author: ORFINGER, J.

text:
    Paul ANDERSON, Appellant, v. Curtis B. WAGNER, DPM, etc., et al., Appellees.
    No. 5D05-3220.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2006.

      Paul Anderson, Orlando, Pro Se.
    Benjamin W. Newman, of Bobo, Ciotoli, Bocchino, Newman & Corsini, P. A., Orlando, for Appellee, Orlando Surgery Center.
    Rafael E. Martinez and Richard L. Barry, of McEwan, Martinez & Dukes, P.A., Orlando, for Appellee, Stephen W. Thompson, M.D.
    Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellees, Curtis Wagner, D.P.M. and Foot and Ankle Associates of Florida.
   ORFINGER, J.

Paul Anderson appeals the trial court’s orders dismissing with prejudice his medical malpractice claims against Curtis B. Wagner, D.P.M., Foot & Ankle Associates of Florida (“Associates”), Stephen W. Thompson, M.D., and the Orlando Surgery Center (“OSC”) (collectively, “Appellees”). For the reasons explained hereafter, we affirm the orders of dismissal.

Mr. Anderson’s medical malpractice claims were based on two foot surgeries performed by Dr. Wagner, who practices as a member of Associates, in June and July 2003. Unhappy with the surgical results, and believing that Dr. Wagner had performed unnecessary or unauthorized procedures, Mr. Anderson served Dr. Wagner a notice of intent to initiate medical malpractice litigation. The notice of intent did not include a corroborating affidavit from an expert witness. However, Mr. Anderson asserted in the notice of intent that Dr. Wagner had failed to provide copies of his entire medical record as requested, thereby waiving his right to such corroboration.

Both sides agree that Mr. Anderson went to Dr. Wagner’s office on August 27, 2003, to request his medical records, and that Dr. Wagner’s staff did not provide him with his records at that time. According to Mr. Anderson, he completed a medical release form at Dr. Wagner’s office to obtain his records, but Dr. Wagner’s office manager stopped the receptionist from giving Mr. Anderson his files. That same day, Mr. Anderson wrote a letter to Dr. Wagner explaining what had occurred at his office and requesting a copy of his complete file, including “authorization forms, notes, phone consultations, office visits and all other matter.” Mr. Anderson claims that Dr. Wagner responded to his request on August 29, 2003, but did not include Mr. Anderson’s medical records with his reply. However, the record before us contains no evidence or affidavit substantiating Dr. Wagner’s refusal to furnish the records in a timely manner.

Dr. Wagner’s account of the events is much different. Notably, in his affidavit, Dr. Wagner testified that his office staff mailed Mr. Anderson a copy of his medical chart within ten days of his request. Dr. Wagner attached copies of two certified mail return receipt cards signed by Mr. Anderson on September 5 and 6, 2003, respectively, as evidence of his assertion.

Mr. Anderson filed a medical malpractice complaint against Dr. Wagner and Associates shortly thereafter. Following that, Mr. Anderson mailed a letter to OSC, notifying OSC of his claim against Dr. Wagner and alluding to the fact that OSC, as the site of the surgeries, and Dr. Thompson, as the anesthesiologist for the surgeries, were also liable for Dr. Wagner’s alleged malpractice. Mr. Anderson subsequently amended the complaint to include Dr. Thompson and OSC as parties. Mr. Anderson’s complaint alleged that he suffered economic and non-economic damages as a result of the medical negligence allegedly committed by Appellees during his two foot surgeries and sought compensatory and punitive damages, totaling $11,592,708.88.

Dr. Wagner and Associates moved to dismiss Mr. Anderson’s amended medical malpractice complaint. The motion was premised on Mr. Anderson’s failure to submit a verified written medical expert opinion as part of his notice of intent, as required by section 766.203(2), Florida Statutes (2003). Dr. Wagner and Associates also attempted to dispel Mr. Anderson’s assertion that no corroborating evidence was necessary under section 766.204 due to Dr. Wagner allegedly failing to furnish Mr. Anderson’s medical records within ten days of his August 27, 2003, request. Instead, they asserted in a sworn affidavit that Dr. Wagner forwarded Mr. Anderson a complete copy of his medical chart pursuant to his request on August 29, 2003, well within the ten-day time period.

OSC and Dr. Thompson also filed motions to dismiss Mr. Anderson’s complaint, contending that Mr. Anderson failed to provide a corroborating affidavit for his complaint, as required by section 766.203(2). Dr. Thompson also claimed that he never received actual or constructive notice of the claim against him, so that he was unable to participate in the presuit process.

A hearing on Appellees’ motions to dismiss was held before the Honorable Rom W. Powell, Senior Judge. At the hearing, Mr. Anderson argued that Appellees’ motions to dismiss were improper under Florida Rule of Civil Procedure 1.420 because he had not yet presented evidence in support of his claims. Mr. Anderson elected to “respectfully abstain” from the hearing, lest he violate the law by participating in what he claimed was an illegal proceeding. Mr. Anderson further stated that he would not participate in the hearing because his rights to a speedy hearing and equal protection under the law were being denied. Mr. Anderson also objected to the fact that Judge Powell, not Judge Cohen, was presiding over the hearing, contrary to what had been stated in the notice of hearing.

Appellees argued that Mr. Anderson had failed to comply with the provisions of Florida’s Medical Malpractice Act. Specifically, they demonstrated that Mr. Anderson did not submit an expert affidavit corroborating that reasonable grounds existed to support the claims of medical negligence as required by section 766.203. OSC and Dr. Thompson also claimed that they never received any notice of intent from Mr. Anderson directed to their alleged negligence. Rather, OSC contended that the letter it received from Mr. Anderson on March 16, 2005, simply informed OSC of Mr. Anderson’s claim against Dr. Wagner.

Following the hearing, Judge Powell entered an order dismissing Mr. Anderson’s claims against Dr. Wagner and Associates with prejudice on August 15, 2005. A similar order was issued on August 30, 2005, dismissing Mr. Anderson’s claims against Dr. Thompson and OSC with prejudice. The final orders stated, in pertinent part:

The Court finds that as of the date of this hearing, plaintiff has failed to submit a verified written medical opinion as required by section 766.203(2), Florida Statutes. The statute of limitations in medical negligence actions, section 95.11(4)(b) is two (2) years. The statute ran out on July 23, 2005. The failure to submit the required verified written medical opinion within the two year limitations period is fatal to plaintiffs case. See Maguire v. Nichols, 712 So.2d 784 (Fla. 2d DCA 1998).

This appeal followed.

Mr. Anderson claims that the trial court erred in dismissing his medical malpractice complaint against Appellees. Mr. Anderson contends that the trial court: (1) improperly relied on section 766.203 in dismissing his case; (2) erred in dismissing his case in light of alleged fraud; and (3) denied his rights to speedy trial, due process, and equal protection by failing to grant his motion for evidentiary hearing. We review the trial court’s orders on Appellees’ motions to dismiss de novo. Huet v. Mike Shad Ford, Inc., 915 So.2d 723, 725 (Fla. 5th DCA 2005) (citing Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204 (Fla. 5th DCA 2003); Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175 (Fla. 5th DCA 2001)).

Appellees’ motions to dismiss were based in part on the contention that Mr. Anderson failed to file a verified written expert opinion along with his notice of intent to corroborate that there are reasonable grounds upon which Mr. Anderson filed his complaint. Section 766.203(2), Florida Statutes (2003), provides:

PRESUIT INVESTIGATION BY CLAIMANT. — Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

(Emphasis added). Generally, the corroborating expert medical opinion is provided prior to or contemporaneous with the claimant’s notice of intent. See Archer v. Maddux, 645 So.2d 544, 547 (Fla. 1st DCA 1994). Here, Mr. Anderson’s notice did not include any corroborating medical expert opinion. “[I]f a complaint is filed without a corroborating expert opinion, the defendant’s proper remedy is a motion to dismiss.” Maddux, 645 So.2d at 547. However, a party’s failure to provide a medical expert opinion along with its notice of intent does not require dismissal of the claim so long as corroboration is provided before the statute of limitations has run. See generally Yocom v. Wuesthoff Health Sys., Inc., 880 So.2d 787, 790 (Fla. 5th DCA 2004); Gargano v. Costarella, 618 So.2d 786, 787 (Fla. 5th DCA 1993). In this case, though, Mr. Anderson never provided medical expert opinion supporting his claim, and the trial court dismissed his complaint with prejudice after the statute of limitations had expired.

