author: WALLACE, Judge.

text:
    In re ESTATE OF Ladislav Louis MUSIL, deceased. Geraldine Douglass, Appellant, v. Rosa Frazier, as Curator of the Estate of Allen Frazier, deceased, Appellee.
    No. 2D06-2114.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      May L. Cain and William J. Snihur, Jr., of Cain & Snihur, LLP, Aventura, for Appellant.
    Phillip A. Baumann of Phillip A. Bau-mann, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Geraldine Douglass appeals the probate court’s final order that denied her petition to establish a lost or destroyed will of Ladislav Louis Musil (the decedent) and that concluded the decedent had virtually adopted Alen Frazier. Ms. Douglass also challenges the probate court’s findings in an earlier, nonfinal order that Alen Frazier had established four of the five elements of virtual adoption. Ms. Douglass is a niece of the decedent and a beneficiary named in the alleged lost will dated August 8, 1981. We affirm the probate court’s decision that denied Ms. Douglass’ petition to establish the lost or destroyed will. However, we reverse ■ the probate court’s ruling that Alen Frazier had been virtually adopted by the decedent.

I. PROCEDURAL HISTORY

On February 12, 2006, after an eviden-tiary hearing, the probate court entered a nonfinal order determining that Alen Frazier had established four of the five elements necessary to prove that he had been virtually adopted by the decedent. The fifth element, the intestacy of the decedent, was resolved in the final order dated April 6, 2006. In that order, the probate court found that Ms. Douglass had failed “to overcome the presumption that when the original of the last will and testament of a decedent cannot be found after [his] death it is presumed to have been revoked by destruction.” See Daul v. Goff, 754 So.2d 847, 848 (Fla. 2d DCA 2000) (explaining the rebuttable presumption and the movant’s burden to overcome it). Based on this finding, the probate court denied Ms. Douglass’ petition to establish the lost or destroyed will dated August 8, 1981, and concluded that the decedent had died intestate. Consequently, the final order adjudged Alen Frazier to be the decedent’s virtually adopted son.

Ms. Douglass filed a timely notice of appeal from the probate court’s order. M-ter the notice of appeal was filed, Alen Frazier died. Rosa Frazier has-been appointed as the curator of Mr. Frazier’s estate, and she has been substituted as the appellee in this case.

II. THE PETITION TO ESTABLISH A LOST OR DESTROYED WILL

A will that was in the possession of the testator before his death and that cannot be located after his death is ¡presumed to have been destroyed by the testator with the intention of revoking it. See Carlton v. Sims (In re Estate of Carlton), 276 So.2d 832, 833 (Fla.1973); Walton v. Estate of Walton, 601 So.2d 1266, 1266 (Fla. 3d DCA 1992). The proponent of the lost or destroyed will bears the burden of overcoming the presumption that the will was intentionally destroyed. Daul, 754 So.2d at 848. “The first step in overcoming this presumption is” to establish the terms of the will and to offer it for probate. In re Estate of Parker, 382 So.2d 652, 653 (Fla.1980). Section 733.207, Florida Statutes (2005), outlines the procedure for establishing a lost or destroyed will:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

See also Fla. Prob. R. 5.510 (stating additional requirements for the establishment and probate of a lost or destroyed will).

Our record on appeal does not contain a transcript of the March 24, 2006, evidentiary hearing on Ms. Douglass’ petition to establish the lost will. Our record contains only the case progress notes from that hearing. According to the case progress notes, Ms. Douglass presented the probate court with a copy of the alleged lost will and identified it as such. Ms. Douglass, a beneficiary of that will, was not one of the witnesses to the execution of the will. The case progress notes reflect that no other evidence was received by the probate court and that no other witnesses testified. Thus Ms. Douglass failed to present the testimony of at least one disinterested witness to prove the execution and the content of the will as required by section 733.207. Cf. Bury v. DiLegge (In re Estate of Kero), 591 So.2d 675 (Fla. 4th DCA 1992) (holding that a lost will was satisfactorily established where the proponent produced an unsigned carbon copy of the will supported by the testimony of one of the subscribing witnesses, who testified to the execution of the will and that the carbon copy was a correct copy of the will executed by the decedent). In its final order, the probate court denied Ms. Douglass’ petition to establish the lost or destroyed will. In the absence of any testimony proving the execution and the content of the alleged lost will, the record supports the trial court’s ruling. Accordingly, we affirm the probate court’s denial of Ms. Douglass’ petition and its determination that the decedent had died intestate.

III. VIRTUAL ADOPTION

In addition to contesting the' probate court’s denial of her motion to establish a lost or destroyed will, Ms. Douglass challenges the probate court’s determination that Allen Frazier had been virtually adopted by the decedent. Ms. Douglass argues that even, if the probate court was correct in determining that the decedent had died intestate, the court erred in its earlier findings. Ms. Douglass contends that the February 12, 2006, nonfinal order concluding that Allen Frazier had established four of the five elements required to establish that he had been virtually adopted by the decedent was not supported by the evidence. ■

A. The Elements of Virtual Adoption

For over sixty years, Florida law has recognized the concept of virtual adoption. In Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417 (1943), our supreme court considered an estate’s petition for certiorari review of a trial court order that denied the estate’s motion to dismiss an amended complaint. Id. at 418. The complaint had alleged that when the plaintiff was an infant, her natural mother agreed-to allow the foster parents to adopt the plaintiff. Id. The foster parents “took the plaintiff into their home” arid renamed her, giving her their surname. Id. When the foster father died intestate, the plaintiff learned for the first time that the adoption had never been legalized. Id. at 418-19. In her complaint, the plaintiff did not ask the probate court to establish the adoption. Id. at 419. Rather, the plaintiff asked the court to “grant her specific performance of the contract made with her mother and fully performed by the mother and her” by giving her rights in the foster father’s estate. Id. The estate filed a motion to dismiss the plaintiffs amended complaint, and the probate court denied that motion. Id. at 418. The supreme court denied the estate’s petition for certiorari review of the probate court’s order. Id. at 420. The supreme court determined that if the plaintiff could prove the . allegations in her complaint, she would be entitled to the relief she sought. Id.

Following the reasoning in Sheffield and in other cases, the Fifth District listed the five elements of virtual adoption in its review of a judgment that determined heirs. Poole v. Burnett (In re Heirs of Hodge), 470 So.2d 740, 741 (Fla. 5th DCA 1985). The elements of a virtual adoption include:

1. an agreement between the natural and adoptive parents;
2. performance by the natural parents of the child in giving up custody;
3. performance by the child by living in the home of the adoptive parents;
4. partial performance by the foster parents in taking the child into the home and treating the child as their child; and
5. intestacy of the foster parents.

Id. The Fifth District also recognized the Sheffield court’s acknowledgement that in Florida, the purpose of virtual adoption is to provide the child with “an enforceable contractual right.” Id.

B. The Standard of Review

To establish that he or she has been virtually adopted, a petitioner must prove the five elements of virtual adoption by clear and convincing evidence. Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. 1st DCA 1999). When a trial -court has determined that its factual findings are supported by clear and convincing evidence, the appellate court will presume that those findings are correct and must review them “in the light most favorable to the prevailing party below.” Kingsley v. Kingsley, 623 So.2d 780, 786 (Fla. 5th DCA 1993) (citing Carolina Lumber Co. v. Daniel, 97 So.2d 156, 158 (Fla. 1st DCA 1957)). An appellate court will not overturn a-“.‘trial court’s determination that the evidence is clear and convincing ... unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.’ ” C.S. v. Dep’t of Health & Rehabilitative Servs. (In re Interest of B.S.), 697 So.2d 914, 917 (Fla. 2d DCA 1997) (quoting In re Interest of C.L., 654 So.2d 1039, 1040 (Fla. 4th DCA 1995)).

C. Analysis

After an evidentiary hearing, the probate court entered its February 12, 2006, order concluding that Allen Frazier had established the first four elements of virtual adoption. On appeal, Ms. Douglass challenges the probate court’s findings on two grounds. First, Ms. Douglass contends that Allen Frazier did not establish by clear and convincing evidence the existence of an adoption agreement between his mother and the decedent. Second, Ms. Douglass argues that the probate court erred in finding that Allen Frazier had established the first four elements of virtual adoption when, in fact, the probate court determined that the fourth element had not been established by clear and convincing evidence.

In its February 12, 2006, order, the probate court-determined that “elements i, ii, iii [of virtual adoption] are undoubtedly established by clear and convincing evidence.” Ms. Douglass argued at the evi-dentiary hearing that there was insufficient evidence of an agreement between Allen Frazier’s mother and the decedent— the first element of virtual adoption. However, the probate court found that in 1996, when Allen Frazier was sixteen years old, his mother agreed that the decedent would adopt Mr. Frazier and that he lived with the decedent “[f]rom late 1996 onward.” Our review of the hearing transcript and of the evidence, together with our deference to the trial court’s findings, persuades us that Allen Frazier did establish by clear and convincing evidence the first three elements of his claim to have been virtually adopted by the decedent.

The probate court described the evidence in support of the fourth element of virtual adoption as “more problematic” than the evidence that supported the first three elements. The fourth element of virtual adoption is “partial performance by the foster parents in taking the child into the home and treating the child as their child.” Hodge, 470 So.2d at 741. The probate court found that the evidence supported a finding that the decedent “took [Allen Frazier] into his home.” However, as the probate court perceptively noted in its order, “The difficulty relates to whether [the decedent] treated [Allen Frazier] as his child, as that element is construed in terms of the case law and as an equitable principle.” The probate court recognized that the evidence established that Allen Frazier and the decedent may not have had “a typical father/son relationship.” In fact, the probate court rejected Allen Frazier’s characterization of his relationship with the decedent as a father/son relationship, finding, “[T]hat characterization [is] against the manifest weight of the evidence.” Despite the failure of proof on the fourth element, the probate court found-based on equitable principles — that a virtual adoption had . occurred. Here, the probate court fell into error.

