author: STONE, J.

text:
    Garrick HATFIELD, Appellant, v. AUTONATION, INC., Appellee.
    No. 4D06-657.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.

      Alex J. Sabo and Seth V. Alhadeff of Bressler, Amery & Ross, P.C., Miramar, for appellant.
    Jon K. Stage and Eric K. Gabrielle of Stearns, Weaver, Miller, Weissler, Alha-deff & Sitterson, P.A., Fort Lauderdale, for appellee.
   STONE, J.

Hatfield appeals a non-final order granting AutoNation, Inc.’s motion for temporary injunction, enjoining Hatfield to do four things: (1) return all materials he misappropriated from AutoNation; (2) refrain from disclosing any information about AutoNation to any person or entity; (3) refrain from engaging in selling, leasing, or servicing any new or used vehicles or parts, either wholesale or retail, until February 1, 2006; and (4) make available for AutoNation’s inspection a laptop computer to which he sent emails containing confidential and proprietary information, with the caveat that he could have his own expert present to protect his interests. Hatfield argues that AutoNation failed to show irreparable harm, claiming there is no proof that the information he took was secret, sensitive, or commercially valuable, and asserts that the injunction was based upon the doctrine of inevitable disclosure. Finding support for each element necessary for injunctive relief, we affirm.

Hatfield was the general manager of an AutoNation-owned Mercedes-Benz dealership in Houston, Texas for three years when he entered negotiations for a similar position with a competitor Mercedes dealership. AutoNation filed a complaint in Florida seeking injunctive relief for misappropriation of trade secrets under section 688.001 et seq., Florida Statutes, and including other counts not addressed in this appeal.

Hatfield did not testify at the adversarial evidentiary hearing, but instead filed a brief declaration. On the other hand, Au-toNation provided evidence to support each of the following allegations through witness testimony and exhibits. In the weeks immediately preceding his resignation, Hatfield attended a sales conference at AutoNation corporate headquarters. Documentation acquired at this meeting was packed into a box, removed from Hatfield’s office, and brought to his home. Less than a week before he resigned, Hatfield downloaded twenty-six computer files containing everything necessary to start up a dealership, as well as inside information regarding AutoNation’s sales, payment and incentives to employees by department, and internal programs to stay competitive. The day that he downloaded these files to disk, Hatfield also sent a series of emails to a personal account.

During the hearing, counsel for both sides referenced “inevitable disclosure” — a doctrine applying traditional trade secret misappropriation principles to situations where there has been no actual or threatened misappropriation. Del Monte Fresh Produce Co. v. Dole Food Co., 148 F.Supp.2d 1326, 1335 (S.D.Fla.2001). AutoNation had sought an extended period of preclusion from working within the automotive industry, beyond a period contemplated in a contractual, but unenforceable, non-compete provision. The trial court, correctly, did not agree to this, but, in any event, repeatedly emphasized that whether and whenever Hatfield went to the new dealership, it was to be without the benefit of any of the materials he had stolen: “[r]eturn the property, not disseminate or publish any of the stuff he downloaded or unlawfully acquired.... I’m going to enter an order of injunction with those two elements, return it and don’t disseminate, use or publish.” The trial court allowed that a forensic expert could examine the laptop to determine whether the emails had been forwarded or altered prior to deletion.

The order does not rely upon inevitable disclosure, which we deem inapplicable here. Rather, it addresses Hatfield’s misappropriation, the manner in which he accomplished it, the irreparable harm Au-toNation would suffer due to the time-sensitive and confidential nature of the material, AutoNation’s substantial likelihood of success on the merits based on the evidence presented, Florida’s public policy interest in protecting trade secrets, and consideration of the relative harms between parties, finding AutoNation’s investment in development of its trade secrets to be substantial, and the potential harm caused if used by a nearby competitor unquantifiable in terms of money damages.

The injunction AutoNation sought in this action was only to protect its misappropriated trade secrets and prevent or mitigate the harm disclosure could cause. A temporary injunction requires a showing of four elements: (1) irreparable harm; (2) a clear legal right; (3) an inadequate remedy at law; and (4) that the public interest will be served. A trial court’s ruling on a motion for temporary injunction will not be overturned absent a clear abuse of discretion and is entitled to a presumption of correctness. JonJuan Salon, Inc. v. Acosta, 922 So.2d 1081, 1083 (Fla. 4th DCA 2006).

AutoNation provided evidence that the misbegotten reports and data were not available to the general public, contained highly sensitive information about actual sales and operations at a multitude of dealerships across the country, as well as programs that, if known, could give a competitor an advantage. Hatfield claims to have given everything back.

The fact that AutoNation could only speculate on the magnitude of the ramifications of disclosure of its secrets lends support to the irreparable nature of harm. “[A]n injury is irreparable where the damage is estimable only by conjecture, and not by any accurate standard.” JonJuan, 922 So.2d at 1084 (quoting Sun Elastic Corp. v. O.B. Indus., 603 So.2d 516, 517 n. 3 (Fla. 3d DCA 1992)). The trial court had only Hatfield’s declaration and his attorney’s assertions to the court that he has given everything back and has never disseminated any information. The trial court could conclude these appeasements lacked credibility. Hatfield never acknowledged the twenty-six files that he downloaded or offered any proof to rebut AutoNation’s evidence of his actions.

The trial court found that AutoNation had a clear legal right and substantial likelihood of success on these merits, under section 688.003, Florida Statutes—the Florida Uniform Trade Secrets Act. The statute deals not with restrictive covenants and employment by a business’ competition, but with misappropriation. It provides injunctive relief when trade secrets have actually been misappropriated, as here, or misappropriation has been threatened. An injunction with respect to stolen business secrets is authorized where it will eliminate commercial advantage derived from the misappropriation and affirmative acts to protect a trade secret can be compelled by court order.

The injunction only included a brief respite from employment as part of the court’s fashioning a remedy that would aid AutoNation in minimizing the potential damage by disclosure of time sensitive trade secrets. The injunction was simply about protecting AutoNation’s internal procedures and operating figures found within the materials that AutoNation proved Hatfield had stolen.

Questions of inevitable disclosure need not be addressed in this case as, here, there was actual misappropriation. Hatfield did, in fact, take a box of materials, download twenty-six confidential files, and send five emails with attachments including more proprietary data. Inevitable disclosure allows injunctive relief in the absence of actual, or threatened, misappropriation. In the order, the lower court relied on Fountain v. Hudson Cush-N-Foam Corp., 122 So.2d 232 (Fla. 3d DCA 1960), not because it was finding inevitable disclosure in the instant case, but because the remedy it discussed was fitting in this situation.

Lastly, the existence of Florida’s trade secret statute illustrates our state’s interest in protecting businesses from theft of confidential information. The trial court here found that legal remedies would not suffice because of the time-sensitive nature of the information and the possible advantage it could engender. The trial court was well within the limits of its reasoned discretion in entering the injunction. As to other arguments raised, we also find no reversible error or abuse of discretion.

We do not purport to resolve or address any issues in this dispute that were previously resolved or that are presently pending in litigation in the state of Texas.

STEVENSON, C.J. and POLEN, J., concur.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Joshua W. CARDINAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1631.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

As a society, we have got to find a better way of handling our mentally ill and mentally handicapped citizens than incarceration in our jails and prisons. This present case is typical of the problem.

The appellant, Joshua Cardinal, is a man of limited mental ability. In 1999, he pled guilty to committing a lewd and lascivious act in the presence of a child under 16, and one count of attempted commission of a lewd and lascivious act in the presence of a child under 16, after being examined by mental health experts to assure that he could lawfully enter such a plea. See § 800.04, Fla. Stat. (1998). He was sentenced to serve three years in prison in the custody of the Department of Corrections, followed by ten years of probation, including the performance of community service hours.

After completing his term of incarceration, he was placed in a group home facility called the Human Development Center. The Center provides intensive behavioral treatment to individuals who are both mentally retarded and mentally ill. While living at the Center, Mr. Cardinal violated his probation by refusing to perform his community service hours because, according to his probation officer, he said “he just [didn’t] want to do them.” He admitted his violation of probation to the trial judge, and was sent back to prison.

Mr. Cardinal now seeks to withdraw his plea to the violation of probation. It appears from the record, however, that the trial court carefully considered the evidence of Mr. Cardinal’s limited mental abilities, and his medical and mental health history, as well as the reports of various experts. It concluded, based primarily on the reports of two experts, that Mr. Cardinal often uses his limited intellect as an excuse for his aberrational behaviors. All who have come in contact with this case, including the trial judge, have concluded that Mr. Cardinal suffers from some serious mental limitations. It appears, nevertheless, that Mr. Cardinal will continue to be housed in prison.

We come to this conclusion because we review a trial court’s determination to grant or deny a motion to withdraw a plea using an abuse of discretion standard. See Opas v. State, 868 So.2d 598 (Fla. 5th DCA 2004). Using this standard it is obvious that we must affirm. The trial judge actually heard the testimony, took the plea, and judged the credibility of the witnesses before him. We do not mean to minimize the criminal acts for which Mr. Cardinal was imprisoned. It is unfortunate, however, that there is not a better way to both safeguard society and to handle persons such as Mr. Cardinal, other than to place him back in a prison environment.

