source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Myron ORLINSKY, Appellant, v. Peter PATRAKA, Appellee.
    No. 3D05-2002.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 28, 2008.

      Joel S. Perwin; Fowler White Burnett and Helaine S. Goodner, Miami, for appellant.
    John G. Crabtree, Key Biscayne, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   RAMIREZ, J.

Myron Orlinsky appeals the trial court’s final order denying his motion for judgment in accordance with a motion for directed verdict, for remittitur, or for new trial; the order on appellee Peter Patraka’s motion for prejudgment interest and costs, and motion for entry of final judgment; and the amended final judgment entered in favor of Patraka. Because the evidence in the record does not support Patraka’s claim regarding any of the alleged breach of fiduciary duties or majority shareholder duties owed to him by Orlinsky, we conclude that Orlinsky was entitled to a directed verdict on Count II, the breach of fiduciary duty count. We thus reverse and remand for entry of judgment in Orlin-sky’s favor.

FACTS

1. Orlinsky and Patraka’s History and Their Agreement

Orlinsky and Patraka both worked in their father-in-law’s company, Rayex Corporation, in the late 1960’s. They eventually decided to open a business together, Visual Scene, Inc., in 1969, which sold nonprescription eyeglasses to retailers. They executed a written shareholder agreement, stating that they were to receive equal salaries and benefits, as well as share equally in the company’s profits and losses. Patraka contends that after they were in business together for several years, they •decided to forego a written agreement and instead orally agreed they would be equal partners in any venture they operated. During the next thirty years, they founded, owned and operated a number of companies together. Orlinsky and Patra-ka always owned an equal number of shares and always received identical compensation and benefits. Patraka handled sales, cultivated clients and negotiated contracts. Orlinsky handled the finances and the administration of the companies, including issuing stock certificates, as well as working with foreign investors. Their understanding, while running all of these companies, was always that they were equal partners in everything. In 1988, after Visual Scene lost a major lawsuit, its lender (Fleet National Bank) foreclosed on its assets and took over Visual Scene.

2.The VSI Acquisition in 1989 and VSI International

In 1989, Orlinsky approached Benny Huen, one of his closest friends, about buying Visual Scene’s assets from the bank. Huen put together a group of investors, and they purchased the assets from Fleet National Bank for over $1 million and also loaned the company $900,000. The company was re-established as a new entity called Visual Acquisition Corporation, which later became Visual Scene International (VSI). Patraka and Orlinsky each received 25.88% interest of the VSI stock, and the foreign investors put together by Huen received a 43.34% interest. Orlinsky’s younger brother, Marc, received 5% interest of the shares. Orlinsky and Patraka agreed they would buy out the investors and regain control and ownership of the company. In the interim, they both orally agreed to receive the same salaries. Patraka and Orlinsky never had a written partnership or shareholder agreement with respect to VSI.

In December 1989, VSI’s directors and shareholders approved an amendment to VSI’s Articles of Incorporation which provided that the shareholders waived all of their preemptive rights, thereby permitting any VSI shareholder to acquire additional shares of VSI. The Articles of Incorporation did not require that a shareholder inform other shareholders of a sale of their VSI shares. Patraka conceded at trial that the Articles of Incorporation did not require that he and Orlinsky own an equal number of shares.

Additionally, Orlinsky and Patraka each had a three-year employment contract with VSI, dated January 26, 1989, stating that they would each receive the same salary and benefits. That contract was superseded by another contract, under which VSI employed Patraka as president until December 31,1992.

3.The Formation of Top Gear

In 1992, Orlinsky proposed that Huen and the foreign investors form a foreign company called Top Gear to sell eyewear and allow the U.S. shareholders to defer payment of income tax on income earned from that company. The investors would own 43.34% of the stock, Patraka and Or-linsky would each own a 25% interest, and Marc Orlinsky would own approximately 6% interest. Patraka testified that Orlin-sky told him their income would be deferred until it was brought into, the United States and taxes would be paid then.

4.VSI’s Conversion to a Subchapter “S” Corporation

In 1995, Orlinsky and Patraka met with accountants and counsel to obtain advice regarding converting VSI from a “C” corporation to a Subchapter “S” corporation. They were advised that foreign investors could not own stock in VSI once it became a Subchapter “S” corporation. In 1996, VSI became a Subchapter “S” corporation. The foreign investors sold their VSI shares to Orlinsky, in exchange for which he transferred his 125 shares of Top Gear to the foreign investors. After this sale and transfer, Orlinsky owned a 69% interest of the outstanding shares of VSI.

