author: SHEPHERD, J. GERSTEN, Judge

text:
    Doreen SIEGEL, A.R.N.P. and Ace American Ins. Co., Appellants, v. John S. HUSAK, Appellee.
    No. 3D04-2310.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.

      Greenberg Traurig and Arthur J. England, Jr., Elliot B. Kula and Daniel M. Samson; Weinberg, Wheeler, Hudgins, Gunn <& Dial and Todd R. Ehrenreich and Lawrence E. Burkhalter, Miami, for appellants.
    Deutsch & Blumberg and James C. Blecke; Charles B. Patrick, Miami, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal by an advanced registered nurse practitioner and her insurer from an adverse jury verdict. The question presented is whether the nurse practitioner is individually responsible at law for a misdiagnosis, which was the ultimate responsibility of her supervising physician. Although there are circumstances in which a nurse practitioner can be found liable for the misdiagnosis of her supervising physician, we find there is a lack of competent substantial evidence in this case to support a verdict against the nurse practitioner and accordingly reverse the judgment below.

INTRODUCTION

In this medical malpractice action, the defendants were Dr. Lawrence Feldman and Doreen Siegel, a Florida licensed advanced registered nurse practitioner (ARNP). The plaintiff was John S. Husak, a marketing director for Celebrity Cruise Lines.

Broadly speaking, there are three types of nursing licensure recognized by the laws of this state — licensed practical nurses, registered nurses, and ARNPs. See §§ 464.003(4)-(6), Fla. Stat. (2003). ARNPs are registered nurses who have achieved further training and certification, after which they can perform additional supervised medical procedures and tasks that normally cannot be lawfully performed by other types of licensed nurses. See § 464.003(3)(e), Fla. Stat. (2003). Florida law requires these procedures and tasks be “identified and approved” under the auspices of the State Board of Nursing, see § 464.003(3)(c), Fla. Stat. (2003), or conducted pursuant to a protocol developed and agreed to by the supervising physician and the ARNP. § 458.348, Fla. Stat. (2003) (formal supervisory relationship); § 464.012, Fla. Stat. (2003)(certifica-tion of ARNPs); § 64B8-35.002, Fla. Admin. Code (2003). When operating within the context of an advanced or specialized nursing practice and supervised as required by law, “[an] advanced registered nurse practitioner may perform acts of nursing diagnosis .... ” § 464.003(3)(c)(emphasis added). It is neither disputed in this case that Feldman had the ultimate responsibility for the diagnosis and treatment of Husak, nor that Feldman negligently diagnosed Husak’s medical condition. The issue in the case is whether or not Siegel, who was working under the direct supervision of Feldman, was separately negligent for the misdiagnosis. Because Siegel was working under the direct supervision of Feldman, and because she did not commit any misdeed or act of negligence separate from that for which Feldman had the ultimate responsibility, we conclude the trial court erred in failing to direct a verdict in this case for Siegel.

FACTUAL BACKGROUND

This case arises out of a complaint filed by Husak against Feldman and Siegel. Siegel worked in Feldman’s medical office under his supervision. The complaint alleges decreased arm use resulting from defendants’ failure to properly diagnose ruptured tendons in Husak’s arms and either to timely refer him for a MRI study of his condition or to an orthopedic surgeon.

The record reflects that on January 10, 2001, Husak traveled to Feldman’s office for treatment for injuries suffered to his arms that morning while lifting weights during his morning workout in the gym at his place of employment. Husak testified that while working out, he slipped as he pulled forward on a weight machine, felt immediate pain, and heard a “popping sound” in his arms.

Husak was first seen by Siegel, who determined, both from the receptionists’ record of Husak’s case history and vital signs, and from her own examination, that Husak suffered from a muscle strain or sprain. Husak’s chart includes Siegel’s examination notes, her nursing diagnosis, and the fact Husak reported “popping sounds” in both arms. Feldman also saw and spoke with Husak during this visit, but the record is devoid of any evidence that he actually examined Husak. Nor is there any evidence Feldman did a post-visit review of Husak’s chart to indicate his professional agreement or disagreement with Siegel’s nursing diagnosis, as was required by the practice and protocol that existed between them.

On Saturday, January 13, 2001, Husak called Siegel’s personal number to report swelling and bruising in his arms. Siegel repeated the diagnosis and recommended course of treatment, and asked Husak to return on January 15, 2001. On that day, Siegel again examined Husak. Husak’s arms were black and blue, but there was no deformity in his muscles and he had full range of motion. Siegel prescribed anti-inflammatory medication and rest, and established a follow-up appointment for January 19. Feldman saw and spoke with Husak at the January 15 visit, and this time signed Husak’s chart, indicating that in his professional opinion Husak had been properly diagnosed.

On January 19, 2001, Husak visited Sie-gel in Feldman’s office for a third time. She again examined him, noting the bruising and tenderness were improving. Feld-man did not see Husak on this date, but later signed Husak’s chart to reflect concurrence with Siegel’s recommendations in accordance with the practice established between them. On two of these three visits, Husak received cosmetic treatments from Siegel in the form of a Botox injection and glycol peels.

Four months later, in May 2001, Husak, on his own initiative, sought a MRI study of his arms through Feldman’s office. The results of the MRI, which included Hu-sak’s biceps but not his tendons, showed a condition consistent with muscle sprain. Siegel, who by then had left Feldman’s employ but was covering somebody’s shift as a favor, happened to be in the office on the date Husak came to retrieve the MRI results, and Siegel handed the results to Husak. According to her testimony, Sie-gel did not discuss the results with Husak because she did not order the MRI herself. The MRI results showed “[fjindings consistent with Type 1 Muscle Strain involving the distal biceps muscle or areas of muscle contusion.”

In July 2001, Husak sought an orthopedic consultation. At this time, Husak saw Dr. Keith Hechtman, an orthopedic surgeon, who advised Husak he had torn biceps tendons. Hechtman advised Husak surgery was unnecessary because Husak’s job did not require heavy labor, Husak had full range of motion, and Husak’s only limitation was an inability to use weight machines.

Later that same month, Dr. Raj Panda-ya, an orthopedist, examined Husak. Pan-daya confirmed Hechtman’s diagnosis of ruptured biceps tendons and recommended surgery with orthopedic surgeon Dr. Bernard Morrey. Pandaya testified Husak would have had a greater chance at a full recovery had the surgery occurred within the first week-and-a-half of the injury.

Ultimately, Morrey performed reconstructive surgery on Husak’s biceps. Although Husak did not have 100% recovery, Morrey placed no weight-lifting or other limitations on Husak subsequent to the surgery. According to his employer, Hu-sak was able post-operatively to satisfactorily perform his employment duties. There is conflict in the record concerning the extent to which his imperfect tendons affect Husak in the performance of his daily personal tasks.

After a six-day trial, a jury awarded Husak $1,848,068.50 medical expenses, lost earnings, and pain and suffering, apportioning fifty percent of the fault to Feld-man as a Fabre defendant. Siegel’s post-trial motions included a motion for judgment notwithstanding the verdict, new trial, remittitur, and for setoff, all of which were denied and now assigned as error on this appeal. Because we conclude that the trial court erred in not granting Siegel’s motion for judgment notwithstanding the verdict, we need not consider Husak’s other grounds for error.

DISCUSSION

At the outset, it is important to recognize that Florida law does not permit ARNPs to perform acts of medical diagnosis and treatment without supervision. Section 464.003(3)(e), Florida Statutes (2003), provides “[an] advanced registered nurse practitioner may perform acts of nursing diagnosis and nursing treatment of alterations of the health status.” (Emphasis added). However, Florida law expressly states an ARNP may only perform such tasks pursuant to a formal protocol established between a supervisory physician and the nurse, see § 458.348(l)(a), Fla. Stat. (2003), and further that in all circumstances, the physician “shall maintain supervision for directing the specific course of medical treatment.” § 464.012(3), Fla. Stat. (2003). In this case, the protocol established between Feldman and Siegel included Feldman’s obligation, in his supervisory capacity (usually on the same or next day), to promptly review the chart or file of each patient seen by Siegel and to initial his concurrence or disagreement with Siegel’s work. The record is devoid of any testimony that Feldman ever looked at that portion of Husak’s chart reflecting his first visit. If so, Feldman would have seen Siegel’s note that “popping sounds” accompanied Husak’s injury. It is not disputed that a “popping sound” is a symptom of a ruptured tendon and an indicator of a need for a referral.

There is no evidence in the record that Siegel violated a Florida standard of care for ARNPs at the time she made her “nursing diagnosis.” In fact, the evidence is to the contrary. Nurse Siegel placed on Husak’s chart and in his file all of the information from which her supervisor, Dr. Feldman, could have made the correct diagnosis or referral had he been attentive. For this reason, we find that this case is governed by the reasoning in Drew v. Knowles, 511 So.2d 393 (Fla. 2d DCA 1987). In Drew, the Second District held:

[A] nurse acting under the direction and orders of a physician in matters involving medical professional skill and judgment is absolved from liability for the acts so performed, absent independent negligence upon the part of the nurse, and absent a performance of those acts or duties a nurse is called upon to perform at a level of performance well below that which is expected of a similarly qualified nurse. Similarly, where a nurse is called upon to exercise professional judgment or to perform discretionary ministerial acts and does so negligently, the nurse may be liable.

Id. (emphasis added). In Drew, the court worked through a twenty-four count, 230-paragraph complaint and affirmed the dismissal of a medical malpractice complaint against five registered nurses and two respiratory therapists on the ground there were no allegations of breach of “any specific duty” owed by those defendants, while at the same time reversing as to three other registered nurses and one respiratory therapist on the same ground. Id. at 395.

