text:
    Alan TAYLOR and Elizabethan Development, Inc., Appellants, v. Dick LEE, Appellee.
    No. 2D03-2018.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.

      Jean Marie Henne, Winter Haven, for Appellants.
    Roger L. Fishell, Sarasota, for Appellee.
   CANADY, Judge.

Alan Taylor appeals a final judgment for breach of contract in favor of Dick Lee on various grounds. One of the points raised by Taylor has merit. We reverse a portion of the final judgment relating to the award of certain damages because competent, substantial evidence does not support the amount of this award.

In 1997, Taylor contacted Lee in an effort to convince Lee to lease to the State of Florida, Department of Juvenile Justice, a portion of a commercial building Lee owned. The trial court found that Taylor and Lee entered into an oral contract that was not memorialized in writing. The terms of the contract were that Taylor would provide (1) architectural plans sufficiently certified for Lee to receive building permits from the City of Sarasota necessary to complete construction of the building in accordance with the specifications of the State of Florida, Department of Juvenile Justice, and (2) services that would assist Lee in receiving a long-term lease agreement with the State. Upon satisfactory completion of these two requirements, Lee would compensate Taylor for (1) his services in the amount of 5% of the monthly lease payments for a period of twelve months, and (2) the architectural drawings and fire marshal’s inspection in the amount of $4100. A set of drawings approved by the City of Sarasota and sufficient to acquire a building permit was a condition precedent to Lee incurring any obligations.

Although Taylor provided Lee with drawings, the City of Sarasota rejected the drawings as inadequate because they were not “stamped” by an architect. Because the drawings were rejected, Lee employed the services of an architect, who modified Taylor’s drawings to receive approval and a building permit from the City of Sarasota. Lee was charged $12,700 for the architect’s modifications to Taylor’s drawings as well as for additional architectural services. As a result of the need to modify Taylor’s drawings, Lee was delayed in obtaining the building permit, which caused him to be unable to complete the construction of the building in time to meet his obligations under the lease agreement with the State. Because he did not meet his obligations, Lee incurred $2600 in liquidated damages.

The trial court found that Taylor’s drawings were not sufficient under the terms of the oral contract and that Taylor therefore breached the oral contract. The trial court awarded Lee $12,700 for costs and expenses incurred in order to obtain drawings sufficient to receive a building permit from the City of Sarasota. The trial court also awarded Lee $2600 for the liquidated damages Lee incurred due to the delay in construction.

“ ‘[T]here must be some reasonable basis in the evidence to support the amount [of damages] awarded. Furthermore, it is incumbent upon the party seeking damages to present evidence to justify an award of damages in a definite amount.’ ” Camper Corral, Inc. v. Perantoni, 801 So.2d 990, 991 (Fla. 2d DCA 2001) (quoting Smith v. Austin Dev. Co., 538 So.2d 128,129 (Fla. 2d DCA 1989)).

Although Lee presented evidence that he paid the architect $12,700 for his services, the evidence indicates that the $12,700 paid for more than just the modifications to the drawings to obtain a building permit. The $12,700 architectural fee paid for the modified drawings, additional plans for re-roofing the building, and problems that arose after the building permit was issued. In fact, the architect testified that only $3000 of the $12,700 in costs and expenses could be attributed to the modified drawings. Because the oral contract between Taylor and Lee only provided that Taylor would supply Lee with plans sufficient to obtain a building permit, the architectural costs and expenses not relating to the modified plans cannot be assessed against Taylor. Accordingly, Lee’s award for damages relating to the drawings should have been limited to $3000.

We reverse only that portion of the final judgment awarding Lee the $12,700 item of damages and remand for the trial court to enter a judgment consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

FULMER and KELLY, JJ., concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. CONE & GRAHAM, INC., Appellee.
    No. 2D03-4347.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.

      Pamela S. Leslie, General Counsel and Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellant.
    Michael R. Carey of Carey, O’Malley, Whitaker, & Manson, P.A., Tampa, for Ap-pellee.
   SILBERMAN, Judge.

The Department of Transportation (the Department) appeals a nonfinal order denying its motion to dismiss for improper venue. We reverse and remand with directions that the trial court transfer venue to Pasco County.

Appellee Cone & Graham, Inc. (Cone), brought a four-count breach of contract action against the Department in Hillsbor-ough County. Cone asserted that venue was proper in Hillsborough County because the causes of action accrued there. Under the contract, Cone was to perform road construction and related work on the Suncoast Parkway (State Road 589) in Pasco County. In its complaint, Cone sought an equitable adjustment to the contract and an increase in the compensation due from the Department. Cone alleged that the adjustment and increase were required because the actual site conditions differed from what the parties had anticipated, resulting in Cone incurring additional costs and expenses. Section 4-3.4 of the contract’s standard specifications provides for an adjustment to the contract and states, in part:

Upon written notification, the Engineer will investigate the conditions, and if he determines that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding loss of anticipated profits, will be made and the contract modified in writing accordingly. The Engineer will notify the Contractor whether or not an adjustment of the contract is warranted.

In section 4-3.2.1 the standard specifications also provide for an adjustment if “alterations or changes in quantities significantly change the character of the work under the contract.”

The Department filed a motion to dismiss for improper venue and alleged that the action accrued in Pasco County, where the additional work was performed and the additional expenses were incurred. The Department argued that Cone could not look to the place of payment as the location where the cause of action accrued because the alleged breach was not a breach of a promise to pay a sum due under the contract. Cone responded that the Department failed to make payments due under the contract and that Hillsbor-ough County was the place where payments were to be made. The trial court denied the motion to dismiss, and the Department appealed the nonfinal order concerning venue pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

The parties agree that venue is proper where the cause of action accrued, pursuant to section 337.19(3), Florida Statutes (1997). The parties’ disagreement centers on whether the “place of payment” venue rule applies to the facts here. In Thomas v. David Kilcoyne Real Estate Group, Inc., 791 So.2d 550, 551-52 (Fla. 2d DCA 2001) (quoting Windsor v. Migliaccio, 399 So.2d 65, 66 (Fla. 5th DCA 1981) (citations omitted)), this court explained:

A cause of action for venue purposes accrues in the county where the contract is breached. If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed.

Payments due to Cone under the contract were to be made in Hillsborough County, but performance of the contract was to occur in Pasco County. Cone contends that sections 4-3.2.1 and 4-3.4 of the standard specifications in the contract provide for an adjustment to the contract for additional compensation; thus, it claims that the Department breached its contractual payment obligation and that venue is proper in Hillsborough County. The Department contends that the place of payment rule is inapplicable because Cone alleged that the Department breached the contract by failing to make an equitable adjustment to the contract and by failing to pay additional sums that are unliquidat-ed and subject to proof. The Department maintains that the claim for breach of the contract must be brought in Pasco County, the place of performance.

The Department relies upon State, Department of Transportation v. Anderson Columbia, Co., 656 So.2d 609 (Fla. 1st DCA 1995), to support its argument that the place of payment rule does not apply when the damages sought are unliquidated and subject to proof. In Anderson Columbia, a contractor sued the Department for an increase in the contract amount because the county commission had prohibited the contractor from using its anticipated haul route upon which the contractor had based its bid in part. The contractor also contended that the Department failed to issue a supplemental agreement to increase the contract amount. The First District held that the place of payment was not a proper venue for the action because the Department did not breach a specific contractual promise to pay. The court reasoned, “Although money damages may remedy the breach, it cannot be said that DOT breached a specific contractual promise to pay.” Id. at 610. The court distinguished M.A. Kite Co. v. A.C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961), which involved a subcontractor’s suit against the contractor to recover damages for extra work done under the contract. The Anderson Columbia court recognized that in M.A. Kite the subcontractor “claimed a breach of a promise to pay” and sought “to recover a stated sum of money.” 656 So.2d at 610.

Although Cone argues that, like the plaintiff in M.A Kite, it performed unforeseen extra work under the contract and sought additional compensation, Cone did not allege a sum certain in its complaint. Rather, it claimed that it was entitled to an equitable adjustment to the contract and additional compensation and damages.

The Department also relies on PDM Bridge Corp. v. JC Industrial Manufacturing, 851 So.2d 289 (Fla. 3d DCA 2003). There, the Third District explained that “the special venue rules pertaining to suits to enforce payments on debts do not apply in the absence of a debtor-creditor relationship flowing from an express contractual promise to pay a certain sum of. money owed.” Id. at 291. In that case, a letter of intent between the parties called for JC Industrial to begin ordering raw materials and preparing shop drawings for bridge operating machinery that PDM was to use in a project with prime contractor Ballast Needham. Negotiations between PDM and JC Industrial ultimately failed, and JC Industrial filed suit against PDM, “asserting breach of contract, promissory estoppel, unjust enrichment and quantum meruit” and alleging that PDM had “ ‘refused to pay’ for the shop drawings” and failed to reimburse it for a paymeni/per-formance bond. Id. at 291. JC Industrial specifically sought to recover $304,000 for the shop drawings and $38,249 for the bond. The Third District determined that “if there are monies owed for shop drawings or the bond premium, they are not specified in the letter of intent and are ‘unliquidated and subject to proof,’ thus rendering the debtor-creditor venue rule inapplicable.” Id. (quoting Magic Wok Int’l, Inc. v. Li, 706 So.2d 372, 374 (Fla. 5th DCA 1998)); cf. Thomas, 791 So.2d 550 (applying the place of payment venue rule because the seller sought to recover earnest money deposits of $78,400 that the purchaser had failed to make pursuant to the parties’ real estate contracts).