Patraka alleges that, without notice to Patraka, Orlinsky secretly traded his 25% interest in Top Gear to the foreign investors in exchange for their 43.34% interest in VSI. Patraka testified that he knew that the foreign investors would need to sell their VSI shares for VSI to become a Subchapter S corporation, but he thought that the shares would be evenly distributed between Orlinsky and himself. Other than the long-standing oral agreement to be equal partners, there was nothing precluding Orlinsky from exchanging his Top Gear stock for VSI stock, nor was Orlinsky required to inform Patraka of the transaction.

5. Patraka’s Lawsuit Against Orlinsky

During the late 1990’s, the relationship between Orlinsky and Patraka deteriorated, eventually leading to VSI’s Board of Directors terminating Patraka’s employment. Patraka filed suit against Orlinsky in November 1999, which consisted of a four count amended complaint that included: Count I for breach of an open-ended oral contract assuring equal ownership, compensation, and benefits; Count II for breach of a fiduciary relationship based on the alleged oral agreement, as well as a “special trust and- confidence reposed by Patraka and accepted by Or-linsky in connection with their common investments” and an “agency relationship and the fact that Orlinsky was a majority shareholder in VSI and Patraka was a minority shareholder”; Count III which alleged a constructive trust; and Count IV which alleged a tortious interference with an advantageous contractual relationship. Patraka claims that it was only after the -lawsuit was filed that he found out that in November 1995, Orlinsky had obtained an additional 4,334 shares of VSI stock from the foreign investors. Orlinsky denied the allegations and asserted the Statute of Frauds as a defense to the breach of contract claim.

The case was tried before a jury in March 2005. At the close of trial, Orlinsky moved for a directed verdict on all four counts. The trial court granted Orlinsky’s motion on Counts I (breach of contract), III (constructive trust) and IV (tortious interference). The trial court allowed the breach of fiduciary duty claim to go to the jury. Patraka alleged that Orlinsky’s fiduciary duty derived from: 1) a general fiduciary duty; 2) a fiduciary duty owed by Orlinsky as a majority shareholder to Pa-traka as a minority shareholder (after Or-linsky bought the additional 43.34% interest of VSI shares, which gave him majority interest); and 3) a duty owed by Orlinsky as an agent for Patraka in dealing with the foreign investors.

The jury found Orlinsky liable and awarded Patraka $4,318,248 in damages, which represented $887,000 for the value of stock (21.67% shares of VSI), and $3,431,248 for the value of salary, compensation and benefits. The trial court denied Orlinsky’s motion for judgment in accordance with his motion for directed verdict, for remittitur or for new trial, and entered an Amended Final Judgment for Patraka in the amount of $6,252,216.48 ($4,318,-248.00 in damages, $1,874,031.18 in prejudgment interest, and $59,937.30 in costs).

ANALYSIS

We conclude that Patraka failed to prove any of his three theories to establish a breach of fiduciary duty. The theories all were premised basically on the argument that Orlinsky had orally agreed “to be in charge of, and act on Patraka’s behalf.” Properly having dismissed the oral contract count, the trial court erroneously allowed Patraka to pursue basically the same claim by renaming it as a breach of fiduciary duty.

1. General Fiduciary Relationship

First, with regard to a general fiduciary relationship, the requirements for a general fiduciary duty are the following:

Fiduciary relationships implied in law are premised upon the specific factual situation surrounding the transaction and the relationship of the parties. Courts have found a fiduciary relation^ ship implied in law “when confidence is reposed by one party and a trust accepted by the other.”

Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994) (citations omitted). A fiduciary relationship must be established by competent evidence, and the burden of proving such a relationship is on the party asserting it. Kislak v. Kreedian, 95 So.2d 510, 514-15 (Fla.1957).

To establish a general fiduciary relationship, “a party must allege some degree’ of dependency on one side and some degree of undertaking on the other side to advise, counsel, and protect the weaker party.” Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993). Here, the evidence in the record indicates that Patraka was not a passive beneficiary. Patraka was the president of VSI, and Orlinsky was the CEO, each with his own corporate responsibilities. They were both experienced businessmen who had started with a shareholder agreement and later intentionally had decided to forego such an arrangement.

There is no evidence in the record independent of the long-standing oral agreement that Orlinsky would act on Patraka’s behalf or advise him of personal investment opportunities which became available to Orlinsky. At the time that Orlinsky purchased the additional shares of VSI from the foreign investors, there was no shareholder agreement, no written agreement with respect to VSI stock, and no preemptive rights. Patraka’s claims rest solely on the oral agreement that Orlinsky and Patraka would share equally in all business opportunities. What Patraka is alleging here is a breach of an oral contract claim, based on their long-term relationship, where he claims the two men agreed, long before VSI even existed, to own the same number of shares of VSI and equally divide the shares held by the foreign investors.