Mr. Anderson argues that under the terms of section 766.204(2), Florida Statutes (2003), he was not required to provide Dr. Wagner with any medical expert corroboration of his claim. Section 766.204(2) states that the “failure to provide copies of medical records within 10 days ‘shall waive the requirement of written medical corroboration’ by the party requesting the copies.” Medina v. Pub. Health Trust, 743 So.2d 541, 542 (Fla. 3d DCA 1999). Mr. Anderson asserts that Dr. Wagner waived his right to a medical expert opinion by failing to supply him with his medical records within ten business days of his request.

Mr. Anderson failed to properly preserve this issue for appellate review. “For an issue to be preserved for appeal, ... it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Mr. Anderson refused to participate in the hearing on Appellees’ motions to dismiss. Consequently, Mr. Anderson never raised the argument that Dr. Wagner waived his right to medical expert opinion during the hearing or offered any evidence to support that contention. Instead, he claimed that the hearing was illegal because he did not have an opportunity to present evidence prior to Appellees’ filing their motions to dismiss.

Mr. Anderson also argued, as on appeal, that his rights to a speedy hearing, due process, and equal protection were being denied and that Judge Cohen, not Judge Powell, was the only judge authorized to conduct the hearing. Contrary to Mr. Anderson’s assertion, the hearing on the motions to dismiss was not illegal nor did it impair his rights to a speedy hearing, due process, and equal protection. Mr. Anderson has no standing to question Judge Powell’s assignment to the case. “Litigants ... have no right to have any particular judge hear their case.” Rodriguez v. State, 919 So.2d 1252, 1278 (Fla.2005). “Where the court has jurisdiction, it is the court, and not the particular judges thereof, that has jurisdiction over a particular cause, controversy and the parties thereto.... In legal contemplation judges, like litigants, are all equal before the law. Subject only to substantive law relating to disqualification of judges, litigants have no right to have, or not have, any particular judge of a court hear their cause and no due process right to be heard before any assignment or reassignment of a particular case to a particular judge.” Kruckenberg v. Powell, 422 So.2d 994, 995 (Fla. 5th DCA 1982).

Mr. Anderson’s reliance on Florida Rule of Civil Procedure 1.420 in support of his argument that he should have been able to present evidence of his case before Appellees filed their motions to dismiss is likewise misplaced. The section of rule 1.420 that Mr. Anderson cites concerns the right of the non-moving party to present evidence at trial before another party moves to dismiss. Here, Mr. Anderson had an opportunity to present evidence at the hearing on the motions to dismiss, but chose not to. Mr. Anderson’s due process right to be heard was not denied; instead, he voluntarily chose not to participate in the hearing.

Mr. Anderson also mistakenly argues that the right to speedy trial applies to this case. “The constitutional right to a speedy trial in criminal cases has no application to civil proceedings.” Julian v. Lee, 473 So.2d 736, 739 (Fla. 5th DCA 1985); see also Amend. VI, U.S. Const. Since the hearing on Appellees’ motions to dismiss was neither illegal nor denied Mr. Andei sen’s constitutional rights, Mr. Anderson’s decision not to participate in the hearing means that his current complaints were not properly preserved for appellate review.

AFFIRMED.

PALMER, J. and GRIESBAUM, J., Associate Judge, concur.

      . It appears that the Honorable Jay P. Cohen had been identified as the judge who would preside over the hearing in the notices of hearing prepared by Appellees and mailed to Mr. Anderson.

      . Rule 1.420 states, in pertinent part:
      After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted.

      . Even if Mr. Anderson had properly preserved these issues for appellate review, his argument that Dr. Wagner waived the requirement that Mr. Anderson provide a corroborating expert opinion applies only to Dr. Wagner and Associates. The Third District Court has held that a hospital's failure to provide the required expert corroboration cannot be imputed to a co-defendant from whom the claimant never requested medical records. Tapia-Ruano v. Alvarez, 765 So.2d 942, 943-44 (Fla. 3d DCA 2000). Logically, the opposite would also apply. While one party may have waived its right to a medical expert opinion, this waiver is not imputed to other codefendants. Here, Mr. Anderson clearly requested medical records from Dr. Wagner. However, Mr. Anderson never claimed that he requested medical records from any of the other Appellees. Therefore, even if Dr. Wagner waived his right to an expert medical opinion for failing to comply with Mr. Anderson’s request for medical records, the other appellees did not.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VANGUARD FIRE AND CASUALTY COMPANY, Petitioner, v. Roy H. GOLMON and Kerri Golmon, Respondents.
    No. 1D05-5503.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.

      Robert A. Craven of the Law Office of Robert A. Craven, St. Petersburg, for Petitioner.
    Ross L. Bilbrey of the Bilbrey Law Firm, P.A., Pensacola and Stephen D. Gill of New World Lawyers, P.A., Pensacola, for Respondents.
   PER CURIAM.

Vanguard Fire and Casualty Company seeks certiorari review of the trial court’s denial of its motion to dismiss various counts in the suit below. We conclude that the trial court departed from the essential requirements of the law in forcing Vanguard to defend against the statutory claims before the issue of coverage was fully resolved. Because this error will result in irreparable harm to Vanguard if not remedied on certiorari, we grant the petition.

When Hurricane Ivan hit the Gulf Coast of Florida in September of 2004, the respondents, Roy and Kerri Golmon, suffered a total loss to their residential property in Gulf Breeze. After Vanguard refused to pay the full amount of the homeowners’ insurance policy it had issued, the Golmons filed suit for breach of contract. In the same complaint, the Gol-mons also stated four statutory claims for bad faith failure to settle and unfair claims practices, pursuant to sections 624.155(1)(a)(1) and (b), 626.9541(1)(i)(2), and (3), and 624.155(3)(a), Florida Statutes (2005). Vanguard took the position that it was not hable for the full amount of the policy, because the loss to the Golmons’ property was caused by both wind damage, which was covered under the policy, and flood damage, which was not covered.

Vanguard moved to dismiss the four statutory counts on the ground that the extent of insurance coverage had not yet been resolved in the Golmons’ favor in the underlying breach of contract claim. The trial court denied the motion to dismiss, finding that coverage was not in dispute, because counsel for Vanguard had admitted at the hearing that Vanguard was liable for at least some amount to the Golmons. Even if it were necessary to dismiss the statutory bad faith claims, the trial court concluded that the Golmons could still proceed on their bad faith actions, because some of the allegations did not involve the refusal to settle. Finally, it found that there would be no prejudice to Vanguard in having to defend the coverage and bad faith issues simultaneously.

Vanguard then filed the present petition for writ of certiorari seeking review of the order denying the motion to dismiss, as well as a motion in the trial court for partial stay of discovery as to the statutory claims. While the petition was pending in this court, the trial court held a hearing and granted the motion, staying discovery as to the bad faith causes of action until resolution of the petition by this court. The Golmons then filed a motion to dismiss the instant certiorari petition in this Court, arguing that Vanguard’s assertion of irreparable harm was obviated by the stay of discovery on the bad faith claims.

A petitioner seeking certiorari review of an unappealable, nonfinal order must demonstrate both that the trial court departed from the essential requirements of law and that the harm resulting from the erroneous order would be irreparable on plenary appeal. See Belair v. Drew, 770 So.2d 1164 (Fla.2000); State Farm Gen. Ins. Co. v. Grant, 641 So.2d 949 (Fla. 1st DCA 1994); See Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996). Vanguard has met both parts of this test.

