author: RAMIREZ, J.

text:
    Erin MURPHY, Appellant, v. COURTESY FORD, L.L.C., a Florida Limited Liability Corporation d/b/a “World Ford Kendall,” Appellee.
    No. 3D05-1896.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.

      Samuel M. Spatzer, Coral Gables; Jay M. Levy, Miami, for appellant.
    Goldsmith & Atlas, and Mark Atlas, Miami, for appellees.
    Before GREEN, RAMIREZ, and LAGOA, JJ.
   RAMIREZ, J.

Erin Murphy, the consumer/buyer, appeals the trial court’s non-final order compelling arbitration of her damages claim against the seller, Courtesy Ford, L.L.C., a Florida Limited Liability Corporation d/b/a “World Ford Kendall”. She also appeals the trial court’s order denying her motion for rehearing. We affirm both orders, finding that Murphy is required to arbitrate her dispute with Courtesy Ford.

Erin Murphy, who was nineteen years old at the time, came into Courtesy Ford to buy a used Ford F-150 pick-up truck. During the course of the purchase and sale transaction with Courtesy Ford’s staff, Murphy knew she was signing legal documents. She did not read the sale and purchase documents. She neither asked any questions regarding the sale and purchase documents, nor raised any objection to their execution. The first time Murphy objected to any of the terms of the contract was after her car was repossessed.

The buyer’s purchase order provides a warning statement printed in red ink on the front side of the document, immediately above the buyer’s signature. This warning advises the buyer of the significance of the provisions printed and completed on both the front and back sides of the document. It states:

The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning same has been made or entered into, or will be recognized. I have read the matter printed on the back hereof and agree to it as a part of this order the same as if it were printed above my signature. I certify that I am 18 years of age, or older, and hereby acknowledge receipt of a copy of this order.

In sum, the purchase order notifies the consumer in three different paragraphs to read the reverse side of the purchase order. It also states in big black letters, “READ CONDITIONS ON REVERSE SIDE.” The subject arbitration agreement clause, paragraph 12, was contained on the reverse side of the buyer’s purchase order, in the same size type-face as all the 'other terms.

Murphy sued Courtesy Ford for damages under Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), Florida Statute, sections 501.201, et. seq. Courtesy Ford filed a motion to stay proceedings and compel arbitration, which the trial court granted. Murphy then appealed this non-final order. She also filed in the trial court a motion for a rehearing which was heard after this Court temporarily relinquished jurisdiction of the appeal.

At the evidentiary hearing in the trial court on Murphy’s motion for rehearing, Courtesy Ford established it did not actively discourage or prevent Murphy from knowing and understanding the disputed contract terms. Murphy admitted there was nothing preventing or blocking her from reading the documents; no one prevented her from reading the documents before she signed them; she did not ask for more time to review the documents or review them in more detail; she did not object to signing any of the documents; she did not ask any questions about the documents; she knew the documents were legal documents when she signed same; she simply chose not to read the documents; and the first time she objected to any of the terms of the contracts was after her car was repossessed. She also admitted that she received a copy of the buyer’s purchase order at the time of purchase, but she never reviewed it. The trial court, thus, reaffirmed its initial ruling. Murphy then appealed. We now affirm, finding that the trial court properly found that the arbitration agreement was enforceable.

First, the arbitration clause in the buyer’s purchase order applies to Murphy’s claim under the FDUTPA. There are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute, under federal statutory provisions and Florida’s arbitration code: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999).

The test for determining arbitra-bility of a particular claim under a broad arbitration provision is whether a “significant relationship” exists between the claim and the agreement containing the arbitration clause, regardless of the legal label attached to the dispute. Id. 637-38. See also Passerrello v. Robert L. Lipton, Inc., 690 So.2d 610 (Fla. 4th DCA 1997)(apply-ing arbitration agreements to deceptive trade practice and fraud claims). In addition, Florida public policy favors resolving disputes through arbitration when the parties have agreed to arbitrate. Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 263 (Fla. 2d DCA 2004). All doubts regarding the scope of an arbitration agreement must be resolved in favor -of arbitration. Qubty v. Nagda, 817 So.2d 952, 956 (Fla. 5th DCA 2002). Furthermore, Florida case law is clear that FDUTPA claims can properly be submitted to arbitration. Orkin Exterminating Co., 872 So.2d at 261; Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 620 (Fla. 4th DCA 2001). And finally, we review a court’s ruling on a motion to compel arbitration de novo. Orkin Exterminating Co., 872 So.2d at 261.

Passerrello, 690 So.2d at 610, cited by Courtesy Ford, is directly on point with the case before us. Faced with similar facts, the Fourth District Court held in Passerrello that a used car buyer was required to arbitrate her dispute with the bank even though the arbitration clause was contained in the purchase contract and not in the finance contract. Id. at 611. See also Morse Operations, Inc. v. Sonar Radio Corp., 449 So.2d 1002 (Fla. 4th DCA 1984)(where the arbitration clause was contained in the buyer’s order and not in the finance or installment sale contract).

Here, Murphy’s causes of action are tied directly to the purchase of the vehicle. Because her claims involve the contractual agreement, the trial court was correct in finding there was a significant relationship between her claims and the buyer’s order which contained the arbitration clause. Passerrello, 690 So.2d at 611. The trial court properly applied the test for determining arbitrability to the facts of the case and was correct in finding that the arbitration agreement contained within the purchase contract was enforceable.

Furthermore, we find that the trial court was correct in finding that Murphy failed to make a sufficient showing of unconscionability required to overturn the arbitration agreement. To invalidate a contract under Florida law, a court must find that the contract is both procedurally and substantively unconscionable. Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). The party seeking to avoid the arbitration provision has the burden to establish unconscionability. Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 288 (Fla. 1st DCA 2003).

To determine whether a contract is procedurally unconscionable, a court must look to the manner in which the contract was entered into and consider factors such as whether the complaining party had a meaningful choice at the time the contract was entered into. Id. at 284. Courts consider “whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract or whether the terms were merely presented on a ‘take-it-or leave-it’ basis; and whether he or she had a reasonable opportunity to understand the terms of the contract.” Id. In Florida, a party to a contract is not “permitted to avoid the consequences of a contract freely entered into simply because he or she elected not to read and understand its terms before executing it or because in retrospect, the bargain turns out to be disadvantageous.” Id. at 288. As the First District Court of Appeal stated in Weston, “[t]o sanction such a result would be to render contracts worthless as a tool of commerce.” Id.

In Palm Beach Motor Cars Ltd., Inc. v. Jeffries, 885 So.2d 990 (Fla. 4th DCA 2004), a buyer sought to have an arbitration agreement in a purchase agreement declared unenforceable on the grounds that it was unconscionable. The Fourth District Court of Appeal held that the arbitration provision in the purchase agreement between the automobile buyer and the automobile dealership was procedurally unconscionable. Id. at 991. The arbitration provision in that case was located on the back of the agreement. There was language on the front of the agreement alerting the buyer to the terms on the back which was in the smallest print on the page. Id. The automobile dealer’s employees testified that it was not their practice to inform customers of terms on the back of the agreement or of the arbitration provision, and they did not inform the buyer of these terms. Id.

The trial court properly distinguished the facts in Jeffries from the facts in the case before us, finding that Murphy failed to establish procedural unconscionability. In particular, the trial court found that the arbitration agreement was not procedurally unconscionable because the agreement appeared in the same type-face as did the rest of the provisions of the purchase contract, the contract was signed by Murphy, and there was no evidence indicating that Courtesy Ford actively discouraged or prevented Murphy from knowing and understanding the disputed contract terms.

The trial court reviewed all of Murphy’s allegations and evidence relating to procedural unconscionability and properly found that her allegations and evidence were insufficient to demonstrate that the arbitration agreement was procedurally unconscionable. Murphy cannot avoid her contractual responsibility simply because she chose not to review the terms of her agreement. Thus, she failed to carry her burden of establishing procedural uncon-scionability. Consequently, we need not decide whether it was substantively unconscionable. See Western, 857 So.2d at 288 (where the party fails to establish procedural unconscionability, the court need not decide whether the arbitration provision is also substantively unconscionable).

Accordingly, we affirm the trial court’s order granting Courtesy Ford’s motion for stay of proceedings and to compel arbitration, as well as the trial court’s order denying Murphy’s motion for rehearing.

Affirmed.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Charles Leon PLEDGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3568.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Charles Leon Pledger, appeals the trial court’s final order of sentencing. Following a jury trial, Pledger was convicted of one count of false imprisonment and three counts of attempted sexual battery with force or a deadly weapon. The trial court designated Pledger a prison releasee reoffender, and sentenced Pledger to five years in prison for count one, and fifteen years each for counts two through four. The sentences for counts two through four were to be served concurrently with one another, but served consecutively to the five year sentence imposed for count one. Pledger argues that the trial court’s imposition of consecutive prison releasee reoffender sentences was illegal, since the convictions for false imprisonment and attempted sexual battery arose out of the same criminal episode.

We agree with Pledger’s argument, and reverse the consecutive sentences and remand for re-sentencing. See Wilson v. State, 467 So.2d 996 (Fla.1985) (crimes of kidnapping and rape took place as part of a single criminal episode, and the imposition of consecutive sentences was therefore illegal).

KLEIN and MAY, JJ., concur.


author: PER CURIAM.

text:
    Rhonda KNIFLEY, Appellant, v. Wally KNIFLEY, Appellee.
    No. 5D05-2016.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Stanley Wolfman of Wolfman & Wolf-man, P.A., Melbourne, for Appellant.
    Richard Feinberg, Indialantic, for Ap-pellee.
   PER CURIAM.

We affirm the final judgment dissolving the parties’ marriage. We write to address one issue raised on appeal. In the final judgment, the trial court found it was in the best interests of the minor children for the husband to have primary residential custody. No other factual findings were made with regard to this hotly contested issue.