AFFIRMED.

PLEUS, C.J. and ORFINGER, J., concur.


author: STRINGER, Judge.

text:
    Howard MOSS, Appellant, v. Patricia L. MOSS, Appellee.
    Nos. 2D03-478, 2D03-2355.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.

      Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami; and David M. Wall of Law Offices of David M. Wall, Clearwater, for Appellant.
    Joseph R. Park and Michael J. Park, Park and Ossian, P.A., Clearwater, for Ap-pellee.
   STRINGER, Judge.

On remand from the Florida Supreme Court, Howard Moss (the Husband) challenges the trial court’s determination that he was not entitled to an award of attorney’s fees against his former wife, Patricia Moss (the Wife). The supreme court did not make a decision in this case, but instead remanded for this court to reconsider its previous opinion in light of the supreme court’s decision in Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla.2005), concerning the validity and enforceability of prevailing party attorney’s fee provisions in prenuptial agreements. We again affirm.

FACTS

Underlying Facts

The parties were married on February 14, 1993, in Reno, Nevada. At the time of the marriage, the parties were living in Illinois, where the Husband’s family owned several successful currency exchange businesses. The Wife had worked for one of these businesses before the marriage. Because of the Husband’s significant preexisting wealth and ownership interest in the family businesses, the parties signed a prenuptial agreement (“the Agreement”) before the marriage. Paragraph 18 of the Agreement provided, in pertinent part:

If either party breaches any provision of this Agreement, the breaching party or his or her estate shall indemnify the other party and make the other party whole as if no such breach had taken place with respect to this Agreement. ... Further, the breaching party or his or her estate shall be liable for any attorney’s fees, costs and expenses incurred by the other party in attempting to enforce the provisions of this Agreement.

Shortly after the marriage, the parties moved to Florida where they together began to investigate starting a new currency exchange business. Ultimately, the parties opened five currency exchange businesses in the Tampa/St. Petersburg area. There was undisputed testimony at the dissolution hearing that the Wife worked with the Husband to find business locations, coordinate the construction of the buildings, hire and train employees, and manage the day-to-day operations of the businesses. Even though the Wife spent as many, if not more, hours actually working for the businesses than the Husband did, the Wife was not paid a salary nor was she considered an employee. Moreover, the businesses were incorporated and held solely by the Husband and his brother. Thus, the Wife worked more than full time for these postmarital businesses, but she was not compensated for her efforts either by salary or through ownership. Instead, the Husband told the Wife that once she determined what she wanted to do, he would “repay” her by setting her up in a business that she could leave to her children.

In February 2001, the Wife filed a petition for dissolution. In that petition, the Wife admitted that the Agreement was valid and enforceable. She sought the lump sum payment due to her under the Agreement, and she sought the two years of alimony payments provided for by the Agreement. In addition, the Wife sought an award of temporary alimony while the dissolution proceedings were pending and an award of rehabilitative alimony so that she could complete her training as a massage therapist. She also sought to be awarded a “special equity” in the Florida businesses based on the services she had provided to those businesses and the Husband’s postmarriage promises to set her up in another business. In seeking the awards of rehabilitative alimony and “special equity,” the Wife contended that these claims were not barred by the Agreement because they were simply not addressed anywhere in it. Thus, the Wife’s claims dealt with the interpretation and scope of what she admitted was a valid and enforceable prenuptial agreement. The Wife also sought an award of attorney’s fees and costs pursuant to section 61.16, Florida Statutes (2001).

In response to the Wife’s petition, the Husband argued that the claims for rehabilitative alimony and a “special equity” were within the scope of the Agreement and were barred by it. He also argued that any award of temporary alimony should be offset against the lump sum amounts due to the Wife under the Agreement. He further contested the Wife’s interpretation of the Agreement as it applied to the lump sum payment, claiming that the length of the marriage, and thus the corresponding payment, should be determined based on when the petition was filed rather than when dissolution was actually granted. Finally, the Husband sought an award of his attorney’s fees pursuant to section 57.105, Florida Statutes (2001), contending that the Wife’s claims were frivolous in light of the plain language of the Agreement.

During the course of the proceedings, the Wife’s claim for rehabilitative alimony became moot. In the final judgment of dissolution, which was rendered December 20, 2002, the trial court found that the Wife’s claim for “special equity” in the Florida businesses was barred by the Agreement. However, the trial court agreed with the Wife that the temporary alimony paid during the pendency of the dissolution case was not an offset to either the lump sum payment or the two years of alimony payments provided for by the Agreement. In addition, the trial court agreed with the Wife’s interpretation as to the determination of the proper lump sum owed under the Agreement.

After the hearing on the petition for dissolution but before the final judgment of dissolution was actually entered, both parties set a hearing on their claims for attorney’s fees and costs for December 6, 2002. When that hearing was scheduled, the only pending motion for attorney’s fees filed by the Husband was his motion seeking fees pursuant to section 57.105. There was no pending motion seeking an award of attorney’s fees pursuant to paragraph 18 of the Agreement, and no such claim had been made in the Husband’s answer to the Wife’s petition.

Shortly before the December 6, 2002, healing, the Husband cancelled the portion of the hearing dealing with his motion. Thus, the December 6 hearing dealt solely with the Wife’s motion for attorney’s fees and costs. At the start of the December 6 hearing, the Husband told the court that he had cancelled the hearing on his motion because the final judgment had not yet been entered. The sum total of the Husband’s discussion concerning his motion for fees was as follows:

The Respondent’s Motion for Attorney’s Fees, Your Honor, is really based upon two different issues that will really be resolved when a final judgment is entered that addresses the issues that were tried before the Court.
Until that final judgment is entered, the issues that we want to address regarding provisions in the prenuptial agreement relating to the breach of contract provision, which is I believe paragraph eighteen that we are asserting, there was a breach of the contract here in that the Petitioner sought an award of benefits or entitlements that were waived in the prenuptial agreement. And again, until the final judgment addresses and resolves those, we are not in a position to move forward with our Motion for Attorney’s Fees.
The other motion or the other issue that was pending is a 57.105 motion. That addresses the same sort of issues, and as I’m sure the Court is well aware of, that section or that statutory provision really begins with a requirement that there be a prevailing party and we haven’t reached that point yet.
That’s why we cancelled our notice of hearing.

At the conclusion of the December 6 hearing, the parties agreed that they would schedule a continuation of the hearing on the motions for fees after the final judgment was entered.

After the December 6 hearing and the December 20 entry of the final judgment of dissolution, the parties scheduled the continuation of the hearing on their motions for attorney’s fees for April 11, 2003. However, despite the Husband’s stated intent at the December 6 hearing, the Husband never made any argument at the April 11 hearing that he was entitled to fees under paragraph 18 of the Agreement. Rather, the Husband’s entire argument focused on section 57.105 issues.

After considering the arguments made by both parties, the trial court granted the Wife’s motion for attorney’s fees and costs and denied the Husband’s motion. The trial court’s ruling on the Husband’s motion was limited to the statement that “[a]ny request for attorney’s fees by the Former Husband is denied.” The Husband subsequently appealed from both the final judgment of dissolution and the order on attorney’s fees.

Initial Appeal

In his initial appeal to this court, the Husband challenged the trial court’s finding concerning the length of the marriage for purposes of determining the proper lump sum to be awarded the Wife under the Agreement. The Husband also raised three issues concerning the attorney’s fees awarded to the Wife. We affirmed the trial court on these issues. Moss v. Moss, 901 So.2d 177 (Fla. 2d DCA 2005).

The Husband also argued that the trial court had erred in denying his request for attorney’s fees. He argued that the Wife’s claims were meritless and therefore that he was entitled to an award of fees pursuant to section 57.105. He also argued that the trial court had “disregarded” his argument that he was entitled to an award of fees under paragraph 18 of the Agreement. However, in his brief, the Husband recognized that this court had previously held that similar attorney’s fee provisions in prenuptial agreements were unenforceable, and he asked this court to certify to the supreme court the same question that was certified in Lashkajani v. Lashkajani, 855 So.2d 87 (Fla. 2d DCA 2003), concerning the enforceability of these types of provisions.

In our opinion, we affirmed the trial court’s denial of the Husband’s motion for attorney’s fees under section 57.105. Moss, 901 So.2d at 177. Per the Husband’s request, we also certified the same question that we did in Lashkajani concerning the enforceability of prevailing party attorney’s fee provisions in prenuptial agreements. In doing so, we neither considered nor decided the issue of whether the Husband’s claim under paragraph 18 of the Agreement had any merit.

Supreme Court

The Husband appealed the certified question to the supreme court. Because the supreme court had recently quashed this court’s decision in Lashkajani and because this case posed the same certified question, the supreme court accepted summary review, quashed our decision in Moss, and “remanded this case for reconsideration in light of this Court’s decision in Lashkajani. Moss v. Moss, 914 So.2d 942, 942 (Fla.2005).