In Magic Wok, the court recognized that the exception to the place of payment rule occurs when “there is no liquidated debt involved in the contract action. Where this occurs, the court must look to the gravamen of the allegations in the complaint to determine where the cause of action accrued and proper venue lies.” 706 So.2d at 374. There, Li alleged a breach of contract based on fraudulent schemes and practices, which resulted in Li not receiving his payments under the contract. Id. at 373. The court determined that the claim was “clearly unliqui-dated and subject to proof’; thus, venue was proper where the alleged fraud occurred, Hillsborough County, not where payments were to be made, Orange County. Id. at 374.

Here, Cone sought various damages, including an equitable adjustment in an unspecified amount as additional compensation and for increased expenses. Significantly, the allegations of the complaint reflect that the damages were unliquidat-ed and subject to proof and equitable considerations. The contract between the parties contains a procedure for possible adjustments to the contract, including notice to the Department, investigation by the project engineer, and a determination by the project engineer of whether any adjustment is warranted. It is unclear whether the adjustment procedure was followed and whether any compensation is due to Cone as a result of the adjustment procedure. Because Cone’s claim is not based on a sum certain due under the contract and because Cone asserts a breach by the Department of the adjustment provision of the contract, the place of payment venue rule is inapplicable.

Accordingly, we reverse the trial court’s order denying the Department’s motion to dismiss for improper venue and remand with directions that the trial court transfer venue to Pasco County.

Reversed and remanded.

DAVIS and COVINGTON, JJ., concur.

      . The Department acknowledges that if venue is improper, transfer to Pasco County, rather than dismissal, would be the appropriate relief. See McClain v. Crawford, 815 So.2d 777 (Fla. 2d DCA 2002).


author: CASANUEVA, Judge.

text:
    James P. JOHNSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Crum Staffing, Inc., Appellees.
    No. 2D03-3621.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.
    Tommy Meyer of the Law Office of Tommy Meyer, Sarasota, for Appellant.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
    No appearance for Crum Staffing, Inc.
   CASANUEVA, Judge.

James P. Johnson appeals a determination that he was not entitled to unemployment compensation benefits. Although his employer was justified in discharging him based on his refusal to attend a meeting, Mr. Johnson’s behavior did not constitute “misconduct connected with his work” and was insufficient to support a denial of benefits. We thus reverse.

At the hearing before the appeals referee, Mr. Johnson, a manager of a Denny’s restaurant and employed by Crum Staffing, Inc., testified he left for vacation on June 20, 2002, and was scheduled to return to work on June 30. His supervisor testified that while Mr. Johnson was on vacation, the supervisor performed an audit of the restaurant’s employment and time records and found what he believed were discrepancies. The supervisor left a message on Mr. Johnson’s home answering machine requesting him to call the supervisor before reporting back to work on June 30. After hearing this message, Mr. Johnson telephoned his subordinates at the restaurant and was told not only that the locks and safe combinations had been changed but they also believed that he no longer worked at the restaurant. Mr. Johnson then telephoned his supervisor and agreed to meet with him on July 1. According to Mr. Johnson, his supervisor told him during that call not to report to work on June 30.

On June 30, the supervisor called Mr. Johnson to confirm the July 1 meeting. At this time Mr. Johnson informed the supervisor that he believed that the decision to terminate him had already been made and refused to attend the meeting the next day. The supervisor told Mr. Johnson that a termination decision had not yet been made. The supervisor’s subsequent effort to arrange another meeting was rejected by Mr. Johnson, resulting in his termination on July 3. The employer then made his discharge effective June 20, as that was the last day he had worked at the restaurant. Mr. Johnson had an otherwise unblemished record in his seven-year history with this employer.

Upon these facts, the appeals referee determined that Mr. Johnson had engaged in misconduct — insubordination—egregious enough to disqualify him from receiving unemployment compensation by refusing to attend a meeting with his supervisor regarding discrepancies in the store audit. We note that the record before the appeals referee contained no evidence regarding alleged discrepancies in the audit that would constitute falsification of records or similar wrongdoing.

Section 443.036(29), Florida Statutes (2001), defines the term “misconduct” for purposes of unemployment compensation. Misconduct can consist of “[c]onduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect” of the employee or, alternatively, “[cjarelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations” to the employer. However, misconduct under the statute “is not mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertence, good faith errors in judgment or discretion, or ordinary negligence in isolated instances.” Frazier v. Home Shopping Club LP, 784 So.2d 1190, 1191 (Fla. 2d DCA 2001) (citing Smith v. Krugman-Kadi, 547 So.2d 677, 679 (Fla. 1st DCA 1989)). And “misbehavior serious enough to warrant an employee’s dismissal is not necessarily serious enough to sustain a forfeiture of unemployment compensation benefits.” Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1238 (Fla. 2d DCA 2003).

Here, Mr. Johnson’s refusal to attend a meeting after being requested to do so did not rise to the level of misconduct required by the statute to deny him benefits, especially as this was the only instance of misbehavior in Mr. Johnson’s seven-year history with the employer. He merely demonstrated poor judgment by relying on his subordinates’ assessment of the sitúation instead of hearing what his supervisor had to say.

Accordingly, we reverse and remand with instructions to award Mr. Johnson any unemployment compensation benefits to which he is entitled.

WHATLEY and SALCINES, JJ., concur.

      . § 443.101(l)(a), Fla. Stat. (2001).

      . Mr. Johnson also contends that there was error in the manner in which the appeals referee conducted the telephonic hearing, but we find no basis for reversal on this ground.


text:
    Martin DONES, M.D. and Morton Plant/Mease Primary Care, Inc., Appellants, v. Roberta MOSS, Personal Representative of the Estate of Steven Michael Moss, Deceased; and Luis Logrono, M.D., Appellees.
    No. 2D03-3118.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.
    Rehearing Denied Oct. 14, 2004.
    Richard B. Mangan, Jr. and R. Clifton Acord, II, of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellants.

      J. Emory Wood of Wood & Associates, P.A., St. Petersburg, for Appellee Roberta Moss, Personal Representative of the Estate of Steven Michael Moss, Deceased.
    No appearance for Appellee Luis Logro-ño, M.D.
   SILBERMAN, Judge.

Martin Dones, M.D., and Morton Plant/ Mease Primary Care, Inc., challenge the trial court’s order granting a new trial to Roberta Moss, personal representative of the estate of Steven Michael Moss. The trial court granted a new trial based on two evidentiary rulings that it had made during trial. Because the record does not demonstrate that the rulings substantially prejudiced Ms. Moss, resulting in a miscarriage of justice, we reverse and remand for reinstatement of the jury’s verdict of no liability.

Steven Moss had. a family history of coronary artery disease and a personal history of high cholesterol. He had last seen his internist, Dr. Dones, on October 14, 1999, after having chest discomfort and numbness in his left arm during the preceding weekend. Dr. Dones referred Mr. Moss to Dr. Bayron, a cardiologist, and ordered a thallium' stress test. Dr. Dones later changed the test to a regular stress test. Although Dr. Bayron reported to Dr. Dones that the stress test was negative, testimony at trial indicated that the test was not negative and that, in fact, the test had been stopped because Mr. Moss complained of chest pain during the test.

After receiving Dr. Bayron’s report, Dr. Dones scheduled Mr. Moss for a three month follow-up appointment, but Mr. Moss did not appear for the appointment. On February 28, 2000, Mr. Moss, age forty-two, collapsed and died while playing golf. The cause of death was congenital heart disease.

Ms. Moss filed a medical malpractice lawsuit against Dr. Dones and his practice, Dr. Bayron and his practice, and Dr. Lo-groño, who was employed by Dr. Bayron. Prior to trial, Ms. Moss settled with Dr. Bayron and his practice, but Dr. Bayron was named as a Fabre defendant on the verdict form. At trial, the court entered a directed verdict in favor of Dr. Logroño, and the jury found in favor of Dr. Dones.

Ms. Moss then filed a motion for new trial. Among other things, she claimed that she had been unfairly prejudiced because prior to trial the trial court had not placed any limitation on the number of expert witnesses that she could call, but at trial the court limited her to two standard of care experts in internal or family practice medicine. The defense contended that the trial court properly limited the number of experts under Elder v. Farulla, 768 So.2d 1152 (Fla. 2d DCA 2000), because certain experts would have presented redundant testimony. Ms. Moss also argued that at trial she wanted to read to the jury the deposition testimony of Dr. Parillo and to inform the jury that originally Dr. Dones had retained Dr. Parillo as an expert. Ms. Moss asserted that the trial court erred by not allowing her to so inform the jury. Dr. Dones responded that the trial court ruled correctly based on Milburn v. State, 742 So.2d 362 (Fla. 2d DCA 1999).

After a hearing, the trial court granted Ms. Moss’s motion for new trial. The court ruled that it had erred in limiting Ms. Moss to two standard of care experts in internal or family practice medicine and in prohibiting Ms. Moss from eliciting testimony via the deposition of Dr. Parillo that Dr. Dones had originally retained Dr. Parillo. In this appeal, Dr. Dones and Morton Plant argue that the trial court abused its discretion in granting a new trial. We agree.

