author: ROTHENBERG, Judge.

text:
    FLORIDA WINDSTORM UNDERWRITING, etc., Appellant, v. Anil GAJWANI, et al., Appellees.
    No. 3D04-1392.
    District Court of Appeal of Florida, Third District.
    May 11, 2005.

      Colodny, Fass, Talenfeld, Karlinsky <& Abate, Maria Elena Abate, Fort Lauder-dale, and Sandy P. Fay, for appellant.
    Mintz, Truppman, Clein & Higer, and Keith Truppman, Miami; Conroy Simberg, Ganon, Krevans & Abel and Hinda Klein, Hollywood, for appellees.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Appellant, Florida Windstorm Underwriting Association (FWUA), appeals a final summary judgment entered against it in favor of plaintiffs, Anil Gajwani and Suresh Gajwani. The Gajwanis cross appeal a final summary judgment entered against them in favor of Lexington Insurance Company (Lexington). We reverse the summary judgment entered against FWUA and dismiss the cross appeal.

Anil Gajwani and Suresh Gajwani each owned a house and maintained a homeowner’s insurance policy through Lexington and a windstorm insurance policy through FWUA. The houses were located next door to each other, and both suffered “wind-driven rain” damage when Hurricane Irene struck South Florida in 1999. In the instant case, the evidence presented indicated that rain entered the respective homes through window and sliding glass door openings, and by seeping through second floor patio tiles and cracks in the stucco. The Gajwanis filed claims with both FWUA and Lexington, each of which denied their claims. FWUA denied coverage based on the wind-driven rain exclusion of its policy. Lexington denied coverage based on an exclusion in its policy which stated that it did not insure for loss caused directly or indirectly by a windstorm.

On February 1, 2000, after the incidents in question, the Florida Department of Insurance issued a bulletin regarding wind exclusion endorsements, stating, in part:

While individual policy language would have to be considered in context, the Department’s approval of wind exclusion endorsements has been predicated on the premise that the only coverage that can properly be excluded under the endorsement is that which is provided by the Florida Windstorm Underwriting Association.
The misapplication of the wind exclusion endorsement and denial of claims for structural damage caused by rain that enters a structure through an opening not created directly or indirectly by wind, appears to present an unfair trade practice, violative of Part IX of Chapter 626 of the Insurance Code, subjecting insurers to administrative fines and other appropriate administrative actions.

On August 24, 2000, FWUA issued an announcement that it would begin covering wind-driven rain damage, effective August 21, 2001. It noted that “Prior to the endorsement, the FWUA provided coverage that required the direct force of wind to cause an opening before coverage was provided. This endorsement will provide coverage to the interior portion of a building ... in the absence of damage to the exteri- or of the building that creates an opening.”

After FWUA and Lexington denied coverage, the Gajwanis each filed an action for damages against Lexington, and then amended their complaints, adding a claim for declaratory relief, and adding FWUA as a defendant. Pursuant to an agreed order, a neutral umpire was appointed to appraise the damages to the homes. The order specifically stated that by agreeing to the appraisal, the parties did not waive any coverage defenses. The lower court subsequently entered an order confirming the appraisals. Each party then filed a motion for summary judgment. The lower court held a hearing at which it concluded that FWUA was responsible for coverage because (1) it tacitly admitted by the later amendment of its policy that its wind-driven rain exclusion was inappropriate; (2) FWUA participated in the appraisal process; and (3) the exclusion is void as against public policy.

On April 28, 2004, the court entered a written order and final summary judgment in favor of the Gajwanis against FWUA, as well as an order and final summary judgment in favor of Lexington against the Gajwanis. The orders and final summary judgments were combined into one document, titled:

ORDER AND FINAL SUMMARY JUDGMENT IN FAVOR OF ANIL GAJWANI AND SURESH GAJWANI AGAINST FLORIDA WINDSTORM UNDERWRITING ASSOCIATION

and

ORDER AND FINAL SUMMARY JUDGMENT IN FAVOR OF LEXINGTON INSURANCE COMPANY AND AGAINST ANIL GAJWANI, SURESH GAJWANI AND FLORIDA WINDSTORM UNDERWRITING ASSOCIATION.

FWUA timely filed its notice of appeal on May 27, 2004. The Gajwanis did not file a notice of appeal, but instead, filed a notice of cross-appeal on October 5, 2004.

As a preliminary matter, we must examine the validity of the cross-appeal. The cross-appeal seeks to reverse the summary judgment entered in favor of Lexington against the Gajwanis, asserting that if this court determines that the Gajwanis’ damages are not covered under the FWUA policy, then they must be covered under the Lexington policies. Lexington has moved to dismiss the cross-appeal, arguing that it is, in fact, not a cross-appeal, but rather an untimely appeal from a separate and different judgment than that appealed by FWUA. We agree with Lexington, based on our decisions in Breakstone v. Baron’s of Surfside, Inc., 528 So.2d 437 (Fla. 3d DCA 1988) and Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So.2d 1058 (Fla. 3d DCA 1981).

In Webb, Webb, PDM Hyrdrostorage, and Federal Insurance Company were co-defendants in a lawsuit. Id. at 1059. Webb cross-claimed against PDM and Federal alleging breach of contract, and PDM and Federal cross-claimed against Webb seeking indemnification for legal costs incurred in defending the suit against the plaintiff. Id. The trial court entered a final summary judgment against Webb in favor of PDM and Federal on the breach of contract claim. On the same day, the trial court entered a final judgment in favor of PDM and Federal against Webb on their indemnity claim. Id. Webb timely appealed the judgment entered against it. Id. After the time for filing an appeal had passed, PDM and Federal filed a notice of cross-appeal seeking review of the judgment entered against them. Webb moved to dismiss the cross-appeal, and we granted the motion. We explained:

The rule allowing for a cross-appeal contemplates an appeal from the same judgment from which the original appeal is taken.... The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appellee, does not completely accord the relief to which the appellee believes itself entitled. It is not the function of a cross-appeal to seek review of a distinct and separate judgment, albeit rendered in the same case below, favorable to the appellant.

Id. at 1059-60.

In Breakstone, two defendants appealed a final judgment entered against them, and the plaintiff attempted to cross-appeal an order denying its motion for attorney’s fees. 528 So.2d at 438. We granted the defendants’ motion to dismiss the cross-appeal, quoting the above statement from Webb, and further explaining:

This court’s jurisdiction to entertain an appeal is invoked solely by the notice of appeal which must timely seek review of an appealable trial court order or orders .... The notice of cross appeal, on the other hand, is not a jurisdiction-invoking document, but instead is in the nature of a cross assignment of error .... It therefore follows that the cross appeal must necessarily “piggy back” jurisdictionally on the notice of appeal, and is, accordingly, confined to those trial court orders or rulings adverse to the appellee which either “merge” into or are an inherent part of the order or orders which are properly under review by the main appeal....

Id. at 439.

Following our decisions in Webb and Breakstone, the First District Court of Appeal decided Sun Bank of Gainesville v. O’Steen Brothers, Inc., 634 So.2d 262 (Fla. 1st DCA 1994). That case involved an action against Sun Bank and the Florida Board of Regents. The trial court entered a single final summary judgment in favor of the plaintiff against Sun Bank and in favor of the Board of Regents against the plaintiff. Sun Bank appealed the judgment entered against it in the plaintiffs favor, and the plaintiff cross-appealed the judgment entered against it in the Board of Regents’ favor. The Board of Regents moved to dismiss the cross-appeal, relying on Webb and Breakstone. However, the First District Court of Appeal distinguished Webb and Breakstone because they both involved two separate judgments, while Sun Bank involved a single judgment disposing of two separate claims. It, therefore, denied the motion.

We respectfully disagree with the reasoning of the First District Court of Appeal. We do not believe that whether separate claims are disposed of by one order or two should determine whether a cross-appeal is appropriate. In Webb, the lower court, which entered two final summary judgments on the same day in two separate orders, 397 So.2d at 1059, could just as easily have issued them in a single order. Similarly, in Sun Bank, and in the instant case, the lower court could have entered two separate orders disposing of the two separate claims, rather than combining them into one order. Whether the lower court happens to issue one order or two when disposing of multiple claims should not determine our jurisdiction to entertain a cross-appeal.

Instead, we believe that the principles set forth in Webb and Breakstone are controlling. Under those cases, a cross-appeal is appropriate if it seeks to review an order or judgment that is merged into or is an inherent part of the order or judgment properly under review by the main appeal. Breakstone, 528 So.2d at 439. However, a cross-appeal is not appropriate if it seeks to review an order or judgment that is separate and distinct from the order or judgment under review by the main appeal. Webb, 397 So.2d at 1059-60. We do not believe that the judgment entered against the plaintiff in this case in favor of one defendant, is an inherent part of the order entered against the other defendant in favor of the plaintiff. We believe that they are separate and distinct judgments, even if they happen to be combined into one document.

We, therefore, conclude that we do not have jurisdiction to consider the Gajwanis’ cross-appeal of the judgment entered against them in favor of Lexington, and hereby dismiss the Gajwanis’ cross-appeal. If we had jurisdiction to consider the cross-appeal, we would nevertheless affirm, for the same reasons that we reverse the judgment entered against FWUA, which we will now discuss.

The standard of review of a summary final judgment is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002). Summary judgment is proper only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id.

In determining whether the trial court erred in granting summary judgment against FWUA, we first examine the relevant exclusionary language of the policy. The wind-driven rain exclusion states:

We will not pay for loss or damage to the interior of any building or structure, or the property inside the building or structure, caused by rain, snow, sleet, sand or dust whether driven by windstorm or not, unless the direct force of Hurricane, other Wind, or Hail damages the building or structure causing an opening in the roof or wall and the rain, snow, sleet, sand or dust enters through this opening.

The only evidence presented below was that the rain which entered the Gajwanis’ homes was driven through window and sliding glass door openings, and seeped through second floor patio tiles and cracks in the stucco. The Gajwanis conceded that they could not offer any evidence of entry through openings in the roof or walls caused by Hurricane Irene. The FWUA policy clearly and unambiguously excludes coverage for the type of damage suffered by the Gajwanis. As the insured has the burden to prove an exception to an exclusion contained within an insurance policy, see LaFarge Corp. v. Travelers Indemnity Co., 118 F.3d 1511, 1516 (11th Cir.1997); Hudson Ins. Co. v. Double D Management Co., Inc., 768 F.Supp. 1542, 1545 (M.D.Fla.1991), and the Gajwanis did not offer any evidence to support an exception to the unambiguous exclusion in the policy, they clearly did not meet their burden.