Patraka relies on Doe v. Evans, 814 So.2d 370 (Fla.2002), in support of his position, but that case involved a parishioner’s suit against the church for alleged sexual abuse that took place after the victim had entered into a counseling relation. The only relation between Orlinsky and Patra-ka, besides being brothers-in-law, was that of business associates. Patraka has not cited any case where a general fiduciary duty has been found in the context of two business associates. In sum, there was no evidence presented of a breach of any general fiduciary duty.

2. Agency Relationship

Turning next to Patraka’s agency theory of liability, an agency relationship does not exist unless the principal has a right to control the operative details of the agent’s work. Stoll v. Noel, 694 So.2d 701, 703 (Fla.1997). There is no evidence in the record that Orlinsky incurred a fiduciary duty regarding the acquisition of additional shares of VSI in exchange for Top Gear stock by acting as Patraka’s agent in dealing with the foreign investors. There simply was no evidence presented at trial that Orlinsky accepted this responsibility. Furthermore, Patraka did not prove that he controlled or had the right to control Orlinsky’s dealings with the foreign investors, which is an element of an agency relationship. Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990). See also Pinon v. Int’l Harvester Co., 390 So.2d 154 (Fla. 3d DCA 1980).

This theory is another attempt to retool Patraka’s count for breach of an oral contract. The trial court granted a directed verdict on the breach of contract count. Patraka has not cross-appealed the directed verdict for Orlinsky entered on the breach of contract count. Thus, as a matter of law, Patraka did not establish that an agency relationship existed here, out of which would have risen a fiduciary duty.

3. Majority Shareholder Duties in a Closely-Held Corporation

We agree with Patraka that, as a majority stockholder, Orlinsky owed a fiduciary duty to Patraka as a minority stockholder. See Biltmore Motor Corp. v. Roque, 291 So.2d 114, 115 (Fla. 3d DCA 1974). But we fail to see how Orlinsky breached this duty when he purchased the additional shares of VSI stock from the foreign investors. He was not a majority stockholder at the time. There was no shareholder agreement in place and the courts will not provide one for the parties. The mere purchase of additional stock in a corporation cannot be considered a breach of any fiduciary duty.

Patraka also asserts that Orlinsky breached this duty by failing to ensure that Patraka received a shareholder distribution equal to the one distributed to Or-linsky and his family. This refers to bonuses paid in January, 2002, years after Patraka had been terminated and after Patraka had filed suit against Orlinsky. Patraka argues that because VSI had never paid bonuses before, it was really a disguised distribution to which he was entitled to one-half.

First, if this was a disguised dividend distribution, as the owner of only 25.83% of the shares, Patraka would not be entitled to one-half, as he claims he is. The holder of one share of stock is not entitled to the same dividend distribution as the holder of a thousand shares of the same stock. Furthermore, this is not a situation like in Biltmore Motor, where the majority shareholders arranged for the sale of new stock issue at a price materially less than its market value, thereby diluting the plaintiffs stock.

Most importantly, however, is that if the distribution by VSI had been an illicit transfer or distribution, the proper course of action would be for Patraka to file a shareholder derivation suit, under Florida Statute section 607.07401, alleging corporate waste. A shareholder must file a derivative action for breach of fiduciary duty, claiming that the payment of excessive compensation constitutes corporate waste. See Marcus v. Lincolnshire Mgmt., Inc., 409 F.Supp.2d 474 (S.D.N.Y.2006). See also Alario v. Miller, 354 So.2d 925 (1978). Here, Patraka’s claim is against Orlinsky, claiming he was entitled to the exact same compensation that Orlin-sky received from VSI, even years after his termination. Patraka has not challenged the bonus paid to Orlinsky as corporate waste. Thus, this claim should have been brought against VSI in a derivative suit, such as the one Patraka brought against VSI in Broward County, Florida in 2002.

