author: PER CURIAM. WELLS, J.,

text:
    Diana PEACOCK, Appellant, v. Donald PEACOCK, Appellee.
    No. 3D06-737.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Rehearing Denied Feb. 21, 2008.
    Greenman & Manz, Marathon; Greene Smith McMillan and Cynthia L. Greene, Miami, for appellant.
    Lauri Waldman Ross, Miami, for appel-lee.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   PER CURIAM.

Diana Peacock, the former wife, has appealed a judgment of dissolution of marriage, which awarded custody of the three minor children to the former husband Donald Peacock. We affirm.

The final judgment tells us that the trial court carefully considered the statutory factors listed in section 61.13(3), Florida Statutes (2005), in reaching its conclusions that it would be in the best interests of the children that the parties share parental responsibility for the children and that the father be the primary residential parent. The trial court did not list or explain in its final judgment the nature of its considerations as to the several factors of section 61.13(3). The former wife argues that this was error. We disagree. Section 61.13(3) does not mandate written findings, see Castillo v. Castillo, 950 So.2d 527 (Fla. 4th DCA 2007); cf. Velazquez v. Millan, 963 So.2d 852, 854-55 (Fla. 3d DCA 2007), and the record contains substantial competent evidence in support of the court’s decision. See Rodriguez v. Williams, 911 So.2d 170 (Fla. 3d DCA 2005); Miller v. Miller, 842 So.2d 168 (Fla. 1st DCA 2003).

We are unable to agree with the partial dissent because the parties have not requested, in the trial court or this Court, that the daughters be placed separately with the mother.

We have examined the record and conclude that there is no reversible error as to the other point on appeal. Accordingly, the final judgment is affirmed.

Affirmed, as modified.

COPE, J., and FLETCHER, Senior Judge, concur.

WELLS, J.,

Concurring in part, dissenting in part.

While I agree that the custody order with regard to the parties’ oldest child, C.P., should be affirmed, I would reverse the custody determination as to the other two children, R.P. (age twelve) and B.P. (age five). While it may generally be best to keep siblings together, children should not necessarily be considered a package deal, and what is best for one child may not be in the best interests of the others.

The record in this case supports the conclusion that the eldest child is a special needs child whose interests are best served by leaving him in the stable environment that he has known his entire life. The same cannot, however, be said about the two younger children, especially not the five-year-old.

The final judgment contains the following findings with respect to R.P. and B.P., which are either not relevant or are not supported by the record:

[R.P.] and [B.P.] have an interest in dance and are very involved in school and with their local community. If moved to Arizona, [R.P.] and [B.P.] would become separated for the first time in their life from both sets of grandparents, their aunt and cousins, and from their father. Of special note is the relationship between [B.P.] and her autistic 8 year old cousin [G.] who presently lives nearby. [G.j’s mother explained that [B.P.] has a way with [G.] that reaches through his autism and the two children are very closely bonded as a result. Similarly [R.P.] has a close association and is bonded with her cousin [C.] who is her age.
[R.P.] and [B.P.] are connected through their community and school by their dance classes and with teachers and classmates enrolled in these classes. [R.P.] has learning difficulties which her local community and teachers are aware of and she receives support and assistance from a large array of supporters.

The record shows that R.P. is a bright, academically gifted girl who has been, and is capable of being, an honor roll student. There is nothing in the record to suggest that she has learning difficulties; rather, her teacher testified that her grades slipped because she was not turning in her homework assignments on time. Moreover, while R.P. and B.P. enjoy dance classes, these classes may be provided anywhere. The record also confirms that it is C.P., not' B.P., who has a special relationship with their autistic cousin, G. And, in any event, while this role may be of significant benefit to the disabled cousin, I am unconvinced that such a factor would trump a child’s relationship with his/her mother. The record further confirms that B.P., not R.P., has a close relationship with her ten-year-old cousin C. I am equally unconvinced that B.P.’s relationship with this cousin should be a bond viewed as superior in importance to the bond between B.P. and her mother. Finally, the maternal grandmother testified that if the mother was awarded custody of the children, the maternal grandparents intend to move to Arizona to help care for their grandchildren. Should that occur, as far as being in proximity to a set of grandparents, the children will fare the same whether they live in Miami or Arizona.

In short, there is very little record evidence with respect to R.P. and B.P., as the vast majority of the testimony concerns C.P. Moreover, the order under review includes misstatements of fact which make me question the trial judge’s consideration and determinations as to these girls. While it is true that Florida law has long recognized a preference for keeping siblings together, if possible, when it is in the children’s best interests, see Glover v. Glover, 834 So.2d 927, 929 (Fla. 5th DCA 2003), it has yet to be demonstrated in this case that the decision at issue was in the best interests of these girls. I would, therefore, reverse as to R.P. and B.P. and remand for additional findings of fact and for entry of a final judgment explicating the reasons for the award of custody of these two children.

      . We strike the second sentence of paragraph 30 of the judgment because it refers to learning difficulties of one of the daughters, when there was no evidence that the daughter had any learning difficulties.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ivonne AYALA, Appellant, v. AMERICAN AIRLINES and St. Paul Travelers Claims Services, Appellees.
    No. 1D07-3668.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2007.
    Rehearing Denied Feb. 4, 2008.
    Ivonne Ayala, pro se, Appellant.
    H. George Kagan and Robert J. Rodriguez of Miller, Kagan, Rodriguez & Silver, P.L., Coral Gables, for Appellees.
   PER CURIAM.

DISMISSED. See Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991).

BARFIELD, KAHN, and POLSTON, JJ., concur.


author: KAHN, J.

text:
    CITY OF JACKSONVILLE, JACKSONVILLE SHERIFF’S OFFICE, Appellant, v. Todd COWEN, Appellee.
    No. 1D06-5233.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Rehearing Denied Feb. 5, 2008.

      Richard A. Mullaney, General Counsel, Ernst D. Mueller, Deputy General Counsel, and Carol Mirando, Assistant General Counsel, Jacksonville, for Appellant.
    T.A. Delegal, III, of Delegal Law Offices, P.A., Jacksonville, for Appellee.
   KAHN, J.

This case turns upon whether appellee, Todd Cowen, now dismissed as a police officer with appellant Jacksonville Sheriffs Office (JSO), has a right to arbitrate his disciplinary dismissal. Ruling upon Cow-en’s petition to the circuit court seeking an order compelling the JSO to enter arbitration, the trial judge determined to reserve the central issue of waiver to the arbitration panel, and directed that the parties proceed to arbitration. The trial court should have ruled on the JSO’s contention that Cowen had waived his right to arbitrate; nevertheless, the order on review must be affirmed because, as a matter of law, no waiver occurred. Accordingly, the parties must participate in arbitration as ordered by the trial court in the decretal portion of the order on appeal.

BACKGROUND

Appellee, Todd Cowen, was a unionized police officer with the JSO. In January 2004, the JSO arrested Cowen and charged him with the felony offense of official misconduct by a public servant and the misdemeanor offense of compounding a felony. Almost immediately, the under-sheriff directed to Cowen a “Notice of Immediate Suspension Without Pay/Termination to Follow.” This document apprised Cowen of his immediate suspension in light of the charges against him and informed him of his rights to appeal the disciplinary action to the Civil Service Board. The notice did not, however, terminate Cowen’s employment with JSO, and the body of the text did not forebode any particular disciplinary action aside from suspension.

Cowen, through counsel, informed the Civil Service Board that he elected to appeal his suspension to that Board. Shortly afterward, however, Cowen notified the Board that he would waive his right to a speedy hearing and requested the Board to postpone the case due to the pendency of the criminal charges. The rules governing the Jacksonville Civil Service Board required one suspended without pay to notify the Board within ten days if criminal charges were dismissed. See City of Jacksonville Civ. Serv. & Pers. R. 9.05(4), (6)(b). Presumably, Cowen proceeded to prepare his defense against the pending criminal charges.

By letter of June 14, 2004, some five months after the suspension, the JSO notified Cowen that, although it was continuing to investigate serious allegations, the sheriff had decided to cancel the suspension without pay. In lieu of that suspension, the JSO assigned Cowen to desk duty, conditioned upon his not working in uniform or exercising any police powers. Cowen immediately resumed employment with the JSO.

In October 2005, the State dismissed the criminal charges against Cowen. The JSO nevertheless continued its inquiry into certain allegations. As a result of that investigation, JSO’s internal affairs unit issued an undated report summarizing its own investigation into Cowen’s alleged misconduct. The report, which noted suspicion that Cowen untruthfully responded to some questions put to him by investigators, recommended that three charges for professional misconduct should be sustained. These charges differed slightly from the charges contained in the January 2004 suspension notice.

The events that followed the JSO internal investigation report have become critical to the outcome of this case. On April 5, 2006, the undersheriff approved the disciplinary charges reflected in the internal affairs investigation and, on April 21, sent Cowen a letter informing him of the agency’s decision to convene a disciplinary review board that would conduct a hearing and issue recommendations regarding Cowen’s continued employment. The un-dersheriff, however, withdrew that letter shortly thereafter by way of a second document telling Cowen he could not be disciplined twice for the same conduct and suggesting that the agency would proceed with the disciplinary process that began with Cowen’s suspension in January 2004.

