author: RAMIREZ, J. GREEN, J.

text:
    LENNAR HOMES, INC., a Florida Corporation, and Silver Palm Holdings of Homestead, LLC, a Florida Limited Liability Corporation, Appellants, v. Manuel DORTA-DUQUE, Appellee.
    No. 3D06-1373.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2008.

      Bilzin Sumberg Baena Price & Axelrod, Alvin D. Lodish and Allen J. Smith and Adam F. Haimo, Miami, for appellants.
    Josephs Jack and Susan S. Lerner, Miami, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.

      . Lennar does not contend that any other action at law or equity was filed nor is there any evidence that such an action was filed.

   RAMIREZ, J.

Lennar Homes, Inc. and Silver Palm Holdings of Homestead, LLC, appeal to this Court the trial court’s Final Declaratory Judgment and Final Judgment Ordering Specific Performance in favor of Plaintiff Manuel Dorta-Duque. We conclude that the trial court was correct in finding that Dorta-Duque was entitled to a declaratory judgment and to specific performance, based on the language of the subject Settlement Agreement, as well as the competent, substantial evidence presented at trial supporting the final judgment. Accordingly, we affirm and adopt in its entirety the trial court’s succinct order as our own opinion. The trial court’s order reads as follows:

FINAL DECLARATORY JUDGMENT AND FINAL JUDGMENT ORDERING SPECIFIC PERFORMANCE IN FAVOR OF PLAINTIFF MANUEL DORTA-DUQUE

This cause came before the court for a non-jury trial on February 6 and 7, 2006, on plaintiffs claims for a declaratory judgment and for specific performance of the Settlement Agreement. The court, having conducted a two-day non-jury trial, finds that the plaintiff has met his burden of proving, by clear, definite, competent and satisfactory proof, his entitlement to specific performance of the Settlement Agreement and is thus entitled to a declaratory judgment in his favor and to specific performance of the January 16, 2004, Settlement Agreement based upon the followings findings of fact and conclusions of law:

1.On September 25, 2002, Lennar entered into a Purchase and Sale Contract for numerous acres of real property located in Miami-Dade County, Florida with Manuel Diaz and Emilia Diaz (hereinafter, the Sellers).

2. This contract was contingent upon the satisfaction of numerous conditions. Before closing, Lennar required that the Sellers obtain a zoning change for the property so that Lennar could develop the property with single family residences and apartments. Lennar was not required to close with the Sellers until the zoning approval was final and after all appeals were exhausted. Furthermore, the contract contained penalty provisions if the closing was delayed.

3. The Sellers applied for the zoning change and plaintiff Dorta-Duque, who owns the adjacent property, objected to and opposed the zoning change.

4. On December 19, 2003, the Board of County Commissioners adopted Resolution No. Z-24-03 which approved the Sellers’ request for the zoning change.

5. The applicable appeal period for review of that resolution expired thirty days after the December 19th adoption, which, the parties agree, occurred on Tuesday, January 20, 2004.

6. Plaintiff was the primary opponent of the zoning change at the Community Council and County Commission hearings.

8. In an effort to resolve their differences relating to the zoning change, on Friday, January 16, 2004, Dorta-Duque and Lennar, entered into the Settlement Agreement which is the subject of this litigation. Pursuant to that agreement, Lennar agreed to lease and sell a portion of the property it was purchasing to Dorta-Duque in exchange for Dorta-Duque, inter alia, agreeing not to pursue judicial review of the Commission’s approval of the zoning application.

9. Both parties retained attorneys to represent their interests during the negotiation of the Settlement Agreement. This court finds that the Settlement Agreement was an arms-length transaction arrived at through fair negotiation between sophisticated individuals who were represented by counsel.

10. Following the execution of the Settlement Agreement, Dorta-Du-que, performed all of his obligations, but, Lennar took the position that it was no longer obligated to perform. The parties disagree whether certain contingencies occurred which excused Lennar from its obligations. The contingencies in dispute are set forth in paragraph six of the Settlement Agreement. That paragraph provides:

6. In consideration of the execution of this Agreement, Dorta-Duque, on behalf of himself, his heirs, successors and assigns, agrees not to oppose, object to or interfere, whether directly or indirectly, with the efforts of Lennar to secure the approval of the Application and other approvals that are necessary for the development of the Property, provided Len-nar is in compliance with the terms of this Agreement. Lennar’s obligations under this Agreement are specifically subject to and contingent upon the approval of the Application and the expiration of the applicable appeal period without an appeal or action at law or equity having been filed by anyone. Moreover, in the event that an appeal is filed, Dorta-Duque shall not directly or indirectly assist (financially or otherwise) such party or parties in the prosecution of said appeal. Dorta-Duque has previously retained the services of Kent Harrison Robbins, Esq., to prepare, file and prosecute an appeal of the Application and other potentially available challenges to the Application and will continue to represent Dorta-Duque and, as his representative, will not file or pursue such an appeal or challenge. Further, Dorta-Duque has represented to Lennar, and Lennar has relied upon such representation, that Kent Harrison Robbins, Esq., has indicated to Dorta-Duque that if Dorta-Duque and Len-nar execute this Agreement, Kent Harrison Robbins, Esq. will be ethically prohibited from representing other affected parties in the filing and prosecution of such an appeal or challenges. Immediately following the execution of this Agreement, Dor-ta-Duque shall direct to stop work on such an appeal or challenge and shall further direct Kent Harrison Robbins, Esq. not to undertake the representation of any other potential appellant with regard to the- Application or the development of the Property. For the purposes of this paragraph, the term appeal shall mean a juris-dictionally sufficient petition for writ of certiorari that is filed in accordance with the Florida Rules of Appellate Procedure which causes the circuit court to issue an order to show cause. For its part, Lennar represents to Dorta-Duque that upon the expiration of the appeal period, all conditions to the closing with Diaz would have been met and that Len-nar has the ability to close on the purchase. [Emphasis added].

11. On the last day of the appeal period (January 20, 2004), at 3:48 PM, three property owners, who had appeared before the County Commission to object to the approval of the application, filed a Notice of Appeal with the Clerk of the Circuit Court.

12. It is because the notice of appeal was filed that Lennar took the position that its obligations under the contract were excused.

13. The court finds that under paragraph six, Lennar was not excused from its obligations (to lease and sell the land to Dorta-Duque) unless (1) a jurisdic-tionally sufficient petition for writ of cer-tiorari was filed prior to the expiration of the applicable appeal period which, in turn, (2) caused the circuit court to issue an order to show cause. No jurisdic-tionally sufficient petition for writ of cer-tiorari was filed prior to the expiration of the applicable appeal period and it is undisputed that the court never issued an order to show cause.

14. The term “order to show cause” set forth in the agreement is not ambiguous, and the court rejects Lennar’s claim that an April 29, 2004, case management order to respond issued by a clerk was the same thing as an order to show cause issued by the court. In this regard, the court considers Lennar’s interpretation of the language of the settlement agreement to be unreasonable.

15. The experts for both parties agreed, and this court finds, that the April 29, 2004, clerk-issued case management order was not the same thing as an order to show cause issued by the court. Lennar’s expert testified in deposition that the April 29th order would not even be the functional equivalent of an order to show cause if the court in some fashion had not directed its issuance. The clerk who issued the April 29th order testified that she did not consult with a judge before issuing that order, that she was not directed by a judge to issue the order and further testified that the order was only an “administrative case management order”. Lennar’s expert did not agree with Len-nar’s counsel’s suggestion that the April 29th order had the “same legal effect” as an order to show cause.

16. Pursuant to the Settlement Agreement, Lennar’s obligations were not excused unless an order to show cause was issued. Because an order to show cause was not issued, this court finds that Lennar’s obligations were not excused.

17. It is undisputed that that expiration of the applicable appeal period referred to in paragraph six of the Settlement Agreement occurred on January 20, 2004. A jurisdictionally sufficient petition for writ of certiorari, in accordance with the Florida Rules of Appellate Procedure, had not been filed by January 20, 2004. Instead, only a notice of appeal was filed by that date. The parties’ experts agree that the notice of appeal was not a jurisdictionally sufficient petition for a writ of certiorari and was not in accordance with the Florida Rule of Appellate Procedure 9.100.

18. Lennar takes the position that Florida Rule of Appellate Procedure 9.040(c) permits the circuit court’s appellate division to later treat this improper remedy (notice of appeal) as if it seeks a proper remedy (petition for a writ of certiorari) and that therefore, this court must consider them to be the same. Rule 9.040(c) provides “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy”. Clearly, the rule does not state or imply that a notice of appeal and a petition for writ of certiora-ri are the same or that the terms are interchangeable. The agreement specifically required a timely filed jurisdiction-ally sufficient petition for writ of certio-rari and not something else that might later be treated (by an appellate court) in a way that would allow a proper remedy to be adjudicated. Furthermore, the credible parol evidence established that a jurisdictionally sufficient petition for a writ of certiorari was precisely what was contemplated and bargained for by the parties and not a mere notice of appeal.

19.The three attorneys who participated in the negotiations, Juan Mayol for Lennar, and Mark Starkman and Kent Harrison Robbins for Dorta-Du-que, have testified that the qualifying language limiting “appeal” and defining it as a jurisdictionally sufficient petition for writ of certiorari was placed in the agreement because Dorta-Duque did not want to permit Lennar to get out of its deal with him if only a notice of appeal was filed. Clearly, only the filing of a petition for writ of certiorari would excuse Lennar from its obligations (if the petition caused the court to issue a rule to show cause).