When a party seeks a new trial based on the “improper admission or rejection of evidence,” the trial court should grant a new trial only when it “concludes that the error complained of has resulted in a miscarriage of justice.” City of Hollywood v. Jarkesy, 343 So.2d 886, 888 (Fla. 4th DCA 1977); see § 59.041, Fla. Stat. (2002). In Midtown Enterprises, Inc. v. Local Contractors, Inc., 785 So.2d 578, 580 (Fla. 3d DCA 2001) (quoting § 90.104(1), Fla. Stat. (1999)), the court stated, “A trial court’s error in the acceptance or rejection of evidence does not necessarily constitute harmful error. Only ‘when a substantial right of the party is adversely affected’ may a court grant a new trial.”

This court cited Jarkesy in National Healthcorp Ltd. Partnership v. Close, 787 So.2d 22, 26 (Fla. 2d DCA 2001). In National Healthcorp the trial court granted a new trial after concluding that the plaintiff had been substantially prejudiced by pretrial discovery orders. In reversing, we reiterated that the party seeking a new trial must show that it was prejudiced by the complained of orders. The orders “must have substantially prejudiced the movant and the error complained of must have resulted in a miscarriage of justice.” Id. We held that the trial court abused its discretion by granting a new trial because the plaintiff had not shown prejudice and entry of the orders was harmless. Id.

Here, Ms. Moss has not shown that the two evidentiary rulings, even if erroneous, caused substantial prejudice and resulted in a miscarriage of justice. Concerning the limitation on standard of care expert witnesses under Elder, the trial court allowed Ms. Moss two standard of care experts in internal or family practice medicine and allowed Dr. Logroño and Dr. Dones one expert each. In addition, Ms. Moss and Dr. Dones each presented one standard of care expert in cardiology. Although Ms. Moss asserted a general claim of prejudice, she did not establish, the trial court did not find, and our record does not reflect that she suffered substantial prejudice as a result of the ruling.

Ms. Moss also has not demonstrated substantial prejudice relating to Dr. Parillo. In its order granting a new trial the court stated that while it had agreed that Ms. Moss could use Dr. Parillo’s deposition at trial, it had improperly prohibited her “from eliciting testimony via the deposition” that Dr. Dones had originally retained Dr. Parillo. Again, the trial court made no finding and the record does not reflect that Ms. Moss suffered substantial prejudice as a result of the ruling. Moreover, as Dr. Dones correctly points out in his appellate brief, Dr. Parillo’s deposition testimony does not indicate that he had originally been retained by Dr. Dones as an expert in this case.

Accordingly, we reverse the trial court’s order granting a new trial and remand for reinstatement of the jury’s verdict of no liability.

Reversed and remanded.

SALCINES and STRINGER, JJ., Concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).


author: FULMER, Judge.

text:
    EAST-EUROPEAN INSURANCE COMPANY and Alfa Insurance PLC, Appellants, v. Victor K. BORDEN, Barnhardt Marine Insurance, Inc. and Ocean Insurance Management, Inc., Appellees.
    No. 2D03-5145.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.
    Rehearing Denied Sept. 21, 2004.
    Steven L. Brannock, Paul Parrish, and Maegen E. Peek of Holland & Knight LLP, Tampa, for Appellants.
    Nathaniel G.W. Pieper of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellee, Victor K. Borden.
    David W. Henry and Barbara Rudolph Smith of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, for Appellee, Barnhardt Marine Insurance, Inc.

      John Bond Atkinson and Rebecca A. Brownell of Rumberger, Kirk & Caldwell, P.A., Miami, for Appellee, Ocean Insurance Management, Inc.
   FULMER, Judge.

East-Europeari Insurancé Company, now known as Alfa Insurance PLC, (collectively referred to herein as Alfa) appeals an order denying its motion to quash service of process in which Alfa asserted that the Florida court did not have personal jurisdiction over Alfa, a Russian corporation. We agree with this assertion and reverse.

The underlying litigation from which this appeal arises began when Victor Bon-den, a resident of Honduras, made an insurance claim against Alfa for the loss of one of his fishing vessels that sank in international waters. Alfa became the insurer for the vessel after being contacted by 2K Shipping and Trading Limited <2K), an insurance brokerage firm located in Turkey. As it turned out, 2K was the fifth link in a chain of brokers seeking coverage for Borden’s vessels. The originating broker, Ocean Insurance Management, Inc. (Ocean), a Florida corporation, was contacted by Borden’s daughter who was seeking to obtain marine insurance for three fishing vessels on behalf of her father. Ocean contacted Barnhardt Marine Insurance, Inc. (Barnhardt), also a Florida corporation, which in turn contacted Marine Insurance Consultants International (MICI), a brokerage firm located in Britain, which in turn contacted Southern Seas (UK) Ltd. (Southern Seas), also a brokerage firm located in Britain, which in turn contacted 2K in Turkey, which in turn contacted Alfa, a Russian corporation located in Moscow. Eventually, a policy was issued by Alfa in Russia and sent to 2K in Turkey to be sent down the line to the insured, Borden.

On or about December 17, 2001, one of Borden’s vessels sank. Borden filed a claim, but Alfa denied coverage because the vessel sank in international waters outside of the coverage area. Borden filed suit against Alfa and also against Ocean, Barnhardt, and Southern Seas. Southern Seas was dropped as a defendant in the amended complaint. In response to Borden’s initial claim, Alfa filed a motion to quash service of process and a renewed motion to quash in response to the amended complaint. In its motion, Alfa asserted by affidavit that it does no business in the state of Florida and has no contacts with the state. No office, no employees, no mailing address, no telephone listing, no real or personal property (owned or leased), no agent for service of process, no advertising or marketing, no bank account, and no business records are located in Florida. Alfa does not now insure, nor has it ever insured, any Florida resident or property. And, Alfa has no salesmen, representatives, dealers, franchises, jobbers, wholesalers, distributors, brokers, or agents of any nature in the state of Florida.

In their written responses to Alfa’s motion to quash, Borden and Ocean argued that service of process was appropriate under Florida’s Unauthorized Insurer’s Process Law (UIPL), section 626.906, Florida Statutes (2000), citing Winterthur International Ltd. v. Palacios, 559 So.2d 1214 (Fla. 3d DCA 1990). Alfa argued that the UIPL may only be invoked by Florida residents and Borden is not a Florida resident. Further, Alfa argued that Winterthur is inconsistent with other UIPL jurisprudence and is also distinguishable on its facts. The trial court held a hearing on the motion to quash and subsequéntly issued an order in which it concluded that Borden “has satisfied the requirements for in personam jurisdiction” and denied Alfa’s motion without specifying the basis upon which it rested its ruling.

We review issues of personal jurisdiction over foreign corporations de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla.2000); Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80 (Fla. 2d DCA 2003). The determination of whether the trial court has personal jurisdiction over Alfa turns on whether there are sufficient jurisdictional facts to show the applicability of a Florida long-arm statute and, if so, whether Alfa has sufficient minimum contacts with Florida to satisfy constitutional due process requirements. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

On appeal, Borden and Ocean continue to argue that service of process is appropriate under the UIPL. Barnhardt presents the same argument. Alfa likewise maintains its position that the UIPL is available only to Florida residents and that the exercise of jurisdiction over Alfa pursuant to the UIPL. would violate the Due Process Clause of the U.S. Constitution.

The UIPL allows for service of process on an unauthorized foreign insurance company if the insurer engages in any of the following acts:

(1) The issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein;
(2) The solicitation of applications for such contracts;
(3) The collection of premiums, membership fees, assessments, or other considerations for such contracts; or
(4)Any other transaction of insurance.

§ 626.906.

Borden cannot establish long-arm jurisdiction under subsections 626.906(1), (2), or (3) because, on their face, these sections are available only to Florida residents. See Drake v. Scharlau, 353 So.2d 961, 966 (Fla. 2d DCA 1978) (concluding that the fact that the insured was a resident of Florida, standing alone, was not sufficient to bring the foreign insurer within the purview of section 626.906 because insured was also required to show that the policy was issued and delivered in Florida); Am. Fire & Marine Ins. Co., Ltd. v. Eising, 673 So.2d 493, 494 (Fla. 4th DCA 1996) (“Substitute service on Florida’s Insurance Commissioner is permitted under [the UIPL] where a foreign insurer has ‘by mail or otherwise’ issued and delivered a contract of insurance to a resident of Florida.”); Bookman v. KAH Incorporated, Inc., 614 So.2d 1180, 1182 (Fla. 1st DCA 1993) (stating that section 626.906 “only applies to policies held by Florida residents which are issued and delivered to them in Florida”); Hassneh Ins. Co. of Israel, Ltd. v. Plastigone Techs., Inc., 623 So.2d 1223, 1225 (Fla. 3d DCA 1993) (stating that section 626.906 applies only to insurers that issue policies “held by Florida residents which are issued and delivered to them in Florida”); Winterthur Int’l Ltd. v. Palacios, 559 So.2d 1214, 1215 (Fla. 3d DCA 1990) (stating that “subsections 626.906(1)-(3) apply only to residents of Florida”); Parliament Life Ins. Co. v. Eglin Nat’l Bank, 333 So.2d 517, 518 (Fla. 1st DCA 1976) (stating that section 626.906 requires “issuance or delivery of contracts of insurance to residents of this State”).