Similarly, in this case, there was no “specific duty” owed by Siegel to Husak which was breached by her. Siegel was acting under the specific direction and orders of Feldman when she made her “nursing diagnosis.” The actual responsibility for the diagnosis lay with Feldman. Cf. Variety Children’s Hosp., Inc. v. Perkins, 382 So.2d 331, 334-35 (Fla. 3d DCA 1980)(holding that a surgeon is “captain of the ship” for acts performed under his control and direction). Although her initial impression and recommended course of treatment was flawed, Siegel gave her superior and supervisor all information necessary for him to make the correct judgment. Had she not done so — for example, had she failed to record the allegedly tell-tale “popping sounds” on Husak’s chart — there would have been a triable issue of nursing negligence. There is no evidence of independent negligence by Sie-gel apart from that for which Feldman was responsible. Under the law of this state, only if there had been some independent act of negligence by Siegel could she then have been found liable to Husak in this ease.

While it may seem counter-intuitive to excuse Siegel from an incorrect diagnosis when the patient indisputably passed through her care, the nursing profession is governed by a number of standards which differ from those governing other members of the medical profession. See Loui-sell and Williams, Medical Malpractice, Ch. 16A “Nursing Negligence”, Vol. 2 (1992). Among them is the long-settled legal principle that “[wjhen a nurse acts under the orders of a private physician in matters involving skill and decision, she is absolved from liability for her acts.” Buzan v. Mercy Hosp., 203 So.2d 11, 13 (Fla. 3d DCA 1967)(quoting Rural Ed. Ass’n v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761, 767 (1957)). See also Wilson v. Lee Mem’l Hosp. 65 So.2d 40 (Fla.1953); Beaches Hosp. v. Lee, 384 So.2d 234 (Fla. 1st DCA 1980).

Husak sought to circumvent this long-settled legal principle through the expert testimony of Guadalupe Barragan, a California nurse practitioner. However, Barragan, who had not studied the standard of care owed by Florida nurses to their patients until just before trial, and who herself never diagnosed a ruptured tendon during her twenty-five-year nursing career, was permitted by the trial court to offer the legal opinion based upon the Florida statutes that Siegel (1) owed an independent legal duty to Husak and (2) breached that duty by departing from a so-called national standard of care, which Barragan equated to a Florida standard of care. As previously demonstrated, there is no statutorily established duty upon which a jury could find Siegel guilty of medical malpractice in this case. Ordinarily, the question of the existence of a legal duty is one of law. The law of this state does not place an “independent legal duty” on Siegel to properly diagnose Husak. Barragan was not competent to contradict the law of this state. See Estate of Williams v. Condon, 771 So.2d 7, 8 (Fla. 2d DCA 2000)(“[0]pinion testimony as to the legal interpretation of Florida law is not a proper subject of expert testimony.”); Florida Power & Light v. Lively, 465 So.2d 1270, 1272 (Fla. 3d DCA 1985)(stating that whether duty exists is a question of law for the court). For these reasons, we need not reach Husak’s second argument. However, if required to do so, we would also conclude Husak failed to offer sufficient competent evidence to support a charge that Siegel violated a national standard of care applicable to nurse practitioners in Florida in this case.

For these reasons, we reverse the judgment below and remand with directions that Siegel’s motion for judgment notwithstanding the verdict be granted.

Reversed.

SUAREZ, J., concurs.

GERSTEN, Judge

(concurring).

I respectfully concur with the majority’s decision to reverse and remand, directing a verdict in favor of Doreen Siegel, (“Sie-gel”). Although the majority’s analysis is on point, because this case turns on the standard of care issue, it is the only issue that needs to be addressed.

A trial court should direct a verdict in favor of a health care provider when testimony fails to show: (1) the proper standard of care; and (2) the health care provider deviated from the standard of care causing the patient’s injury. See Robbins v. Newhall, 692 So.2d 947 (Fla. 3d DCA 1997). Although Florida law does not explicitly specify the standard of care for advanced registered nurse practitioners (“ARNP”), the duty for ARNPs and other health care providers should mirror a physician’s duty to the patient.

In Florida, the proper standard of care for physicians is a “duty to use ordinary skills, means, and methods that are recognized as necessary and which are customarily followed in the particular type of case according to the standard of those who are qualified by training and experience to perform similar services in the community or in a similar community.” See Sweet v. Sheehan, 932 So.2d 365 (Fla. 2d DCA 2006)(emphasis added); Torres v. Sullivan, 903 So.2d 1064 (Fla. 2d DCA 2005). This standard is also known as the locality rule.

Because Florida adheres to the locality rule for physicians, then the same standard should logically apply to ARNPs. Here, the patient, John Husak (“Husak”), presented a California nurse practitioner to testify on an ARNP’s standard of care. The expert admitted that she was not familiar with the standard of care for Florida ARNPs and instead testified about a national standard of care.

Husak’s expert inaccurately equated a national standard to Florida’s locality rule. Further, the expert testimony failed to show the proper standard of care for nurses in Florida, and that Siegel deviated from the proper standard of care. Therefore, the trial court erred in refusing to grant a directed verdict in favor of Siegel.

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

      . A "nursing diagnosis” is defined by statute as "the observation and evaluation of physical or mental conditions, behaviors, signs and symptoms of illness, and reactions to treatment and the determination as to whether such conditions, signs, symptoms, and reactions to treatment and the determination as to whether such conditions, signs, symptoms, and reactions represent a deviation from normal.” § 464.003(3)(d), Fla. Stat. (2003). "Nursing treatment” is defined in section 464.003(3)(e), Fla. Stat. (2003).

      . The trial court rebuffed Siegel’s attempt to preclude Barragan from testifying on the basis that she was offering "surprise” testimony in violation of the principle established in Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981)(noting that rules governing discovery and pretrial procedure are intended to eliminate surprise in cases where a witness is not disclosed in accordance with pretrial order). See also Office Depot, Inc. v. Miller, 584 So.2d 587 (Fla. 4th DCA 1991)(expanding Binger principle to hold that allowing the presentation of a witness's changed testimony is tantamount to permitting an undisclosed adverse witness to testify). Although conduct of this type impairs truth-seeking, see Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993)("[a]ll the discovery rules would be for naught if one side were able to wait until after trial started to establish key pieces of evidence”), and contributes to the diminishment of public confidence in our civil justice system, we conclude the trial judge did not abuse his discretion by not sanctioning Husak under Binger in the circumstances of this case. Binger, 401 So.2d at 1313 (stating it is within the trial court's discretion whether to permit or exclude witness testimony).

      . On this charge, Barragan attempted to reason-somewhat circuitously in our view — that because California, by her reckoning, has the same direct supervisory requirements as does Florida for ARNPs, and because the American Academy of Nurse Practitioners (AANP), of which both she and Siegel are members, credentials nurses and sets standards for practice, there exists a national standard. However, Barragan’s syllogism fails because, as she admits, the standards of practice established by the AANP are unrelated to the specific standards for any particular state. Moreover, Barragan is incorrect in her assertion that California law concerning the supervision of ARNPs is the same as Florida's law. See Cal. Bus. & Prof.Code § 2725(b)(4)(West 2004); see also Fein v. Permanente Med. Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665 (1985)(interpreting nurse's functions of examination or diagnosis, as stated in section 2725(b)(4) not to be functions reserved to physicians).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Antonio SAMALOT and Myra Samalot, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 3D05-2563.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Gonzalez Associates and Mariano R. Gonzalez, Miami Lakes, and Aylin Morales, for appellants.
    Blanca D. Cruz and Shelley Ray Senecal, Miami, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Basik Exps. & Imps., Inc. v. Preferred Nat’l Ins. Co., 911 So.2d 291 (Fla. 4th DCA 2005).


text:
    A. Glenn BRASWELL, Appellant, v. Renee BRASWELL, Appellee.
    No. 3D05-2581.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Linda L. Carroll, Miami, for appellant.
    Elser Foster-Morales Kopeo; Green Smith McMillan, and Cynthia L. Greene, Miami, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Gibson v. Bennett, 561 So.2d 565 (Fla.1990); Braswell v. Braswell, 881 So.2d 1193 (Fla. 3d DCA 2004).


text:
    Charles L. SMITH, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D05-2458.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Charles L. Smith, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We grant Charles L. Smith’s petition for ■writ of mandamus to compel the trial court to issue a written order of dismissal for his petition for writ of habeas corpus which was ruled upon by the trial court on July 1, 2005, in case numbers 84-20172 and 04-37311.

As we are hopeful that the lower court will comply forthwith with the issuance of the requested order, we withhold issuance of the formal writ for thirty (30) days.


text:
    Ismael CESAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3191.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Rehearing Denied Jan. 2, 2007.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without prejudice to appellant’s ability to raise the issue of ineffective assistance of counsel in a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    Larry ZUCKERMAN and Beth Zuckerman, Petitioners, v. A & B WINDOW AND GLASS, INC., Respondent.
    No. 3D06-1022.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Rehearing Denied Dec. 7, 2006.
    Alan R. Soven, Miami, for petitioners.
    Randall L. Leshin, Pompano Beach, for respondent.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The petitioners seek second-tier certio-rari review of a circuit court appellate division per curiam affirmance of a county court judgment, entered after we remanded the case for reconsideration of the appeal. See Zuckerman v. A & B Window and Glass, Inc., 930 So.2d 632 (Fla. 3d DCA 2005), review denied, 911 So.2d 792 (Fla.2005).

Although, as an original matter, we might conclude that the county court judgment and therefore its affirmance by the circuit court were erroneous, we cannot say that they so far departed from the essential requirements of law as to result in a miscarriage of justice, as is required to justify our review at this stage. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); S. Motor Co. of Dade County v. Doktorczyk, — So.2d -, 2006 WL 2520682, (Fla. 3d DCA Case no. 3D05-2244, opinion filed, September 1, 2006)[31 Fla. L. Weekly D2277], We therefore deny relief.