The wife requests that this court require trial judges to make detailed factual findings in disputed custody cases. We decline to do so. Section 61.13(3), Florida Statutes (2005), sets forth numerous factors that a trial court is to consider in determining custody. The statute does not require factual findings as to each enumerated factor. It is sufficient for a trial judge to make a finding as to the best interests of the minor child — provided such finding is supported by substantial competent evidence. Duchesneau v. Duchesneau, 692 So.2d 205 (Fla. 5th DCA 1997). See also Clark v. Clark, 825 So.2d 1016 (Fla. 1st DCA 2002); Bader v. Bader, 639 So.2d 122 (Fla. 2d DCA), rev. denied, 649 So.2d 232 (Fla.1994); Murphy v. Murphy, 621 So.2d 455 (Fla. 4th DCA 1993).

Although there may be valid policy arguments to support the wife’s position, we believe these arguments should be addressed to the Legislature. Hack v. Janes, 878 So.2d 440, 444 (Fla. 5th DCA 2004).

AFFIRMED.

THOMPSON, LAWSON and EVANDER, JJ., concur.


author: FULMER, Chief Judge.

text:
    Michael AUMULLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2097.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Rehearing Denied Jan. 8, 2007.

      James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

Michael Aumuller challenges his conviction for first-degree murder by drug distribution in violation of section 782.04(l)(a)(3), Florida Statutes (2001). He raises two issues on appeal. We reject the first issue because the trial court properly denied Aumuller’s request for a jury instruction regarding a break in the chain of causation, and we write to explain our reasoning. We reject without further discussion the second issue concerning comments by a State witness and the prosecutor because we conclude that the comments complained of do not rise to a level of prejudice that merits a new trial.

The indictment charged that Aumuller “did unlawfully distribute ... heroin, which was the proximate cause of the death of Ja[ir]on Nevius.” At trial, the State presented the testimony of Ryan Connaughton, Jason Aykroyd, and Jason Howlett, three friends of the deceased, each of whom recounted the events on the day that Nevius died.

According to Connaughton, he met Nevi-us in the early afternoon on March 9, 2002, and began “partying.” They used marijuana and cocaine. Nevius also drank alcohol and used Valium. Nevius came up with the idea of getting heroin. They ran into Aykroyd, who joined them at Nevius’s apartment. They discussed their desire to obtain heroin. Aykroyd used his cell phone to call someone, and then the three went in Aykroyd’s car to a gas station to get the heroin. By this time, it was dark outside. Aumuller and a woman arrived in a red sports car and both came to Ay-kroyd’s car to talk to Aykroyd and deliver the heroin. Aumuller told them the heroin “was fire,” which Connaughton understood to mean that it was very potent. Nevius gave the money to Aykroyd. Aykroyd and Aumuller exchanged the money for the drugs. Aykroyd and Aumuller went into the store to get change and buy water. Aumuller and the woman then left in their car.

Aykroyd and Nevius then shot up the heroin in the car. Nevius fell asleep. Connaughton drove them back to Nevius’s apartment. Connaughton and Aykroyd left Nevius sleeping in the car and went into the apartment where they shot up. About twenty minutes later, they went out to check on Nevius and found he was not breathing and had no pulse. They brought him into the apartment and tried to perform CPR. Nevius vomited while they were trying to revive him, but he was otherwise nonresponsive. Howlett arrived while they were trying to resuscitate Nevi-us, but Howlett did not stay long. Ay-kroyd and Connaughton left Nevius’s apartment to drive to Connaughton’s house and, after about fifteen minutes, Ay-kroyd called the paramedics from a pay phone.

Police officers contacted Connaughton after the 911 call occurred. Initially he lied and told police that they had found Nevius dead in his apartment. Connaughton tried to cover up his involvement because he was on probation at that time. He later confessed and helped officers locate the needles, which had been thrown in the trash at Nevius’s house.

Aykroyd’s testimony differed from that of Connaughton as to the details of the drug transaction. Aykroyd testified that he knew Aumuller for about a year prior to March 9, 2002. They had met working at a telemarketing company. Aumuller drove a red Nissan 200SX car and had a girlfriend named Heather Crouse. Ay-kroyd met with Nevius and Connaughton at Nevius’s house in the afternoon on March 9. They decided to get some heroin. Aykroyd used his cell phone to page Au-muller, and Aumuller returned the call. Aykroyd conveyed to Aumuller that he wanted to buy a half gram of heroin. Au-muller indicated that he was going to Tampa to “re-up,” which Aykroyd understood to mean that he planned to get more heroin.

Aykroyd paged Aumuller again a few hours later, and this time Crouse called back. Aykroyd and Crouse set a location, a gas station, where the drug transaction would occur. He also asked Crouse to sell him some Ecstasy. Aykroyd, Connaugh-ton, and Nevius waited at the gas station for about an hour before Crouse and Au-muller arrived in Aumuller’s red Nissan. Crouse was driving. She parked next to Aykroyd so that Aumuller, who was sitting in the passenger seat of the Nissan, could talk to Aykroyd, who was sitting in his driver’s seat. They said hello to each other from their vehicles. Crouse got out of the car and went up to Aykroyd’s window to exchange the money for the drugs. Nevius gave the money to Aykroyd because Nevius was buying the drugs, and Aykroyd gave the money to Crouse. Au-muller never got out of his car. Crouse went into the store to get change. Crouse and Aumuller drove away.

Aykroyd handed the heroin to Nevius, who proceeded to make “his fix” and hand the bag back to Aykroyd. Aykroyd noticed that Nevius took a lot more than what would be normal. They both put the heroin in a spoon, mixed it up, put it in a syringe, and shot it into their arms. Ay-kroyd blacked out in the driver’s seat. Connaughton drove them to Nevius’s house. Nevius fell asleep on the way. Aykroyd and Connaughton left Nevius sleeping in the car and went into the house to shoot up more heroin.

An unknown time later, while they were under the influence of heroin, Aykroyd and Connaughton went out and found Nevius slouched over, lifeless. They brought Nevius into the house, laid him on the floor, and attempted to resuscitate him. After a while, Nevius started to vomit, which they thought was a sign he was reviving. They sat him up while he vomited for a few minutes. They tried to perform CPR again, but Nevius showed no sign of life. Jason Howlett came in briefly as they were trying to revive Nevius. After Howlett left, Aykroyd and Connaugh-ton left together to . go to Connaughton’s home in Dunedin. They believed that Nevius was dead at that point and they left him at the house without calling for assistance. From Connaughton’s house, Ay-kroyd walked to a pay phone and placed a 911 call. Then Aykroyd went home. The next day, Aykroyd paged Aumuller, and Crouse called back. Aykroyd told Crouse that Nevius had overdosed and died.

Jason Howlett testified that on March 9 he spent the day with other friends. Early the next morning, at about 2 a.m., he stopped by Nevius’s house. He saw Ay-kroyd’s and Connaughton’s cars out front. He knocked on the door and waited for someone to answer. When he went inside, he saw Nevius on the floor. Howlett thought that Aykroyd, Connaughton, and Nevius were playing a joke on him. He then realized that Aykroyd was doing CPR and the situation was serious. Nevius was pale and cold and had no pulse. Howlett realized that Nevius was dead. Howlett told the others to call the police and paramedics. He asked them to call him to let him know what happened. He then left the house and drove around. Between thirty and forty-five minutes later, Con-naughton called Howlett. Howlett met Aykroyd and Connaughton at Connaugh-ton’s house. Howlett forced the other two to walk to the pay phone and make the 911 call.

Officer Quinones testified that he was sent to investigate the overdose at 3:21 a.m. Upon arriving at the house, he found a white male slouched over and nonrespon-sive. The paramedic who arrived testified that Nevius was pronounced dead at 3:33 a.m. He appeared to have been dead for a couple of hours.

Detective Faugno testified that he interviewed Connaughton. From that interview, he was able to locate hypodermic needles and drug paraphernalia in a trash can. The detective also interviewed Ay-kroyd and Howlett, as a result of which the detective contacted Aumuller.

Detective Faugno interviewed Aumuller after reading him his rights. Aumuller said that Crouse was his girlfriend and that he knew Aykroyd. He said that on the night in question Aykroyd wanted to buy heroin and Ecstasy from him. Aumul-ler recalled having to make a special trip to get the pills separate from the heroin. He said that he had to put Aykroyd at the bottom of the list for that reason. Aumul-ler said that he bought the drugs from someone in Tampa and that he called Ay-kroyd back with a location for the transaction. Aumuller arrived at the gas station after 10:00 that night and sold Aykroyd the drugs. Later, Aykroyd called to tell Aumuller that someone had overdosed on the drugs. Aumuller told Aykroyd that he should have called when the problem happened because he could have helped save Nevius. He had seen people overdose before and had helped save them.

A forensic toxicologist for the medical examiner’s office examined autopsy samples from Nevius and testified that the urine sample indicated the presence of caffeine, nicotine, cocaine, marijuana, and heroin. The blood sample showed the presence of heroin in a level consistent with the range for accidental overdose. According to the toxicologist, cocaine did not play a role in the cause of death in this case.

The associate medical examiner who performed the autopsy testified that she determined from the toxicology reports that the cause of death was heroin toxicity. Nevius may have been alive when CPR was performed. The doctor could not determine the amount of heroin injected or the time when it was injected. The doctor did not know if improper CPR attempts could have contributed to the death.

Aumuller testified that he did not have any conversations with Aykroyd on March 9, 2002. The pager belonged to Crouse, his girlfriend, but Aumuller had used it on occasion. Aumuller was addicted to heroin at the time of the incident, and Crouse obtained the drug for him. Crouse picked him up from work that day and drove him to Tampa, where she obtained the heroin. Aumuller never met the person who supplied the drug to Crouse. Crouse arranged the meeting with Aykroyd. When they arrived at the gas station, Aumuller was high, and he did not know why they were stopping. Crouse asked him to speak with Aykroyd and sell him the drugs.

Aumuller got out of the car with the drugs to speak with Aykroyd and make the transaction. When he realized there were others in Aykroyd’s car, Aumuller returned to his car because he was not sure what was going on. Aumuller knew Aykroyd, but not the other men with him. He told Crouse that Aykroyd needed change and that he did not feel comfortable with the situation. He told her that he wanted nothing to do with the situation. Crouse was upset because she would have to return money to others, and she jumped out of the car to stop Aykroyd from leaving. She went to get change and completed the transaction with Aykroyd. Aumul-ler said he had nothing to do with the transaction.