In failing to dismiss the statutory causes of action pending resolution of the breach of contract claim, the trial court departed from the essential requirements of law. It is well established that a statutory claim of bad faith failure to settle does not accrue until the underlying action for insurance benefits is resolved in favor of the insured, thus establishing liability on the part of the insurer. See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla.1991). The trial court departed from the essential requirements of law in allowing the Golmons to proceed on their statutory bad faith claims before the extent of coverage was determined in the breach of contract claim.

The trial court erroneously found that coverage was undisputed in the present case. Although Vanguard’s attorney conceded at the hearing that the insurer had some liability under the policy, this did not settle the question of how much coverage was due. The Golmons contend that the full policy limits are due, under Mierzwa v. Florida Windstorm Underwriting Association, 877 So.2d 774 (Fla. 4th DCA 2004), in which the Fourth District interpreted Florida’s Valued Policy Law, section 627.702, Florida Statutes, to mean that, where an insured suffers a total loss due to both covered and non-covered risks, the insurer must pay the full amount of the homeowner’s insurance policy limits. But even if the attorney’s unsworn concession establishes that Vanguard is liable to some degree for the hurricane damage, the extent of the coverage has yet to be determined, and Mierzwa is not fully determinative of the question.

Both the existence of liability and the extent of damages are elements of a statutory cause of action for bad faith that must be determined before a statutory cause of action for bad faith will lie. See Vest v. Travelers Ins. Co., 753 So.2d 1270 (Fla.2000); Brookins v. Goodson, 640 So.2d 110 (Fla. 4th DCA 1994), rev. denied, 648 So.2d 724 (Fla.1994), disapproved on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 62 (Fla.1995); Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla.1994), receded from on other grounds, Laforet, 658 So.2d at 63. Without a final resolution of the actual amount of coverage, the Golmons have not yet established a basis for a bad faith suit.

The Golmons have brought a breach of contract case to determine coverage simultaneously with their bad faith claims. Unlike in the Blanchard line of cases, the extent of coverage is the very issue yet to be determined in the breach of contract count now pending below. The partial payment of the policy limits does not settle this question under these circumstances. See GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122 (Fla. 2nd DCA 2006) (holding that insured’s breach of contract suit against insurer raised a coverage issue, which was not settled by insurer’s payment of only part of what insured was claiming in breach of contract action).

The force of the Mierzwa opinion is limited in the circumstances presented here, because the Golmons seek not only coverage of their dwelling, but also Other Structures coverage, Ordinance and Law coverage, Personal Property coverage, and Loss of Use coverage. These various coverages are not governed by the Valued Policy Law or the Mierzwa decision. See Citizens Prop. Ins. Corp. v. Ceballo, 934 So.2d 536 (Fla. 3rd DCA 2006). Therefore, even if Vanguard’s admission of limited liability under the Valued Policy Law means that it is liable for the full policy limits as to the dwelling itself under the Mierzwa decision, the extent of loss or damage under the remaining provisions remains unsettled. Because they have not yet secured a final determination that Vanguard paid less than was due under the policy, they have not yet established that a bad faith or unfair claims settlement action against Vanguard lies. For this reason, the trial court should not have allowed the statutory claims to proceed. See Hoy, 927 So.2d 122; Clough v. Gov’t Employees Ins. Co., 636 So.2d 127, 129 (Fla. 5th DCA 1994), rev. denied, 645 So.2d 452 (Fla.1994); Michigan Millers Mut. Ins. Co. v. Bourke, 581 So.2d 1368, 1370 (Fla. 2nd DCA 1991). All of the Golmons’ claims in Counts 2 through 5 fall within the Blanchard rule.

Vanguard will suffer irreparable harm if it is forced to defend against both the breach of contract and bad faith claims simultaneously. See Hartford Ins. Co. v. Mainstream Constr. Group, Inc., 864 So.2d 1270, 1272-73 (Fla. 5th DCA 2004); General Star Indem. Co. v. Anheuser- Busch Cos., Inc., 741 So.2d 1259 (Fla. 5th DCA 1999); American Bankers Ins. Co. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998); State Farm Fire & Cas. Co. v. Martin, 673 So.2d 518 (Fla. 5th DCA 1996). This harm includes discovery of Vanguard’s accident files as pertains to more than twenty other claims unrelated to the Golmons’ claim. See Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1123 (Fla.2005); US Fire Ins. Co. v. Clearwater Oaks Bank, 421 So.2d 783, 784 (Fla. 2d DCA 1982). The trial court’s order partially staying discovery on the bad faith claims does not alleviate this harm, because it expressly stays discovery only until this Court disposes of the instant petition.

We therefore grant the petition. Although we take no legal action other than to quash the order under review, we point out that the trial court has authority to abate the statutory claims, rather than to dismiss them, if it appears to the court that abatement would be in the interest of judicial economy. See Ruiz, 899 So.2d at 1130; O’Rourke v. Provident Life and Accident Ins. Co., 48 F.Supp.2d 1383, 1384-85 (S.D.Fla.1999); see also Lexington Ins. Co. v. Royal Ins. Co. of Amer., 886 F.Supp. 837 (N.D.Fla.1995).

Petition granted.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


author: CASANUEVA, Judge.

text:
    David MEDINIS and Coastal A.R.T., Inc., Appellants, v. Lawrence SWAN, as Personal Representative of the Estate of Jane Pilz, deceased, Appellee.
    No. 2D05-1640.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.
    Rehearing Denied May 22, 2007.

      Robert L. Donald of Law Offices of Sherman & Donald, Fort Myers, for Appellants.
    Michelle Erin Berthiaume of Berthi-aume Law Firm, P.L., Fort Myers, for Appellee.
   CASANUEVA, Judge.

After a joint business venture failed, Jane Pilz sued David Medinis, Coastal A.R.T., Inc., and Steve Russell. Mr. Russell settled the claim with Ms. Pilz before trial; after a trial, the jury rendered a verdict in favor of Ms. Pilz and against Mr. Medinis on all counts. We affirm in part, reverse in part, and remand for a new trial.

Ms. Pilz’s second amended complaint asserted six counts against Mr. Medinis and sought damages for his alleged failure to pay certain promissory notes (two counts), breach of an express contract, breach of the duty of good faith, promissory estop-pel, and conversion. In accord with the jury’s verdict, the trial court entered a judgment for Ms. Pilz on all counts. We find reversible error on five of these six counts.

The analysis on the claims for the two promissory notes is identical. The verdict form inquired whether Ms. Pilz proved her claim against Mr. Medinis for nonpayment of each note, and the jury answered each question in the affirmative. However, the verdict form failed to provide for a jury finding on the amount of damages accruing from the failure to pay the notes. Nevertheless, the trial judge set the amount of damages in the final judgment. This was error.

In a jury trial, it is the duty of the jury, not the judge, to make a factual finding on damages. The trial court had no authority to make a specific award in this case. See Cory v. Greyhound Lines, Inc., 257 So.2d 36, 41 (Fla.1971) (holding that the court is limited in amending a verdict after discharge of the jury and cannot invade the province of the jury). We reverse for a new trial on both liability and damages issues.

On the breach of contract count, the jury was asked to and did award damages of $7000. Because there is sufficient, competent evidence to sustain this award, we affirm this part of the final judgment without further discussion.

Ms. Pilz asserted claims for breach of the duty of good faith and fair dealing based upon an implied duty that arose from the parties’ express contract. Because another count alleges a specific breach of this contract, on this record we are unable to state definitively whether this count states a separate and distinct cause of action. As this court discussed previously in Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 792 (Fla. 2d DCA 2005), “[bjecause the implied covenant is not a stated contractual term, to operate it attaches to the performance of a specific or express contractual provision.” Unless the plaintiff alleges that an express term of a contract was violated, a breach of the implied covenant of good faith and fair dealing cannot exist. Id.