Certiorari denied.


author: RAMIREZ, J.

text:
    Martin J. BRADLEY, III, and Maria P. Bradley, Appellants, v. Jose M. SANCHEZ, Appellee.
    No. 3D05-2669.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Rehearing Denied Dec. 14, 2006.

      Manuel Arthur Mesa, Miami, for appellants.
    Joseph S. Shook, Miami, for appellee.
    Before GREEN, RAJYUREZ, and SUAJREZ, JJ.
   RAMIREZ, J.

Martin J. Bradley, III and his wife, Maria P. Bradley, appeal the trial court’s amended final judgment entered in favor of appellee Jose M. Sanchez, as well as the trial court’s order granting final judgment for liquidated damages and the trial court’s order denying the Bradleys’ motion for leave to amend. We affirm all orders, finding that the trial court committed no error.

On December 4, 2002, the Bradleys and Mr. Sanchez executed a contract for the purchase and sale of a luxury home in Coral Gables, Florida. The Bradleys were the prospective buyers, and Mr. Sanchez was the prospective seller. Esslinger Wooten Maxwell, Inc. Realtors (EWM) was the real estate brokerage firm acting as agent for Mr. Sanchez.

The parties used a form contract provided by EWM. The purchase price was $10,500,000. The original closing date was set for March 1, 2008, but was extended at Mr. Sanchez’s request, so that the executed contract required a closing on or before June 2, 2003. The contract was contingent upon the buyers obtaining 50% financing. The Bradleys paid an initial deposit of $10,000 on November 27, 2002, with a $500,000 deposit due by December 20, 2002. Paragraph 13 of the contract states, in part, that “[mjodifieations of this Contract will not be binding unless in writing, signed and delivered by the party to be bound.”

There is no dispute that Mr. Bradley understood every part of the contract, agreed to all the handwritten changes in the contract, initialed wherever there was a change, and understood when the additional deposit was due. Mr. Bradley admitted that he signed the provision of the contract where it is agreed that “[sjeller retains 100% of the deposit in case of default.” The financing contingency clause of the contract provided the Brad-leys with five days from the effective date of the contract (December 4, 2002) to apply for financing.

The Bradleys claim that after signing the contract, Mr. Bradley was told by Marilyn Cromer, the EWM agent that showed the Bradleys the subject property, that he could wait until nearer to the closing date to apply for a financing commitment. Mr. Bradley stated that Ms. Cromer told him that she was giving him consent to wait on applying for financing. This conversation allegedly took place on December 17, 2002. Ms. Cromer denied that she made the representation and denied that she had the authority to make the representation.

On December 12, 2002, the Bradleys were served with a federal search warrant. Up until this point, the Bradleys had not applied for financing. The Bradleys claim that the existence of the federal government’s investigation, which they allege would have to be disclosed to any bank, eliminated any chance they would have of qualifying for a large home mortgage loan, so they did not apply for a loan. Mr. Bradley stated in his deposition that the federal government did not actually seize any of his bank accounts or financial assets as of December 12, 2002.

On December 20, 2002, (the day the $500,000 deposit was due), Mr. Bradley attempted to cancel the contract. The Bradleys did not make an additional deposit, believing the contract to be canceled. The Bradleys wanted their deposit back, and Mr. Sanchez wanted to keep the $10,000 deposit, as well as the additional $500,000 that was required.

The Bradleys then filed suit against Mr. Sanchez and EWM, seeking declaratory relief. Mr. Sanchez filed a Motion to Dismiss and a counterclaim, alleging breach of contract and seeking the $10,000 deposit paid and the $500,000 deposit that was not paid. Mr. Sanchez eventually moved for summary judgment, which was granted by the trial court. The trial court denied the Bradleys’ motion for rehearing. Mr. Sanchez moved for the entry of a final judgment. The Bradleys moved to file a Third Amended Complaint, claiming that on April 18, 2005, Mr. Sanchez sold the house at issue for $10,400,000. The trial court denied the motion to amend and eventually entered a final judgment in favor of Mr. Sanchez, awarding him the $10,000 deposit, the $500,000 deposit, and prejudgment interest.

We conclude that the trial court properly found there were no genuine issues of material fact regarding the Bradleys’ breach of the real estate contract, nor with regard to any defense asserted. Furthermore, granting the Bradleys’ motion for leave to amend would have been futile because the uncontradicted facts indicate the damages complained of in the proposed unjust enrichment action and conversion action were legally recognizable liquidated damages to which the parties agreed.

Mr. Bradley admitted that he failed to apply for financing within the five day period from the operative date of the contract. In fact, the five day period elapsed without the Bradleys applying for any kind of financing, before any alleged oral waiver of this term by Ms. Cromer. This alleged oral waiver did not occur until December 17, 2002. The federal search occurred on December 12, 2002, and the contract was operative on December 4, 2002. Thus, the Bradleys’ estoppel defense is not supported by the facts in the record because, if Mr. Bradley admitted that Ms. Cromer made her alleged representation on December 17, 2002 (13 days after the operative date of the contract), then Mr. Bradley could not have relied upon her alleged representation to his detriment within the operative period.

In addition, Mr. Bradley admitted that he failed to submit the additional deposit of $500,000, as required by the contract. Paragraph 3(b)(2) of the contract provided in part:

“Buyer will apply for Financing within _days from Effective Date (5 days if left blank) and will timely provide any and all credit employment, financial and other information required by the lender.”

Paragraph 2(b) provided that “$500,000.00 Additional deposit to be made by 12/20/02 .... ” The contract clearly requires that within five days of the operative date of the contract, December 4, 2002, the Brad-leys “will apply for financing.” There are no other terms in the contract that excuse this requirement.

“[C]learly written provisions of contracts entered into by ordinary men should be construed in the light of common understanding.” Schechtman v. Grobbel, 226 So.2d 1, 3 (Fla. 2d DCA 1969). Where there is no facial ambiguity in the portion of the subject contract, “the provision must be afforded its plain meaning.” Broward, Cty. v. LaPointe, 685 So.2d 889, 892 (Fla. 4th DCA 1996). Moreover, “[w]here the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla.2000). Where the terms of the contract are clear and unambiguous, summary judgment is appropriate. Khosrow Maleki, P.A. v. MA Hajianpour, M.D., PA, 771 So.2d 628, 631 (Fla. 4th DCA 2000).

Furthermore, the record establishes that the parties agreed not to allow a waiver of any contractual term without putting it in writing. Paragraph 13 of the contract clearly states that “[mjodifications of this Contract will not be binding unless in writing, signed and delivered by the party to be bound.” Thus, this language prevents an oral waiver or modification of the term requiring five days to apply for financing and requiring that the $500,000 be paid no later than December 20, 2002. See Rybovich Boat Works, Inc. v. Atkins, 587 So.2d 519, 522 (Fla. 4th DCA 1991)(where contract contained an anti-waiver provision, the court found that the relevant provision could not have been waived unless there was a writing signed by the party against whom the waiver was asserted). We recognize that under Florida law, there are some situations where a written contract may be modified by subsequent oral agreement between the parties or by the parties’ course of dealings. See, for e.g., St. Joe Corp. v. McIver, 875 So.2d 375, 381-82 (Fla.2004); Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So.2d 838, 841 (Fla. 3d DCA 1999). However, none of those circumstances are present here.

In addition, the statute of frauds prohibits the oral modification of a contract for the sale of land under the doctrine of promissory estoppel. Shore Holdings, Inc. v. Seagate Beach Quarters, Inc., 842 So.2d 1010, 1012 (Fla. 4th DCA 2003). As such, the contract could not be orally modified because it was required by the statute of frauds to be in writing.

Here, there are no facts that would have permitted the trial judge to invalidate the Bradleys’ obligation to apply for financing within five days of December 4, 2002. Accordingly, the trial court was correct in interpreting the plain meaning of the contract and entering summary judgment in favor of Mr. Sanchez.

With regard to the Bradleys’ claim that the trial court erred in awarding liquidated damages, the facts here indicate that liquidated damage are appropriate. The Florida Supreme Court has ruled that liquidated damages are appropriate damages in a contract for sale of real estate in Florida, and they are not to be considered a penalty. Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla.1972). Such damages are “not readily ascertainable as of the time the contract is drawn.” Id. Consequently, the trial court was correct in concluding that damages from the Bradleys’ breach of the real estate contract were not readily ascertainable at the time the parties entered into it. Furthermore, forfeiture of 4.85% of the total sales price (or $510,000) as liquidated damages is not an unconscionable amount of damages. See Lefemine v. Baron, 573 So.2d 326, 328 (Fla.1991) (10% of the contract price found not unconscionable). And finally, the trial court did not err in awarding Mr. Sanchez the “unpaid” deposit of $500,000. The parties agreed that: “[i]f Buyer fails to perform this contract within time specified .... Seller may choose to retain and collect all deposits paid and agreed to be paid as liquidated damages.” Florida case law states that where a buyer defaults, deposits made or agreed to be made by the purchasers may be retained or recovered by the sellers as liquidated damages. Breaker v. Furman, 508 So.2d 514, 515 (Fla. 4th DCA 1987). Consequently, the damages awarded here by the trial court were entirely appropriate.

Finally, with respect to not allowing the Bradleys leave to amend to assert claims for unjust enrichment and conversion, the record facts establish that the damages the Bradleys complain of in their proposed unjust enrichment and conversion claims were legally recognizable liquidated damages to which the parties agreed. There are no set of facts here that would have allowed the Bradleys to prove unjust enrichment or conversion. Accordingly, the trial court was correct in denying as futile the Bradleys’ motion to amend.

In sum, the trial court did not err in granting Mr. Sanchez’s motion for summary judgment. Thus, we affirm the trial court’s order granting summary judgment in favor of Mr. Sanchez. We also affirm the trial court’s order granting Mr. Sanchez’s motion for final judgment for liquidated damages, as well as the trial court’s order denying the Bradleys’ motion for leave to amend.