Y. CONCLUSION

Notwithstanding its explicit rejection of Allen Frazier’s proof on the fourth element of virtual adoption, the probate court ruled: “There exist élements 1 through 4 of the required 5 elements to establish a virtual adoption between the decedent and [Allen Frazier].” But the probate court’s findings establish without question that Allen Frazier did not prove the fourth ele- ' ment of virtual adoption by clear and convincing evidence. Accordingly, we reverse the portion of the probate court’s final order concluding that if the decedent died intestate, then Allen Frazier was the virtually adopted son of the decedent. We remand this case to the probate court for further proceedings not. inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.-

DAVIS, J., and THREADGILL, EDWARD F„ SENIOR JUDGE, Concur.


source: Caselaw Access Project

author: CANADY, Judge.

license: Public Domain

text:
    LYNKUS COMMUNICATIONS, INC., Appellant, v. WEBMD CORPORATION, Medical Manager Health Systems, Inc., and John Kang, Appellees.
    No. 2D04-3967.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, and Richard T. Petitt of Bricklemyer Smolker & Bolves, P.A., Tampa, for Appellant.
    Dennis P. Waggoner and Landis V. Curry III of Hill, Ward & Henderson, P.A., Tampa, for Appellees WebMD Corporation and Medical Manager Health Systems, Inc.
    James M. Landis and Jon P. Tasso of Foley & Lardner LLP, Tampa, for Appel-lee John Kang.
   CANADY, Judge.

This case arises from a stillborn business relationship between appellant Lyn-kUs Communications, Inc., and appellees WebMD Corporation, Medical Manager Health Systems, Inc., and John Kang, who' was an officer of Medical Manager. Lyn-kUs sued the appellees. The gravamen of LynkUs’s complaint was that the appellees had failed to carry out an oral agreement under which LynkUs would provide a “wireless communications solution” to the customers of Medical Manager and WebMD.

At issue in this appeal are claims by LynkUs against all the appellees for fraud, negligent misrepresentation, promissory estoppel, and quantum meruit and a claim by LynkUs against WebMD and Medical Manager on an account stated. The trial court granted summary judgment in favor of the appellees on these claims on the ground that they were barred by the statute of frauds. The appellees had also moved for summary judgment on the ground that LynkUs’s claims were inconsistent with arid barred by the merger and modification provisions of a confidentiality agreement.

After the- trial court granted summary judgment, LynkUs’s remaining claim of misappropriation of trade secrets was tried. The jury returned a verdict in favor of the appellees, and final judgment was entered in their favor. LynkUs has not challenged the verdict on the trade secrets claim.

LynkUs contends that the trial court erred in applying the statute of frauds as a bar to the claims at issue here. LynkUs urges that the statute of frauds was inapplicable because there was a disputed issue of fact concerning whether the agreement could have been performed within one year and thus fell outside .the scope of the statute. LynkUs further urges that the doctrine of part performance prevents application of the statute under the circumstances present here. LynkUs also relies on a statutory exception from the statute of frauds for the sale or purchase of securities. Additionally, LynkUs argues that the statute of frauds is not a defense to claims of intentional tort, quantum meruit, or account stated. Finally, LynkUs asserts that the provisions of the confidentiality agreement, which the appel-lees urge as an alternative ground for af-firmance, do not preclude the claims made by LynkUs.

We begin our analysis of LynkUs’s arguments with a discussion of the statute of frauds. We then turn to the provisions of the confidentiality agreement and-the alternative ground urged by the appellees for affirmance. The summary judgment in favor of the appellees can be affirmed only if they met their burden of “prov[ing] the non-existence of genuine triable issues.” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966).

The statute of frauds provides in pertinent part as follows:

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof, ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

§ 725.01, Fla. Stat. (2000). “The statute of frauds grew out of a purpose to intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos.” Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1938). The statute is designed “to prevent persons from being enmeshed in and harassed by claimed oral promises made in the course of negotiations not ending in contracts reduced to writing.” Cohen v. Pullman Co., 243 F.2d 725, 729 (5th Cir.1957). “The statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.” Yates, 181 So. at 344.

A core feature of the statute is that it applies only to agreements that are “not to be performed within the space of 1 year from the making thereof.” § 725.01. For the statute to make an agreement unenforceable, “it must be apparent that it was the understanding of the parties that [the agreement] was not to be performed within a year from the time it was made.” Yates, 181 So. at 344.

When ... no definite time was fixed by the parties for the performance of their agreement, and there is nothing in its terms to show that it could not be performed within a year according to its intent and the understanding of the parties, it should not be construed as being within the statute of frauds. ■
... [W]hen no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.

Id. (citation omitted).

In the instant case, it is clear “from the object to be accomplished ... and the surrounding circumstances” that the agreement alleged by LynkUs was intended to “extend for a longer period than a year.” Id. The fact that the business arrangement could commence within one year of the parties’ alleged agreement is of no moment. The evidence before the trial court shows beyond dispute that the joint business arrangement which was contemplated by LynkUs — but never memorialized in a writing — would be a long-term arrangement or an arrangement that, by its very nature, would extend for more than a year.

It is thus undisputed that the alleged agreement essentially “called for the establishment of an ongoing business.” Verhaegen v. Montigny, 553 So.2d 756, 758 (Fla. 2d DCA 1989). “ ‘An oral agreement to enter into a new business which will continue indefinitely has been held to be within the purview of ” the statute of frauds. Khawly v. Reboul, 488 So.2d 856, 858 (Fla. 3d DCA 1986) (quoting Weinsier v. Soffer, 358 So.2d 61, 63 (Fla. 3d DCA 1978)); see also Viscito v. Fred S. Carbon Co., 717 So.2d 586, 587 (Fla. 4th DCA 1998) (holding that where it was “undisputed that the parties’ oral agreement created a business relationship that lasted over an extended and indefinite period of time[,] ... the trial court correctly concluded that enforcement of the agreement was barred by the Statute of Frauds”); Chong v. Milano, 623 So:2d 536, 537 (Fla. 4th DCA 1993) (“Since the business agreement was to last indefinitely, the statute of frauds bars its enforcement.”).

LynkUs also relies on the provision of section 678.1131, Florida Statutes (2000), which makes the statute of frauds inapplicable to contracts for the sale or purchase of securities. LynkUs’s argument on this point is no more availing than its argument that the agreement was to be performed within one year. Although LynkUs has claimed—and adduced evidence to support its claim—that Kang contemplated acquiring stock in LynkUs in connection with the arrangement for Lyn-kUs to provide the wireless communications solution to the customers of Medical Manager and WebMD, that circumstance is tangential to LynkUs’s cause of action. The alleged securities transaction is not the basis for LynkUs’s claims. Accordingly, section 678.1131 has no application here.

We also reject LynkUs’s contention that the doctrine of part performance precluded application of the statute of frauds. To begin with, there was no part performance of the alleged business arrangement which is the basis for LynkUs’s claims. It is undisputed that LynkUs never provided the “solution” to the customers of the ap-pellee corporations. Furthermore, the doctrine of part performance does not apply to actions “for the recovery of damages for alleged breach of an oral contract” within the operation of the statute of frauds. Elsberry v. Sexton, 61 Fla. 162, 54 So. 592, 593 (1911); see also Winters v. Alanco, Inc., 435 So.2d 326, 331 (Fla. 2d DCA 1983); Wharfside at Boca Pointe, Inc. v. Superior Bank, 741 So.2d 542, 545 (Fla. 4th DCA 1999); Collier v. Brooks, 632 So.2d 149, 155 (Fla. 1st DCA 1994); Dwight v. Tobin, 947 F.2d 455, 459 (11th Cir.1991).

Accordingly, LynkUs succeeds on none of the broad grounds it urges for taking the agreement at issue out of the statute of frauds. We thus turn to LynkUs’s argument that specific causes of action are, by their nature, not subject to the statute of frauds. This argument is directed to the causes of action for fraud, promissory es-toppel, quantum meruit, and account stated.

LynkUs’s argument that a claim for fraud cannot be barred by the statute of frauds is refuted by Canell v. Areola Housing Corp., 65 So.2d 849, 851 (Fla. 1953), where the court stated that a suit for “damages for fraud and deceit” was “simply an attempt in an indirect manner to obtain damages for breach of the contract.” The court held that under the statute of frauds, “ ‘an action for damages cannot be maintained on the ground of fraud in refusing to perform the contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it.’ ” Id. (quoting 25 R.C.L. 691); see also Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318, 319 (Fla. 5th DCA 2002); Ostman v. Lawn, 305 So.2d 871, 873 (Fla. 3d DCA 1974); Ashland Oil, Inc. v. Pickard, 269 So.2d 714, 721 (Fla. 3d DCA 1972); Mark Andrew of the Palm Beaches, Ltd. v. GMAC Commercial Mortgage Corp., 265 F.Supp.2d 366, 382 (S.D.N.Y.2003).

LynkUs is likewise unjustified in relying on authorities concerning the tort of fraudulent inducement. See Attanasio v. Excel Dev. Corp., 757 So.2d 1253 (Fla. 4th DCA 2000); cf. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla.1996). LynkUs has not made a claim for fraudulent inducement, but for fraud in the performance of an agreement. The alleged “ ‘misrepresentations relate to the breaching party’s performance of the contract’ ” and do not establish a basis for “ ‘an independent cause of action in tort’ ” for fraudulent inducement. HTP, Ltd,., 685 So.2d at 1240 (quoting Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc., 209 Mich.App. 365, 532 N.W.2d 541, 545 (1995)).

LynkUs similarly fails in its argument that the statute of frauds cannot be applied to a claim for promissory estoppel. In Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777, 779 (Fla. 1966), the supreme court declined to “adopt by judicial action the doctrine of promissory estoppel as a sort of counteraction to the legislatively created Statute of Frauds.” See also W.R. Grace & Co. v. Geodata Servs., Inc., 547 So.2d 919, 924-25 (Fla.1989); Dep’t of Health & Rehabilitative Servs. v. Law Offices of Donald W. Belveal, 663 So.2d 650, 653 (Fla. 2d DCA 1995); Coral Way Props., Ltd. v. Roses, 565 So.2d 372, 374 (Fla. 3d DCA 1990); Harris v. Sch. Bd., 921 So.2d 725, 735 n. 9 (Fla. 1st DCA 2006); Mark Andrew of the Palm Beaches, Ltd., 265 F.Supp.2d at 382.