However, Borden, Ocean, and Barnhardt contend that Alfa engaged in activities that constitute a “transaction of insurance” under subsection (4) of the UIPL, and that subsection (4) provides a basis for long-arm jurisdiction because it is not limited by a residency requirement. In support of their argument, they rely on Wintert-hur, 559 So.2d 1214.

In Winterthur, the insured, Augusto Du-rand Palacios, was a resident of Peru who purchased a medical insurance policy from a Bermudan insurance company. While visiting Miami, Florida, Palacios purchased the policy from a Winterthur authorized broker who was located in and doing business for Winterthur in Miami. The policy was later delivered to Palacios in Peru. When Palacios sued Winterthur for coverage, Winterthur alleged that because Pa-lacios was not a resident of Florida, he could not avail himself of section 626.906, Florida Statutes (1987).

The Third District rejected that argument. While the court readily agreed that subsections (1) through (8) of the UIPL applied to Florida residents only, the court concluded that subsection (4) did not contain such a limitation. 559 So.2d at 1215. The court based its decision on the fact that subsection (4) uses the language “transaction of insurance,” which the court, citing to section 624.10, Florida Statutes (1987), stated is a defined term in the Florida Insurance Code. Id. at 1215. Section 624.10, provides:

“Transact” with respect to insurance includes any of the following, in addition to other applicable provisions of this code:
(1) Solicitation or inducement.
(2) Preliminary negotiations.
(3) Effectuation of a contract of insurance.
(4) Transaction of matters subsequent to effectuation of a contract of insurance and arising out of it.

The court noted that “[sjection 624.10 is not limited, expressly or by implication, to transactions involving Florida residents” and concluded that subsection (4) of section 626.906 is therefore available to a nonresident insured. 559 So.2d at 1215. In response to the cases cited by Wintert-hur which contain language suggesting that section 626.906 applies only to Florida residents, the Third District observed that those decisions did not construe subsection 626.906(4) and concluded that, “as applied to subsection 626.906(4), those statements are dictum.” Id. at 1216.

On its facts, we agree with the result in Winterthur because Winterthur, the insurer, had an authorized agent in Miami who solicited Florida insurance business. Thus, the court could have found jurisdiction under section 48.193, the general long-arm statute, without reaching the issue of whether section 626.906(4) applied to nonresidents. However, we disagree with the Winterthur analysis of section 626.906.

Our disagreement with the Third District’s analysis of the statute rests in part on the same legislative intent that the Third District considered in denying Win-terthur’s motion for rehearing. See 559 So.2d at 1216-17. Based on our reading of the statute and the statement of legislative purpose, we conclude that the Florida legislature has expressly stated that section 626.906 (as a whole) was meant to protect Florida residents. See Reynolds v. State, 842 So.2d 46, 49 (Fla.2002) (“[I]t is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis.”).

The purpose statement codified by the legislature at section 626.905 states:

The purpose of the [UIPL] is to subject certain insurers and persons representing or aiding such insurers to the jurisdiction of courts of this state in suits by or on behalf of insureds or beneficiaries under insurance contracts. The Legislature declares that it is a subject of concern that many residents of this state hold policies of insurance issued or delivered in the state by insurers while not authorized to do business in this state, thus presenting to such residents the often insuperable obstacle of resorting to distant forums for the purpose of asserting legal rights under such policies. In furtherance of such state interest, the Legislature herein provides a method of substituted service of process upon unauthorized insurers and persons representing or aiding such insurers, and declares that in so doing it exercises its power to protect its residents and to define, for the purpose of this chapter, what constitutes doing business in this state, and also exercises powers and privileges available to the state by virtue of Pub.L. No. 15, 79th Congress of the United States, chapter 20, 1st session, s. 340, as amended, which declares that the business of insurance and every person engaged therein shall be subject to the laws of the several states.

The former Fifth Circuit cited to this same purpose statement when it construed the entire UIPL as applying “only to policies of insurance delivered in Florida to Florida residents,” finding that the statute’s provisions are “restricted to suits ‘arising out of any such contract of insurance.’ ” Parmalee v. Iowa State Traveling Men’s Ass’n, 206 F.2d 518, 522 (5th Cir. 1953). The court concluded that “[w]hile the statute refers to ‘any of the following aets[,’] we understand it to mean rather the doing of any of the prescribed acts from which results the issuance or delivery of a contract of insurance in the state.” Id. at 522. The court recognized that “Florida has the power, within constitutional bounds, to prescribe the terms upon which insurance may be placed and kept in force upon its residents.” Id. Thus, by applying the entire statute only to Florida residents, the statute “protects those for whom government has a legitimate concern.” Id.

In Walter v. Blue Cross & Blue Shield United of Wisconsin, 181 F.3d 1198 (11th Cir.1999), the Eleventh Circuit called into question the soundness of Winterthur. In a footnote, the court cited to Winterthur noting that while the Winterthur court allowed section 626.906(4) to be used by a nonresident, the Winterthur court failed to “question the requirement that the policy be issued and delivered in Florida [to a Florida resident].” Walter, 181 F.3d at 1205 n. 5. In the text surrounding the footnote, the Walter court cites to Florida cases for the notion that to avail himself of section 626.906, the plaintiff must be a Florida resident who was issued and delivered an insurance policy in Florida. Id. at 1204-05.

Not only do we disagree with the Win-terthur analysis of the UIPL’s statement of the legislative purpose, we also question the court’s reliance on section 624.10 of the Insurance Code. The Winterthur court used section 624.10 to separate subsection (4) of section 626.906 from the “contracts” issued and delivered in Florida to a Florida resident to which subsections (l)-(3) are clearly aimed. Such separation, the court believed, served to effectuate some other objective of the statute apart from the protection of Florida residents. Winterthur, 559 So.2d at 1215. While the court purported to read various parts of the Insurance Code in pari materia, it is a well-settled principle of statutory construction that “all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). Further, a “ ‘statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996)). Subsections (1)-(3) place a residency limitation on the very activities that are encompassed within section 624.10’s definition of “transact.” To construe subsection (4) to include, without limitation, the same activities subject to the residency limitation of subsections (1)-(3) is to render subsections (l)-(3) meaningless.

Moreover, courts have a duty to “interpret a legislative Act so as to effect a constitutional result if it is possible to do so.” Cassady v. Consol. Naval Stores Co., 119 So.2d 35, 37 (Fla.1960). Although our decision does not require us to address the constitutional issue, we believe that to construe section 626.906(4) as being available to nonresidents would broaden the statute’s jurisdictional reach such that it would violate constitutional due process requirements, given the paucity of Alfa’s contacts with Florida.

Subsequent to Winterthur, the Third District once again addressed the provisions of section 626.906 in Hassneh Insurance Co. of Israel, Ltd. v. Plastigone Technologies, Inc., 623 So.2d 1223 (Fla. 3d DCA 1993), and without acknowledging Winterthur, stated that section 626.906 applies only to insurers that issue policies “ ‘held by Florida residents which are issued and delivered to them in Florida.’ ” 623 So.2d at 1225 (quoting Bookman, 614 So.2d at 1182, citing Parliament, 333 So.2d at 518). The court did not specify that only subsections (1) through (3) apply to Florida residents. Nor did the court draw distinctions between subsections. Instead, it made a blanket statement that the statute is available only to Florida residents whose insurance policies were issued and delivered in Florida. Hassneh, 623 So.2d at 1225. With this opinion, we agree.

For the reasons we have expressed, we hold that subsection (4) of section 626.906 is available only to Florida residents in the same manner as subsections (1), (2), and (3), and to the extent that this holding is in conflict with Winterthur, we certify conflict. Because Borden is not a Florida resident, we conclude that the Florida court did not have personal jurisdiction over Alfa and reverse the trial court’s order denying Alfa’s motion to quash service of process. Our determination that Borden did not establish jurisdiction under section 626.906(4) renders moot the remaining issues raised in this appeal.

We reverse and remand with directions to the trial court to grant Alfa’s motion to quash and for further proceedings in accordance with this opinion. And, we certify conflict with Winterthur International Ltd. v. Palacios, 559 So.2d 1214 (Fla. 3d DCA 1990).

Reversed and remanded with directions. Conflict certified.

COVINGTON and WALLACE, JJ., concur.

      . Barnhardt also argues on appeal that jurisdiction is available under section 48.193, Florida Statutes (2000), Florida's general long-arm statute. This argument not only has no merit but also was not raised below and, therefore, is waived.

      . Alfa argues that Borden's amended complaint fails to plead facts sufficient to create jurisdiction under subsection (4). We need not decide this issue because even if the allegations are sufficient, we conclude that section 626.906(4) applies only to Florida residents.


author: CANADY, Judge.

text:
    Richard A. HARRISON, Appellant, v. Shawn FRANCISCO, mother and next friend of Katherine Harrison and Lauren Harrison, Appellee.
    No. 2D03-3836.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.
    Richard A. Harrison, pro se, and David T. Weisbrod, Tampa, for Appellant.
    No appearance for Appellee.
   CANADY, Judge.

Richard Harrison appeals an order denying his motion for taxation of costs following his former wife’s voluntary dismissal of a petition for an injunction for protection against domestic violence. Because we conclude the trial court erred in summarily denying the motion for taxation of costs, we reverse.