20. Lennar’s counsel, Mr. Mayol, testified that he did not think that any of the other property owners would file an appeal in time since the thirty day deadline was impending. Both the agreement and the credible parol evidence make it clear that the parties intended to remain bound if no one filed a petition for writ of certiorari prior to the expiration of the applicable appeal period.

21. Having concluded that the contingencies under paragraph six did not occur to relieve Lennar from its obligation, and further, that Dorta-Duque performed his obligations under the Settlement Agreement, the court now considers Lennar’s affirmative defenses.

22. The court finds that Lennar has failed to meet its burden of proving its affirmative defense of unclean hands. Lennar’s attorney, Mr. Mayol, who was negotiating on Lennar’s behalf, testified that Dorta-Duque did nothing wrong. No evidence was presented to support Lennar’s defense of unclean hands. As the court stated earlier, the Settlement Agreement was an arms-length transaction arrived at through fair negotiation between sophisticated individuals who were represented by counsel.

23. Next, the court finds that Lennar has failed to meet its burden of proving the affirmative defense of lach-es. In order to prevail on the defense of laches, Lennar had to prove the following by clear and convincing evidence:

(a) conduct on the part of Lennar giving rise to the situation upon which the complaint is based;
(b) the failure of Dorta-Duque, having had knowledge or notice of Len-nar’s conduct, to assert his rights by suit;
(c) lack of knowledge on the part of Lennar that Dorta-Duque would assert the right on which he based his suit; and
(d) injury or prejudice to Lennar if relief was accorded to Dorta-Du-que.

Mr. Dorta-Duque filed this lawsuit to enforce his claim in December 2004, three months after the closing of the property. The Settlement Agreement provided that Lennar “shall deliver the Buffer Property within three months following the purchase of the Property by Lennar or its successors or assigns from Diaz ...”. Lennar has failed to prove this affirmative defense.

24. Turning now to Lennar’s defense that the Settlement Agreement was void ab initio for a failure of a meeting of the minds, the court finds that Lennar has failed to meet its burden of proof for this defense. Moreover, the court finds that there is clear, competent and satisfactory proof that the contract contained definite terms and conditions which included the essential elements of a valid contract.

25. The court also rejects Len-nar’s affirmative defense that the Settlement Agreement is not enforceable because of lack of consideration. The court finds that Lennar has failed to meet its burden of proof for this defense. On the contrary, the court finds that there is clear, competent and satisfactory proof that the Settlement Agreement was supported by consideration. By the express terms of the Settlement Agreement, Mr. Dorta-Duque agreed to forbear enforcing his legal right to pursue judicial review of the approval of the Application in exchange for Lennar’s promise to convey the Buffer Property to him under the terms and conditions of the Settlement Agreement. Lennar’s attorney, Juan Mayol, testified that the purpose of entering into the Settlement Agreement that day “was to prevent an appeal from being filed, obviously in this case by Manny, so that it would cause a delay on the transaction.” Mr. Mayol also acknowledged that Lennar could not have expected that this Settlement Agreement was going to guarantee that no delay from an appeal would occur.

26. This court rejects Lennar’s affirmative defense that the plaintiff has a sufficient and adequate remedy at law and is therefore not entitled to specific performance. The court finds that Lennar has failed to meet its burden of proof for this defense. Moreover, the court finds that there is clear, competent and satisfactory proof that the plaintiff does not have a sufficient and adequate remedy at law. The Settlement Agreement itself recites that the Buffer Property “is located directly east of Dor-ta-Duque’s property.” Mr. Dorta-Du-que’s uncontroverted testimony was that the Buffer Property was a unique piece of land, located as it was directly next to his house and farm business, and that he was extremely concerned that his agricultural activities would interfere with the adjoining neighbors that would buy Lennar’s homes if there was not a Buffer in-between. Moreover, it is also uncontroverted that Mr. Dorta-Duque cannot be restored to the status quo, having already given up his legal right to pursue judicial review of the approval of the Application and the time for appellate review having expired.

27. The Defendants’ remaining affirmative defenses are either without merit or are not true affirmative defenses but instead are legal arguments.

WHEREFORE, and by reason of the foregoing, this court enters a final declaratory judgment finding that Lennar was not excused from performing under the Settlement Agreement and further that the plaintiff, Manuel Dorta-Duque, is entitled to specific performance of the Settlement Agreement. Accordingly, the court orders the defendants, Lennar Homes, Inc. and Silver Palm Holdings of Homestead, LLC, to specifically perform and convey the Buffer Property within thirty days from the day of this final judgment to the plaintiff under the terms set forth for said conveyance in the Settlement Agreement.

CORTINAS, J., concurs.

GREEN, J.

(dissenting).

This is an appeal from a final declaratory judgment ordering appellants, Lennar Homes, Inc., and Silver Palm Holdings of Homestead, L.L.C. (collectively “Lennar”), to perform under a settlement agreement made with appellee Manuel Dorta-Duque. Lennar’s obligations to Dorta-Duque were contractually excused for the reasons more fully set forth below and the majority’s holding to the contrary is, respectfully, erroneous as a matter of law. I, therefore, must dissent.

A. BACKGROUND

On September 25, 2002, Lennar executed a Purchase and Sale Contract for numerous acres of real property in south Dade County, Florida, with Manuel Diaz and Emilia Diaz (“Diaz”). Lennar’s agreement to purchase this property was contingent upon, among other things, Diaz’s ability to obtain a zoning change to permit Lennar to build residential homes on the property. If the closing on this property was delayed, the contract contained two significant penalty provisions for Lennar.

Diaz applied for the appropriate zoning change with the Dade County Zoning Appeals Board. Dorta-Duque, who owns the property adjacent to Diaz’s property, objected. The Community Zoning Appeals Board denied Diaz’s request for a zoning change.

Diaz thereafter appealed this denial to the Miami-Dade Board of County Commissioners (“County”). After a hearing on December 19, 2003, the County adopted Resolution Z-24-08 (“Resolution”) which approved Diaz’s request for a zoning change. The adoption of this Resolution was over the objection of Dorta-Duque and other neighboring property owners. The deadline for seeking appellate review of this Resolution in the Circuit Court Appellate Division was thirty days thereafter, or January 20, 2004.

As' Dorta-Duque was the leading opponent of the zoning change, Lennar negotiated with him in an effort to persuade him not to pursue an appeal of the Resolution. This negotiation culminated with the execution of a settlement agreement between Lennar and Dorta-Duque on January 16, 2004. This settlement agreement was the subject matter of the declaratory action below and the instant appeal.

According to the terms of the settlement agreement, Lennar agreed to set aside for purchase by Dorta-Duque a five (5) acre parcel of land adjoining Dorta-Duque’s residence at a price considerably below market value. Lennar’s obligation in this regard, however, was contingent upon no appeal being filed by anyone or any action at law or equity commenced by anyone. Specifically, paragraph six of the settlement agreement provided in relevant part that:

Lennar’s obligations under this Agreement are specifically subject to and conditioned upon the approval of the application and expiration of the applicable appeal period without an appeal or action at law or equity having [sic] filed by anyone.... For purposes of this paragraph, the term appeal shall mean a jurisdictionally sufficient petition for writ of certiorari that is filed in accordance with the Florida Rules of Appellate Procedure which causes the circuit court to issue an order to show cause. For its part, Lennar represents to Dor-ta-Duque that upon the expiration of the appeal period, all conditions would have been met and that Lennar has the ability to close on the purchase.

Pursuant to the terms of the settlement agreement, Dorta-Duque never appealed the Resolution. However, on January 20, 2004, the last day of the appeal period, one of the other objecting neighboring property owners filed a pro se notice of appeal of the Resolution with the Appellate Division on behalf of the other objecting neighbors.

B. APPELLATE PROCEEDINGS BEFORE THE CIRCUIT COURT

In response to the notice of appeal, a flurry of motions and pleadings were filed in the Appellate Division. Significantly a motion to dismiss the appeal for lack of jurisdiction was filed on behalf of the County and Diaz. The grounds for this motion were, among other things, that quasi-judicial decisions of administrative tribunals not subject to the Administrative Procedure Act are reviewable only by cer-tiorari under Florida Rule of Appellate Procedure 9.100(e). Before the court ruled on this motion, however, the appellants filed a petition for certiorari. The court denied the motion to dismiss. Thereafter, the clerk of the court issued a case management order directing Diaz and the County to respond to the petition. No order to show cause was ever issued by the Circuit Court.

After Diaz and the County filed their respective responses to the petition, a three-judge Appellate Division panel reviewed the petition on the merits and issued a per curiam opinion denying the same. The Circuit Court mandate then issued.

The Appellate Division proceedings lasted six months. As a result of this delay, Lennar was required to pay approximately three million dollars in penalties and escalating costs to Diaz under the Purchase and Sale Agreement.

Dorta-Duque demanded Lennar’s full performance under the settlement agreement since he had fully complied with his obligation not to appeal the County’s decision. When Lennar refused to comply, Dorta-Duque filed the declaratory judgment action below.

C. DECLARATORY JUDGMENT PROCEEDINGS

Dorta-Duque filed a two-count complaint against Lennar for declaratory relief and specific performance of their settlement agreement. In response, Lennar filed its amended answer and raised affirmative defenses. Lennar averred, among other things: (1) that its obligations to Dorta-Duque under paragraph six of the settlement agreement were contingent upon no appeal being filed during the applicable appeal period. Hence, since the neighboring property owners filed an appeal of the Resolution, Lennar had no obligation to Dorta-Duque; (2) that pursuant to Florida Rule of Appellate Procedure Rule 9.040(c), the notice of appeal filed by the neighboring property owners was accepted as a timely filed petition for writ of certiorari by the Appellate Division; (3) that by accepting the neighboring property owners’ notice of appeal as a petition for writ of certiorari, the Appellate Division confirmed the jurisdictional sufficiency of the appeal; and (4) that Lennar’s consideration for entering into the settlement agreement with Dorta-Duque was to avoid a time consuming appeal of the Resolution.