Even if the plaintiff did state a cause of action, the jury was not given an opportunity to set the amount of damages on the verdict form. Thus, this portion of the final judgment suffers from the same infirmity as the awards for the promissory notes, and we must strike it also. On remand, the court must ascertain whether this count states a cause of action.

Finally, the trial judge awarded $18,000 to Ms. Pilz for conversion, which was the amount the jury set as damages on the verdict form. Ms. Pilz claimed that Mr. Medinis converted her stock in the corporation, the same stock that she was selling to him as part of the transfer of the business. The evidence suggests, however, that Ms. Pilz never transferred the stock to Mr. Medinis. Therefore, because he never had possession of the stock, it was legally impossible for him to convert it. See Estate of Villanueva ex rel. Villanueva v. Youngblood, 927 So.2d 955, 959 (Fla. 2d DCA 2006) (stating that conversion occurs when one asserts dominion over an item which is inconsistent with the owner’s right and deprives the owner of possession). Moreover, Ms. Pilz’s theory of the case was that she sold her company, Coastal A.R.T., Inc., to Mr. Medinis, that this stock was the consideration she gave under the contract and the promissory notes they executed later, and that she has not received her part of the bargain. Thus, by claiming conversion of this very same stock, she was seeking mutually exclusive remedies. Cf. Pathway Fin. v. Miami Int’l Realty Co., 588 So.2d 1000, 1004 (Fla. 3d DCA 1991) (“Where the parties are engaged in a contractual dispute over the amount owed and no fraud is involved[,] no civil theft or conversion can occur.”). Because it was not possible, as a matter of law, for Mr. Medinis to convert the stock, the trial court should not have submitted this count to the jury.

We reverse the final judgment in favor of Ms. Pilz except for the award of $7000 for breach of the express contract, which we affirm. We remand for a new trial and other proceedings consistent with this opinion.

STRINGER and LaROSE, JJ., Concur.

      . Coastal A.R.T., Inc. did not participate in any meaningful way at trial and was not mentioned on the verdict form. The trial court ultimately entered a final judgment in its favor. Mr. Medinis raises no issue on appeal regarding Coastal A.R.T., Inc. or his unsuccessful counterclaims against Ms. Pilz.


author: STRINGER, Judge.

text:
    HILLTOPPER HOLDING CORPORATION and Centennial Healthcare Corporation, Appellants, v. ESTATE OF Cheryl CUTCHIN, by and through Denae ENGLE, Personal Representative, Appellee.
    No. 2D06-3800.
    District Court of Appeal of Florida, Second District.
    March 9, 2007.
    Rehearing Denied May 22, 2007.

      Scott A. Cole and Hans Peter Haahr of Cole Scott & Kissane, P.A., Miami, for Appellants.
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa; and James R. Freeman of Wilkes & McHugh, P.A., Tampa, for Appellee.
   STRINGER, Judge.

Hilltopper Holding Corporation and Centennial Healthcare Corporation appeal from the trial court’s order denying their motion to dismiss the complaint filed against them by the Estate of Cheryl Cutchin for lack of personal jurisdiction. Because the Estate failed to meet its burden to establish personal jurisdiction over these defendants, we reverse and remand for dismissal of the complaint against these two defendants.

The Estate sued Hilltopper, Centennial, and numerous other defendants after Cheryl Cutchin died following a stay in a nursing home. The complaint contained the following jurisdictional allegations against Hilltopper and Centennial:

4. Defendant, HILLTOPPER HOLDING CORPORATION (hereinafter “HILLTOPPER”), is a Delaware corporation, which is doing business in Florida.
6. Defendant, CENTENNIAL HEALTHCARE CORPORATION (hereinafter “CENTENNIAL”), is a Georgia corporation, which is doing business in Florida.
15. Defendant, HILLTOPPER, is an entity that operated the nursing home during CHERYL CUTCHIN’S residency and as such owed a duty to CHERYL CUTCHIN to exercise reasonable care in its operation of the nursing home according to § 400.023(3), Florida Statutes.
16. Defendant, CENTENNIAL, is an entity that operated the nursing home during CHERYL CUTCHIN’S residency and as such owed a duty to CHERYL CUTCHIN to exercise reasonable care in its operation of the nursing home according to § 400.023(3), Florida Statutes.

The complaint further alleged that Hilltop-per and Centennial tortiously breached these alleged duties by failing to “properly hire, retain and supervise nurses” and by failing to ensure that the nursing staff “exercised care consistent with the prevailing professional standard of care.”

In response to the complaint, both Hill-topper and Centennial filed motions to dismiss for lack of personal jurisdiction, each of which was accompanied by an affidavit. Each affidavit was signed by Tracey Cosby, who asserted that she was the corporate representative for each corporation. Each affidavit alleged that neither Hilltop-per nor Centennial conducted business in Florida, neither corporation had agents appointed for service of process in Florida, neither corporation was licensed to do business in Florida, neither corporation maintained offices or employees in Florida, and neither corporation advertised in Florida. Further, each affidavit alleged that neither Hilltopper nor Centennial owned, managed, or operated the nursing home at issue, had any management responsibilities at the nursing home at issue, or had employees through which it provided patient care at the nursing home at issue.

The Estate did not file any countervailing affidavits. Instead, relying on portions of Tracey Cosby’s deposition testimony, the Estate argued that the affidavits filed by Hilltopper and Centennial were legally insufficient to refute the jurisdictional allegations of the complaint. The trial court agreed and denied the motions to dismiss. Hilltopper and Centennial then brought this nonfinal appeal.

It is well established that determining the propriety of a plaintiffs attempt to exercise long-arm jurisdiction over a foreign defendant is a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989); Kin Yong Lung Indus. Co. v. Temple, 816 So.2d 663, 666 (Fla. 2d DCA 2002). The first inquiry is whether the plaintiff has alleged sufficient jurisdictional facts to subject the defendant to long-arm jurisdiction under section 48.198, Florida Statutes. Venetian Salami, 554 So.2d at 502; Kin Yong Lung Indus. Co., 816 So.2d at 666; see also Doe v. Thompson, 620 So.2d 1004, 1004 (Fla.1993). If the plaintiff has done so, the second inquiry is whether the defendant possesses sufficient minimum contacts with Florida to satisfy constitutional due process requirements. Venetian Salami 554 So.2d at 500; Kin Yong Lung Indus. Co., 816 So.2d at 666. This requires the court to determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida’s courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1141 (Fla. 2d DCA 2006).

Venetian Salami also sets forth the procedures for the parties and the trial court to use when a defendant argues that the court lacks personal jurisdiction over the defendant. Initially, the plaintiff bears the burden of pleading a basis for jurisdiction under section 48.193. Venetian Salami, 554 So.2d at 502. The plaintiff may do so either by tracking the language of section 48.193 without pleading supporting facts, id., or by alleging specific facts that demonstrate that the defendant’s actions fit within one or more subsections of section 48.193. Washington Capital Corp. v. Milandco, Ltd., 695 So.2d 838, 841 (Fla. 4th DCA 1997).