Shawn Francisco, Harrison’s former wife, filed a petition for an injunction against domestic violence pursuant to section 741.30, Florida Statutes (2003). In this petition, Francisco sought an order preventing Harrison from having any contact with her or with the parties’ minor children. An initial ex parte temporary injunction was entered against Harrison, and a full hearing was scheduled. At the hearing, the former wife was apparently unable to present evidence to support the allegations in her petition. Consequently, she voluntarily dismissed her petition and the hearing was concluded.

Harrison filed a motion for taxation of costs within thirty days of the voluntary dismissal. The trial court entered an order denying this motion. There is no evidence in the record that any hearing was held on the motion for costs, and Harrison asserts in his brief that no hearing or other opportunity to be heard was presented before his motion for costs was denied. On appeal, Harrison contends that the trial court should have held a hearing to determine whether to allow or disallow each claimed taxable cost.

A petition for an injunction against domestic violence is governed by the Florida Family Law Rules of Procedure. Fla. Fam. L.R.P. 12.010(l)(a). Florida Family Law Rule of Procedure 12.420 provides that “[djismissal of actions shall be governed by Florida Rule of Civil Procedure 1.420” and that “[cjosts shall be assessed as provided in rule 1.420(d),” subject to an exception not pertinent here. Rule 1.420(d) provides that “[c]osts in any action dismissed under [rule 1.420] shall be assessed and judgment for costs entered in that action.” Voluntary dismissals are included within the scope of the dismissals covered by rule 1.420. See Fla. R. Civ. P. 1.420(a).

“When a voluntary dismissal occurs after an opposing party has incurred legitimate trial-preparation expenses, the trial court properly may entertain a motion to award costs against the dismissing party.” Coastal Petroleum Co. v. Mobil Oil Corp., 583 So.2d 1022, 1025 (Fla.1991); see also Carson v. Quaile, 616 So.2d 462 (Fla. 4th DCA 1993) (holding that it was not error for the trial court to award costs following a voluntary dismissal for taxable expenditures that would have served a useful purpose had the matter proceeded to trial). Although an award of costs “is a matter largely left to the discretion of the trial court,” the holding in Coastal Petroleum requires “the trial court, in an appropriate hearing, after argument and presentation of appropriate evidence by both sides, to determine exactly which expenses would have been reasonably necessary for an actual trial.” Coastal Petroleum, 583 So.2d at 1025. In the instant case, no such hearing was held by the trial court. Instead, the trial court summarily denied Harrison’s motion for costs. The trial court erred in failing to hold such a hearing.

We therefore reverse the order denying costs and remand this case with instructions that the trial court hold an evidentia-ry hearing on Harrison’s motion for costs.

Reversed and remanded.

COVINGTON and KELLY, JJ„ concur.


author: PER CURIAM.

text:
    George MAY, Appellant, v. Colleen and Daniel PATRISSY, Joan Zerhusen, and Arthur Schill, Appellees.
    No. 2D04-249.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.
    Rehearing Denied Sept. 9, 2004.
    George May, pro se.
    Diane McGill, Bartow, for Appellees.
   PER CURIAM.

We have reviewed the briefs and record in this case and determined that no basis for reversal has been shown. We affirm. The oral argument in this case scheduled for August 11, 2004, is cancelled.

NORTHCUTT, STRINGER and SILBERMAN, JJ., Concur.


text:
    George STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1966.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.
   PER CURIAM.

Affirmed. See Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003); McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003); O’Neal v. State, 862 So.2d 91 (Fla. 2d DCA 2003); Wright v. State, 834 So.2d 879 (Fla. 3d DCA 2002); Dixon v. State, 812 So.2d 471 (Fla. 4th DCA), review denied, 831 So.2d 671 (Fla.2002). As this court did in both Teal and McCall, we certify direct conflict with Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

STRINGER, VILLANTI, and WALLACE, JJ., Concur.


author: PER CURIAM. WOLF, C.J.,

text:
    Anthony E. GRIFFIS and Cynthia Steedley Griffis, Appellants, v. LEISURE TYME RV, INC., a corporation; Ron Diemer; Liberty Mutual Insurance Company, a corporation; Commonwealth Bank, a corporation; Newmar Corporation, a corporation; Hartford Accident and Indemnity Company, a corporation, Appellees.
    No. 1D02-4387.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Rehearing Denied Oct. 18, 2004.
    Anthony E. Griffis, Ridgeland, SC, for Appellants.
    Fred Tromberg, James A. Kowalski, Jr., and Adam J. Kohl of the Law Offices of Tromberg & Kowalski, Jacksonville, for Appellee Commonwealth Bank. Kimberly A. Ashby of Akerman Senterfitt, Orlando, and W. Scott Powell of Roth, Powell & Pearson, P.A., Winter Park, for Appellees Newmar Corporation and Hartford Accident and Indemnity Company.
    Harry E. Barr and Leslie D. Sheekley of Chesser & Barr, P.A., Shalimar, for Appel-lees Leisure Tyme, Ron Diemer, and Liberty Mutual Insurance Company.
   PER CURIAM.

This is an appeal from a final judgment for the defendants in a civil action arising from the purchase of a recreational vehicle that was alleged to be defective. The trial court dismissed some of the plaintiffs’ claims with prejudice and granted summary judgment for the defendants on others. For the reasons that follow, we reverse in part and affirm in part.

The plaintiffs, Anthony and Cynthia Griffis, bought a motor home on June 24, 1999, from Leisure Tyme RV, Inc., a dealer in Pensacola. The purchase agreement provided that the dealer “makes no warranties whatsoever” and “expressly disclaims any implied warranties, including the implied warranties of merchantability or fitness for use.” A few hours after the parties had completed paperwork for the sale, Leisure Tyme presented Mr. Griffis with a “pre-delivery inspection” form (PDI), for which Mr. Griffis paid Leisure Tyme $295.00. Both parties signed the form, which broadly states, “The selling dealer will inspect, correct and adjust as necessary, the following items with the new owner immediately prior to delivery.” (emphasis added). All of the specified items included within the product conveyed were checked on the form, including the electrical, water, plumbing, exterior, and running gear.

Following a series of problems with the motor home, the plaintiffs filed a civil complaint against the dealer, Leisure Tyme, its salesman, Ron Diemer, and its bonding company, Liberty Mutual Insurance Company (collectively “Leisure Tyme”); the manufacturer, Newmar Corporation, and its bonding company, Hartford Accident & Indemnity Company (collectively “New-mar”); and Commonwealth Bank,- the financier. The plaintiffs also sued the manufacturers of various parts and equipment. Those claims were settled and dismissed and are not part of the present appeal.

The complaint alleged breach of express warranty against Leisure Tyme and Commonwealth Bank (count I); violations of the Magnuson-Moss Warranty Act against Leisure Tyme, Newmar and Commonwealth Bank (count II); violation of statutory warranty under section 320.835, Florida Statutes (1997) against Leisure Tyme, Newmar and Commonwealth Bank (count III); violations of section 501.204, Florida Statutes (1997), the Florida Deceptive and Unfair Trade Practices Act, against Leisure Tyme and Commonwealth Bank (count IV); fraud and concealment against Leisure Tyme, Newmar and Commonwealth Bank (count V); and revocation of acceptance against Leisure Tyme, New-mar and Commonwealth Bank (count VI).

Newmar moved to dismiss the express warranty and revocation of acceptance claims, and the trial court granted the motion with prejudice. By a separate order the trial court granted a motion to strike the plaintiffs’ motion to compel arbitration of the lemon law claims. The complaint was later amended to add a lemon law claim against Newmar. Subsequently, the trial court granted a summary judgment for the defendants on all of the pending claims.

We conclude that the trial court erred in granting summary judgment for Leisure Tyme on the express warranty and revocation of acceptance claims. The language of the PDI, together with Leisure Tyme’s subsequent efforts to make corrections or repairs to the motor home consistent with the PDI in the months following the sale, creates a genuine issue of material fact as to whether the dealer’s representations on the PDI to make corrections were part of the basis of the parties’ bargain, notwithstanding the disclaimers that were made at or about the same time by the dealer. See §§ 672.313, 672.316(1), Fla. Stat. (1997). Leisure Tyme’s subsequent attempt to repair the vehicle pursuant to the terms of the PDI raises an issue of fact whether the dealer intended to modify the general disclaimers it also made to the plaintiffs at the time of the sale.

If the evidence supports a finding that the PDI constituted an express warranty, the trial court would also need to determine whether the warranty failed of its essential purpose, so that the buyers would be entitled to invoke all other remedies available under the Uniform Commercial Code, including the remedy of revocation of acceptance as to Leisure Tyme.

Additionally, because there is a factual issue as to whether the PDI was part of the basis of the parties’ bargain, there is an issue of whether it constituted a written warranty under the Magnuson-Moss Warranty Act. See 15 U.S.C. § 2301(6)(B). Accordingly, the order entering final summary judgment in favor of Leisure Tyme on this claim and the related implied warranty and Florida Deceptive Trade Practices Act claims is reversed.

We affirm the entry of summary judgment in favor of Newmar on the breach of express warranty and lemon law claims, and the order striking the plaintiffs’ second request for arbitration under that program. We also affirm the dismissal with prejudice of the claims against manufacturer Newmar for breach of implied warranty under the Magnuson-Moss Warranty Act and for revocation of acceptance.