Both Dorta-Duque and Lennar agreed that there were no disputed issues of fact and that this dispute centered on the meaning of paragraph six of their settlement agreement. Both parties filed cross-motions for summary judgment. Although they argued that the language in paragraph six of the settlement agreement was unambiguous, the trial court denied both motions. The trial court found paragraph six to be ambiguous and determined that the trier of fact needed to hear and consider the specific facts surrounding the intent of the parties regarding this paragraph.

This case then proceeded to a two-day bench trial where parol evidence was admitted to ascertain the parties’ intent of the following language contained in paragraph six of the settlement agreement.

Lennar’s obligations under this Agreement are specifically subject to and conditioned upon the approval of the application and expiration of the applicable appeal period without an appeal or action at law or equity having [sic] filed by anyone.... For purposes of this paragraph, the term appeal shall mean a jurisdictionally sufficient petition for unit of certiorari that is filed in accordance with the Florida Rules of Appellate Procedure which causes the circuit court to issue an order to show cause.

(emphasis added). It was undisputed at the trial below that this agreement was reached by the parties and their respective counsel on the eve of the expiration of the applicable appeal period for the Resolution. It was also undisputed that the two principal attorneys responsible for the negotiation of this provision had very limited experience with appellate practice or procedure.

It was established at the trial below that Dorta-Duque and Lennar knew during their negotiations that the other objecting property owners were planning to appeal the Resolution. Dorta-Duque also admitted that prior to signing the settlement agreement, he was made aware of the fact that if these property owners filed a notice of appeal, the Circuit Court had the authority to treat it as a petition for writ of certiorari. Dorta-Duque testified that he was concerned that he would lose the benefit of the bargain he had negotiated with Lennar if any of his neighbors filed an appeal or if Lennar itself caused a token appeal to be filed. Lennar’s representative testified that Lennar’s concern was the delay that any appellate review of the Resolution on the merits would cause.

In an apparent effort to address their respective concerns, the parties incorporated the following definition of appeal into paragraph six of the settlement agreement, which has now become the crux of their dispute:

For purposes of this paragraph, the term- appeal shall mean a jurisdictionally sufficient petition for writ of certiorari that is filed in accordance with the Florida Rules of Appellate Procedure which causes the Circuit Court to issue an order to show cause.

Dorta-Duque took comfort in this language because, as explained to him, it meant that even with the filing of a petition for writ of certiorari accompanied with the proper appendix and transcript, the court would still have the authority to decide whether to advance the case forward. Lennar took comfort in this language because it meant that Lennar would contractually be obligated to perform under the agreement with Dorta-Duque unless the Circuit Court Appellate Division reviewed the Resolution on the merits.

Thus, both Dorta-Duque and Lennar crafted this definition of “appeal” in paragraph six to ensure that Lennar would contractually be obligated to perform under the agreement unless the Resolution was reviewed on the merits by the Appellate Division.

Although it cannot possibly be disputed that the Resolution was in fact reviewed on the merits by the Appellate Division, the trial court (and now the majority of this panel) concluded that Lennar is nevertheless obligated to perform under the settlement agreement. Their reasoning appears to be, among other things, that Lennar was not excused from its performance because “no jurisdictionally sufficient petition for writ of certiorari was filed prior to the expiration of the applicable appeal period which, in turn, caused the Circuit Court to issue an order to show cause.” See Op. at -. With all due respect, such a holding is not only legally erroneous, but is logically irreconcilable with the decision of the Circuit Court Appellate Division.

D. ANALYSIS

Initially, I am constrained to point out a fundamental misunderstanding about the Circuit Court’s appellate certiorari jurisdiction to review the County’s Resolution that has unfortunately permeated these proceedings from the inception of the settlement agreement up to, and including, this appeal. Throughout this entire proceeding, everyone involved has assumed that the Appellate Division’s certiorari jurisdiction was discretionary in nature and that the issuance of the show cause order was a prerequisite for the court to entertain a review of the Resolution on the merits. Both such assumptions are incorrect as a matter of law.

The County’s adoption of the subject Resolution, which approved Diaz’s request for a zoning change, was quasi-judicial in nature. See Bd. of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla.1993); Parker Family Trust v. City of Jacksonville, 804 So.2d 493, 497 (Fla. 1st DCA 2001). See also Am. Riviera Real Estate Co. v. City of Miami Beach, 735 So.2d 527, 527 (Fla. 3d DCA 1999); Grace v. Town of Palm Beach, 656 So.2d 945, 946 (Fla. 4th DCA 1995). As a result, pursuant to Florida Rule of Appellate Procedure 9.190(b)(3), which governs the proceedings below, the decision was reviewable by petition for writ of cer-tiorari as a matter of right in the Circuit Court. “Although termed ‘certiorari’ review, review at this level is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal.” Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). See, e.g., Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.l995)(“in other words, in such review the circuit court functions as an appellate court and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency.”); see also Philip J. Padovano, Florida Appellate Practice, 161 (2d ed.l997)(“[t]he scope of review is actually more like a plenary appeal.”). On this first tier mandatory review, the Circuit Court must determine (1) whether procedural due process has been afforded; (2) whether the essential requirements of law have been observed; and (3) whether competent substantial evidence supports the commission’s judgment. Vaillant, 419 So.2d at 626.

Thus, because certiorari review of the Resolution by the Appellate Division was not discretionary but mandatory, no order to show cause would ever be necessary or issued for that Court to review it on its merits. This critical principle was overlooked by the parties and their counsel in drafting the settlement agreement, the trial court below, and my colleagues in the majority on this appeal.

The language in the settlement agreement that defined a jurisdictionally sufficient petition for writ of certiorari as “one that causes the court to issue an order to show cause,” therefore, had no legal effect. That is, once the remaining property owners timely filed their notice of appeal, which the court was authorized to properly treat as a timely filed petition for writ of certiorari, the court was obligated to conduct a plenary review of the Resolution on the merits. The court had no discretion to do otherwise.

It is clear both from the language of the settlement agreement and testimony of the parties themselves that Lennar’s obligation to Dorta-Duque under the agreement was contingent upon there being no certiorari review on the merits of the Resolution. In drafting this agreement, however, the parties mistakenly believed that the issuance of an order to show cause was a prerequisite for the court to review the Resolution on the merits. Notwithstanding their mistake, the very contingency that excused Lennar’s performance under the agreement actually materialized. On certiorari review, the Appellate Division reviewed and denied the County’s Resolution on the merits and denied the petition. Even Dorta-Duque’s own appellate expert at the trial below, to his credit, correctly conceded this fact.

The majority opinion’s holding that Len-nar was not excused from performance under the settlement agreement because “no jurisdictionally sufficient petition for writ of certiorari was filed prior to the expiration of the applicable appeal” respectfully makes absolutely no sense. If no “jurisdictionally sufficient petition for writ of certiorari was timely filed,” on what authority then did the Circuit Court Appellate Division act to review and deny the Resolution on the merits? This is a question that the majority opinion leaves unanswered. Indeed, no one has ever asserted that the decision of the Circuit Court Appellate Division was a legal nullity.

In sum, once the notice of appeal was filed and the Circuit Court Appellate Division properly proceeded to review the County’s Resolution on the merits by way of certiorari review, Lennar’s contractual obligations to Dorta-Duque were extinguished. For all the foregoing reasons, the trial court’s final judgment must be reversed and remanded with instructions to enter final judgment in favor of Lennar.

      . Without citing any authority, the dissent states that because certiorari review by the Appellate Division was mandatory, no order to show cause would ever be necessary to review the Resolution on its merits. The dissent then concludes that in drafting the settlement agreement, “the parties mistakenly believed that the issuance of an order to show cause was a prerequisite for the court to review the Resolution on the merits.” See infra p. 886. If the dissent is correct, this would then be a case of mutual mistake. Had Len-nar Homes ever claimed at any point mutual mistake in the execution of the contract, the proper procedure would have been for Lennar to seek rescission or reformation of the Settlement Agreement. Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1369-70 (Fla.1987) ("A court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument.... Notably, in reforming a written instrument, an equity court in no way alters the agreement of the parties. Instead, the reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached.”) (citations omitted); Barber v. Barber, 878 So.2d 449, 451 (Fla. 3d DCA 2004). A review of the record does not indicate that Lennar ever made such a claim in the trial court nor did Lennar raise this issue on appeal. Courts may not rewrite or add to the terms of a written agreement between parties. Jacobs v. Petrino, 351 So.2d 1036, 1039 (Fla. 4th DCA 1976). The trial court properly refused to do so when it concluded that the Settlement Agreement explicitly required a ju-risdictionally sufficient petition for writ of certiorari. Instead, only a notice of appeal was filed. Furthermore, the Agreement required an order to show cause to be issued by the court. An order to show cause was never issued.

      . It is undisputed that the zoning approval became final, the appeals were exhausted and that Lennar and/or Silver Palm purchased the property.

      . The thirtieth (30th) day fell on Sunday, January 18, 2004, and the following Monday, January 19, 2004, was a legal holiday.

      . The other named defendant, Silver Palm Holdings of Homestead, LLC, is a successor or assign under the Settlement Agreement, and Lennar admits that Silver Palm is now the record title holder of the buffer property at issue in the Settlement Agreement. Throughout this order, the court refers to Silver Palm Holdings and Lennar collectively as "Lennar.”