Affirmed.


text:
    BUCKEYE RETIREMENT CO., LLC., LTD., Appellant, v. NASSAU LAND & TRADING CO., INC. and Nassau Commodities, Inc., and Cargo-Link, Inc., and John A. Stubbs, an individual, and Darcy Elton Stubbs, Jr., an individual, and William H. Kavanaugh, an individual, and William H. Johnson, Jr., an individual, Appellees.
    No. 1D06-2202.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Rehearing Denied Nov. 30, 2006.
    Jay S. Grife, Jacksonville, for Appellant.
    Kelly B. Mathis of Kelly B. Mathis, P.A., Jacksonville, for Appellee William H. Ka-vanaugh and interested party Anne B. Ka-vanaugh.
   PER CURIAM.

Appellant seeks review of a final order dissolving a writ of garnishment based on the conclusion that appellant had failed to rebut the presumption that the bank account garnished was intended by appellee William H. Kavanaugh and his wife to be held as a tenancy by the entire-ties and that, therefore, the account was not subject to garnishment for a debt owed by Mr. Kavanaugh individually. Appellant concedes that Kavanaugh and his wife held the account as tenants by the entireties, urging that we address another issue not reached by the trial court. What appellant apparently fails to comprehend is that, having concluded that appellant had failed to prove that the account was not held by the entireties, it was unnecessary for the trial court to reach the other issue. Because appellant failed to rebut the presumption that the account was intended to be held by the entireties, the Kavanaughs were entitled to have the writ dissolved. See Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45, 53 (Fla.2001) (“when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse”) (citations omitted). Accordingly, we affirm. Moreover, because this appeal is devoid of any arguable merit, we grant Kavanaugh’s motion for attorneys’ fees, made pursuant to section 57.105, Florida Statutes (2005). See Dunn v. Kean, 928 So.2d 383, 383 (Fla. 1st DCA 2006). We remand to the trial court, with directions that it determine the appropriate amount of fees to be awarded for Kavanaugh’s lawyers’ services in this appeal should the parties be unable to agree.

AFFIRMED and REMANDED, with directions.

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


text:
    Takoya CRINER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3139.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2006.
    Rehearing Denied Dec. 7, 2006.

      Tony L. Axam of Axam & Adams, P.A., Atlanta, Georgia and Ronald Scott Lowy, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Criner appeals his convictions and sentences for two counts of first-degree murder and one count of attempted first-degree murder. Criner raises ten issues on appeal. We affirm and only address three issues raised by appellant.

Criner argues the trial court erred when it denied his motion for judgment of acquittal. When a defendant moves for a judgment of acquittal, he “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party. Id. Contrary to Criner’s assumption, the state did not rest this prosecution on circumstantial evidence. In this case, the state presented testimony from one of the victims that Criner, without provocation, fired multiple times while shooting the victims from behind. Under the appropriate standard of review, the trial judge properly denied Criner’s motion for judgment of acquittal. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (“If the evidence is legally sufficient to support the elements of the alleged crime, the trial court has no discretion to acquit the defendant by taking the case from the jury.”).

Criner also argues the state failed to prove premeditation. At trial, the state offered evidence that Criner committed the murders with a .380 semiautomatic handgun. The state’s evidence supports an inference that Criner brought the loaded handgun to the scene of the crime. One of Criner’s victims testified that Cri-ner drank beer and played video games with the victims for thirty minutes prior to the killings. The victim testified that Cri-ner simply started shooting the victims in the absence of any provocation. Expert testimony revealed that Criner shot the victims from behind while they played video games. The evidence also indicated that, after the shootings, Criner fled to a waiting car, which then sped away. Accordingly, the state presented substantial evidence showing Criner acted with premeditation. See Dupree v. State, 615 So.2d 713, 715 (Fla. 1st DCA 1993).

Finally, Criner argues ineffective assistance on direct appeal. The grounds raised all concern strategic decisions made by defense counsel. As the claims of ineffective assistance are not apparent on the face of the record, we decline to review them. See Grant v. State, 622 So.2d 186, 187 (Fla. 3d DCA 1993). The convictions and sentences are AFFIRMED.

KAHN, BENTON, and LEWIS, JJ., concur.


author: BENTON, J.

text:
    PAVILION APARTMENTS and Claims Center, Appellants, v. William WETHERINGTON, Appellee.
    No. 1D05-3824.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Rehearing Denied Dec. 7, 2006.

      Kimberly A. Hill of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellants.
    Kara Berard Rockenbach and Kent S. Pratt of Gaunt, Pratt, Radford & Methe, P.A., West Palm Beach, for Appellee.
   BENTON, J.

We affirm the order requiring Pavilion Apartments and Claims Center to reinstate William Wetherington’s permanent total disability and supplemental indemnity benefits, with penalties and interest from the date they were suspended, and to furnish the prescribed medical benefits he seeks.

For several years, Pavilion Apartments, Mr. Wetherington’s former employer, and Claims Center, its insurer, made permanent total disability payments and furnished medical benefits necessitated by compensable accidents occurring on December 20, 1993, and April 20, 1994. On January 11, 2005, however, Pavilion Apartments and Claims Center cut off medical and indemnity benefits alike and filed two form notices of denial, one of which stated: “Carrier is suspending PTD[.] Claimant is able to work.” The other, at issue here, stated: “The claim [for medical and indemnity benefits] is denied in its entirety, pursuant to Florida Statutes 440.105 and 440.0[9].”

Following clandestine, videotaped surveillance of Mr. Wetherington’s activities over a period of some seven months, a deposition (later to be asserted as justification for cutting off benefits) took place on October 25, 2004. This deposition was an “update” in the course of proceedings Mr. Wetherington had instituted to obtain authorization for an intrathecal, morphine pump: Two authorized physicians had prescribed such a pump for relief of pain, but Pavilion Apartments and Claims Center had refused to furnish one.

On appeal, as below, Pavilion Apartments and Claims Center invoke section 440.09(4), Florida Statutes (2004), which renders an employee ineligible for workers’ compensation benefits if it is “determine[d] that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 ... for the purpose of securing workers’ compensation benefits.” § 440.09(4)(a), Fla. Stat. (2004). Section 440.105 places requirements on claimants not unlike the duty of candor an attorney owes a tribunal she is addressing. See R. Regulating Fla. Bar 4-3.3(a) (2006) (“Candor Toward the Tribunal”). Section 440.105 provides in relevant part:

(4) Whoever violates any provision of this subsection commits insurance fraud, punishable as provided in paragraph (f).
(b) It shall be unlawful for any person:
2. To present ... any ... oral statement as part of, or in support of, a claim for payment or other benefit ... knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.

§ 440.105(4)(b)(2.), Fla. Stat. (2004). Where a section 440.09 defense is raised, the “JCC is ... required to determine whether Claimant knowingly or intentionally made any false, fraudulent, incomplete, or misleading statement, whether oral or written, for the purpose of obtaining workers’ compensation benefits, or in support of his claim for benefits,” Village of N. Palm Beach v. McKale, 911 So.2d 1282, 1283 (Fla. 1st DCA 2005), and those raising the defense have the burden of proof by a preponderance of the evidence. Id.

The Workers’ Compensation Act contains no authority for the suspension of benefits based on a payor’s unilateral determination that a claimant has violated sections 440.09 and 440.105, Florida Statutes (2004). As we said in Isaac v. Green Iguana, Inc., 871 So.2d 1004, 1007 (Fla. 1st DCA 2004):

Section 440.09(4) contemplates that, before benefits may be denied pursuant to the statute, there must be a showing [and an official determination] that the claimant made “oral or written statements concerning facts material to his claim that he knew were false, misleading or incomplete at the time the statements were made.”

(quoting Village Apartments v. Hernandez, 856 So.2d 1140, 1142 (Fla. 1st DCA 2003)) (alterations omitted). The order under review observes, moreover: “Interestingly, when all benefits were denied in January, 2005, the adjuster, Laurie Sud-duth, who denied them, had neither read the Claimant’s deposition nor viewed the video surveillance.”

Here, Pavilion Apartments and Claims Center sought to prove that Mr. Wetherington made false, incomplete or misleading statements at his deposition on October 25, 2004. Appellants’ argument that the judge of compensation claims misapplied the law is wholly without merit. He recognized that disqualifying statements may be “made to health care providers, or during testimony given at depositions or the merits hearing.” Village Apartments, 856 So.2d at 1141. “[I]f, at the time he made any of the[ ] statements, [a claimant] knew they were false, incomplete or misleading, then the statements fall within the scope of section 440.105(4)(b)2., and, pursuant to section 440.09(4), result in the loss of workers’ compensation benefits.” Id. at 1142.

At the hearing in the present case, the judge of compensation claims received in evidence transcripts of the deposition testimony given by Mr. Wetherington, his doctors, and the adjusters administering his claim, along with the surveillance videotapes. Mr. Wetherington, Georgia Weth-erington, his wife, and Noel Cyr, a friend, testified in person. Following the hearing, the judge of compensation claims entered the order under review, which found that

[t]he Claimant’s deposition testimony, which was at the heart of the Employer/Carrier’s fraud defense, was truthful and consistent with his live testimony before me, although not without hesitation in some instances. I find the Claimant, his wife Georgia Wetherington and Noel Cyr to be credible witnesses, having had an opportunity to observe their demeanor while testifying, and their knowledge about that which they testified.

Responding to defense arguments below, the judge of compensation claims pointed out in the order on appeal that “[t]here were certain specific areas of testimony that the Employer/Carrier focused on which they assert constituted fraud in light of the deposition statements of the Claimant and the video surveillance admitted into evidence which I have carefully reviewed.” Addressing the “specific areas” alleged to constitute fraud, including Mr. Wetherington’s use of a cane, the judge of compensation claims reconciled, in detail, Mr. Wetherington’s deposition testimony with the videotapes, the testimony received live at hearing, and the deposition testimony of his doctors.