The Lexington policy also clearly and unambiguously excludes coverage for the damage suffered by the Gajwanis, stating:

We do not insure for loss caused directly or indirectly by:
a. The peril of windstorm or hail; or
b. The peril of windstorm during a hurricane.

Therefore, the damages suffered by the Gajwanis were not covered under either of their insurance policies.

Notwithstanding the clear and unambiguous language of the policy, the lower court found that FWUA was responsible for covering the Gajwanis’ damage because FWUA later amended its policies to cover wind-driven rain damage, FWUA participated in the damage appraisal of the Gajwanis’ homes, and the wind-driven rain exclusion is against public policy. As to FWUA’s subsequent amendment to its policies, we agree with FWUA that the fact that it modified its policies to delete the wind-driven rain exclusion nearly a year after the loss in question is irrelevant to the case at issue, as the lower court was required to consider the plain language of the policy at the time of the loss. As to FWUA’s participation in the appraisal process, such participation does not require it to cover the Gajwanis’ damage, as the order appointing an appraisal umpire specifically stated that by agreeing to the appraisal, the parties did not waive any coverage defenses. See State Farm Fire and Cas. Co. v. Licea, 685 So.2d 1285 (Fla.1996).

The lower court’s finding that FWUA’s wind-driven rain exclusion violates public policy requires additional analysis. The court should not strike down a contract, or a portion of a contract, on the basis of public policy grounds except in very limited circumstances. As stated in Banfield v. Louis, 589 So.2d 441 (Fla. 4th DCA 1991):

When a particular contract, transaction, or course of dealing is not prohibited under any constitutional provision, statutory provision, or prior judicial decision, it should not be struck down on public policy grounds unless it is “clearly injurious to the public good” or “eontra-vene[s] some established interest of society.”
Courts, therefore, should be guided by the rule of extreme caution when called upon to declare transactions void as contrary to public policy and should refuse to strike down contracts involving private relationships on this ground, unless it be made clearly to appear that there has been some great prejudice to the dominant public interest sufficient to overthrow the fundamental public policy of the right to freedom of contract between parties sui juris.

(quoting Bituminous Casualty Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101-02 (1944)) (emphasis added in Banfield).

In the instant case, the lower court found that the wind-driven rain exclusion violated public policy because “the one and only reason” that FWUA was created by the legislature was “to give people windstorm coverage, in a place where windstorms, through hurricanes, come up reasonably often.” However, there is nothing in the statutory language of 627.351(2), Florida Statutes (2004), the section that created FWUA, which suggests that the legislature intended or mandated that wind-driven rain coverage must be included in all FWUA issued policies, or that there must exist as a matter of public policy in this state, seamless windstorm coverage for all types of windstorm-caused losses. We find that, in the absence of a clear public policy directive in the language of the statute, it is not our function to extend coverage for wind-driven rain damages to those whose insurance policies exclude such coverage. See Campbell v. Kessler, 848 So.2d 369, 371 (Fla. 4th DCA 2003) (noting that courts have no authority to interpret a statute in such a way as to extend its express terms or its reasonable and obvious implications). In fact, 627.4025(2)(a), Florida Statutes (2004) seems to contemplate a wind-driven rain exclusion, by providing that:

“Hurricane coverage” is coverage for loss or damage caused by the peril of windstorm during a hurricane. The term includes ensuing damage to the interior of a building, or to property inside a building, caused by rain, snow, sleet, hail, sand, or dust if the direct force of the windstorm first damages the building, causing an opening through which rain, snow, sleet, hail, sand, or dust enters and causes damage.

(emphasis added). Accordingly, we conclude that FWUA’s wind-driven rain exclusion is not void as against public policy, and we reverse the summary judgment entered against FWUA in favor of the Gajwanis.

Reversed and remanded with instructions to enter judgment in favor of FWUA. Cross-appeal dismissed.

      . The Gajwanis argue that there can be no gap in their windstorm coverage so that either FWUA or Lexington must cover their wind-driven rain damage. If we agreed with that argument, we might also agree that the judgments would be inherently related, because the outcome of one judgment would necessarily depend upon the outcome of the other. However, as explained below, we reject the argument that there can be no gap in the Gajwanis' windstorm coverage.

      . The section sets forth a framework to provide windstorm coverage to those "who in good faith are entitled to, but are unable to procure, such coverage through ordinary means....” 627.351(2), Florida Statutes (2004).


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    Donald Michael BITZ, Appellant, v. Jean Seipp BITZ, Appellee.
    No. 3D04-2249.
    District Court of Appeal of Florida, Third District.
    July 6, 2005.
    Rehearing Denied Sept. 12, 2005.

      Greenberg Traurig, P.A., Fort Lauder-dale, and Arthur J. England, Jr. and Lisa L. Jama, Miami, for appellant.
    Kubicki Draper, and Angela C. Flowers, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal from a non-final order of the circuit court finding a portion of the parties’ marital settlement agreement to be ambiguous and ordering the division of real property. We have jurisdiction. Art. 5, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.130(3)(C)(ii). We affirm in part, reverse in part, and remand.

Donald Michael Bitz (the former husband) and Jean Seipp Bitz (the former wife) were married for nineteen years. During them marriage, the couple acquired a total of 7.98 acres of contiguous land in South Miami. The property was purchased over several years in approximately one-acre increments. The former wife filed for dissolution in February 2003, and on October 10, 2003, the parties signed a comprehensive marital settlement agreement which included a division of real property. The division of property is found in paragraph 8, which states in pertinent part:

8 ... (a) The Wife will receive by Special Warranty Deed the real property consisting of the approximately Northern five acres of the marital property commonly known as [address omitted], Miami-Dade County, Florida.... It is understood that the five acres is a part of a total of approximately eight acres of land, situated at the marital residence address. The Wife agrees to pay for the cost of the construction of a 6 to 8 foot high from ground level (as measured every three feet) wall constructed of concrete block and stucco, which will separate the five acres to be received by the Wife, (the “five acre parcel”) from the three acres which is going to be retained and received by the Husband (the “three acre parcel”). The wall shall be constructed on the five acre parcel of land being deeded to the Wife and may abut up against the property line of the three acre parcel.

(Emphasis added).

The phrases “five acre parcel” and “three acre parcel” are used throughout the remaining portions of paragraph 8 of the agreement. The agreement is silent regarding a precise definition of the “three acre parcel” or the “five acre parcel.”

On January 14, 2004, the former wife filed her “Urgent Motion to Enforce Marital Settlement Agreement and Final Judgment of Dissolution of Marriage” because the former husband was allegedly interfering with her ability to construct the dividing wall as specified in the agreement. On March 24, 2004, the circuit court held a hearing on the motion which, in a commendable effort to efficiently resolve the dispute, evolved into a case management conference.

At the status conference, both parties conceded that a threshold issue concerning the division of the property was whether paragraph 8 is ambiguous, and agreed to have this question resolved by the court. See also Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564, 565 (Fla. 1st DCA 2000) (“[T]he existence of ambiguity in a contract is a question of law.”). The circuit court concluded that paragraph 8 is ambiguous with respect to how many acres of land each party is to receive under the agreement. We agree. See generally Montealegre v. Banco De Credito Centro-Americano, S.A., 895 So.2d 1097 (Fla. 3d DCA 2004).

The settlement agreement, on its face, contemplates the distribution of “approximately eight acres” of land where in fact there is only 7.98 acres of land. Accordingly, it is impossible for the former husband to receive the full three acres to which he believes he is entitled and for the former wife to receive the full five acres to which she believes she is entitled. Looking beyond the four corners of the agreement and in light of there actually being only 7.98 acres of land, either the former wife can receive five full acres, with the former husband receiving the remaining 2.98 acres, or, the former husband can receive three full acres, with the former wife receiving the remaining 4.98 acres. Obviously, the former wife prefers the former and the former husband prefers the latter. At least one of the parties will go unsatisfied.

As the circuit court duly noted, the language used in the settlement agreement to describe the property is not at all clear. Rather than provide a specific legal description of the property to be conveyed, either by describing metes and bounds, lots and blocks with a plat book and page, or some other precise manner, the agreement uses nebulous phrases such as “approximately Northern five acres,” “approximately eight acres,” and “retained three acres.” Given the language used in the settlement agreement, we disagree with the former husband that the agreement is unambiguous and should be read to give him three full acres. Accordingly, we affirm that portion of the circuit court’s order finding the agreement to be ambiguous. Miller v. Ease, 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001) (a contract is ambiguous when its language is susceptible to two different interpretations each of which is reasonably inferred from the terms of the contract); State Farm Fire & Cas. Co. v. De Londono, 511 So.2d 604 (Fla. 3d DCA 1987), rev. dismissed, 519 So.2d 988 (Fla.1987) (same).

However, in the order on appeal — • entered four months after the status conference as a result of the parties’ delay in submitting briefs to the court — the circuit court exceeded its charge as agreed upon by the parties at the status conference, and issued an order dividing the property based upon land surveys submitted by the parties and by examining previous land transactions that had been submitted for the sole purpose of resolving the question of ambiguity of. the marital settlement agreement. The former husband and the former wife agree that the circuit court erred by not holding an evidentiary hearing to resolve the ambiguity. We concur. See State Farm, 511 So.2d at 604 (“where the terms of a written instrument are disputed and are reasonably susceptible to more than one construction, an issue of fact is presented”); see also Hinton v. Gold, 813 So.2d 1057, 1060 (Fla. 4th DCA 2002) noting that (“[fundamental to the concept of due process is the right to be heard which assures a full hearing, the right to introduce evidence at a meaningful time and in a meaningful manner, and judicial findings based upon that evidence”). Because it was not done pursuant to an evidentiary hearing, we vacate that portion of the circuit court’s order determining how the marital property is to be divided and remand for an evidentiary hearing.