      .This properly was referred to as "buffer property” and was located immediately adjacent to Dorta-Duque's property.

      . Rule 9.100(g), Fla. R.App. P. provides the requirements for a petition as follows: The caption shall contain the name of the court and the name and designation of all parties on each side. The petition shall not exceed 50 pages in length and shall contain (1) the basis for invoking the jurisdiction of the court; (2) the facts on which the petitioner relies; (3) the nature of the relief sought; and (4) argument in support of the petition and appropriate citations of authority. [Emphasis added]. It is undisputed that the notice of appeal sub judice did not comply with the requirements of Rule 9.100(g).

      . The parties filed and argued cross motions for summary judgment and have taken the position that there are no material issues of disputed fact. Both parties agreed that the outcome of this case was to be decided by simply determining the meaning of paragraph 6 of the settlement agreement. Unfortunately, both parties interpret that paragraph differently and so, a predecessor judge denied the motions. This court considers the language in paragraph 6 of the settlement agreement to be clear and unambiguous and compels a final judgment in favor of Plaintiff and that the interpretation suggested by Lennar is not reasonable. However, Floyd v. Homes Beautiful Const. Co., 710 So.2d 177 (Fla. 1st DCA 1998), precludes the entry of a summary judgment in this situation and, thus, this court has considered parol evidence. See also, Mariner Cay Property Owner’s Ass’n, Inc. v. Topside Marina, Inc., 714 So.2d 1130 (Fla. 4th DCA 1998); Miller v. Kase, 789 So.2d 1095 (Fla. 4th DCA 2001); Royal Am. Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968).

      .Mr. Mayol testified that on January 16, 2004, he was aware that other property owners were threatening to file an appeal. Mr. Dorta-Duque testified similarly and stated he did not believe others were in a position to timely file a jurisdictionally sufficient petition for writ of certiorari and that he believed they would file a notice of appeal and so the settlement agreement was drafted to require more than the filing of a notice of appeal in order to excuse Lennar from performing.

      .It is noteworthy that only a weekend and a legal holiday separated the day on which the settlement agreement was reached (Friday) and the expiration of the appeal period.

      . See Nelson v. City of Sneads, Ft, 921 So.2d 760 (Fla. 1st DCA 2006); Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956); and Mcllmoil v. Mcllmoil, 784 So.2d 557 (Fla. 1st DCA 2001).

      . Lennar did not plead this affirmative defense but the court granted Lennar’s ore tenus motion for leave to amend at the close of the case.

      . Leopold v. Kimball Hill Homes, Florida, Inc., 842 So.2d 133, 136 (Fla. 2nd DCA 2003)(“In deciding whether there has been a meeting of the minds, courts look not to the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing”).

      . Lennar did not plead this affirmative defense either, but the court granted Lennar's ore tenus motion for leave to amend at the close of the case.

      . Boymer v. Birmelin, 227 So.2d 358, 362 (Fla. 3rd DCA 1969)("It is well recognized that forbearance to enforce a legal right may constitute consideration for a promise.” "Consideration is supplied when the circumstances are such that it is reasonable to infer that forbearance was desired and sought by the promisor and forbearance by the promise follows”).

      . Trial transcript Day one at page 212.

      . Trial transcript Day two at page 18.

      . The court notes that paragraph eight of the Settlement Agreement expressly provided that the parties "shall have the right to seek any and all remedies available at law or in equity”

      . Bell v. Alsip, 435 So.2d 840 (Fla. 4th DCA 1983)(pointing out that real estate is unique and reversing for entry of specific performance).

      . Trial transcript Day one at pages 111-112.

      . The first penalty provision, which commenced on February 1, 2004, required Len-nar to pay Diaz monthly increasing interest payments on the purchase price. The second penally provision, which commenced on April 1, 2004, provided that the purchase price for the transaction would increase monthly by an amount equal to 200 times the total number of approved homesites.

      . The thirtieth day was actually January 19, 2004, but since that was a legal holiday, the deadline was extended until January 20, 2004.

      . The other pro se appellants later signed an amended notice of appeal.

      . Fla. R.App. P. 9.190(b)(3); Bd. of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993); Dade County v. Marca, S.A., 326 So.2d 183 (Fla.1976); Teston v. City of Tampa, 143 So.2d 473, 476 (Fla.1962); Grace v. Town of Palm Beach, 656 So.2d 945, 946 (Fla. 4th DCA 1995); City of Ft. Pierce v. Dickerson, 588 So.2d 1080, 1081— 82 (Fla. 4th DCA 1991); Walgreen Co. v. Polk County, 524 So.2d 1119, 1120 (Fla. 2d DCA 1988).

      .Ironically, the trial judge below was a member of this appellate panel.

      . Dorta-Duque, however, did have access to his appellate counsel, Kent Robbins, Esq., via speaker phone during these negotiations.

      . Dorta-Duque acknowledged that his appellate counsel, Mr. Robbins, had informed him of this fact: ,
      [Q] That day when you signed the deal, did you know from any source that the Court had the authority to turn that notice into appeal, that you knew it would be filed into a petition for writ of certiorari? Did you know that?
      [A] Mr. Robbins had warned me of the fact, yes.
      [Q] He did? He told you that before you signed the deal?
      [A] Yes.

      . Dorta-Duque testified as follows:
      [Q] and why are you so sure? What recollection to you have?
      [A] I remember him explaining what that meant and how that would help me.
      [Q] And that's not something that came from Kent Robbins or Mr. Starkman?
      [A] Not that I recall sir.
      [Q] And how did he tell that language would help?
      [A] He explained that it wasn’t just the filing of a writ of certiorari that would make this contact void, but it went further to explain that even if that had been filed on time with the proper appendix and transcripts, that it would still take a judge to order a certain thing.

      [Q] I think you indicated either yesterday or earlier that you just didn't want simply a piece of paper to be file, is that correct, and to stop Lennar's obligation under the deal?
      [A] Yes.

      .Lennar’s representative, Mr. Seijas, testified as follows:
      [Q] Now, it says subject to and conditioned upon> — that. Lennar’s obligations, were subject to and conditioned upon. Was this a critical term of the settlement agreement for you, this term?
      [A] I mean, it really was the heart of the agreement. For us the issue was is [sic] that there would not be an appeal. It would move forward within the courts and it would not be filed by anyone because, again, a delay was a delay.

      [Q] Well, let me ask you, when the "by anyone” was added, other than what you just testified to, was there any concern that he expressed to you that led to any other changes that he expressed to you and changes in the agreement?
      , [A] Well, yeah. And then at that point, again, I think there was a little bit of mistrust on both sides. His concern and he expressed back was that, yeah, but I have to make sure that you guys don’t file some kind of piece of paper or anything, just an appeal that doesn't move forward, that isn’t heard, just to try to get out of this deal. So we have to make sure that this is a real appeal and that basically was what created that dialogue.
      [Q] You became aware that a definition now of appeal was put in the settlement agreement? Were you aware of that?
      [A] Yes. I remember that day Juan and Starkman working together, putting together some language, that would make it such that it was a situation where an appeal was filed and went and move forward and then through the courts, something that was a real delay to Lennar.

      [Q] Yesterday, Mr. Mayol — and you were here — testified that at the time he was negotiating the settlement agreement on behalf of Lennar, that he might not have been as familiar with the Florida Rules of Appellate Procedure as well as he thought he was.
      Now, there was nothing that prevented Lennar or Mr. Mayol from consulting with an appellate attorney during the course of negotiations of that settlement agreement, correct?
      [A] Correct. I can tell you that we were all there discussing the intent of the agreement which the intent of the agreement was that if an appeal was filed and went through the process of the courts, that we no longer — by anyone — that we no longer had the obligation to sell the property to Mr. Dorta-Duque, that the’ fact is that neither Mr. Mayol nor Mr. Starkman, neither one of them were, as you call, experts in appellate law or whatever that may be. But everyone was working together in what I thought was good faith to put on paper the agreement that Manny and I had said.

      . Rule 9.190(b)(3) provides that “[r]eview of quasi-judicial decisions of an administrative body, agency, board, or commission not subject to the Administrative Procedure Act shall be commenced by filing a petition for certio-rari in accordance with rules 9.100(b) and (c), ■ unless judicial review by appeal is provided by general law.” This Rule does not reference the order to show cause provision in Rule 9.100(h) because it is inapplicable to the review of quasi-judicial decisions not subject to the Administrative Procedure Act.

      . In contrast, on a “second tier” certiorari petition before the district court, that court is limited to determining whether procedural due process has been afforded and whether the circuit court applied the correct law. See Vaillant, 419 So.2d at 626. It is not allowed to determine whether the commission’s decision was wrong as a matter of law.

      . Dorta-Duque's expert witness, Joel Per-win, a prominent appellate attorney, testified:
      [Q] My question was, Mr. Perwin — again, if my question is unclear, I apologize. My question was did the appellate division consider the merits of the petition for certiorari in this case?
      [A] Yes.


source: Caselaw Access Project

author: CORTINAS, Judge.

license: Public Domain

text:
    Rachel KRATHEN, Appellant, v. The SCHOOL BOARD OF MONROE COUNTY, Florida, Appellee.
    No. 3D07-815.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Jan. 30, 2008.

      Charles M. Milligan, Key West, for appellant.
    Vernis & Bowling and Michael A. Meadows and Curtis Mollohan, Islamorada, for appellee.
    Before WELLS and CORTINAS, JJ., and FLETCHER, Senior Judge.
   CORTINAS, Judge.