LynkUs’s quantum meruit claim is a different matter. In Mills v. Joiner, 20 Fla. 479 (1884), the court held that where a contract is unenforceable under the statute of frauds, liability may nonetheless be imposed “not upon the agreement, but upon a quantum meruit, to the extent of the benefit received.” (Internal quotation marks omitted.) See also Harrison v. Pritchett, 682 So.2d 650, 652 (Fla. 1st DCA 1996). Accordingly, we conclude that the statute of frauds did not bar the claim for quantum meruit.

We also recognize that to the extent a claim of account stated is based on an executed contract rather than on an executory contract, it will fall outside the operation of the statute of frauds. See Dionne v. Columbus Mills, Inc., 311 So.2d 681, 683 (Fla. 2d DCA 1975).

We thus turn to the appellees’ argument that the provisions of a confidentiality agreement entered into by LynkUs provide an alternative basis for affirming the summary judgment.

The agreement between LynkUs and Medical Manager, which was entered into on September 5, 2000, recited that the parties “desire to explore and discuss the potential mutual benefits from joint business arrangements or activities involving providing a communications solution” to Medical Manager’s “customer base.” The agreement extended to the parties’ “affiliated companies.” WebMD is affiliated with Medical Manager. The agreement set forth detailed provisions concerning the confidentiality of information disclosed during the discussion between the parties. The agreement also contained two provisions that are pertinent to the claims at issue in this appeal.

The first of these provisions made clear that the parties were only entering into discussions concerning a potential business arrangement and were not binding themselves to undertake such an arrangement: “Nothing in this Agreement shall require either [Medical Manager] or LYNKUS to enter into any business arrangement or transaction or to negotiate any such business arrangement or transaction for any specified period of time.”

The second relevant provision is a merger and modification provision: “This Agreement represents the entire Agreement between the parties with respect to the subject matter hereof, superseding all previous oral or written communications, representations or agreements. This Agreement may be modified only by a duly authorized and executed writing signed by both parties.”

LynkUs contends that these provisions have no bearing on the claims at issue here but relate solely to the requirements concerning the confidentiality of information. We reject this interpretation of the agreement. The “subject matter” of the agreement is the contemplated “joint business arrangements or activities involving providing a communications solution” to the “customer base” of Medical Manager and the discussions related to such arrangements or activities. All of the claims at issue in this appeal are intrinsically related to that subject matter. And the pertinent provisions of the agreement make clear beyond, dispute that-the parties had done nothing more than enter confidential'discussions concerning a potential business arrangement.

LynkUs’s claims for quantum meruit and account stated — as well as all the other claims at issue here — cannot be reconciled with the plain language of the agreement. The claim for consulting services represented by the account stated claim— reflected in an invoice dated September 1, 2000 — is unequivocally superseded by the provision that the September 5, 2000, agreement entered into by the parties was their “entire” agreement and “su-persed[ed] all previous oral or written communications, representations or agreements.” The quantum meruit claim— which is based on an implied contractual undertaking — is likewise defeated by the express agreement of the parties setting forth the limitations on their relationship and requiring that any alteration in that relationship be accomplished “only by a duly authorized and executed writing signed by both parties.” LynkUs has presented no basis for escaping the operation of the clear terms of the confidentiality agreement.

The summary judgment in favor of the appellees was warranted. The final judgment for the appellees is therefore affirmed.

Affirmed.

SALCINES and DAVIS, JJ., Concur.

      . LynkUs has made other points concerning the trial court’s summary judgment ruling which we have determined do not merit discussion.


text:
    Jessica Reed WRIGHT, Appellant/Cross-Appellee, and Melton H. Little, Intervenor/Appellant, v. Wayne W. WRIGHT, Appellee/Cross-Appellant.
    Nos. 2D05-4801, 2D05-5547.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      Melton H. Little of Kallins, Little, Delgado & Opstal, P.A., Palmetto, for Appellant/Cross-Appellee Jessica Reed Wright and Melton H. Little of Kallins, Little, Delgado & Opstal, P.A., Palmetto, for In-tervenor/Appellant Melton H. Little.
    Susan J. Silverman, Sarasota, for Appel-lee/Cross-Appellant.
   CANADY, Judge.

The former wife, Jessica Reed Wright, appeals the final judgment of dissolution of marriage and the amendment to the final judgment of dissolution of marriage. The former wife’s trial counsel, Melton H; Little, intervened in order to challenge the portion of the final judgment awarding attorney’s fees and costs to the former wife. The former husband, Wayne W. Wright, cross-appeals, challenging the equitable distribution of property and the award of attorney’s fees and costs to the former wife. For the reasons explained below, we reverse the portion of the award of attorney’s fees and costs specifying the method of payment. We affirm the final judgment and the amendment to the final judgment in all other respects without discussion.

The former wife and the former husband married in June 1996. They had two daughters during their marriage — one born in January 1998 and one born in July 2000. The former wife and the former husband separated in February 2004. The dissolution proceedings were initiated in June 2004.

In the final judgment of dissolution entered on August 9, 2005, the trial court awarded the former wife

the exclusive use and possession of the marital home ... until such time as the youngest child reaches the age of 18 and graduates from high school or in no event later than her 19th birthday, or until the Wife dies, remarries, cohabi-tates, the Wife elects to abandon her occupancy[,] or the parties agree to the sale of the home. At that time the house shall be listed with an independent realtor and sold.... The proceeds of the sale shall be divided equally, and then the deductions made from each parties’ share as outlined in the judgment.

The trial court also found that “[t]he Husband has income and assets from which he can be ordered to pay attorney’s fees and costs.” The trial court ordered that “[t]he Husband shall pay the Wife’s attorney’s fees and costs in the amount of $87,976.95. Any balance due at the time of the sale of the marital home shall be deducted from the Husband’s share and paid to the Wife for payment to her attorney.”

On August 17, 2005, the former wife filed a motion for rehearing and reconsideration, claiming — among other things— that

[i]t is unreasonable, unfair, inequitable and unsupported by law to require counsel for the Former Wife to wait thirteen (13) years after the entry of the Final Judgment to receive payment for services rendered to the Former Wife in this action. Further, the Final Judgment does not provide for the entry of a judgment against the Former Husband for payment of these amounts[ ][and] does not provide for interest on the amounts owed to counsel for the Former Wife.

On August 25, 2005, the trial court granted portions of the former wife’s motion for rehearing- and reconsideration but denied her request related to the award of attorney’s fees and costs. On October 6, 2005, the trial court entered an amendment to the final judgment of dissolution, reflecting the trial court’s rulings on the former wife’s motion for rehearing and reconsideration. This amendment did not affect the final judgment provisions concerning the award of attorney’s fees and costs.

On appeal, the former wife’s counsel argues that the trial court erred in tying the award of attorney’s fees and costs to the former husband’s interest in the marital home because the marital home may not be sold until the youngest child reaches the age of eighteen. The former wife’s counsel claims that fees should generally be paid in large partial payments or a lump sum and that the trial court’s award is unreasonable and unsupported by law.

An award of attorney’s fees and costs is reviewed for abuse of discretion. Highlands Carpentry Serv., Inc. v. Connone, 873 So.2d 611, 613 (Fla. 2d DCA 2004); Kelly v. Kelly, 925 So.2d 364, 369 (Fla. 5th DCA 2006). Section 61.16(1), Florida Statutes (2004), provides in relevant part that “[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter.” “The purpose of'the section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Balko v. Balko, 957 So.2d 15, 16 (Fla. 2d DCA 2007) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)).

We conclude that the structure of the award of attorney’s fees and costs to the former wife was manifestly unreasonable because despite the trial court’s determination that the former husband had the ability to pay the former wife’s fees and costs, payment of the award might not be made until 2019, when the youngest child turns nineteen years old. See Smith v. Smith, 495 So.2d 229, 230 (Fla. 2d DCA 1986) (stating that because “use and possession of the home had been awarded to the wife until the youngest child attains the age of eighteen years,” payment of the former wife’s attorney’s fees could not be made from the funds from the sale of the home); Hood v. Hood, 535 So.2d 715, 715 (Fla. 5th DCA 1989) (holding that “[t]he trial court abused its discretion in allowing the husband a seven[-]year payment period”); Urbieta v. Urbieta, 469 So.2d 930, 931 (Fla. 3d DCA 1985) (holding that trial court abused its discretion in its award of attorney’s fees to the wife because- “it would take eight years for the husband to discharge the remaining” obligation and the husband had a clear ability to pay). Allowing such a structure would discourage competent attorneys from representing clients in dissolution of marriage cases, thereby defeating the purpose of the statute providing for attorney’s fees and costs in dissolution cases. See Williams v. Williams, 697 So.2d 1311, 1312 (Fla. 3d DCA 1997) (holding that “minimal installment payments are unreasonable and defeat the purpose of the award”).

Therefore, we reverse the portion of the award of attorney’s fees and costs in the final judgment of dissolution of marriage specifying the method of payment and remand for further proceedings. On remand, the trial court shall fashion a reasonable method for the former husband to pay the former wife’s attorney’s fees and costs. See id. The trial court shall also award interest on the amount from the date of entitlement. See Ericksen v. Fastening Sys., Inc., 932 So.2d 271, 271 (Fla. 2d DCA 2005); Stoler v. Stoler, 679 So.2d 837, 838 (Fla. 2d DCA 1996).

Affirmed in part; reversed in part; remanded.

NORTHCUTT, C.J., and MENENDEZ, MANUEL, JR., Associate Judge, Concur.


author: CASANUEVA, Judge.

text:
    Ronald Wayne FOREMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5911.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      Elton J. Gissendanner III, of E.J. Gis-sendanner III, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for Appellee.
   CASANUEVA, Judge.