Like the doctors, the judge of compensation claims found nothing in the videotapes demonstrating that Mr. Wetherington had exaggerated his limitations during his deposition or that he had made any materially false statement about his activities, including the use of the cane his wife had given him. In some seven months of video surveillance, except for a single day on which — although he was not using the cane — he was either walking with an altered gait or leaning on something stationary for support, Mr. Wetherington was videotaped using his cane. The judge of compensation claims examined meticulously every “misrepresentation” Pavilion Apartments and Claims Center claimed Mr. Wetherington had been guilty of, ultimately determining that “the Claimant did not knowingly make false, fraudulent or misleading oral or written statements for the purpose of obtaining benefits.” This reflects an accurate understanding of the legal determination the lower tribunal was required to make, and amounts to a finding of ultimate fact fully consonant with the evidence of record.

All the subsidiary findings of fact in the order under review are amply supported by competent evidence, as well. Appellants’ counsel’s “strongest” argument on appeal depended on erroneously stating one key finding of fact and arguing from the misstatement in her initial brief, as follows:

The ... statements of the Claimant [during his deposition] are clearly a falsehood.
Interestingly, the Judge of Compensation Claims recognized the following:
... In deposition he testified that he used [the cane] all of the time. However, he also testified that he can walk without the cane, though not well, and can stand without the cane ... On video, the Claimant walked without [sic] the cane except for March 13, 2004. He testified that when he is not using the cane there is always something nearby for support. The video clearly shows the Claimant at times walking with an altered gait. The Claimant, during the building activity, was taking additional oral medicine in order to endure the short periods of physical activity.
The bolded finding, above, reveals that even the Judge of Compensation Claims recognized that the Claimant walked without the cane, except on one of the days that video surveillance was obtained. The remainder of the above paragraph contains the Judge of Compensation Claims’ attempt at rationalizing the Claimant’s misstatements about his use of the cane which cannot be reconciled with the surveillance.... [Mr. Wetherington] testified that he can walk without the cane, but he doesn’t.

(Emphasis in original.) Substituting “without” for “with,” appellants’ counsel blithely misstated the order under review and went on to misrepresent the order as “revealfing] that even the Judge of Compensation Claims recognized that the Claimant walked without the cane, except on one of the days that video surveillance was obtained,” (emphasis in original), thus turning the record on its head. In fact, the order under review states precisely the opposite:

BASED UPON my review of the live testimony, exhibits presented, as well as argument of counsel for the respective parties, I make the following findings:
2. There were certain specific areas of testimony that the Employer/Carrier focused on which they assert constituted fraud in light of the deposition statements of the Claimant and the video surveillance admitted into evidence which I have carefully reviewed. For instance, Claimant’s use of a cane was an issue. In deposition [Mr. Wethering-ton] testified that he used it all of the time. However, he also testified [in the same deposition] that he can walk without the cane, though not well, and can stand without the cane.
3. On video the Claimant walked with the cane except for March 13, 2004.

(Emphasis supplied.) The record also contains notes made in connection with the video surveillance by Pavilion Apartments’ and Claims Center’s own investigator, notes which make unmistakably clear that Mr. Wetherington was regularly and repeatedly seen using his cane.

To reiterate, the record fully supports the findings that the judge of compensation claims made with regard to Mr. Weth-erington’s customary use of the cane and the more general finding and conclusion that:

I find the Claimant did not knowingly make false, fraudulent or misleading oral or written statements for the purpose of obtaining benefits. The Employer/Carrier has failed to sustain their burden on the fraud defense.

We wish we could have the same confidence in the veracity and good faith of the statements in appellants’ brief written for the purpose of avoiding responsibility for benefits due an injured worker under the Workers’ Compensation Act.

Affirmed.

BROWNING, C.J. and ERVIN, J„ concur.

      . At issue at the hearing before the judge of compensation claims, Pavilion Apartments and Claims Center stipulated, was the “fraud defense” they raised — not whether Mr. Weth-erington was able to work. As for the other issue they litigated and lost below, they have not appealed the determination — based on uncontroverted evidence — that the intrathecal, morphine pump was medically necessary.

      . Mr. Wetherington’s compensable work injuries occurred'on December 20, 1993, prior to the enactment of section 440.105, which took effect on January 1, 1994, see Ch. 93-415, § 12, at 93-94, Laws of Fla., and on April 20, 1994. As amended by ch.2003-412, § 6, at 3877, Laws of Fla., section 440.09(4)(a) provides:
      An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims ... determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105.... This section shall apply to accidents, regardless of the date of the accident. For injuries occurring prior to January 1, 1994, this section shall pertain to the acts of the employee described in s. 440.105 ... occurring subsequent to January 1, 1994.
      § 440.09(4)(a), Fla. Stat. (2004); see Ch. 93-415, § 5, at 77, Laws of Fla. (creating section 440.09(4), Florida Statutes). The defense claimed Mr. Wetherington made false, incomplete or misleading statements in October of 2004.

      . Trial counsel for Pavilion Apartments and Claims Center argued to the judge of compensation claims:
      It's Mr. We[ jtherington’s own testimony at deposition on October 25, 2004 that violates this statute.
      During that deposition he was asked questions, simple questions, do you use your cane all the time,.... Response is yes, yes. The video surveillance shows differently. These are ... actually outright lies.
      But it’s followed by misstatements, it’s followed by incomplete statements. Well, I have to hold on to something.

      . The initial brief argues that the judge of compensation claims applied the wrong legal standard as evidenced by a focus on such purportedly irrelevant matters as the facts that "the Claimant did not 'violate’ the restrictions imposed by various physicians,” "the Claimant walked with an altered gait,” and "the Claimant did not tell his physicians that he could not do the activities as depicted on the surveillance tapes.” The record shows, however, that these findings — dismissed in the initial brief as "superfluous”— were in direct response to arguments Pavilion Apartments and Claims Center made below that Mr. Wetherington had misrepresented his situation to his doctors. Pavilion Apartments and Claims Center do not, incidentally, argue on appeal that the judge of compensation claims erred in rejecting the arguments they made below, then abandoned. After seeing the videotapes, Mr. Wetherington’s physicians testified that he did not misrepresent anything to them, and that he had informed them that he regularly attempted to perform several of the very household activities about which Pavilion Apartments and Claims Center were concerned — information noted in medical charts prior to the suspension of benefits.

      . Mr. Wetherington testified on deposition in response to counsel's questions with respect to his use of the cane he took with him to the deposition:
      Q I notice that you are here with a cane today.
      A Yes, ma’am.
      Q Do you use it all the time?
      A Yes, ma’am.
      Q Are you able to walk without it?
      A Not very well, and I don’t do it because
      I use it to help carry a lot of weight on it.
      Q If you don’t use your cane, is your gait altered then?
      A Yes, ma'am.
      Q Are you capable of standing without the cane?
      A I can stand for a little, yeah.

      . Mrs. Wetherington testified that her husband has difficulty sleeping at night, and has to take breaks every forty-five minutes or so when engaged in any physical activity. She testified that any time her husband did engage in physical activity, it was followed by long periods of having to lie flat, using heat to help him feel comfortable, and the pain he felt after the activity would last anywhere from hours to days or longer. She testified he has good and bad days, although the bad days had become more frequent. She also testified that she had purchased a cane — it was her idea, not a doctor’s prescription — for him to assist with his balance, comfort and confidence in walking.

      . The initial brief misrepresents the record in arguing from this false premise, see generally Thomas v. Patton, 939 So.2d 139, 142 (Fla. 1st DCA 2006) (noting, in upholding award of fees pursuant to section 57.105, Florida Statutes, that "[a]ppellant relies on such accusatory language presumably because no law supports appellant's arguments”), including in this confusing tirade:
      In further justification of the Claimant's lie about walking without the cane, the Judge found that the Claimant could stand without the cane. There is a distinction between standing and walking, although the Judge doesn’t seem to recognize it*
      [FN4] Standing means: remain upright; erect; stationary and walking means: to advance on foot; move by steps.
      Shrilly and unremittingly, die initial brief persists in this vein, reaching an unseemly and unsupported crescendo in arguing that "the Judge of Compensation Claims justified this lie [about Mr. Wetherington's use of the cane],” "failed to recognize any of this and seems to have decided to make excuses for the Claimant to justify his behavior,” and made findings appellants' counsel characterized as "ludicrous.”


author: GREEN, J.

text:
    Renato Bruno SQUINDO, Appellant, v. Olga J. OSUNA-SQUINDO, Appellee.
    No. 3D05-1616.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing Denied Dec. 20, 2006.
    Paul Morris; Linda C. Singer, Miami, for appellant.

      Perez-Abreu & Martin-Lavielle, P.A., and Andy W. Acosta, and Ana Martin-Lavielle, Coral Gables, for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   GREEN, J.

The former husband appeals a final dissolution judgment that awarded to the former wife permanent periodic alimony and a lump sum alimony award. On cross-appeal, the former wife appeals the trial court’s failure to award her retroactive alimony. We reverse the permanent alimony and lump sum alimony awards on the main appeal; the issue on the cross-appeal is thereby rendered moot.

The parties, who both hold the equivalent of high school degrees, were married in 1978. They lived in Switzerland until 1995 where the former husband was employed by his family’s music business. He earned approximately $120,000 per year. The former wife did not work outside of the home throughout the course of this marriage, which exceeded twenty five years. Two children were born of this marriage, but both had reached the age of majority and were no longer living at home at the commencement of this dissolution proceeding.

Although the parties enjoyed a lavish lifestyle in Switzerland while the former husband was employed by his family’s business, they made a joint decision to relocate to Florida in 1995. At the time, the former husband had no employment awaiting him in Florida. The parties sold their home in Switzerland in 1995 for $1.4 million and purchased a home in Pinecrest, Florida, that same year for $330,000. Their minor children were enrolled in and attended expensive private schools through their high school graduations.

