d 591 (App.Div.2001) (same); Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 710 N.Y.S.2d 368, 371 (2000) (rejecting opt-in interpretation of identical language in section regulating telephone calls because "such an interpretation of the statute is inconsistent with established principles governing state court jurisdiction over claims based on Federal laws”); Autoflex Leasing, Inc. v. Mfrs. Auto Leasing, Inc., 16 S.W.3d 815, 817 (Tex.App.2000) (holding that “Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA, before such suits under the TCPA may be brought in state courts”).

        .See, e.g., Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000) (finding no federal court jurisdiction over private cause of action under TCPA); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998) (stating that jurisdiction over TCPA private cause of action existed in state courts, which are "courts of general jurisdiction and are accordingly presumed to have jurisdiction over federally-created causes of action unless Congress indicates otherwise,” but not in federal courts, which are "courts of limited jurisdiction which thus require a specific grant of jurisdiction”); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir.1998); Int’l Sci. & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1152 (4th Cir.1997) (finding exclusive state court jurisdiction over private TCPA action and quoting Senator Hollings, the sponsor of TCPA, as stating that "[t]he bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine”).

      . Of the cases cited, only Texas and Maryland have held that the state legislature must affirmatively act or manifest its consent to state court jurisdiction before this federal claim is cognizable in state court. See Autoflex Leasing, 16 S.W.3d 815; R.A. Ponte Architects, 815 A.2d 816.

      . While Senator Hollings was specifically discussing computerized telephone calls, which are also prohibited by the TCPA, the provision creating a private cause of action in state court applies to both computerized telephone calls and unsolicited fax advertisements.

      . County courts exercise the jurisdiction prescribed by general law. Art. V, § 6(b), Fla. Const. Under section 34.01(l)(c), Florida Statutes (2001), county courts have original jurisdiction over "all actions at law in which the matter in controversy does not exceed the sum of $15,000, exclusive of interest, costs, and attorney’s fees, except those within the exclusive jurisdiction of the circuit courts." Thus, depending on the relief sought and the amount in controversy, a claim under the TCPA could be filed in county court.


author: SHAHOOD, J.

text:
    ESTATE OF Nadya G. CADDEN, a/k/a Nadya Cadden, a/k/a Nadya Grinko Cadden, and Kolya “Jack” Cadden as Personal Representative of the Estate of Nadya G. Cadden, a/k/a Nadya Cadden, a/k/a Nadya Grinko Cadden, Appellants, v. Gerhard H. SCHICKEDANZ, a/k/a Garry H. Schickedanz and Susan LeAnne Schickedanz, a/k/a LeAnne Schickedanz, Appellees.
    No. 4D02-1960.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Rehearing Denied Oct. 27, 2003.
    Robert D. Jones of Fuchs and Jones, P.A., Royal Palm Beach, for appellants.
    Rod Tennyson of Rod Tennyson, P.A., West Palm Beach, for appellees.
   SHAHOOD, J.

This is an appeal of an order on attorney’s fees and costs. It is the companion case to a prior appeal, which resulted in the issuance of a per curiam affirmance. See Cadden v. Schickedanz, 833 So.2d 145 (Fla. 4th DCA 2002). The facts are as follows.

Nadya Cadden (Cadden) negotiated with Gerhard Schickedanz and his wife, Susan LeAnne Schickedanz (appellees) to sell 17.16 acres of land. The initial purchase involved 8.9 acres; however, as part of the contract, Cadden granted the appellees a right of first refusal on the remaining acres. That handwritten provision in the contract provided:

Buyer will have first right to buy the back half of the property for an amount not to exceed $175,000. At seller’s decision to sell or from her estate.

The following year, due to zoning difficulties appellees were experiencing, Cadden agreed to an additional conveyance of approximately 1.1 acres to expand appellees’ parcel to ten acres. As a result of this second conveyance, the parties reduced the capped price of the right of first refusal provision from $175,000 to $166,800.

In finalizing this second conveyance, the parties entered into an Amended Restated Grant of First Refusal. Pursuant to the amended agreement, Cadden agreed to notify appellees in writing of any bona fide, third-party offer to purchase the remaining property and appellees would have the right of first refusal. Cadden agreed that any attempted conveyance in violation of the agreement would be null and void.

Some years later, Cadden contracted to sell the remaining property to a third party, Jeanette Sassoon (Sassoon), without formally notifying appellees and without giving them the right of first refusal. When appellees learned of the agreement between Sassoon and Cadden, they immediately contacted Cadden’s attorney and submitted an offer to purchase the remaining 7.16 acres, pursuant to the amended agreement.