The JSO then requested that the Civil Service Board dismiss Cowen’s appeal of the January 2004 suspension on the ground that Cowen failed, under Civil Service Rules, to timely notify the Board of the dismissal of criminal charges. Within days, Cowen’s legal counsel wrote the Civil Service Board asking to “withdraw the previously submitted request for hearing ... on behalf of Officer Todd Cowen.” The letter went on to note that Cowen had returned to JSO payroll in June 2004 and understood that the JSO “apparently withdrew its intention to terminate Officer Cowen’s employment, at least until an investigation could be conducted.” The letter observed that the JSO, through the City Attorney, had recently moved the Civil Service Board to dismiss the request for hearing submitted by Cowen in January 2004. Counsel explained that, because Officer Cowen was returned to payroll, and the criminal case ultimately dropped, Cowen “could not have notified the Civil Service Board at such time and requested a hearing since no disciplinary charges were pending against him at the time.” The letter concluded with counsel’s advice that Cowen would either appeal the present disciplinary action — dismissal—or seek arbitration pursuant to the applicable collective bargaining agreement.

The court record contains e-mails between the Civil Service Board, an Assistant City Attorney, and the JSO. In the first e-mail, an executive secretary of the Civil Service Board notified the City Attorney’s Office that “per a request and a letter dated May 16, 2006, received via fax May 17, 2006, from Tad Delegal, counsel for Officer Todd Cowen, the Civil Service Board has formally withdrawn Mr. Cow-en’s request for a hearing.” The City Attorney’s Office, by a subsequent e-mail, notified JSO that Officer Cowen’s appeal to the Civil Service Board “has been dismissed effective as of the present time.” The Assistant City Attorney went on to state his opinion that “dismissal of the appeal serves to sustain the disciplinary action taken by JSO in the January 13, 2004, letter. Accordingly, JSO may now proceed to terminate the employment of Officer Cowen per the January 13, 2004, letter.” Nothing in the file reveals that the Civil Service Board ever ruled on the JSO’s motion to dismiss, alleging Cowen’s failure to follow the procedural rules. At oral argument, counsel conceded that no such ruling had been made.

Cowen sought to enter arbitration pursuant to the collective bargaining agreement, but the City refused, taking the position that Cowen had waived his right to arbitration by electing an appeal to the Civil Service Board and then having that appeal dismissed. As a result, Cowen filed suit in the circuit court seeking an order compelling arbitration. The final judgment, now before us, deferred the City’s claim of waiver to the arbitration panel, but directed the parties to proceed immediately to arbitration.

ANALYSIS

The applicable provision of the Florida Statutes provides for an election of remedies for one in Cowen’s position:

A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure ... but such employee is precluded from availing himself or herself to more than one of these procedures.

§ 447.401, Fla. Stat. (2003).

Similarly, Jacksonville’s civil service rules provide:

Once the employee has selected a forum for his/her appeal to be heard, he/she is bound by that decision and cannot seek to have it reheard in another forum. The election-of-remedies provision in Florida Statutes, section 447.401, is hereby incorporated into these rules and is binding on all employees.

City of Jacksonville Civ. Serv. & Pers. R. 9.05(5).

Based upon these provisions, the JSO, through the City Attorney, has consistently argued that Cowen waived his right to arbitration under the collective bargaining agreement when he sought a Civil Service Board appeal and then withdrew that appeal. Cowen takes the position that beginning in June 2004, when he was restored to limited duty, he had nothing to appeal or contest, and only upon his dismissal in 2006 could he seek review of any action, in any forum. Cowen accurately states in his brief that he “never actively participated in any civil service appeal from the date that he waived his right to an immediate hearing before the Jacksonville Civil Service Board on February 2, 2004. There was nothing to appeal after he was returned to work.” (Internal citations to Record on Appeal omitted.) Faced with this point and counter-point, we respectfully conclude that the trial court should have ruled on the question of whether Cowen waived his right to arbitration.

Florida courts have generally echoed the proposition that the court, rather than the arbitrator, determines whether or not a party has waived arbitration. See, e.g., Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (“Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” (emphasis added)); Operis Group, Corp. v. E.I. at Doral, LLC, 973 So.2d 485, 2007 WL 3085429 (Fla. 3d DCA Oct. 24, 2007) (same); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 575 (Fla. 3d DCA 1999) (“[W]e reaffirm our long standing position that the question of whether arbitration has been waived is one for the trial court to determine.”); cf. Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 398 (Fla.2005) (applying Seifert analysis to review order on motion to compel arbitration based on contract provision, rather than statute mandating arbitration). In Piercy v. School Board of Washington County, this court distinguished between procedural issues which trial courts properly reserve for arbitrators—the timeliness of arbitration demands included—and the threshold issue of waiver, which the court itself should decide. 576 So.2d 806, 808 (Fla. 1st DCA 1991) (“A trial court may find waiver to have occurred if, for instance, the party seeking arbitration is actively participating in a lawsuit or taking action inconsistent with the right to arbitration.”).

Alderman v. City of Jacksonville, Fire and Rescue Division, 902 So.2d 885 (Fla. 1st DCA 2005), is not to the contrary. Alderman cautions that a trial court should not conflate the questions of timeliness and waiver. 902 So.2d at 887. The Alderman court concluded that questions of timeliness—distinct from those involving waiver—would be decided by an arbitrator rather than a trial court. Id. Because our supreme court in Seifert has treated waiver of the right to arbitration as a threshold issue that the trial court must confront where it is properly raised, the trial court should have reached and decided the issue.

Generally, determination of whether a party has waived the right to arbitrate a dispute involves findings of fact that would be reviewed in this court for support by competent substantial evidence. See, e.g., Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999). The present order on appeal, however, does not contain any factual findings, nor is it based upon any resolution of disputed facts. The parties have both fully briefed the issue of waiver. Accordingly, we find it appropriate to rule on the question of waiver as a matter of law. See Hogen, 734 So.2d at 575.

Cowen does not dispute that in early 2004 he elected a proceeding before the Civil Service Board. He argues, however, that once the agency returned him to work, the suspension was over and he had nothing to appeal. Although he was made aware of the continuing investigation by JSO, such does not support a credible argument that a civil service employee has the right to appeal a mere investigation. Indeed, the applicable provisions of Jacksonville’s Civil Service Rules conclusively preclude such an argument, authorizing the Civil Service Board to adjudicate grievances and appeals of “disciplinary actions.” See City of Jacksonville Civ. Serv. & Pers. R. 9.03(4), 9.06. The rules define “grievance” as “a dispute regarding any action taken in the administration of the [Civil Service Rules] pertaining to any permanent ... employee’s employment or employment rights.” Id. at R. 9.03(1). “Disciplinary actions” include, inter alia, written reprimands, pay reductions, demotions, suspensions without pay, and dismissals; the Board “shall hear and determine appeals initiated by permanent employees who have been disciplined” with such measures. Id. at R. 9.04(5), (6). These rules do not confer upon employees the right to seek Civil Service Board review of mere investigations. Once the JSO canceled Cowen’s suspension, even though its investigation continued and Cowen was reassigned to desk duty, he was not working under the shadow of an appealable disciplinary action. JSO has not argued that Cowen’s reassignment amounted to a “demotion” that gave him a continuing right of appeal to the Civil Service Board after the JSO canceled his suspension.

With these facts in mind, to characterize Cowen’s civil service appeal as merely dormant would be generous. By all appearances, the Civil Service Board proceeding had been non-existent from the time of Cowen’s return to duty with JSO. As Cow-en’s attorney wondered in a written response to JSO’s motion to dismiss the 2004 Civil Service Board appeal, how could Cowen have requested a hearing after he both was returned to work and had his criminal charges dismissed, “since no disciplinary charges were pending against him at such time”? We easily see the logic in this position.

We also note that, after June 2004, Cowen was no longer on leave-without-pay status, as announced originally by the un-dersheriff in January 2004. Instead, he was working for JSO and waiting for JSO to complete its internal investigation. We reject JSO’s contention that not only was the civil service appeal fully pending, but that Cowen’s violation of the rules led to dismissal of that appeal. First, as noted in the Background statement above, the rule requiring an employee suspended without pay to notify the Board of the disposition of pending criminal charges within ten calendar days applies only to an employee actually suspended without pay. Id. at R. 9.05(4). Under no view of the evidence was Cowen suspended without pay after the JSO reinstated him in June 2004. Also, as we have noted, the Civil Service Board never dismissed Cowen’s civil service proceeding pursuant to the City’s motion, instead honoring Cowen’s own request to withdraw the desiccated civil service appeal.

In this case, Cowen never pursued any remedy with respect to the disciplinary action imposed in May 2006 — the termination of his employment — other than arbitration, so we need not address whether Cowen’s pursuit of the Civil Service Board appeal would have waived his right to arbitrate his eventual termination had the suspension and the termination amounted to a single, continuous disciplinary action spanning some twenty-nine months. We regard the two disciplinary actions as separate, focusing our analysis solely on whether Cowen’s expression of his intent to pursue a Civil Service Board appeal of the January 2004 suspension precluded him from challenging his May 2006 termination through arbitration.