Finally, the circuit court ordered the exchange of deeds in accordance with its distribution of the marital property. The settlement agreement contemplates the exchange of deeds following the completion and governmental approval of the separating wall, and the former wife did not ask for that portion of the settlement agreement to be altered in her motion. Accordingly, we vacate that portion of the circuit court’s order which specifies the exchange of deeds.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.


author: PER CURIAM.

text:
    COSTA CROCIERE, S.P.A., Prestige Cruises N.V., Cruise Ships Catering and Services, International N.V., Costa Cruise Lines N.V., L.L.C., Costa Cruise Lines, Inc., and Carnival Corporation d/b/a Carnival Cruise Lines, Appellants, v. Ricardo ESCOBAR, Appellee.
    No. 3D04-1016.
    District Court of Appeal of Florida, Third District.
    July 27, 2005.

      McAlpin & Brais, P.A., Miami, and Richard J. McAlpin, and Barbara J. Conner, Fort Myers; Robert S. Glazier, Miami, for appellants.
    Rebecca B. Watford, Miami, for appel-lee.
    Before GREEN, SHEPHERD, and C0RTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.061(g); Wedge Hotel Mgmt., (Bahamas), Ltd. v. Meier, 868 So.2d 552, 552 (Fla. 3d DCA 2004)(‘Wedge’s motion to dismiss for forum non conveniens was not filed until May 6, 2002, well past the sixty day time limit of 1.061(g). As Wedge’s motion was untimely under the plain language of 1.061(g), we need not address the merits of the arguments raised in the motion.”).


author: RAMIREZ, J.

text:
    Lazaro PADILLA, et al., Appellants, v. LIBERTY MUTUAL, etc., and Urban Ins., etc., Appellees.
    Nos. 3D01-2526, 3D01-1187.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2005.
    Diane H. Tutt, Fort Lauderdale, and Sharon C. Degnan, Miami, for appellants.
    Conroy, Simberg, Ganon, Krevans & Abel, and Brian P. Knight, and Doreen E. Lasch; and Akerman, Senterfitt & Eidson, and Nina K. Brown, and Mark S. Shapiro, and Jennifer Cohen Glasser, Miami, for appellees.
    S. Marc Herskovitz, Tallahassee, as ami-cus curiae for the Department of Insurance.

      Shutts & Bowen, and Frank A. Zacherl, and Joey E. Schlosberg, Miami, as amicus curiae for Geico Indemnity Co.
    Before RAMIREZ, and ROTHENBERG, JJ, and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

In this consolidated appeal, Lazaro Padilla and Eloy Rivero appeal two orders of dismissal without prejudice of their putative class actions suits filed against their respective insurance carriers, appellees Liberty Mutual Insurance Company and Urban Insurance Company of Pennsylvania, in which they sought payment pursuant to their Personal Injury Protection benefits for medical treatment automobile transportation costs.

We withdraw this Court’s opinion rendered July 23, 2003 in Padilla v. Liberty Mut. Ins. Co., 870 So.2d 827 (Fla. 3d DCA 2003), substitute this opinion in its stead, and affirm the trial court’s dismissal because the issue of whether the travel reimbursement rate for the insureds’ medical treatment automobile transportation costs was reasonable is a determination which the trial court was not authorized to make.

FACTUAL AND PROCEDURAL BACKGROUND

Liberty Mutual and Urban Insurance paid the insureds’ automobile transportation costs at a mileage rate of 32.5 cents per mile as travel benefits. The insureds alleged in their complaints, however, that they were entitled to be paid more than 32.5 cents per mile for their medical treatment transportation costs. The trial court determined that the 32.5 cents per mile reimbursement rate was reasonable as a matter of law.

The insureds then appealed to this Court. Padilla also petitioned the Department of Insurance (DOI) for declaratory relief, but the DOI dismissed the petition. Padilla subsequently appealed the dismissal order to the First District Court of Appeal which affirmed the dismissal in Padilla v. Liberty Mut. Ins. Co., 832 So.2d 916, 920 (Fla. 1st DCA 2002), stating, in part, that the DOI has no authority to set the mileage reimbursement rates, and that it is for the courts to decide on a case by case basis.

Following the disposition of the First District case, this Court issued its opinion in Padilla v. Liberty Mut. Ins. Co., 870 So.2d 827, 829 (Fla. 3d DCA 2003), stating that this Court fully agreed with the Fourth District Court in Malu v. Security Nat’l Ins. Co., 848 So.2d 373 (Fla. 4th DCA 2003) (holding that automobile transportation expenses, such as those sought here, are not included in the Florida PIP statute). This Court thus held, in part, that (a) section 627.736(1)(a), Florida Statutes, does not provide for the payment of the automobile transportation expenses, and (b) if the legislature deems it appropriate to provide for such benefits under the PIP statute, it could do so specifically, and if so, it can also provide the DOI with rulemak-ing authority to determine the appropriate rate for such benefits. Padilla, 870 So.2d at 829. Accordingly, this Court affirmed the dismissal orders, and certified conflict with Hunter v. Allstate Ins. Co., 498 So.2d 514 (Fla. 5th DCA 1986)(holding that automotive transportation expenses are covered under section 627.736(1)(a)). Id.

The Florida Supreme Court subsequently held that the current PIP statute requires reimbursement for transportation costs incurred in connection with medical treatment that is reasonably medically necessary. See Malu v. Security Nat’l Ins. Co., 898 So.2d 69, 76 (Fla.2005). The Court quashed the Fourth District’s decision in Malu, quashed this Court’s decision in Padilla, approved the holding and rationale of the Fifth District in Hunter, and remanded both Malu and Padilla to the respective district courts for further proceedings in accordance with its decision. Id.

Against this background, we now turn to the issues raised in these cases. The insureds request that we determine whether the travel mileage reimbursement rate of 32.5 cents per mile is representative of a fair, just, and reasonable rate. In our view, this determination constitutes a legislative, rather than a judicial function, which we cannot perform.

LEGAL DISCUSSION

We are first mindful of the doctrine of primary agency jurisdiction which formed an independent basis for dismissal below. Primary jurisdiction, however, is no longer an issue in this case. The DOI has already indicated in its order of dismissal that it will abide by this Court’s decision on the issue of primary jurisdiction.

Secondly, the distinction between the function of the legislature and the judiciary is well defined. The legislature prescribes rates and the judiciary determines whether an existing rate is fair, just, and reasonable. As the Florida Supreme Court stated, within the realm of public utilities for example, the power of the courts “is confined to the determination of whether a given rate is a reasonable rate, and the rate made by the legislature or a commission set up by the legislature may be set aside by the courts if such rate is found to be an unreasonable rate.” See Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438, 445-46 (1943).

Furthermore, Florida law recognizes that certain transportation expenses incurred are reimbursable as a medical benefit. In accordance with the Florida Motor Vehicle No-Fault comprehensive statutory scheme and under section 627.736(1)(a), Florida Statutes (2003), each insurance policy must provide for personal injury protection benefits, including “medical benefits” which are at issue in this case. Transportation expenses incurred are reimbursable as a medical benefit provided that such expenses arose in connection with reasonable and necessary medical care and treatment. See Hunter v. Allstate Ins. Co., 498 So.2d 514 (Fla. 5th DCA 1986) (interpreting reasonable and necessary expenses to include the transportation costs for medical treatment when using a private automobile). See also Swantek v. Auto. Club of Mich. Ins. Group, 118 Mich.App. 807, 325 N.W.2d 588, 590 (1982)(holding that transportation expenses incurred by an insured for the purpose of obtaining medical treatment were recoverable); Allstate Ins. Co. v. Smith, 879 P.2d 458, 459 (Colo.App.1994)(holding that reimbursement for reasonable and necessary transportation expenses incurred in obtaining authorized medical services must be allowed). The purpose of the Florida PIP statute, sections 627.730-627.7405, is:

[T]o provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits, for motor vehicles required to be registered in this state, and with respect to motor vehicle accidents, a limitation on the right to claim damages for pain, suffering, mental anguish, and inconvenience.

§ 627.731, Fla. Stat. (2003).

In Florida, however, there is no uniform rate of reimbursement applicable to the use of a personal transportation vehicle to seek medical care and treatment. In essence, the insureds- request that this Court establish such a rate and'ultimately determine whether the reimbursement rate here is indeed reasonable. If we- were to make such determinations, however, it would amount to “judicial legislation,” and we decline to do so.

As the Florida Supreme Court stated in Main, consistent with the legislative purpose underlying the PIP statute and the Fourth District Court’s decision in Hunter, the Florida PIP statute requires the reimbursement of transportation costs incurred as a result of medical treatment that is reasonably medically necessary. See Malu, 898 So.2d at 76. Hunter, however, only authorizes the payment of medical travel expenses as a reimbursable benefit under the PIP statute, - but it does not address the question of what rate is a reasonable one as a matter of lawi

Liberty Mutual could have made specific mileage computations based upon the type of vehicle used by its various PIP claimants. That it selected 32.5 cents per mile does not mean that everyone spent the same amount of transportation costs. The insurer simply selected this sum for its own administrative convenience. This would not prevent an individual insured from complaining if his or her expenses exceeded such a sum.

Padilla, however, is not complaining that his transportation costs exceeded Liberty Mutual’s mileage payments. He is instead seeking declaratory relief under a class action to set a different mileage rate applicable to all members of the class, regardless of their form of transportation. The plaintiff class would seek to do this using statistics compiled by the American Automobile Association. Under this scenario, a jury would ostensibly hear testimony and thereafter promulgate a flat rate per mile based upon what the jury determined was reasonable to reimburse the plaintiffs for their transportation expenses incurred in their use of their private vehicles, without regard to the type of vehicle used. This is clearly a legislative endeavor. We believe it is inappropriate for juries to legislate a specific rate as reasonable in all cases.

CONCLUSION

For these reasons, the issue of whether the 32.5 cents constitutes a proper rate of reimbursement is one for the Florida Legislature and not the judiciary. We further decline to address all other issues raised.

Affirmed.


text:
    Zari OLMO, Appellant, v. Vincent Joseph GRAHAM, Appellee.
    No. 3D04-1309.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2005.
    Zari Olmo, in proper person.
    Elizabeth Merceret, for appellee.
    Before FLETCHER, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

After careful review we can find no reason to reverse the trial court’s order.