4. Patraka’s Termination

Patraka further claimed that Orlinsky breached his fiduciary duty as a majority shareholder in supporting VSI’s termination of Patraka’s employment with VSI. First and foremost, VSI terminated Patraka’s employment, not Orlinsky. Thus, Patraka’s claim with respect to this issue was against VSI. DeMarco v. Publix Super Markets, Inc., 360 So.2d 134 (Fla. 3d DCA 1978). Next, because Patra-ka was an at-will employee, Orlinsky owed no fiduciary duty to him as a majority shareholder with respect to employment or compensation. Id. And finally, even if Or-linsky had a fiduciary duty to Patraka "with regard to employment, there is no evidence in the record that Patraka’s termination was wrongful. In fact, the record indicates numerous legitimate business reasons for terminating Patraka’s employment: Patraka lost interest in VSI and he was looking for other employment, Patra-ka refused to hire sales staff to increase VSI’s customer base, and Patraka refused to guaranty loans because he did not want the financial exposure.

While there is no Florida case law on point with respect to the issue of a majority shareholder’s alleged breach of fiduciary duty in termination of the employment of a minority shareholder or in paying unequal salaries, we find Dweck v. Nassar, 2005 WL 3272363 (Del.Ch.), cited by Orlin-sky in his brief, to be persuasive. The facts are very similar to the facts before us. In Dweck, a minority shareholder sued the majority shareholder for breach of an oral shareholders’ agreement and breach of fiduciary duty, where the defendant added a fifth member to the board of directors, terminated the plaintiffs employment, and appointed his nephew to manage the closely held corporation. Id. at *1. The plaintiff alleged that the parties had adhered to the terms of the oral shareholders’ agreement for over ten years and that the operation of a competing business was a pretext for terminating her. Id. at *2.

The Court of Chancery of Delaware held that the contract claims were barred because the shareholders’ agreement was not in writing and the court rejected the plaintiffs claim for breach of fiduciary duty. The court noted that the plaintiffs claims regarding her wrongful termination were “personal and contractual in nature and are separate from her rights as a stockholder.” Id. at *6. The court went on to state, “ ‘Fiduciary duties are not implicated when the issue involves the rights of the minority stockholder qua employee under an employment contract.’ ” (citations omitted). We find that the same holds true under the set of facts before us. Simply stated, Orlinsky, as a majority shareholder, had no fiduciary duty to provide Patraka with continued employment, despite VSI’s financial difficulties and the legitimate business reasons for terminating Patraka that were present.

CONCLUSION

For the foregoing reasons, Orlinsky was entitled to a directed verdict on Count II, the breach of fiduciary duty count. We thus reverse the trial court’s amended final judgment and remand the case for entry of judgment in Orlinsky’s favor on the breach of fiduciary duty count of Pa-traka’s amended complaint. Because we are reversing and remanding for entry of judgment in Orlinsky’s favor, we need not address the damages issue raised by Orlin-sky in his briefs.

Reversed and remanded.

      . According to the United States Court of Appeals for the Eleventh Circuit in International Ins. Co. v. Johns, 874 F.2d 1447, 1461 (1989):
      ... [C]ourts do not invalidate executive compensation systems under the business judgment rule unless they constitute corporate waste. Rogers v. Hill, 289 U.S. 582, 591-92, 53 S.Ct. 731, 735, 77 L.Ed. 1385 (1933). Corporate waste exists when the payment is afforded without "adequate” consideration. Michelson v. Duncan, 407 A.2d 211, 217 (Del.1979). Under the business judgment rule, adequacy of consideration is left to the sound discretion of the directors, and courts do not invalidate compensation plans so long as the compensation the executive receives bares a reasonable relationship to the services rendered. Rogers, 289 U.S. at 591-92, 53 S.Ct. at 735; Cohen v. Ayers, 596 F.2d 733, 739 (7th Cir.1979); Kerbs v. California Eastern Airways, Inc., 90 A.2d 652, 656 (Del.1952). A compensation plan passes this "reasonable relationship” test if the payment insures that the benefit provided by the services rendered will inure to the corporation. Kerbs, 90 A.2d at 657; accord, Kaufman v. Shoenberg, 33 Del.Ch. 211, 91 A.2d 786 (1952); Forman v. Chesler, 39 Del.Ch. 484, 167 A.2d 442 (1962).

      . Furthermore, Florida Statutes section 607.08101, titled, "Compensation of directors,” states, "Unless the articles of incorporation or bylaws provide otherwise, the board of directors may fix the compensation of directors.” The record reflects that VSI’s Board of Directors were authorized to pay Orlinsky the bonus he received in 2002 based upon his performance that led to the company’s turn-around.


author: SUAREZ, J.