If the plaintiff meets this pleading requirement, the burden shifts to the defendant to file a legally sufficient affidavit or other sworn proof that contests the essential jurisdictional facts of the plaintiffs complaint. Venetian Salami 554 So.2d at 502; Kin Yong Lung Indus. Co., 816 So.2d at 666. To be legally sufficient, the defendant’s affidavit must contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction. Acquadro v. Bergeron, 851 So.2d 665, 672 (Fla.2003); Capital One Fin. Corp. v. Miller, 709 So.2d 639, 640 (Fla. 2d DCA 1998) (noting that the facts in the defendant’s sworn affidavit are to be taken as true in determining whether the burden shifts to the plaintiff to prove jurisdiction). At this stage, the defendant’s affidavit must contest only the actual jurisdictional facts— not the ultimate allegations of the complaint. Acquadro, 851 So.2d at 669 (noting that the purpose of the evidentiary hearing on jurisdiction was not to resolve whether the defendants committed tortious acts in the state but only whether they committed acts that would subject them to jurisdiction if proven to be true). If the defendant does not fully dispute the jurisdictional facts, the motion must be denied. See Acquadro, 851 So.2d 665 (holding that when the defendant’s affidavit admitted making the statements at issue but simply denied that they were tortious, the affidavit did not contest the basis for jurisdiction and therefore the motion to dismiss was properly denied); Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So.2d 964 (Fla. 3d DCA 2005) (holding that when the defendant’s affidavit admitted that it had possession of the disputed goods but denied that its possession was improper, the affidavit did not contest the basis for jurisdiction and therefore the motion to dismiss should have been denied); XL Vision, LLC. v. Holloway, 856 So.2d 1063 (Fla. 5th DCA 2003) (holding that when the defendant’s affidavit denied that he personally did business in Florida but did not deny that he operated a business in Florida through an alter ego, the affidavit did not fully contest the jurisdictional allegations and the motion to dismiss was properly denied); see also Lampe v. Hoyne, 652 So.2d 424, 426 (Fla. 2d DCA 1995) (noting that a plaintiff is excused from filing an opposing affidavit only when the defendant’s affidavit does not sufficiently refute the jurisdictional allegations).

If the defendant’s affidavit does fully dispute the jurisdictional allegations in the plaintiffs complaint, the burden shifts back to the plaintiff to prove by affidavit or other sworn proof that a basis for long-arm jurisdiction exists. Venetian Salami, 554 So.2d at 502; Kin Yong Lung Indus. Co., 816 So.2d at 666. If the plaintiff fails to come forward with sworn proof to refute the allegations in the defendant’s affidavit and to prove jurisdiction, the defendant’s motion to dismiss must be granted. Venetian Salami, 554 So.2d at 502; Kin Yong Lung Indus. Co., 816 So.2d at 666; Capital One Fin. Corp., 709 So.2d at 640; Lampe, 652 So.2d at 425.

In this case, the jurisdictional allegations in the Estate’s complaint are sufficient to allege long-arm jurisdiction under section 48.193, Florida Statutes (2005). The allegations that Hilltopper and Centennial were doing business in Florida and operating a nursing home in Florida are sufficient to satisfy the requirements of section 48.193(2), which imposes jurisdiction on “[a] defendant who is engaged in substantial and not isolated activity within this state.” In addition, the allegations that Hilltopper and Centennial were operating the nursing home and tortiously injured Cutchin while doing so were sufficient to satisfy the requirements of section 48.193(1)(a), which imposes jurisdiction on a defendant that operates or conducts business in the state, and section 48.193(1)(b), which imposes jurisdiction on a defendant that commits a tortious act within the state.

However, the affidavits filed by Hilltopper and Centennial are sufficient to refute the jurisdictional allegations in the Estate’s complaint. The gravamen of the Estate’s basis for jurisdiction over Hilltop-per and Centennial is that they operated the nursing home at issue and therefore were liable for the negligent patient care given to Cutchin by the nursing home’s employees. Thus, the jurisdictional allegations in the complaint are solely those relating to the operation of the nursing home. In response to these jurisdictional allegations, Hilltopper and Centennial made factual assertions that they did not do business in Florida and that they did not operate the nursing home at issue. Since the only jurisdictional allegation is that Hilltopper and Centennial operated the nursing home, if neither Hilltopper nor Centennial in fact operated the nursing home, there is no basis for long-arm jurisdiction. Therefore, the allegations in the affidavits fully disputed the jurisdictional allegations in the Estate’s complaint and were sufficient to shift the burden back to the Estate to come forward with sworn proof to establish a basis for jurisdiction.

Contrary to the Estate’s assertions, Hill-topper and Centennial did not need to allege in their affidavits that they did not owe a duty to Cutchin under a contract or that they did not commit torts against her. Any such allegations would be legal conclusions rather than factual allegations and would be insufficient to contest jurisdiction. See Acquadro, 851 So.2d at 672 (noting that a denial of making a statement would be a factual assertion but a denial of making a tortious statement was a legal conclusion). Further, Hilltopper and Centennial were not required to contest possible bases for jurisdiction not alleged in the complaint.

Once the burden shifted back to the Estate to establish jurisdiction, it was incumbent on the Estate to come forward with sworn proof of a basis for jurisdiction. However, the Estate failed to do so. The Estate offered no evidence to prove that either Hilltopper or Centennial operated the nursing home at issue. While the Estate now contends that Hilltopper and Centennial were parent corporations of the actual operators of the nursing home, the Estate offered no evidence to show that Hilltopper or Centennial controlled a Florida subsidiary to the extent necessary to establish agency and thus jurisdiction. See Res. Healthcare, 940 So.2d at 1143 n. 1 (noting that while the mere presence of a subsidiary in Florida is insufficient to subject a non-Florida parent to jurisdiction, when the parent exercises sufficient control over the subsidiary, the control may result in an agency relationship that would support jurisdiction). The Estate offered no evidence whatsoever to refute the allegations of the affidavits filed by Hilltopper and Centennial.

The Estate argues on appeal that it offered evidence in the form of Tracey Cosby’s deposition transcript and that certain statements in the deposition called into question the basis of Cosby’s knowledge of the allegations in her affidavits. However, the Estate misunderstood its burden. Once Hilltopper and Centennial filed Cosby’s sworn facially sufficient affidavits that refuted the Estate’s jurisdictional allegations, the question for the trial court was whether, taking the allegations in the affidavits as true, there was a basis for jurisdiction over Hilltopper and Centennial. Because the allegations of Cosby’s affidavits were to be taken as true, the Estate’s efforts to discredit the affidavits by contesting the credibility of the affiant were misplaced.

Once Hilltopper and Centennial filed their affidavits fully disputing the jurisdictional allegations of the Estate’s complaint, the Estate had the burden to prove a basis for jurisdiction. Because the Estate failed to refute the legally sufficient factual assertions set forth in Hilltopper’s and Centennial’s affidavits, their motions challenging personal jurisdiction should have been granted. Accordingly, we reverse and remand for the trial court to dismiss the complaint as to these defendants.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).


text:
    Clifford Leon REID, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0807.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Rehearing Denied May 17, 2007.
    Clifford Leon Reid, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of February 16, 2007, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on January 30, 2007, appealing the order on the appellant’s posteonviction motion, rendered on December 19, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b).

DISMISSED.

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


author: PLEUS, C.J.

text:
    Mark BANKS and Debbie Banks, etc., et al., Appellants, v. ORLANDO REGIONAL HEALTHCARE, etc., et al., Appellees.
    No. 5D05-4253.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.

      Joseph H. Williams, of Troutman, Williams, Irvin, Green Helms & Polich, P.A., Winter Park, for Appellants.
    Michael R. D’Lugo and Richards H. Ford, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appel-lees, Orlando Regional Healthcare System, Inc.
    Craig S. Foels and Robin D. Black of Hannah, Estes & Ingram, P.A., Orlando, for Appellees, Franklin, Levy and Medical Center Radiology Group.
   PLEUS, C.J.

Mark and Debbie Banks appeal a partial summary final judgment extinguishing their individual claims for loss of filial consortium and other expenses in a medical malpractice action related to their minor daughter. Because we conclude that the Banks’ claims were not transferred to the initial tortfeasors, we reverse and remand for further proceedings.

Facts

On February 29, 2000, the Banks family — Mark, Debbie and their two young daughters, Paige and Payton — were vacationing in Florida from England when they were involved in an automobile accident. As they were driving on Florida’s Turnpike, an oncoming car, driven by Bernard Guyette, crossed the median and struck the Banks’ car head-on. All four of the Banks were seriously injured. They received care at various Central Florida hospitals until March 16, when they were all medically transported back to England for further hospital care.