This is an appeal from an order granting final summary judgment in favor of the School Board of Monroe County (“the School Board”) on Rachel Krathen’s claim that the School Board’s negligence led to injuries she sustained during a cheerlead-ing practice in the gymnasium of Key West High School where Krathen was a student. Specifically, Krathen alleged that the School Board was negligent in:

failing to adequately supervise the cheerleading practice at the Glenn Archer Gymnasium[;] conducting the practice without adequate preparation, knowing or having reason to know of the potential for injury to participants; using inexperienced or untrained personnel to supervise the cheerleading practice!);] failing to place protective mats on the floor so as to cushion impact[;] conducting the practice without the coach being present[;] failing to abide by or follow appropriate School Board policies and/or procedures relating to extracurricular activities!);] being generally careless and negligent.

The School Board, by way of affirmative defense, contended that a Consent and Release from Liability Certificate (“Release”) signed by Krathen and her parent/g'uardian, Mary C. Hornberger, barred Krathen’s claim. Based on this affirmative defense, the School Board moved for summary judgment, which the trial court granted. We review an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Here, we conclude that the Release clearly and unambiguously indicates the intent to release the School Board from liability for, as the Release states, “any injury or claim resulting from ... athletic participation.” Under Florida law, this language is sufficient to insulate the School Board from liability for negligence claims. “It is settled law that a pre-inci-dent release is not effective to preclude an action based on the releasee’s subsequent negligence unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts.” Witt v. Dolphin Research Ctr., Inc., 582 So.2d 27, 28 (Fla. 3d DCA 1991). We find that any claim resulting from athletic participation includes the claim for negligence such as was alleged here. Plaintiffs counsel presented no evidence supporting a claim for gross negligence or an intentional tort.

Because we find that the Release covers the negligence claim alleged here, we must determine whether a parent can bind their child to a waiver of liability. Although we recognize this very question was recently certified to the Florida Supreme Court by our sister court, see Fields v. Kirton, 961 So.2d 1127 (Fla. 4th DCA 2007), we find our previous decision in Gonzalez v. City of Coral Gables, 871 So.2d 1067 (Fla. 3d DCA 2004), to be controlling. In Gonzalez, we held that a hold harmless agreement, signed by a parent so that her child could participate in a program whereby students received school credit for training as fire rescue personnel, waived liability in the event of a negligence claim. Id. at 1067. In so holding, we concluded that the program, known as the Coral Gables Fire Rescue Explorer Program, “falls within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Id.

This conclusion was based on the Fourth District’s holding in Shea v. Global Travel Marketing, Inc., 870 So.2d 20 (Fla. 4th DCA 2003), wherein a mother signed an arbitration provision on behalf of herself and her minor child to enable them to travel on an African safari. Id. at 22. Ultimately, the child died on the safari and his father sought to invalidate the arbitration provision so that he could bring a claim against the safari company for wrongful death. Id. In invalidating the arbitration provision, the Fourth District drew a distinction between areas in which parents can waive their children’s litigation rights and areas where parents cannot waive their children’s litigation rights. Id. at 25-26. This distinction was based on policy concerns, with the Fourth District recognizing that a waiver of litigation rights is sometimes necessary to afford children the opportunity to undertake activities beneficial for their health or well-being. Id. at 24. For example, parents may waive their children’s rights in order to obtain medical care or insurance. Id. at 24-25. Additionally, a waiver may also be necessary for schools and other non-profit entities to recruit employees and volunteers to provide “commonplace child oriented community or school supported activities” which are beneficial for children. Id. at 25; see also Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205-06 (1998). The Fourth District then found that there was no public policy reason to support upholding an agreement to arbitrate signed by a parent on behalf of a minor child so that the child could accompany the parent on an African safari. Shea, 870 So.2d at 25. Without deciding “what additional circumstances might support such a waiver,” the Fourth District concluded in a blanket holding that “commercial travel opportunities are not in that category.” Id.

The Florida Supreme Court ultimately rejected this conclusion and held that the arbitration provision signed by the mother on behalf of her child was binding. Global Travel Mktg., Inc. v. Shea, 908 So.2d 392 (Fla.2005). In so doing, the Florida Supreme Court rejected the distinction the Fourth District drew between commercial and not-for-profit activities, implying that the distinction was too narrow. Id. at 404. Instead, the Florida Supreme Court held that parents have the authority to make the decision whether to waive a child’s litigation rights in exchange for participation in an activity the parent feels is beneficial for the child. Id. Moreover, parents are free to make this decision without interference from the State, as parents are presumed to act in the best interests of their children. Id. Thus, “whether [it] be academically or socially focused pursuits, physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or ... an adventure vacation in a game reserve” as was the case in Shea, “[pjarents who choose to allow their children to engage in these activities may also legitimately elect on their children’s behalf to agree in advance to arbitrate a resulting tort claim if the risks of these activities are realized.” Id.

Here, Krathen’s parent/guardian clearly thought participation in cheerleading was beneficial for Krathen and thus was willing to “release and hold harmless” the School Board from “any claim or injury” Krathen suffered as a result of her participation in cheerleading. Because it is within a parent’s authority to make this decision on behalf of his or her child, Krathen and her parent/guardian are bound by the Release.

For the foregoing reasons, and because the remaining issues on appeal are without merit, we affirm the trial court’s entry of final summary judgment in favor of the School Board.

Affirmed.

      . Because we are relying on the portion of the Release signed by Krathen’s parent/guardian, we find it unnecessary to address our decision in Zalkin v. American Learning Systems, Inc., 639 So.2d 1020 (Fla. 3d DCA 1994), which relied on a minor student’s express assumption of risk.


author: PER CURIAM.

text:
    Anthony TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3394.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Anthony Taylor, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order summarily denying appellant’s Florida Rule of Criminal Procedure 3.850 motion is reversed and remanded for further proceedings. The trial judge denied the motion two days after it was sent to him, and the order of denial gives no reasoning and attaches no records which demonstrate that the movant was entitled to no relief. Fla. R.Crim. P. 3.850(d); Hayes v. State, 958 So.2d 571 (Fla. 4th DCA 2007); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007). The motion may not be denied in this manner.

WARNER, STEVENSON and MAY, JJ., concur.


text:
    Robert KENNEDY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0524.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Rehearing Denied Jan. 28, 2008.
    Robert Kennedy, pro se, Petitioner.
    Bill McCollum, Attorney General, and Felicia Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Robert Kennedy filed this action as an appeal. However, because Kennedy is challenging an order denying a public records request, it is more properly treated as a petition for writ of certiorari. See Yanke v. State, 588 So.2d 4, 5 (Fla. 2d DCA 1991) (treating an appeal from an order denying a request for free copies of a state attorney’s files as a petition for writ of certiorari). The petition is hereby denied without discussion.

DENIED.

BARFIELD, DAVIS, and LEWIS, JJ., concur.


author: SUAREZ, J.

text:
    Reva DAVIDPUR as Personal Representative of the Estate of Alex Kleiman, Appellant, v. Esther COUNNE, Appellee.
    No. 3D06-2035.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2008.
    Broad and Cassel and Beverly A. Pohl, Fort Lauderdale, and Gary E. Lehman, Miami, for appellant.
    Dienstag, Blanco & Cox and Mark Dien-stag, Miami, for appellee.
    Before WELLS and SUAREZ, JJ., and FLETCHER, Senior Judge.
   SUAREZ, J.

Reva Davidpur, as Personal Representative of the estate of Alex Kleiman, appeals a final judgment in favor of the defendant, Esther Counne, in a foreclosure action. We reverse. Counne defaulted under the note, but failed to present evidence of additional consideration to support her defense that the note had been orally modified to allow her to postpone payments.

In 2003, Esther Counne executed a note and mortgage to refinance two residential properties owned by Counne on Miami Beach. The mortgage provided that Klei-man, the mortgagee, was not obligated to accept a late payment and could institute foreclosure proceedings after notice and demand. The note provided that all amendments or modifications be in writing and provided a right to foreclose with no right of reinstatement or cure. As of May 2, 2004, Counne was in default on her payments under the note and mortgage. Alex Kleiman died, and Davidpur, as Personal Representative of Kleiman’s estate, sued Counne under the acceleration clause of the note for $159,007.00 plus interest, costs and attorney’s fees. At the non-jury trial, Counne testified that on June 25, 2004, she had a conversation with Kleiman wherein he stated she could hold off on the monthly payments and pay him when she sold the property. Three weeks after this conversation, Kleiman had his attorney send a demand letter notifying Counne that he was accelerating the payments under the note. She denies receiving the letter until some time in August. The trial court found that, although non-payment as of June 2004, had been established, Counne was excused from payment because an effective oral modification had been entered into which postponed payment until the property was sold.

Davidpur contends on appeal that there was no effective oral modification because there was insufficient evidence of consideration to support the modification. Counne argues that an oral modification of the contract was permissible and that her reliance on the modification was sufficient consideration.

We agree with the appellant. Under Blair v. Howard, 144 Fla. 421, 198 So. 80, 81 (1940), a promise to extend the time for payment due under a contract must be founded upon sufficient consideration. “[A] promise to extend the time of a payment becoming due under a contract must be founded upon a sufficient consideration .... [I]t is not a sufficient consideration for an agreement to extend the time of payment that the debtor promises to do anything which he is legally bound to do.” Blair, 198 So. at 81. Even if Kleiman had agreed to extend the time for payment, Counne presented no evidence at trial of any additional action she promised to do as consideration for the modification which she was not already bound to do. In light of these facts, Counne failed to prove her affirmative defense that there was a binding oral contract to modify allowing her to postpone payments. Since Counne has not demonstrated sufficient record evidence of equitable consideration or estoppel, other than that which she was obligated to do in the first instance under the contract, we reverse the final judgment in favor of Counne in the foreclosure action. See Blair v. Howard, 198 So. at 80; Larsen v. Allocca, 187 So.2d 908 (Fla. 3d DCA 1966); see also Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962); Card v. Commercial Bank, 119 So.2d 404 (Fla. 1st DCA 1960).