Current Appeal

On remand, the Husband makes the same arguments concerning whether the trial court properly awarded the Wife her attorney’s fees pursuant to section 61.16. He also makes the same arguments concerning the merit of the Wife’s positions in the trial court in an effort to assert that he is entitled to attorney’s fees and costs under section 57.105.

On the issue of the Wife’s alleged breach of the Agreement, the Husband again argues that the trial court “disregarded” his arguments concerning his entitlement to attorney’s fees under paragraph 18 of the Agreement. The Husband asserts that he is entitled to “return to the trial court for a full consideration of this issue, specifically, whether the Wife’s spurious ‘special equity’ claim below constituted a breach of the provisions of the parties’ Prenuptial Agreement.”

ANALYSIS

A. Husband’s Claims Regarding Award of Wife’s Attorney’s Fees

In his brief on remand, the Husband raises the identical claims concerning the trial court’s award of attorney’s fees to the Wife that he raised in his initial appeal. In our earlier opinion, we specifically rejected these arguments and affirmed the award of attorney’s fees to the Wife. Moss, 901 So.2d at 177. The award of attorney’s fees to the Wife was not the subject of the certified question to the supreme court and is not controlled in any fashion by the supreme court’s decision in Lashkajani. Accordingly, our prior opinion stands as to the award of attorney’s fees to the Wife.

B. Husband’s Claim for Attorney’s Fees under section 57.105

The Husband also raises the identical claims concerning his alleged entitlement to attorney’s fees under section 57.105 that he raised in his initial brief. We again affirm on this issue as well.

The Husband essentially claims that the language of the Agreement is clear that the Wife was not entitled to any type of “special equity” in the Florida businesses. He contends that because the Agreement barred the Wife from having or obtaining “any right, title, claim in or to any assets [the Husband] may now own or subsequently acquire” and because she waived her right to any “marital or community property ... in or to all property which [the Husband] may own or possess ... at any time during the marriage,” it was “crystal clear” that she had no right to any interest in the Florida businesses.

While admitting that the language itself seems clear, the Wife contends that it was not clear how that language applied to a business that the parties jointly started and operated postmarriage. She notes that paragraph 3 of the Agreement states that the Husband likewise waives his rights to “marital or community property ... which [the Wife] owns or may own or possess, or in which she may have a beneficial interest ... at any time during the marriage.” Because she arguably had a beneficial interest in the Florida businesses that arose during the marriage by virtue of her efforts, she contends that the Agreement is not “crystal clear” on this point and that her resort to judicial interpretation was neither meritless nor frivolous.

While the trial court ultimately denied the Wife’s “special equity” claim, it did so only after a lengthy discussion of the applicable law and how it related to the terms of the parties’ Agreement. It distinguished several cases based on differences in the language between the prenuptial agreements presented in those cases and the parties’ Agreement here. Given the cases cited and the trial court’s discussion of the facts and law, we agree with the trial court that the Wife’s claims were not so meritless or frivolous as to warrant an award of attorney’s fees under section 57.105. Accordingly, we again affirm the trial court’s denial of the Husband’s motion for fees pursuant to section 57.105.

C. Husband’s Claim for Attorney’s Fees under the Agreement

Finally, the Husband claims that this court should reverse the trial court to the extent that it denied his claim for attorney’s fees under paragraph 18 of the Agreement. Because the Husband never sought fees under paragraph 18 of the Agreement in the trial court, we affirm on this issue as well.

As a threshold matter, we note that we did not reach the merits of this issue in the initial appeal because our decision in Lashkajani held that prevailing party attorney’s fee provisions in prenuptial agreements were not enforceable as a matter of law. Thus, we affirmed because, regardless of any possible merit to the Husband’s argument, any claim was unenforceable. However, the supreme court subsequently decided that such prevailing party attorney’s fee provisions may be enforceable. Lashkajani, 911 So.2d at 1156. Accordingly, now that this threshold issue has been resolved, we must address the arguments raised by the Husband.

While the Husband repeatedly argues in this appeal that the trial court “disregarded” his arguments concerning his entitlement to fees under paragraph 18 of the Agreement, our review of the record shows that this issue is not preserved for our review. The supreme court has repeatedly held that “[i]n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)); see also Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (noting that generally a claim not raised in the trial court will not be considered on appeal); Mariani v. Schleman, 94 So.2d 829, 831 (Fla.1957) (holding that “matters not presented to the trial court by the pleadings and evidence will not be considered by this court on appeal”). This court has followed these rulings, stating:

It is the duty of a party to bring to the attention of the trial court his contentions relating to his claim for relief, and when he fails to do so, he certainly cannot assert that the trial judge was in error for failure to anticipate his desires.

Alliance for Conservation of Natural Res. in Pinellas County v. Furen, 122 So.2d 51, 65 (Fla. 2d DCA 1960).

This principle has been applied when a party contends on review that the trial court denied relief that was otherwise available. For example, in Margolis v. Klein, 184 So.2d 205 (Fla. 3d DCA 1966), the defendant sought review of an order dismissing her counterclaim and cross-claim and argued that the trial court should have granted her leave to amend. However, the appellate court noted that it could not “find any application to the trial court in the record to allow such an amendment.” Id. at 206. The court noted that it is “elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him.” Id. Thus, because the defendant had never requested leave to amend, the appellate court refused to find that the trial court had erred by failing to grant her such leave.

As in Margolis, a careful review of the record in this case shows that the Husband never made any argument concerning his entitlement to fees under paragraph 18 of the Agreement in the trial court. The Husband never filed any pleading or motion seeking attorney’s fees pursuant to any provision of the Agreement. The Husband never argued to the trial court that he was entitled to attorney’s fees pursuant to any provision of the Agreement. While it is true that at the December 6 hearing the Husband told the trial court that he intended, at some later time, to pursue a claim for attorney’s fees pursuant to paragraph- 18 of the Agreement, he never actually did so. The Husband did not file a motion for fees pursuant to paragraph 18 after the December 6 hearing. Moreover, at the April 11 hearing, the Husband did not raise or argue the issue of his alleged entitlement to attorney’s fees pursuant to any provision of the Agreement. In the absence of a motion or other pleading, the trial court should not be expected to remember that the Husband once stated an intent to seek fees pursuant to the Agreement. Further, even if the trial court remembered the Husband’s reference to this intended claim, when the Husband failed to make any arguments concerning entitlement to fees under the Agreement at the hearing specifically held for that reason, the trial court was entitled to assume that the Husband had abandoned that position and had decided to seek fees pursuant solely to section 57.105.

Because the Husband never argued to the trial court that he was entitled to an award of attorney’s fees pursuant to any provision of the Agreement, this issue was not preserved for appellate review and is not properly before this court- on appeal. The trial court could not err by denying a claim that was never actually presented to it.

Affirmed.

WHATLEY and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    Eddie CARGILE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2455.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
    Rehearing Denied Oct. 20, 2006.
   PER CURIAM.

Affirmed. Our affirmance is without prejudice to whatever right Mr. Cargile may have to file a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.853. See Hitchcock v. State, 866 So.2d 23 (Fla.2004).

CASANUEVA, STRINGER, and VILLANTI, JJ., Concur.


text:
    William E. SIEBERT, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-2472.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2006.

      William E. Siebert, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

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


text:
    Darrell BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1821.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.
    Darrell Baker, pro se, Appellant.
    Charlie Crist, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Darrell Baker appeals an order of the circuit court denying his petition for writ of habeas corpus, which we affirm. Baker was convicted in 1996 of armed robbery, aggravated assault, and armed kidnapping. This court affirmed his direct appeal, and mandate issued December 9, 1997. Baker filed a petition for writ of habeas corpus on March 9, 2006, alleging that in Count 13 of the information, the state failed to allege an essential element of armed robbery, because it charged him with taking money or other property from the victim by force, violence, assault, or putting in fear, but it failed to allege that he possessed the intent to either permanently or temporarily deprive the victim of such money or property. The trial court held a hearing and denied the petition.

This court has rejected the identical issue now before it in three prior appeals filed by Baker. In case 1D03-241, we affirmed an order denying his September 2002 petition for writ of habeas corpus in which he raised this issue. Baker v. State, 861 So.2d 25 (Fla. 1st DCA 2003). In case 1D04-3316, we affirmed Baker’s appeal of an order summarily denying both a 3.850 motion filed December 12, 2003, and a petition for writ of habeas corpus filed December 10, 2003, each raising the same issue. Baker v. State, 888 So.2d 21 (Fla. 1st DCA 2004). Finally, in case 05-347, we denied on the merits an original petition for writ of habeas corpus filed January 16, 2005, raising the issue. Baker v. State, 898 So.2d 939 (Fla. 1st DCA 2005).

In response to our order directing Baker to show cause, pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), why he should not be barred from further challenging his conviction unless he were represented by counsel, Baker filed a motion seeking to voluntarily dismiss his appeal, and a request asking us not to prohibit him from filing any “future non-successive issue[s] with merit.”

We conclude from our review that Baker’s repetitive attacks on his conviction are an abuse of the legal process that has had and will have an adverse effect upon this court’s limited resources if the attacks are allowed to continue. Accordingly, we prohibit Baker from filing any further pro se pleadings in this court challenging his conviction in Duval County Circuit Court Case Number 16-1995-CF-1818, regardless of the remedy sought or theory raised, unless he is represented in such proceeding by a member in.good standing of The Florida Bar. We further direct the clerk of this court not to accept any additional pro se filings in this case from Baker.