During the charge conference, the parties disagreed on whether the jury instruction for the murder charge should include mention of intervening factors. Aumuller submitted a written request for an instruction, which provided, in part: “[T]he State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder. If there is a break in the chain of events between the felony and the killing, the felony murder rule does not apply.” The State opposed the requested instruction and took the position that the jury instructions should not mention “intervening cause” because it was a confusing term and it was not applicable to this case. The trial court ruled that “to the extent [the requested instruction] talks about breaking the chain of events, that is inappropriate to this ease.”

The instruction given to the jury relating to causation provided:

[T]he State must prove the following three elements beyond a reasonable doubt:
One, Jairon Nevius is dead.
Two, the death resulted from the unlawful distribution of any substance controlled under Florida Statute 893.03(1) by Michael Aumuller, a person 18 years of age or older.
Three, the drug was the proximate cause of the death of Jairon Nevius.
The State is required to prove the heroin was the proximate cause of the death. This means you must find that the heroin was the primary or moving cause in producing the death, and without it, the death would not have happened.

Aumuller argues on appeal that there was some evidence to support his theory of a break in the causal link between his involvement and the death of Nevius, which would support the giving of his requested instruction. The State argues that there is no authority for Aumul-ler’s proposed instruction and there was no evidence to support the instruction.

“A trial court’s decision on the giving or withholding of a proposed jury instruction is reviewed under the abuse of discretion standard of review.” Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998). A “[defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions.” Hooper v. State, 476 So.2d 1253, 1256 (Fla.1985) (citing Smith v. State, 424 So.2d 726 (Fla.1982); Palmes v. State, 397 So.2d 648 (Fla.1981)). “The trial judge should not weigh the evidence for the purpose of determining whether the instruction is appropriate.” Smith, 424 So.2d at 732.

The State was required to show that the heroin was the proximate cause of the death. In addition, the State was required to prove linkage or causation between the distribution and the death. The jury was properly instructed that the State must prove that “the death resulted from the unlawful distribution of any substance.” This instruction was adequate.

In support of his assertion that he was entitled to the requested instruction, Au-muller relies on this court’s statements in Allen v. State, 690 So.2d 1332 (Fla. 2d DCA 1997), which addresses causation in the felony murder context. Allen concerns the sufficiency of evidence for third-degree murder based on the underlying felony of grand theft of a motor vehicle. The defendant was driving a stolen car when it crashed into the car driven by the decedent. Id. at 1333. In reversing the third-degree murder conviction, this court determined that there was a break in the chain of circumstances beginning with the felony and ending with the killing, and the defendant was not engaged in the commission of the grand theft at the time of the car crash. Id. at 1334.

In contrast to the third-degree murder offense at issue in Allen, the first-degree murder offense here has been described as “an unusual form of felony murder.” Pena v. State, 829 So.2d 289, 294 (Fla. 2d DCA 2002). The unusual characteristics of the offense were discussed in Pena:

The offense described in section 782.04(l)(a)(3), however, is an unusual form of felony murder. The defendant does not need to intend an act of homicide. In fact, the defendant does not even need to possess knowledge of the drug overdose or to be present when it occurs. If the defendant unlawfully distributes an illegal drug and the distribution results in a death caused by the drug, then the defendant is guilty of first-degree murder under section 782.04(l)(a)(3).

829 So.2d at 294.

Here, the medical evidence showed that the cause of death was heroin toxicity. When the conflicting evidence surrounding the actual distribution of the heroin is taken in a light favorable to Aumuller, the roles of Aykroyd and Crouse in providing the heroin to Nevius do not serve as intervening acts to merit the requested instruction. This is so because a person commits the offense by acting as a distributor in the drug distribution chain, and it is irrelevant that other persons are also involved in the chain. See Martin v. State, 377 So.2d 706 (Fla.1979). We therefore conclude that because there was no evidence to support an intervening cause theory, the trial court’s denial of the requested instruction was not an abuse of discretion.

Affirmed.

CASANUEVA and STRINGER, JJ„ Concur.

      . Section 782.04(l)(a)(3), Florida Statutes (2001), provides:
      The unlawful killing of a human being:.... Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1) ... by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

      . There is no standard jury instruction for first-degree murder by drug distribution.


author: CASANUEVA, Judge.

text:
    J.S.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3282.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    William D. Sites, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

After receiving a report from a confidential source that a drug party was under way at a Tampa hotel, several Hillsbor-ough County sheriffs deputies discovered J.S.M. and three other people at 3:30 a.m. in a room redolent of burnt marijuana. At least three bags of marijuana were in plain view, and J.S.M. was ultimately charged with misdemeanor possession of cannabis. After a combined hearing on his motion to suppress and his delinquency petition, the juvenile court judge denied suppression, found J.S.M. guilty of the offense, withheld adjudication of delinquency, and placed him on one year of probation. On appeal, J.S.M. contends that the State’s evidence was legally insufficient to prove his constructive possession of the drugs. We agree and reverse.

In a constructive possession case, the State must prove “(1) the accused’s dominion and control over the contraband; (2) the accused’s knowledge that the contraband is within his or her presence; and (3) the accused’s knowledge of the illicit nature of the contraband.” S.B. v. State, 657 So.2d 1252, 1253 (Fla. 2d DCA 1995). No issue has been raised regarding J.S.M.’s knowledge that the contraband was in his presence — it was in plain view.— or his knowledge of its illicit nature, which he admitted.

Here, however, the State utterly failed to prove that J.S.M. had dominion and control over the contraband. Because there was no evidence that J.S.M. was an occupant of the room rather than a guest, the court could not infer that he had the ability to control the contraband simply because it was in plain view. Compare Taylor v. State, 319 So.2d 114, 115 (Fla. 2d DCA 1975) (holding that circumstantial evidence of guilt emanating from the defendant’s proximity to illicit drugs in plain view was equally susceptible to the reasonable hypothesis that the defendant was a mere visitor and that the drugs were in the possession and control of the owner or other occupant of the premises), with Brown v. State, 428 So.2d 250, 252 (Fla.1983) (holding that proof of the discovery of illegal drugs in plain view in the presence of two or more joint occupants of the premises is sufficient to support a conviction for constructive possession). In a case such as this, the State must establish the element of control by independent proof. Wade v. State, 558 So.2d 107, 108 (Fla. 1st DCA 1990) (citing Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981)); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

The evidence in this case raises a strong inference that J.S.M. just happened to be in the hotel room when the deputies arrived searching for a person named Jason. None of the information that the deputies had gleaned from the confidential informant’s tip related to J.S.M. Although one of the deputies stated that J.S.M. was “staying” in the room, his comment was unsupported by any evidence and is too conclusory to establish that J.S.M. actually occupied the premises.

The facts of this case bear a strong resemblance to those in Wade, 558 So.2d at 108, in which the First District held that because the defendant was a visitor to the motel room where he was arrested “rather than someone who owned, leased, or resided in the room, his mere proximity to the contraband found in plain view was insufficient to convict him.” The court went on to observe that “[cjase law has sharply distinguished the culpability of mere visitors from that of owners or occupants of premises containing openly-displayed illicit drugs.” Id. It is up to the State in cases such as Wade and this one to adduce independent proof connecting the defendant to control of the drugs.

Here, the State presented no proof that the deputies ever saw J.S.M. touching or handling the marijuana. Neither of the deputies testified that J.S.M. smelled as if he had been smoking the drug. If fingerprints were found on the baggies, they were not admitted into evidence. Neither J.S.M. nor any of the other people in that hotel room made any statements connecting him to ownership of the marijuana; instead, they claimed that it belonged to someone else. And, most significantly, no evidence proved how long J.S.M. had been at the hotel, whether he rented the room, or whether he jointly occupied it with the person who did. In fact, all of the testimony from the deputies was strikingly vague; and it is obvious from the prosecutor’s closing argument that the State’s entire case depended on J.S.M.’s imprecisely defined proximity to one of the three packages of marijuana in this small hotel room. “Proof of mere proximity of the defendant to the drugs is insufficient to sustain a conviction for constructive possession.” Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000).

Our decision in this case should not be construed to mean that teenagers found together in situations where it is obvious that they have been smoking marijuana cannot be convicted of possession of cannabis. Rather, it should be construed to mean that the State must strictly adhere to every element of proof in constructive possession eases.

Reversed and remanded for discharge of the defendant.

ALTENBERND and VILLANTI, JJ., Concur.


author: WALLACE, Judge.

text:
    Kevin DAUGHTREY, Appellant, v. Shannon L. DAUGHTREY, Appellee.
    No. 2D05-5768.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Kevin C. Shirley, Punta Gorda, for Appellant.

      Vincent A. Sica of Vincent A. Sica, P.A., Arcadia, for Appellee.
   WALLACE, Judge.

Kevin Daughtrey (the Husband) appeals an amended final judgment of dissolution of marriage. The effect of the amended final judgment was to require the Husband to transfer an additional eleven acres of land in DeSoto County to Shannon L. Daughtrey (the Wife). Because there is no evidentiary support in the record for the entry of the amended final judgment, we reverse and remand for further proceedings.

BACKGROUND

The parties were married in 1995. They had three minor children. After the marriage, the Husband acquired acreage in DeSoto County. The parties obtained a mortgage to construct a house on the property and then occupied the house as their residence.

In June 2005, the Wife filed a petition for dissolution of marriage. In her petition, the Wife alleged that the parties had acquired a parcel of real property during the course of the marriage. The Wife asserted that this real property was marital property that should be equitably divided. In a separate count of the petition, the Wife also requested partition of the property.

The tract that the Husband had acquired during the marriage comprised approximately thirteen acres. The allegations of the Wife’s petition included a metes and bounds description of the parcel of land in which she claimed an interest. The parcel of land described in the Wife’s petition was approximately two acres in size. The two-acre parcel described in the Wife’s petition formed a part of the Husband’s thirteen-acre tract. Our record does not reflect whether the parties’ residence was located within the boundaries of the smaller parcel or somewhere else within the larger tract.

The Husband filed an answer to the Wife’s petition and a counterpetition for dissolution of marriage. The Husband’s pleadings did not raise any issues about the size of the two parcels of land or about the proper legal description of the property. After the Wife filed her answer to the Husband’s counterpetition, the trial court ordered the parties to mediation. At mediation, the. parties reached an agreement that was memorialized in a written Settlement Agreement.