The supreme court defines “waiver” as “the voluntary and intentional relinquishment of a known right or conduct which implies [such relinquishment].” Raymond James Fin. Servs., Inc. v. Sal-dukas, 896 So.2d 707, 711 (Fla.2005). “ ‘The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.’ ” Id. (quoting Nat’l Found. For Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)). The case law supports Cowen’s argument that a suspended public employee waives the right to a particular grievance procedure only if the employee actively pursues an alternative remedy “inconsistently with the arbitration right.” Id. In Bass v. Department of Transportation, this court interpreted an earlier version of section 447.401 (one which lacked reference to “an unfair labor practice procedure” and which deployed the verb “use” instead of “avail”) to mean that “a career service public employee who is also a union member may contest a disciplinary action taken by his or her employer either through the union or by filing a civil service appeal, but may not pursue both avenues for relief.” 516 So.2d 972, 973 (Fla. 1st DCA 1987) (emphasis added). In subsequent cases where courts have determined that aggrieved employees waived alternative remedies, those employees pursued initial procedures with far greater intensity, and to far greater avail, than did Cowen in the present case, often actually obtaining unfavorable results in their first-choice fora before seeking other remedies. See, e.g., Taylor v. Pub. Empls. Reis. Comm’n, 878 So.2d 421, 422 (Fla. 4th DCA 2004) (affirming dismissal of public employee’s whistle-blower complaint after employee affirmatively pursued collective-bargaining grievance procedure through three steps); Depaola v. Town of Davie, 872 So.2d 377, 382 (Fla. 4th DCA 2004) (holding, in part, that discharged firefighter did not elect grievance procedure as remedy and thereby waive court action for declaratory and injunctive relief because employer refused to participate in grievance procedure altogether); Hallandale Prof l Firefighters, Local 2238 v. City of Hallandale, 111 So.2d 435, 435 (Fla. 4th DCA 2001) (holding that union waived right to arbitrate challenge to dismissal of firefighters after appealing dismissals to Florida Public Employee Relations Commission and obtaining adverse result in that forum); Metro. Dade County v. Dade County Ass’n of Firefighters, Local 1103, 575 So.2d 289, 290 (Fla. 3d DCA 1991) (holding that discharged employee waived his right to grievance procedure after civil service appeal proved “unsuccessful”). We interpret these cases to mean that section 447.401 precludes resort to a second method for resolution of a labor dispute where the aggrieved employee has actively and affirmatively labored in the pursuit of a particular remedy with the demonstrable anticipation of achieving a result.

In this case, Cowen elected only the Civil Service Board remedy in response to a suspension, and never thereafter took any affirmative action to pursue the remedy, ultimately withdrawing the appeal voluntarily. We do not regard his post-suspension behavior as inconsistent with his right to arbitration, see Saldukas, 896 So.2d at 711, nor do we find any evidence that he pursued the Civil Service Board appeal to the same extent as did the discharged employees who, through their pursuit of initial remedies, waived alternative options in the cases cited above. Moreover, even if Cowen had pursued the Civil Service Board appeal further, we con-elude that his May 2006 termination was a discrete legal event separate from the canceled 2004 suspension, and in determining whether Cowen waived his right to arbitrate the 2006 termination, we find no cases suggesting we must consider Cow-en’s actions in respect of the 2004 suspension.

CONCLUSION

Cowen’s return to duty with the JSO resolved the suspension, leaving nothing pending except the investigation. At the conclusion of the investigation and the issuance of a report leading to his dismissal, Cowen immediately elected arbitration. These uncontested facts, as a matter of law, would not support a finding of waiver. Accordingly, we REVERSE in part and AFFIRM in part, under the rationale expressed in this opinion, and direct the parties to proceed to arbitration.

BROWNING, C.J., and ROBERTS, J., concur.


author: BROWNING, C.J.

text:
    FIRST PROFESSIONALS INSURANCE COMPANY, INC., Appellant/Cross-Appellee, v. Barbara McKINNEY, M.D., Appellee/Cross-Appellant.
    No. 1D06-6240.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Rehearing Denied Feb. 5, 2008.

      Shannon Kain and Dinah Stein, of Hicks & Kneale, P.A., Miami, for Appellant/Cross-Appellee.
    Kelly B. Mathis and Marteal D. Lamb, of Mathis & Murphy, P.A., Jacksonville, for Appellee/Cross-Appellant.
   BROWNING, C.J.

The trial court issued an order granting partial summary judgment in favor of Appellee/Cross-Appellant, Barbara McKinney, M.D., and denied a motion for reconsideration filed by Appellant/Cross-Appellee, First Professionals Insurance Company, Inc. (FPIC). The final judgment awarded attorney’s fees and costs to Dr. McKinney pursuant to section 627.428(1), Florida Statutes (2006), upon rendition of the judgment against the insurer under a policy executed by the insurer. In this appeal, FPIC contends that the lower tribunal erred as a matter of law in failing to grant summary final judgment in favor of FPIC on Dr. McKinney’s claims for declaratory relief and breach of contract. Dr. McKinney cross-appeals the order on attorney’s fees and costs, asserting that the trial court erred in failing to make specific findings regarding the amount of fees and costs awarded. Concluding that the trial court erred in determining that professional liability insurance policy # 33264 contains internally contradictory language and is ambiguous, such that it must be construed against FPIC, we reverse the final judgment and the award of “prevailing party” attorney’s fees and costs and remand with instructions to the trial court to enter summary final judgment in favor of FPIC.

Dr. McKinney has worked as a part-time pathologist since completing her medical training. On several occasions, Dr. McKinney performed medical services for FPIC’s insureds, Drs. Kim and Esfahani, at the Orange Park Medical Center. Whenever she substituted for Drs. Kim or Esfahani, Dr. McKinney would either work as a “locum tenens” — that is, a medical practitioner who temporarily takes the place of another doctor — as an additional insured on one of their insurance policies issued by FPIC, or obtain her own professional liability insurance policy directly from FPIC for the particular date(s) in question. The locum tenens acknowledgment between Drs. Kim and McKinney provided that Dr. McKinney would be an additional insured on Dr. Kim’s policy for the date March 17, 2000. The substantially identical acknowledgment between Drs. Esfahani and McKinney provided that Dr. McKinney would be an additional insured on Dr. Esfahani’s policy for the dates March 17, 30, and 31, 2000.

In correspondence sent by facsimile to FPIC, Dr. McKinney requested her own temporary professional liability coverage to work with Dr. Kim: specifically, daily policy coverage for the dates March 30 and 31, 2000; and April 6, 12, 13, 17, 21, and 27, 2000. In further correspondence to FPIC, Dr. McKinney wrote: “I need short term insurance coverage for April 10, 2000 for Orange Park Medical Center working with Zoo E. Kim, M.D.” Neither correspondence requested coverage for the date April 11, 2000. Responding to Dr. McKinney’s request for coverage on April 10, 2000, FPIC issued her policy # 33264.

This written policy comprised approximately 15 pages and included an identifiable heading for each section. The front page of the policy booklet contained an instructional provision on how to read the policy, along with a provision directing the insured to the location of the coverage summary and an explanation of the contents of the coverage summary. Under subsection “B” of the section titled “Professional Liability Protection,” the policy stated that it provided individual professional liability coverage for damages resulting from the provision of, or failure to provide, professional services to a patient. Subsection “D,” titled “When You Are Covered,” stated:

To be covered, the professional service must have been performed (or should have been performed) after the retroactive date shown on your Coverage Summary. The claim also must be first made while this policy is in effect.

Under “General Rules,” subsection (5) is titled “Optional Extended Reporting Period (Tail)” and states in pertinent part:

When your coverage under this policy ends for any reason, you have the right to buy an optional extended reporting period endorsement commonly referred to as “tail coverage.” The optional extended reporting period endorsement will allow you to report to us all valid claims. You may report claims which resulted from incidents that occurred subsequent to the retroactive date and prior to the expiration date of your Certificate.

Under “General Rules,” subsection (12) is titled “Your Policy Period” and states in its entirety:

Your policy period begins at 12:01 a.m. standard time (at your address) on the date shown in the Coverage Summary. If this policy replaces policies ending at noon, rather than at 12:01 a.m., you will be covered starting at noon when coverage under the old policy ends. Your coverage is scheduled to end at 12:01 a.m., standard time, on the expiration date. If all or part of this policy is cancelled for any reason before that date, that coverage will end at 12:01 a.m. standard time on the cancellation date.

The “Coverage Summary” for policy # 33264 states in pertinent part: “Your policy begins 04/10/2000 and ends on 04/11/2000. Your retroactive date is 04/10/2000 for professional liability.” An endorsement to the policy provided tail coverage, effective April 11, 2000. The endorsement stated, in relevant part:

WHEN YOU ARE COVERED
You may report claims which occurred between your retroactive date of April 10, 2000 and your termination date of April 11, 2000.

Around September 14, 2003, more than three years after Dr. Kim cancelled his FPIC insurance policy and subsequent to Dr. Esfahani’s cancellation and/or non-renewal of his FPIC insurance policy, Dr. McKinney was served with a Notice of Intent to Initiate Litigation for Medical Malpractice on behalf of Rebecca Cara-won. The notice alleged that medical care provided to Mrs. Carawon by Drs. Kim and McKinney on April 14, 1998; April 22, 1999; March 16, 2000; and April 11, 2000, fell below the acceptable standard of care. Mrs. Carawon specifically alleged that Dr. McKinney had examined a specimen from her breast on March 16, 2000; April 11, 2000; and August 7, 2001, and had misdiagnosed breast cancer based on the examinations that occurred on those particular dates.

Upon receipt of this notice of intent, Dr. McKinney communicated Mrs. Carawon’s claim to FPIC and sought to invoke coverage under policy # 38264 for the treatment date April 11, 2000. Initially, FPIC provided a defense for Dr. McKinney during its investigation of the dates of Mrs. Cara-won’s treatment. After determining that no coverage existed under policy # 33264 for the date April 11, 2000, FPIC withdrew its defense. The instant coverage action followed.

Dr. McKinney filed a two-count complaint against FPIC claiming breach of contract and seeking declaratory relief. Dr. McKinney alleged that FPIC, as her insurance carrier, had a duty to provide coverage as a result of a claim for medical malpractice made against her. The complaint sought a declaratory judgment for coverage and damages for breach of contract based on policy # 33264 (issued directly to Dr. McKinney) and based on the locum tenens acknowledgments that she had entered with Drs. Kim and Esfahani. The breach of contract count relied, first, on policy # 33264. Second, this count alleged that pursuant to the locum tenens policies executed by Drs. Kim and Esfaha-ni naming Dr. McKinney as an additional insured on policy # # 6646 and 27035, respectively, Dr. McKinney was entitled to receive notice of non-renewal or cancellation of the policy under section 627.4133, Florida Statutes (2000).