text:
    Christopher R. MAZZELLA, individually and as Inspector General of Miami-Dade County, Florida, Petitioner, v. DADE COUNTY POLICE BENEVOLENT ASSOCIATION, INC., and Miami-Dade County, Florida, Respondents.
    No. 3D07-442.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 8, 2008.
    William L. Richey; H. Eugene Lindsey, Miami, for petitioner.
    Rhea P. Grossman, for Dade County Police Benevolent Association, Inc.
    Murray A. Greenberg, Miami-Dade County Attorney and Lee Kraftchick, Assistant County Attorney, for Miami-Dade County, Florida.
    Before GERSTEN, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Christopher R. Mazzella, individually, and as Inspector General of Miami-Dade County, Florida, petitions this court for a writ of prohibition to prevent the trial court from proceeding with this action. Specifically, petitioner alleges that the trial court lacks subject matter jurisdiction. We deny the petition for prohibition. See Fla. Home Builders Ass’n v. Dep’t of Labor & Employment Sec., 412 So.2d 351 (Fla.1982); City of Lynn Haven v. Bay County Council of Registered Architects, Inc., 528 So.2d 1244 (Fla. 1st DCA 1988).

Petition for Writ of Prohibition denied.


author: RAMIREZ, J. CORTIÑAS, Judge

text:
    Carl L. MASZTAL, Joseph A. Graupier, Juana Martinez, and Marisol Fernandez, on behalf of themselves and all others similarly situated, Appellants, v. The CITY OF MIAMI, Florida, Appellee.
    Nos. 3D06-1259, 3D06-920, 3D06-924, 3D06-947, 3D06-1255, 3D06-1055, 3D06-1046.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 8, 2008.

      Michael Garcia Petit, Patrick A. Scott, and Richard L. Williams; Adorno & Yoss, Jack R. Reiter, and Natalie J. Carlos, Miami; Rubinstein & Associates, and Jeffrey Rubinstein, Miami; Gilbride, Heller & Brown, Lewis N. Brown, and Dyanne E. Feinberg, Miami, for appellants.
    Cole, Scott & Kissane, and Scott A. Cole and Thomas E. Scott, and Krista Fowler, Miami, for appellee.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   RAMIREZ, J.

Carl L. Masztal, et al., appeal a final order granting appellee City of Miami’s motion to set aside or vacate a settlement and recover monies paid, and an adverse final judgment and amended final judgment. Because the settlement amount was patently unfair and compromised the claims of the underlying class, we must affirm all the orders under review.

The final order in this consolidated appeal vacated a $7 million settlement entered into in the underlying class action. The plaintiffs, Eva Nagymihaly, Jean Robert Prosper, Jocelyn Prosper, Kenneth Merker, Gordon Willitts, and Algie Did-laukis, alleged that the City did not have the authority to impose a special assessment to fund fire rescue services. They sought to declare the fire rescue assessment, Ordinance Number 11584, unconstitutional and a return of all funds the City collected. They also sought to declare section 170.201, Florida Statutes, unconstitutional, to the extent that it permitted municipalities to levy and collect special assessments to fund municipal services that included fire protection and emergency medical services.

The plaintiffs and Adorno & Yoss appealed the final order under rule 9.130(a)(3)(c)(ii), Florida Rules of Appellate Procedure, as a final order because the trial court disgorged Adorno & Yoss’ fee. Plaintiffs Merker and the Prospers also separately appeal the final order.

The City also filed a motion for the entry of judgment, seeking to impose joint and several liability on each of the plaintiffs and Adorno & Yoss for the sum of $3.5 million. The plaintiffs and Adorno & Yoss argued that, because a notice of appeal had been filed as to the final order, rule 9.130(f), Florida Rules of Appellate Procedure, precluded the trial court from entering a final judgment. The trial court subsequently entered final judgment against the plaintiffs for the entire amount of the settlement proceeds apportioned to them. The trial court also declined to find joint and several liability. The City, plaintiffs, and the Intervenors all appeal the final judgment.

The City also filed a motion for clarification or amendment of the final judgment, seeking to recover prejudgment interest. The trial court entered an Amended Final Judgment, reserving jurisdiction to determine prejudgment interest, costs and attorneys’ fees. The plaintiffs filed notices of appeal of the Amended Final Judgment as well. All appeals of the final order, final judgment, and amended final judgment were consolidated.

1. Factual Background

a. Retention of Counsel and Underlying Proceedings

In early 1998, a group of citizens joined together to contest the proposed fire rescue assessment. They formed a Florida nonprofit corporation called Tenants and Taxpayers United for Fairness, Inc. Peter Clancy was the President, and nine others made up the original Board of Directors, including Judy Clark and Eva Nagymihaly. The corporation solicited donations from the public to fund their impending litigation. The funds helped defray the cost of hiring the firm of Atlas Pearlman Tropp & Borkson, P.A.