Affirmed.


text:
    Sheldon W. HEPBURN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-533.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2005.
    Sheldon W. Hepburn, in proper person.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

On April 13, 2005, in conjunction with our denial of appellant Sheldon Hepburn’s fifth motion to correct illegal sentence, we ordered him to show cause why he should not be prohibited from filing further pro se proceedings with this court concerning his March, 23, 1998 conviction and sentence for home invasion robbery, kidnapping, and armed burglary with an assault or battery in lower court case numbers 97-28660 and 97-28661. We have carefully considered appellant’s response to the court’s show cause order, see State v. Spencer, 751 So.2d 47 (Fla.1999), and, concluding that good cause has not been shown, now prohibit appellant from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

I. Facts

On March 23, 1998, Hepburn pled nolo contendere to two counts of armed home invasion robbery, two counts of kidnapping with a weapon, and one count of armed burglary with an assault or battery. The offenses occurred in March 1997. In exchange for his plea, Hepburn was sentenced to 17.4 years on each count to run concurrently, with a fifteen-year mandatory minimum on each count because of his status as a habitual violent felony offender. Each of the five charges had a maximum penalty of life imprisonment. Since then, Hepburn has been a frequent return visitor to our court and the court below, which we believe justifies the action we are now taking. A brief history of Hepburn’s multiple appellate filings since he was found guilty and the disposition thereof is necessary.

II. Post-Conviction Relief

Beginning in September 1998, Hepburn began seeking post-conviction relief. That month, Hepburn filed his first Florida Rule of Criminal Procedure 3.850 motion arguing a double-jeopardy violation and ineffective assistance of counsel for failure to object to illegal sentencing as a habitual violent felony offender. Hepburn’s double-jeopardy claim was found to have merit and relief was granted, while his ineffective assistance claim was denied and later affirmed on appeal by this court. Hepburn v. State, 730 So.2d 688 (Fla. 3d DCA 1999) (table). Although Rule 3.850(c)(4) precludes the filing of additional Rule 3.850motions without a statement of “the reason or reasons the claim or claims ... were not raised in the former motion,” see Spaziano v. State, 545 So.2d 843, 844 (Fla.1989) (“[ujnless petitioner shows the justification for failure to raise the present issue in the first petition, the second successive petition pursuant to Florida Rule of Criminal Procedure 3.850 may be dismissed as an abuse of procedure”), Hepburn filed three additional petitions within the two-year period in which Rule 3.850 petitions generally may be filed. On April 26, 1999, Hepburn filed his second Rule 3.850motion, arguing that he did not burglarize a structure because entry was made with the owner’s consent. That motion was denied and later affirmed by this court. Hepburn v. State, 737 So.2d 1097 (Fla. 3d DCA 1999) (table). On December 7, 1999, Hepburn filed his third Rule 3.850 motion, arguing that: 1) moving a person from a living room to a bedroom is not kidnapping; 2) his entry to the structure was with consent; and 3) he was illegally sentenced as a habitual violent felony offender. The second point raised by this motion was identical to that previously denied in his second Rule 3.850 motion, the third point identical to that denied in his first such motion. The third motion ultimately was denied and the denial affirmed by this court. Hepburn v. State, 750 So.2d 157 (Fla. 3d DCA 2000) (table).

On March 16, 2000, Hepburn filed his fourth Rule 3.850 motion, arguing that the circuit court should not have accepted his plea because the evidence only showed that:

during the course of the armed home invasion robbery and armed burglary [the victims] were confined by the defendant and his confederates by simply holding them at gunpoint, they were moved from the kitchen area to the bedroom and were told to lie on the floor and that their confinement ended once the robbery had ceased.

The point raised and argument made in this motion are nearly identical to the first issue raised and denied in his third Rule 3.850motion. This fourth Rule 3.850 motion was denied and later affirmed by this court. Hepburn v. State, 764 So.2d 594 (Fla. 3d DCA 2000) (table). Although it is apparent from just a cursory consideration of the issues raised in these subsequent Rule 3.850 motions that, at least taken together, they constitute an “abuse of procedure” by defendant, nevertheless the lower court and this court treated them on the merits.

As the two-year time limit for filing Rule 3.850 motions came to an end, defendant began filing Rule 3.800(a) motions. On July 12, 2000, Hepburn filed his first Rule 3.800(a) motion, alleging that his designation as a habitual violent felony offender, which he had already challenged in his first and third Rule 3.850 motions, was illegal under Heggs v. State, 759 So.2d 620 (Fla.2000). This motion was denied and affirmed by this court. Hepburn v. State, 778 So.2d 448 (Fla. 3d DCA 2001). Hepburn also sought a writ of mandamus from this court to compel the trial court to rule on a “combination Rule 3.850 and Rule 3.800 motion.” The petition for mandamus was dismissed as moot. See id.

On February 20, 2001, Hepburn filed his second Rule 3.800(a) motion arguing, as he also did in his first and third Rule 3.850 and first Rule 3.800(a) motions, that counsel was ineffective for failing to properly object to the state’s attempt to seek a habitual offender sentence enhancement. The motion was denied and affirmed on appeal to this court. Hepburn v. State, 783 So.2d 265 (Fla. 3d DCA 2001) (table).

During the summer of 2001, and again during the summer of 2002, Hepburn filed his third and fourth Rule 3.800(a) motions — both arguing that he was illegally sentenced as a habitual violent felony offender. As can be gleaned by reference to our description of his earlier filings, these were the fourth and fifth times respectively that defendant raised this issue. These motions were, of course, denied. We are unaware of any appeals taken from these denials. The most recent appeal from his fifth Rule 3.800(a) motion attacked his ha-bitualization as a violent felony offender for yet a sixth time. The circuit court again denied the motion as successive in a written order attaching a prior order reflecting one of the instances where the identical issue had been previously raised. Not getting the message, Hepburn appealed the denial to this court and we, of course, again summarily affirmed. Hepburn v. State, 792 So.2d 464 (Fla. 3d DCA 2001) (table). Our order to show cause grows out of this transparent post-conviction progression.

III. Frivolous Appeals by Prisoners

In the six years following his plea, Hepburn has filed ten post-trial motions: four Rule 3.850 motions, five Rule 3.800 motions, and one petition for writ of mandamus. Except for the initial Rule 3.850 motion, his motions have been without merit. Six of them have been at least partially successive. During the eighty-eight months that have passed since Hepburn’s March 23, 1998 plea and sentence, he has been seeking to overturn or ameliorate the fate he voluntary accepted on that March day for eighty-two of those months.

We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations. See State v. Spencer, 751 So.2d 47, 49 (Fla.1999) (citing Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998)); Attwood v. Singletary, 661 So.2d 1216, 1217 (Fla.1995); Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress, of any injury.... ”). On the other hand, there is no constitutional right to file a frivolous lawsuit. See Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim [ ] deprives him of nothing at all, except perhaps the punishment of [ ] sanctions.”). Activity of this type not only wastes public resources, but also diminishes the ability of the courts to devote their finite resources to the consideration of legitimate claims. See Spencer, 751 So.2d at 48.

Because of the potential for waste and abuse, the legislature recently has admonished the judiciary that “it is the Legislature’s intent that all terms and conditions of direct appeal and collateral review [shall] be strictly enforced.” § 924.051(8), Fla. Stat. (2005) (emphasis added). See also O’Brien v. State, 689 So.2d 336, 337 (Fla. 5th DCA 1997) (“direct[ing]” that post-conviction litigants in that court be on notice of the newly-adopted admonition and warning of consequences for violations).

As we have noted, this is Hepburn’s tenth post-trial motion or petition. We believe that Hepburn has exhausted his post-conviction remedies. Cassady v. State, 683 So.2d 1194, 1194 (Fla. 5th DCA 1996) (the defendant “appears to have exhausted his post-conviction remedies and has certainly exhausted us in doing so”). See also Johnson v. State, 680 So.2d 1101, 1102 (Fla. 5th DCA 1996) (“Even Herman Melville had to come to an ending in Moby Dick.”). After repeated denials of multiple, successive filings, there comes a point where “enough is enough.” Isley, 652 So.2d at 410-11. Based upon a careful review of Hepburn’s filings in this court, we conclude that Hepburn’s filings have reached that point.

IV. Conclusion

For the foregoing reasons, we order that henceforth any pleadings or papers filed in this court relating to case numbers 97-28660 and 97-28661 must be reviewed and signed by an attorney licensed to practice law in this state, and the Clerk of the Third District Court of Appeal is directed not to accept any further pro se pleadings from appellant relating to said cases.

So ordered.

      . At least some of the issues should have been treated on direct appeal. See, e.g., Johnson v. State, 921 So.2d 490 (Fla. 2005) (holding that a defense of consent to a burglary charge must be raised at trial or on direct appeal).

      . Successive motions are motions that "have been heard, considered and rejected. To raise them again is an abuse of process”. Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).


author: SUAREZ, J.

text:
    Ruth TAYLOR f/k/a Ruth Woodson, Appellant, v. MAZDA MOTOR OF AMERICA, INC., Appellee.
    No. 3D04-2259.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2005.

      Krohn & Moss and Alex D. Weisberg, Phoenix, AZ, and Theodore F. Greene III (Sunrise), for appellant.
    Rumberger, Kirk <& Caldwell and Joshua D. Lerner, Miami, for appellee.
    Before WELLS, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

The Plaintiff, Ruth Taylor, appeals the denial of a motion for continuance, an order striking the testimony of the plaintiffs witnesses and the granting of a directed verdict in favor of the appellee, Mazda Motor of America, Inc. (“Mazda Motor”). We affirm in part and reverse in part.