AFFIRMED.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


author: TAYLOR, J.

text:
    Robert W. EVANS III, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4429.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

After the jury began deliberations in this criminal trial, the presiding judge received a note from a juror stating that she knew one of the witnesses who testified during the trial. The court dismissed the juror. Unable to contact the alternate juror, the court informed the defendant that he could agree to continuing the trial with five jurors or ending it with a mistrial. The court allowed the defendant an opportunity to confer with counsel about his options. The defendant decided to proceed with five jurors. Thereafter, the court inquired into the defendant’s decision:

Mr. Hetherington: Judge, Mr. Evans indicated that five jurors is — is fine with him; is that correct, Mr. Evans?
The Court: Sir, if you’d step up to the podium for me if you would? Okay, Mr. Evans, obviously you’re aware that we have a bit — a bit of a difficulty at this point losing one juror, you — you have the — you have the absolute right to proceed in this case with a full jury of six, do you understand that?
The Defendant: Yes, sir.
The Court: And in order to convict you, that jury would have to agree unanimously on a verdict in order to return a verdict of guilty, do you understand, sir?
The Defendant: Yes, sir.
The Court: If you agree to go with five jurors, then it would only require the vote of five to return a verdict either way, do you understand that, sir?
The Defendant: Yes, sir.
The Court: Now, there’s no “words of wisdom” on this, apparently you’ve chatted with — with Mr. Hetherington on this and in those situations where the Defense thought that something had gone wrong for them during the trial, then a mistrial would probably be in the Defense benefit because they’d get another chance to go through and correct whatever went wrong for them during the trial; in a situation where everything went according to plan for the Defense, well, then that benefit wouldn’t exist any longer and, of course, the State would now know everything that the Defense had planned during the course of the case, so, there’s no right or wrong answer to this, so, essentially what you’re trading off is you’re trading off what you believe to be a good Defense presentation at this point or the sixth juror, do you understand that, sir?
The Defendant: Yes, sir.
The Court: Now, if you wish to go forward with the jury of six we cannot get in contact with the alternate at this point, although Mr. Gallo has tried, I certainly would be willing to declare a mistrial and try your case over again with another jury; now, the choice is entirely yours, I have no preference one way or another, it’s your ease, so, have you discussed all of this with Mr. Heth-erington?
The Defendant: Yes, sir.
The Court: And you understand that upon a Defense request I would grant a mistrial?
The Defendant: Yes, sir.
The Court: Now, do you wish to go forward with the jury that you have or do you wish to try this again?
The Defendant: I want to go forward, Your Honor.
The Court: Okay, do you have any questions?
The Defendant: No, sir.
The Court: Okay, I’m confident that— I’m confident Mr. Evans knows the benefits and the potential pitfalls here and he’s exercising and formed freewill in deciding to go forward here and as I say, there’s no right or wrong answer. If the case, Mr. Hetherington, went as you hoped it would go for the Defense, then the best scenario for the Defense then we’ll know that obviously now the State has a complete picture of that and, so, they’d be even more prepared the next time around if the case were to be tried again.

After deliberating, the jury returned a verdict of guilty for sale or delivery of cocaine within a thousand feet of a church and possession of cocaine. The defendant was sentenced to six years in prison on the sale/delivery conviction and to five years on the possession conviction, the sentences to run concurrently. The trial court denied the defendant’s request for time served on the charges while awaiting trial. Defendant appeals his judgment of conviction, contending that the trial court failed to conduct an adequate inquiry to ensure that his waiver of a six-person jury was done knowingly, intelligently, and voluntarily. He also appeals the court’s denial of credit for time served.

A defendant has a constitutional right to a trial by jury with at least six jurors under both the Florida and United States Constitutions. See Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978); State v. Griffith, 561 So.2d 528, 530 (Fla.1990) (stating that trial by a six-person jury is mandated in Article I, section 22, Florida Constitution). However, the defendant can waive this right in return for trial by a five-member jury. Blair v. State, 698 So.2d 1210 (Fla.1997). The waiver, of course, must be knowing, intelligent, and voluntary. Id.

Here, after providing defendant with an opportunity to confer with his trial counsel, the trial court conducted an appropriate colloquy with defendant on the record, which demonstrates that his decision to proceed with five jurors was made knowingly, intelligently and voluntarily. We therefore affirm the judgment of conviction.

We conclude, however, that the trial court erred in not crediting the defendant with all the time he spent in county-jail in Florida while awaiting trial on the charges in this case. See § 921.161(1), Florida Statutes; Dunn v. State, 819 So.2d 990 (Fla. 1st DCA 2002). Accordingly, we reverse and remand this cause for the court to award credit for time served.

Affirmed in part; Reversed in part and Remanded.

FARMER and SHAHOOD, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Paul E. BATES, d/b/a Coconut Cove Resort, and Coconut Cove Resort and Marina, Inc., Appellants, v. ISLAMORADA, Village of Islands, Appellee.
    No. 3D04-2497.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Rehearing and Rehearing En Banc Denied Oct. 4, 2006.
    Holland & Knight and Rodolfo Sorondo, Jr. and Christopher N. Bellows, Miami, for appellants.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph H. Serota and Jose S. Talavera, Miami, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   On Motion for Rehearing or Motion for Written Opinion, Alternatively Motion for Rehearing En Banc

ROTHENBERG, Judge.

The appellants, Paul E. Bates, d/b/a Coconut Cove Resort, and Coconut Cove Resort and Marina, Inc., appeal two orders entered by the trial court in favor of the appellee, Islamorada, Village of Islands (“Village”). The two orders being appealed are an order granting the Village’s request for sanctions and an order granting attorney’s fees and costs to the Village. Oral argument was heard on October 11, 2005, after which this court issued its opinion affirming both orders per curiam. The appellants have requested rehearing or a written opinion, or in the alternative, rehearing en banc. These requests are based solely upon this court’s affirmance of that portion of attorney’s fees awarded to the Village for the time it spent litigating the amount of fees. While we deny the appellants’ motions for rehearing and rehearing en banc, and decline to issue an opinion addressing all of the issues raised on appeal, we issue this brief opinion to clarify this court’s ruling regarding the attorney’s fees awarded the Village for time it spent litigating the amount of fees, as this is the area of the appellants’ concern.

The appellants argue that fees may not be awarded for pursuing the amount of attorney’s fees the trial court awards, citing to several cases which have held that it is improper to do so. See Lugassy v. Indep. Fire Ins. Co., 636 So.2d 1332, 1336 (Fla.1994); State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993); Wight v. Wight, 880 So.2d 692, 695 (Fla. 2d DCA 2004); Paladyne Corp. v. Weindruch, 867 So.2d 630, 634 (Fla. 5th DCA 2004); Barron Chase Sec., Inc. v. Moser, 794 So.2d 649, 650 (Fla. 2d DCA 2001); Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998); Eisman v. Ross, 664 So.2d 1128, 1129 (Fla. 3d DCA 1995).

A review of these cases, however, reveals that the fees awards relied upon statutes which did not provide for fees incurred litigating the amount to be awarded. The fees awarded in the instant case differ in that they were not statutorily based, and were instead, awarded as sanctions levied against the appellants for failing to comply with the trial court’s orders. This court, therefore, finds statutorily based fees awards inapplicable and distinguishable from the fees awarded in the instant case, and relies, as did the trial court, on Condren v. Bell, 853 So.2d 609 (Fla. 4th DCA 2003), which holds that “because the fees awarded for litigating the issue of fees was a sanction and supported by substantial competent evidence, the award does not run afoul of State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993)....” Condren, 853 So.2d at 610. We, therefore, find no conflict with the cited cases and deny rehearing.

Motion for rehearing, denied; motion for written opinion, granted in part.


text:
    Thomas Shane HERNDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2307.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Thomas Shane Herndon, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice to appellant raising issue III in a timely rule 3.850 motion. See Patterson v. State, 904 So.2d 593 (Fla. 4th DCA 2005); Keifner v. State, 896 So.2d 955 (Fla. 4th DCA 2005); Zuluaga v. State, 793 So.2d 60 (Fla. 4th DCA 2001). As in Patterson, “[w]e do not have a sufficient record to determine whether, if appellant does file a rule 3.850 motion, it would be successive under rule 3.850(f), and this opinion should not be construed as deciding that issue.” Id. at 593; Keifner, 896 So.2d at 956.

STEVENSON, C.J., FARMER and GROSS, JJ., concur.


text:
    Anthony McCOGGLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1730.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Anthony McCoggle, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant seeking relief pursuant to rule 3.800(a), or to the administrative remedies available through the Department of Corrections, or, after exhausting his administrative remedies, to filing a petition for writ of mandamus if no relief is forthcoming.