Ronald Wayne Foreman, convicted of two counts of capital sexual battery on a single victim under twelve years old, asserts that the trial court erred by admitting irrelevant and prejudicial testimony elicited by the State. We agree and because we are unable to conclude that the State met its burden to demonstrate harmless error, we reverse and remand for a new trial.

Procedure and Facts

This appeal is from the judgment and sentence imposed after the jury verdict in Mr. Foreman’s second trial on charges that he committed two violations of section 794.011(2), Florida Statutes (1997), each count alleging the perpetration of a capital sexual battery on K.Z. Before the first trial began, the trial court, based on the State’s representations, denied Mr. Foreman’s motion in limine, which sought to prohibit the introduction of testimony claimed to be Williams rule evidence. During the trial, however, the court concluded that the State’s evidence was not as represented at the pretrial hearing. In part, the trial court observed:

There is no testimony whatsoever about this. We now have two witnesses. I let the first one slide. I didn’t feel good about it but I did. I thought it was close. This is so far afield that I’ve got no choice but to grant his motion. I am afraid this case is now going to grant — I have no choice but to grant a mistrial. There is irreversible damage by these two witnesses by what I was told and what I ruled upon in the motion in li-mine and the Williams rule testimony.

Following these comments, the court granted the defense motion for mistrial.

At the second trial, the State attempted to bolster K.Z.’s testimony by introducing the testimony of a former friend, T.F., who was fifteen when she took the witness stand. Before she moved away from Florida, T.F. lived nearby and would go to play at KZ.’s house. On one occasion, while playing a game called “four corners” in the common room of the house, she saw Mr. Foreman touch K.Z. In pertinent part, she stated: “I don’t really remember because I wasn’t paying that much attention because I knew when I looked over there, he was touching her between her legs ... it was touching another part of her body ... like the vagina area.” T.F. stated this touching took place while K.Z. and Mr. Foreman were fully clothed. Mr. Foreman was seated in a chair as K.Z. stood and played the “four corners” game. Finally, in response to the State’s question whether the location of the touching was “on her vagina,” T.F. answered “yes ma’am.” Our examination of the entire record has caused us to conclude that this challenged evidence was not properly admitted, and the error was so harmful that a new trial is mandated.

Improper Admission of Evidence

Our resolution of the evidentiary issue focuses upon the application of evidence code sections 90.404 and 90.403, Florida Statutes (2005). Section 90.404(2)(b)(l) provides that in a criminal case where a defendant is charged with a “child molestation” crime, evidence that the defendant committed “other crimes, wrongs, or acts of child molestation is admissible.”' “Child molestation,” for purposes of this eviden-tiary section, is conduct “proscribed by s. 794.011 or s. 800.04” and when committed against a person sixteen years of age or younger. § 90.404(2)(b)(2).

Here, two of the statutory requirements are met. First, the offense charged is a violation of section 794.011, Florida Statutes (1997), and second, the alleged victim is less than sixteen years of age.

Next, we must determine whether the proffered testimony alleging that Mr. Foreman touched the crotch area of the child’s clothing meets the statutory requirements of admissibility. As is often the case, relevancy is the threshold question. Thus,

the similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less .relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

McLean v. State, 934 So.2d 1248, 1259 (Fla.2006) (quoting § 90.403).

To be admissible under this section, the challenged evidence must constitute a crime, wrong, or act of child molestation. The challenged evidence falls well short of constituting a violation of either section 794.011 or section 800.04 Fla. Stat. (1997) and therefore, by definition, cannot constitute an act of child molestation. Additionally, before a prior act of child molestation may be admitted, “the trial court must find that the prior acts were proved by clear and convincing evidence.” McLean, 934 So.2d at 1262. Here, this requirement is not met. The evidence in question consisted only of T.F.’s description of Mr. Foreman’s touching K.Z. on the clothed vaginal area between her legs. The witness did not remember the event clearly because she was not paying much attention. In fact, T.F. was extremely vague about the date of the incident and would admit only it occurred “approximately” five or six years previous to the 2005 trial. Her testimony was insufficient for a factfinder to determine whether the touching was intentional or inadvertent, lingering or brief, or salacious or accidental. Similarly, the challenged evidence on this record does not establish the commission of a crime or wrong. The evidence established only that K.Z. was touched. The scarcity of detail precludes its admissibility under section 90.404(2)(b).

Finally, prior to admission the trial court is required to assess whether the probative value of the claimed act of molestation is substantially outweighed by the danger of unfair prejudice. Even assuming that the challenged evidence met one of the statutory elements for admissibility, it would not have passed the test for unfair prejudice. Our supreme court in McLean provided a minimum analytical checklist of four inquiries. The trial court must evaluate:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed;
(2) the closeness in time of the prior acts to the act charged;
(3) the frequency of the prior acts; and
(4) the presence or lack of intervening circumstances.

Id. at 1262.

Mr. Foreman’s touching of the crotch area of the child’s clothing is not only dissimilar from the criminal acts alleged by KZ.’s testimony, the acts are, in fact, substantially different when considered under the above checklist:

(1) Location and manner of the acts: The acts charged involved union and/or penetration between Mr. Foreman and K.Z. in a bedroom with both Mr. Foreman and K.Z. unclothed, from the waist down. However, T.F.’s observations were that Mr. Foreman touched a clothed area of K.Z. during a game of “four corners” in a common room with other children present. T.F. testified she did not observe any intercourse or oral sex between Mr. Foreman and K.Z.
(2) Closeness of time between the acts charged and those observed: T.F. was unable to provide a date of the touching. In fact, it is possible that the touching she observed took place after the date of the criminal allegations.
(3) Frequency of prior bad acts: T.F. indicated she often played at KZ.’s house with other children when Mr. Foreman was the only adult present. Yet there was only a single observation of a touching. Again, T.F.’s description of the touching was vague and she admitted it occurred during a game that involved running and horsing around. The observation of a single touching is far different than the repeated nature of the charged acts.
(4)Presence or lack of intervening circumstances: The charged ■ acts. are so dissimilar from what T.F. described, an “intervening circumstance” analysis is really not feasible.

Because of substantial differences between the charged acts and T.F.’s testimony, the evidence should not have been permitted pursuant to section 90.404(2)(b).

In sum, even assuming that the evidence was marginally relevant, it should have been rejected because otherwise relevant evidence may be excluded' where its “probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403. We have discussed the negligible probative value of the testimony pertaining to the touching incident and its tendency to establish bad character or propensity. A proper weighing process pursuant to section 90.403 would- have required its exclusion.

Section 90.404(2)(b), however, allows evidence described as the' “commission of other crimes, wrongs, or acts of child molestation” to be admitted when relevant. Sections 90.404(2)(b)(l) and .402 allow the admission of relevant evidence that tends to prove or disprove a material fact. § 90.401. In this case, however, the nexus between the touching and the charged crimes, as well as the manner in which they were allegedly committed, is deficient. T.F.’s testimony sheds not a scintilla of light on Mr. Foreman’s motive, opportunity, intent, preparation, plan, or knowledge. Because Mr. Foreman denied that the events ever took place, no issues were raised as to identity, mistake, or accident. At best, the touching evidence tended solely to prove Mr. Foreman’s bad character or propensity to interact improperly with K.Z. See § 90.404(2)(a). “Evidence that defendant committed a collateral crime is inherently prejudicial because it creates a risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof he committed the charged offense.” Jones v. State, 944 So.2d 583, 536 (Fla. 5th DCA 2006).

For these reasons, we conclude the evidence did not meet the relevancy test of either statutory provision and was not admissible.

Requirement for New Trial

The final issue is whether the improper admission of the evidence requires the award of a new trial. An appellate court must scrutinize the erroneous admission of evidence for harmless error under section 90.403. See Coverdale v. State, 940 So.2d 558 (Fla. 2d DCA 2006); Denmark v. State, 927 So.2d 1079 (Fla. 2d DCA 2006). As the beneficiary of the error, the State is required to establish beyond a reasonable doubt that the error did not contribute to the conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The State’s burden in a case such as this is made more difficult because the erroneous admission of irrelevant collateral crimes evidence raises a presumption of harmful error arising from a genuine risk that a jury might consider the defendant’s bad character or propensity as evidence of guilt of the charged crime. Robertson v. State, 829 So.2d 901, 913-14 (Fla.2002); Fitzsimmons v. State, 935 So.2d 125, 128-29 (Fla. 2d DCA 2006).

The prosecution of this case began in 2002 for events occurring between May 1997 and September 1999. The trial commenced in November 2005 when K.Z., then seventeen years old, related events that occurred before her twelfth birthday. As in many prosecutions of this type, the trial distilled into a credibility contest. Initially, K.Z. denied that anything took place, as did her mother. When questioned by the hospital staff rendering treatment to K.Z. for herpes, neither mother nor daughter accused Mr. Foreman of anything inappropriate. In fact, the defense stressed that both K.Z. and her mother bypassed multiple opportunities to come forward. After they moved to Alabama, K.Z. agreed to disclose what had happened. The evidence showed that both K.Z. and her mother were infected with herpes; KZ.’s mother was diagnosed with the illness pri- or to her marriage to Mr. Foreman. No record of scientific or medical evidence established whether Mr. Foreman was also infected.

No other evidence, such as DNA testing, corroborated KZ.’s testimony. The defense also elicited testimony alluding to Mr. Foreman’s continuing personal involvement in KZ.’s life. In closing argument, the State referred to and argued the significance of the touching incident observed by T.F.

Because of the lack of other evidence to support K.Z.’s testimony in this credibility contest, we cannot find that the State has met its burden under DiGuilio. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SALCINES and WALLACE, JJ„ Concur.

      . Count 1 of the information alleged "union with and/or penetration of the sexual organ of K.Z. by the mouth and/or tongue” of the appellant. Count 2 alleged "penetration of and/or union with the vagina of K.Z. by the penis” of the appellant.

      . Williams v. State, 110 So.2d 654 (Fla.1959); § 90.404(2)(b), Fla. Stat. (2005).