Ms. Taylor brought suit in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, against Mazda Motor for damages for breach of warranty after purchasing a new vehicle. At the time of the filing of the lawsuit, May 23, 2003, her attorney, Mr. Weisberg, was located in Chicago, Illinois, and planning to relocate his office to South Florida. On January 27, 2004, he filed a Notice of Unavailability stating that he would not be available during March 1, 2004, through May 1, 2004. On May 10, 2004, Weisberg served a notice requesting the setting of trial on the “next jury docket.” On May 25, 2004, the trial court filed the Pre-trial Conference Order setting a pre-trial conference for July 7, 2004. The Order specifically provides:

THIS P.T.C. IS ALSO A CALL OF CALENDAR. THE TRIAL MAY BE SET IN AS SHORT A TIME AS 3 DAYS FROM P.T.C. BE READY FOR TRIAL.
VII. The parties shall complete ALL necessary discovery and complete all Court appointed examinations before the date of the Pre-Trial Conference and are prohibited from carrying on further discovery after the Conference. This may not be waived by stipulation of counsel.
IX. The Court will not consider motions for delay, inconvenience or other grounds for continuance, except those which are provided and mandatory under law. ALL requests for continuances must be in writing and must state the specific reason for the request.

On June 24, 2004, Mazda Motor noticed the taking of the deposition of plaintiff and her expert for June 29, and July 1, 2004. At the request of Weisberg, and in an effort to accommodate his schedule to move his office the week of June 21 through June 28, 2004, Mazda Motor agreed to cancel the depositions. Although correspondence between Weisberg and opposing counsel indicates that Weis-berg was in need of a continuance, and that counsel for the appellee had no objection to such, as she needed time to take discovery depositions due to Weisberg’s unavailability, she wrote advising him to file a motion with the court seeking a continuance. On July 2, 2004, Weisberg first moved to reschedule the pre-trial conference on grounds that it was not possible to schedule the deposition of the plaintiff prior to the pre-trial conference because he was relocating his office during that time period and would be unavailable. The trial judge never received the motion. Weisberg appeared before the trial judge at the pre-trial conference on July 7, 2004, and moved for a continuance on grounds that he was unprepared for trial as a result of the relocation. The trial judge denied the motion for continuance. The attorney for Mazda Motor explained to the judge that she had been unable to take the depositions of the plaintiff and plaintiffs expert due to Weisberg’s move and unavailability. The trial judge then granted Mazda Motor’s ore tenus motion to strike the trial testimony of the plaintiff and the plaintiffs expert (plaintiffs only two witnesses) on grounds that plaintiff had failed to submit them for deposition. Rather than take a voluntary dismissal, the plaintiff chose to go to trial. On. July 12, 2004, the matter went to trial and the plaintiff announced that she had neither witnesses nor evidence. The trial court then directed a verdict for Mazda Motor and entered final judgment in its favor. Taylor appeals the denial of the motion for continuance, the order striking the testimony of her witnesses and the granting of a directed verdict.

I.

The standard of review for the denial of a motion for continuance is abuse of discretion. Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973); Fasig v. Fasig, 830 So.2d 839 (Fla. 2d DCA 2002). An appellate court will not interfere with a trial judge’s discretion, Diaz v. Diaz, 258 So.2d 37 (Fla. 3d DCA 1972), unless abuse is clearly shown. Buckley Towers Condo. Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1976). We hold that appellant has not demonstrated an abuse of discretion by the trial judge below in denying her motion for a continuance. Although Taylor’s counsel had been corresponding with opposing counsel about the possible need to reschedule the depositions and, impliedly, the trial, defense counsel advised Weisberg in a letter to ask the court for permission to continue the trial. No formal motion for continuance was filed until Weisberg moved to reschedule the pre-trial conference on July 2, 2004, which was approximately six weeks after the trial judge’s order setting the date of the conference, and only five days before the conference itself, which was set for July 7, 2004. Moreover, the pre-trial order below specifically warned that the court would not consider “motions for delay, inconvenience or other grounds for continuance” unless mandatory or provided for under the law. Plaintiffs reason for requesting the continuance is not one that is mandatory or provided for under the law. In any event, since appellant’s July 2, 2004 motion to reschedule the pre-trial conference was never received by the trial judge, plaintiffs counsel’s appearance before the court when he moved for a continuance was the first time Weisberg successfully made the trial judge aware that he was not ready for trial.

It was, therefore, within the trial judge’s discretion to deny the motion for continuance in accordance with the terms of the pre-trial order. Rainey v. Roesall Corp., 71 So.2d 160 (Fla.1954); Buckley Towers, 340 So.2d at 1206; Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976); Diaz, 258 So.2d at 37; see Associated Television & Communc’ns, Inc. v. Cowden, 417 So.2d 1027 (Fla. 5th DCA 1982) (absent showing that modification of pre-trial order was proper, denial of motion for continuance not abuse of discretion).

II.

A trial court’s decision to impose sanctions is discretionary and the imposition of sanctions necessarily requires wrongdoing by the party being sanctioned. See Mercer v. Raine, 443 So.2d 944 (Fla.1983). Here, the trial judge struck the plaintiffs only two witnesses as a sanction for not making them readily available for deposition before the pre-trial conference in accord with the pre-trial order. While under some circumstances, it is within a trial judge’s discretion to impose sanctions for violations of orders relating to the pretrial conference, see First Republic Corp. v. Hayes, 431 So.2d 624, 626 (Fla. 3d DCA 1983), and cases cited, the issue, as in First Republic, is whether the sanction was appropriate under the circumstances in the present case. We conclude that it was not. The sanction must be commensurate with the offense. See Progressive Consumers Ins. Co. v. Deco Nat’l Stone, Inc., 827 So.2d 336 (Fla. 3d DCA 2002) (striking primary witness for plaintiff and directing verdict for defendant out of proportion to magnitude of alleged offense for failure to include name on formal witness list); Kamhi v. Waterview Towers Condo. Ass’n, 793 So.2d 1033 (Fla. 4th DCA 2001) (order prohibiting defendant from, among other things, presenting testimony at trial too severe where no findings of deliberate disregard of trial court’s pre-trial order). Moreover, a litigant should not be punished for fault on the part of her counsel by such a severe sanction as striking her witnesses for non-compliance. Kamhi, 793 So.2d at 1036; Dollar Wise Travel, Inc. v. Al-Farooque, 731 So.2d 848 (Fla. 3d DCA 1999); First Republic, 431 So.2d at 627. Instead of serving to punish plaintiffs counsel for his failure to follow the provisions of the lower court’s pre-trial order, which required all discovery to have been completed before the date of the conference, the court’s remedy punished the plaintiff by preventing the plaintiff from putting on her case. It would have been more appropriate in this case, considering the circumstances, to allow Mazda Motor to depose Taylor’s witnesses at any time prior to the commencement of the July 12 trial in order to eliminate any prejudice to either party. Because this option was not provided by the trial judge, and plaintiffs counsel refused the only option which was offered to him, that of taking a non-suit, Taylor was forced to proceed to trial without any witnesses. Because the trial court erred in striking plaintiffs witnesses, the directed verdict, which followed as a consequence of plaintiffs inability to put on her case, is reversed. Progressive, 827 So.2d at 336; Kamhi, 793 So.2d at 1033; Pascual v. Dozier, 771 So.2d 552 (Fla. 3d DCA 2000) (error to strike party’s only witness so as to be left unable to present evidence to support theory of case).

Affirmed in part, reversed in part.

      . The Pre-trial Order was not issued by the trial judge sua sponte. It was issued in response to Weisberg's May 25, 2004 notice requesting the setting of trial on the "next jury docket.”

      . This court is well aware of the heavy case load carried by trial judges and the need for the courts to move their dockets in the interest of the parties and justice. We are also aware and understand the frustrations experienced by trial judges in trying to accomplish this goal.


text:
    OCEAN CLUB COMMUNITY ASSOCIATION, INC., Appellant/Cross-Appellee, v. Peter CURTIS, Appellee/Cross-Appellant.
    Nos. 3D05-835, 3D05-176.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2005.
    Douberley & Cicero, Boynton Beach, and Thomas A. Groendyke, for appellant/eross-appellee.
    Lorenzo <& Capua and Peter Marcellus Capua, Miami, for appellee/cross-appellant.
    Before GERSTEN and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

No reversible error has been demonstrated either on the appeal from a money judgment for plaintiff Curtis, see Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963); Marks v. Fields, 160 Fla. 789, 36 So.2d 612 (1948); Gordon v. Camp, 2 Fla. 422 (1849); Tubbs v. State, 897 So.2d 520, 522 (Fla. 3d DCA 2005), or on the cross-appeal from the summary judgment against him on his claim for breach of contract. See DeMarco v. Publix Super Mkts., Inc., 384 So.2d 1253 (Fla.1980); Spanish Broadcasting Sys. of Fla., Inc. v. Alfonso, 689 So.2d 1092 (Fla. 3d DCA 1997); Ross v. Twenty-Four Collection, Inc., 617 So.2d 428 (Fla. 3d DCA 1993); Crawford v. David Shapiro & Co., 490 So.2d 993 (Fla. 3d DCA 1986); Mayo v. Highland Park Hosp. Corp., 460 So.2d 571 (Fla. 3d DCA 1984).

We do not pass upon any issue relating to the recovery of attorney’s fees for conversion under the theft statute, see § 772.11, Fla. Stat. (2004); S. Express Co. v. Van Meter, 17 Fla. 783 (1880); Recio v. Kent Sec. Servs., Inc., 727 So.2d 320 (Fla. 3d DCA 1999); Martin v. Golden Corral Corp., 601 So.2d 1316 (Fla. 2d DCA 1992); Belford Trucking Co. v. Zagar, 243 So.2d 646, 648-49 (Fla. 4th DCA 1970); United States v. Bailey, 419 F.3d 1208 (11th Cir. 2005), or under the wages statute, § 448.08, Fla. Stat. (2004), because, in the absence of an actual award of fees, the matter is not ripe for consideration. See Nye v. HCI Mfg., Inc., 901 So.2d 304 (Fla. 2d DCA 2005); Lydolph v. Davidson, 880 So.2d 817 (Fla. 1st DCA 2004); Mem’l Sloan-Kettering Cancer Ctr. v. Levy, 681 So.2d 842 (Fla. 3d DCA 1996); Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994).

Affirmed.


text:
    Juan MESA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1760.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2005.
    Juan Mesa, in proper person.
    Charles J. Crist, Jr., Attorney General, Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Juan Mesa (“Mesa”), appeals the denial of his 3.850 motion for post conviction relief. Mesa raises several issues, only one of which has merit. Mesa contends the trial court erred in sentencing him to seven years in prison with a five-year minimum mandatory term, as both a habitual felony offender and a habitual violent offender. Based on the Florida Supreme Court’s decision in Clines v. State, 912 So.2d 550 (Fla. 2005), we agree and reverse for further proceedings.