However, we reverse the dismissal of the breach of statutory warranty claim under section 320.835, Florida Statutes (1997), as to Newmar and the order granting summary judgment for Leisure Tyme on the statutory warranty claim. On this issue, the trial court erroneously found that section 320.835 was inapplicable. The language of section 320.835 is clear and applies to recreational vehicles. The order awarding attorney’s fees and costs to New-mar based on the section 320.835 claim is also reversed.

In summary, we affirm all rulings as to Newmar except for the statutory warranty claim. As to Leisure Tyme, we reverse all orders entered in its favor, including attorney’s fees and costs, except for the ruling on the fraud and concealment claim, which is affirmed. Because we reverse on these claims with respect to Leisure Tyme, we reverse the final summary judgment and award of attorney’s fees and costs in favor of Commonwealth Bank, as its sole liability is derivative of and dependent upon a finding of liability as to Leisure Tyme. The order denying the plaintiffs’ motion for further inspection and all other orders are affirmed.

Affirmed in part; reversed in part; remanded.

ERVIN and PADOVANO, JJ., concur.

WOLF, C.J., concurs with opinion.

WOLF, C.J.,

Concurring with opinion.

I write to note that this case may be distinguished from Claude Nolan Cadillac, Inc. v. Griffin, 610 So.2d 725 (Fla.App. 1st DCA 1993), and Frank Griffin Volkswagen, Inc. v. Smith, 610 So.2d 597 (Fla. 1st DCA 1992), based on the existence of the “pre-delivery inspection form” in this case. I would also note that in both Claude Nolan and Frank Griffin there were expressed warranties of the manufacturer which do not exist in this case. Thus, those cases are not dispositive as to the claims in the instant case against the manufacturer or the dealer.


author: DAVIS, Judge.

text:
    Stephen M. ZWEIBACH, M.D., Appellant, v. Richard GORDIMER, C.P.A., & Rivero Gordimer & CO., P.A., Appellees.
    No. 2D02-4198.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2004.

      N. Burton Williams, Tampa, for Appellant.
    Stanford R. Solomon and Laura H. Howard of The Solomon Tropp Law Group, P.A., Tampa, for Appellees.
   DAVIS, Judge.

Stephen M. Zweibach, M.D., challenges the trial court’s amended final judgment awarding attorney’s fees against him personally in favor of Richard Gordimer, C.P.A., individually, and the firm of Rivero Gordimer & Co., P.A.. Zweibach argues that since he was not a party to the underlying cause of action, it was improper for the trial court to award fees against him individually. We disagree and affirm the trial court’s determination that Zweibach is individually liable for fees and costs; however, we reverse and remand for a redetermination of the amount that should be awarded.

Paul R. Levine, M.D., Stephen M. Zwei-bach, M.D., and Mark R. Davis, M.D., P.A. (“LZD”) was a professional association incorporated under the laws of Florida. Each of the three named doctors owned one hundred shares of the outstanding common voting stock in LZD. Levine and Zweibach constituted the board of directors, and Levine served as president of the corporation. Levine’s wife held the position of executive director of the corporation and maintained the corporate books.

In December 1990, LZD ceased soliciting new patients and began winding up its business affairs. The corporation was administratively dissolved August 25, 1995. Thereafter, litigation arose in which LZD was named a defendant. At issue in that suit was the title to the furniture, fixtures, office equipment, medical equipment, and loans receivable that had been the property of LZD. Levine and his wife testified at trial that title to the LZD property had ■been transferred to Tampa Bay Obstetrics, another health care provider in which Levine was a principal, in December 1990 by a bill of sale executed by Levine as president of LZD. However, the trial court determined in that case that the transfer was ineffective as Levine had not been authorized by the directors of LZD to make the transfer.

On November 26, 1997, Zweibach and Davis, holders of two-thirds of the outstanding shares of LZD common voting stock, removed Levine as a director, elected Davis as a director, and confirmed Zweibach as a director. The stockholders also authorized the officers to use reasonable efforts to regain possession of LZD’s assets. The directors then named themselves corporate officers.

LZD filed an action seeking the return of the assets. On February 5, 1998, the trial court entered an order granting a temporary injunction and finding that Zweibach and Davis were the elected officers and directors of LZD and that LZD was entitled to possession of the assets. LZD then amended its complaint, naming the Levines, Richard Gordimer, C.P.A., and the firm of Rivero Gordimer & Co., P.A., as defendants. This complaint sought damages for multiple causes of action, including damages against Richard Gordimer individually and against his CPA firm (collectively “Gordimer”) for breach of fiduciary duties and professional malpractice. Defendants moved to dismiss, alleging that LZD lacked standing to bring suit because it was dissolved under the laws of Florida; they also challenged the removal of Levine as a director due to procedural deficiencies. Lastly, the defendants alleged that the action was barred by the statute of limitations. Following a May 18, 1998, hearing, the trial court dismissed the complaint with prejudice, finding that LZD lacked standing to file the complaint. The trial court also found that the two counts against Gordimer were barred by the statute of limitations. The trial court ruled that if LZD appealed the dismissal and the appellate court determined that LZD did have standing to file the claims, the two counts against Gordimer should be dismissed without prejudice with leave for LZD to amend.

LZD did appeal. However, while the appeal was pending, Gordimer filed a motion with the trial court seeking attorney’s fees pursuant to sections 57.105 and 772.11, Florida Statutes (1997). On January 11, 1999, the trial court entered an order finding that Gordimer was entitled to fees under section 57.105 in an amount to be determined later.

On July 2, 1999, this court issued its opinion in Paul R. Levine, M.D., Stephen M. Zweibach, M.D., Mark R. Davis, M.D., P.A. v. Levine, 734 So.2d 1191 (Fla. 2d DCA 1999), holding that LZD did have standing to file the original suit and that the removal of Levine as officer and director was proper. As to the statute of limitations issue, this court determined that

the complaint did not conclusively demonstrate the defendants’ entitlement to prevail under the statute of limitations, because the alleged circumstances suggested the possibility that LZD could plead matters in avoidance of the limitations defenses. Although the dismissal on this ground was without prejudice, the court more properly should have denied the motions to dismiss, thus leaving it to the defendants to assert limitations defenses in their responsive pleadings and affording LZD an opportunity to plead facts in avoidance.

734 So.2d at 1195. As a result, this court reinstated LZD’s action, save count three that did not apply to Gordimer.

Upon reinstatement, Gordimer filed its answer and affirmative defenses to the first amended complaint, again arguing that due to the statute of limitations bar, LZD had not alleged a justiciable issue as to Gordimer. LZD responded one month later by moving to amend its complaint. The attached amendment, however, only supported Gordimer’s affirmative defense, as it failed to allege any new facts in avoidance of the statute of limitations bar. Subsequently, on August 26, 1999, without ruling on LZD’s motion to amend, the trial court granted a motion by Gordimer for judgment on the pleadings, finding that the statute of limitations barred LZD’s claims. LZD appealed and this court affirmed. See Paul R. Levine, M.D., Stephen M. Zweibach, M.D., Mark R. Davis, M.D., P.A. v. Gordimer, 768 So.2d 1080 (Fla. 2d DCA 2000) (table decision).

On March 29, 2001, the trial court determined that under section 57.105, Gordimer was entitled to attorney’s fees and costs from LZD. The trial court subsequently found that under section 607.1421(4), Florida Statutes (1999), Gordimer also was entitled to attorney’s fees against Zweibach individually. Following a hearing to determine the amount of the fees, the trial court entered an amended final judgment awarding Gordimer fees and costs against Zwei-bach individually. It is this judgment that Zweibach now appeals.

Initially, Zweibach argues that the trial court erred in awarding section 57.105 fees because LZD’s action was not frivolous when filed. We cannot agree. Gordimer raised the statute of limitations bar in its answer and affirmative defenses to LZD’s first amended complaint. At that point, it became LZD’s responsibility to plead further facts or allegation in avoidance of that claim. LZD, however, could not and, in fact, moved to file an amended complaint that merely realleged, nearly verbatim, the same facts regarding Gordimer as those alleged in the first amended complaint. Because LZD was unable to plead any allegation against Gordimer that occurred within the statute of limitations period,- its claims against Gordimer completely lacked a justiciable issue and were frivolous. See § 57.105(1).

Zweibach also contends that the trial court erred in awarding Gordimer fees against him individually. The determining issue as to Gordimer’s entitlement against Zweibach individually is the applicability of section 607.1421(4), which provides:

A director, officer, or agent of a corporation dissolved pursuant to.this section, purporting to act on behalf of the corporation, is personally liable for the debts, obligations, and liabilities of the corporation arising from such action and incurred subsequent to the corporation’s administrative dissolution only if he or she has actual notice of the administrative dissolution at the time such action is taken; but such liability shall be terminated upon ratification of such action by the corporation’s board of directors or shareholders subsequent' to the reinstatement of the corporation....

In the instant case, LZD was administratively dissolved on August 25, 1995, and was not reinstated until November 15, 2000. The trial court found, and the record demonstrates, that Zweibach, an officer and director of the dissolved corporation, was the moving personality behind the actions taken by LZD during this period.

The record further demonstrates that Levine took possession ' of two-thirds of LZD’s stock by securing Davis’ outstanding common voting stock prior to the corporation’s reinstatement. However, there is nothing in the record to suggest that once reinstated, LZD ratified the actions taken by Zweibaeh during the period of dissolution. In fact, due to the adversarial nature of the relationship between Levine and Zweibaeh, such a ratification would not seem likely. Accordingly, we conclude that this statutory provision is applicable.