Reversed.


text:
    Felix CARDENAS-CASANOVA, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-0559.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2007.
    Rehearing Denied Jan. 28, 2008.

      Felix Cardenas-Casanova, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Dornau v. Fla. Parole & Prob. Comm’n, 420 So.2d 894 (Fla. 1st DCA 1982).

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Emma CARTA, Appellant/Cross-Appellee, v. Edgar CARTA, Appellee/Cross-Appellant.
    Nos. 3D06-2521, 3D07-753.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2008.
    Montalvo and Associates and Armando Montalvo, Miami; Margaret S. Brodsky, for appellant/cross-appellee.
    Andrew C. Barnard, Miami, for appel-lee/cross-appellant.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

In Case Number 3D06-2521, we affirm the trial court’s final judgment with respect to the Florida court’s jurisdiction over the persons and property of the parties. In Case Number 3D07-753, with respect to attorney’s fees, we reverse the decision of the trial court and remand with directions to comply with this Court’s June 14, 2005 Order, Case Number 3D04-3113, granting appellant Emma Carta’s motion for attorney’s fees and remanding to fix the amount.

Affirmed in part, reversed in part.


author: SCHWARTZ, Senior Judge. SHEPHERD, J.,

text:
    DOOLEY AND MACK CONSTRUCTORS, INC., Appellant, v. DEVELOPERS SURETY AND INDEMNITY COMPANY and Buildtec Construction Group, Inc., Appellees.
    No. 3D06-689.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 7, 2008.

      Gurley Dramis Lazo; Elizabeth Russo and Jonathan L. Gaines, Miami, for appellant.
    Etcheverry Harrison LLP and Guy W. Harrison and Edward Etcheverry, Plantation, for appellee Developers Surety and Indemnity Co.
    Before SHEPHERD, J., and SCHWARTZ and FLETCHER, Senior Judges.
   SCHWARTZ, Senior Judge.

The appellant Dooley and Mack Constructors, Inc., the general contractor on a Miami-Dade Community College project, was the obligee on a performance bond issued by Developers Surety and Indemnity Company, on behalf of Buildtec Construction Group, Inc., the masonry subcontractor. Dooley appeals from a final summary judgment for the surety in an action for damages it sustained when, after Buildtec defaulted by abandoning the job, Dooley undertook to and did complete the masonry work itself. We reverse.

The basis of the ruling below was the undisputed fact that the plaintiff had not formally notified the surety of its alleged right to cure its principal’s default by itself completing the masonry work or otherwise arranging for the masonry work to be done. Under a familiar term of a “standard” surety bond, which is included in this one, such a failure would indeed result in a termination of the surety’s obligations. E.g., Ins. Co. of N. Am. v. Metro. Dade County, 705 So.2d 33 (Fla. 3d DCA 1997); Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215 (1st Cir.2004); L & A Contracting Co. v. S. Concrete Sens., Inc., 17 F.3d 106 (5th Cir.1994)(applying Florida law); Sch. Bd. of Escambia County v. TIG Premier Ins. Co., 110 F.Supp.2d 1351 (N.D.Fla.2000). This rule does not apply here, however, simply because the particular agreement involved in this case — which was drafted by Dooley (quite obviously for its own benefit) and accepted by the surety — contained an additional decisive provision which, to the contrary, specifically permits Dooley to proceed as it did. See OBS Co. v. Pace Constr. Corp., 558 So.2d 404 (Fla.1990); DCC Constructors, Inc. v. Randall Mech., Inc., 791 So.2d 575 (Fla. 5th DCA 2001); Henderson Inv. Corp. v. Int’l Fid. Ins. Co., 575 So.2d 770 (Fla. 5th DCA 1991); Nat’l Fire Ins. Co. of Hartford v. Fortune Constr. Co., 820 F.3d 1260 (11th Cir.2003)(applying Florida law), cert, denied, 540 U.S. 873, 124 S.Ct. 221, 157 L.Ed.2d 133 (2003). Article 5(d) of the subcontract, which was expressly made a part of the entire agreement, (“Subcontract is by reference made a part hereof, and is hereinafter referred to as the Subcontract”) states as follows:

If, in the opinion of Contractor, Subcontractor falls behind in the progress of the WORK, Contractor may require the Subcontractor to take such steps as Contractor deems necessary to improve the rate of progress including additional labor and labor time, plant time, or other remedies. Additionally, Contractor has the option, but not the obligation, to notify the Subcontractor that upon its failure to satisfactorily improve the rate of progress after forty-eight (48) hours notice, Contractor shall have the right to declare the Subcontract breached and take charge of and complete the performance of the WORK with such persons, firms, or corporations as Contractor shall deem necessary. In the event the cost to complete Subcontractor’s contract exceeds the original contract price, Subcontractor shall be liable for all such extra costs and damages. The Subcontractor, its surety, and any bond shall be hable to all losses, damages, and expenses, including attorneys’ fees and costs incurred in the prosecution or defense of any action, suit, or arbitration incurred by or resulting to the Contractor on the above account.

(Emphasis added). Reading all portions of the several documents together, as the law requires, see OBS Co., 558 So.2d at 406, it seems clear that they expressly grant Dooley the option either to call upon the surety, see Ins. Co. ofN. Am., 705 So.2d at 33, or, as it did, to cure Buildtee’s default itself and thereafter hold the “surety, and [the] bond ... liable to all losses, damages, and expenses,” (emphasis added), without notifying the surety as Article 5(d) simply does not require. Because none of the cases or authorities cited by the surety and relied on by the trial court involves the term which controls this case, a contrary result is required. See RLI Ins. Co. v. St. Patrick’s Home for the Infirm & Aged, 452 F.Supp.2d 484 (S.D.N.Y.2006)(holding that absence of explicit notice requirement of principal’s default to surety distinguishes cases finding that notice is condition precedent to surety’s payment under bond); see generally Kilpatrick Bros. Painting v. Chippewa Hills Sch. Dist., No. 262396, 2006 WL 664210 (Mich.Ct.App. Mar.16, 2006).

Accordingly, we reverse the judgment below with directions to enter summary judgment on liability for the appellant and for further proceedings to determine its damages.

Reversed and remanded.

FLETCHER, Senior Judge, concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent. Neither the relationship of the parties in this case nor the contract documents governing that relationship are unusual, remarkable, or extraordinary. The majority, however, seizes upon an obscure provision of the subcontract agreement, not signed by the surety, to afford Dooley and Mack a remedy not contemplated either in the default provision of the subcontract or the bond. In so doing, I believe the majority misreads and misconstrues these documents.

The majority’s interpretation of the agreements in this case effectively converts the bond into an insurance policy. The sentence upon which the majority relies to find “coverage” in Dooley and Mack, “[t]he Subcontractor, its surety, and any bond shall be liable to all losses, damages, and expenses, including attorneys’ fees and costs incurred in the prosecution or defense of any action, suit, or arbitration incurred by or resulting to the Contractor on the above account,” actually appears in an article entitled “Progress.of the Work” contained within the thirty-one page subcontract agreement signed by the contractor, Dooley and Mack, and the subcontractor, Buildtec Construction Group. The article, in its entirety, reads:

ARTICLE 5. PROGRESS OF WORK.
(a) Subcontractor shall give due consideration that other work is depending upon the work of this Agreement for proper completion. It is agreed that Contractor may require Subcontractor to prosecute some parts of the WORK over parts of the WORK.
(b) Subcontractor shall supply adequate supervision, skilled workmen, tools, materials and equipment to the project, and shall also promptly pay for all materials and labor furnished by him in the WORK. If required by Contractor, weekly certified payrolls shall be provided by the Subcontractor.
(c) Any damages for delay caused by Subcontractor shall be deducted by Contractor from the agreed price for said work. It is agreed that the damages shall be the actual damages as provided by law.
(d) If, in the opinion' of Contractor, Subcontractor falls behind in the progress of the WORK, Contractor may require the Subcontractor to take such steps as Contractor deems necessary to improve the rate of progress including additional labor and labor time, plant time, or other remedies. Additionally, Contractor has the option, but not the obligation, to notify the Subcontractor that upon its failure to satisfactorily improve the rate of progress after forty-eight (48) hours notice, Contractor shall have the right to declare the Subcontract breached and take charge of and complete the performance of the WORK with such persons, firms, or corporations as Contractor shall deem necessary. In the' event the cost to complete Subcontractor’s contract exceeds the original contract price, Subcontractor shall be liable for all such extra costs and damages. The Subcontractor, its surety, and any bond shall be liable to all losses, damages, and expenses, including attorneys’ fees and costs incurred in the prosecution or defense of any action, suit, or arbitration incurred by or resulting to the Contractor on the above account. Should any delay, on the part of the Subcontractor, in the completion of the WORK cause damage to the Owner for which the Contractor may be liable, Subcontractor shall be liable to the Contractor therefore. Should the Contractor lose any bonus monies under its Prime Contract with the Owner as a result of the Subcontractor’s delay, the Subcontractor shall be liable to the Contractor for the amount of said lost bonus as additional damages. Should the Contractor be obligated to pay to the Owner liquidated damages as a result of the Subcontractor’s delay, the Subcontractor shall be liable for said damages, in addition to any other damages incurred by Contractor.
(e)Should Subcontractor be delayed in the progress of the WORK for reasons which it believes is beyond its control, then the time within which the Subcontractor was to complete its contract may be extended by change order. The Subcontractor shall submit the written change order to the Contractor within forty eight (48) hours from the beginning of the delay. Should the Contractor refuse to approve such change order, then the matter shall be referred to the architect or engineer for a determination, which decision shall be final and binding upon the parties.
(f) Contractor shall not be liable to Subcontractor for delay to Subcontractor’s WORK caused by circumstances beyond its control including the delivery of materials which have been ordered in a timely manner or on account of any circumstances caused or contributed to by the Subcontractor or others.
(g) Subcontractor shall not install its WORK on or over the work of others until he has first examined the work performed by others and determined that said work, together with the WORK under his contract, will produce an acceptable intended result in accordance with the Contract Documents and industry standards.
(h) Weekly Subcontractor coordination meetings may be required by the Contractor. If said meetings are scheduled, Subcontractor shall have his job foreman or other supervisory personnel who are able to commit to material deliveries and installation schedules attend said meeting. This requirement will be mandatory even if Subcontractor is not currently working at the job site, up until the completion of this contract.
(i) The times that the job site is available for access by all Subcontractors shall be determined by the Contractor.