In Clines, the Court applied the rule of lenity and concluded that “section 775.084 is ambiguous about whether multiple recidivist categories may be applied to a single criminal sentence.” Clines, 912 So.2d at 560. The Court further held “that the recidivist categories are designed to be hierarchical, not complementary ... and only one recidivist category in section 775.084 may be applied to any criminal sentence.” Clines, 912 So.2d at 559-60.

Accordingly, we reverse the trial court’s order denying the motion for post conviction relief and remand to the trial court to either allow the State to remove one of the recidivist designations, or withdraw from the plea agreement and proceed to trial.

Reversed and remanded for further proceedings.


text:
    Ronald Lee CRAIG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2305.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2005.
    Rehearing Denied May 4, 2006.

      Ronald Lee Craig, in proper person.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and CORTINAS, JJ.
   PER CURIAM.

Ronald Lee Craig appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. While the procedural history is somewhat complicated, the trial court conducted an evidentiary hearing on the defendant’s Rule 3.850 claims and denied relief. Because the trial court’s ruling is supported by competent substantial evidence, we affirm. See Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). We need not reach the State’s alternative argument that the motion was time-barred.

Affirmed.


text:
    Eduardo TARAFA, Appellant, v. Alice M. TAKACH, Appellee.
    Nos. 3D03-3127, 3D03-1310.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2005.

      Kluger, Peretz, Kaplan & Berlin, and Abbey L. Kaplan, and Jason R. Marks, and Michael L. Cotzen, Miami, for appellant.
    Shutts & Bowen, and Harold E. Patri-coff, and Maxine M. Long, and Aliette D. Rodz, Miami, for appellee.
    Before LEVY, RAMIREZ, and SUAREZ , JJ.

       Judge Suarez did not participate in oral argument.

   RAMIREZ, J.

Alice M. Takach appeals the trial court’s order granting Eduardo Tarafa’s motion for final summary judgment in case no. 03-1310. We affirm the final summary judgment entered in favor of Tarafa, finding there was no ambiguity in the parties’ Stipulation of Settlement, but reverse the trial court’s order denying Tarafa attorneys’ fees and costs in case no. 03-3127.

Case No. 03-1310

In December 1969, Tarafa married Ta-kach. In May 1991, the former wife filed a petition with the New York State Supreme Court to dissolve the marriage. Also in May 1991, the parties entered into a Stipulation of Settlement resolving the matters concerning the marriage, including property distribution and alimony. The Stipulation was ratified and incorporated into a Divdrce Judgment by the New York State Supreme Court in September 1991.

According to Paragraph 13(a)(iii) of the Settlement, Takach is obligated to pay Ta-rafa permanent alimony in the amount of $5,250.00 per month, up to an including the earlier of: (i) the death of the former wife or husband; (ii) the former husband’s remarriage; or (iii) such time as the former husband shall have co-habited as husband and wife with the same unrelated member of the opposite sex for an aggregate of three hundred sixty (360) days in any seven hundred twenty (720) day period.

In August 2002, Takach filed a complaint for declaratory relief in the trial court of Miami-Dade County, in which she contended that she was no longer obligated to pay Tarafa permanent alimony under the Settlement because he had lived with a woman who was unrelated named Matilde Batista as “husband and wife” in excess of 360 days in a 720-day period. In January 2003, Tarafa filed a motion for final summary judgment and for fees and costs where he contended that there was no genuine issue of material fact that he and Batista were second cousins and thus were not “unrelated” under paragraph 13(a)(iii) of the Settlement. It is undisputed that Tarafa and Batista are second cousins by blood.

The trial court entered a final summary judgment in favor of Tarafa, finding the term “unrelated” to be clear and unambiguous. The trial court found that, because Batista and Tarafa were second cousins, they were not unrelated. We agree.

The trial court correctly applied the plain and ordinary meaning of the word “unrelated” when it concluded that Tarafa and Batista were not “unrelated” under paragraph 13(a)(iii) of the Settlement. Webster’s Third New International Dictionary defines “unrelated” as “not connected by birth or family.” This same dictionary defines “cousins” as “[a] relative descended from one’s grandparent or from a more remote ancestor by two or more steps and in a different line ... the children of first cousins are second cousins to each other, the children of second cousins are third cousins, etc.” Thus, the term “unrelated” cannot include second cousins because second cousins are related. We believe that an ordinary person of average understanding would clearly find the term “unrelated” to be clear and unambiguous.

Case No. 03-8127

Tarafa appeals the trial court’s order barring him from seeking attorney’s fees and costs in the parties’ post-dissolution proceedings. The trial court referred Ta-rafa’s request for attorney’s fees and costs to a General Master. Takach contended that paragraph 21 of the Settlement barred Tarafa from obtaining attorney’s fees and costs from her in this post-dissolution proceeding. Paragraph 21 states:

The [Former Wife] acknowledges that Seaman and Ashley have represented her and rendered legal services to her in connection with this Agreement. The [Former Husband] acknowledges that Graubard Mollen Horowitz Pomerantz & Shapiro and Haythe & Curley have represented him and rendered legal services to him in connection with this Agreement. The parties agree to each be responsible for compensation of the respective counsel for the foregoing services and for any additional services that may be rendered in connection with this action for divorce, and to hold the other party harmless in all respects therefrom.

The General Master found that paragraph 21 was clear and unambiguous and did not bar Tarafa from seeking his fees and costs from Takach for matters arising between the parties post-dissolution. Ta-kach filed her objections to the General Masters’ report and recommendations. The trial court agreed that the provision in the Settlement addressing attorney’s fees and costs was clear and unambiguous but held that the stipulation was not limited to the divorce action and included this post-dissolution filed a dozen years later under a different case number and in a different state. We disagree.

Both the General Master and the trial court determined that the interpretation of paragraph 21 of the Settlement was a question of law due to the subject provision being clear and unambiguous. See Langner v. Binger, 503 So.2d 1362, 1363 (Fla. 3d DCA 1987). While everyone seems to agree that the provision is clear and unambiguous, the trial court concluded that the new proceeding was somehow part of “this action for divorce.”

The interpretation of a contract is a matter of law and is therefore reviewed by the appellate court de novo. See Gumberg v. Gumberg, 755 So.2d 710, 712 (Fla. 4th DCA 1999). The General Master interpreted paragraph 21 only to bar Tarafa from seeking his fees and costs from Ta-kach in the original divorce action and would not include fees and costs incurred after the dissolution of marriage. We believe that the General Master was correct in concluding that the phrase in paragraph 21 “this action for divorce” referred to the services performed by the attorneys in the dissolution of marriage action in New York for the services the attorneys performed on behalf of the parties in that distinct action. That provision did not bar Tarafa from obtaining fees and costs not incurred in connection with the services performed by those attorneys in the New York divorce proceeding. See Krueger v. Krueg er, 689 So.2d 1277 (Fla. 2d DCA 1997) (the parties’ acknowledgment to pay their own fees and costs for services “incurred by this action” would not include the fees that the wife incurred in the post-divorce modification proceeding).

Conclusion

In sum, we affirm the final summary judgment, finding there was no ambiguity in the parties’ Stipulation of Settlement. We reverse the trial court’s order vacating the General Masters’ report because Tara-fa is not contractually barred under the terms of the Stipulation of Settlement from seeking fees and costs in this post-dissolution proceeding initiated by Takach. We remand this issue to the trial court, with instructions to affirm the Report and Recommendations of the General Master and hold a hearing to determine the amount of attorney’s fees and costs.

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


text:
    Anthony J. BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2506.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2005.
    Anthony J. Bryant, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, WELLS and SHEPHERD, 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 postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: WELLS, J.

text:
    Othlone RUSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1056.
    District Court of Appeal of Florida, Third District.
    March 1, 2006.
    Rehearing Denied March 28, 2006.

      Robbins, Tunkey, Ross, Amsel, Raben, Waxman & Eiglarsh, and Robert G. Amsel and Benjamin Waxman, Miami, for appellant.
    Charles J. Crist, Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before WELLS, and CORTIÑAS, JJ„ and SCHWARTZ, Senior Judge.
   WELLS, J.

Othlone Russ appeals from judgments of conviction and a 45.5 year prison sentence for multiple counts of lewd and lascivious exhibition on or in the presence of a child under the age of 16 and for sexual battery on a person less than 12 years of age. Russ claims that the cumulative effect of improper closing argument by the State, admission of improper profile evidence, and denial of his request to introduce character evidence regarding his reputation in the community for non-violence and respect toward females, mandate reversal. We disagree and affirm.

Russ was charged with sexual molestation of a six year old child over a period of approximately two years. He was approximately 17 years old at the time. After the child reported to her mother that Russ had been touching her inappropriately, she was examined at the Rape Treatment Center, which reported a healed tear in her hymen indicating “some kind of penetration” not caused by roughhousing, bicycle or horseback riding, falls or similar activities. Russ subsequently was charged with two counts of lewd and lascivious exhibition on a child, four counts of sexual battery on a minor, two counts of lewd and lascivious molestation of a child, and four counts of sexual battery on a minor. The convictions here under appeal followed.

Russ claims that the cumulative effect of a number of improper statements made by the State during closing argument constitute fundamental error mandating reversal. First, we find no reversible error in the three objected-to comments dealing with Russ’s failure to present evidence to support his theory that someone else may have molested this child. Although the objections to the first two of these comments were overruled, a curative instruction regarding these comments was suggested by the prosecutor, accepted by the defense and given by the court:

THE COURT: I need to advise the jurors that generally, as in any case, a defendant on trial for a criminal charge does not have to prove or disprove anything.
It’s up to the State through its witnesses, if they can, to prove their case beyond and to the exclusion of every reasonable doubt and they have what we refer to as the burden of proof.
Again, a defendant does got [sic] have [sic] prove or disprove anything. Go ahead, please.

No motion for mistrial was asserted.