On November 6, 1999, Cadden died. In a letter dated December 14, 1999 to Cad-den’s attorney, Sassoon exercised her option to purchase the 7.16 acres. A Petition for Administration was filed in the Cadden Estate on December 17, 1999. Letters of Administration were issued to Cadden’s son on January 28, 2000. Notice of Administration was published, with a first publication date of February 3, 2000. Ap-pellees filed a Statement of Claim on March 14, 2000. The personal representative filed an objection to the claim on April 28, 2000.

When Cadden’s estate (appellant) refused to convey the property to appellees, they filed a two-count complaint for specific performance and damages against Cad-den’s estate, the Personal Representative, and Sassoon on March 20, 2000. The estate and the Personal Representative counterclaimed for declaratory judgment for the court to determine the validity of the “Amended Restated Grant of Right of First Refusal.”

After a non-jury trial, the trial court found in favor of appellees and upheld the amended agreement. The court found that the provision of a first right of refusal between appellees and Cadden was not an unreasonable restraint on alienation, and directed the estate to immediately convey the remaining property to appellees. That judgment was affirmed by this court without an opinion. Id.

Appellees subsequently filed a motion to tax fees and costs. The trial court entered an order finding that appellees, as prevailing parties in the litigation, were entitled to an award of fees pursuant to the handwritten agreement between Cadden and appellees as well as the amended agreement between those parties. The parties stipulated to reasonable and necessary amounts of attorney’s fees and costs and judgment was entered in favor of appel-lees. This appeal follows.

Appellant argues that, pursuant to section 733.705(1), Florida Statutes (2000), ap-pellees are barred from receiving attorney’s fees from the estate because they filed suit on their claim prematurely. Ap-pellees counter that appellant’s interpretation of the probate statute is erroneous and contrary to section 95.11, Florida Statutes (2000), which dictates statutes of limitation.

Section 733.705(1), states,

1) The personal representative shall pay all claims within 1 year from the date of first publication of notice to creditors, ... No personal representative shall be compelled to pay the debts of the decedent until after the expiration of 5 months from the first publication of notice to creditors. If any person brings an action against a personal representative within the 5 months on any claim to which the personal representative has not filed an objection, the plaintiff shall not receive any costs or attorneys’ fees, nor shall the judgment change the class of the claim for payment under this code.

(Emphasis added). In this case, appellees filed the civil suit on their claim approximately one and a half months after the first publication of notice. Subsequent to the filing of the civil suit, the personal representative filed the objection in the probate court.

In Snyder v. Bell, 746 So.2d 1100 (Fla. 2d DCA 1999), a creditor filed suit against the estate and was later denied attorney’s fees under 733.705(1). The court held, “[bjecause Snyder brought an action on the claim within five months of administration and before Bell objected, we conclude that section 733.705 precludes an award of attorney’s fees to Snyder.” Id. at 1102. Alternatively, Snyder argued that he was entitled to fees under section 772.11, Florida Statutes, the Remedies for Criminal Punishment Act. Id. In discussing the apparent conflict between the two statutes, the appellate court said:

The trial court found that section 772.11 conflicted with section 733.705 in that it seemingly reduced the time a personal representative may take to object to a claim to thirty days, instead of four months. Although Snyder argues that section 772.11 controls because it is more specific than section 733.705, we conclude that the policy behind the Probate Code establishes that section 733.705 should control.
Section 733.705 was enacted in order to provide a personal representative more time in which to evaluate claims before distributing assets. A personal representative needs this time to investigate claims to determine which claims are valid. The Remedies for Criminal Practices Act could easily require the tortfeasor to pay a demand within thirty days because determination of the validity of a claim against the tortfeasor is a much simpler process than determination of the validity of a claim against a deceased third party.
Snyder also argues that the statutes could be read together to allow an estate four months to consider and pay a civil theft claim without incurring attorney’s fees. However, this interpretation ignores the plain intent of section 733.705 to punish a claimant for filing before an objection by disallowing attorney’s fees.

Id.

Appellees attempt to distinguish Snyder on the basis that the court in that case considered section 733.705 in conjunction with another statutory entitlement to fees and not in the context of a contractual entitlement to fees. They argue that section 733.705 could not apply to contractual obligations because “to do so would deny creditors their protected contract rights.” No authority supports this position, however. In fact, the statute is clear that 733.705(1) applies to any claim. See § 733.705(l)(“If any person brings an action ... within the 5 months on any claim to which the personal representative has filed no objection, the Plaintiff shall not receive any costs or attorneys’ fees”)(emphasis added).