Later, Dr. McKinney moved for partial summary judgment based on policy #33264, on the grounds that the policy provided coverage for the dates April 10 and 11, 2000, so that FPIC had a duty to defend her against Mrs. Carawon’s medical malpractice claim. FPIC moved for summary judgment on the grounds that policy #33264 covered professional services rendered on April 10, 2000, only; that Dr. McKinney was not entitled to any relief under the two locum tenens acknowledgments because Drs. Kim and Esfahani had cancelled their policies with FPIC, without purchasing tail coverage, long before Mrs. Carawon’s September 2003 notice of intent was presented; and that the breach of contract claim should be dismissed because section 627.4133(1), Florida Statutes (2000), which requires notice to be given by the “insurer” to “the named insured,” does not apply to additional insureds such as Dr. McKinney.

In its order on Dr. McKinney’s motion for partial summary judgment, the trial court determined that policy # 33264 provided coverage for the allegations of medical malpractice alleged to have occurred on April 11, 2000, because, at best for FPIC, the language in the policy created ambiguity as to the coverage date(s), which lack of clarity inured to the benefit of Dr. McKinney, as the insured. See Roberson v. United Servs. Auto. Ass’n, 330 So.2d 745, 746 (Fla. 1st DCA 1976) (“Insurance policies are construed liberally in favor of the insured and strictly against the insurer.”). Specifically, the court found that the policy period language conflicted with the coverage summary language in the policy, creating ambiguity. The court concluded that because policy # 33264 obligated FPIC to defend Dr. McKinney in the Carawon lawsuit, the insurer breached that duty. This appeal and cross-appeal followed.

We review de novo the trial court’s interpretation of the insurance policy contract, the determination of whether the law requires the insurer to provide coverage, and the ruling on the motion for partial summary judgment. See Am. Strategic Ins. Co. v. Lucas-Solomon, 927 So.2d 184, 186 (Fla. 2d DCA 2006); Bamier v. Rainey, 890 So.2d 357, 359 (Fla. 1st DCA 2004). Section 627.419(1), Florida Statutes (2000), states:

Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.

“Like other contracts, contracts of insurance should receive a construction that is reasonable, practical, sensible, and just.” Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004). “[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Oumers Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); see Riveroll v. Winterthur Int’l Ltd., 787 So.2d 891, 892 (Fla. 3d DCA 2001). In other words, a single policy provision should not be read in isolation and out of context, for the contract is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, endorsements, or riders. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003); St. Paul Guardian Ins. Co. v. Canterbury Sch. of Fla., 548 So.2d 1159, 1160 (Fla. 2d DCA 1989) (finding no ambiguity in insurance contract titled “Trustee and Personnel Liability Policy,” where declaration page of policy listed “insured’s name and address” as the school’s name and address, whereas definitional portion of policy clarified that “insured” meant elected or appointed trustees or school directors and employees, and school paid premiums for a trustee and personnel liability policy). The mere fact that an insurance contract is complex and requires some analysis to interpret it does not, by itself, render the agreement ambiguous. See Swire Pac. Holdings, 845 So.2d at 165. Absent ambiguity or inconsistency, “insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.” Anderson, 756 So.2d at 34.

FPIC asserts, and we agree, that construed as a whole agreement, policy #33264 is neither internally conflicting nor ambiguous. To support affirmance of the favorable judgment, Dr. McKinney focuses on the coverage summary, which provided that this policy “begins 04/10/2000 and ends on 04/11/2000.” Dr. McKinney suggests that if the policy were intended to cover just the first day, FPIC easily could have written: “This policy provides coverage for April 10, 2000, only.” Instead, in a different section of the policy, clearly titled “Your Policy Period,” the contract states straightforwardly that Dr. McKinney’s policy period begins at 12:01 a.m. standard time on the date shown in the coverage summary and is scheduled to end at 12:01 a.m. standard time on the expiration date. The only reasonable construction of this significant qualifying language is that Dr. McKinney’s policy expired at 12:01 a.m. on April 11, 2000. When these sections are read together, as the law requires, the language is not ambiguous, uncertain, or genuinely inconsistent. Dr. McKinney is not entitled to receive more insurance coverage than that for which she contracted. She requested in writing short-term insurance coverage for April 10, 2000. We have found no documentation in the record indicating that Dr. McKinney ever requested coverage for April 11, 2000, and nothing stated during the oral arguments in this appeal suggested otherwise.

Subsection “D,” titled “When You Are Covered,” states in part that “[t]he claim also must be first made while this policy is in effect.” As such, policy # 33264 was a “claims made” policy, meaning that coverage would be provided for any claims actually made during the policy period arising out of an incident that occurred during the policy period. See Doctors Co. v. Health Mgmt. Assocs., Inc., 943 So.2d 807, 808 (Fla. 2d DCA 2006). However, subsection (5) under “General Rules” in the policy provided that the insured could purchase an extended reporting period endorsement, referred to as “tail coverage.” The policy explained that this endorsement would allow the insured to report all valid claims “which resulted from incidents that occurred subsequent to the retroactive date and’prior to the expiration date of your Certificate.” Dr. McKinney purchased a tail coverage endorsement for policy # 33264, which listed the “effective date” as April 11, 2000, and stated in relevant part that the insured could report claims that occurred between the “retroactive date of April 10, 2000 and your termination date of April 11, 2000.” The effect of this endorsement on this claims-made policy was to extend the reporting period in which the insured could report a claim. See United States Fire Ins. Co. v. Fleekop, 682 So.2d 620, 623 (Fla. 3d DCA 1996) (stating that “ ‘tail’ or discovery period coverage essentially supplements a claims-made policy to give the insured added protection”); Arad v. Caduceus Self Ins. Fund, Inc., 585 So.2d 1000, 1001 (Fla. 4th DCA 1991). Instead of requiring the insured, Dr. McKinney, to report a claim (occurring during the policy period) within that same policy period, the endorsement allowed her to report a claim on a date after the policy’s expiration date. The trial court erroneously concluded that the policy’s tail coverage endorsement contradicted the language contained in the coverage summary and in the ‘Tour Policy Period” provision. Noting our obligation to “read each policy as a whole, endeavoring to give every provision its full meaning and operative effect,” as is required by Anderson, 756 So.2d at 34, we conclude that the policy is not ambiguous as to the policy coverage period and expiration date. See also Riveroll, 787 So.2d at 892.

Given the fact that policy # 33264 unambiguously covered Dr. McKinney for the requested date, April 10, 2000, and for the first minute on April 11, 2000, the trial court erred in finding ambiguity and, therefore, in construing the policy language in favor of the insured. We REVERSE the order on partial summary judgment and REMAND with instructions to the trial court to enter summary judgment in favor of FPIC. Because Dr. McKinney’s motion for attorney’s fees and costs was based on a “prevailing party” theory, our holding on the merits compels REVERSAL of the motion granting attorney’s fees and costs.

KAHN and ROBERTS, JJ., concur.


text:
    Kenneth James KENDRICK, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-4099.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Rehearing Denied Feb. 7, 2008.

      Kenneth James Kendrick, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus and the motion for replevin are denied as procedurally barred. See Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.


text:
    Jo Matthews HAYES, as personal representative of the Estate of Donald Matthews, Appellant, v. CHASE MANHATTAN BANK, as Trustee, for GRMT II Mortgage Loan Trust 2000-1, dated September 1, 2000, and Fairbanks Capital, Inc., a foreign profit corporation, Appellees.
    No. 1D06-4964.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Rehearing Denied Feb. 5, 2008.
    Carl Scott Schuler and Brian J. Lee of the Law Offices of Carl Scott Schuler, P.A., Jacksonville, for Appellant.
    Leslie Bissinger Golden and Robert W. Thielhelm of Baker & Hostetler LLP, Orlando, for Appellees.
   BROWNING, C.J.

Appellant seeks review of the summary judgment entered against Donald Matthews. For the reasons discussed below, we reverse the judgment and remand for proceedings consistent with this opinion. We begin by setting forth the facts.

In 2001, Appellee Chase Manhattan Bank brought a foreclosure action against Donald Matthews; Matthews filed a counterclaim and, subsequently, a third-party complaint against Appellee Fairbanks, Chase Manhattan’s servicer on the mortgage. In the most recent iteration of the counterclaim and third-party complaint, Matthews alleged nine virtually identical counts against each party, including fraud, breach of contract, and violations of consumer protection laws, and added a tenth count against Chase Manhattan: malicious prosecution. In the meantime, Chase Manhattan had voluntarily dismissed its foreclosure action.

Also in the meantime, a settlement agreement and release was reached in a consolidated class action called Curry from the Massachusetts federal district court, wherein plaintiffs had sued Fairbanks for unfair, unlawful and deceptive business practices in its servicing of residential mortgage loans. The final order approving the settlement included an attachment titled “Exhibit A,” which listed the names of those who requested exclusion. United States v. Fairbanks Capital Corp., 2004 WL 3322609 (D.Mass. May 12, 2004). Matthews was number 268 on the list.

In response to the settlement, both Chase Manhattan and Fairbanks moved for summary judgment in the instant case, alleging that Matthews was a member of the Curry class because his notice was adequate and his request for exclusion was postmarked after the filing deadline imposed by the district court and that, therefore, his claims were barred by the release in the Curry settlement. The circuit court agreed, and found that Matthews’s claims were barred by operation of res judicata.