The Settlement Agreement contained a section titled “REAL PROPERTY” that provided as follows:

That the parties acquired a home during the course of the marriage, described as follows:
[Legal description omitted.]
That the parties agree that the Wife shall retain use, possession and ownership [of] the marital residence. That in exchange for the Husband conveying his interest in the former marital residence to the Wife, the Parties agree to the following;
1. That the marital home should be sold and the net sale proceedings [sic] divided between the Parties in the following manner.
A. 50.0% of the net sale proceeds shall be retained by the Wife as child support and the Husband’s obligation to pay child support shall be satisfied, pursuant to this agreement.
B. 25.0% of the net sale proceeds shall be retained by the Wife as her share of the equitable distribution of the marital assets.
C. 10.0% of the net sale proceeds shall be retained by the Wife in exchange for her waiver of all forms of alimony.
D. 15.0% of the net sale proceeds shall be retained by the Husband as his share of the equitable distribution of the marital assets.

The legal description of the property that appears in the Settlement Agreement is of the two-acre parcel — the same description that the Wife used in her petition for dissolution of marriage.

On September 29, 2005, the trial court entered a final judgment that dissolved the parties’ marriage. Among other things, the final judgment ratified the Settlement Agreement and incorporated it into the final judgment. In accordance with the provisions of the Settlement Agreement, the Husband executed a quitclaim deed transferring his interest in the two-acre parcel to the Wife.

THE PROCEEDINGS IN THE TRIAL COURT

Approximately two months after the entry of the final judgment, the Wife filed a “motion to amend and clarify final judgment.” In her motion, the Wife alleged that when she signed the Settlement Agreement, she “assumed that she was receiving the entire parcel of land and home which is approximately 13.38 acres.” The Wife alleged further that a title search prepared in connection with a proposed sale of the thirteen-acre tract had revealed that the parcel described in the Settlement Agreement and in the quitclaim deed that the Husband had executed in accordance with it was only a part of the entire tract. Because the sale of the former marital home could not be completed until the legal description was “corrected,” the Wife asked the trial court to enter “an order which amends and clarifies the legal description of the former marital home” to include the entire thirteen-acre tract.

The trial court held a hearing on the Wife’s motion. At the hearing, the Wife’s attorney noted that when the parties obtained financing to build their residence, they had mortgaged the entire thirteen-acre tract. The Wife’s counsel asserted that the Wife’s intent was to receive the thirteen-acre tract in the settlement and that she had believed that a prior deed that had been used to prepare the pertinent documents described the entire tract, not just a two-acre portion of it. The Wife’s counsel asked the trial court to order the Husband to execute a deed in favor of the Wife for the entire thirteen-acre tract or to modify the final judgment so that it could “act as [a] conveyance of [the Husband’s] interest in the property.” The Wife did not offer any testimony in support of her motion, but her attorney informed the trial court that the Wife was available to testify.

In response, the Husband’s attorney disputed the assertions made by the Wife’s attorney about the parties’ intentions. The Husband’s attorney observed that the Wife had mentioned only the two-acre parcel in her petition. Based on this fact, he argued that the smaller parcel was “the only thing ... on the table” during mediation. To grant the relief requested by the Wife — the Husband’s attorney continued— would amount to “allowing a transfer of property that wasn’t contemplated by any of the parties here.” Finally, the Husband’s attorney specifically objected to granting the relief requested by the Wife in the absence of any evidence to support the statements made by the Wife’s attorney about the parties’ intentions.

After considering the representations and arguments made by counsel for the parties, the trial court concluded: “Well, looks to me like it’s just a [scrivener’s] error by (inaudible), so I’ll grant [the Wife’s] motion.” Neither of the parties presented any testimony at the hearing, and the trial court did not make any additional findings. The trial court entered an amended final judgment that ordered the Husband to execute a “corrective deed which corrects the legal description” in the quitclaim deed that he had already executed and “conveys his interest in the [thirteen-acre tract] to the Wife.” The amended final judgment provided further that in the event the Husband refused to sign the corrective deed, then the amended final judgment would act as a conveyance of the Husband’s interest in the property to the Wife.

DISCUSSION

There is no evidence in the record to support the trial court’s conclusion that the use of the legal description of the two-acre parcel in the Wife’s petition, in the Settlement Agreement, and in the quitclaim deed that the Husband had already executed was the result of “a scrivener’s error.” As this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation. See DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998); State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988). Here, the Husband’s attorney made a timely objection to the entry of an amended final judgment based on the un-sworn statements made by the Wife’s counsel. Although the Wife’s attorney offered that the Wife was available to testify, the trial court proceeded to rule on the Wife’s motion without hearing any evidence. Accordingly, we reverse the amended final judgment, and we remand this case to the trial court for further proceedings. See Faerber v. D.G., 928 So.2d 517, 518-19 (Fla. 2d DCA 2006).

Reversed and remanded.

SILBERMAN and KELLY, JJ„ Concur.

      . The Husband's attorney made several other arguments in opposition to the relief requested in the Wife's motion, but these arguments are not material to our consideration of this case.

      . We note that the trial court appears to have misconceived the issue before it as one involving a scrivener's error in the original final judgment. With respect to the disposition of the real property, the original final judgment had merely ratified and incorporated the Settlement Agreement made by the parties. Thus the issue that the trial court and the parties should have addressed was whether there were sufficient grounds to modify the Settlement Agreement. This is an issue on which we express no opinion.


author: LaROSE, Judge.

text:
    Donna MAZUREK, Appellant, v. Vasco FERRARO, Appellee.
    No. 2D05-5009.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      Jean-Jacques A. Darius, Tampa, for Appellant.
    Elinor P. Smith of Elinor P. Smith, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Donna Mazurek appeals an order denying her motion to vacate an order approving a General Master’s findings of fact and recommended order awarding child support credit to Vasco Ferraro. The trial court erred in adding prejudgment interest to the credit amount and in selecting October 30, 2000, as the date on which to apply the credit. Consequently, we reverse.

In February 1989, the trial court entered a final judgment of paternity finding Mr. Ferraro to be the father of Ms. Mazu-rek’s child. The trial court ordered him to pay child support. In late September 1989, the trial court rendered its Judgment Determining Existence of Resulting Trust, granting Ms. Mazurek a lien on Pasco County real estate owned by Mr. Ferraro. The lien secured future child support payments. Ms. Mazurek recorded the lien in the public records of Pasco County on September 29,1989.

Subsequently, Mr. Ferraro’s ex-wife, Catherine Ferraro, filed a quiet title action as to the same property against Mr. Ferraro in Pasco County. On July 31, 1990, she recorded a default judgment declaring that Mr. Ferraro owned the property. In October 1990, she recorded a quitclaim deed from Mr. Ferraro.

In January 1991, Ms. Mazurek levied on her lien. She purchased the real estate for $1000 at a sheriffs sale and obtained a sheriffs deed on June 6, 1991. Earlier, however, on April 30, 1991, Catherine Ferraro filed another quiet title lawsuit in Pasco County against Ms. Mazurek and Mr. Ferraro.

Much later, in 1993, following a child support contempt hearing, the trial court ruled that Mr. Ferraro was not in contempt and was entitled to credit against his child support arrearages for the value of Ms. Mazurek’s interest in the Pasco County property if Ms. Mazurek prevailed in the quiet title lawsuit. At the time of Ms. Mazurek’s levy in January 1991, the property was valued at $40,000. The trial court ruled that “[s]hould [Ms. Mazurek] be ultimately determined to have an interest in the realty, [Mr. Ferraro] should be given a credit on his child support obligation equal to the value of [Ms. Mazu-rek’s] interest calculated on a $40,000.00 value, less the $1,000 purchase price.” The trial court said nothing about interest.

Some seven years later, in October 2000, the 1991 quiet title lawsuit ended. A trial court in Pasco County confirmed Ms. Ma-zurek’s fee simple title in the Pasco County property. That trial court found that Ms. Mazurek’s lien was superior to Catherine Ferraro’s quitclaim deed, that the quitclaim deed was void, and that the sheriffs deed gave Ms. Mazurek fee simple title. An appeal followed.

On June SO, 2004, the trial court in Hillsborough County granted Mr. Ferraro child support credit toward amounts, now reduced to judgments, owed to Ms. Mazu-rek. The trial court ruled correctly that its 1993 order, determining a $40,000 value for the Pasco County real estate, was res judicata. See Dep’t of Health & Rehabilitative Servs. v. Wood, 600 So.2d 1298, 1300 (Fla. 5th DCA 1992) (holding that res judicata applies to unappealed ruling on postdissolution motion for child support contempt as to arrearage determination); accord Dep’t of Health & Rehabilitative Servs. v. Beckwith, 624 So.2d 395, 397-98 (Fla. 5th DCA 1993); Remington v. Remington, 705 So.2d 920, 922-23 (Fla. 4th DCA 1997) (holding that contempt order liquidating child support amount is final decretal order and is res judicata).

The order on appeal recited that the amounts owed by Mr. Ferraro on 1990 and 1991 child support judgments totaled $51,536.99 as of June 30, 2004. The order provided a credit of $37,750 ($40,000 less Ms. Mazurek’s costs of $2250) to Mr. Ferraro, plus twelve percent interest from October 30, 2000, the date that the Pasco County trial court concluded that Ms. Ma-zurek had clear title to the real estate. With interest calculated to be $16,605.63, the credit totaled $54,355.63.

The trial court erred in awarding interest as part of the credit against Mr. Ferraro’s long delinquent child support obligations. On our record, no Florida authority permits such an award. The trial court also erred in using October 30, 2000, as the date that Ms. Mazurek acquired clear title to the Pasco County property. The October 30, 2000, order from the Pas-co County trial court became final on August 8, 2001, when the appellate mandate issued. See McCuiston v. State, 507 So.2d 1185, 1186 (Fla. 2d DCA 1987), aff'd, 534 So.2d 1144 (Fla.1988); Cicero v. Paradis, 184 So.2d 212, 214 (Fla. 2d DCA 1966); Porter Lumber Co., Inc. v. Tim Kris, Inc., 530 So.2d 398, 399 (Fla. 4th DCA 1988).