STONE, WARNER, and FARMER, JJ., concur.


author: THOMAS, J.

text:
    John Edward BLANDING, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1757.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

After being sentenced to eight years of incarceration followed by 10 years of probation for his role in two bank robberies, Appellant filed a motion to correct a sentencing error pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure (2005). Appellant’s claim was that his sentence was greater than he had agreed to in his plea, therefore, it could not be imposed without first giving him an opportunity to withdraw said plea. When the court agreed and gave Appellant the choice between a new, legal sentence or withdrawing his plea and going to trial, Appellant informed the court that he had “some issues of ineffective assistance of counsel.” After the trial court granted Appellant’s motion and reduced his sentence to the maximum agreed-upon sentence under the plea, Appellant filed a second rule 3.800(b)(2) motion, claiming that the trial court should have conducted a Nelson hearing when Appellant stated he had “some issues with ineffective assistance of counsel.” Appellant now appeals the trial court’s denial of this motion.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth District held that if a defendant makes it clear to the trial court that he or she desires to discharge his or her court-appointed counsel, the trial court should inquire as to the reason for the request. The court further held that

If incompetency of counsel is assigned by the defendant as the reason, or a reason [for discharge], the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Id. at 258-259.

The Florida Supreme Court subsequently adopted this procedure in Hardwick v. State, 521 So.2d 1071, 1074-1075 (Fla.1988). As Nelson and its progeny have noted, however, a defendant must do more than merely express dissatisfaction with his or her attorney for a Nelson hearing to be triggered. Morrison v. State, 818 So.2d 432, 440 (Fla.2002). In fact, an examination of case law suggests that a Nelson hearing is required only when a three-prong test is satisfied: First, the defendant must make a “clear and unequivocal” statement that he wishes to discharge appointed counsel. Logan v. State, 846 So.2d 472, 477 (Fla.2003). Second, the reason for the requested discharge must be a claim of incompetence. Smelley v. State, 486 So.2d 669, 670 (Fla. 1st DCA 1986). Third, the alleged ineffectiveness must arise from the current representation by counsel, not past indiscretions. See Denson v. State, 689 So.2d 1274, 1275 (Fla. 5th DCA 1997) (“It is the purpose of the Nelson inquiry to determine if the appointed counsel is performing adequately and if not, to replace such counsel. The Nelson inquiry has no role in past ineffectiveness of counsel”) (emphasis in original).

In this case, we find that the trial court did not err when it failed to conduct a Nelson hearing after Appellant’s statement. Appellant’s claim fails on all three prongs of the test laid out above. Appellant’s statement did not amount to a “clear and unequivocal” request that he wished to discharge counsel, but was rather a vague and generalized complaint that he had an issue with his attorney. Appellant also did not request the discharge of his court-appointed counsel because of incompetence. Furthermore, Appellant’s complaint did not relate to allegations that counsel was ineffective during sentencing; his complaints involved his designation as an HFO, plea offers from the State, and potential double jeopardy violations. All of these alleged deficiencies occurred before the sentencing hearing appealed here and thus relate to claims of past ineffectiveness rather than present representation. Under the foregoing, we hold that a Nelson hearing was not required. Therefore, the trial court’s denial of Appellant’s rule 3.800(b)(2) motion is AFFIRMED.

ERVIN and WEBSTER, JJ., concur.


text:
    Raquel RIOS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-4562.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Raquel Rios, pro se, Petitioner.
    Charlie Crist, Attorney General; Terry P. Roberts and Thomas D. Winokur, Assistant Attorney Generals, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted and review shall proceed in case number 1D06-2720. The initial brief in that case shall be filed within 30 days.

BARFIELD, VAN NORTWICK, and BROWNING, JJ., CONCUR.


text:
    Clyde DUNCAN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-0889.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Clyde Duncan, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Clyde Duncan seeks review of an order summarily denying his petition for writ of habeas corpus, in which he challenged the revocation of his conditional release supervision. We conclude that although inart-fully pled, the petition was sufficient to state a preliminary basis for relief with respect to petitioner’s claim that although he admitted to the alleged violations, those violations were not willful and substantial, and thus did not justify the revocation of supervision. See Ellis v. Fla. Parole Comm’n, 911 So.2d 831 (Fla. 1st DCA 2005) (in order to establish a violation it must be proven that the releasee willfully violated a substantial condition of release). Under these circumstances, the circuit court’s failure to issue an order to show cause before entertaining the merits of petitioner’s claims constitutes a departure from the essential requirements of law. See Duckworth v. Dep’t of Corr., 867 So.2d 550 (Fla. 1st DCA 2004). Accordingly, the order summarily denying Duncan’s petition for writ of habeas corpus is quashed, and the matter is remanded to the circuit court for further proceedings consistent herewith.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Joseph O’CONNER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1044.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Joseph O’Conner, pro se, Petitioner.
    Chris Korn, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, a disabled prisoner, filed a petition for writ of mandamus, in which he claimed that he is entitled to a gain time award equal to the maximum amount that he might have earned had he been able to perform the activities for which gain time is normally awarded. For this filing, a lien was imposed against petitioner’s trust account pursuant to section 57.085, Florida Statutes.

The trial court denied mandamus, reasoning that petitioner has not established a clear legal right to the requested gain time. The trial court also upheld the order imposing the fee lien on the basis that petitioner is not challenging administrative disciplinary action which resulted in his loss of previously earned gain-time. By way of amended notice of appeal, which this Court treated as a petition for writ of certiorari, petitioner seeks review of the trial court order denying mandamus and denying relief on the fee issue.

To the extent petitioner seeks certiorari review of the trial court’s denial of mandamus, this petition is denied on the merits because petitioner has not established that he was deprived of due process or that the trial court departed from the essential requirements of the law. However, because the length of time that petitioner will spend in prison would have been directly affected had petitioner’s argument been successful, the March 11, 2005, order imposing the lien on petitioner’s trust account is VACATED. This cause is REMANDED for entry of an order directing the reimbursement to petitioner of those funds withdrawn from his account pursuant to the lien. See Cox v. Crosby, - So.2d -, 31 Fla. L. Weekly D310, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006).

KAHN, DAVIS, and BROWNING, JJ., concur.


text:
    Michael BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2506.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Michael Brown, pro se, Petitioner.
    Charlie Crist, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted and case number 1D06-1782 is hereby reinstated.

BARFIELD, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    ALAMARANTE FIRE DISTRICT and Baker Fire District, Appellants, v. Timothy Pete SMITH, in his capacity as Okaloosa County Property Appraiser, and North Okaloosa Fire District, Appellees.
    No. 1D06-3118.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.

      James R. Murray of Cadenhead Law Firm, Crestview, for Appellants.
    Richard P. Petermann, Ft. Walton Beach, for Appellee Timothy Pete Smith, and James E. Moore, Niceville, for Appel-lee North Okaloosa Fire District.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s order of July 12, 2006, the Court has determined that the formal issuance of the writ relates to enforcement of the order, and that the court’s failure to issue the writ therefore does not interfere with the finality of the order granting writ of mandamus. Cf. GEICO Financial Servs., Inc. v. Kramer, 575 So.2d 1345, 1347 (Fla. 4th DCA 1991). However, it is also the Court’s conclusion that the notice of appeal was not timely filed. The circuit court’s republication of its order granting writ of mandamus without any change in substance from the original final order did not accomplish the court’s apparent goal of providing an extension of time for seeking appellate review. See, e.g., Thermoplastic & Signs, Inc. v. Metropolitan Dade County, 746 So.2d 1140 (Fla. 3d DCA 2000). Accordingly, the appeal is hereby dismissed as untimely, without prejudice to the institution of appropriate proceedings under Florida Rule of Civil Procedure 1.540.

KAHN, BENTON, and LEWIS, JJ„ concur.


text:
    Carl KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4311.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Carl Keller, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

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


author: WELLS, Judge.

text:
    Hana SARGI, Appellant, v. Ali HERNANDEZ, Appellee.
    No. 3D06-2262.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2006.

      Gregory M. Ochalek, for appellant.
    Hoffman, Larin & Agnetti and John B. Agnetti, North Miami Beach, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   WELLS, Judge.

Hana Sargi appeals from an order granting habeas corpus relief to her husband, Ali Hernandez, ordering her to hand over their children to Hernandez. We quash the writ issued below.

Sargi, Hernandez, and their two children, a girl, age 5, and a boy, age 7, are residents of Saudi Arabia. At the end of an extended family vacation to Florida, Sargi refused to return to Saudi Arabia and the day before the family’s scheduled return, served Hernandez with a temporary injunction for protection against domestic violence. Following an evidentiary hearing, the injunction was dissolved and Sargi’s petition dismissed.

Hernandez then petitioned for a writ of habeas corpus to order production of the children so that he could return with them to Saudi Arabia. The trial court concluded that it had no jurisdiction under Chapter 61 of the Florida Statutes, to enter a temporary custody award because there was no evidence of abuse, abandonment or neglect, and that Saudi Arabia, the home state of all of the parties, was the appropriate forum to adjudicate custody matters. See § 61.517(1), Fla. Stat. (2005) (conferring temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse, to award temporary custody); §§ 61.1302-61.1348, Fla. Stat. (2005). Relying on Pereira v. Shanti, 751 So.2d 1291, 1291-92 (Fla. 3d DCA 2000), the court nonetheless concluded that it enjoyed jurisdiction to issue a writ of habeas corpus and ordered Sargi to immediately deliver custody of the children to Hernandez. It enjoyed no such authority.