The Atlas Pearlman retainer agreement stated that the case would proceed as a class action. Atlas Pearlman subsequently-filed a class action complaint and amended complaint. Clancy created an informational pamphlet to distribute to the public and help secure donations. The pamphlet explained that the “named plaintiffs really represent every other private owner in the City” and why “a class action lawsuit [was] filed.” In his testimony, Clark admitted that the purpose of the lawsuit was to end the fire rescue fee and obtain a refund for all who had paid the assessment.

Atlas Pearlman continued representation until the firm merged its practice with the firm of Adorno & Yoss, LLP in 2002. Assistant City Attorney Charles C. Mays represented the City.

Six years elapsed between the inception of the class action suit and settlement during which time extensive litigation and negotiations took place. Both Atlas Pearl-man and Adorno & Yoss pursued class certification. The court deferred class certification pending trial or cross-motions for summary judgment on the refund issue.

The original plaintiffs subsequently moved for summary judgment on the invalidity of Ordinance Number 11584 and the unconstitutionality of section 170.201. The trial court held the ordinance invalid to the extent that it authorized the City to impose a special assessment for emergency medical services, and it declared section 170.201 unconstitutional to the extent that it included the phrase emergency medical services. It also struck that portion of the statute.

The original plaintiffs also moved for summary judgment on the City’s affirmative defenses. The trial court struck the City’s affirmative defense that the plaintiffs paid the assessment voluntarily and without legal compulsion. The court further struck the City’s statute of limitations affirmative defense, finding that the plaintiffs’ claims were not time-barred. The trial court set the trial of the refund issue for May 26, 2004. At this time, the class had not yet been certified. It is undisputed, and the trial court so found in its March 17, 2006 Order, that everyone treated the case as though'the class had been certified.

b. Mediation and Settlement

The parties attempted to mediate two days before the scheduled trial. Although Adorno & Yoss had initially demanded $75 million, they now offered to settle for $35 million, both figures clearly intended for the entire class. Adorno & Yoss also discussed a settlement of the individual claims for $7 million, from which Adorno & Yoss would receive $2 million. The case, however, did not settle at mediation.

The concept of the statute of limitations became the subject during settlement negotiations. The City’s representative, Deputy Fire Chief Maurice Kemp, testified that the expiration of the statute of limitations period within which the class could bring additional taxpayer claims against the City was part of the overall agreement at mediation. Mays likewise admitted that the legal strategy with regard to the settlement was that he would recommend a settlement of the individual claims and present the settlement to the Commission at a time during which the expiration of the statute of limitations period would bar the other taxpayers’ remaining claims. Both former City Manager Joe Arriola and former City Attorney Alex Vilarello were aware of the statute of limitations issue. Adorno Yoss denied having considered the statute of limitations issue in connection with the settlement.

Settlement negotiations continued after mediation concluded. Arriola countered Adorno & Yoss’ $35 million demand with $5 million, but Adorno & Yoss declined the counter-offer as an unacceptable class resolution. Arriola thereafter agreed to settle for $7 million to be paid in two installments, with a stay of all proceedings until the Commission voted to approve the settlement. Adorno & Yoss claimed that it intended to pursue the refund claim on behalf of the class, despite the settlement with the individual plaintiffs.

Adorno & Yoss announced in open court on May 26, 2004, that the parties had settled the case subject to Commission approval. There is nothing on the record to indicate that the trial court was apprised of the settlement. Based on counsel’s representations that the settlement resolved all issues that were going to trial that day, the trial court reset the scheduled trial. The' City agreed to pay in two equal annual payments. The parties did not resolve the apportionment issue, and accordingly the plaintiffs executed only limited releases. Each plaintiff also executed a Non-Disclosure Agreement.

c. City Commission’s Approval

The City learned of the terms of the settlement agreement in a series of internal memoranda. On October 19, 2004, Mays recommended that the City settle the refund portion of the lawsuit with the named plaintiffs. Mays further advised that, because of the passage of the time, no other property owner would be able to maintain a refund action against the City. On November 4, 2004, Mays provided City officials with a proposed Resolution for the following October 28, 2004 Commission meeting. The memorandum indicated that the proposed resolution sought authorization for the settlement of the refund portion of the lawsuit brought by a group of property owners. City officials received another memorandum dated November 16, 2004, in which City Attorney Jorge Fernandez reiterated that the settlement was with the named plaintiffs.

The Commission subsequently passed the resolution and approved the settlement. Each plaintiff signed a limited release, and the City thereafter issued its first installment of $3.5 million pursuant to the settlement agreement.