We also find no merit to Zwei-bach’s argument that he could not be held individually liable for fees because he was not a named party to the lawsuit. For the purpose of assessing fees pursuant to section 57.105, the term “party” is subject to an expanded definition. “ ‘Parties include[ ] not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of [the] proceedings ....’” Lage v. Blanco, 521 So.2d 299, 300 (Fla. 3d DCA 1988) (quoting Theller v. Hershey, 89 F. 575 (C.C.N.D.Cal.1898)). The record here shows that Zweibaeh was in “control” of the proceedings on behalf of LZD and was thus a party subject to the attorney’s fee award even though he was not a named plaintiff.

Although Zweibaeh raises several other challenges to the trial court’s determination that he is individually liable to Gordimer for attorney’s fees and costs, we do not find any of them to have merit. We therefore affirm without further discussion the trial court’s finding that Zweibaeh is personally liable.

Next Zweibaeh challenges the amount of the fees awarded on several grounds. First he points out that Gordimer carried an insurance policy that covered attorney’s fees once Gordimer paid the $50,000 deductible. Since Gordimer’s insurance carrier has indicated in writing that it will not seek repayment of the fees it has paid on Gordimer’s behalf, Zweibaeh maintains that the amount of the fee award should be limited to actual “out-of-pocket” payments made by Gordimer. We disagree. Section 57.105 provides that the trial court “shall award a reasonable attorney’s fee” upon the finding of a complete absence of a justiciable issue. Accordingly, the trial court is mandated to order the payment of attorney’s fees. If the legislative intent of deterring the filing of baseless claims is to be implemented, this mandate should not be mitigated by the fact that the prevailing party has, in fact, not had to pay the fees. Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA 1983). This is true even if the award results in a windfall. Id.

Zweibaeh also argues that the trial court erroneously included appellate attorney’s fees in the amount of its award to Gordimer. Gordimer sought appellate attorney’s fees from this court during the appeal proceeding, a request that was denied by this court. We agree that it is improper for the trial court to award such fees when the appellate court has not authorized such an award. See Norland v. Vills. at Country Creek Master Ass’n, 851 So.2d 770 (Fla. 2d DCA 2003). Accordingly, we reverse as to the amount awarded and direct the trial court to delete the amount attributed to appellate attorney’s fees from the award on remand.

Zweibaeh raises several other challenges to the amount of the fee award; because we find no merit, we affirm these issues without comment. However, we do note that section 57.105 provides that an award of attorney’s fees shall be paid in equal parts by the losing party and his or her attorney unless the attorney “acted in good faith, based on the representations of his or her client.” The amended final judgment being challenged here does not address this statutory provision. Furthermore, the record reveals that Zweibaeh did not attend the final hearing, despite being subpoenaed to appear. Although Zweibach did not raise this issue below, the trial court may need to address this issue on remand.

Finally, Zweibach challenges the amount of the costs awarded. Gordimer properly concedes that the trial court erred in determining the costs as related to the testimony of its expert witness. Accordingly, we reverse the amount of costs awarded and direct the trial court to recalculate this amount on remand. We affirm Zweibach’s other challenges to the costs award without discussion.

In summary, we affirm the trial court’s determination that Zweibach is personally and individually liable to Gordimer for fees and costs pursuant to section 57.105. We reverse, however, the final judgment with regard to the amounts awarded and remand for recalculation of the fees and costs awarded consistent with this opinion.

Affirmed in part; reversed in part; remanded with instructions.

ALTENBERND, C.J., and SALCINES, J., Concur.

      . Following this court's opinion in Levine, 734 So.2d 1191, the trial court vacated its January 11, 1999, award of attorney’s fees.


text:
    Glenda S. OWENS, Appellant, v. NATIONWIDE MUTUAL INSURANCE CO., Appellee.
    No. 2D03-3899.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2004.
    William deForest Thompson, Jr., of William deForest Thompson, Jr., P.A., Ft. Myers, for Appellant.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for Appellee.
   DAVIS, Judge.

Glenda S. Owens appeals the final summary judgment entered in favor of Nationwide Mutual Insurance Company (“Nationwide”) in her breach of contract action. We reverse.

Owens was a passenger in an automobile that was struck by a vehicle driven by Gregory D. Ervin in the state of Georgia in June 1998. The vehicle Ervin was driving was owned by Ervin’s father-in-law, Jesse Hollingsworth. At the time of the accident, Owens maintained uninsured motorist (“UM”) coverage with Nationwide.

In October 1998, believing Ervin was uninsured, Owens accepted $4415 in UM benefits from Nationwide. Owens alleged that she accepted this payment believing it to be for her lost wages only. Upon receiving the benefits, Owens executed a document entitled “Release and Trust Agreement,” by which she acknowledged receipt of the benefits and released Nationwide from further claims. However, the release agreement did not specify that the payment was solely for lost wages. Subsequently, Owens learned that Ervin had insurance coverage with Superior Insurance that provided for $100,000/$300, 000 worth of liability coverage.

On May 3, 1999, Nationwide exercised its subrogation rights under its policy with Owens and filed suit in Georgia against Ervin. That suit was brought in the names of Nationwide, as the subrogee of Owens, and Owens individually. However, Owens was never notified by Nationwide of the Georgia lawsuit. The suit resulted in a final judgment in the amount of $4415, plus prejudgment interest, costs, and attorneys’ fees, in favor of Nationwide and Owens and against Ervin.

On June 23, 2000, Owens filed her multi-count complaint against Ervin, Hollings-worth, Nationwide, and Superior, as well as the driver of the vehicle in which she was a passenger. The counts against Nationwide included one count for breach of contract and one count for bad faith. The trial court ordered the bad faith claim held in abeyance until the remainder of the action was resolved.

Owens alleged in her breach of contract count that although the contract provided Nationwide with subrogee rights to seek recovery of the monies it paid pursuant to the contract, Nationwide breached the duty it owed to Owens (1) by failing to notify her of the Georgia suit after listing her as an individual plaintiff and (2) by representing to the Georgia court that the $4415 was a fair and reasonable amount for the damages and injuries she suffered when it knew or should have known that her damages far exceeded this amount. By the Georgia court’s entry of final judgment against Ervin in favor of Owens individually, Owens is now precluded from seeking further recovery from Ervin. See Bettcher v. Wadsworth, 825 So.2d 438, 440 (Fla. 2d DCA 2002) (“Res judicata properly bars relitigation of the same issues between the same parties. A corollary to this rule provides that issues that could have been raised in prior litigation should have been raised and, thus, are barred.”).

After filing its answer and affirmative defenses, Nationwide moved for summary judgment. It argued that since the Release and Trust Agreement released Nationwide from all future claims “of whatsoever kind,” Owens was precluded as a matter of law from bringing this action against Nationwide. The trial court agreed, granted the motion, and entered a final judgment in favor of Nationwide. Owens appeals this final judgment.

At the hearing on the motion for summary judgment, the trial court orally pronounced certain findings that are not contained in the written order. The trial judge determined that by executing the Release and Trust Agreement, Owens authorized Nationwide to file an action against Ervin. The trial judge further found that this language did not require Nationwide to give any notice to Owens and that it did not require Nationwide to seek any damages over and above what it had paid to Owens in UM benefits. Accordingly, the trial court concluded that the release was in fact a legal defense to Owens’ claims and granted summary judgment. We conclude that the trial court misinterpreted the legal effect of the Release and Trust Agreement.

“A party moving for a summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” First N. Am. Nat’l Bank v. Hummel, 825 So.2d 502, 503 (Fla. 2d DCA 2002) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). We review the granting of summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

Our reading of the Release and Trust Agreement leads us to a different conclusion than that of the trial court. First, we note that Nationwide is correct that the release includes the following broad language: “Owens ... does forever release and discharge Nationwide of and from all claims of whatsoever kind and nature.... ” However, as argued by Owens’ counsel at the summary judgment hearing, the agreement goes on to limit the release to claims that arise “prior to and including the date hereof’ and “grow out of’ the UM policy issued by Nationwide to Owens. Further, the release is limited to those claims “resulting or to result from an accident which occurred on 06-27-1998 at or near ... Athens, Georgia.”

At the hearing, Owens’ counsel argued that Owens’ breach of contract claim was based on acts taken by Nationwide after the execution of the release and was not based on the accident itself. The acts which served as the basis of Owens’ complaint included the filing of the Georgia lawsuit in Owens’ name personally without notifying her and the reduction of the lawsuit to a judgment in an amount that Nationwide knew did not represent Owens’ total damages. We conclude that a plain reading of the release language negates the trial court’s finding that the release was intended to absolve Nationwide of all liability for all of its acts that occurred after Owens executed the release. Thus, the trial court erred in ruling that this release was a bar to Owens’ claim against Nationwide. Whether these acts are sufficient to support a claim for breach of contract is an issue to be determined by the trier of fact, not one to be decided at the summary judgment stage.

Additionally, the trial judge misread the second paragraph of the release. The trial court understood this paragraph to include Owens’ authorization of Nationwide filing an action against Ervin. Since there is no mention of notifying Owens, the trial court concluded that Nationwide had no duty to advise her of the lawsuit. The trial court also found that Nationwide was not required to seek full recovery for Owens’ injuries and instead was within its rights in limiting the recovery to the sums it had paid to Owens as UM benefits.