We reverse the order denying the motion to vacate and remand to the trial court to determine the amount due for the February 1990 and April 1991 judgments, with interest accumulated thereon, as of August 8, 2001. The $37,750 credit should be applied to that amount. The trial court then should calculate the child support ar-rearages, if any, from August 9, 2001, to the date the trial court enters an order on this matter and subtract any remaining credit from that amount. Any remaining arrearages should be reduced to judgment, which will bear interest at the legal rate.

Reversed and remanded with directions.

SALCINES, J., and CASE, JAMES R., Associate Judge, Concur.


text:
    Jill WILLMAN, former wife, Appellant, v. Steven A. WILLMAN, former husband, Appellee.
    No. 1D06-1943.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.
    Janis L. Burke, Ft. Walton Beach, for Appellant.
    Stephen S. Poche’, Shalimar, for Appel-lee.
   PER CURIAM.

In the absence of a valid separation agreement, a married couple’s assets remain “marital” until the date dissolution papers are filed. See § 61.075(6), Fla. Stat. (2005); Rao-Nagineni v. Rao, 895 So.2d 1160, 1161 (Fla. 4th DCA 2005) (“Section 61.075(6), Florida Statutes (2003), provides a bright line rule for setting the date to be used in determining the marital classification of assets and liabilities. If there is no valid separation agreement, the cut-off date is ‘the date of the filing of the petition for dissolution of marriage.’ ” (quoting Caruso v. Caruso, 814 So.2d 498, 502 (Fla. 4th DCA 2002))). The portion of a military pension that accrues during marriage is a marital asset. See Cunningham v. Cunningham, 623 So.2d 1243, 1244 (Fla. 1st DCA 1993).

In the present case, the trial judge used November 1, 2002, as the date on which the husband’s pension plan ceased being a marital asset. This was error. As the parties did not have a separation agreement, the husband’s pension plan continued as a marital asset until he filed for divorce on August 10, 2004. Accordingly, we reverse on this issue and remand to the trial court to amend the portion of the final judgment dealing with the wife’s coverture share of the husband’s military retirement pay. The final judgment is affirmed in all other respects.

AFFIRMED in part, REVERSED and REMANDED in part.

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


text:
    Frank A. MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4175.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.
    Frank A. Mosley, pro se, Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the lower court’s summary denial of Issues II through VI of appellant’s motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, but we reverse the denial of Issue I.

Following appellant’s violation of probation and receipt of five years in prison, he claimed in his 3.850 motion that trial counsel was deficient by incorrectly informing him the maximum penalty for the felony offense for which he was convicted was two years in prison. The trial court ruled that the written plea agreement refuted this claim. This was error.

The “Certificate of Defendant’s Attorney” at the bottom of the plea agreement stated, in part, that counsel had discussed with the defendant “the maximum penalty for the charge(s),” but there is no mention of the actual maximum penalty in the written agreement, nor was it discussed during the plea hearing. A claim that a plea was involuntary based upon the defendant’s reliance on trial counsel’s misadvice regarding the length of time the defendant would serve requires an evidentiary hearing if not refuted by the transcript of the plea colloquy or some other part of the record. State v. Leroux, 689 So.2d 235 (Fla.1996); Clemmons v. State, 919 So.2d 657 (Fla. 1st DCA 2006); Cherry v. State, 837 So.2d 597 (Fla. 2d DCA 2003).

On remand, the trial court is directed to attach portions of the record refuting appellant’s claim in Issue I, or to hold an evidentiary hearing.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    Orvel LLOYD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3250.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.

      Orvel Lloyd, pro se, Petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Andrew GROVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5290.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2006.
    Andrew Grover, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, HAWKES, and THOMAS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Aziz MATAR, Appellant, v. FLORIDA INTERNATIONAL UNIVERSITY, Appellee.
    No. 3D05-1444.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      Lisa S. Walsh, Miami, for appellant.
    Hinshaw & Culbertson LLP, and James H. Wyman, Ft. Lauderdale, for appellee.
    Before, COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Aziz Matar (“Mr. Matar”) appeals his expulsion from Florida International University (“FIU”) upon FIU’s determination that Mr. Matar engaged in academic misconduct. Because the evidence more than amply supports FIU’s ultimate determination and because Mr. Matar failed to demonstrate any material error in the underlying academic grievance proceeding, we affirm.

Mr. Matar was a student at FIU’s construction management program. During the spring semester of 2005, Mr. Matar enrolled in BCN 4910 Senior Project (“Course”), a course required for a bachelor’s degree in construction management. As part of the Course, each student was required to develop his or her own hypothetical construction company.

On March 2, 2005, Mr. Matar submitted his midterm project for the Course, comprised of a large document setting forth the details of his hypothetical construction company. After reviewing Mr. Matar’s project, the instructor for the Course, Professor Gene Farmer (“Prof. Farmer”), concluded that portions of Mr. Matar’s midterm project were identical to a project that had been submitted by other students the previous semester. Prof. Farmer also suspected that the architectural office plan drawings and a construction cost estimate submitted were not prepared by Mr. Ma-tar.

On March 9, 2005, Prof. Farmer met with Mr. Matar in the presence of the Chairman of the Construction Management Department, Dr. Irtishad Ahmed, confronted Mr. Matar with the allegations, and informed him that a formal academic misconduct charge would be filed against him. Accordingly, on March 17, 2005, Prof. Farmer filed the formal charge of academic misconduct and alleged that Mr. Matar had plagiarized other students’ work, submitted work that was not prepared by him, and violated the class academic honesty pledge signed by him. Prof. Farmer indicated that because Mr. Matar previously received an “F” in a structures course as a result of being caught cheating, he felt it was best to resolve the matter via a formal charge of academic misconduct.

On March 18, 2005, the Vice-Provost for Academic Affairs, Kenneth E. Johnson (“Vice-Provost”), sent Mr. Matar a certified letter advising him of the charge of academic misconduct by Prof. Farmer. The Vice-Provost enclosed a copy of the 2004-2005 FIU Student Handbook (“Handbook”), specifically directing Mr. Matar to read the Code of Academic Integrity (“Code”) section of the Handbook, and also enclosed a copy of the materials detailing the allegations. The Vice-Provost specified that the matter could not be resolved through an informal resolution and requested that Mr. Matar inform him, in writing, whether he would like to have the matter resolved by administrative disposition, administrative hearing, or by a University Academic Conduct Review Board (“Review Board”) hearing. The letter included the contact information for Margaret Cuchel (“Ms. Cuchel”) in the Vice-Provost’s office should Mr. Matar have any questions.

On March 28, 2005, Mr. Matar contacted Ms. Cuchel by telephone to inform her that he wished to have his case resolved by an administrative hearing. Ms. Cuchel corresponded via e-mail with Mr. Matar, Prof. Farmer, and the Vice-Provost in order to confirm the administrative hearing and to set the date for April 7, 2005. That same afternoon, Mr. Matar wrote Ms. Cu-chel an e-mail stating “i spoke with profee-s or farmer from an hour ago and he will resolve this situation with dr. jhonsen without a hearing” [sic]. Ms. Cuchel responded to Mr. Matar and specified that the administrative hearing was nonetheless proceeding as scheduled on April 7, 2005.

The April 7, 2005 hearing was held with Mr. Matar, Prof. Farmer, and the Vice-Provost in attendance. Prof. Farmer presented evidence and testified that Mr. Ma-tar had engaged in cheating, plagiarism, and academic dishonesty. During Prof. Farmer’s testimony, Mr. Matar attempted to comment but the Vice-Provost told him to wait until it was his time to present his side of the story, and directed Mr. Matar to address his comments to him, not to Prof. Farmer.

In response to the evidence, Mr. Matar admitted that he had hired an architect to render drawings for the design of the office but argued that he was only doing what a contractor would do in “the real world.” He also admitted that he used approximately ten percent of a senior project submitted the previous semester by other students. He explained that he was enrolled in the course taken by these other students the previous semester, and participated with them on the previous group project. Mr. Matar claimed that although he dropped the class after two weeks, he continued working with the group as he intended to submit the group’s ultimate plan the next semester when he re-took the class.

After Mr. Matar’s presentation of the evidence, the Vice-Provost asked him if there was anything he wished to add. In response, Mr. Matar asked that he not be penalized in the matter. After the proceedings had concluded, Mr. Matar requested to ask a question of Prof. Farmer. The Vice-Provost responded “No questions for Professor Farmer. Ask me.” Mr. Matar, therefore, directed his question to the Vice-Provost, which was whether he could take his project book with him. The Vice-Provost responded negatively and concluded the hearing.

On April 14, 2005, the Vice-Provost issued his decision, finding that Mr. Matar had engaged in plagiarism, cheating and collusion, and expelled Mr. Matar from FIU. The Vice-Provost advised Mr. Matar that he had the right to appeal the decision to the President of FIU as outlined in the Code. After exhausting his administrative remedies, Mr. Matar filed the instant appeal.

In this appeal, Mr. Matar argues that his due process rights were violated because (1) formal review proceedings were improperly waived; (2) he was precluded from confronting or cross-examining his accuser; (3) he was improperly deprived of proceeding in an informal review process; and (4) the penalty was too severe.

Section 120.68, Florida Statutes, provides that “[a] party who is adversely affected by final agency action is entitled to judicial review.” § 120.68(1), Fla. Stat. (2005); Morfit v. Univ. of S. Fla., 794 So.2d 655, 656 (Fla. 2d DCA 2001). A district court reviewing a final agency action shall reverse or set aside agency action if it finds that “[t]he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” § 120.68(7)(c), Fla. Stat. (2005); see also Ames v. Dist. Bd. of Trustees, Lake City Cmty. Coll., 908 So.2d 1142, 1143 (Fla. 1st DCA 2005)(specifying that Florida’s Administrative Procedure Act (“APA”) permits reversal only upon a showing of “material error in procedure or a failure to follow prescribed procedure”). This standard of review “has been characterized as the APA’s version of the harmless error rule.” Ames, 908 So.2d at 1143 (emphasis added).

Florida universities and community colleges follow different procedures than other administrative agencies. Morfit,. 794 So.2d at 656. “In any proceeding in which the substantial interests of a student are determined by the state university system or a community college district, sections 120.569 and 120.57 (the general due process provisions of the Administrative Procedure Act) do not apply.” Id.; § 120.81(l)(g), Fla. Stat. (2005). Rather, pursuant to section 6C-6.0105(1) of the Florida Administrative Code, each university president is directed to “establish university rules that ensure fairness and due process in student disciplinary proceedings and that guarantee the academic integrity of the university.” Fla. Admin. Code R. 6C-6.0105(1).