The third objected-to comment was no more than fair comment on Russ’s argument that the child was lying to cover up for someone else who molested her. The State’s rebuttal argument that Russ was only speculating and that the person for whom the child was allegedly covering was “a non-issue ... because if they knew of a ‘who,’ ” that “ ‘who’ would have been brought to your attention,” was properly overruled. See Mitchell v. State, 771 So.2d 596, 597 (Fla. 3d DCA 2000) (concluding that the State’s comments in closing as to “where is the evidence in this case of crooked cops? You had many cops appear before you on the witness stand,” was fair comment and response, where the theory of the defense was that the defendant had been knowingly misidentified by the police who were lying to cover up their misidenti-fication; where in opening statement, the defendant had told the jury that various police officers would testify and that inconsistencies in their testimony would prove the truth of the defendant’s position; and where this theme had been reiterated in the defendant’s closing argument); see also Stancle v. State, 854 So.2d 228, 229 (Fla. 4th DCA 2003) (“A prosecutor’s argument should be examined in the context in which it is made. This is particularly so where invited by the nature of the defense.”) (Citations omitted).

Likewise, we find no error, either individually or cumulatively, in the remainder of the unobjected-to comments about which Russ complains. “As a general rule, the failure to raise a contemporaneous objection when improper closing arguments are made waives any claim concerning such comments for appellate review.” Arbelaez v. State, 898 So.2d 25, 47 (Fla.2005)(quoting Card v. State, 803 So.2d 613, 622 (Fla.2001)). The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error. Walls v. State, 926 So.2d 1156, 1176 (Fla. 2006). In order for an error to be fundamental and justify reversal in the absence of a timely objection, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

When read in context, the remaining comments about which Russ complains are so innocuous that it is obvious why Russ failed to object. Taken in parts or as a whole, the State’s closing argument neither deprived Russ of a fair trial nor entirely vitiated it. No fundamental or reversible error regarding closing argument has been demonstrated.

We also find no error in the admission of the testimony of Pam Garman, a forensic interviewer with twenty-five years experience interviewing children who allegedly have been sexually abused. Ms. Garman testified generally about the manner in which children disclose sexual abuse. This testimony was adduced to undercut a major theme of Russ’s defense that the child’s differing versions of the molestation proved that she was lying.

The child testified in detail about vaginal and anal penetration and other acts of molestation by Russ (during some of which she described Russ as putting “white gooey stuff’ on her) while at Russ’s home. Russ, in keeping with the theme of his defense, questioned the Rape Treatment Center physician about what the child had told him. The physician confirmed that the child had denied either oral or anal penetration, was unsure whether Russ had ejaculated, and told him that she had been molested at her home. Russ also questioned the child’s father about his deposition, attempting to impeach the child’s version of events by getting him to admit that the child told her parents that she had been molested only once. Russ also questioned the forensic interviewer who interviewed the child and acknowledged that the child’s description at trial of the final molestation did not match that reported to the interviewer.

During Ms. Garman’s testimony she was asked whether in her “experience in working with ... thousands of children over all the[] years, [was] it uncommon for children to not come out with all the information right up front but for it to be a delayed process or a process in and of itself subsequently.” Russ objected to relevancy. Over that objection Ms. Garman testified that “[c]hildren do not always disclose everything at once. They will tell a little bit at a time, sometimes what they feel is the lesser of the sexual acts just to test the waters, to see how their parents ... react to what they have told them. And then, they go on and tell what else happened to them.” No other questions were asked on this subject.

Ms. Garman did not directly testify that this child was telling the truth nor did this isolated response give the impression that she believed this child was telling the truth. See Tingle v. State, 536 So.2d 202, 205 (Fla.1988) (holding that “it was error for the state’s witnesses to directly testify as to the truthfulness of the victim”); Cunningham, v. State, 801 So.2d 244, 247 (Fla. 4th DCA 2001)(quoting Hitchcock v. State, 636 So.2d 572, 575 (Fla. 4th DCA 1994), and confirming that “if the juxtaposition of the questions the State asked ... gave the jury the clear impression that [the witness] believed the victim was telling the truth,” the testimony was improper); Paul v. State, 790 So.2d 508, 510 (Fla. 5th DCA 2001) (reversing a conviction because the non-expert witness who interviewed the victim “improperly vouched for the credibility of the victim by stating that the victim was honest, that she heard nothing which would indicate that the victim had fabricated her statements, and that the victim would have no motive for lying”). Ms. Garman’s statement also was not relied on to suggest that changes in the child’s story amounted to evidence of abuse. Rather, it was a valid response to the defense’s claim that changes in the child’s story indicated fabrication and was not improper. See Tingle, 536 So.2d at 205 (holding that testimony may be adduced to “properly aid a jury in assessing the veracity of a victim of child abuse ... by discussing various patterns of consistency in the stories of child sexual abuse victims”); Quintero v. State, 889 So.2d 1013, 1013 (Fla. 1st DCA 2004) (finding no error in permitting testimony “that child victims do not initially fully disclose in 67% to 70% of child sexual abuse cases”).

Last, we find no abuse of discretion in the trial court’s refusal to permit Russ to call character witnesses to testify as to his reputation in the community for nonviolence and respect toward females. It was not argued that Russ had acted violently. Likewise, Russ’s reputation for respectfulness toward women had no bearing on whether he committed these offenses. As aptly stated by the Fifth District, “[u]n-like one’s reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited to the community.” Alvelo v. State, 769 So.2d 476, 477 (Fla. 5th DCA 2000).

We therefore affirm Russ’s conviction on all counts except for Count I which we reverse on the State’s proper concession of error.

Affirmed in part, reversed in part.

      . Russ also claims, and the State concedes, that the State failed to prove the allegations in Count I of the information. We therefore reverse his conviction and sentence on that count.

      . Russ argues: that the prosecutor made an improper appeal to the social conscience of the jurors; that improper epithets, prejudicial comments and statements unsupported by the record mandate reversal; that references to lesser included offenses as "misdemeanors” mandate reversal; that the prosecutor made numerous impermissible attacks on defense counsel during closing arguments; and additionally that the cumulative effect of all of these comments and arguments require reversal. Our careful review of the record refutes these claims.

      . In one of those comments, the defense argued to the jury: "Use your common sense. Does the child who was violated in that manner that she describes seven days earlier have a hymen that’s torn, that’s healed? Does it heal in seven days? Would it on a child? Wouldn't there be some redness? Did you hear any testimony of such a thing? This was an old tear.” We find the State’s rebuttal argument did not amount to a prosecutorial burden shifting comment, where it observed that Russ had failed to ask the examining physician what a tear would look like after seven days.

      . Ms. Garman did not testify, as Russ argues, that this child exhibited symptoms consistent with sexual abuse or that this child had been sexually molested. This would have been improper. See Hadden v. State, 690 So.2d 573, 577, 581 (Fla.1997) (holding that testimony "to prove the alleged victim of sexual abuse exhibits symptoms consistent with one who has been sexually abused” may not be used in a criminal prosecution for child abuse).


author: CORTIÑAS, Judge.

text:
    David STONE, etc., Appellant, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 3D04-3222.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    John H. Ruiz, Miami, Maria V. LaPietra, and Luisa Linares, Miami, for appellant.
    Jorden Burt and Markham R. Leven-thal, Irma Reboso Solares, and Jason Patrick Kairalla, Miami, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The plaintiff, David Stone (“Stone”), appeals from a final order dismissing his complaint with prejudice. We affirm.

Stone was the beneficiary of a life insurance policy with a face amount of $150,000, which had been issued to his wife, Susan Stone, by Jackson National Life Insurance Company (“Jackson”). In April 1999, Ms. Stone died, and Stone notified Jackson of her death. On June 22, 1999, after receiving Ms. Stone’s death certificate and claim forms from Stone, Jackson paid $151,105.63 to Stone, which included the face amount of the policy and interest.

On June 4, 2004, almost five years later, Stone filed a complaint against Jackson alleging a breach of contract and violation of section 627.4615, Florida Statutes (1999), on the ground that the amount paid to Stone “failed to include the correct amount of interest to the death benefit as required by Florida Statute § 627.4615.” In response, Jackson filed a motion to dismiss, arguing that, since the complaint was based exclusively on an alleged statutory violation, it was time-barred under section 95.11(3)(f), Florida Statutes (1999).

After conducting a hearing, the trial court granted Jackson’s motion to dismiss with prejudice, concluding that “the four-year statute of limitations applicable to actions founded on [] statutory liability applies in this case and not the five-year statute of limitations applicable to contract claims” as argued by Stone.

We review the trial court’s ruling de novo, and affirm. See Execu-Tech Business Sys., Inc. v. New Oji Paper Co., Ltd., 752 So.2d 582, 584 (Fla.2000)(holding that “a trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review”). The trial court correctly found that Stone’s claim is founded on statutory liability and, as such, is governed by the statute of limitations period in section 95.11(3)(f), which states that actions founded on statutory liability must be commenced within four (4) years.

Stone contends that his claim is for breach of a contract because section 627.452(1), Florida Statutes (1999), mandates that section 627.4615 be included in the insurance contract. Therefore, Stone contends that section 95.11(2)(b), Florida Statutes (1999), providing for a five-year statute of limitations period for claims based on contract violations, should apply. Stone maintains that, although the policy did not contain the substantive provisions of section 627.4615, these provisions must be read into the policy to bring it in compliance with applicable Florida law. See Kaufman v. Mut. of Omaha Ins. Co., 681 So.2d 747, 750 (Fla. 3d DCA 1996).

Conversely, Jackson argues that Stone’s claim for interest is not based on a contractual obligation because Stone’s complaint does not allege that any policy term was breached, but refers, instead, to the alleged violation of section 627.4615. Jackson also argues that section 627.452(1) does not mandate that section 627.4615 be included in the policy. Jackson contends that, since section 627.4615 does not contain language such as “shall be included,” mandating it to be included in the insurance policy, unlike other enumerated statutes, the court should not construe the policy as if it contained section 627.4615. Accordingly, under section 627.452(1), the statutory obligation concerning a lump sum death payment contained in section 627.4615 need not be -written into insurance policies as it is not “required ,by” section 627.4615.