The trial court, however, failed to notice that the release language specified that the action would be taken to “recover the damages suffered by the undersigned and said minor or estate.” It is clear from the release that the term “undersigned” refers only to Owens, as the insurer is specifically designated as “Nationwide.” Accordingly, assuming the trial court is correct that this provision authorizes Nationwide to file the action, the action was for Owens’ damages, not Nationwide’s. This is further evidenced by the release provision addressing what would happen to any funds recovered in excess of Nationwide’s payments. Whether Nationwide knew or should have known that Owens’ damages exceeded the $4415 in UM benefits that it had paid to her is an issue of fact not to be resolved at summary judgment. If Nationwide knew Owens’ damages exceeded this amount and purposely misrepresented to the Georgia trial court that this amount was a fair settlement of Owens’ damages, Nationwide might be liable for a breach of its contractual duties as imposed by this release agreement. Thus, the entry of summary judgment was error, and we reverse.

Reversed and remanded for further proceedings.

NORTHCUTT and COVINGTON, JJ„ Concur.

      . In her complaint, Owens alleged that she incurred hospital bills in excess of $15,000, lost wages of approximately $6000, and other out-of-pocket expenses in excess of $2600.


text:
    In re COMMITMENT OF Charles WARREN. Charles Warren, Appellant, v. State of Florida, Appellee.
    No. 2D03-3163.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2004.
    James Marion Moorman, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed. As we did in Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), we certify the following question to the Supreme Court of Florida as one of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

ALTENBERND, C.J., and NORTHCUTT and STRINGER, JJ., Concur.


author: BROWNING, J.

text:
    FLORIDA DEPARTMENT OF FINANCIAL SERVICES, as the Receiver of Associated Business Owners, Self Insurers Fund and Florida Workers’ Compensation Insurance Guaranty Association, Incorporated, Appellants, v. TAMPA SERVICE COMPANY, INC., Appellee.
    No. 1D03-2852.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.

      Thomas J. Korge, Esq., and Christopher G. Korge, Esq., of Korge & Korge, Coral Gables; and Sheila L. Erstling, Esq., and Eric S. Scott, Esq., Tallahassee, Attorneys for Florida Department of Financial Services; and Carlos L. de Zayas, Esq., and Matthew L. Lines, Esq., of Diaz, O’Naghten & Borgognoni, LLP., Miami, Attorneys for Florida Workers’ Compensation Insurance Guaranty Association, Incorporated, for Appellants.
    Kevin H. Graham, of Shumaker, Loop & Kendrick, LLP., Tampa; and Kenneth W. Sukhia, of Fowler White Boggs Banker, P.A., Tallahassee, for Appellee.
   BROWNING, J.

This is an appeal by Florida Department of Financial Services (Receiver) from a summary judgment in favor of Tampa Service Company, Inc. (TSC). Because Receiver is bound by admissions that preclude recovery, we affirm.

The facts of this appeal are as follows. In 1997, Associated Business Owners, Self Insurers Fund (ABO) was adjudged insolvent. Florida Department of Financial Services became the receiver. Receiver then assessed the members of ABO, including TSC, for a deficiency under section 624.474, Florida Statutes. TSC argued below that it was not a member of ABO, but that it had a separate insurance agreement with ABO, the details of which are obscure to this Court. TSC sent to Receiver a request for admissions, including an admission that TSC was not a “member” of ABO, as that term is used in sections 624.474 and 624.476, Florida Statutes. Receiver did not respond to the request for admissions until over nine months later; while the response was accompanied by a motion for enlargement of time within which to respond, Appellant never presented such motion for consideration and disposition by the trial judge. On TSC’s motion, and after a hearing, the trial court entered summary judgment for TSC, having found that the existence of any separate insurance agreement does not make TSC a member of ABO and subject to statutory assessments under sections 624.474 and 624.476.

Receiver’s response to the request for admissions was untimely; thus, the matters in the request are properly deemed admitted. Fla. R. Civ. P. 1.370(a). Among those admissions is the admission that TSC is not a member of ABO under the two statutes pertaining to assessment by self-insurance funds, which permit those funds to assess only from their “members.” The effect of Receiver’s admissions is to establish conclusively that TSC is not a member of ABO for purposes of assessment, regardless of any agreement they may have had. By Receiver’s admissions, then, TSC cannot be assessed by Receiver under these statutes as a member of ABO. Accordingly, there was no error in entering summary judgment for TSC.

This holding only absolves TSC from Appellant’s assessment under section 627.474 and does not determine any other issues relating to TSC’s potential liability under the separate agreement it asserts binds the parties, or any other basis for TSC’s liability for the deficiency asserted as an assessment.

AFFIRMED.

BENTON and POLSTON, JJ., concur.


author: KELLY, Judge.

text:
    Bobby LATULIP, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1022.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
   KELLY, Judge.

Bobby LaTulip challenges the summary dismissal of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court had jurisdiction to consider the motion, we reverse and remand for further proceedings.

LaTulip filed a rule 3.800(a) motion in case number 2D03-4718 on June 2, 2003, followed by an amended motion on July 25, 2003. The trial court denied both on July 25, 2003. LaTulip filed a timely appeal. While that appeal was pending, LaTulip filed the 3.800(a) motion for jail credit that is the subject of this appeal. Because of the pending appeal, the trial court concluded that it lacked jurisdiction to decide the motion and dismissed it without prejudice to LaTulip’s filing a proper motion when jurisdiction again vested in the trial court.

Rule 3.800(a) provides that a party may not file a motion under that subdivision during the pendency of a direct appeal from a judgment or sentence. Additionally, a trial court does not have jurisdiction to consider the merits of such a motion if another rule 3.800(a) motion that is the subject of a pending appeal has raised the same issue or if the two motions are “sufficiently related to divest the trial court of jurisdiction.” Lovett v. State, 851 So.2d 851, 852-53 (Fla. 2d DCA 2003) (quoting Parrish v. State, 816 So.2d 146, 146 (Fla. 1st DCA 2002)); see also Gaines v. State, 806 So.2d 575, 575 (Fla. 1st DCA 2002). Conversely, a trial court may rule on the merits of a subsequent rule 3.800(a) motion if it raises issues that are not related to the earlier motion. Lovett, 851 So.2d at 852.

In 2D03-4718, LaTulip sought prison credit and claimed that “the sentencing judge failed to complete his responsibility when he did not place a check in the appropriate box on judgment and sentence indicating that defendant who was sentenced after probation was revoked was entited [sic] to prison credit for time previously served.” In this case, LaTulip’s motion sought jail credit for time served in connection with his various violations of probation. Because the issue raised in this motion is unrelated to the issue raised in the earlier motion, the trial court had jurisdiction to rule on the merits of this motion. Accordingly, we reverse and remand with instructions that the trial court address the merits of LaTulip’s motion.

Reversed and remanded with instructions.

STRINGER and SILBERMAN, JJ., concur.


text:
    Nelson KISH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2450.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm Nelson Kish’s designation as a sexual predator. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA) (holding that the Florida Sexual Predators Act did not violate constitutional guarantee of procedural due process), review granted, 859 So.2d 514 (Fla.2003). We certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

ALTENBERND, C.J., NORTHCUTT, and STRINGER, JJ., Concur.


author: COVINGTON, Judge.

text:
    Percy GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-651.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
   COVINGTON, Judge.

Percy Gonzalez challenges the order of the trial court denying his petition for writ of mandamus. In the petition, Gonzalez alleges that the Department of Corrections miscalculated his gain time and also miscalculated his release date upon his return to prison upon revocation of his conditional release. He petitions the trial court to recalculate his release date and gain time. We affirm the order of the trial court because Gonzalez did not first seek relief through the administrative remedies available within the Department. See Hagin v. State, 875 So.2d 732, 29 Fla. L. Weekly D1421 (Fla. 2d DCA June 11, 2004).

Affirmed.

SILBERMAN and VILLANTI, JJ., concur.


author: VILLANTI, Judge.

text:
    Jenny MOLLOY f/k/a Jenny Flood, Appellant, v. Todd FLOOD, Appellee.
    No. 2D03-4957.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
    Catherine M. Catlin of Catherine M. Catlin, P.A., Tampa, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   VILLANTI, Judge.

Wife Jenny Molloy appeals the trial court’s order granting Husband Todd Flood’s motion to strike her request for attorney’s fees. The trial court granted the motion because the Wife failed to file a motion for attorney’s fees within thirty days after the entry of the final judgment as required by Florida Rule of Civil Procedure 1.525, effective January 1, 2001. In fact, the Wife never filed a motion for attorney’s fees, relying instead on her notice of hearing on the issue and a provision reserving jurisdiction to determine attorney’s fees in the final judgment of dissolution. The bright line established by rule 1.525 requires a separate written motion for attorney’s fees to be filed within thirty days of the entry of final judgment; reserving jurisdiction in the final judgment does not automatically extend the time. See Lyn v. Lyn, 2D03-4393, 2004 WL 1635103, 884 So.2d 181 (Fla. 2d DCA July 23, 2004); Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004); Gulf Landings Ass’n v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002). Accordingly, we affirm and certify conflict with Fisher v. John Carter & Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004).

Affirmed, conflict certified.

NORTHCUTT and WALLACE, JJ., concur.