Upon arriving in Miami and despite his best efforts and previous work history, the former husband was unable to secure employment comparable to that which he had in Switzerland. He eventually secured a commission-based position, but it did not yield earnings sufficient to support the family. He then started his own business, which proved unprofitable. Meanwhile, the parties continued to enjoy an affluent lifestyle and live off of their assets brought from Switzerland. Eventually, these assets were depleted and the marriage ran into trouble.

The parties separated in 2003 and the former husband filed a petition for dissolution of the marriage. They sold their only significant asset, the Pinecrest marital home, at a profit of $448,000. By agreement, the parties each initially received $113,500 from these proceeds. The remainder was held in trust. Upon resolution of the dissolution action, these remaining funds were also to be distributed equally.

When the parties separated, the former husband moved to an apartment in Gaines-ville, Florida, to be near the parties’ college-aged son. The former husband secured employment with the University of Florida at an annual salary of $33,000. According to his financial affidavit, he has a net monthly income of $1,941 and a monthly deficit of $3,340.

The former wife, on the other hand, purchased a new condominium in Miami, for $255,500. She is unemployed. Her financial affidavit shows a monthly deficit of $5,581.

At the conclusion of the dissolution trial, the trial court entered a final judgment that approved the parties’ agreement as to the distribution of their assets. In addition, the court awarded the former wife permanent periodic alimony in the amount of $1,333 per month. In finding that the former husband has the ability to pay the amount the trial court observed, among other things, that the former husband comes from a wealthy Swiss family and has the ability to seek his family’s assistance; the former husband may be entitled to a future inheritance that might form the basis for a future increase in alimony; and the alimony amount awarded would provide each party with the same net income.

The final judgment also awarded the former wife $15,000 in lump sum alimony for what the court found to be the former husband’s dissipation of marital assets. This finding was based on evidence at trial that, for several years during the course of the marriage, the former husband and the parties’ son had restored a 1966 Ford Mustang as a father/son project. The cost of this restoration project was found to be approximately $30,000 by the trial court.

The former husband takes this appeal and argues that the trial court abused its discretion in awarding permanent periodic alimony, which he has no ability to pay. He further argues that the trial court reversibly erred in awarding lump sum alimony to the former wife based upon its conclusion that he had dissipated marital assets when he expended $30,000 for the car restoration project. The former wife cross-appeals the trial court’s failure to award her permanent alimony retroactively from the date of former husband’s new employment.

As to the first issue on the main appeal, we agree with the former husband that the record evidence does not support the trial court’s conclusion that he has the present ability to pay the permanent periodic alimony amount. Permanent periodic alimony is awarded “to provide for the needs and the necessities of life to a former spouse ... [based on] the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). Here, the record fully establishes the former wife’s need for support. The record evidence, however, also affirmatively establishes the former husband’s inability to pay. Even without consideration of his monthly deficit, this award is excessive as it will consume approximately 70% of the former husband’s net monthly income. In such instances, the appellate courts in this state have found such awards to be excessive and an abuse of discretion. See Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990) (reversing permanent alimony and child support awards which consumed 79% of husband’s net pay); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980) (award requiring husband to pay over $4000 per month excessive where compliance would leave him with about $200 per month to live on without discharging any of his other responsibilities and duties); Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983) (awards which amounted to 71% of husband’s take home pay an abuse of discretion); Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982) (awards in excess of 70% of husband’s take home pay an abuse of discretion); Nicholson v. Nicholson, 372 So.2d 178 (Fla. 2d DCA 1979) (award of 86% of current take home pay an abuse of discretion). After payment of the alimony award, the former husband would have $608 per month for his sustenance.

Although the final judgment of dissolution did not explicitly impute income to the former husband, it did contain the following suggestive findings that' he is underemployed:

The Husband failed to make a good faith effort to earn a living after relocating to Miami and choose [sic] to be self-employed in a field that he had no experience rather than work a job that was beneath him. In fact, the Husband failed to seek and obtain employment until September 2004, when he was hired by the University of Florida at a low salary. The Husband previously had earned in excess of $100,000 per year more than 10 years prior when he was employed in Switzerland, yet claims the only employment he could not obtain would only pay $33,000. Additionally, even though the Husband is able to speak fluently five different languages, he limited his job search to the Gaines-ville, Florida area which has a lower standard of living, lower pay scale, and limited employment opportunities.

Contrary to the lower court’s findings, we do not believe that the record supports a conclusion that the former husband is currently underemployed. The former husband has the equivalent of only a high school education. It is generally unrealistic to expect a high school graduate to command a six figure salary in the American job market. The former husband’s ability to do so in Switzerland was probably more attributable to the fact that he was employed by his family’s business.

Moreover, the fact that the former husband has the ability to request financial assistance from his wealthy Swiss family is an irrelevant justification for this alimony award. See Thilem v. Thilem, 662 So.2d 1314 (Fla. 3d DCA 1995) (sporadic family loans deemed not reliable income for determination of alimony award); Shiveley v. Shiveley, 635 So.2d 1021, 1022 (Fla. 1st DCA 1994) (“Gifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support.”); see also Bedell v. Bedell, 583 So.2d 1005, 1005 (Fla.1991) (“For the purpose of demonstrating need in dissolution or modification proceedings, the fact that one of the parties is surviving through the largess of her family is legally irrelevant.”). The fact that the former husband may receive a future inheritance from his family is also an irrelevant consideration for his ability to pay alimony to the former wife. See McCloskey v. McCloskey, 359 So.2d 494, 496 (Fla. 4th DCA 1978) (error for trial court to include possible future inheritance when calculating wife’s net worth); Traylor v. Traylor, 214 So.2d 15 (Fla. 1st DCA 1968) (husband’s potential interest in father’s living trust is to remote and speculative to be considered as income for calculating support award).

We find that the permanent periodic alimony award in this case, which is over two-thirds of the former husband’s income, is excessive and erroneous. See Vega v. Vega, 877 So.2d 882 (Fla. 3d DCA 2004), and cases cited therein. Accordingly, we hold that it was an abuse of discretion to award alimony in an amount that exceeded the former husband’s current ability to pay. See Canakaris; Narcis v. Nanis, 707 So.2d 936 (Fla. 3d DCA 1998); Marsh v. Marsh, 553 So.2d 366 (Fla. 5th DCA 1989).

We next address the court’s lump sum alimony award. We also agree with the former husband that this award cannot be justified by a “dissipation” of marital assets. The evidence at trial reveals that during the course of the marriage, the former husband purchased a 1966 Ford Mustang for $2,800 to restore it with the parties’ son. Upon completion of this project, the former husband intended to present the car to his son as a gift.

The trial court found that the former husband spent approximately $30,000 of marital assets toward this restoration project over the course of several years. The trial court also found that when the parties were having serious financial problems, despite the expenditure, the vehicle still was not in driving condition. As a result, the court essentially concluded that the former husband dissipated $30,000 in marital assets and as a result the former wife was entitled to receive $15,000 as a lump sum alimony award.

We do not agree with the characterization of these expenditures as a dissipation of marital assets. Indeed, we view them more in the nature of an unwise expenditure. That is, although the former husband could (and should) have expended these marital funds more wisely, given his family’s other financial needs, these funds were nevertheless expended on an endeav- or within the ambit of the family.

The dissipation of marital assets has thus far been confined to a situation “where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” See Gentile, 565 So.2d at 823 (quoting Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087, 1094 (1981)). It has not been extended to imprudent investment practices by a spouse for the family’s benefit. Gentile. As the Fourth District very aptly put it in Gentile:

To allow the parties to litigate whether one spouse invested the parties’ money contrary to a “prudent man” standard entitling the other spouse to a greater share of the marital pie and economic devastation for the other spouse raises the consideration of “marital misconduct” to new and uncharted levels of fault finding. The next step of course would be to insist on a financial accounting of all of the marital years to determine which spouse was the more prudent investor and spender. We do not choose to start down such a path with this case.

Id. at 823. We likewise decline to extend the concept of dissipation of marital assets to include imprudent or unwise investment decisions made for the benefit of the family. Here the former husband’s expenditures of the marital funds were made for the benefit of the parties’ son. As such, we conclude as a matter of law, that these expenditures did not constitute a dissipation of the marital assets. The lump sum alimony award therefore must be reversed.

Given our reversal of the permanent periodic alimony award, we find it unnecessary to address the issue raised by the former wife on the cross-appeal.

In conclusion, we recognize that this was a difficult case and that the trial court may have been understandably moved by the dire financial circumstances of these parties, particularly those of the former wife. This was a case where two parties with limited educational backgrounds made the joint decision during their marriage to live far above their economic means on fixed assets that have now been depleted. It will now unfortunately cost them more to live separately and to maintain two households. “A trial court cannot really solve this common and frustrating aspect of domestic relations work but neither can the trial court order an obligor to pay more than the court has found that obligor has the ability to pay.” Marsh v. Marsh, 553 So.2d 366, 367-68 (Fla. 5th DCA 1989). Although we reverse the periodic alimony award and lump sum alimony award, we remand for the trial court’s consideration of a nominal alimony amount to the former wife and/or reservation of jurisdiction to entertain a modification motion in the future should there be a significant change in circumstances. In all other respects, we affirm the final dissolution judgment.

Reversed and remanded in part with directions and affirmed in part.

      . Prior to the marriage, the former wife had been employed as a medical transcriber and as a secretary for an airline.

      . There were no marital liabilities.