We disagree that Matthews was a class member. His name was on the list of persons excluded from class membership; the federal judge waived any violation of the deadline for exclusion requests by accepting Exhibit “A.” Fairbanks could have argued in the Curry action that Appellant should not be on the list of excluded persons, but did not; accordingly, it is es-topped from making such an argument at this late date. Chase Manhattan was not a party to the class action; however, due process concerns are not implicated because it now enjoys the benefits of the class action result.

Because Matthews was on the list of excluded persons, the circuit court should not have granted summary judgment to Chase Manhattan and Fairbanks on the ground his claims were res judicata as part of the Curry class action.

REVERSED and REMANDED.

KAHN and ROBERTS, JJ., concur.


author: WELLS, Judge.

text:
    Angelo CROSS, Appellant, v. BRAMAN MOTORS, INC., Appellee.
    No. 3D07-1334.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Rehearing Denied Jan. 30, 2008.
    Stabinski & Funt, Miami; Lawrence & Daniel and Adam Lawrence, Miami, for appellant.
    Richard A. Sherman Sr., Fort Lauder-dale; Bohdan Neswiacheny, Orange Park, for appellee.
    Before COPE, WELLS and SALTER, JJ.
   WELLS, Judge.

Angelo Cross appeals from an order submitting to arbitration his malicious prosecution action against his employer, Braman Motors, Inc. We reverse.

While the parties’ contract mandates arbitration for virtually all claims, it expressly excludes those brought under the workers’ compensation laws. Since the instant claim for malicious prosecution stems directly from Braman’s actions during the workers’ compensation case, it is not arbi-trable under the parties’ agreement.

Reversed and remanded for further proceedings.

      . A sample of the employment-related claims listed as subject to arbitration include those under the Employment Retirement Income Security Act, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Family Medical Leave Act, the Older Worker's Benefits Protection Act, as well as all other federal, state and local employment-related laws, regulations, rules or theories.


text:
    Craig CALDWELL, Petitioner, v. Mr. RISKA, Warden, Hamilton Correctional Institution, Respondent.
    No. 1D07-6132.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 4, 2008.
    Craig Caldwell, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, BENTON, and THOMAS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Emily HALE, Appellant/Cross-Appellee, v. DEPARTMENT OF REVENUE, Appellee/Cross-Appellant.
    No. 1D07-0193.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2007.
    Rehearing Denied Jan. 31, 2008.

      H. Guy Green, Marianna, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, and John Mika, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
   VAN NORTWICK, J.

Emily Hale appeals a final judgment and order striking her claim for attorney’s fees and the Department of Revenue (DOR) cross-appeals the denial of its post-judgment motions. We agree with the trial court that Hale failed to satisfy a condition precedent to her claim for entitlement to attorney’s fees by failing to perfect service on the Department of Insurance with a summons and a copy of her complaint at the commencement of this action pursuant to section 284.30, Florida Statutes (1997). Thus, we affirm the trial court’s order granting DOR’s motion to strike Hale’s demand for attorney’s fees. We affirm without further discussion the issues raised in DOR’s cross-appeal.

Emily Hale and her former husband, now deceased, owned and operated Edge-wood Apartments in Cyprus, Florida. The Hales rented their units on a month-to-month basis using a written lease. It is undisputed that they did not collect sales tax from their tenants. On August 18, 1997, DOR requested the Hales to provide certain records regarding their business. The Hales refused to provide the requested records and, in 1998, filed a complaint seeking declaratory and injunctive relief against DOR alleging, among other things, that their tenants were not subject to transient sales tax because the units were used exclusively as dwelling units and that they were not subject to audit. The complaint sought attorney’s fees, but did not allege that all conditions precedent had been met before filing suit. DOR answered, asserting that it possessed a statutory right to audit and, in particular, denied that the Hales were entitled to attorney’s fees.

The parties each filed motions for summary judgment. The trial court denied the motion filed by the Hales and granted the motion filed by DOR. The court agreed with DOR that the applicable exemption from tax was contained in section 212.03(4), Florida Statutes (1997), and required leases in excess of six months, and that the Hales’ reliance upon the last sentence of section 212.03(7)(a), Florida Statutes (1997), was misplaced as it did not support a claim of exemption. The Hales appealed. This court reversed and remanded, Hale v. Department of Revenue, 808 So.2d 237 (Fla. 1st DCA 2002), holding that section 212.03(7)(a) provided a separate exemption from tax where the apartments constitute the “permanent or principal place of residence” of the tenants and that it was not necessary to have leases in excess of six months as required by section 212.03(4) to be entitled to the exemption provided by section 212.03(7)(a).

On remand, discovery and motion practice resumed. The Hales filed their first motion for attorney’s fees on September 10, 2002. They filed a second motion for attorney’s fees on April 8, 2004, alleging entitlement to fees pursuant to sections 213.015(13) and (14), granting certain taxpayer rights. DOR responded and, among other arguments, asserted that the Hales had failed to comply with section 284.30, because they had not perfected service on the Department of Insurance with a summons and a copy of the complaint at the commencement of the action, and, thus, were barred from seeking attorney’s fees under either section 57.105 or 57.111, Florida Statutes. At the same time, DOR filed a motion to strike the demand for attorney’s fees based upon section 284.30. The trial court expressly deferred ruling on the motion for attorney’s fees, finding that the motion was premature. On October 25, 2004, DOR issued its notice of non-assessment, finding “that no sales and use tax is due from Plaintiffs Sam O. Hale and his wife Emily Hale, for audit # 9712802993, audit period 07/01/92 through 06/30/97.” Thereafter, the trial court entered its order granting DOR’s motion to strike the demand for attorney’s fees.

In its order, the trial court set forth a chronology of the litigation and addressed the argument of DOR that its motion to strike was timely filed, see Goodman v. Martin County Health Department, 786 So.2d 661 (Fla. 4th DCA 2001), Department of Health and Rehabilitative Services v. Cordes, 644 So.2d 609 (Fla. 1st DCA 1994), and Heredia v. Department of Highway Safety and Motor Vehicles, 547 So.2d 1007 (Fla. 3d DCA 1989), and the Hales’ competing argument that DOR had waived the requirements of section 284.30 by failing to timely assert lack of notice. See Florida Medical Center, v. Department of Health and Rehabilitative Services, 511 So.2d 677 (Fla. 1st DCA 1987). The trial court agreed with DOR that the Hales failed to satisfy the condition precedent to their claim for fees by failing to serve the Department of Insurance with a copy of their complaint at the commencement of the action as required by section 284.30 and that DOR had timely filed its motion to strike.

Florida Rule of Civil Procedure 1.120(c) provides:

Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

As this court recognized in Florida Medical Center v. Department of Health and Rehabilitative Services, 511 So.2d at 678-79, giving the notice required by section 284.30 is a condition precedent to the recovery of attorney’s fees against the state. While rule 1.120(c) states that it is only necessary to allege in the complaint that conditions precedent have been performed, when a statutory notice is the condition precedent, the complaint should specifically allege that the notice was given. See, generally, Philip J. Padovano, Florida Civil Practice § 7.6 (2007 ed.).

The Hales’ complaint contains neither a general allegation that conditions precedent were satisfied nor a specific allegation that the condition precedent of notice required by section 284.30 was satisfied. The Hales’ failure to comply with rule 1.120(c) removed from DOR “the burden of denying the allegations of compliance with specificity.” Florida Med. Ctr. v. Dep’t of Health and Rehabilitative Servs., 511 So.2d at 679 (quoting McSwain v. Dussia, 499 So.2d 868, 870 (Fla. 1st DCA 1986)). Thus, DOR was not required to specifically allege noncompliance with section 284.30 in its answer. Goodman, 786 So.2d at 664. In Goodman, when the Martin County Health Department controverted Goodman’s entitlement to an award of fees post-final judgment, under similar facts, the Fourth District Court of Appeal explained:

[The Department] could raise the issue for the first time in response to appellants’ post trial motion for attorney’s fees. See Dep’t of Health & Rehab. Servs. v. Cordes, 644 So.2d 609, 610 (Fla. 1st DCA 1994)(holding that the state agency “timely raised § 284.30 in its motion to strike [appellee’s] claim for fees” even if raised for the first time after written settlement and judgment for attorney’s fees was entered). Under these facts, the Department of Health cannot be said to have waived the requirement that appellants demonstrate compliance with section 284.30 in order to recover attorney’s fees.

Although Florida Medical Center v. Department of Health and Rehabilitative Services, 511 So.2d at 678, recognizes that the notice requirements of section 284.30 may be waived, as in Goodman, the facts in this case do not demonstrate waiver. “Waiver” is the “intentional relinquishment or abandonment of a known right or privilege, or conduct that warrants an inference of the intentional relinquishment of a known right.” Destín Savings Bank v. Summerhouse of FWB, Inc., 579 So.2d 232, 235 (Fla. 1st DCA 1991). “The crux of the waiver doctrine rests upon conduct demonstrating an intent to relinquish a known right.” Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958, 962 (Fla.1983). If a party relies upon the other party’s conduct to imply a waiver, “the conduct relied upon to do so must make out a clear case of waiver. Waiver does not arise merely from forbearance for a reasonable time.” Costello v. The Curtis Building Partnership, 864 So.2d 1241, 1244 (Fla. 5th DCA 2004). “Mere delay is insufficient to support a defense of waiver or estoppel.” Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1104 (Fla. 5th DCA 2006), citing Air Prods. & Chem., Inc. v. Louisiana Land & Exploration Co., 867 F.2d 1376, 1380 (11th Cir.l989)(applying Florida law and holding no clear waiver shown after 5-year delay).