      . T.F.’s vague statements concerning the time of the event she witnessed — "approximately” five or six years before the 2005 trial — raises an inference that it might have occurred after the charged crimes.


author: PER CURIAM.

text:
    Donald H. FOSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4287.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.
    Rehearing Denied Oct. 10, 2007.

      Donald H. Foss, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Scott v. State, 465 So.2d 1359, 1361 (Fla. 5th DCA 1985) (“[Foss] is not entitled to negotiate a plea, accept the benefit of it, and then ask the trial court, or this court, to grant him a better deal than the one agreed to by the [S]tate.”).

PALMER, C.J., THOMPSON and SAWAYA, JJ., concur.


author: GRIFFIN, J.

text:
    David R. REIDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1250.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    Rehearing Denied Oct. 10, 2007.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, David Reidy [“Reidy”], appeals his criminal convictions and sentences rendered after a jury found him guilty of burglary of an occupied structure and possession of cannabis. One of the several issues he raises on appeal merits discussion.

The incident that led to the criminal charges occurred at Aquatech Marine Sales and Service, a business located in Palm Bay. Police received information from an undisclosed source that a burglary would occur at the marine store. With the owner’s permission, officers set up a “stake out” on the premises, with some officers located inside and some outside adjacent to the building. Shortly after midnight, Reidy entered the building through an unlocked door and walked toward the sales counter where the cash register was located. Almost immediately, Reidy was apprehended and charged.

Reidy was tried and found guilty. At his sentencing hearing, Reidy’s counsel unsuccessfully argued that Reidy should not have been convicted of burglary of an occupied structure because the only occupants were law enforcement. The trial court disagreed and sentenced him as a prison releasee reoffender to fifteen years in prison. On appeal, Reidy contends he should not have been convicted of burglary of an “occupied structure.”

The Legislature has the authority to define crimes and to determine the range of punishment applicable to such crimes. See Sims v. State, 754 So.2d 657 (Fla.2000). Section 810.02(3), Florida Statutes (2004),, provides:

Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(c) Structure, and there is another person in the structure at the time the offender enters or remains; or
(d) Conveyance, and there is another person in the conveyance at the time the offender enters or remains.

(Emphasis added). The language of the statute could not be more clear. It is undisputed that there was “another person” in the structure at the time Reidy entered; therefore, he was properly convicted of the second-degree felony.

AFFIRMED.

PLEUS and LAWSON, JJ., concur.

      . § 810.02(3)(c), Fla. Stat. (2004).

      . Perhaps a more interesting question, though one not raised here, is whether the predicate for sentencing under the prison releasee statute was met on these facts. As was noted by the Supreme Court in State v. Huggins, 802 So.2d 276, 278 (Fla.2001), there is a certain lack of symmetry between the description of the degree variant offenses under the burglary statute and those listed under the "prisoner releasee reoffender" [“PRR”] statute, section 775.082(9), Florida Statutes (2004). For purposes of the PRR statute, the qualifying offense is described as "burglary of a dwelling or burglary of an occupied structure." § 775.082(9)(a)(1.)(q), Fla. Stat. (2004). The words "occupy” "occupant” and “occupied” may connote more than a transitory relationship between the structure and the person located within the structure. See § 810.02, Fla. Stat. (2004). See also BLACK'S LAW DICTIONARY 1078 (6th ed.1990).


author: STONE, J.

text:
    CAPITAL FACTORS, INC., a Florida corporation, Appellant, v. ALBA RENT-A-CAR, INC. d/b/a Payless Car Rental, a Florida corporation; Mauro R. Olivieri, individually; and Avalon Global Group, Inc., Appellees.
    No. 4D06-4330.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Rehearing Denied Oct. 29, 2007.

      Philip A. Allen, III and David S. Garbett of Garbett, Bronstein, Stiphany, Allen & Roza, P.A., Miami, for appellant.
    Robert Zarco, Robert M. Einhorn and Michelle M. Odio of Zarco Einhorn Sal- . kowski & Brito, P.A., Miami, for appellees.
   STONE, J.

In a case of first impression, Capital Factors, Inc. (CFI or judgment creditor) appeals a final judgment on writs of garnishment served on Avalon Global Group, Inc., formerly known as Payless Car Rental System, Inc. (Avalon or garnishee). CFI sought to collect on a judgment it had won against Aba Rent-A-Car, Inc. (Aba, Aba/Olivieri, or judgment debtor/s) and M. Olivieri, Aba’s guarantor, in an unrelated lawsuit.

The trial court found that the arbitration award was not subject to garnishment because it was not confirmed. The essential issue on appeal is whether an unconfirmed arbitration award qualifies as a debt due subject to garnishment pursuant to section 77.01, Florida Statutes. The judgment debtors also argued that the award was held in a tenancy by the entireties, and therefore, beyond the reach of garnishment. We reverse.

Initially, Aba sued Payless and Avalon, alleging, inter alia, breach of two franchise agreements, violation of the Florida Unfair and Deceptive Trade Practices Act (FUDTPA), and breach of contract. The complaint named only Aba as plaintiff. The franchise agreements, between Pay-less and Aba, contained a provision for arbitration. The trial court granted Avalon’s motion to compel arbitration. M. Oli-vieri and his wife, S. Olivieri, were also joined as parties to the arbitration.

The arbitration hearing was not transcribed. In the arbitrator’s ten page award, he details the events leading to the breakdown in'business communications between the parties and the evidence and reasoning used in figuring damages. The award was granted in full resolution of all claims and counterclaims. Notably, Aba was awarded $750,000.00 for prevailing on its FUDTPA claim and $4,111,700.00 for its breach of contract claim, along with other damages. The award was entered June 16, 2005.

Aba, the appellant’s judgment debtor, moved to confirm the award within weeks. In the body of the motion, Aba’s counsel noted the binding nature of the arbitration and the statutory language of section. 684.24, Florida Statutes, to wit, that a party may apply for confirmation of an arbitration award, and the trial court shall confirm with limited exception. Further, quoting the statute, counsel noted the final nature of an award.

Avalon filed a motion before the arbitrator to modify or correct the award, claiming the arbitrator had miscalculated damages. The arbitrator denied the motion in an order entered August 20, 2005, in which he stated that the motion raised arguments not raised at hearing, the damages were not miscalculated, were not double recovery and, when asked, Avalon had not argued that the franchise agreement limited damages.

Avalon then moved to vacate the award in circuit court in mid-September. The application asserts that the award is infirm, alleging the arbitrator exceeded his authority and miscalculated damages. The hearing on both Aba’s motion to confirm and Avalon’s application to vacate or modify the award took place on October 17, 2005. CFI’s attorney attended, representing CFI’s interests as proposed inter-venors.

The trial court strongly suggested that Aba and Avalon make an effort to resolve their issues in mediation. When judgment creditor/CFI explained its concerns about getting paid, the trial court suggested pursuing garnishment. Three days later, on October 20, CFI did just that, moving the court to issue writs of garnishment on both Payless and Avalon, regarding indebtedness to both Alba and M. Olivieri. Both Avalon and Payless filed answers within the mandated twenty days; Avalon’s admitted to the arbitrator’s award, but claimed that because there was, as yet, no trial court order on the motions to confirm/vacate, the award did not represent indebtedness to Alba and/or M. Olivi-eri. That issue is at the heart of the instant appeal. CFI served identical writs on December 8. Avalon/Payless served their answers to this second set of writs on December 9. CFI served Alba and the Olivieris with timely certificates of service of Payless and Avalon’s answers, in conjunction with notices of right to dissolve writs for both.

In the arbitration case, Avalon, Alba, and the Olivieris entered into a settlement agreement on December 16, within a week of service of the second set of garnishment papers. Avalon agreed to pay Alba/Oliver-is $1,250,000 within thirty days of execution, and $300,000 each year from 2006 through 2013 in equal semi-annual payments on specified dates, with no accrual of interest. This equates to a total payout to the judgment debtors of $3,650,000.

Paragraph E of the settlement agreement states that if Avalon defaults, the full amount of the arbitration award, less the amount of all payments rendered under the settlement, would become due. The parties to the settlement then withdrew the pending motions before the trial court to correct/modify and motion to confirm. Neither Alba nor the Olivieris moved to dissolve the CFI garnishment within the statutorily prescribed timeframe of twenty days. Instead, they waited until March 13, 2006, to file their motion and attendant affidavits.

We conclude that the arbitration award did not require judicial confirmation to be collectible. Avalon, as garnishee, is answerable for its debt to Alba/Olivieri established prior to its answer to the garnishment. See generally Chaachou v. Kulhanjian, 104 So.2d 23, 24 (Fla.1958). Even indebtedness that may become due by the lapse of time is garnishable, as long as it is due absolutely. W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 211 (1917).

Florida looks favorably upon agreements to arbitrate. Knight v. H.S. Equities, Inc., 280 So.2d 456, 459 (Fla. 4th DCA 1973). “Ordinarily, a decision by arbitrators is as binding and conclusive ... as the judgment of a court.” Am. Renaissance Lines, Inc. v. Saxis Steamship Co., 502 F.2d 674, 678 (C.A.N.Y.1974).

The arbitrator’s award represents a liquidated amount due to Alba/Oli-vieri from Avalon. The award, on its face, was final. Regardless of whether Avalon liked the outcome of the arbitration, it was required to abide by it. The instant award expressly stated that it was in full resolution of all claims and counterclaims submitted. It addressed the issues in depth, leaving no question as to the source of the damages awarded. Furthermore, the provision Avalon enforced in compelling arbitration specifically said that disputes would be resolved in binding arbitration and without the necessity of further litigation. “The binding effect of the arbitration clause does not turn on whether Defendants [Alba/Olivieri] have judicially enforced the award; rather,, the arbitration award becomes final once the arbitrator releases his findings.” Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 300 F.Supp.2d 1281, 1286 (S.D.Fla.2004) (emphasis in original). “An award must finally determine the matter submitted, leaving nothing to be done but to execute and carry out its terms.... It is a final adjudication by a court of the parties’ own choice, and is entitled to the respect due to the judgment of a court of last resort.” Carter v. State Farm Mut. Auto. Ins. Co., 224 So.2d 802, 806 (Fla. 1st DCA 1969) (quotation omitted).