An agency violates a person’s due process rights if it ignores rules promulgated thereby which affect individual rights. Armesto v. Weidner, 615 So.2d 707, 709 (Fla. 3d DCA 1992). Mr. Matar contends that FIU violated his due process rights when it failed to follow its own rules in failing to obtain Mr. Matar’s waiver of a formal hearing before the Review Board in writing. We disagree.

FIU followed the procedure as specified in its Code. FIU’s Code specifies that a charged student must respond in writing to the Office of Academic Affairs no later than seven days after receipt of notice of the complaint. If the charged student does not respond within seven calendar days upon receipt of the notice, he or she will be considered to have waived his or her right to a Review Board hearing and an administrative disposition hearing will be arranged. In this case, the record demonstrates that Mr. Matar confirmed in writing to Ms. Cuchel that he elected to have his matter resolved by an administrative hearing. Thus, FIU did not violate Mr. Matar’s due process rights in following its own rules pertaining to the waiver of a Review Board hearing.

Mr. Matar, however, claims that FIU failed to follow the requirements of Florida’s Administrative Code. Section 6C-6.0105(6)(c) of the Florida Administrative Code requires that due process must include as a minimum, a prompt disciplinary proceeding before a committee, panel, or court composed of at least one-half students, unless waived by the charged student “in writing on forms provided by the university which include an explanation of the effect of the waiver.” Fla. Admin. Code R. 6C-6.0105(6)(c).

We conclude that this claim was not preserved for appellate review before this court. Mr. Matar had two opportunities below to argue that because he did not waive the Review Board hearing on a form provided by the university, his due process rights were violated, first during the administrative hearing and subsequently, on appeal to the President of FIU. He did not do so, and thus, has not preserved the issue for appellate review before this court. See Augustin v. State Unemployment Appeals Comm’n, 906 So.2d 1238, 1239 (Fla. 4th DCA 2005)(holding that where appellant did not raise due process objection to telephonic hearing at the time of the hearing, the argument was not preserved for appellate review); see also Anderson v. Sch. Bd. of Seminole County, 830 So.2d 952, 952-53 (Fla. 5th DCA 2002)(holding that any due process objections based on insufficient notice and failure to advise appellant of her due process rights were not preserved for appeal as appellant failed to raise her objections during the expulsion hearing).

Even if we were to conclude that the issue had been preserved, we would deny the claim on the merits. Although FIU did not strictly comply with Rule 6C-6.0105(6)(c), as Mr. Matar did not waive his right to the Review Board hearing on forms provided by the university, FIU did substantially comply with the requirements thereof and Mr. Matar subsequently waived his right to a Review Board hearing in writing. See Ames, 908 So.2d at 1143-44 (specifying that although the college board did not strictly follow prescribed procedure, the board nonetheless gave complainant substantially the same opportunity to present evidence as complainant would have received had the board strictly followed prescribed procedure).

The record reflects that the Vice-Provost sent Mr. Matar written notice on March 18, 2005, advising him of the charge of academic misconduct by Prof. Farmer. The Vice-Provost included a copy of the FIU Student Handbook directing Mr. Ma-tar specifically to “[pjlease read the copied section of Academic Misconduct (pp. 39-44),” which delineates the misconduct grievance procedures of the university. (emphasis in original). This enclosed Academic Misconduct provision, or the Code, which Mr. Matar was specifically directed to read, details all of the grievance procedures and rights available to Mr. Matar for resolution of the academic misconduct charge within FIU’s judicial system, including via an Administrative Disposition hearing or Review Board hearing. Further, the Vice-Provost, in the notice, informed Mr. Matar that “[i]t is extremely important that you inform me, in writing, whether you wish your case be resolved by Administrative Disposition (used only if you are not disputing the charges), Administrative Hearing or be heard by the University Academic Conduct Review Board (UACRB).” (emphasis in original). Thus, we conclude that FIU gave Mr. Ma-tar substantially the same opportunity to waive the Review Board hearing in writing as he would have had, had FIU given him a specific waiver form. FIU’s failure to strictly “comply with the procedural requirements of the rule must be considered at most harmless error.” Ames, 908 So.2d at 1144; see also Boone v. Office of Provost, Fla. Int'l Univ., 920 So.2d 702, 702 (Fla. 3d DCA 2006)(affirming order of student’s dismissal because “any arguable defect in the underlying academic grievance process did not adversely affect her substantial rights to due process or otherwise”).

Both FIU’s Code and Florida Administrative Code Rule 6C-6.0105(6)(f) and (g) provide that the student may present information in his or her own behalf and that the student may hear and question adverse witnesses. Mr. Matar alleges that FIU did not comply with these Rules and that his due process rights were violated when he was “precluded” from cross-examining his accuser and presenting evidence in his behalf during the administrative hearing. We disagree.

A careful review of the transcript of the proceedings reflects that Mr. Matar never attempted to cross examine the sole witness against him, Prof. Farmer, and that Mr. Matar was permitted to fully present his case. The only witnesses to testify during the proceedings were Prof. Farmer, who testified first, and Mr. Matar.

The proceedings commenced with each witness introducing themselves. Prof. Farmer was then asked to “state [his] case.” Prof. Farmer began by explaining the Course and the document “book” Mr. Matar submitted, which was the subject of the complaint. When the Vice-Provost asked Prof. Farmer when this book had been submitted by Mr. Matar, Prof. Farmer responded that it “was submitted about eight weeks into the semester.” Mr. Ma-tar interrupted and supplied the actual date, March 3rd. As Prof. Farmer continued to testify, the Vice-Provost indicated that Prof. Farmer had identified twenty-seven items in Mr. Matar’s “book,” which he claimed were identical to those submitted by the previous semester’s class, and asked Mr. Matar if they needed to address each one or whether Mr. Matar was stipulating to any. Mr. Matar responded that while it was “the same formula,” the wording was different and asked if he could talk, and was told that he could in a minute.

Johnson: Okay. Mr. Matar, do we have to go through all, Professor Farmer has indicated that there are about 27, he has identified 27 that are, that are the same as in the project, do we have to go over each one, or?
Matar: Can I talk now?
Johnson: Do you stipulate that those are the same?
Matar: It’s not, it’s the same formula but it’s not the same exact words. Can I say something?
Johnson: Just a minute.

As Mr. Matar was not willing to stipulate to any of the evidence, Prof. Farmer identified some of the areas of Mr. Matar’s submission which he claimed were not Mr. Matar’s independent work. Mr. Matar interrupted him again in an attempt to explain his conduct and was told that he would be given a chance to respond.

Matar: This is common in any construction—
Johnson: Please, you’ll have your chance to respond. You need to be listening.

Further on, Mr. Matar interrupted the testimony again to argue with Prof. Farmer regarding how many times after he was confronted about his assignment, did he and Prof. Farmer meet with the chair. Prof. Farmer claimed it was once or twice, and Mr. Matar insisted that it was only once, asking again if he could “say [his] side of the story.” During this exchange, Mr. Matar was instructed to speak to the Vice-Provost, not to Prof. Farmer, and was told that he could present his side of the story in a minute.

Farmer: We had met on several occasions with the chair. We met on March 9th with the chair, and we met once or twice subsequent to that. Because every time that the chair was there, when Mr. Matar would come in, I would call the chair in.
Matar: No. Only once you called the chair.
Farmer: No. I said twice.
Johnson: Speak to me, please.
Matar: No, he was there once. Once after the class. Once after the class, he came and he showed them exactly, he said the same words that he said to you, only once. I came to Professor Farmer twice so I can resolve this situation, and one time when I resolve this situation it couldn’t happen, and I came to you and I talked to you, and you told me that one your best interests is to go and solve it with the professor. And that was the second time after he talked to Dr. Ammad. Can I say my side of the story about this one?
Johson: Yes, just a minute.
Matar: Okay.

Prof. Farmer was asked one additional question and then Mr. Matar was permitted to present his case, which he did without interruption by Prof. Farmer.

After the proceedings concluded, Mr. Matar asked the Vice-Provost if he could ask Prof. Farmer “another question.” When he was instructed to pose his question to the Vice-Provost, Mr. Matar simply asked if he could have his book back and was told that he could not.

What this review reveals is that Mr. Matar was not precluded from cross-examining Prof. Farmer or from presenting any and all evidence he wished to present, but rather, that he was not permitted to testify, present evidence, or argue with Prof. Farmer during Prof. Farmer’s testimony. After Prof. Farmer testified, Mr. Matar was able to and did “present his side of the story,” which was essentially an explanation of his conduct. The only question he attempted to ask Prof. Farmer was whether he could have his book back, a question not relevant to the proceedings and which was answered by the Vice-Provost. We, therefore, conclude that this appellate issue is without merit.

We also find Mr. Matar’s arguments that he was improperly deprived of an informal resolution hearing and that the penalty imposed was too harsh, equally unavailing. FIU’s Code provides that if it is determined that a charged student “has a prior record of being found responsible for academic misconduct,” then the charged student cannot enter into an informal resolution agreement. In this case, it was determined and properly documented that Mr. Matar had previously engaged in academic misconduct and thus, Mr. Matar could not enter into an informal resolution agreement. The determination that Mr. Matar had previously engaged in academic misconduct and therefore, was not eligible for an informal resolution, is clearly a discretionary determination, as was the sentence imposed, and to which we find no abuse of discretion. See § 120.68(7)(d), Fla. Stat. (2005).

CONCLUSION

Due process in student disciplinary proceedings requires “adequate notice, an opportunity to be heard, and substantial evidence to support the penalty.” Student Alpha ID No. Guja v. Sch. Bd. of Volusia County, 616 So.2d 1011, 1012 (Fla. 5th DCA 1993). Student disciplinary proceedings, however, “do not require the same safeguards afforded criminal defendants.” Id. The due process requirement of a student administrative proceeding is that the proceeding must be “essentially fair.” Id. at 1013; see also Abramson v. Fla. Int’l Univ., 704 So.2d 720, 720 (Fla. 3d DCA 1998)(finding student’s due process violations argument without merit as the record demonstrated that the proceeding was “essentially fair”).