“Whether waiver has occurred is generally a question of fact, reviewed for competent, substantial evidence.” Johnson v. Harrell, 922 So.2d 1056, 1057-58 (Fla. 1st DCA 2006). In this case, the trial judge thoroughly analyzed the circumstances of this litigation and determined, as the fact finder, that waiver was not present here. Our review of the record shows that competent substantial evidence supports this determination of the trial court. Accordingly, we affirm the order under review.

AFFIRMED.

LEWIS and THOMAS, JJ., concur.

      .Section 284.30, Florida Statutes (1997) provides:
      A state self-insurance fund, designated as the "Florida Casualty Insurance Risk Management Trust Fund,” is created to be set up by the Department of Insurance and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.33, for workers' compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s.1983 or similar federal statutes, and court-awarded attorney's fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission. A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Insurance; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees.

      . Section 212.03(4), Florida Statutes (1997), provides in pertinent part:
      The tax levied by this section shall not apply to, be imposed upon, or collected from any person who shall have entered into a bona fide written lease for longer than 6 months in duration for continuous residence at any one hotel, apartment house, roominghouse, tourist or trailer camp, or condominium, or to any person who shall reside continuously longer than 6 months at any one hotel, apartment house, roominghouse, tourist or trailer camp, or condominium and shall have paid the tax levied by this section for 6 months of residence in any one hotel, room-inghouse, apartment house, tourist or trailer camp, or condominium....

      . Section 212.03(7)(a), Florida Statutes (1997), provides:
      Full-time students enrolled in an institution offering postsecondary education and military personnel currently on active duty who reside in the facilities described in subsection (1) shall be exempt from the taxed imposed by this section. The department shall be empowered to determine what shall be deemed acceptable proof of full-time enrollment. The exemption contained in this subsection shall apply irrespective of any other provisions of this section. The tax levied by this section shall not apply to or be imposed upon or collected on the basis of rentals to any person who resides in any building or group of buildings intended primarily for lease or rent to persons as their permanent or principal place of residence.

      . Sections 213.015(13) and (14), Florida Statutes (1997) provide:
      il 3) The right to an action at law within the limitations of s. 768.28, relating to sovereign immunity, to recover damages against the state or Department of Revenue for injury caused by the wrongful or negligent act or omission of a department officer or employee (see s. 768.28).
      (14) The right of the taxpayer or the department, as the prevailing party in a judicial or administrative action brought or maintained without the support of justiciable issues of fact or law, to recover all costs of the administrative or judicial action, including reasonable attorney's fees, and of the department and taxpayer to settle such claims through negotiations, (see ss. 57.105 and 57.111).


author: ORFINGER, J.

text:
    Maribenny DIANDERAS and Arturo Dianderas, etc., Appellants/Cross-Appellees, v. FLORIDA BIRTH RELATED NEUROLOGICAL, etc., et al., Appellees/Cross-Appellants.
    No. 5D06-1899.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    Rehearing Denied Feb. 5, 2008.

      Scott R. McMillen, of McMillen Law Firm, P.A., Orlando, for Appellants/Cross-Appellees.
    Wilbur E. Brewton, General Counsel, and Kelly B. Plante, Brewton Plante, P.A., Tallahassee, for Appellee-Cross-Appel-lant, NICA.
    Harvey L. Jay, III and Travase L. Erickson, of Saalfield, Shad, Jay & Stokes, P.A., Jacksonville, and John W. Bocchino of Bobo, Ciotoli, Bocchino, Newman & Corsini, P.A., Orlando, for Appellees-Cross-Appellants, Adventist Health Systems/Sunbelt, Inc., Loch Haven OB/GYN Group and Natasha M. Knight, M.D.
   ORFINGER, J.

Maribenny Dianderas and Arturo Dianderas, on behalf of and as parents and natural guardians of Isabelle Dianderas, a minor, appeal a final administrative order entered on their petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (“NICA”), created by sections 766.301-.316, Florida Statutes (2002). In the final order, the administrative law judge (“ALJ”) determined that Isabelle suffered a “birth-related neurological injury” within the meaning of section 766.302(2); that the language of NICA’s brochure satisfied the requirements of section 766.316; and that Mrs. Dianderas’s physician, Dr. Natasha M. Knight, and her medical group, Loch Haven OB/GYN Group, P.A. (collectively “Dr. Knight”), had complied with the notice provisions of NICA, though the hospital, Adventist Health System/Sunbelt, Inc. d/b/a Florida Hospital, had not. On appeal, the Diand-erases dispute the ALJ’s determination that the brochure complied with the statutory notice provisions. On cross-appeal, Florida Hospital disputes the ALJ’s finding that it failed to satisfy the notice requirements of section 766.316. We affirm the order as it relates to Florida Hospital without comment. We write only to address the legal sufficiency of the NICA brochure given to Mrs. Dianderas by Dr. Knight prior to Isabelle’s birth.

NICA was enacted to provide exclusive no-fault compensation for birth-related neurological injuries to infants. See §§ 766.301-.316, Fla. Stat. (2002); Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974, 978 (Fla.1996). Of significance to this appeal, NICA requires that participating hospitals and physicians give pre-delivery notice to obstetrical patients of their participation in NICA. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997). The purpose of the pre-delivery notice is to give an obstetrical patient the opportunity to make an informed choice between using a health care provider who participates in NICA and one who does not. If a non-participating health care provider is utilized, traditional civil tort remedies are preserved. See id. at 309-10 (citing Turner v. Hub-rich, 656 So.2d 970, 971 (Fla. 5th DCA 1995)).

Dr. Knight, a NICA participant, provided Mrs. Dianderas a copy of the NICA brochure, entitled “Peace of Mind for an Unexpected Problem” in a timely manner. However, the Dianderases contend that the NICA “Peace of Mind” brochure furnished to Mrs. Dianderas does not contain a “clear and concise explanation of the rights and limitations under NICA” as required by section 766.316, Florida Statutes (2002). Specifically, they argue that the brochure fails to inform patients that what they may recover under NICA is potentially different, and may be substantially less than what they might recover in a medical malpractice case, and that there are some elements of damages available in a medical malpractice case that are unavailable if the patient elects to receive services from a NICA provider. Consequently, they conclude that the notice given to Mrs. Diand-eras failed to comply with the statutory mandate of a “clear and concise” explanation of the rights and limitations under NICA. We disagree and affirm.

In pertinent part, the NICA brochure provided to Mrs. Dianderas, states:

The birth of a baby is an exciting and happy time. You have every reason to expect that the birth will be normal and that both mother and child will go home healthy and happy.
Unfortunately, despite the skill and dedication of doctors and hospitals, complications during birth sometimes occur. Perhaps the worst complication is one which results in damage to the newborn’s nervous system — an injury may be catastrophic, physically, financially and emotionally.
In an effort to deal with this serious problem, the Florida Legislature, in 1988, passed a law which created a Plan that offers an alternative to lengthy malpractice litigation processes brought about when a child suffers a qualifying neurological injury at birth. The law created the Florida Birth-Related Neurological Injury Compensation Association (NICA).

EXCLUSIVE REMEDY

The law provides that awards under the Plan are exclusive. This means that if an injury is covered by the Plan, the child and its family are not entitled to compensation through malpractice lawsuits.

CRITERIA AND COVERAGE

Birth-related neurological injuries have been defined as an injury to the spinal cord or brain of a live-born infant weighing at least 2500 grams at birth. In the case of multiple gestation, the live birth weight is 2000 grams for each infant. The injury must have been caused by oxygen-deprivation or mechanical injury, which occurred in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital. Only hospital births are covered.

The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan.

COMPENSATION

Compensation may be provided for the following:

□ Actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel, excluding expenses that can be compensated by state or federal government or by private insurers.
□ In addition, an award, not to exceed $100,000 to the infant’s parents or guardians.
□ Funeral expenses are authorized up to $1,500.
□ Reasonable expenses for filing the claim, including attorney’s fees.

NICA is one of only two (2) such programs in the nation, and is devoted to managing a fund that provides compensation to parents whose child may suffer a qualifying birth-related neurological injury. The Plan takes the “No-Fault” approach for all parties involved. This means that no costly litigation is required and the parents of a child qualifying under the law who file a claim with the Division of Administrative Hearings may have all actual expenses for medical and hospital care paid by the Plan.

, You are eligible for this protection if your doctor is a participating physician in the NICA Plan. If your doctor is a participating physician, that means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan.

Section 766.316 requires, in relevant part, that NICA “shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries ... [and that] [s]uch notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’s rights and limitations under the plan.” (Emphasis added). The question presented in this appeal is whether the Legislature, by requiring that the NICA notice to obstetrical patients “include a clear and concise explanation of a patient’s rights and limitations under the plan,” requires NICA to formulate a brochure that includes an explanation of the civil remedies that an obstetrical patient would forego if she chooses a participating provider.

In construing a statute, legislative intent guides our inquiry. See Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997); Fluet v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 788 So.2d 1010, 1013 (Fla. 2d DCA 2001). Legislative intent is determined from the plain language of a statute. See Jones v. State, 813 So.2d 22, 24 (Fla.2002). This rule of construction requires a straightforward consideration of each relevant sentence of the statute. Blinn v. Fla. Dep’t of Tramp., 781 So.2d 1103, 1105 (Fla. 1st DCA 2000). If the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no need to apply the rules of statutory construction as the statute should be given its plain and obvious meaning. M,W. v. Davis, 756 So.2d 90, 101 (Fla.2000); Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992). This Court reviews the ALJ’s interpretation of a statute de novo. Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”).