“There is no question but that habeas corpus is a proper proceeding to obtain custody of a child 'wrongfully withheld.” Crane v. Hayes, 253 So.2d 435, 440 (Fla.1971) (citations omitted); Lee v. Meeks, 592 So.2d 282, 285 (Fla. 1st DCA 1991) (same). In this case, there is no evidence that the children were being “wrongfully withheld.”

There is no evidence that a proceeding has ever been brought by either Sargi or Hernandez in Saudi Arabia or otherwise regarding custody of their children. Nor is there evidence of a custody agreement between these parties. Thus, at present, there exists no more than a disagreement between two parents as to whether and when their children will end their stay in this country. Under the circumstances, habeas relief was improper. See Stock v. Stock, 677 So.2d 1341, 1347-48 (Fla. 4th DCA 1996) (observing “habeas corpus was an improper remedy because there had not been a prior legal determination as to custody”); Newman v. Hornsby, 370 So.2d 1165 (Fla. 4th DCA 1979) (rejecting mother’s petition for habeas relief after concluding that evidence was not sufficient to demonstrate that child was being illegally detained by natural father or that child’s presence in court was necessary for “determination of custody entitlement”).

The trial court’s reliance on Pereira is misplaced. In Pereira, we confirmed that although the trial court had no jurisdiction under the Uniform Child Custody Jurisdiction Act to award temporary custody, it could affect custody via a habeas writ where jurisdiction had been properly exercised by a foreign court and where the parties had previously agreed as to where the child was to live. See also Brown v. Tan, 395 So.2d 1249, 1251 (Fla. 3d DCA 1981) (enforcing via habeas relief an established custody agreement between divorced parents).

There is no such agreement to “enforce” in this case, nor is any other court exercising authority over these children. At present the parents are engaged in a disagreement over whether and when the children will go home. Under current conditions, habeas relief was inappropriate.

Accordingly, we quash the writ ordered below.

      . According to Hernandez, the children are U.S. Citizens.


text:
    Santo Anthony DILEO, Sr., Appellant, v. Theresa Yarbrough DILEO, Appellee.
    No. 5D05-4461.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.

      Santo Anthony Dileo, Sr., New Orleans, pro se.
    No Appearance for Appellee.
   MONACO, J.

The appellant, Santo Anthony Dileo, Sr., appeals an order of the trial court finding him in civil contempt of court for failing to live up to his child support obligations required by a dissolution of marriage judgment rendered in 1999. We reverse first because the appellant was not properly notified of the hearing holding him in contempt, and second because the trial court failed to set forth in the contempt order the requisite findings and conclusions.

Subsequent to the dissolution, the former wife, Theresa Yarbrough Dileo, and the appellant both moved out of Florida to different states. Mr. Dileo resides in Louisiana, while the former wife lives in Tennessee. So far as we are able to tell from the record, Mr. Dileo is alleged to have failed to pay child support for several years, apparently based on his contention that his former wife was interfering with his rights of visitation. Ms. Dileo filed a motion for contempt with a certificate of service indicating that a copy of the motion was sent to Mr. Dileo by mail. She sought, as well, an emergency motion to suspend visitation or contact by Mr. Dileo with his children, again showing service by mail. While Mr. Dileo was never personally served with these motions, he did receive a faxed copy of the motion two days before the hearing. In response, he filed a verified motion to dismiss the proceeding for lack of personal jurisdiction. His position was that because both parties had moved to other states, and because the children resided in another state with their mother, Florida no longer had jurisdiction over this matter. While difficult to discern from the motion, it appears that Mr. Dileo was arguing either that Florida no longer had jurisdiction over the issue of child support (apparently based on sections 61.515 and 61.514, Florida Statutes (2005)), or that the Florida forum was now inconvenient and should not exercise further jurisdiction, in accordance with section 61.520, Florida Statutes (2005). He suggested that jurisdiction more logically fell within Tennessee where the former wife and their children now reside.

Both parties appeared telephonically at a hearing to consider the motion to suspend visitation and Mr. Dileo’s motion to dismiss. The trial court denied the motion to dismiss, holding that it had continuing jurisdiction over the matter, and partially granted and partially denied the motion concerning visitation.

Counsel for the former wife then set a hearing on the motion for contempt and attempted to serve a copy of the notice of hearing on Mr. Dileo by certified mail to his residence in Louisiana. There is no indication in the record that Mr. Dileo ever received the notice, or for that matter, a copy of the motion for contempt. Apparently a process server was also hired by the former wife to try to serve Mr. Dileo with the notice of hearing on the contempt motion, but the response came back with this notation:

No answer from front door, challenged by neighborhood watch Rep. who stated Santo Dileo left for AK when storm came and, was going to Las Vegas after that.

Mr. Dileo, according to the documents filed by him in the trial court, had evacuated in advance of an approaching hurricane.

The former wife appeared by telephone at the contempt hearing, but despite the lack of any indication that Mr. Dileo had ever been notified of the hearing, the trial court found him in willful contempt for failure to pay child support. The court later issued an order to show cause with a date for that hearing set forth in the order and required personal service of the order.

A month later Mr. Dileo made contact with the clerk’s office to notify the clerk of a change of address. Shortly thereafter a process server returned a notice of service indicating that Mr. Dileo had been served with copies of the contempt order and the order to show cause.

Mr. Dileo then filed a motion to quash service of process and to vacate the judgment against him. The trial court scheduled a hearing on Mr. Dileo’s motion but changed the date of the show cause hearing. An amended notice was sent by mail to Mr. Dileo in New Orleans. There is once again, however, nothing in the record that reflects that Mr. Dileo actually received notice of the new date, and he alleges in a verified document that he did not. Mr. Dileo’s guess is that the attempted communications with him never got through because of the aftermath of Hurricane Katrina, which had struck the Gulf Coast in the interim. In any event, Mr. Dileo did not attend the rescheduled hearing and was found in contempt. He appeals.

A person facing civil contempt sanctions is unquestionably entitled to notice and an opportunity to be heard. See Chetram v. Singh, 937 So.2d 716 (Fla. 5th DCA 2006); Akridge v. Crow, 903 So.2d 346 (Fla. 2d DCA 2005). Rule 12.615 of the Florida Family Law Rules of Procedure, which governs civil contempt in family support matters, states:

(b) Civil contempt may be initiated by motion. The motion must recite the essential facts constituting the acts alleged to be contemptuous. No civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. [Emphasis added] The civil contempt motion and notice of hearing may be served by mail provided notice by mail is reasonably calculated to apprise the alleged contemnor of the pendency of the proceedings. The notice must specify the time and place of the hearing and must contain the following language: “FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.”

Subsection (c) of the same rule also indicates that the court must expressly find that the alleged contemnor had notice of the motion and hearing before it may conduct such a proceeding. In this regard Florida Rule of Civil Procedure 1.090(d) provides that “a copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.” It is a fundamental tenet of our system of civil justice that a party must have actual notice of and time to prepare for a contested hearing. See Harreld v. Harreld, 682 So.2d 635 (Fla. 2d DCA 1996). Certainly the same is true of civil contempt hearings in the family law context. See Woolf v. Woolf, 901 So.2d 905 (Fla. 4th DCA 2005); Paul v. Paul, 807 So.2d 191 (Fla. 3d DCA 2002), review dismissed, 865 So.2d 1277 (Fla.2004).

Mr. Dileo was entitled to proper notice both of the hearing on the motion for contempt and the show cause hearing, as well as adequate time to prepare for each. Here, the record simply fails to demonstrate that Mr. Dileo was properly notified and a reversal is required on this basis alone. There is, however, another problem with the procedure utilized in this case.

An order of contempt for failure to pay child support must include factual findings reflecting the existence of a prior valid order of support; the failure to pay all or part of the ordered support; the present ability of the offending parent to pay the support; and the willful refusal of the offending parent to comply with the prior court order. See Chetram, 937 So.2d at 719; see also Faircloth v. Faircloth, 339 So.2d 650, 651 (Fla.1976); Ross v. Botha, 867 So.2d 567, 570 (Fla. 4th DCA 2004); Safie v. Safie, 416 So.2d 485 (Fla. 3d DCA 1982). Here, the trial court’s order does not contain specific findings that Mr. Dileo had notice, nor does it address the present ability of Mr. Dileo to pay the purge amount, which at that point totaled $53,878.51. It is, accordingly, legally insufficient.

We, therefore, reverse the order finding Mr. Dileo in contempt, quash the writ of bodily attachment issued pursuant to the contempt order, and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

PLEUS, C.J. and ORFINGER, J., concur.