The original plaintiffs subsequently confirmed that they each received compensation. They also admitted that they had received a significant windfall from the settlement amount, as compared to the refund amount which they would have been entitled to under a class settlement.

d. Intervention of New Plaintiffs

A new group of property owners sought to intervene as prospective class members in January of 2005. These new plaintiffs included appellant Carl L. Masztal, Joseph A. Graupier, Juana Martinez, and Marisol Fernandez.

The new plaintiffs alleged in their motion to intervene that the original plaintiffs could dismiss the action and the class claims because the class had not yet been certified. . The trial court granted the motion to intervene.

e. Settlement Set-Aside

Both the new plaintiffs and the City moved to vacate the settlement. The City argued that the settlement should be set aside on the grounds of unilateral mistake and public policy.

At the evidentiary hearing on the City’s motion to vacate, the City introduced the testimony of City Commissioners Johnny Winton and Jeffrey Allen. Both Commissioners testified that they believed that the settlement was class-wide. Fernandez likewise testified that he believed that the settlement was for the entire class.

The trial court granted the City’s motion to vacate and set aside the agreement on the grounds of unilateral mistake. The trial court found that the City did not know that the settlement was for individual claims, the documents were allegedly conflicting as to the scope of the settlement, and the Commissioners did not exhibit inexcusable lack of due care when they voted to approve the settlement. The trial court further found that there was an implied class action requiring judicial approval of the individual settlement for fairness and reasonableness.

The trial court also granted the Interve-nors’ motion to vacate on the grounds of breach of fiduciary duty and collusion. The trial court then ordered the plaintiffs and their counsel to disgorge and return the first installment paid of $3.5 million to be placed in an account to be administered by counsel under the court’s supervision pending final resolution of the case. The trial court appointed the Intervenors as the class representatives and certified the class.

2. Analysis

We must review the trial court’s findings of fact in this bench trial to determine if they are supported by competent, substantial evidence. See Zerquera v. Centennial Homeowners’ Ass’n, Inc., 721 So.2d 751, 752 (Fla. 3d DCA 1998). Against the foregoing backdrop, we conclude that competent, substantial evidence supports all of the trial court’s findings of fact. The trial court properly vacated the settlement on the grounds that the original plaintiffs and Adorno & Yoss breached their fiduciary duties to the class, and that the City committed a unilateral mistake sufficient to rescind the settlement agreement. We need not address, however, the issue of unilateral mistake or any of the numerous other arguments raised in this appeal, as the parties’ breach of fiduciary duty upon which we affirm is alone sufficient to set aside the settlement.

a. Breach of Fiduciary Duty

Adorno & Yoss argues that the trial court erroneously determined that the original plaintiffs and the firm breached their fiduciary duties to the class because no class had been certified at the time of the settlement, and thus the original plaintiffs could settle their individual claims without a fairness hearing or judicial approval.

We recognize that class certification is indeed a prerequisite to the existence of a class action, and that certification is the appropriate point from which a class action starts. Adorno & Yoss correctly points out that there is no class certification in this case. But from the outset of this case, the original plaintiffs and Adorno & Yoss proceeded on behalf of the class. Class certification here was inevitable, and represented nothing more than a ministerial act, the failure of which cannot be used to circumvent or undermine a fiduciary relationship.

As the Florida Supreme Court stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 421 (1927), a fiduciary duty extends:

to every possible case ... in which there is confidence reposed on one side and the resulting superiority and influence on the other.The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another.

(citations omitted). The law implies a fiduciary relationship “based on the circumstances surrounding [a] transaction and the relationship of the parties.” Maxwell v. First United Bank, 782 So.2d 931, 933 (Fla. 4th DCA 2001). An implied fiduciary relationship will lie when there is a degree of dependency on one side and an undertaking on the other side to protect and/or benefit the dependent party. Id. at 934. In a taxpayer suit, for example, the plaintiffs owe:

[A]t least a minimal duty of fidelity to the taxpayers, on whose behalf the suit is brought and standing procured. Where ... a plaintiff in a taxpayer’s suit seeks personal recompense in absolute disregard of the interests of the taxpayers as a whole, that duty of fidelity is breached.

Allied Minority Contractors Ass’n, Inc. v. Broward County, 738 So.2d 525, 527 (Fla. 4th DCA 1999). Lawyers owe a similar duty of fidelity to their clients, as well as countless other duties to their clients and the courts far too numerous to merit mention within the scope of this opinion, but of no lesser importance.