In this case, Mr. Matar not only received timely written notice of the charges, an opportunity to specifically elect the type of hearing he wished to avail himself of, and ample time to respond to the charges against him and to be fully prepared for the administrative hearing, but he also was given the opportunity to present any evidence he wished to present and was able to dispute or explain the evidence presented against him. Although we conclude that Mr. Matar did not attempt to cross-examine Prof. Farmer, even if we were to find otherwise, he was told that he could pose his questions to Prof. Farmer through the Vice-Provost. That Mr. Ma-tar did not avail himself of the opportunity to question Prof. Farmer through the Vice-Provost cannot be characterized as a violation of due process. See Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir.1987)(finding that failure of charged students to avail themselves of opportunity to cross-examine witnesses through the chancellor could not be characterized as a violation of the students’ due process).

We also find that, even if we were to rely solely upon Mr. Matar’s admissions, sufficient grounds for his expulsion exist. Mr. Matar admitted to using the work of others when precluded from doing so, hiring and using an architect for the office plans, and failing to disclose or give credit to these sources. He also had previously been caught cheating and had received an “F” in the corresponding course. Consequently, the evidence more than amply supports FIU’s ultimate deterinination to expel Mr. Matar.

Affirmed.

      . The Academic Misconduct provision specified by the Vice-Provost is the same provision referred to herein as FIU’s “Code.”


text:
    Rinaldo CRUZ, Appellant, v. CARIBBEAN SPRING VILLAGE, etc., Appellee.
    No. 3D06-1020.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      Cummins & Wanshel and Lawrence A. Wanshel, Miami, for appellant.
    Leon A. Brunet, Coral Gables, and Ryan A. Mazur, for appellee.
    Before RAMIREZ, and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Rinaldo Cruz appeals an order vacating and setting aside a final default judgment. Because we find no abuse of discretion in the trial court’s ruling, we affirm.

Attorney Robert J. Tieso filed suit against Cruz in February of 2003, on behalf of appellee Caribbean Spring Village Condominium Association, Inc., seeking in-junctive relief and damages. During discovery, Cruz served Caribbean with requests for production and interrogatories, followed by a motion to compel, which the court granted. When Caribbean did not comply with the order, Cruz moved for sanctions. At the hearing, Tieso consented to an Agreed Order on Sanctions, which he then proceeded to ignore, leading to the entry of a Final Default Judgment.

Through new counsel, Caribbean filed a Sworn Motion to Vacate Final Default Judgment, arguing that Tieso failed to comply with discovery requests, communicate with them, or notify them of the entry of the final default judgment. Caribbean further argued that, since new counsel was retained, it has been unable to contact Tieso. In support of its motion to vacate, Caribbean later filed the affidavits of various of its officers and directors asserting that they assumed that Tieso was handling the suit appropriately, and that Tieso did not inform them or any other members of the board that Cruz’s counsel had requested any documents. The trial court granted Caribbean’s motion to vacate and set aside the final default judgment without making any specific findings in its order.

The trial court was eminently correct in setting aside the default final judgment where there was ample evidence to find that Caribbean was not involved in any way in disobeying the court’s discovery orders. In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1994), the Florida Supreme Court listed six criteria in deciding whether and to what extent to sanction the parties for discovery violations. The third one is “whether the client was personally involved in the act of disobedience.” See also King v. Macaleer, 774 So.2d 68, 69 (Fla. 2d DCA 2000) (“Of particular importance to our decision [to reverse an order of dismissal as too harsh a sanction] is the lack of any record indication that Ms. King, the client, was personally involved in the act of disobedience or was even aware that her lawsuit was in danger of being dismissed.”); Walicki v. Waste Mgmt., Inc., 703 So.2d 1095, 1096 (Fla. 2d DCA 1997) (“The record ... does not show that appellant personally contributed to the delayed filing or the protracted course of this litigation. Appellant should not be made to suffer the loss of viable claims due to her attorney’s malfeasance where there is no evidence in the record to indicate that she personally engaged in misconduct. Absent such evidence, it was an abuse of discretion to dismiss the complaint as a sanction based solely on [the attorney’s] noncompliance.”).

We distinguish Herrick v. Southeast Bank, N.A., 512 So.2d 1029 (Fla. 3d DCA 1987), in which we affirmed the denial of a motion to set aside the default and default judgment, because the attorney there never filed any pleadings and failed to appear at a properly noticed motion for summary judgment. Additionally, there was no claim of abandonment by counsel in Herrick. See Yusem v. Butler, 683 So.2d 1170 (Fla. 4th DCA 1996) (reversing the trial court’s order which denied a motion to vacate a default where the defendant’s attorney abandoned his clients without notice and vacated his Florida office). We therefore agree that the trial court did not abuse its discretion when it vacated and set aside the final default judgment.

Affirmed.


author: HAZOURI, J.

text:
    Paul ZIMMERMAN, John W. Uribe, John Livoti, Jonathan D. Nitkin, Angela Daley, Helen Esterline, and Edna Buchanan, on behalf of themselves and all other persons similarly situated, Appellants, v. STATE of Florida, OFFICE OF INSURANCE REGULATION, successor to Department of Insurance, and Citizens Property Insurance Corporation, successor to Florida Windstorm Underwriting Association, Appellees.
    No. 4D06-1516.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Rehearing Denied Jan. 25, 2007.

      John C. Davis of Law Office of John C. Davis, Tallahassee, and C. Wes Pittman of Pittman & Perry, P.A., Panama City, for appellants.
    S. Marc Herskovitz, Legal Services Division, Office of Insurance Regulation, Tallahassee, for appellee Office of Insurance Regulation.
    Howard M. Talenfeld, Joanne C. Springer and Michael Colodny of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for appellee Citizens Property Insurance Corporation.
   HAZOURI, J.

The named Appellants own property in Miami-Dade and Broward counties, insured against windstorm damage by Citizens Property Insurance Company (Citizens), a successor in interest to the Florida Windstorm Underwriting Association (FWUA). In this appeal, Appellants challenge the Office of Insurance Regulation’s (OIR) determination that there was no probable cause showing that FWUA violated the rating law in setting rates effective during the period of July 2000 through June 2002.

FWUA was a non-profit residual insurer, created by the Florida Legislature, to provide insurance for wind damage to property owners who were unable to obtain it otherwise. In 2002, the Florida Legislature created Citizens to act as the sole residual property insurer in Florida. All of FWUA’s policies, assets, and liabilities were transferred to Citizens.

On April 30, 1999, FWUA submitted a rate filing to the Department of Insurance (Department) for review. FWUA sought a 96% rate increase. On July 16,1999, the Department issued a Notice of Intent to disapprove of the rate increase in its entirety. The Department advised FWUA of its right to request a formal hearing pursuant to section 120.57(1), Florida Statutes, or alternatively, to demand arbitration under section 627.062(6), Florida Statutes. On July 29, 1999, FWUA filed its demand for arbitration of the premium rate filing under sections 627.062(6) and 627.351(2)(b)5.b.

At the arbitration, the Department agreed that FWUA was in need of a rate increase, but claimed that FWUA failed to justify the increase through “generally accepted and reasonable actuarial techniques,” as required by section 627.062(2). The arbitration panel issued a decision dated February 3, 2000, which approved a premium rate increase with caps at 20% the first year, 30% the second year, and 40% thereafter until the rate increase was fully implemented. On February 9, 2000, the Department filed an action in Leon County Circuit Court to vacate the arbitration award. The circuit court ruled in favor of FWUA, claiming it had no authority to review the arbitration ruling. The First District affirmed that decision. See State Dep’t of Ins. v. FWUA, 802 So.2d 1153 (Fla. 1st DCA 2001).

Subsequently, FWUA implemented the rate increase as approved by the arbitration panel, effective with renewals and new policies beginning July 1, 2000. The Department filed an Immediate Final Order (IFO) to stop FWUA’s execution of the rate increase. In response, FWUA filed an administrative appeal and emergency motion for immediate relief from the IFO. The First District entered an order staying the Department’s action and the Department withdrew the IFO on April 10, 2001.

On September 5, 2001, the Department issued an Order to Show Cause against FWUA for implementing the new rate increases before judicial review proceedings concluded, claiming that FWUA’s action violated section 627.062. Ultimately, the Department and FWUA agreed to dismiss all pending administrative matters when new statutory guidelines rendered the issue moot. The new statutory guidelines, implemented in 2002, amended section 627.351 and approved the current rates as a base, such that FWUA’s rates for the period July 1, 2002, to June 30, 2003, were:

[F]or personal lines residential wind-only policies issued or renewed between July 1, 2002, and June 30, 2003, the maximum premium increase must be no greater than 10 percent of the Florida Windstorm Underwriting Association premium for that policy in effect on June 30, 2002....

See § 627.351(6)(d)3., Fla. Stat. (2002).

Prior to the Department and FWUA’s agreement to dismiss all pending administrative matters, Appellants had filed a statewide class action on January 2, 2001, against FWUA, the Department, and the State Treasurer, in the Leon County Circuit Court, challenging the validity of these rate increases, demanding insurance premium refunds, and seeking declaratory and injunctive relief. On June 14, 2002, the Leon County Circuit Court granted a summary judgment and declaration in favor of the defendants (FWUA, the Department, and State Treasurer). Appellants appealed to the First District. The First District held:

We affirm the trial court’s refusal to order refunds and denial of injunctive relief, but reverse the judgment and declaration insofar as it declares that ‘the arbitration resulted in Department approval as a matter of law; and vacate the judgment and declaration insofar as it adjudicates questions that we do not reach.

Zimmerman v. FWUA, 873 So.2d 411, 412 (Fla. 1st DCA 2004). The First District found it unnecessary to reach Appellants’ arguments that: (1) the rate increase was invalid because no public hearing was held on the proposed increase pursuant to section 627.0629(7), Florida Statutes, and Rule 4-166.051, Florida Administrative Code, and (2) that statutes allowing arbitration of proposed rate increases were unconstitutional. Zimmerman, 873 So.2d at 413-14.