Under the statute, it appears that the use of the word “and” in the phrase “rights and limitations” indicates the Legislature’s intent to make all parts of the sentence applicable in the conjunctive. See, e.g., Fla. Birth-Related Neurological Injury Comp. Ass’n, 686 So.2d 1349 (holding that word “and” in phrase “substantially mentally and physically impaired” under section 766.302(2), Florida Statutes, must be construed to require both mental and physical impairment, not mental “or” physical impairment). However, the terms “clear,” “concise,” and “explanation” are not defined by statute. When a term is undefined by statute, “[o]ne of the most fundamental tenets of statutory construction” requires that we give a statutory term “its plain and ordinary meaning.” Green v. State, 604 So.2d 471, 473 (Fla. 1992). When necessary, the plain and ordinary meaning “can be ascertained by reference to a dictionary.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001); Green, 604 So.2d at 473; see also L.B. v. State, 700 So.2d 370, 372 (Fla.1997) (stating that “a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term”).

Applying the above principles to the NICA statute, we assume that the Legislature understood the plain and ordinary meaning of the statutory terms “clear,” “concise” and “explanation” when it included these terms in the statute. Hankey v. Yarian, 755 So.2d 93, 96 (Fla.2000); see Aetna Cas. & Sur. Co., 609 So.2d at 1317; Thayer v. State, 335 So.2d 815, 817 (Fla. 1976); Sheffield v. Davis, 562 So.2d 384 (Fla. 2d DCA 1990). The dictionary defines the term “clear” as “[fjree from doubt or confusion; certain.” The American Heritage College Dictionary 279 (2d ed. 1985); see also Black’s Law Dictionary 250 (6th ed. 1990) (“Obvious; beyond reasonable doubt; .... [pjlain; evident, free from doubt or conjecture, unequivocal.... ”). The term “concise” means “[expressing much in few words; clear and succinct.” The American Heritage College Dictionary 305 (2d ed. 1985). The term “explanation” is defined as “[t]he act or process of explaining,” and further defines “explain” as “[t]o make plain or comprehensive or ... to define.” The American Heritage College Dictionary 477 (2d ed. 1985). Applying the plain and ordinary meaning of the terms “clear,” “concise,” and “explanation,” we conclude that the statute only requires that NICA discuss the provisions of NICA itself. The statute requires NICA to provide forms that “include a clear [‘free from doubt or confusion’] and concise [‘expressing much in few words; clear and succinct’] explanation [‘[t]o make plain or comprehensive’] of the patients’ rights and limitations under the plan.” § 766.316, Fla. Sta. (2006) (emphasis added). We believe the phrase “under the plan” refers to the rights and limitations of the NICA plan, not the tort system. NICA has two primary limitations: (1) it is an exclusive remedy, meaning that no medical malpractice lawsuit can be maintained; and (2) it restricts the amount and types of damages that can be recovered from the plan itself. These limitations are clearly and concisely explained in the brochure. The statute’s terms do not obligate NICA to further explain a patient’s potential civil remedies at common law or otherwise. Hence, we conclude the NICA “Peace of Mind” brochure satisfies the legislative mandate of providing a “clear and concise explanation of a patient’s rights (‘Criteria and Coverage’) and limitations (‘Exclusive Remedy’) under the plan.” See Jackson v. Florida Birth-Related Neurological, 932 So.2d 1125, 1128 (Fla. 5th DCA 2006). Consequently, we affirm the final order.

AFFIRMED.

MONACO and LAWSON, JJ., concur.

      . At oral argument, counsel for the Diander-ases withdrew their second issue concerning the ALJ's exclusion of their expert witness. The Dianderases also do not challenge the constitutionality of NICA.

      . Because the terms are not ambiguous, see Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 455 (Fla. 1992) (explaining that "[a]mbiguity suggests that reasonable persons can find different meanings in the same language”), it is unnecessary for this Court to compare the NICA statute to other statutes, including Florida’s "informed consent” law for obtaining proper consent for medical treatment, as the Dianderases suggest.

      . Although we said in Jackson, 932 So.2d at 1128, that the NICA brochure "contains a clear and concise explanation of a patient’s rights and limitations under the NICA plan, as is required by the terms of the statute,” we agree with the Dianderases that the statement is dictum and not controlling. The issues in Jackson related to delivery of the brochure, not the adequacy of it, and whether all providers in a group practice must be individually named in the notice to receive the benefit of NICA protection.


author: PLEUS, J.

text:
    Curtis JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1338.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    Rehearing Denied Feb. 7, 2008.
    Curtis James, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MANDATE FROM THE SUPREME COURT OF FLORIDA

PLEUS, J.

This appeal has been reinstated on remand from the supreme court as our decision in James v. State, 881 So.2d 85 (Fla. 5th DCA 2004), was quashed in State v. Vickery, 961 So.2d 309 (Fla.2007). The Supreme Court of Florida directed this court to reconsider this Rule 3.850 appeal in light of Sanders v. State, 946 So.2d 953 (Fla.2006). In Sanders, the Supreme Court of Florida held that when trial counsel fails to request a necessarily lesser included offense that is one step removed from the charged offense, the inability of the jury to exercise its pardon power cannot establish a basis for finding that counsel’s omission resulted in prejudice. Therefore, an ineffective assistance of counsel claim may be summarily denied if the only allegation of prejudice is that the jury was unable to exercise its pardon power.

James was convicted of fleeing or attempting to elude a law enforcement officer in a patrol vehicle with lights and siren activated at high speed or with wanton disregard, a second-degree felony. See § 316.1935(3)(a), Fla. Stat. (2007). In Ground 5 of the 3.850 motion^ James argued that his trial counsel was ineffective for failing to consult with him regarding the jury instructions for lesser included offenses and for failing to request an instruction for the third-degree felony offense of fleeing or attempting to elude an officer in a patrol vehicle with lights and siren activated. The trial court denied relief on this ground, pointing out that an instruction was given for a lesser misdemeanor offense, but the jury convicted James of the charged offense. The trial court concluded that there was no reasonable probability that the jury would have declined to follow the law and exercise its jury pardon power, and therefore prejudice was not established.

In James’ 3.850 motion, the only allegation of prejudice was that the jury was unable to exercise its pardon power. Therefore, in light of Sanders, swpra, we affirm the summary denial of James’ 3.850 motion as to all of the grounds raised therein, including Ground 5. Cfi Charles v. State, 963 So.2d 926 (Fla. 4th DCA 2007).

AFFIRMED.

PALMER, C.J. and MONACO, J., concur.

      . To prevail on an ineffective assistance of trial counsel claim, a defendant in a Rule 3.850 motion must establish a substantial deficiency in counsel’s performance which so affected the proceeding that confidence in the outcome is undermined. See Dufour v. State, 905 So.2d 42 (Fla.2005); Maxwell v. Wainwright, 490 So.2d 927 (Fla. 1986), cert, denied, Maxwell v. Florida, 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986).


text:
    Bobby B. ROSE and Maudeanna Rose, Appellants, v. James CLEMENTS, individually, and Florida Family Insurance Company, Appellees.
    No. 1D06-3426.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.
    Rehearing Denied Jan. 31, 2008.

      Sean C. Barber and W. Alan Winter of The Winter Law Firm, Neptune Beach, for Appellants.
    Michael S. O’Neal of Howell & O’Neal, P.A., Jacksonville, for Appellee Florida Family Insurance Company. No appearance for Appellee James Clements.
   PER CURIAM.

Appellants challenge the trial court’s final order entered after granting Florida Family Insurance Company’s motion for summary judgment and dismissing Florida Family Insurance Company from the underlying case. Any basis for reversal of summary judgment must be preserved by raising the issue in the trial court. Cassady v. Moore, 737 So.2d 1174, 1178 (Fla. 1st DCA 1999); Yzaguirre v. Progressive Am. Ins. Co., 793 So.2d 99, n. 1 (Fla. 2d DCA 2001). After discovering that the record on appeal did not contain a transcript of the summary judgment hearing, this court issued an order directing Appellants to supplement the record pursuant to Florida Rule of Appellate Procedure 9.200(f)(2) with this information. Appellants did not file a transcript or a reconstructed record in response to this order. Due to the insufficient record, this court is unable to determine on what basis, if any, Appellants argued against the motion for summary judgment because the hearing on this motion was not recorded. Thus, this court is unable to review the factual or legal basis for the trial court’s decision. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Klette v. Klette, 785 So.2d 562 (Fla. 1st DCA 2001); Rollins v. Rollins, 783 So.2d 1114, 1115 (Fla. 1st DCA 2001); M.J. v. A.B., 694 So.2d 888 (Fla. 2d DCA 1997). “Litigants who proceed ... without a court reporter take a calculated risk. If the facts are determined adversely they may well be unable to demonstrate error on appeal due to the absence of a record.” Starks v. Starks, 423 So.2d 452, 454 (Fla. 1st DCA 1982). Accordingly, we AFFIRM the trial court’s order on appeal.

BROWNING, C.J., BARFIELD, and DAVIS, JJ., concur.


author: SUAREZ, J.

text:
    SEA TOW SERVICES INTERNATIONAL, INC., Appellant, v. Duke PONTIN d/b/a Spirit Towing and d/b/a Sea Tow Services Florida Keys, Appellee.
    No. 3D06-3036.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Rehearing Denied Feb. 14, 2008.
    Thomas M. Bates, West Palm Beach, for appellant.
    Mitchell J. Cook, Summerland Key, for appellee.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

Sea Tow Services International, Inc. appeals a non-final order modifying in part and denying a motion to dissolve a temporary injunction after an evidentiary hearing. The trial court denied dissolution of a temporary injunction which prevented Sea Tow from terminating a licensing agreement between itself and Duke Pontin. We find a change of circumstances which required the trial court to dissolve the temporary injunction and, therefore, reverse.