The contracts in this case do not state that confirmation is necessary for finality, and confirmation is not mandatory to validate an award’s finality. Frequently, parties to an arbitration do not seek court confirmation; rather, confirmation is sought when a prevailing party fears the losing party will not honor the award. Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir.1984). “The award need not actually be confirmed by a court to be valid. An unconfirmed award is a contract right that may be used as the basis for a cause of action.” Id.

Confirmation merely transforms the arbitral award into a judgment of the court; however, nothing in the garnishment statute mandates transformation of an outstanding debt to a judgment in order to be garnishable. § 77.01, Fla. Stat. At the times the two sets of garnishment writs were served on Avalon, Avalon owed the award to Alba/Olivieri contractually, and, at all times, the amounts that Avalon owed to Alba/Olivieris more than covered CFI’s judgment against Alba/Olivieri. We note that the Federal Arbitration Act (FAA) presumes that arbitration awards will be confirmed. Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d 429, 433 (11th Cir.1995). Further, another federal court, in E.A. Bromund Co. v. Exportadora Affonso de Alburquerque, LTDA, 110 F.Supp. 502, 502-03 (S.D.N.Y.1953), held that an unconfirmed arbitration award was attachable, concluding that the availability of a cause of action, such as garnishment, depended upon the intention of the parties as expressed in their contract.

That Avalon moved to correct or modify the award did not affect the finality of the award. First, the arbitrator denied a similar motion. Second, Avalon’s filing of the application in circuit court subjected the award to a far more limited review than available from the arbitrator.

In Florida, the standard of judicial review applicable to challenges of an arbitration award is very limited, with a high degree of conclusiveness attaching to an arbitration award. Under this limited review, the courts must avoid á ‘judiciali-zation’ of the arbitration process. Arbitration is an alternative to the court system and limited review is necessary to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative. In order to preserve the integrity of the arbitration process, courts will not review the findings of facts contained in an award, and will never undertake to substitute their judgment for that of the arbitrators.

Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1019-20 (Fla. 4th DCA 1999) (citations omitted); see also Eaton Vance Distribs., Inc. v. Ulrich, 692 So.2d 915, 916 (Fla. 4th DCA 1997). An award can be set aside when the arbitrator is guilty of specific acts of misconduct, or if he/she exceeded the authority granted by the parties or the operative documents. Charbonneau, 727 So.2d at 1020. -At bar, no bad acts were alleged.

Avalon claims that the damages were miscalculated and went beyond the damages contemplated by the franchise agreements; however, “in reviewing arbitral awards, a district or' appellate court is limited to determining whether the arbitrators did the job they were told to do-not whether they did it well, or correctly, or reasonably, but simply whether they did it.” Remmeyt v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir.1994). Furthermore, an arbitrator is not required to state the reason for his/her decision. Omaha Indem. Co. v. Royal Am. Managers, Inc., 755 F.Supp. 1451, 1458 (W.D.Mo.1991). Even when the award is silent as to the rationale behind it, the award “precludes relitigation of issues that a rational fact finder necessarily must have resolved in order to have reached the arbitration result.” Id.

Although the waters below were muddied by the pending cross-motions to confirm or to correct/modify the award which were never decided, the debt Avalon owed Alba/Olivieri was always in place. At both times the writs were served, Avalon had a debt due to Alba/Oli-vieri that required no further action. Avalon did not want to pay and added extra, but unnecessary, steps to the process. That Avalon filed a motion did not mean that Alba had to perform additional acts before the monies were.due. A disputed debt due is still subject to garnishment. Ala. Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825, 827 (1924). After the settlement, the debt was structured as a payment schedule. A note requiring scheduled payments can be garnished. Coleman Music & Games Co. v. McDaniel, 411 So.2d 193, 194 (Fla. 5th DCA 1981); see also Schulz v. Schulz, 627 S.W.2d 91 ■ (Mo.App. S.D.1982) (holding a payment schedule in a marital settlement agreement sufficiently definite to warrant garnishment).

The Olivieris also raised a tenancy by the entireties (TBE) argument in their untimely motion to dissolve, filed long after the statutory time frame had expired. In BNP Paribas v. Wynne, 944 So.2d 1004 (Fla. 4th DCA 2005), we discussed the time for motions to dissolve writs and the statute’s directive that motions filed outside the allowed twenty days from service on the defendant of the garnishee’s answer were to be stricken “as an unauthorized nullity.” Id. at 1006.

At bar, the trial court refrained from ruling on the TBE issue in the final judgment under review. However, as we reverse the final judgment, we address the issue.

The arbitration award, and later the settlement, was against Avalon in favor of Alba Rent-A-Car, Inc. and both Olivieris, as individuals. Obviously, a TBE cannot be present for the combined interests of the Olivieris and Alba. Sitomer v. Orlan, 660 So.2d 1111, 1113 (Fia. 4th DCA 1995). The best that the Olivieris can be is co-owners of their portion of the award/settlement.

We do not address whether CFI’s argument that the Olivieris attempt to defeat payment to CFI through fraudulent transfer of the Alba award to themselves as a married couple has merit. The trial court should take evidence to determine whether the Olivieris are in violation of Chapter 726, Florida Statutes.

We remand for further proceedings.

POLEN and GROSS, JJ., concur.

      . Alba blamed Avalon's bad faith communications with its creditors, ostensibly including CFI, for the ultimate repossession of its rental fleet and the demise of its operations. The arbitrator found these communications violated the Florida Deceptive and Unfair Trade Practices Act and prevented mitigation.

      . Because of Hurricane Wilma, the first set of certificates and notices was duplicated two days after first served. The timeframe for Alba/Olivieris’ motion to dissolve the first writs was extended to December 5, 2005, and for the second writs, to January 2, 2006.

      . The narrow statutory grounds include (1) an award procured by corruption, fraud, or undue means; (2) evident partiality or corruption of arbitrators; (3) arbitrators guilty of misconduct in refusing to postpone hearing or refusing to hear pertinent and material evidence, prejudicing any party; (4) arbitrators exceeded powers or so imperfectly executed them that a mutual, final and definite award upon subject matter submitted was not made; and some non-statutory grounds like (5) manifest disregard of the law; and (6) award is arbitrary and capricious. Brabham v. A.G. Edwards & Sons, Inc., 376 F.3d 377, 380-81 (5th Cir.2004); see also Lifecare Int’l, 68 F.3d at 435.

      . Had CFI moved for final judgment prior to settlement, but with the cross motions pending, the correct remedy would not have been to dissolve the writs because of contingency, but to stay them. GEICO Fin. Servs., Inc. v. Kramer, 575 So.2d 1345, 1347 (Fla. 4th DCA 1991); Fla. Steel Corp. v. A.G. Spanos, Enters., Inc., 332 So.2d 663, 665 (Fla. 2d DCA 1976).


text:
    Patrick B. FIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2253.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Rehearing Denied Oct. 30, 2007.
    Patrick B. Field, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Patrick Field appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm.

Patrick Field was charged with 18 counts of sexual battery on a child. In exchange for a no contest plea, the state agreed to drop 14 counts. The plea agreement called for a sentence of 20 years in prison followed by 15 years of sexual offender probation. If structured consecutively, Field could have been sentenced to up to 120 years in prison for the four remaining first-degree felonies. The trial court accepted the state’s recommendation and sentenced Field concurrently on each of the four counts to 20 years in prison followed by fifteen years of probation.

In this successive Rule 3.850 motion, Field argued that his sentence was illegal because the total 35-year term on each count exceeds the statutory maximum of thirty years for these first-degree felonies. Field has previously raised this same claim in post conviction proceedings, and the trial court had scheduled resen-tencing. Field, however, withdrew his motions before resentencing could occur.

The state agreed that resentencing was necessary and a hearing was scheduled. Field has been resentenced and has appealed the new sentences. The trial court summarily denied the other claims raised by Field in his motion. We affirm the summary denial of these claims as they are frivolous, successive, and time barred.

Affirmance does not affect the validity of any arguments regarding the re-sentencing which could be properly raised in the direct appeal of that resentencing.

SHAHOOD, C.J., STONE and FARMER, JJ., concur.


text:
    JOHN DOE NO. 23, Appellant, v. ARCHDIOCESE OF MIAMI, INC., Chaminade-Madonna College Preparatory, Inc., and The Marianists Province of the United States, Inc., Appellees.
    No. 4D06-2956.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Rehearing Denied Nov. 2, 2007.

      Jeffrey M. Herman and Stuart S. Mer-melstein of Herman & Mermelstein, P.A., Miami, for appellant.
    Anne C. Sullivan and Michael A. Mullen of Gaebe, Mullen, Antonelli, Esco & DiMatteo, Coral Gables, for appellees.
    Brian H. Pollock and W. Sam Holland of The Ferraro Law Firm, P.A., Miami, for appellees Chaminade-Madonna College Preparatory, Inc., and The Marianists of the United States, Inc.
   PER CURIAM.

Plaintiff appeals the trial court’s dismissal with prejudice of his amended complaint for negligence against Defendants Archdiocese of Miami, Inc., Chaminade-Madonna College Preparatory, Inc., and the Marianists Province of the United States, Inc. The complaint arose from alleged sexual abuse of the plaintiff by a teacher and clergyman at the Chaminade High School more than thirty years ago. The trial court dismissed the amended complaint because the plaintiff filed the action well outside of the statutes of limitations for negligence and failed to allege sufficient facts to justify tolling the statute of limitations on an equitable estoppel theory. We affirm.