      . Indeed, the former wife presented no evidence to meet her burden of establishing that the former husband was underemployed. See Andrews v. Andrews, 867 So.2d 476 (Fla. 5th DCA 2004).


author: CORTINAS, Judge.

text:
    Alina REYES, etc., et al., Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D05-2382.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing Denied Dec. 7, 2006.
    John G. Crabtree, Key Biscayne; Ver Ploeg & Lumpkin and Brenton Ver Ploeg, Miami; and W. Stephen Lorenzo, for appellants.
    Hicks & Kneale and Richard A. Warren, Miami, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   CORTINAS, Judge.

Alina Reyes (“Reyes”) appeals from the trial court’s final summary judgment entered in favor of State Farm Florida Insurance Company (“State Farm”), finding that State Farm has no duty to defend or indemnify Emilio Plana (“Plana”) as to Reyes’ claims. We reverse.

In September 1999, Reyes’ husband, Luis Ibarra (“Ibarra”) rented an apartment from Plana. In August 2001, Ibarra notified Plana that he intended to stop renting the apartment as of September 2001. As a result, Plana and Ibarra agreed to meet at the apartment on October 1, 2001, so Ibarra could return the apartment keys and Plana could refund the security deposit.

On October 1, 2001, Plana arrived at the apartment with his fiancée and her son. Ibarra, his wife Reyes, and their son, arrived shortly thereafter. Plana and Ibarra began to argue about the return of the security deposit. Plana told Ibarra that he was keeping part of the security deposit to make repairs to the apartment.

Subsequently, Ibarra entered the bathroom. In his deposition, Plana testified that when Ibarra emerged from the bathroom he was carrying what looked like a tire iron. Plana stated that when Ibarra approached him with a metal pipe he pulled out a gun and fired three shots, all of which hit Ibarra. Plana repeatedly indicated that he did not intend to hit Ibar-ra. Rather, he claimed he intended to aim towards the wall and stop the impending attack. Notably, Plana’s deposition statements were conflicting, sometimes suggesting that he intended to shoot Ibarra.

Conversely, in her deposition, Reyes testified that Ibarra at no time had any metal weapon in his hand. Reyes claimed that Ibarra entered the bathroom to remove the toilet but did not succeed, and that as he was peacefully leaving the apartment Plana suddenly shot him in the back.

Reyes, individually and as personal representative of the estate, filed a civil complaint against Plana. In her amended complaint, Reyes brought a claim for wrongful death alleging that Plana either intentionally or negligently shot and killed Ibarra. Additionally, Reyes sued Plana for negligent infliction of emotional distress as a result of Plana shooting Ibarra in the presence of Reyes and her son.

Thereafter, State Farm, Plana’s homeowners insurer, filed an action for declaratory relief on the issue of insurance coverage and moved for summary judgment. State Farm asserted that the policy did not provide coverage for injuries sustained by Ibarra because the incident was not an “occurrence” within the meaning of the policy, and Plana “intended or expected” that bodily injury would flow from his acts.

Plana’s homeowners policy defines the term “occurrence” as “an accident” which results in bodily injury. Furthermore, the policy excludes from coverage bodily injury which is either “expected or intended by an insured,” or injury to any person or property which is the result of “willful and malicious acts of an insured.”

Relying on the deposition testimony of Reyes and Plana, the trial court entered summary judgment in favor of State Farm. Concluding that the shooting was not an accident and Ibarra’s injuries were either expected or intended by Plana, the trial court found that State Farm did not owe Plana an obligation to defend or indemnify Reyes’ claims.

Having reviewed the record below, we conclude that there remains a disputed question of fact as to whether Ibarra’s injuries were an “occurrence” within the meaning of the policy. In support of its position, State Farm relies on Landis v. Allstate Insurance Co., 546 So.2d 1051 (Fla.1989). In Landis, the Florida Supreme Court held that an intentional injury exclusion clause excluded coverage for injuries suffered by children who were sexually molested by an insured. The court unanimously rejected the insured’s argument that coverage should not be excluded because the insured did not intend harm, rather the court found that the intent to injure is inherent in the act of sexually abusing a child as a matter of law. Id.

This statement in Landis caused some confusion, and subsequently in Prudential Property and Casualty Insurance Co. v. Swindal, 622 So.2d 467 (Fla.1993), the court made clear that Landis should not be read to change the existing law. “Florida law has long recognized the general rule that tort law principles do not control judicial construction of insurance contracts.” Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 787 (Fla.2004) (explicitly rejecting the importation of “the tort law principle of ‘natural and foreseeable consequences’ into the context of an insurance policy”).

For example, in Castro v. Allstate Insurance Co., 724 So.2d 133, 134 (Fla. 3d DCA 1998), we reversed a summary judgment for an insurer where it could not be said that the insured “expected or intended to cause bodily injury” to the victim. Id. at 134. In Castro, we rejected the insurer’s claim that injury to the victim’s ear canal as a result of the victim quickly turning his head in response to the insured’s effort to tickle the victim with a radio antenna was not an “occurrence” within the meaning of the policy. See id. After reviewing the record, we concluded that the insurance policy’s exclusion clause did not apply because the evidence showed that the insured intended to touch the victim, but did not actually intend any harm. Id.

Most recently, in PCR, the Florida Supreme Court explained that the term “accident” includes not only damages resulting from unintentional acts, but also includes damages resulting from intentional acts so long as the insured neither intended nor expected the resulting damages. PCR, 889 So.2d at 788-89. Moreover, PCR rejected the tort law principle of “substantial certainty” of injury to equate with intent for purposes of construing language in an insurance policy. Id. The court held that nothing in the employer’s insurance policy suggested that the “by accident” coverage clause should be construed so narrowly as to exclude an employee’s injuries that the employer should have knoum would flow from its acts. Id.

State Farm also erroneously relies on cases where courts have inferred intent because the insured actually intended to cause some degree of bodily harm but miscalculated either the degree of injury or the identity of the victim. See, e.g., Cabezas ex. rel. Ferrer v. Fla. Farm Bureau Cas. Ins. Co., 830 So.2d 156 (Fla. 3d DCA 2002); Aetna Cos. & Sur. Co. v. Miller, 550 So.2d 29 (Fla. 3d DCA 1989); State Farm Fire & Cas. Co. v. Caldwell, 630 So.2d 668 (Fla. 4th DCA 1994); State Auto Mut. Ins. Co. v. Scroggins, 529 So.2d 1194 (Fla. 5th DCA 1988). In Miller, a physician became angry with a colleague and grabbed the stethoscope his colleague was wearing around her neck and pulled it causing her to suffer a herniated cervical disk. Miller, 550 So.2d at 30. We found that although the injury was more severe than expected, the insured intended to cause some degree of bodily harm. Id. Similarly, in Cabezas, we affirmed a summary judgment motion in favor of an insurer because the insured admitted that he intended to hit the person behind him on the mistaken belief that he was an assailant. Cabezas, 830 So.2d at 158; see also, State Farm Fire & Cas. Co. v. Marshall, 554 So.2d 504 (Fla.1989)(holding that liability coverage was precluded for an act of self-defense because the insured admitted he intended to harm the attacker).

In the instant case, Plana purchased an insurance policy that contained a specific exclusionary clause precluding coverage for “bodily injury ... which is intended or expected by the insured.” Plana’s policy did not contain a provision that excluded all injuries that directly or indirectly flow from his intentional acts. Instead, bodily injury that results from Plana’s conduct was excluded only if he either “expected or intended” to cause such injury.

Here, the question of whether Ibarra’s injuries were “intended or expected” by Plana when he fired the gun is a question of fact. If the trier of fact concludes that Plana fired the gun intending or expecting to injure Ibarra, the intentional injury exclusion would apply. Conversely, if the trier of fact finds that Plana did not intend or expect to injure Ibarra when he fired the gun, Plana’s policy would not preclude coverage and State Farm would be obligated to defend or indemnify Plana as to Reyes’ claims. See Swindal, 622 So.2d at 470-73. Accordingly, we reverse the judgment under review, vacate the related award of costs, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The estate moved to amend the complaint in the underlying tort action to allege negligence on November 9, 2004.

      . The court adopted the objective substantial-certainty test to decide the underlying tort suits in Turner v. PCR, 754 So.2d 683 (Fla.2000)(holding that an injured employee could satisfy the intentional-tort exception of the Workers' Compensation Law either by demonstrating that his employer actually intended to injure him or engaged in conduct that was substantially certain to result in injury)-


author: ROTHENBERG, Judge.

text:
    Roberto BORROTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1859.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Roberto Borroto, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

ROTHENBERG, Judge.

We grant the State of Florida’s Motion for Rehearing and/or Clarification, withdraw our previously issued opinion, and issue the following opinion correcting and clarifying our ruling.

The defendant, Roberto Borroto (“Bor-roto”), appeals the trial court’s order denying his motion to correct illegal sentences in case numbers 01-25640 and 01-26153, alleging that he has not received the appropriate court ordered credit for time served. As to these claims, we affirm as the record refutes the claims. Borroto also appeals the denial of his claim that he has not received all the credit which he asserts he is owed in case numbers 82-11444(A) and 94-20198. As we agree with the trial court that these claims were not properly before the trial court, we affirm the order denying relief and do so without prejudice for the defendant to seek administratively the time for which he contends he is entitled, and if unsuccessful and after exhausting his administrative remedies, to file a petition for writ of mandamus under the correct case numbers in the Second Judicial Circuit Court for Leon County. See Salazar v. State, 892 So.2d 545, 547 (Fla. 3d DCA 2005)(after exhaustion of administrative remedies, petition for writ of mandamus may be filed in Leon County, Florida); Stovall v. Cooper, 860 So.2d 5, 7 (Fla. 2d DCA 2003)(petition for writ of mandamus as to gain time lies against the Department of Corrections in the county wherein which the DOC keeps its headquarters, i.e., Leon County).