Alternatively, appellees argue that section 733.705(1) conflicts with the one year statute of limitations imposed by section 95.11. Appellees argue that they were required to file their civil suit prematurely to preserve their right to file suit at all. That argument has no merit. Section 733.104(2), Florida Statutes (2000) states, “[i]f a person against whom a cause of action exists dies before the expiration of the time limited for commencement of the action and the cause of action survives, claim shall be filed on the cause of action, and it shall then proceed as other claims against the estate, notwithstanding the expiration of the time limited for commencement of the action.” The effect of this statute is to toll the statute of limitations at the death of the person against whom the cause of action exists. See Jones v. Lummus, 359 So.2d 538 (Fla. 3d DCA 1978)(holding that the filing of a timely claim against an estate, in accordance with statutory procedure governing such claims, tolls the running of the statute of limitations in regard to time within which suit may be filed on the claim); see also Briggs v. Estate of Geelhoed, 543 So.2d 332 (Fla. 4th DCA 1989)(the death of the debtor tolls the running of the statute of limitations applicable to enforcement of a debt).

Based upon the probate statutes and the cases interpreting them, the five-month “waiting period” for filing independent actions on claims in probate must be strictly adhered to in order to preserve one’s rights to attorney’s fees and costs. Appel-lees’ suit was filed before the expiration of the five-month period and before the filing of the personal representative’s objection to the claim. Thus, appellees were not entitled to fees because their suit was filed prematurely. Accordingly, the trial court’s order granting their motion for fees must be reversed.

REVERSED.

KLEIN and GROSS, JJ., concur.


author: KAHN, J.

text:
    Vincent L. KENON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3675.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    Rehearing Denied Oct. 2, 2003.

      Robert Augustus Harper and Michael Robert Ufferman, of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant Vincent L. Kenon appeals the denial of his criminal rule 3.850 motion for postconviction relief. We affirm the order of the trial court, rejecting Kenon’s argument that trial counsel rendered ineffective assistance by naming, during opening statements, India Paul, an exculpatory witness on the issue of identification, and then failing to present Paul’s testimony during the defense’s case-in-chief.

During opening statements at Kenon’s jury trial for attempted first-degree murder (count I), use of a firearm during the commission of a felony (count II), burglary of a conveyance with person assaulted (count III), and shooting into an occupied vehicle (count IV), trial defense counsel stated to the jury:

One of the witnesses that was not mentioned by [the prosecutor], but was discovered by police, was a woman by the name of India Paul. And India Paul has given a deposition that says the person that beat on the side of the passenger window was not the person who got out of the car and went and shot [the victim].

At trial, three prosecution eyewitnesses testified. Each identified Kenon as the perpetrator of a shooting. The State’s evidence essentially showed that on October 29, 1994, Kenon, a driver believing he had been cut off by another vehicle, got out of his car, walked to the driver’s side of the other car, and shot the other driver in the face. After a short recess, the defense rested without putting on any evidence. The jury convicted Kenon of attempted second-degree murder with a firearm on count I, and found him guilty as charged on counts II, III, and IV. The trial court imposed life imprisonment. This court reversed the conviction on count II, and affirmed the remaining counts. See Kenon v. State, 701 So.2d 887 (Fla. 1st DCA 1997).

Through his attorney, Kenon timely filed this rule 3.850 motion alleging ineffective assistance of trial counsel. At the eviden-tiary hearing, trial defense counsel and India Paul testified. Trial counsel testified that he interviewed and deposed Paul pri- or to trial. He testified that he was aware of inconsistencies in her statements to police and in her deposition before trial, and believed this was fertile ground for cross-examination. Specifically, in Paul’s initial statement to police, she denied any knowledge of who fired the shot. Trial counsel further testified that he decided not to call Paul after discussions with Kenon and because of his estimation of the value of rebuttal closing argument.

India Paul testified that the shooter got out of the rear passenger side door of the suspect vehicle. She disputed that her initial statement to police indicated she had not been in the area of the shooting. According to her November 1994 sworn statement to police, however, she stated she was in the area, heard gunshots, but did not see anyone with a gun. She stated that she exited her vehicle and walked towards the victim’s car, but the police were already there. Then, in her December 1995 deposition, she said, consistent with her testimony at the hearing, that the shooter got out of the passenger side of the suspect vehicle, but she stated she never went up to the victim’s car. When confronted with these inconsistencies, Paul was unable to offer an explanation and responded “I don’t remember” and “I don’t know.”