      . The alternative to the purge amount was incarceration for 179 days. If the alternative sanction for civil contempt is incarceration, the contemnor must be given an opportunity to establish inability to pay. If the trial court orders incarceration, the court must make a separate affirmative finding of ability to pay. See Fla. Fam. L.R.P. 12.615(e); see also Ross, 867 So.2d at 570.


author: GRIFFIN, J.

text:
    Preston POPE and Ginger Pope, etc., Appellants, v. WINTER PARK HEALTHCARE GROUP, LTD., et al., Appellees.
    No. 5D04-3284.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    James B. Tilghman, Jr., and Gary D. Fox, of Stewart, Tilghman, Fox & Bianchi, P.A., Miami, and Kenneth M. Sigelman, M.D., J.D., of Kenneth M. Sigelman & Assoc., San Diego, CA, for Appellants.
    Sylvia H. Walbolt and Annette M. Lang, of Carlton Fields, P.A., St. Petersburg, and Richard Schwamm and Eugene Pettis, of Haliczer, Pettis & Schwamm, P.A., Orlando, for Appellees.
   GRIFFIN, J.

This appeal arises from a medical malpractice suit against Winter Park Healthcare Group, Ltd., d/b/a Winter Park Memorial Hospital [“Winter Park Hospital”], and Dr. Michael McMahan, a neonatologist, for the negligent care of Preston and Ginger Pope’s [“the Popes”] newborn son, Tyler. It was discovered after Tyler’s birth that he suffered from fetal-maternal hemorrhage, and compression of the umbilical vein, which would normally have carried oxygen-rich blood to Tyler from the placenta. In the hours following his birth, Tyler’s breathing became more labored and he required resuscitation; however, it was alleged that this was not done timely or correctly, causing permanent brain damage. The Popes contend that Dr. McMahan, the on-call neonatologist, was negligent in failing to be present, in failing to communicate, in failing to order necessary tests and in failing to order the necessary means of resuscitation.

The Popes brought suit against Winter Park Hospital, Dr. McMahan and Mrs. Pope’s obstetrician, Dr. Wolford, based on a claim of negligence. The Popes alleged that Winter Park Hospital was liable for Dr. McMahan’s negligent acts because Winter Park Hospital had a “nondelega-ble” duty to treat Tyler with due care. The Popes contend that when Mrs. Pope was admitted to Winter Park Hospital for the delivery of her child, an implied contract for treatment was formed between her and Winter Park Hospital. Alternatively, they assert that the consent form that Mrs. Pope signed constitutes an express contract with Winter Park Hospital that obligates Winter Park Hospital to provide them with the medical or surgical treatments or procedures she and her son might need, the delegation of which to an independent contractor physician does not extinguish the hospital’s duty. They contend that the trial court erred in directing a verdict in favor of Winter Park Hospital.

The Popes would like for this court to adopt the position of Judge Altenbernd’s concurring opinion in Roessler v. Novak, 858 So.2d 1158, 1164 (Fla. 2d DCA 2003) (Altenbernd, J., concurring). There, Judge Altenbernd observed that the use of apparent agency as the doctrine for determining hospital liability for the negligence of independent contractors was a failure and that, in the context of medical negligence, a theory of nondelegable duty is superior. He suggested that hospitals should be liable as a general rule for activities within the hospital because a patient does not realistically have the ability to shop on the open market for other providers of medical services and is limited to the care of physicians selected by the hospital. 858 So.2d at 1164. He said he would adopt a theory of nondelegable duty if it were not for the prevailing precedent that employs the theory of apparent agency. Id. at 1165.

Winter Park Hospital agrees that their consent form constitutes an express contract between the hospital and the Popes, but they contend the terms of the contract preclude liability. They also point out that the existence of the express contract between the Popes and the hospital precludes an implied contract under Florida law. They further assert that an “implied duty” to provide non-negligent medical and surgical services does not exist in Florida law, and that Judge Altenbernd’s concurrence supports the directed verdict by expressly recognizing that current Florida law does not impose nondelegable duties on hospitals for the negligence of independent contractor physicians.

Although, as is almost always so, Judge Altenbernd makes sense in his concurring opinion in Roessler, we agree that Florida law does not currently recognize an implied nondelegable duty on the part of a hospital to provide competent medical care to its patients. Florida law does recognize, however, that such a duty can be undertaken pursuant to an express contract. Here, it is undisputed that an express contract exists between the Popes and Winter Park Hospital, and we have concluded that an issue remains unresolved concerning the scope of the express contractual undertaking which may have given rise to a duty to provide non-negligent neonatal care to baby Tyler. We accordingly reverse the judgment and remand.

The independent contractor/nondelega-ble duty analysis that inevitably dominates most of the cases in the context of hospital liability is confusing and somewhat misleading because duties that arise under the law of tort and duties that may arise under contract are often intertwined. The tort principle of respondeat superior makes an employer liable to third parties for the negligence of an employee, whom he controls and directs. If a hospital employs a physician, the hospital is responsible (in respondeat superior) for his or her negligence. When an independent contractor physician is hired, however, liability to third parties usually does not arise. This is because the law recognizes that a person ought to be able to hire someone to perform a specific task without exposure to liability to third parties for negligent performance of the work as long as the person doing the hiring does not retain control or direction over how the work is to be done. Thus, for example, if a hospital hires a roofing contractor to repair a roof and in the course of the job, the roofer drops a bucket on the head of a passerby, the roofer is liable to the third person but the hospital typically is not because the roofer is an independent contractor.

Although it is the general rule that one who hires an independent contractor is not liable for injuries caused by an independent contractor’s negligence, there are exceptions recognized in the law of tort. See Carrasquillo v. Holiday Carpet Serv., Inc., 615 So.2d 862, 863 (Fla. 3d DCA 1993); Fisherman’s Paradise, Inc. v. Greenfield, 417 So.2d 306, 307 (Fla. 3d DCA 1982). In fact, the Third District has referred to the rule of non-liability of independent contractors as the “riddled rule” because it is “riddled with exceptions.” See Gordon v. Sanders, 692 So.2d 939, 941, (Fla. 4th DCA 1997); City of Coral Gables v. Prats, 502 So.2d 969, 971 (Fla. 3d DCA 1987).

As a matter of Florida tort law, the key exception to this rule of non-liability in medical negligence cases arises where the physician is either an actual or apparent agent of the hospital. See, e.g., Roessler, 858 So.2d at 1162. The other important exception under Florida tort law, established in Insinga v. LaBella, 543 So.2d 209 (Fla.1989), provides that the hospital can be liable in tort for failing to exercise due care in the selection and retention of an independent contractor physician on the hospital staff. Insinga, 543 So.2d at 214. Insinga is an extension of liability under Florida law as a matter of public policy. Id. It does not supplant or eliminate any other basis for liability.

The rule of non-liability for acts of an independent contractor also fails where the duty is nondelegable, and here is where the confusion arises. In Florida case law, nondelegable duties are often said to arise out of the common law, statutes or regulations, or contract. See Dixon v. Whitfield, 654 So.2d 1230, 1232 (Fla. 1st DCA 1995); E.J. Strickland Const. v. Department of Agric. & Consumer Serv., 515 So.2d 1331, 1334-35 (Fla. 5th DCA 1987). Under the common law, nondelegable duties typically arise out of the performance of ultra-hazardous activity. “There are no specific criteria for determining whether or not a duty is nondelegable except for the rather ambiguous defining characteristic that the responsibility is so important to the community that the [original party] should not be allowed to transfer it to a third party.” Dixon, 654 So.2d at 1232. As Judge Al-tenbernd observed, Florida law does not recognize that the mere relationship between a hospital and its patient gives rise to a nondelegable duty to provide competent medical care. Roessler, 858 So.2d at 1163. Nor, in this case, does a nondelega-ble duty on the part of a hospital arise out of any statute or regulation cited to us.

Concepts of “independent contractor” and “nondelegable duty” have no application, however, when a person or entity doing the hiring of the independent contractor has undertaken by contract with a third party to perform a service and hiring an independent contractor is, essentially, hiring a sub-contractor to perform the work which the hiring person has undertaken by contract to perform. This distinction was cogently explained by the Third District Court of Appeal in Gordon v. Sanders, 692 So.2d 939 (Fla. 3d DCA 1997). In Gordon, a homeowner had hired two individuals to remove trees from his property. They, in turn, subcontracted the work to two other men. In the process of removal, one of the trees was allowed to fall on the homeowner’s house, causing considerable damage. The two persons originally hired to do the work were sued, and they defended on the basis that the ones at fault were independent contractors. The Gordon court dispatched that defense as follows:

The evidence in this record is sufficient to go to the jury on an exception for nondelegable duties, specifically the principle that one who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance by showing that he hired someone else to perform the task and that other person was the one at fault. Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960). In other words, where the contracting party makes it her or his duty to perform a task, that party cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task. The record reflects sufficient evidence to go to the jury for its determination on this principle.

Id. at 941.

Although, as discussed above, this is often treated in the cases as a “nondelegable” exception to the “independent contractor” rule, in fact, contract is a distinct basis of liability and “nondelegability” is not the issue. It is an elemental aspect of contract law that, absent an agreement to the contrary, the rights accruing under a contract can be freely given up by assignment, but duties assumed under a contract cannot be transferred to another. Performance of the duties assumed under a contract are usually delega-ble, but, even if delegable, the delegation will not relieve the promisor of the duty to perform his obligation under the contract. Thus, if a hospital does undertake by contract to provide medical care, it cannot throw off that obligation simply by hiring an independent contractor. The use by hospitals of independent-contractor physicians eliminates “respondeat superior” liability, but it will not relieve the hospital of any contractual duties it has undertaken. A hospital can, by contract, undertake different duties or greater duties than those imposed by the common law of tort.