Sea Tow was in the business of marine assistance and transportation. Duke Pon-tin became a Sea Tow licensee on July 4, 1992. The Agreement allowed Pontin to act as a Sea Tow operator to perform towing salvage and other marine services. The terms of the Licensing Agreement required all Sea Tow licensees and employees to be United States Coast Guard licensed as required by law. The License Agreement provided for a ten day “cure” of reasonable objections made by Sea Tow for violation of the Agreement by the licensee before termination could be effected. Sea Tow learned from the United States Coast Guard that Duke Pontin had been allowing his son, Cove Pontin, to provide Sea Tow towing assistance while he was not properly licensed. On June 26, 2006, it notified Duke Pontin by certified letter that the Agreement was being terminated immediately for, among other reasons, allowing his son to operate a vessel and provide commercial assistance without the required United States Coast Guard license. On July 27, 2006, Duke Pontin moved to temporarily enjoin Sea Tow from terminating him as a licensee on grounds that the June 26th letter of termination did not include the required ten-day-cure provision of the License Agreement. An evi-dentiary hearing was held on August 16, 2006, and the trial court issued a temporary injunction on August 25, based on Sea Tow’s failure to provide Duke Pontin the ten-day-eure period for Cove Pontin to secure his license, and temporarily enjoined Sea Tow from terminating Duke Pontin as a Sea Tow licensee.

On August 31, 2006, Sea Tow requested Duke Pontin, by letter, to produce within ten days evidence that all employees who had captained vessels were properly licensed. On September 13, 2006, Sea Tow moved to dissolve the temporary injunction alleging that Pontin was in violation of the Agreement and had not met the prerequisites for injunctive relief. Sea Tow was then notified by the Coast Guard that Duke Pontin’s license had lapsed months before. On September 20, 2006, the trial court heard evidence on Sea Tow’s motion to dissolve. As of the date of the hearing, Duke Pontin had not obtained his captain’s license so as to cure the named violation of operating Sea Tow vessels without a captain’s license in disregard of United States Coast Guard regulations. Duke Pontin admitted to operating as a master Sea Tow vessels without a license on at least six occasions. He stated that he was aware at the time of the prior hearing that his license had lapsed, and had failed to tell the court. The trial judge denied Sea Tow’s request to dissolve the temporary injunction, but ruled that Sea Tow was only required to pay Duke Pontin for tows where there had been a licensed captain on board.

The standard of review in determining whether a trial court properly refuses to dissolve a temporary injunction is abuse of discretion. Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842 (Fla. 3d DCA 2007); Thomas v. Osier Med., Inc., 963 So.2d 896 (Fla. 5th DCA 2007). If facts newly raised at the time of the motion to dissolve were never presented in the initial request for injunction and a change in circumstances has been shown, the trial court abuses its discretion in denying the motion to dissolve. Cf. Osier, 963 So.2d at 899; Pécora v. Pécora, 697 So.2d 1267 (Fla. 5th DCA 1997). At the September 20, 2006 hearing on Sea Tow’s motion to dissolve, it was newly established that, after allowing Duke Pontin ten days from the August 31, 2006 letter to produce for inspection evidence of licenses, Duke Pontin had neither produced his own license nor sufficiently cured the named violation. Pontin took no steps to comply until over one month after the August 31 letter, thus, giving Sea Tow the right to terminate for failure to cure within ten days.

At the time of the hearing on the motion to dissolve the temporary injunction, Sea Tow had already sent another letter to Pontin which did include the provision under the Agreement it had failed to include in its prior letter — the ten-day-cure provision. These new conditions changed the circumstances and evidenced grounds for terminating the Agreement and granting the motion to dissolve. Therefore, the trial court was obligated to dissolve the injunction which prevented Sea Tow from terminating Pontin. In accord with this determination is the legal principle that a court of equity will not “give to the plaintiff what the law would give him ... without imposing upon him conditions which the court considers he ought to comply with_” Superior Unifs., Inc. v. Brown, 211 So.2d 50, 52 (Fla. 3d DCA 1968); see also Tampa & J. Ry. Co. v. Catts, 79 Fla. 235, 85 So. 364 (Fla.1920).

We therefore reverse and dissolve the temporary injunction.

Reversed and remanded.

      . See 46 C.F.R. § 15.410 which provides that every assistance-towing vessel must be under the direction and control of a licensed individual.

      . If Licensee fails to cure any reasonable objections made by Licensor within ten (10) days after being notified of the objection, SEA TOW shall have the right at its option to terminate this Agreement pursuant to paragraph 9.


author: SALTER, J.

text:
    50 STATE SECURITY SERVICE, INC., Appellant, v. William A. MURRAY, Appellee.
    No. 3D07-1717.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Beckham & Beckham, and Pamela Beck-ham, Miami, for appellant.

      George M. Evans, for appellee.
    Before CORTIÑAS, LAGOA, and SALTER, JJ.
   SALTER, J.

50 State Security Service, Inc. (“Security Service”) appeals the circuit court’s non-final order denying a motion to release funds previously deposited by Security Service into the registry of the court. The appellee, William A. Murphy, was the defendant and counter-plaintiff below in a lawsuit involving alleged breaches of an employment contract between Security Service and Murphy.

Finding that Murphy has no vested or continuing interest in the funds in the registry, and that those funds are not a specific res at issue in what remains of the lawsuit, we reverse.

The Lawsuit and Agreed Order

Murphy signed an employment contract with Security Service in 1998 and worked for the company through April of 2004. In the lawsuit that followed, Security Service claimed that it terminated Murphy for cause. Security Service also asserted that it had the right to enforce a covenant not to compete and certain contract provisions pertaining to confidential and proprietary business information. Murphy counterclaimed for termination damages, including bonus compensation allegedly payable under the employment agreement.

Concerned that the termination bonus was the consideration for Murphy’s covenant not to compete, and purportedly unaware that Murphy had actually begun to compete, Security Service moved to deposit the termination bonus amount (less applicable taxes and the Clerk’s registry fee), the sum of $80,484.24, into the registry to be payable to Murphy “provided Murphy complies with his contractual obligations including, but not limited to, the covenant not to compete.”

Murphy did not object to the payment of that amount into the registry, and an agreed order was entered by the trial court directing the clerk to accept the deposit. The agreed order did not specify any conditions, deadlines, or other terms relating to the subsequent or ultimate disposition of the deposit. There is no assertion that Murphy had any lien or security interest in the funds deposited by Security Service pursuant to the agreed order.

Security Service’s Motion for Return of the Funds in the Registry

In mid-2005, Security Service filed a motion seeking to withdraw the funds on deposit, alleging that Murphy had taken new employment with a competitor, thereby clearly breaching the employment contract. The motion was heard at a motion calendar and denied without prejudice. Thereafter, Security Service voluntarily dismissed its claims against Murphy, and Murphy filed a motion for the release of the $80,424.24 in the registry to Murphy. That motion was denied.

Security Service then filed a further motion for the return of the funds to Security Service, including a memorandum of law, and specially set the motion for a more extended hearing. The trial court denied the motion, apparently concerned that the predecessor judge had denied a similar motion without prejudice at a motion calendar hearing over a year earlier. This appeal followed.

Analysis

We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). Because the trial court’s ruling turns on an issue of law rather than evidentiary or procedural questions, our review is de novo.

Murphy’s rights to any bonus were, and are, unsecured contractual claims in the lawsuit; Murphy has never claimed a lien, security interest, or other right in the specific funds placed on deposit by Security Service. The fact that Security Service moved for and obtained an agreement between counsel to place the bonus amount in the registry did not alter that fact. Security Service’s stated basis for making such a deposit was to disarm any affirmative defense by Murphy that Security Service had to do so as a condition precedent to the enforcement of the non-competition and other provisions of the employment agreement.

But once Security Service concluded that Murphy had breached the non-competition provision and voluntarily dismissed any claim against Murphy, Security Service was entitled to the return of its funds. The funds were not themselves the proper subject of any claim for relief. Based on “well-established law which does not authorize a court, in an action at law for money damages, to restrain a defendant from using its unrestricted assets pri- or to the entry of judgment,” the order below must be reversed and remanded to the trial court with instructions to grant Security Service’s motion. RCA Records Label, Inc. v. Reyes, 922 So.2d 367 (Fla. 3d DCA 2006). Otherwise, the order below would in effect continue an injunction without the requisite legal and evidentiary showings, and without a bond. Ksaibati v. Ksaibati, 824 So.2d 219, 222 (Fla. 2d DCA 2002). Nor has Murphy shown any equitable claims to support a continuation of an order freezing Security Service’s funds before judgment. Rosen v. Cascade Inti, Inc., 21 F.3d 1520 (11th Cir.1994).

Reversed and remanded.

      . Security Service’s “Motion to Deposit Funds into Court Registry” at 6.

      . Florida Rule of Civil Procedure 1.600, “Deposits in Court,” requires a court order for a deposit into, or a withdrawal of funds from, the court registry. The rights of the parties to the funds on deposit and before judgment remain a matter of substantive law, however.

      . We do not regard the fact that Security Service initiated the deposit and agreed order as an invited error or as a predicate for estop-pel. Murphy has made no claim of detrimental reliance or prejudice, and merely wants to continue what is now effectively a prejudgment attachment without bond.