A plain reading of the words “as required by” in section 627.452(1) reveals that the insurer need only include those sections which are required by their language to" be included in the insurance policy. See Exposito v. State, 891 So.2d 525, 528 (Fla.2004)(giving plain and ordinary meaning when interpreting statutory language). For example, section 627.453, one of the enumerated sections, states that “[ejvery insurance contract shall provide that the insured is entitled to a grace period.... ” § 627.453, Fla. Stat. (1999)(emphasis added). Similarly, section 627.454 states that “[ejvery insurance contract shall provide that the policy ... shall constitute the entire contract between the parties.” § 627.454, Fla. Stat. (1999)(emphasis added).

Additionally, it is important to distinguish the section at issue, which requires interest for lump sum benefits, with section 627.462, which applies to benefits paid in installments. Section 627.462, which is also one of the enumerated statutes under section 627.452(1), states that “a table showing the amount and period of such installments shall be included in the policy.” § 627.462, Fla. Stat. (1999)(emphasis added). The language of section 627.462 mandates that a table providing for the amount and period of installments be included in the policy. Thus, if this section, along with sections 627.453 and 627.454 were not included in the policy, we would be required to read the policy in a way which brought it in conformity with these statutes. See Kaufman, 681 So.2d at 750.

However, the language of the statute at issue in the instant case, section 627.4615, does not mandate it to be included in the policy. It simply provides a method of calculating the rate of interest for death benefits. Therefore, the statute does not marídate that its requirements be included in life insurance policies, and we cannot read those requirements into the policy.

Nevertheless, Stone attempts to analogize U.S. Security Insurance Co. v. Magnetic Imaging Systems, I, Ltd., 678 So.2d 872 (Fla. 3d DCA 1996) to the instant case. One of the issues in Magnetic involved an arbitration provision under section 627.736(5), which was not included in the insurance policy. Id. at 874. This court agreed with appellant and required arbitration of a statutory interest claim for late payment of benefits, finding that the arbitration provision should be read into the policy so that it complies with applicable Florida law. Id. However, the arbitration provision contained the requisite language mandating it to be included in the policy. Section 627.736(5), at issue in Magnetic, stated that “every insurer shall include a provision in its policy for personal injury protection benefits for binding arbitration....” § 627.736(5), Fla. Stat. (1995)(emphasis added). Here, since the statute at issue in the instant case does not contain the requisite mandatory language, the reasoning in Magnetic is inapposite.

It is important to note that the Magnetic court did not find that section 627.736(4)(b)-(e), which mandates that interest shall be paid on overdue personal injury protection benefits, should be read into the policy. Like section 627.4615, section 627.736(4)(b)-(c) does not contain the mandatory language requiring this provision to be included in the policy. Instead, section 627.736(4)(b)-(c) simply provides for the rate of interest to be paid on overdue benefits.

Because section 627.4615, requiring the payment of interest on lump sum benefits, does not contain mandatory language commanding it to be included in the insurance policy, we find that this provision was not part of the policy, and that Stone’s claim was based on statutory liability. Accordingly, the four-year statute of limitations for statutory violations under section 95.11(3)(f) applies to this case. Stone’s complaint was properly dismissed.

Affirmed.

      . Section 627.452(1) provides, in relevant part:
      No policy of life insurance ... shall be delivered or issued for delivery in this state unless it contains in substance each of the provisions as required by ss. 627.453-627.462 inclusive and ss. 627.475 and 627.476, or provisions which in the opinion of the office are more favorable to the policyholder.
      § 627.452(1), Fla. Stat. (1999)(emphasis added).

      . Section 627.4615, Florida Statutes (1999) provides, in relevant part:
      When a policy provides for payment of its proceeds in a lump sum upon the death of the insured, the payment must include interest, at an annual rate equal to or greater than the Moody’s Corporate Bond Yield Average-Monthly Average Corporate as of the day the claim was received....
      § 627.4615, Fla. Stat. (1999).


text:
    Anthony Tyrone WILLIAMS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D05-2092.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    Rehearing Denied April 5, 2006.
    Anthony Tyrone Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for respondent.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

We deny the petition for writ of habeas corpus claiming ineffective assistance of appellate counsel. See Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005).


text:
    Joseph C. MARTUCCI and Maria E. Martucci, Petitioners, v. YALE MORTGAGE CORPORATION, Respondent.
    No. 3D06-722.
    District Court of Appeal of Florida, Third District.
    April 7, 2006.
    Roy D. Wasson, Miami, for petitioners.
    Eric R. Schwartz (Ft.Lauderdale); Richard Malafy (Marathon), for respondent.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Joseph C. Martucci and Maria Martucci seek a writ of prohibition directing that Circuit Judge Ronald M. Friedman disqualify himself from presiding over circuit court case number 03-29072, 11th Judicial Circuit. We have examined the second verified motion to disqualify and find it to be legally sufficient. See Department of Agriculture & Consumer Servs. v. Broward County, 810 So.2d 1056 (Fla. 1st DCA 2002). Accordingly we grant the second disqualification motion and direct the trial judge to remove himself from the case. We withhold issuing the writ as we are certain the judge will comply without the necessity of its issuance.


author: WELLS, Judge.

text:
    Richardson FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-484.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Richardson Francois, in proper person.
    Charles J. Crist, Jr., Attorney General, Assistant Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

Richardson Francois appeals from denial of a Rule 3.850 postconviction motion in which he claimed that the court below had no jurisdiction to impose a judgment of conviction and sentence on him because the Assistant State Attorney who signed the information charging him was not duly designated. We affirm first because Francois’ motion demonstrates that this, his third Rule 3.850 motion, is untimely, and second because his claim “could and should have been raised in a motion to dismiss, and then on direct appeal,” or in one of his previously filed, timely Rule 3.850 motions. See Robinson v. State, 925 So.2d 373 (Fla. 5th DCA 2006).

Affirmed.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Juan E. CEBALLO and Jacqueline Ceballo, Appellees.
    No. 3D05-2259.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      James M. Fishman, Miami, for appellant.
    Mintz, Truppman, Clein & Higer and Keith A. Truppman, Miami, for appellees.
    Before LEVY, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

Defendant-insurer, Citizens Property Insurance Corporation, appeals from a Partial Final Judgment in favor of the plaintiffs-homeowners, Juan and Jacqueline Ceballo, on their claim for payment under an Additional Coverage provision of their homeowner’s insurance policy. We reverse and certify conflict.

The Ceballos’ home was damaged in a fire. Citizens declared the home a total loss, admitted coverage, and paid the policy’s face value on Coverage “A — Dwelling,” of $125,000. The Ceballos filed suit to recover amounts for Additional Coverage provided in their policy in both the Coverage “A” section, and in the Special Provision — Florida Endorsement section. The Additional Coverage in the Coverage “A” section was for Debris Removal and Trees, Shrubs, and other Plants. The Additional Coverage in the Florida Endorsement section was for Ordinance or Law expenses. The complaint sought damages for breach of contract, claiming that although Citizens paid the policy limit of $125,000, it failed to make full payment of the Additional Coverage for Law and Ordinance of 25% of the policy limit ($31,-250.00); for Debris Removal of 5% of the policy limit ($6,250.00); and for Trees, Shrubs, and Other Plants of 5% of the policy limit ($6,250.00). Citizens denied the allegations and asserted that it was not obligated to make payments of any amount pursuant to the Additional Coverage provisions until the losses covered in those provisions were incurred by the Ceballos. It was undisputed below that the Ceballos presented no evidence that they suffered a loss, i.e., incurred expenses, with regard to the coverage provided in the Additional Coverage provisions.

The Ceballos moved for partial summary judgment, arguing that because the property was a total loss as a result of a covered peril, under Florida’s Valued Policy Law, section 627.702(1), Florida Statutes (2005), and Mierzwa v. Florida Windstorm Underwriting Association, 877 So.2d 774 (Fla. 4th DCA 2004), they were entitled to the Additional Coverage payments in full, and in the absence of proof of incurred expenses. Relying upon Mi-erzwa, the trial court granted Partial Final Judgment in favor of the Ceballos on the Additional Coverage issue as it related to the Law and Ordinance provision only. The Ceballos were awarded the sum of $31,250.

We find that the trial court erred in granting Partial Final Judgment on the Law and Ordinance claim. The Ceballos are correct in their assertion that they are entitled to the Additional Coverage, for which they were charged and paid a premium. However, as provided in the policy, they may receive a maximum of 25% of the limit of liability, only if they actually incur the covered expenses. Florida’s Valued Policy Law does not alter this conclusion. To hold otherwise, and provide for damages in the absence of a loss, would be a windfall to the homeowners. We therefore reverse and remand for the Ceballos to present proof of incurred expenses consistent with the policy. Because this holding conflicts with that of the Fourth District in Mierzwa, we certify direct conflict with that decision.

Reversed and remanded; direct conflict certified.

      . 627.702. Valued policy law.
      (l)(a) In the event of the total loss of any building, structure, mobile home as defined in s. 320.01(2), or manufactured building as defined in s. 553.36(12), located in this state and insured by any insurer as to a covered peril, in the absence of any change increasing the risk without the insurer’s consent and in the absence of fraudulent or criminal fault on the part of the insured or one acting in her or his behalf, the insurer’s liability under the policy for such total loss, if caused by a covered peril, shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid.

      . That provision, contained in the Special Provisions-Florida endorsement page reads, in relevant part:
      SECTION 1 — ADDITIONAL COVERAGES 11. Ordinance or Law
      a. You may use up to twenty five percent (25%) of the limit of liability that applies to COVERAGE A for the increase costs you incur due to the enforcement of any ordinance or law which requires or regulates:
      (1) The construction, demolition, remodeling, renovation or repair of that part of a covered building or other structure damaged by a PERIL INSURED AGAINST; or
      (2) The demolition and reconstruction of the undamaged part of a covered building or other structure, when that building or other structure must be totally demolished because of damage by a PERIL INSURED AGAINST to another part of that covered building or other structure; or
      (3)The remodeling removal or replacement of the portion of the undamaged part of a covered building or other structure necessary to complete the remodeling, repair or replacement of that part of the covered building or other structure damaged by a PERIL INSURED AGAINST.

      . In his brief, and at oral argument, Citizens' counsel conceded that Citizens does not dispute entitlement to payments once the cost for which coverage is provided under the policy is actually incurred.