Guyette and his insurer, Allianz Insurance Company, agreed to settle for his policy limits of $1,000,000 Canadian. Because two of the injured Banks were minors, the parents petitioned the probate court for approval of the settlement. On October 17, 2000, the probate court entered an Order on Petition for Approval of Settlement, which approved the distribution of proceeds among the Banks. The final paragraph of that order stated:

6. That Debbie Banks and Mark Banks, individually, and on behalf of Paige Banks and Payton Banks, their minor children, have permission to execute a Release and Settlement Agreement, releasing all claims against Bernard Guyette and Allianz Insurance Company, in relation to any injuries sustained in the automobile accident which occurred on February 29, 2000.

Subsequently, the Banks signed an Affidavit and Release of All Claims (“original release”), which released Guyette and Al-lianz from liability “on account of, or in any way growing out of, any and all known and unknown, foreseen and unforeseen, bodily and personal injuries, property damage and consequences thereof, resulting or to result from a certain incident which occurred on or about February 29, 2000.... ” The release was silent regarding claims against any subsequent health care providers. The release was not dated, but on November 20, 2000, the Banks’ settlement cheek was deposited.

On May 22, 2002, the Banks, individually, and as natural guardians of Payton, sued Orlando Regional Healthcare System, Inc., Nemours Children’s Clinic, and Dr. Marc Levy (collectively referred to as “ORHS”). They later amended the complaint to include Dr. Joe Franklin, Dr. David Davis and the Medical Center Radiology Group (collectively referred to as “the radiologists”). A second amended complaint was filed rearranging the complaint into seven counts. The first six counts alleged medical negligence against the various defendants on behalf of Payton Banks. Count VII asserted a claim on behalf of the parents, individually, for loss of filial consortium and other expenses.

In May 2003, ORHS filed a motion for summary judgment arguing that the plaintiffs had failed to reserve any potential causes of action against subsequent tort-feasors in their release of the initial tort-feasor. The radiologists later joined in this motion.

In response, the Banks filed various documents in opposition to the motion for summary judgment, including an Amended Affidavit and Release of All Claims against Guyette and Allianz. This document expressly reserved any claims against the subsequent healthcare providers. They also filed an Amended Order on Petition for Approval of Settlement. That order stated, in pertinent part:

1. The Court approved the settlement, but did not approve the “Affidavit and Release of All Claims”, as required by law, which was apparently, executed by MARK BANKS and DEBBIE BANKS, as it was not presented to the Court for approval.
2. The Court would not have approved a settlement or authorized a release which actually released, or implied the release, of any other potential negligent persons or entities, given the significant damages sustained by PAYTON BANKS.

The order further approved the amended release and acknowledged that it did not release the subsequent medical providers. It also found that:

5. Further, the settlement of the minors’ claims, including the “Amended Affidavit and Release of All Claims”, did not grant or transfer a right of subrogation against the above referenced medical providers to [Guyette and Allianz].
6. It is clear from this Court’s prior order that the parents, on behalf of their minor children did not have permission to release any claims against any other parties except [Guyette and Allianz] and only in relation to any injuries sustained in the automobile accident which occurred on February 29, 2000.

After hearing argument, the lower court denied summary judgment, stating:

Basically, had that release been attached and approved by the Court, Mr. Ford, you’d be in just fine, but I find that the parents exceeded the authority given by that court order in light of the fact that the release was not attached. And therefore, the validity of the release definitely is questioned. I know you’re here just on a motion for summary judgment, that is your factual dispute. If I had to make my call, I’d say it’s invalid for being beyond the purview of the court order dealing with the minor settlement.

Subsequently, ORHS filed a Motion for Clarification and/or Motion for Entry of Partial Summary Judgment. It argued that based on the court’s finding that the parents had exceeded their authority in releasing potential claims for Payton, summary judgment was still appropriate as to the parents’ individual claims. The radiologists joined in this motion. After hearing arguments, the court granted summary-judgment as to Count VII, the Banks’ individual claims for loss of filial consortium and medical expenses. The Banks timely appealed this order.

Discussion

On appeal, the issue before us is whether the lower court erred in granting summary judgment against the Banks. We review this issue de novo. Rice v. Greene, 941 So.2d 1230 (Fla. 5th DCA 2006).

All parties to this appeal assert that our decision in Rucks v. Pushman, 541 So.2d 673 (Fla. 5th DCA 1989), controls its resolution. In that case, Rucks was injured by Pushman at a bar owned by Gailey. Rucks was taken to the hospital where she was allegedly injured further by her treating doctors. Id. at 674. She sued Push-man, Gailey, the hospital and the doctors. After Rucks settled her claims against Pushman and Gailey, the hospital and the doctors filed motions for summary judgment alleging that her releases of the initial tortfeasor were without qualification and represented a full settlement against all defendants. Id. Rucks filed a motion to reform the release with Gailey to show they did not intend to release subsequent tortfeasors. The trial court did not rule on this motion. Instead, it granted summary judgment in favor of the subsequent tort-feasors based on McCutcheon v. Hertz Corp., 463 So.2d 1226 (Fla. 4th DCA), rev. denied, 476 So.2d 674 (Fla.1985).

This Court affirmed the summary judgment. We reasoned that because an initial tortfeasor is generally liable for injuries caused by a subsequent tortfeasor, any release of an initial tortfeasor aiming to address only the injuries caused by the initial tort should be should be “carefully accomplished so that it is clear that the victim is not receiving compensation from the initial tortfeasor for injuries resulting from the subsequent negligence of the health care providers and that the victim is reserving the victim’s cause of action against the health care providers.” Id. at 675. When the release is unclear as to the subsequent tortfeasors:

[T]he rule is that if the victim’s settlement agreement with, and release of, the initial tortfeasor does not clearly reserve to the victim the victim’s cause of action against the health care providers, the legal presumption is that the victim recovered from the initial tortfea-sor for the injuries caused by the health care providers and the initial tortfeasor will become subrogated to that cause of action and the victim will be thereafter barred from asserting that cause of action against the health care providers.

Id. at 676.

However, we added the following procedural caveat:

While the summary judgment in this case is procedurally correct, if in truth and in fact the true settlement agreement between the victim and the initial tortfeasor was intended by those parties thereto to be only a settlement of the victim’s injuries resulting from the initial tortfeasor and was not intended to compensate the victim for injuries resulting from the negligence of the health care providers, and should not in law or in equity result in a transfer to the initial tortfeasor of the victim’s cause of action against the health care providers, the victim should, in justice and fairness and law, be given an opportunity to establish that fact. However, consistent with the trial court’s decision, we hold that the victim’s motion to reform made in this law action for the recovery of damages was inadequate for that purpose. The cause of action, if any, the victim may have against the initial tortfeasor to reform the victim’s release should be asserted in a separate equitable reformation action. If, because of its form, the victim’s release has resulted in an unintended assignment of rights by operation of law, we know of no reason why the initial tortfeasor cannot merely reassign those rights to the victim by a properly drawn legal document or, if there is a controversy as to the intent of those parties, why the victim cannot resolve that controversy in a separate equitable action against the initial tortfea-sor for reformation and, when equitable relief has been obtained, assert such cause of action against the health care providers. This opinion is not intended to preclude such action by the victim if appropriate and desired and otherwise possible. We realize, of course, that matters such as the statute of limitations may thwart the victim in this particular case.

Id. at 676 (emphasis added).

Consistent with Rucks, we believe the probate court in the instant case successfully reformed the original release to reflect the parties’ intent not to release subsequent tortfeasors or transfer any causes of action against subsequent tort-feasors. That reformation related back to the date of the original release. As our supreme court explained in Providence Square Ass’n, Inc. v. Biancardi 507 So.2d 1366, 1369-71 (Fla.1987):

A court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument.... Notably, in reforming a written instrument, an equity court in no way alters the agreement of the parties. Instead, the reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached.
... A reformation relates back to the time the instrument was originally executed and simply corrects the document’s language to read as it should have read all along. By contrast, an amendment that changes the provisions of a document prospectively does not provide a determination that, as originally written, it contained an erroneously drafted provision.