(emphasis added).

Article 5 does nothing more than delineate the responsibilities and obligations of the subcontractor concerning the execution of the work and establish the extent of potential liability of the subcontractor and the surety in the event the subcontractor fails to maintain the progress of the work. Indeed, as to the surety, the statement in Article 5(d) of the subcontract that the surety “shall be liable to all losses, damages, and expenses,” not unlike the authorization in the same subsection for the contractor to order a quickened pace or ultimately take over the work, is in all probability legal surplusage. Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 598 So.2d 195, 198 (Fla.1992) (“[Liability of a surety is coextensive with that of the principal. However, the surety’s liability for damages is limited by the terms of the bond.”) (citations omitted). There is nothing in Article 5 of the subcontract that supplants the notice provisions or any other provision of the performance bond.

In contrast, the performance bond affords a different and potentially greater benefit to the obligee, Dooley and Mack, than the remedies available to it under the subcontract, if Dooley and Mack elects to avail itself of the benefit upon a default. That benefit, as found in the Subcontract Performance Bond in this case, is the following:

Whenever Subcontractor shall be, and declared by Obligee to be in default under the Subcontract, ... the Surety may promptly remedy the default, or shall promptly:
1) Complete the Subcontract in accordance with its terms and conditions.
2) Obtain a bid or bids for completing the Subcontract ... and ... arrange for a Subcontract between such bidder and Obligee, and make available as work progresses ... sufficient funds to pay the cost of completion less the balance of the Subcontract price: but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the [Bond penal sum].
In any event, the Principal’s Subcontract time is of the essence, and the Surety agrees to indemnify and save harmless the Obligee of and from any and all loss, damage, and expense, including but not limited to delay damages (liquidated or actual), architectural, accounting, and engineering fees and costs (whether through Principal’s default, suit, trial, appeal, alternative dispute resolution or otherwise), warranty claims, interest, costs and attorney’s fees (whether through Principal’s default, suit, trial, appeal, alternative dispute resolution or otherwise) that Obligee sustains from the Principal’s default up to the penal sum of the Bond as set forth in the first paragraph hereof.
If the Surety does not proceed to remedy the Principal’s default with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Obligee to the Surety demanding that the Surety perform its obligations under this Bond, and then Obligee shall be entitled to enforce any remedy available to the Obligee.

(emphasis added).

Pursuant to this bond provision, Dooley and Mack had a contractual right and option to call upon Developers Surety and Indemnity Company to make good on Bu-ildtec’s contract in the event of a default. If Developers was called upon and faded to meet its obligation, then Dooley and Mack was “entitled to enforce any remedy available to [it as] the Obligee [on the bond].” However, under the terms of the bond, it is clear Dooley and Mack was required to give Developers notice and an opportunity to cure any default or otherwise cause the contract to be completed before it could enforce “any remedy” against the surety. In fact, as the bond describes, Dooley and Mack was required to provide the surety with two notices of default in a very short time frame before it could sue Developers. Dooley and Mack admits it did not provide notices of default, but rather “focused on completing the job itself.” There is no provision of the subcontract which negates the notice requirements of the bond. Under these circumstances, “Florida courts have long recognized that the liability of a surety should not be extended by implication beyond the terms of the contract i.e., the performance bond.” Am. Home, 593 So.2d at 197 (citing State v. Wesley Constr. Co., 316 F.Supp. 490, 497 (S.D.Fla.1970), ajfd, 453 F.2d 1366, 1367 (5th Cir.1972)); Standard Accident Ins. Co. v. Bear, 134 Fla. 523, 534, 184 So. 97, 102 (1938); Gato v. Warrington, 37 Fla. 542, 548,19 So. 883, 884 (1896); see also Crabtree v. Aetna Cas. & Sur. Co., 438 So.2d 102, 105 (Fla. 1st DCA 1983) (“A surety on a bond does not undertake to do more than that expressed in the bond, and has the right to stand upon the strict terms of the obligation as to his liability thereon.”). Today’s decision violates this settled interpretive principle in the law of suretyship.

Two additional points are worth making. First, to the extent that any article in the subcontract is material to a determination of the obligation of Developers on the bond, it is not “ARTICLE 5. PROGRESS OF THE WORK,” seized upon by the majority, but rather “ARTICLE 16. DEFAULT.” This article reads:

ARTICLE 16. DEFAULT
(a) Subcontractor shall be in default upon the occurrence of any of the following events or conditions:
(i) Be adjudged a bankrupt, or makes a general assignment for the benefit of his creditors, or a receiver is appointed on account of its insolvency, or
(ii) Fails to abide by any term of this Agreement and its failure to rectify same after forty-eight (48) hours notice including failure or inability to diligently proceed with the WORK.
(b) Upon default by Subcontractor, Contractor shall have the right to declare this Agreement breached by Subcontractor and to correct, replace and/or re-execute such faulty, defective or damaged work, or to take over the WORK required by this Agreement, ... and complete the Agreement, ... charging any additional costs incurred thereby to Subcontractor. Contractor shall also be deemed entitled to such other remedies as are available under the law of the state in which the project exist[s].
(c) Subcontractor shall be liable to Contractor for all losses, damages, and expenses, incurred in the settlement or defense of any action or suit as a result of Subcontractor’s default or breach of contract, and Contractor may recover on the bond set forth in Article 12 hereof [requiring the posting of the bond in a separate instrument in accordance with local law], and Subcontractor and his surety agree to pay Contractor for such losses, damages, and expenses.

(emphasis added).

It is this article of the subcontract, not Article 5 as the majority suggests, that defines what constitutes a “default,” see Subparagraph “(a),” thus triggering the potential obligation of the surety to respond under the bond. This article also recites the remedies available to the contractor. Subparagraph “(b),” continuing into the first clause of Subparagraph “(c)” describes the remedies the Contractor has against the subcontractor. Subparagraph “(c)” then continues to state that the Contractor “may recover on the bond set forth in Article 12[ ]” (emphasis added). There is no reference to Article V or any suggestion that the bond is in anyway conditioned by Article V. To me, this fact is telling.

Second, this analysis is consistent with the fact that in any dispute between the obligee and a surety, the bond is necessarily the primary determinant of surety liability. See Am. Home, 593 So.2d at 198 (“[Upon default], the terms of the performance bond control the liability of the surety.”). The reasons for this are plain. First, the contract for the work, here the subcontract, usually precedes the issuance of the bond. Renegotiation of a contract or subcontract to assuage any or every concern of the surety at this stage is impractical. Second, as stated by the authors of one of the leading treatises on standard American Institute of Architects (AIA) construction documents in an analogous context:

Typically the parties executing B141 [the official AIA architectural services agreement] may not have read, reviewed, or discussed A 201 [General Conditions of Contract].... Incorporation by reference of other, unseen documents that substantially change the parties’ rights may be perceived as a dishonest or deceptive way to arrange for contractual terms that might not otherwise be acceptable to a party.

Justin Sweet & Jonathan Sweet, 1 Sweet on Constr. Indus. Contracts: Major AIA Documents 49 (4th ed. 1999).

Although there is no evidence of dishonesty or deceptiveness in this case, it is noteworthy that, at an earlier moment of conflict on the job, Dooley and Mack (which, as the majority properly points out, has trumpeted its contract and bond drafting expertise throughout its briefs in this case) declared Buildtec in default under the bond and copied Developers’ purported agent, but then reached an agreement to proceed with Buildtec before the instant controversy that brings us here today. Thus, it is quite apparent that Dooley and Mack knew it was required to give Developers the proper notices and opportunity to cure its principal’s default before any rights accrued to it under the bond.

I would affirm the decision of the trial court.

      . NOW,
      THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Subcontractor shall promptly and faithfully perform said Subcontract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. Whenever Subcontractor shall be, and declared by Obligee to be in default under the Subcontract, the Obligee having performed its obligations thereunder, the Surety may promptly remedy the default or shall promptly:....
      (Emphasis added).

      . For example, Dooley and Mack and the majority seek to make much of the provision in the bond which incorporates the subcontract into the bond. See supra p. 894-95. This is a standard performance bond clause. See, e.g., Clark Constr. Group, Inc. v. Wentworth Plastering of Boca Raton, Inc., 840 So.2d 357, 360 (Fla. 4th DCA 2003); DCC Constructors, Inc. v. Randall Mech., Inc., 791 So.2d 575, 576 (Fla. 5th DCA 2001).


text:
    Cedric J. MITCHELL, Appellant, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellee.
    No. 3D07-1521.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 7, 2008.
    Lawrence R. Metsch, Miami, for appellant.
    Jean Marie Middleton, for appellee.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   PER CURIAM.