Following the First District’s decision, Appellants submitted a written request to the Department on June 9, 2004, seeking refunds of excessive charges resulting from FWUA’s use of the disputed rates. Prior to a response from the Department, Appellants filed another proposed class action complaint in Broward County Circuit Court. This complaint named Citizens as the defendant, challenged the rate increases and sought class certification of a purported class limited to policyholders in Palm Beach, Broward, Dade, and Monroe counties. The Broward County Circuit Court granted Citizens’s motion to dismiss for lack of jurisdiction, advising Appellants to exhaust administrative remedies with the Department.

Then, on June 9, 2005, Appellants petitioned OIR for administrative relief from allegedly “invalid premium rate increases that Florida’s residual windstorm insurer (Florida Windstorm Underwriting Association, referred to as “FWUA”) charged residential policyholders each year in advance during the period July 2000 through June 2002.” Appellants sought restitution of the base rate premium charges exceeding the 1999 preexisting base rates. OIR responded by letter on June 24, 2005, advising Appellants that they must comply with section 627.371(1), Florida Statutes, by making a “written request of the insurer or rating organization to review the manner in which the rate, plan, system, or rule has been applied with respect to insurance afforded her or him.” Appellants made such a written request to Citizens on July 1, 2005. Citizens acknowledged receipt of Appellants’ request on July 29, 2005. On October 7, 2005, Appellants contacted OIR, alleging that Citizens failed to meet the thirty-day deadline to grant the request, after which the requesting party may treat the request as rejected. See § 627.371(1), Fla. Stat. (2005).

In October 2005, Appellants moved in Leon County Circuit Court for an order directing OIR to rule on its administrative petition. OIR responded and moved for dismissal of Appellants’ motion based on lack of subject matter jurisdiction for failure to exhaust administrative remedies and no justiciable controversy. Citizens also filed a suggestion of lack of jurisdiction and objection to Appellants’ motion. On January 6, 2006, the Leon County Circuit Court denied Appellants’ motion for an order directing OIR to rule on their administrative petition, concluding that it lacked jurisdiction to order OIR to rule under the current Administrative Procedure Act. On February 6, 2006, Appellants petitioned the First District to:

complete the determination of this case, by directing the Circuit Court to resume jurisdiction over the remaining issues and issue a final judgment subject to review; or directing the Circuit Court Clerk to return the record to this Court, so it can complete resolution of the appellate issues; and to grant other relief as be appropriate.

The First District denied Appellants’ petition without opinion. On March 17, 2006, OIR issued a letter to Appellants advising that:

[Ajfter a thorough review of the facts and circumstances set forth in the Petition for Administrative Relief, we do not believe that probable cause exists showing any violation of the Rating Law on the part of Citizens Property Insurance Company, or its predecessor the Florida Windstorm Underwriting Association. Thus, we cannot proceed as provided by Section 627.371(2), Florida Statutes. Based on the foregoing, we are closing our file without further investigation or action.

Appellants assert two main arguments in this appeal from OIR’s finding of no probable cause. First, they argue that the July 1, 2000 rate increase was invalid because a public hearing was not held on FWUA’s rate filing, as provided by section 627.0629(7), Florida Statutes (1999), and Rule 4-166.051(3), Florida Administrative Code (1999). Second, Appellants claim the rate increase was invalid because private arbitration to set FWUA’s rates was unconstitutional.

The doctrine of collateral estop-pel bars our consideration of Appellants’ claims. In GLA & Associates, Inc. v. City of Boca Raton, 855 So.2d 278 (Fla. 4th DCA 2003), this court recognized that collateral estoppel,

‘[Pjrevents identical parties from relit-igating the same issues that have already been decided. The essential elements of the doctrine are that the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction.’

Id. at 281 (quoting Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla.1995) (citing Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977))). “Collateral estoppel has traditionally operated to preclude litigants from relitigating the same issue not only in the same, but as well in a different forum.” Mobil Oil Corp., 354 So.2d at 375 (citing U.S. Gypsum Co. v. Columbia Cas. Co., 124 Fla. 633, 169 So. 532 (1936)). Collateral estoppel may apply on appeal to issues litigated in a prior appeal. See Friends of the Everglades, Inc. v. Zoning Bd., Monroe County, 478 So.2d 1126, 1127-28 (Fla. 1st DCA 1985) (concluding that present appeals from order of commission were barred by collateral estoppel in light of prior appeal involving related proceeding which raised same issue and decided issue adversely to the appellant).

There is no dispute that the prior litigation leading to the First District’s opinion in Zimmerman v. FWUA, 873 So.2d 411 (Fla. 1st DCA 2004), and the instant case, involve the same parties and issues. There, Appellants challenged the validity of the rate setting process, claiming that arbitration was unconstitutional and violated FWUA’s Plan of Operation, and that no public hearing was held as required by statute and FWUA’s rules. Here, Appellants continue to challenge the validity of the rate setting process, arguing again that the arbitration was unconstitutional, and that FWUA failed to hold a public hearing.

Thus, our analysis turns on whether the matter was “ ‘fully litigated and determined in a contest which result[ed] in a final decision of a court of competent jurisdiction.’ ” See GLA & Assocs., Inc., 855 So.2d at 281 (citations omitted).

In Zimmerman, the First District held:
We affirm the trial court’s refusal to order refunds and denial of injunctive relief, but reverse the judgment and declaration insofar as it declares that ‘the arbitration resulted in Department approval as a matter of law5; and vacate the judgment and declaration insofar as it adjudicates questions that we do not reach.

873 So.2d at 412. The court concluded that FWUA’s Plan of Operation dictated that insurance rate increases require Department approval, and “the Department has never given its approval of the rate hike [at issue], and that FWUA’s resort to arbitration as a means of raising rates was a ‘material error ... made by the insurer.’ ” Zimmerman, 873 So.2d at 413-14 (citing § 627.062(2)(g), Fla. Stat. (2003)). Because it found that the rates set at arbitration needed final approval from the Department, the court deemed it unnecessary to address Appellants’ other theories; namely, that arbitration was unconstitutional and a public hearing was required. Zimmerman, 873 So.2d at 414.

Although the First District reversed the trial court’s judgment and declaration insofar as it declared that “ ‘the arbitration resulted in Department approval as a matter of law,’ ” it concluded that Appellants must seek relief, in the form of a credit or a refund, from the Department itself. The court noted that “the Department of Insurance, not the circuit court, has responsibility for reviewing insurance rates and rate increases and determining whether ‘a rate or rate change is excessive, ... or unfairly discriminatory.’ ” Id. (citing § 627.062(2), Fla. Stat. (2003)). Thus, if the Department determined that the rates were not excessive or unfairly discriminatory, then Appellants had no further recourse.

Following the First District’s decision, Appellants petitioned OIR for administrative relief from the allegedly invalid rate increases, and sought restitution. OIR’s denial of Appellants’ request for restitution undoubtedly indicated that OIR determined that the rates were not excessive or unfairly discriminatory. However, in the instant appeal, Appellants do not challenge the rates as excessive or unfairly discriminatory. Rather, they seek to revive the two arguments the First District determined were unnecessary to consider because it was reversing the trial court’s determination that the arbitration resulted in approval by the Department as a matter of law.

Thus, Zimmerman constituted a final decision on the fully litigated question of whether the rate-setting process was valid. The First District’s determination that it was unnecessary to reach the two arguments Appellants revive here does not alter this conclusion, as Zimmerman represented a final adjudication and disposal of the overriding, dispositive issue: the validity of the rate-setting process. See Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88, 90 (Fla. 1st DCA 1981) (suggesting that a final adjudication of parties’ rights, and a final disposal of a case, provide the foundation for a collateral estoppel claim). Moreover, “[t]his case falls squarely within the purpose of the doctrine of issue preclusion [i.e., “collateral estoppel”]: ‘preventing] repetitious litigation of what is essentially the same dispute.’” M.C.G. v. Hillsborough County Sch. Bd., 927 So.2d 224, 227 (Fla. 2d DCA 2006) (citing Restatement (Second) of Judgments § 27, cmt. c.).

In some cases, collateral estoppel does not apply where the previous court declined to rule upon the merits of a particular issue. See Nissim Hadjes, Inc. v. Hasner, 408 So.2d 819 (Fla. 3d DCA 1982); Buckley Towers Condo., Inc. v. Buchwald, 374 So.2d 550 (Fla. 3d DCA 1979). However, the instant case is distinguishable.

In Nissim Hadjes, the Third District concluded that “where a court expressly declines to consider or rule upon the merits of a motion, it has adjudicated nothing which would prevent subsequent litigation of the matters raised in the motion.” 408 So.2d at 820 (citing Rountree v. Rountree, 72 So.2d 794 (Fla.1954)). However, the prior litigation at issue in Nissim Hadjes, involved a motion to set aside a satisfaction of judgment, the merits of which were never decided by the circuit court, which denied the motion without prejudice to the plaintiff to pursue other remedies. 408 So.2d at 820. Therefore, the case was never finally disposed of, unlike what occurred in the instant case.

Similarly, in Buckley Towers, the Third District acknowledged that, in a previous appeal involving the same parties, it refused to consider an issue that was raised for the first time at oral argument. The court determined that its refusal to consider the issue did not bar a subsequent action raising that issue, under the collateral estoppel doctrine. Buckley Towers, 374 So.2d at 550-51. However, in the instant case, the First District did not refuse to consider the Appellants’ remaining arguments in support of the overriding issue of whether the rate-setting process was valid. Rather, the court found it unnecessary to reach those arguments, as it was reversing the trial court’s ruling that the arbitration constituted final rate approval by the Department.

Even if we were to reach the merits, we are without the authority to order credits or refunds. As explained in Zim merman, only OIR has the authority to do so, not the courts. 873 So.2d at 415-16.

Accordingly, because Appellants’ claims are barred by collateral estoppel, we affirm.

Affirmed.

GROSS, J. and MAASS, ELIZABETH T., Associate Judge, concur.

      . The Florida Legislature reorganized the Department in 2003. OIR assumed the Department’s previous functions at that time. See Ch.2003-261, § 69, at 42, Laws of Fla.

      . Appellants brought this petition on behalf of themselves and “on behalf of approximately 200,000 similarly situated residential windstorm policyholders in Broward, Miami-Dade, Monroe and Palm Beach Counties.”

      . This rule has since been recodified as Rule 690-166.051.