(Citations omitted). The fact that the original release was undated does not trouble us because it was executed well before the initiation of the medical malpractice action on May 22, 2002.

ORHS attacks the reformation action on the ground that it was an “interested person” that should have been afforded notice and an opportunity to be heard in such action. Had it been afforded due process, it asserts it would have designated the proceeding adversarial and moved to block the reformation as untimely under Florida Rule of Civil Procedure 1.540. We reject this argument because ORHS was not an “interested person” as defined by section 731.201(21), Florida Statutes (2003). That section expressly states that the meaning of the term “interested person” may “vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.” § 731.201(21), Fla. Stat. (2003). The purpose of the guardianship proceeding in this case was to obtain court approval of a settlement involving minors. ORHS and the other defendants in the malpractice action were not parties to the settlement and had no standing to participate in the approval process. Any interest they had in the outcome of the settlement proceedings was at best tangential to the intended purpose of those proceedings.

Based on the above analysis, we conclude that any “unintended assignment” of the Banks’ claims against the instant defendants was cured by reformation of the release, such that this claim was not transferred to the initial tortfeasors. What remains is whether the statute of limitations had run by the time the Banks filed their claim on May 22, 2002. As that issue was not raised or addressed below, we express no opinion about it. Instead, we reverse the summary judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and ORFINGER, JJ., concur.


text:
    Davis BEARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6182.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Rehearing Denied May 17, 2007.
    Davis Bearden, pro se, Appellant.
    Bill McCollum, Attorney General, Sher-on Wells, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

In this case before us, Appellant filed his notice of appeal more than 30 days after rendition of the lower court’s order; therefore, this court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). Accordingly, we dismiss his appeal for lack of jurisdiction.

DISMISSED.

KAHN, POLSTON and THOMAS, JJ., concur.


text:
    Andrew G. MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1104.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Rehearing Denied May 17, 2007.
    Andrew G. Moore, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. See Sanders v. State, 946 So.2d 953 (Fla.2006).

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    S.H., Mother of B.G., K.G. and C.G., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellee.
    No. 5D07-407.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Ralph J. McMurphy, Wildwood, for Ap-pellee, Department of Children and Families.
    Thomas Wade Young, Orlando, for Ap-pellee, Guardian ad Litem.
   ON MOTION TO COMPEL DESIGNATION OF TRANSCRIPT

PER CURIAM.

The Guardian Ad Litem involved in this case has filed a Motion to Compel Designation of Transcript. This matter arises in this termination of parental rights appeal, but similar problems affect the efficient expedition of all termination of parental rights and dependency appeals, the reason for which we write this opinion.

In this case, without having filed the necessary directions and designations required by Florida Rule of Appellate Procedure 9.200, appointed trial counsel filed the notice of appeal and then filed a motion to withdraw in the trial court on the same day. An order granting withdrawal followed and appellate counsel was appointed. It was not until the Appellee served a motion to compel Appellant to file a designation for the transcript, that appellate counsel learned of this deficiency. The motion was served on Appellant’s counsel, forty-five (45) days after the notice of appeal was filed.

Unfortunately, due to the expedited nature of this and all appeals involving children, appellate counsel is left holding the bag and we have ordered him to file the necessary directions and designations, so as not to further delay the disposition of this case. In addition, because of the order allowing withdrawal of trial counsel, appointed appellate counsel is the only counsel currently of record in this appeal. We hope that this opinion will stop this type of problem from arising.

Florida Rule of Appellate Procedure 9.146(g) requires expedited review of all appeal proceedings in juvenile dependency, termination of parental rights cases and cases involving families and children in need of services. Pursuant to Florida Rule of Appellate Procedure 9.200(a)(3), in all appeals, not just those dealing with children, the attorney who files the notice of appeal is required to file any directions to the clerk and designations to the court reporter, within 10 days of the notice of appeal. The delay in processing this appeal and others like it is caused by the trial court’s premature order allowing trial counsel to withdraw from the appeal before fulfilling his or her duties under the rule. It is imperative that trial courts recognize trial counsel’s pre-withdrawal duties, particularly in time sensitive termination of parental rights cases and dependency cases, to file the notice of appeal, the directions with the clerk and the designations with the court reporter. The trial court is not free to release counsel until these functions are completed. The trial court’s adherence to this requirement is essential to expediting these appeals. See also, In Interest of M.M., 708 So.2d 990 (Fla. 2d DCA 1998).

Some additional guidelines for the trial court to follow, to further secure the expediting of these cases, have been adopted by Second District Court, set forth in its case of In Interest of P.G., 944 So.2d 443 (Fla. 2d DCA 2006). We feel that these guidelines will prove very helpful.

First, upon appointing an attorney to represent a parent on appeal, in either a dependency or termination of parental rights case, the trial court should forward a copy of that order to this court. Second, to insure that this court is apprised of the withdrawal of counsel, trial counsel shall submit a copy of the order, along with the order appointing appellate counsel. Absent receipt of these copies, this court will assume that the attorney who filed the notice of appeal remains attorney of record on appeal until appointed counsel files their notice of appearance. Third, appointed counsel on appeal should promptly file their notice of appearance in this court to demonstrate that they are aware of their appointment. These measures will assist this court in expediting these appeals.

The Guardian Ad Litem’s Motion to Compel Appellant to file designations for transcription of the proceedings below is granted. Counsel for the Appellant has been ordered to comply.

PLEUS, C.J., SAWAYA, ORFINGER, JJ., concur.

      . Appellate counsel in this case filed an appearance on Feb. 14, 2007, 12 days after notice of appeal. However, it is not uncommon for appointed appellate counsel to receive their appointment order a significant time after the order actually issues. This can create a remarkable delay in the expedition of these cases if trial counsel does not comply with the requirement that they file the directions and designations before withdrawal.

      . The trial court may want to require the attachment of a copy of the directions to the clerk and designations to the court reporter, to counsel’s motion to withdraw, before such motion is granted.


text:
    Mitchell LADSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1116.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Mitchell Ladson appeals his convictions and sentences for forgery, uttering a forged instrument, and grand theft. We affirm without discussion Ladson’s convictions. We also affirm the sentences imposed but write to address Ladson’s challenge to one of the conditions of his probation. Condition eight of the probation order provides: “You will submit to and pay for random testing as directed by the Officer or Professional staff of the treatment center where you are receiving treatment to determine the presence of alcohol or controlled substances.” Lad-son’s appellate counsel filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) seeking to strike this condition based on the argument that it is a special condition that the trial court failed to orally pronounce. The trial court denied relief stating: “Pursuant to 948.031(k), this request is DENIED as it is a standard condition.”

The “submit to” portion of this condition is a standard condition that need not be orally pronounced. See Diaz v. State, 691 So.2d 589, 590 (Fla. 2d DCA 1997). However, the “pay for” portion is a special condition that must be orally pronounced. See State v. Williams, 712 So.2d 762, 763 (Fla.1998). Such conditions have previously been stricken when challenged on appeal. See, e.g., Crowley v. State, 813 So.2d 1065 (Fla. 2d DCA 2002); Miller v. State, 809 So.2d 101 (Fla. 2d DCA 2002); Torres v. State, 712 So.2d 1169 (Fla. 2d DCA 1998); Carter v. State, 787 So.2d 193 (Fla. 1st DCA 2001). However, a defendant is able to raise an objection to such a condition by filing a motion pursuant to rule 3.800(b). Under this rule

“a defendant has the opportunity to interpose a substantive objection to probation conditions contained in the written order even if no contemporaneous objection is made at the sentencing proceedings. Therefore, procedural due process is satisfied without the need to orally pronounce otherwise proper special probation conditions.”