The trial court denied Kenon’s motion. The order recited findings that trial counsel’s decision not to call Paul was a tactical legal strategy, and not grounds for a finding of ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of trial counsel, Kenon must show that counsel’s performance was deficient and that this deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bruno v. State, 807 So.2d 55 (Fla.2001). Absent extraordinary circumstances, strategic or tactical decisions by trial counsel are not grounds for ineffective assistance of counsel claims. See Maharaj v. State, 778 So.2d 944 (Fla.2000); Occhicone v. State, 768 So.2d 1037 (Fla.2000); Haliburton v. Singletary, 691 So.2d 466 (Fla.1997); Rose v. State, 675 So.2d 567 (Fla.1996); Downs v. State, 453 So.2d 1102 (Fla.1984); Brookins v. State, 174 So.2d 578 (Fla. 3d DCA 1965). Where an uncalled witness could have been significantly impeached through contradictory evidence, a court will not label counsel ineffective for failing' to call that witness. See Jacobs v. State, 800 So.2d 322 (Fla. 3d DCA 2001); Cooley v. State, 642 So.2d 108 (Fla. 3d DCA 1994).

Courts have found “extraordinary circumstances” in very limited situations. For instance, courts have identified such circumstances where there is no “corroborating evidence of guilt,” Terrero v. State, 839 So.2d 873 (Fla. 3d DCA 2003); where the State’s case is weak or entirely circumstantial and the witness’ testimony would have cast doubt on the only evidence linking the defendant to the crime, Chester v. State, 782 So.2d 967 (Fla. 3d DCA 2001); Honors v. State, 752 So.2d 1234 (Fla. 2d DCA 2000); and, finally, where counsel commits a legal error during the trial which deprives the defendant of his only defense, Dames v. State, 807 So.2d 756 (Fla. 2d DCA 2002); Thomas v. State, 526 So.2d 183 (Fla. 3d DCA 1988), superseded by statute on other grounds, Thomas v. State, 584 So.2d 1022 (Fla. 1st DCA 1991).

In Dames, defense counsel advised the jury during opening statements that the defense’s theory of the case would be self-defense. See Dames, 807 So.2d at 757. The defense rested without putting on any witnesses or offering any evidence in support of this defense. See id. The trial court denied counsel’s request for a self-defense instruction and counsel failed to move to reopen the case to present evidence of self-defense. See id. The Second District held “[D]efense counsel, by his substandard performance, deprived defendant of his sole defense and the opportunity to corroborate the defense through his misplaced belief that he could convince the trial court to give the instruction, even though the defense had offered no evidence at trial on self-defense. See id. at 758 (quoting Cabrera v. State, 766 So.2d 1131, 1134 (Fla. 2d DCA 2000)). Hence, the prejudice in Dames, was not what counsel represented to the jury, but his legal error in failing to offer a predicate for a crucial jury instruction. See id.

In Chester, the court found ineffective assistance of trial counsel where counsel failed “to investigate, and to interview and call available witnesses in support of [defendant’s] entirely viable, and only defense to the robbery charge against him— that he was attempting to secure the return of a bicycle he reasonably thought had been taken from his sister.” 782 So.2d at 967. Chester grounds its holding on a case finding legal error for counsel’s failure to request an instruction on a “good faith” defense where the record supported the instruction, and a second case where a trial court failed to give an instruction, again, where the record supported the instruction. See id. (citing Thomas, 526 So.2d at 184, and Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981)). In Williams v. State, the Fifth District found ineffective assistance of trial counsel where counsel completely failed to conduct any pre-trial investigation despite an abundance of exculpatory evidence that should have been presented to the jury. 507 So.2d 1122, 1124-1125 (Fla. 5th DCA 1987).

Beyond the trial court’s finding of tactical legal strategy, Xenon cannot overcome the Strickland prejudice prong. See 466 U.S. at 694, 104 S.Ct. 2052. The evidence here was not tentative, weak, or circumstantial and counsel committed no legal error. Three eyewitnesses identified Xenon, at trial, as the driver of the suspect vehicle and the shooter. Unlike the cases where “extraordinary circumstances” were found, Xenon’s trial counsel did not couple his representation to the jury with some legal error in deciding not to call India Paul. Counsel testified that he made a tactical decision not to call Paul to preserve rebuttal closing argument based on “the strength of the State’s case and discussions with the defendant.” Finally, trial counsel did not fully abandon the identity defense. During closing arguments, counsel attacked the State’s witnesses identification based on inconsistencies in their testimony. We conclude counsel’s decision not to call Paul could not constitute a “clear, substantial deficiency [which] ... so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). See also Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

AFFIRMED.

WEBSTER and POLSTON, JJ„ concur.