Although the plaintiff alleged that he was sexually abused by the Archdiocese’s employees when he was a student at the Catholic high school in the early 1970s, he waited more than thirty years to file suit. His delay in filing suit outside of the time permitted for negligence actions appeared on the face of his original and amended complaints. When the defendants moved to dismiss the amended complaint based on the statute of limitations, the plaintiff sought to avoid the statute of limitations by relying on the theory of equitable es-toppel. The defendant conceded that his delay in filing suit was not the result of any repressed memory of the events. Rather, he asserted that his delay resulted from the defendants’ concealment of their knowledge that the subject employees had sexually abused other boys. He contends that this information would have assisted him in pursuing his wrongful hiring and supervision claims.

To assert equitable estoppel, the defendant must have engaged in wrongful conduct which “induced another into fore-bearing suit within the applicable limitations period.” Major League Baseball v. Morsani, 790 So.2d 1071, 1079 (Fla.2001). Here, the plaintiff failed to allege any wrongful conduct or specific acts of fraud or fraudulent concealment by defendants at- any point after the acts alleged in his amended complaint to justify applying the theory of equitable . estoppel. Cf Fla. Dep’t of Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091, 1100 (Fla.2002) (holding that the doctrine of fraudulent concealment applied to toll the statute of limitations where the plaintiff alleged that “after the abuse .was uncovered by police, HRS then ‘obstructed’ the police investigation, ‘falsified’ reports, ‘altered’ records, and otherwise ‘actively concealed’ the abuse”).

Further, the plaintiffs claim that the defendants breached a fiduciary duty to disclose the abuse of the other boys does not explain how he was induced to wait almost three decades to sue for abuse. As New York’s highest court explained in Zumpano v. Quinn, 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E.2d 926, 930 (2006):

Even if the Court were to assume that a fiduciary relationship existed between the parties during plaintiffs’ infancy and that the diocesan defendants had a legal duty to disclose any knowledge of prior incidents of sexual abuse and breached that duty, plaintiffs still failed to demonstrate how that breach prevented them from bringing a timely action. As noted above, defendants’ concealment of their own actions and of the priests’ conduct, postwrongdoing, does not alter the fact that plaintiffs were fully aware that they had been abused. Plaintiffs also knew the identity of their abusers and that the abusers were employed by the Diocese. They failed to establish that any concealment by defendants changed their awareness of these facts or that defendants had a direct role in plaintiffs’ failure to file suit within an appropriate time period.

See also Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 793 N.Y.S.2d 565, 569 (2005), appeal denied, 6 N.Y.3d 707, 812 N.Y.S.2d 443, 845 N.E.2d 1274 (2006); Franke v. Geyer, 209 Ill.App.3d 1009, 154 Ill.Dec. 710, 568 N.E.2d 931, 934 (1991).

Even recognizing the defendants’ obligation to report child abuse to the authorities at that time, we can find no authority which would render a violation of that duty an estoppel to assert the statute of limitations. We conclude that the trial court properly dismissed the amended complaint on the basis of the statute of limitations. Because any further attempt to amend the complaint to state the requisite allegations for tolling the statute of limitations would be futile, the dismissal was properly entered with prejudice. See Walters v. Ocean Gate Phase I Condo., 925 So.2d 440, 441 (Fla. 5th DCA 2006).

Affirmed.

POLEN, STEVENSON and TAYLOR, JJ., concur.

      . See Ch. 71-97, at 243, Laws of Fla.


text:
    Jay CANAVAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4866.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2007.
    Rehearing Denied Oct. 18, 2007.
    Jay Canavan, pro se, Appellant.
    Bill McCollum, Attorney General, Kathleen Von Hoene, General Counsel, and Daniel R. Burke, Assistant General Counsel of the Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Smith v. David, 962 So.2d 952 (Fla. 1st DCA 2007); Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

BARFIELD, ALLEN and HAWKES, JJ., concur.


text:
    Dwayne Keith HEAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3184.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Dwayne Keith Head, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Dwayne Keith Head complains that he was deprived of the effective assistance of appellate counsel in the course of a post-conviction appeal docketed before this court as case number 1D03-5073. Inasmuch as mandate in that appeal issued more than two years ago, Head’s petition is untimely under rule 9.141(c)(4)(B). More to the point, although it appears that Head is claiming he was deprived of the services of appellate counsel despite an order of the trial court appointing counsel for purposes of the appeal, this court’s records reflect that in fact appointed counsel did appear on petitioner’s behalf in the prior appeal. Accordingly, we conclude that even if Head’s claim were not procedurally barred, it nonetheless is without any factual support.

PETITION DENIED.

BROWNING, C.J., PADOVANO and THOMAS, JJ., concur. •


author: SHEPHERD, J.

text:
    WESTPORT RECOVERY CORP., Appellant, v. Orlando BATISTA, a/k/a Orlando Batista, Jr., Appellee.
    No. 3D05-1879.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.

      Friedman & Greenberg and Debra L. Greenberg, Plantation, for appellant.
    Carlos Marin, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   SHEPHERD, J.

Westport Recovery Corporation, as successor to First Union National Bank of Florida, appeals an order denying its motion to stay satisfaction of a writ of execution. Pursuant to section 56.021 of the Florida Statutes (2005), the sheriff may satisfy a properly issued writ of execution during its lifetime only upon it being “fully paid.” Westport asserts that the writ has not been “fully paid,” and therefore is not subject to satisfaction because the sheriff failed to honor Westport’s request and direction to collect post-judgment interest on the pre-judgment interest awarded by the final summary judgment underlying the issuance of the writ. We agree and reverse the order on appeal.

The judgment in this case was entered in favor of First Union National Bank of Florida on March 11, 1996. It states, in pertinent part:

Final Summary Judgment is hereby entered in favor of plaintiff, First Union National Bank of Florida ..., and against defendant(s), Orlando Batista ... [in] the principal sum of $18,978.74, court costs in the amount of $201.00, attorneys’ fees in the amount of $1500, for a subtotal of $20,679.74, that shall bear interest at the rate of ten (10%) percent per year, and in addition prejudgment interest of $10,799.28, for all of the above let execution, issue.

Consistent with forms in use at the time, and our decision in Perez Sandoval v. Banco Commercio, S.A., C.A., 582 So.2d 179, 179 (Fla. 3d DCA 1991), disapproved of by Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So.2d 929, 931 (Fla.1996), the final summary judgment failed to state that post-judgment interest also should be awarded on the pre-judgment interest award in the judgment. On March 28, 1996, the Florida Supreme Court, resolving a conflict among the districts on the subject, disapproved Perez Sandoval. See Quality Engineered, 670 So.2d at 931. According to the Quality Engineered court, an award of prejudgment interest merges into and “becomes part of a single total sum adjudged to be due and owing.” Id. As such, our supreme court held that, “The amount awarded for prejudgment interest, like all other components of the ‘judgment,’ automatically bears interest as provided by section 55.03, Florida Statutes.... ” Id. (emphasis added). Although the levy in this case was sought by Westport in November 2004, the sheriff apparently decided to follow what he considered to be a near literal reading of the terms of the March 1996 summary final judgment.

Upon review, we conclude the sheriff erred in calculating the amount of the levy. We also are satisfied that the rule of Quality Engineered applies retroactively. See State, Dep’t of Labor & Employ. Sec. v. McGrath, 774 So.2d 791, 792 (Fla. 1st DCA2000).

Accordingly, we reverse the order on appeal and remand the cause for proceedings consistent with this opinion.


author: ROTHENBERG, Judge.

text:
    Mauricio SOLORZANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1454.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Mauricio Solorzano, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the first six claims raised by the defendant are either refuted by the record or insufficiently pled, we affirm the trial court’s denial of the defendant’s first six claims for postconviction relief. However, because the record does not conclusively refute the defendant’s seventh claim, we reverse the order as to that claim only and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the defendant is not entitled to any relief. See Langdon v. State, 947 So.2d 460,460-61 (Fla. 3d DCA 2006).

In the defendant’s seventh claim, he alleges ineffective assistance of trial counsel for failure to file and to litigate a motion to suppress his out-of-court statements, both oral and written.' Although the trial court’s order states that this claim is refuted by the trial transcript, refers to specific pages of the transcript, and states that they are contained in “Exhibit D,” this exhibit has not been provided to this court for review and the clerk of the Eleventh Judicial Circuit claims not to have the exhibit in its possession.

The trial court should either conduct an evidentiary hearing to resolve the defendant’s claim or provide a new order denying this claim with record evidence demonstrating that the defendant is not entitled to relief.

Affirmed in part, reversed and remanded in part.


text:
    Biagio MENTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1072.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Rehearing Denied Nov. 1, 2007.
    Biagio Mentó, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant
    Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We adopt the findings of the commissioner and grant appellant’s petition for belated appeal. The trial court’s order, denying rule 3.800(a) relief, is affirmed. See Henry v. State, 920 So.2d 1204 (Fla. 4th DCA 2006); State v. Williams, 854 So.2d 215 (Fla. 1st DCA 2003), rev. denied, 869 So.2d 541 (Fla.2004).

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Timothy BLACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1999.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Rehearing Denied Oct. 18, 2007.
    Timothy Black, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of mandamus, Timothy Black seeks an order compelling a ruling on an amended motion to vacate, set aside, or correct sentence he alleges he mailed to the circuit court in June 2006. The circuit court has indicated, however, that it has no record of the filing of the original copy of that motion. Accordingly, the petition for writ of mandamus is denied.

WOLF, BENTON, and HAWKES, JJ., concur.


author: SHAHOOD, C.J.

text:
    J.P. MORGAN TRUST COMPANY, N.A., and J.P. Morgan Chase Bank, N.A., Appellants, v. Daniel G. SIEGEL, individually, and Simon B. Siegel, individually and as Co-Trustee of the Trusts Created under Articles Fifth and Sixth of the Dorothy H. Rautbord Amended and Restated Agreement of Trust, Dated March 30, 1990, as amended, Appellees.
    No. 4D06-4912.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 29, 2007.
    Elise D. Weakley and Matthew Triggs of Proskauer Rose LLP, Boca Raton, for appellants.
    Richard A. Goetz of Hodgson Russ LLP, Boca Raton, for appellees.
   SHAHOOD, C.J.