Grubb v. State, 922 So.2d 1002, 1003 (Fla. 5th DCA 2006) (emphasis added) (quoting State v. Joly, 885 So.2d 921, 923 (Fla. 5th DCA 2004)). Thus, Ladson cannot claim a violation of his due process right to notice and an opportunity to object on appeal because he had the opportunity to assert in a rule 3.800(b) motion any substantive objection to the portion of the condition that requires oral pronouncement. Because Ladson’s objection was procedural only and he raised no substantive basis to strike the condition, we affirm.

We recognize that this court continued to strike unpronounced conditions subsequent to the promulgation of rule 3.800(b). See, e.g., Martinez v. State, 841 So.2d 632 (Fla. 2d DCA 2003); Crowley, 813 So.2d 1065; Miller, 809 So.2d 101. However, we are persuaded by Grubb that we granted relief in those cases improvidently and, therefore, recede from Martinez, Miller, Crowley, and any other case in which we struck unpronounced conditions even though the appellant was able to challenge those conditions by the rule 3.800(b) procedure.

FULMER, C.J., and ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, KELLY, CANADY, VILLANTI, WALLACE, and LaROSE, JJ., Concur.

      . See Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.1999).


author: WELLS, Judge.

text:
    Rolando Mel CANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2741.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Bennett H. Brummer, Public Defender, and Leslie Anne Scalley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and ROTHENBERG, JJ.
   WELLS, Judge.

Rolando Mel Cano appeals from his convictions and consecutive life sentences for the murders of his wife and her elderly aunt and from his conviction for felony animal cruelty related to the death of a family pet, which occurred simultaneously with the murders. Cano, who repeatedly confessed to the killings (including that of the family pet), raises only three points on appeal, two relating to the animal cruelty conviction, one relating to a single comment made by the State in closing argument. Because we find no merit in any of these points, we affirm.

First, we find no merit in Cano’s argument that a verdict should have been directed on the animal cruelty charge because there was no evidence of a crime relating to the pet’s death. The record reveals that there was sufficient circumstantial evidence that the pet’s death was the result of a criminal act to send this charge to the jury. See Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005) (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”).

Second, we find no abuse of discretion in the trial court’s refusal to grant a motion for mistrial following a single unsolicited comment made during cross examination regarding the drowning death of an earlier owned family pet. The comment came during questioning of a neighbor about two similar pets owned by the family in the past and was made as part of a response to defense counsel’s statement that those pets had lived for about fifteen years. The jury immediately was instructed to disregard the comment and advised that it had no relevance to this case “whatsoever.” No testimony was adduced that Cano had any part in this pet’s death and no further mention of the drowning was made by either side thereafter. See Goodwin v. State, 751 So.2d 537, 546 (Fla.1999) (“a trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review”).

Third, we find the State’s single comment that it did not ask for instructions on insanity since insanity was an affirmative defense does not warrant reversal because the defense failed to preserve the error, because a curative instruction was given, and because when reviewed in context, without a doubt is harmless. See Moore v. State, 701 So.2d 545, 550 (Fla.1997) (“Error is harmless where ‘there is no reasonable possibility that the error contributed to the conviction.’ State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).”); McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001) (“In order to determine whether improper remarks constitute reversible error, they should be reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record.”).

Accordingly, the convictions and sentences are affirmed.


text:
    Jamie BRUSEAU, Appellant, v. Christine BRUSEAU, Appellee.
    No. 5D06-1567.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.

      Richard I. Wallsh, of Chartered Law Offices of Troum & Wallsh, Winter Park, for Appellant.
    C. Michael Magruder, Kissimmee, for Appellee.
   PER CURIAM.

Jamie Bruseau (“the former husband”) appeals an order holding him in contempt for failing to pay alimony and child support. We reverse.

Christine Bruseau (“the former wife”) filed a motion and notice for contempt on 15 March 2006 to obtain an alimony and child support arrearage. The former wife noticed a hearing for 7 April 2006 and mailed it to the former husband at two different addresses. A process server filed on 20 March 2006 an affidavit' of service indicating non-service on the former husband of the motion and notice. The former husband tried unsuccessfully to reschedule the hearing date with the former wife’s counsel and, on 5 April 2006, filed a letter with the court requesting a continuance until after 15 April 2006 due to a long-scheduled out-of-town trip.

The court entered an order on 21 April 2006 that indicated the hearing proceeded as noticed on 7 April. The former husband did not appear at the hearing. The order treated the former husband’s letter as a request for a continuance and denied the request. The court found the former husband to be in willful contempt of the final judgment of dissolution and the court’s 20 December 2005 order on motion for contempt. The court added the past due amounts of $29,773.27 for alimony and $15,808.07 for child support and held the former husband in contempt for the full sum of $45,586.59. The order further provided that if full payment was not made within fifteen days, the court would issue a capias for his arrest. The court set a purge amount of $45,586.59.

The former husband entered a limited appearance to timely file a notice of appeal. He also filed a motion for stay of order adjudging him in contempt based upon the procedure under Florida Family Law Rule of Procedure 12.615(c)(2)(B) and Martyak v. Martyak, 881 So.2d 48 (Fla. 4th DCA 2004), which was granted.

The former husband argues and the former wife concedes that the court erred by adjudging him in contempt because it failed to comply with the procedure set forth in Florida Family Law Rule of Procedure 12.615(c)(2)(B). The rule provides:

(c) Hearing. In any civil contempt hearing, after the court makes an express finding that the alleged contemnor had notice of the motion and hearing:
* * *
(2) if the court finds the movant has established all of the requirements in subdivision (c)(1) of this rule, the court shall,
(B) if the alleged contemnor fails to appear, set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment and direct that, upon execution of the writ of bodily attachment, the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay support and, if so, whether the failure to pay such support is willful.

The Fourth District in Martyak, held that it was error for the trial court to order the former husband’s incarceration until payment of the purge amount without first following the procedure set forth in rule 12.615(c)(2)(B). Accord Dileo v. Dileo, 989 So.2d 181 (Fla. 5th DCA 2006); Chetram v. Singh, 937 So.2d 716 (Fla. 5th DCA 2006). Since the appellee has properly conceded the issue, we reverse the trial court’s order and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

GRIFFIN, THOMPSON and MONACO, JJ., concur.


author: TORPY, J.

text:
    James HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3668.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    James Harper, Orlando, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   TORPY, J.

Appellant challenges the lower court’s order that summarily denied his petition for habeas corpus on procedural grounds. Although we do not agree that Appellant’s petition was procedurally barred, we nevertheless affirm because the petition is without merit. See Smith v. Moore, 782 So.2d 955 (Fla. 1st DCA 2001) (habeas petition not procedurally barred because raises issue that may be raised at any time).

Appellant alleges that his conviction for a probation violation was improper because the conviction was solely based upon alleged violations that were the subject of an amended affidavit that was first filed after his term of probation had expired, contrary to the holding in State v. Hall, 641 So.2d 403 (Fla.1994). Since that decision, however, section 948.06, Florida Statutes, has been amended to include a provision tolling the probationary period upon the filing of an affidavit alleging a violation of probation and expressly conferring continuing jurisdiction on the trial court to address “any violation ... that is alleged to have occurred during the tolling period.” Appellant acknowledges this statutory change but urges that it may not be applied to him because to do so violates the constitutional prohibition against ex post facto laws, citing Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004). We disagree and distinguish Frye.

In Frye, the defendant had been placed on probation before the statute was changed. The court held that the statutory change could not be applied to him under the ex post facto clause. Id. at 420. Here, by contrast, although the underlying offense for which Appellant was placed on probation is alleged to have occurred before the statutory change, Appellant was not placed on probation until well after the statutory change. Under these circumstances, the ex post facto clause is clearly not implicated. See Gwong v. Singletary, 683 So.2d 109 (Fla.1996) (test for statutory scrutiny under the ex post facto clause is whether the law is retrospective in effect and whether it alters the elements of the crime or increases the potential punishment).

AFFIRMED.

GRIFFIN and SAWAYA, JJ„ concur.