Cedric J. Mitchell appeals from a final order of The School Board of Miami-Dade County which adopted the recommended order of the Administrative Law Judge (ALJ) terminating Mitchell’s employment. We affirm.

Mitchell was one of a number of teachers who obtained academic credits for courses from Eastern Oklahoma State College for which he did no work. He used these credits to obtain his teacher certification.

After discovery of the fraudulent transcripts, Mitchell was suspended from his teaching position and termination proceedings were initiated. Mitchell requested a hearing before the Department of Administrative Hearings. The ALJ recommended termination. The School Board adopted the ALJ’s findings of fact, conclusions of law and recommendations in its final order. Mitchell appeals.

Mitchell argues that this Court should require the School Board to promulgate disciplinary guidelines establishing ranges of permissible punishments to be visited upon the School Board’s employees for specified infractions. He states that a few months before his termination, the School Board suspended (rather than terminated) another teacher for a similar infraction. Sch. Bd. of Miami-Dade County v. Nappier, 2006 WL 2826969 (DOAH Case No. 06-1755) (Recommended Order Sept. 29, 2006). The School Board argues that there were distinguishing factors in the Nappier case. Mitchell acknowledges that the Nappier case does not bind the School Board to impose the same discipline in his case, but contends that the absence of guidelines allows inconsistent results to occur in disciplinary cases.

We reject Mitchell’s argument because there is no statutory requirement for the School Board to promulgate guidelines, although the School Board is free to do so if it chooses. By statute, instructional staff may be dismissed for just cause. § 1012.33(l)(a), Fla. Stat. (2003). “Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.” Id. The ALJ found that the conduct involved here fell within the scope of the statute, id., and implementing regulations. See Fla. Admin. Code R. 6B-1.001 (Code of Ethics of the Education Profession in Florida) and R. 6B-1.006 (Principles of Professional Conduct for the Education Profession in Florida).

Because the discipline imposed was authorized by the applicable statute, the order now before us is affirmed.

      . The School Board learned of the enterprise being run by a School Board employee through a 2005 Grand Jury report on teachers who were obtaining college credits without performing any academic work.

      . The parties agree that this case does not involve any collective bargaining agreement.


text:
    The CITY OF KEY WEST, Appellant, v. DUCK TOURS SEAFARI, INC., Appellee.
    No. 3D05-1864.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.

      Robert Tischenkel; Greenberg Traurig, P.A., and Elliot H. Scherker, and Daniel M. Samson, Miami, for appellant.
    Hicks & Kneale, P.A. and Mark Hicks, Miami; Michael R. Barnes, Key West; Kenny Nachwalter, P.A. and Scott E. Per-win, Miami; Robert C. Weinbaum, for ap-pellee.
    Before GERSTEN, C.J., and GREEN and RAMIREZ, JJ.
   PER CURIAM.

The City of Key West (“City”) appeals from a final judgment awarding damages and injunctive relief to Duck Tours Seaf-ari, Inc., following a three-week jury trial. We affirm in part, reverse in part, and remand with instructions.

Duck Tours sought to operate sea-based sightseeing tours of Key West Harbor using World War II vehicles known as “Ducks.” Similar operations exist in Boston, Massachusetts, Washington, D.C., and Branson, Missouri. Duck Tours’ proposed Key West operation contained three components: the pick-up of passengers from various land-based sites for transport to the harbor, a “splash down” into the water, and the harbor tour.

For approximately thirty years, the City has had franchise agreements for sightseeing services with two sister entities: Conch Tour Train, Inc. (the “Train”), and Buggy Bus, Inc., d/b/a Old Town Trolley (the “Trolley”). Both are owned by Historic Tours of America (“HTA”). These agreements were made by municipal ordinances that not only grant franchise status to Train and Trolley, but prohibit the issuance of similar franchises to competitors. The ordinances also prohibit any sightseeing or shuttle company, other than Train and Trolley, from having offices, depots, ticket sales booths, and/or passenger loading or unloading “stops” within 1,000 feet of Train and Trolley’s existing depots. The City in return receives 5% of the gross receipts or $210,000 per year (whichever is greater) from both the Train and the Trolley.

In 1995, Duck Tours wanted to begin its tours in Key West and complained that it could not operate under the limitations imposed by the ordinances. It claimed that the prohibition on obtaining a franchise was a barrier to entering the market and that the 1,000 foot limitation barred it from having access to areas frequented by tourists as well as to local hotels. Moreover, Duck Tours claimed that the 1,000 foot limitation precluded it from using the landing docks used by cruise ships, because that right was exclusively reserved under the ordinances for Train and Trolley.

Notwithstanding these limitations, Duck Tours did in fact begin its operation. Soon thereafter, it was cited by the City for violating the franchise agreement ordinances. Criminal penalties were also imposed. Duck Tours sued the City and the Train and the Trolley for violations of the state antitrust laws, conspiracy in restraint of trade, conspiracy to monopolize and malicious prosecution. It also alleged a claim against the City under 42 U.S.C. § 1983 for damages and injunctive relief for violations of the Commerce Clause of the United States Constitution. The City moved for summary judgment claiming that it was entitled to state action immunity, and that, as a matter of law, there had been no Commerce Clause violation. The trial court granted the City’s motion and Duck Tours appealed.

We reversed the summary judgment on all grounds finding that the ordinances, in effect, granted monopoly rights to the Train and to the Trolley. Duck Tours Seafari, Inc. v. City of Key West, 875 So.2d 650, 654 (Fla. 3d DCA 2004) (“Duck Tours I”). In addition, we held that Duck Tours would have a viable Commerce Clause action if it could demonstrate that the ordinances were discriminatory or an excessive burden on interstate commerce. Id. at 658. Finally, we found that if Duck Tours substantially prevailed in its suit against the City for injunctive and other equitable relief, it would be entitled to its attorney’s fees and costs. Id. at 657.

On remand, the Commerce Clause and antitrust claims were bifurcated, and the Commerce Clause claims were tried before a jury. The trial lasted nearly three weeks. The City moved for a directed verdict, which was denied by the trial court. The jury found that the franchise agreements discriminated against interstate commerce and awarded Duck Tours $13,467,395.00 in damages. The City’s post-trial motions were denied. The court then found that the “franchise agreements” constituted an “unreasonable restraint of trade in the relevant market,” on Duck Tours’ anti-trust claims. The final judgment awarded Duck Tours the damages delineated in the jury’s verdict, plus prejudgment interest, attorney’s fees and injunctive relief. This appeal followed.

The City claims that the $13.5 million jury award must be reversed because it was improperly based on a lost profit theory. We agree and reverse for a new trial on damages.

According to Duck Tours’ principal, Murphy, Duck Tours ceased its Key West operations in June 1996. Thereafter, the company sold its vehicles and used the proceeds to pay off its credit lines and to fund the underlying litigation. Regardless, over the City’s objection, the court allowed Duck Tours to seek damages based solely on purported lost profits between 1997 and 2005.

In Florida, “[i]f a business is completely destroyed, the proper total measure of damages is the market value of the business on the date of the loss,” not lost profits. Sostchin v. Doll Enters., Inc., 847 So.2d 1128, 1128 n. 6 (Fla. 3d DCA 2003), review denied, 860 So.2d 977 (Fla.2003); accord Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So.2d 43, 46 (Fla. 3d DCA 2006); Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 193 (Fla. 2d DCA 2004); Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). Only continuing businesses are entitled to recover lost profits attributable to a defendant’s acts. Sostchin, 847 So.2d at 1128 n. 6. Thus, the trial court erred in allowing Duck Tours to seek lost profits as a measure of its damages.

Finding no merit to the other issues raised on appeal, we affirm in part, reverse in part, and remand for a new trial on damages.

      . Train and Trolley are permitted to operate within 1,000 feet of each other.

      . The ordinance, however, grants City buses and taxis full access to all of these locations.

      . The Train and the Trolley have since settled with Duck Tours.


text:
    Stuart R. KALB, etc., et al., Appellants, v. FERNWOODS CONDOMINIUM ASSOCIATION # 2, Inc., Appellee.
    No. 3D07-625.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Rehearing Denied Feb. 7, 2008.
    Martin A. Feigenbaum, Miami, for appellant.
    Manzini & Associates, and Nicolas A. Manzini, for appellee.
    Before GERSTEN, C.J., and COPE, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Sanchez v. Brumm, 706 So.2d 886 (Fla. 3d DCA 1998); Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So.2d 1305 (Fla. 3d DCA 1987).


text:
    Thomas J. GILBERT, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-1459.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2008.
    Thomas Gilbert, in proper person.
    Bill McCollum, Attorney General and Richard L. Polin, Bureau Chief, for respondent.
    Before GERSTEN, C.J., and SHEPHERD and SUAREZ, JJ.
   On Motion for Rehearing

SUAREZ, J.

We grant the State’s motion for rehearing, withdraw this Court’s prior opinion released on August 15, 2007, and deny Defendant’s Petition for Writ of Mandamus.

Defendant filed a petition for writ of mandamus to require the judge of the Eleventh Judicial Circuit, the circuit in which defendant is presently incarcerated, to rule on his pro se petition for writ of habeas corpus collaterally attacking his judgment and sentence. The judgment and sentence occurred in Monroe County and not in Miami-Dade County. Therefore, the trial court was correct in transferring the defendant’s petition for writ of habeas corpus to the Sixteenth Judicial Circuit, Monroe County. See Broom v. State, 907 So.2d 1261 (Fla. 3d DCA 2005).

Petition is denied.