This is an appeal by J.P. Morgan Trust Company, N.A., and J.P. Morgan Chase Bank, N.A. (collectively “J.P. Morgan”) from the trial court’s non-final order granting partial summary judgment in favor of Daniel G. Siegel and Simon B. Siegel (“the Siegels”). The issue is the propriety of the trustee’s payment of its attorneys’ fees from trust assets without prior court order. We hold that J.P. Morgan should have realized it was in a position of conflict and sought court approval prior to paying its attorneys’ fees from trust assets. Accordingly, we affirm.

In 1990, Dorothy H. Rautbord created the Dorothy H. Rautbord Amended and Restated Agreement of Trust (“Trust”). The Trust was revocable. Article Fifth of the Trust directed that upon Rautbord’s death the Trust balance was to be divided into equal shares for Rautbord’s surviving children after the payment of certain specific bequests. An amendment provided that during Rautbord’s lifetime, the Trustee would pay her as much of the Trust income and principal as the Trustee deemed necessary for her “support, maintenance, health, comfort or general welfare.”

J.P. Morgan Chase Bank, N.A. served as trustee of the Trust from November 1, 1995 through March 6, 2003. J.P. Morgan Trust Company, N.A. assumed responsibility as trustee on March 6, 2003 concurrent with the transfer of the situs of the Trust from New York to Florida. Rautbord, who resided in Palm Beach County, died on February 28, 2002. She was survived by her three children: Judith S. Novak, Daniel Siegel, and Simon Siegel.

In March 2003, J.P. Morgan filed an action (hereinafter “the 2003 action”) in the Fifteenth Judicial Circuit for a judicial accounting of the Trust for the period from November 1, 1995 through December 31, 2002. J.P. Morgan requested the court to judicially approve its accounts and discharge it from all liability for the period of November 1, 1995 through December 31, 2002. It also asked the court to grant its attorneys’ fees and costs as shown in an accounting.

The Siegels served their answer and affirmative defenses on April 16, 2003. In the first affirmative defense they claimed that J.P. Morgan’s accounting did not provide sufficient detail to allow them to determine the propriety of the distributions. The second affirmative defense stated that certain distributions by the trustee to Rautbord may have been in error. The third affirmative defense complained that the amount of J.P. Morgan’s attorneys’ fees was excessive for a trust of that type and that it was impossible to determine from the accounting whether the funds expended for attorneys’ fees were appropriate and necessary.

The parties engaged in discovery. J.P. Morgan sent interrogatories to the Siegels seeking specific information about their objections to the accounting and seeking further information regarding their affirmative defenses. The Siegels’ answers to the interrogatories contained thirty lengthy pages of detailed allegations of breaches of fiduciary duty and trust mismanagement by J.P. Morgan.

The Siegels filed an amended petition in the probate proceeding seeking to remove J.P. Morgan as personal representative, appoint a successor personal representative, surcharge J.P. Morgan, and determine compensation for J.P. Morgan. The petition summarized the same alleged improprieties in the administration of the Trust that were referenced in the sworn answers to interrogatories in the 2003 action. The trial court dismissed the petition.

In November 2003, the trial court granted partial summary judgment in favor of J.P. Morgan in the 2003 action, finding that the Siegels lacked standing to challenge any distributions made prior to their mother’s death. The trial court reasoned since the trust was revocable prior to their mother’s death, the Siegels had no present interest in the trust during her lifetime. We subsequently reversed on the standing issue. Siegel v. Novak, 920 So.2d 89, 95 (Fla. 4th DCA 2006).

On February 22, 2006, the Siegels filed a new lawsuit against J.P. Morgan and Judith Novak asserting various causes of action relating to the time period of January I, 2003 through September 1, 2005. J.P. Morgan did not use Trust assets to pay attorneys’ fees associated with that litigation. In July 2006, J.P. Morgan reimbursed the trust the sum of $32,337.50 in attorneys’ fees it erroneously paid from the Trust in connection with its defense of the 2006 action.

In September 2006, the parties entered into a stipulation whereby J.P. Morgan agreed to make a partial distribution to each of the beneficiaries of their one-third interest in the remaining Trust assets. J.P. Morgan also agreed not to pay further attorneys’ fees out of Trust assets without court approval. Following entry of the stipulation, the parties each moved for partial summary judgment on the issue of-whether it was proper for J.P. Morgan, in its capacity as trustee, to pay attorneys’ fees from Trust assets for the legal services rendered in the 2003 action or whether it should have sought prior court approval.

The trial court rendered its order after a hearing. The court rejected the argument that the Siegels’ answer and affirmative defenses in the 2003 action should have put J.P. Morgan on notice of any potential corporate or individual liability. However, the trial court found that the Siegels’ answers to interrogatories in the 2003 action “should have absolutely alerted J.P. Morgan to the undeniable realization that they were going to be facing charges of individual/corporate liability for a breach to their fiduciary duties as it applies to distributions from the trust.” The court recognized the tension between its ruling and prior case law in that no pleading had been filed against J.P. Morgan setting forth the alleged fiduciary breach and damages sought as a result.

The trial court directed that J.P. Morgan “shall forthwith contact any law firm that received attorney’s fees or costs from the Trust commencing November 1, 2003 and all of those funds shall be forthwith returned to the Trust pending further order of this Court.” The trial court subsequently clarified its order by directing that if J.P. Morgan was unable to secure the return of attorney’s fees and costs which law firms received on or after November 1, 2003 by February 11, 2007, J.P. Morgan would reimburse the Trust for amounts not returned.

The issue is whether the trial court erred in holding that the Siegels’ filing of answers to interrogatories containing various allegations of breach of fiduciary duty and trust mismanagement required J.P. Morgan to seek court approval before paying its attorneys’ fees from Trust assets. J.P. Morgan stresses that no pleading against it in its individual capacity was filed by the beneficiaries until 2006. It argues that mere service of interrogatory responses alleging breaches of fiduciary duty and trust mismanagement should not require it to seek court approval before paying its attorneys’ fees from Trust assets. The Siegels contend that the trial court’s order was consistent with well-established principal requiring that a trustee placed in a position of conflict must report to the court for guidance, including as to the payment of attorneys’ fees.

In Shriner v. Dyer, 462 So.2d 1122, 1124 (Fla. 4th DCA 1984), the beneficiaries of a trust argued that the trustees had improperly used trust funds to pay the attorneys’ fees they incurred for their individual defenses in a previous suit. This court agreed, citing section 737.403(2), Florida Statutes (1983), which provided that when “the duty of the trustee and his individual interest ... conflict in the exercise of a trust power, the power may be exercised only by court authorization,.... ” Shriner, 462 So.2d at 1124. The court in Shriner based its holding on the fact that the trustees had defended against individual liability for trust mismanagement in the prior action for which they had paid the attorneys’ fees. This resulted in a conflict of interest between the trustees’ personal interests and their positions as trustees. Therefore, “[the trustees] should have obtained court approval before exercising their trustee power to use trust funds to pay their attorney’s fees.” Id. This court reversed the denial of the surcharge against the trustees. Id.

Brigham v. Brigham, 934 So.2d 544 (Fla. 3d DCA 2006), is a recent case following Shriner. The parties in Brigham were the beneficiaries of a trust. 934 So.2d at 545-46. The appellees sued the appellants in their individual capacities as well as in their capacities as trustees alleging, inter alia, trust mismanagement. Id. at 546. Appellees also filed a motion to prevent appellants from using trust assets to pay their attorneys’ fees. The trial court entered an order directing the appellants to repay the attorneys’ fees paid from the trust and preventing further payment of attorneys’ fees out of trust funds without court approval. Id.

On appeal, the court cited section 737.403(2), Florida Statutes (2003), which provided: “If the duty of the trustee and the trustee’s individual interest or his or her - interest as trustee of another trust conflict in the exercise of a trust power, the power may be exercised only by court authorization.... ” Citing Shriner, the court held that the appellants’ personal interests conflicted with their positions as trustees because they were forced to defend against individual liability. Brigham, 934 So.2d at 547. The court affirmed, holding that this conflict required the trustee to obtain court approval before paying attorneys’ fees with trust assets. Id.

Section 737.403(2), Florida Statutes, was amended effective July 1, 2005. Section 737.403(2)(e) now provides, in pertinent part:

(2) If the duty of the trustee and the trustee’s individual interest or his or her interest as trustee of another trust conflict in the exercise of a trust power, the power may be exercised only by court authorization.... Court authorization is not required for any of the following:
(e) Payment of costs or attorney’s fees incurred in any trust proceeding from the assets of the trust unless an action has been filed or defense asserted against the trustee based upon a breach of trust. Court authorization is not required if the action or defense is later withdrawn or dismissed by the party that is alleging a breach of trust or resolved without a determination by the court that the trustee has committed a breach of trust.

§ 737.403(2)(e), Fla. Stat. (2005) (emphasis supplied).

The legislature has resolved the issue in favor of the interpretation urged by J.P. Morgan that requires a pleading be filed. However, as J.P. Morgan acknowledges, the new statute was not in effect for the vast majority of the time period at issue.

In Shriner and Brigham, the filing of a pleading against a trustee in his individual capacity created a conflict of interest that required the trustee to seek court approval before paying its attorney’s fees from trust assets. These cases provide scant guidance on the question of what else could suffice to create such a conflict. J.P. Morgan argues that under the trial court’s ruling all trustees are placed in a position of uncertainty as to when to seek court approval before paying attorneys’ fees from trust assets. However, we hold that in this case J.P. Morgan should have known from the Siegels’ answers to interrogatories in the 2003 action that it would face an action based on the alleged breaches of fiduciary duty and trust mismanagement. At the very least, J.P. Morgan should have realized it was in a position of conflict at that point. Based on the foregoing, we affirm.

Affirmed.

STEVENSON, J., and BELANGER, ROBERT E., Associate Judge, concur.

      . The Siegels' 2006 lawsuit against J.P. Morgan and Judith Novak asserted various causes of action relating to the time period of January 1, 2003 through September 1, 2005.