The record reflects that Borroto was sentenced to nine months in the Dade County jail in case number 01-25640 on July 22, 2002, and to nine months in the Dade County jail in case number 01-26153 on August 9, 2002. In each instance, the trial court ordered and the defendant received all credit for time served. The State concedes that Borroto has satisfied the sentence requirements in both cases, as he was entitled to 332 days for time served in case number 01-26153 and 337 days for time served in case number 01-25640.

Borroto, however, also claims that the time he served in each of these cases also should be applied to a 1982 conviction, which appears to be the basis for his current incarceration due to a parole violation. As Borroto claims that the Department of Corrections has failed to award him a credit for time served in this case, he is required to seek redress administratively with the Department of Corrections. After exhausting his administrative remedies, if Borroto is unsatisfied with the outcome, he may seek judicial relief by filing a petition for writ of mandamus under the 1982 case number, with the Second Judicial Circuit Court in and for Leon County, Florida. See Cordova v. State, 855 So.2d 216, 217 (Fla. 3d DCA 2003)(holding that defendant seeking credit for time served must exhaust administrative remedies within the Department of Corrections prior to seeking judicial relief); Barber v. State, 661 So.2d 355, 356 (Fla. 3d DCA 1995)(holding that after exhausting administrative remedies, if the defendant believes the Department of Corrections’ ruling is incorrect, he may file a petition for writ of mandamus in the Circuit Court for the Second Judicial Circuit, Leon County, Florida). We note that based upon the attachments to the trial court’s order, Bor-roto has sought administrative review regarding the awarding of credit for time served in the 82-11444(A) case, but made no claim regarding the time he spent in jail in 2002.

Affirmed.

      . According to "Exhibit 2” of the trial court’s order, in the grievance filed by Borroto with the Department of Corrections, he asserts that he did not receive credit for time served from April 8, 1983 to March 3, 1987, from May 10, 1995 to June 18, 1996, and from August 1994 to May 10, 1995. None of these time periods involve the time frame in which Borroto was incarcerated in case numbers 01-25640 and 01-26153.


text:
    Barbra SHEIKH n/k/a Barbra Kramn, Appellant, v. COREGIS INSURANCE COMPANY, Appellee.
    No. 3D06-768.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing Denied Dec. 14, 2006.
    Miller Webner and Dale F. Webner, for appellant.
    Demahy, Labrador, Drake, Payne & Cabeza and Pete L. Demahy, and Kenneth R. Drake, Miami, for appellee.
    Before WELLS, CORTINAS, and LAGOA, JJ.
   CORTINAS, Judge.

Appellant, Barbara Sheikh (“Sheikh”), appeals from an order granting Coregis Insurance Company’s (“Coregis”) motion for summary judgment. We reverse.

Sheikh retained Gregory Gamble (“Gamble”), a Louisiana attorney, to file suit in federal court in Miami, Florida, for an action based on the death of her husband on the high seas. In 1998, Sheikh’s case was dismissed with prejudice due to Gamble’s failure to appear at a calendar call and to respond to the court’s order to show cause why the case should not be dismissed. Suffering from a drug addiction, Gamble ignored his legal practice and was either in jail or rehabilitation programs from 1998 to 2000.

In March 1999, Sheikh filed a legal malpractice action against Gamble and his law firm in Miami-Dade Circuit Court. Gamble did not respond to the summons and complaint. As a result, in September 2003, the circuit court entered a default judgment in Sheikh’s favor in the amount of $2,173,623. The judgment remains unsatisfied.

Gamble and his law firm were insured under a malpractice insurance policy issued to them in Louisiana by the appellee, Coregis. The insurance policy provided coverage for $1,000,000 from October 1997 to October 1998. However, in January 1998, the policy had been purportedly, but defectively, cancelled by Coregis. Therefore, for purposes of this motion, Coregis stipulated that the policy should be deemed “effective” at the time of the malpractice incident.

In his deposition, Gamble admitted that he did not provide Coregis with notice of the lawsuit or the default judgment. Gamble also testified that he failed to provide Coregis with notice because he “assumed” that his policy had been cancelled, since he did not pay the premiums for some time. Gamble stated that, because of his drug addiction, he could not recall whether he received a “notice of cancellation” from Coregis in 1998.

In August 1999, five months after Sheikh filed suit, Sheikh’s counsel sent Gamble’s former secretary, Carole Nun-gesser (“Nungesser”), a letter seeking information regarding the existence, if any, of malpractice insurance. Nungesser, in her affidavit, admitted that she contacted Sheikh’s counsel and advised him that whatever malpractice insurance existed was cancelled in June 1998. Notably, Nungesser stated in her affidavit that she believed the policy had been cancelled because an employee from Gilsbar, Inc. (“Gilsbar”), the local insurance agent that issued the malpractice insurance policy to Gamble, advised her that the policy had been cancelled.

After receiving this information, Sheikh’s counsel submitted a letter to Gilsbar seeking information concerning the existence of any potential malpractice insurance coverage for Gamble. Gilsbar responded by stating'that it was their policy not to divulge the requested information. Moreover, Gilsbar did not inform Sheikh’s counsel that it was the agent for Coregis that was involved in the issuance of the policy. After refusing to disclose the existence of malpractice coverage, Gilsbar issued a letter to Coregis reporting the potential claim. Coregis did not respond to Gilsbar’s notice of a potential claim nor contact Gamble’s firm.

In September 2004, Sheikh filed an action against Coregis to enforce the default judgment. In response, Coregis filed a motion for summary judgment, which was granted by the trial court. The trial court stated in its order granting summary judgment, that it was uncontested that Coregis did not receive notice of a claim prior to the filing of this action. The court found that the insurance agent from Gilsbar advised Sheikh’s counsel that Coregis was the insurance carrier for Gamble, and that Sheikh chose not to notify Coregis regarding the claim. Additionally, the trial court found Coregis was relieved of any further liability under the policy because it was undisputed that Gamble did not rely on the purported cancellation of the policy in failing to forward notice of the suit to Coregis. Sheikh’s appeal follows.

We review orders granting summary judgment de novo. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). Summary judgment is appropriate only if, after consideration of the pleadings, depositions, answers, and affidavits, it is shown that there is no genuine issue of material fact. Id. Furthermore, in ruling on a motion for summary judgment, the court may not adjudge the credibility of the witnesses or weigh the evidence. Id. at 525 (citing Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345-46 (Fla. 3d DCA 1999)). All doubts and inferences must be resolved in favor of the non-moving party, and if the “slightest doubt” exists, then summary judgment is not available. Id. (quoting Hancock v. Dept. of Corr., 585 So.2d 1068, 1070 (Fla. 1st DCA 1991)).

In the instant case, we find that the trial court was correct in determining that the lack of notice of the underlying suit is undisputed. However, after viewing the record in the light most favorable to the non-moving party, we find that there are genuine issues of material fact that precluded the granting of Coregis’ motion for summary judgment.

The parties agree that, in the instant case, Louisiana law governs the issue of an injured third party’s rights under a policy when the insured fails to give notice of the claim. Generally, under Louisiana law, an insurer may not raise the failure of its insured to give notice of the accident or suit as a valid defense to the claim of an injured third party. Elrod v. P.J. St. Pierre Marine, Inc., 663 So.2d 859 (La. App. 5 Cir.1995). However, the parties cite to several eases which hold that a third party’s right to recover may be defeated if the insurer can prove prejudice from the insured’s failure to comply with the notice requirements of the policy. E.g., Haynes v. New Orleans Archdiocesan Cemeteries, 805 So.2d 320 (La.App. 4 Cir.2001); Lodrigue v. Cumis Ins. Soc’y, Inc., 560 So.2d 848 (La.App. 3 Cir.1990); Pomares v. Kan. City S. Ry. Co., 474 So.2d 976 (La.App. 5 Cir.1985); Hallman v. Marquette Cas. Co., 149 So.2d 131 (La. App. 2 Cir.1963).

Under the facts presented in this case, Coregis has not met its burden of proving that it has been prejudiced as a matter of law and therefore is entitled to summary judgment. Coregis alleged that Sheikh knew it insured Gamble and his firm and did absolutely nothing to communicate the claim or the lawsuit. However, contrary to Coregis’ arguments, the record reflects that Sheikh’s counsel received a letter from Gilsbar refusing to disclose Coregis as the insurer. Here, contrary to the trial court’s order, there exists, at minimum, a disputed issue of fact regarding whether or not Sheikh had knowledge of any existing malpractice insurance. Notably, the record shows that Coregis had knowledge of a potential claim by Sheikh, and its agent did nothing to disclose the existence of coverage.

Coregis also alleged that it suffered prejudice as a matter of law because a demand for payment on a default judgment had been entered against its insured without receiving any notice of the lawsuit, thereby depriving it of an opportunity to defend the action. However, here, unlike in Elrod, whether Coregis would have defended the action against Gamble remains a question of material fact that precludes summary judgment. See Elrod, 663 So.2d at 864 (finding that prior to the commencement of the action the insurer was very active in the case in providing the injured plaintiff his maintenance and cure payments on behalf of his employer, the insured). Moreover, summary judgment is also not appropriate where, as here, there exists a factual dispute concerning whether Coregis contributed to the lack of notice through an allegedly defective cancellation of the policy. See Imperial Trading Co. v. Md. Cas. Co., 153 So. 473 (La.App.1934) (finding that plaintiffs failure to give formal notice to insurer of burglary did not prevent coverage because a letter issued by the insurance broker put plaintiff under the impression that insurance was can-celled).

Accordingly, after careful consideration of the record, we find there are genuine issues of material fact that preclude summary judgment. Thus, we reverse the trial court’s order granting Coregis’ motion for summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . In the instant motion for summary judgment, Coregis did not contest that the cancellation was defective. For purposes of sum-maiy judgment, the trial court assumed that the policy was in effect at the time of the alleged malpractice.


text:
    Daniel Ricardo SALAZAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1062.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Daniel Ricardo Salazar, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.