The decision of the First District Court of Appeal in Shands Teaching Hospital & Clinic, Inc. v. Juliana, 863 So.2d 343 (Fla. 1st DCA 2003), offers an example of a hospital’s liability based on its contract with the patient. That case dealt with the liability of a perfusionist, a technician who was not a physician, who negligently performed his services causing severe injury to a two-month-old infant who underwent heart surgery. The Shands court found liability based on the language of the hospital’s express contract with the patient in the admission form to provide “such diagnostic procedures, hospital care, [and] medical treatment ... which in the judgment of my physician may be considered necessary or advisable while a patient at Shands.” 863 So.2d at 344. Importantly, the Shands court found that the form excluded from the definition of “hospital care [and] medical treatment” the services of “all physicians, residents and students who provide services in Shands,” but concluded the perfusionist fit within none of those exceptions. Shands contended that it was not responsible for the perfusionist’s negligence because neither the perfusionist nor his employer was Shands’ agent or had an appearance of an agency relationship, but the Shands court correctly distinguished between the contractual undertaking of the hospital and principles of agency or re-spondeat superior. Id. at 347-49. Agreeing with the lower court’s conclusion that the perfusionist was legally a subcontractor performing the hospital’s contract with its patient, the court concluded that the hospital’s duty to the patient could not be unilaterally delegated without specific notice. Id. at 350. Because nothing in the admission form or operating permit gave the patient notice that the perfusionist was not discharging Shands’ duties under its contract with the appellants, Shands could not avoid liability for negligence on the part of the party to whom Shands had delegated its own contractual duty.

The Fourth District Court of Appeal also addressed the issue of contractual liability of a hospital for physician malpractice in Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982). The case involved the liability of a hospital for the alleged negligent diagnosis and treatment by an emergency room physician that resulted in injury to a minor. The issue there was whether certain jury instructions should have been given. The jury had found no liability because the emergency room doctor was not an employee of the hospital. The trial court gave the standard instruction on vicarious liability that the hospital was not responsible for such negligence if the person employed was an independent contractor. Appellant maintained that, even if the emergency room doctor were an independent contractor, the hospital was nevertheless liable under one of several exceptions to the independent contractor rule. Appellant requested but was denied three jury instructions on the exceptions. One instruction addressed the rule that one cannot escape his contractual liability by delegating his performance under the contract to an independent contractor. Id. at 59-60. The Irving court held that if the hospital was entitled to have the jury instructed on the non-liability of an independent contractor, the appellant was entitled to have the jury apprised of the exceptions to that rule. The Fourth District court said: “[I]f the trial court had instructed on these exceptions to the independent contractor rule, the jury might have found the hospital liable regardless of [the physician’s] employment status.” Id. at 61.

In this case, both the Popes and Winter Park Hospital agree that the consent form executed by Mrs. Pope constitutes an express contract between these parties. They disagree, however, as to the terms and legal effect of this agreement. The consent form signed by Mrs. Pope before admission provides:

CONSENT FOR MEDICAL AND SURGICAL TREATMENT: I authorize Winter Park Memorial Hospital (WPMH) to furnish the necessary medical or surgical treatments, or procedures, including diagnostic, x-ray, and laboratory procedures, anesthesia, hospital services, drugs and supplies as may be ordered by the attending physician(s), his assistants or his designees. I am aware that the practice of medicine and surgery is not an exact science and I acknowledge that no guarantees have been made to me as to the result of treatment, diagnostic procedures or examinations in the hospital, I recognize that the physicians who practices [sic] at WPMH are not employees or agents of the hospital but are independent physicians; the hospital may delegate to these independent physicians those services physicians normally provide; and any questions relating to care my physician has given or ordered should be directed to him/her.

This consent form plainly puts the reader on notice that physicians practicing at Winter Park Hospital are independent contractors, not agents or employees. The form also authorizes Winter Park Hospital to delegate to such physicians the services physicians normally provide. The form does not, however, dispose of the question whether the delegation of the duty relieves Winter Park Hospital of liability.

Winter Park Hospital argues that the first sentence of the consent form represents an undertaking on its part only to provide those necessary medical or surgical treatments as may be ordered by the attending physician. If the physician is negligent, it reasons, Winter Park Hospital cannot be liable. Winter Park Hospital’s reading of the scope of its undertaking is possible, given the syntax of the sentence, because it is unclear what “as may be ordered by the attending physician(s)” refers to. Whether their interpretation of the sentence has the legal effect they contend is not self-evident.

This first sentence of the consent form can also be read to mean that Winter Park Hospital undertook to provide Ginger Pope and Tyler the necessary medical or surgical treatments or procedures, including whatever diagnostic, x-ray, laboratory procedures, anesthesia, etc. as may be ordered by the attending physician. Winter Park Hospital’s express reservation of the right to delegate the services physicians normally provide implies a recognition on its part that it has undertaken the duty to provide those services. A duty that does not exist cannot be delegated.

Under the law of tort, the hiring of an independent contractor, unless done negligently, precludes liability because the hiring party has no duty to an injured third party to procure non-negligent performance of the independent contractor. However, delegation of a contractual duty to an independent contractor does not eliminate the duty. Section 318 of the Restatement Second of Contracts sets forth the controlling principle of law:

Delegation of Performance of Duty
(1) An obligor can properly delegate the performance of his duty to another unless the delegation is contrary to public policy or the terms of his promise.
(2) Unless otherwise agreed, a promise requires performance by a particular person only to the extent that the obli-gee has a substantial interest in having that person perform or control the acts promised.
(3) Unless the oblige agrees otherwise, neither delegation of performance nor a contract to assume the duty made with the obligor by the person delegated discharges any duty or liability of the delegating obligor.

(emphasis added.)

There is no language in this contract between Winter Park Hospital and the Popes of any assent by Mrs. Pope that the delegation of Winter Park Hospital’s duty to provide the necessary medical treatment to independent contractor physicians will discharge the hospital from its contractual obligations. Acknowledgement on the part of Mrs. Pope that the duty to provide “medical or surgical treatments” can be delegated to an independent physician does not constitute an agreement on the part of Mrs. Pope to discharge Winter Park Hospital from any contractual duty it assumed. Delegation and discharge are two different things entirely, performed by different contracting parties. Contractual language of discharge should be clear, yet the only language in the form that may even obliquely refer to discharge is the final sentence, which provides that “questions” relating to the physician’s care should be directed to the physician.

Both the Popes and Winter Park Hospital urge on appeal that the contract unambiguously means what they say it means and neither addresses any doubt about the consent form’s meaning. However, we find that the contract is ambiguous and that the interpretation of this agreement potentially includes one or more questions of fact. Given the nature of the agreement and the fact that it was drafted by Winter Park Hospital, ambiguities of the sort at issue here could be construed against the hospital, Planck v. Traders Diversified, Inc., 387 So.2d 440 (Fla. 4th DCA 1980), but because the parties have barely addressed the interpretation of the contract, we leave this issue for further development on remand.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.

      . The hospital is the only appellee. The other defendants were either dismissed or dropped from the suit before trial.

      . Fetal maternal hemorrhage means Tylers blood transferred to his mother through the placenta over a period of days or weeks before birth.

      . Winter Park Hospital also argues that this court may affirm if the right result is reached at trial but for the wrong reason, and the record evidence supports an alternative theory. The hospital suggests that it was entitled to a directed verdict based on the Popes failure to prove that Dr. McMahan was negligent. After our review of all of the evidence presented, we conclude that the Popes did present sufficient evidence of Dr. McMahans negligence and reject the hospital’s alternative basis for affirmance.

      . See, e.g., Jones v. Tallahassee Mem'l Reg’l Healthcare, Inc., 923 So.2d 1245, (Fla. 1st DCA 2006). See generally, Ellen Gwynn, Hospital Liability in Florida: The Nondelegable Duty Doctrine, 64 Fla. B.J. 14 (1990).

      . See also Jaar v. University of Miami, 474 So.2d 239, 243-44 (Fla. 3d DCA 1985), where the public Health Trust of Dade County entered into a contract with the University of Miami for the latter to provide medical care to patients. The University was unable to escape liability for the negligence of the negligent physician because delegating performance of its contract to the physician did not discharge its contractual duty.

      . In attempting to obtain review of the Shands decision in the Florida supreme court, the strategy adopted by the hospital was to attack the notion that the admission form could constitute a contractual undertaking on the part of the hospital to provide a level of care to the patient. See Petitioner's Brief on Jurisdiction, Shands Teaching Hosp. and Clinics, Inc. v. Juliana, Case No. SC03-1656. This approach failed in that the supreme court denied review.

      .Assuming the hospital did undertake by contract to provide to Baby Pope “the necessary medical or surgical treatments or procedures,” we cannot credit the notion that this undertaking would not include "non-negligent” medical care. "Necessary medical care” inherently means competent medical care.