In this suit over an invalid assessment, at the very least, there was an implied fiduciary relationship between the original plaintiffs, Adorno & Yoss, and the class. The original plaintiffs voluntarily accepted the position of class representation and proceeded to represent the class through the creation of an organization whose purpose was to oppose the subject fee and secure a refund for all taxpayers who had paid the invalid assessment. Adorno & Yoss likewise undertook representation of the original plaintiffs to further their cause and it received payment from them for that purpose. Indeed, Adorno & Yoss admitted, as the record reflects, that the firm represented the putative class throughout the pendency of this action.

b. Prejudice to the Class

Nor do we agree with Adorno & Yoss that the settlement did not prejudice the class. It defies any bounds of ethical decency to view class counsel’s actions as anything but a flagrant breach of fiduciary duty. Both the original plaintiffs and Adorno & Yoss breached their fiduciary duty to the class. The Fourth Circuit stressed in Shelton v. Fargo, Inc., 582 F.2d 1298, 1305 (4th Cir.1978), that class representatives:

[M]ay not abandon the fiduciary role they assumed at will or by agreement with the appellant, if prejudice to the members of the class they claimed to represent would result or if they have improperly used the class action procedure for their personal aggrandizement.

The evidence adduced at trial shows that the original plaintiffs misled the City’s taxpayers into donating money for a class action that merely enriched seven individuals, who received a grossly disproportionate settlement amount. The amount the original plaintiffs settled upon bears no relation to the extent of any damages they paid in the form of assessments during prior years. The original plaintiffs admitted that they received a windfall from the settlement. The original plaintiffs, together with Adorno & Yoss, then conspired to keep silent about the settlement terms, to the detriment of the other taxpayers.

Adorno & Yoss’ conduct further solidified the compromise of the class claims. The firm oversaw the settlement of $7 million which the parties agree could have otherwise resulted in a refund of $24 million to $70 million for the class. Additionally, Adorno & Yoss failed to move the class refund claims along, allowing the City to raise statute of limitations issues that were not otherwise available prior to the inequitable settlement. The language of the settlement actually called for a standstill of the litigation. Furthermore, at no time did Adorno & Yoss exercise candor before the trial court to explain the nature of the settlement. This reprehensible conduct alone is more than sufficient to establish a breach of fiduciary duty.

3. Conclusion

We thus conclude that the original plaintiffs and Adorno & Yoss breached then-fiduciary duty to the class when they agreed to settle and thereby compromised the class claims. The trial court therefore correctly set aside the settlement.

Affirmed.

CORTIÑAS, Judge

(concurring).

The facts and applicable law undeniably require affirmance of this case. In fact, based on its dubious merits, this appeal may have warranted a per curiam affir-mance (“PCA”). However, such a disposition, without comment on the reprehensible conduct of certain attorneys involved in this case (referred to as “original lawyers”), would have only served to further conceal their actions.

It is undisputed that the original class representatives’ claims totaled less than $84,000. Nevertheless, the original lawyers, aided by the complicity of two different City of Miami Attorneys and a City Manager, “settled” $84,000 in claims for $7 million, out of which $2 million would go to Henry N. Adorno’s law firm. The City of Miami Commission was persuaded to approve the $7 million scheme, after being advised by the City Attorney that their exposure was $24 million.

The settlement of $84,000 in claims for $7 million was palatable to the settling parties because of their mutual, albeit mistaken, belief that the statute of limitations was fast approaching and its expiration could be used to deprive the vast majority of property owners of a refund. Thus, the $7 million settlement was conditioned on the supposed expiration of the statute of limitations in October 2004, at which time it was believed that the four-year statute of limitations would have precluded the other property owners from obtaining a refund. On May 26, 2004, when advising the trial court of this settlement, Mr. Adorno, as attorney for the entire class, told the trial court, in pertinent part:

“the Plaintiffs and Defendant have agreed to settle subject to City Commission approval. However, the City Commission approval, the earliest it will occur is October [2004].... ”

The trial judge was not advised that this was an individual settlement or given the terms of the settlement. Adorno later testified that the settling parties did not discuss the statute of limitations and that the $7 million settlement amount was “pulled out of thin air.” However, in order to find Adorno’s testimony regarding the statute of limitations credible, one would have to believe that his reference to October 2004 was coincidental, and that, in the real world, $84,000 in claims are settled for $7 million with $2 million going to Adorno’s law firm. Even if one were so gullibly inclined, it is difficult to ignore the fact that the settling parties also entered into a non-disclosure agreement, which would keep the facts surrounding their scheme private, despite Adorno’s testimony that “the City, under normal terms, entering into a non-disclosure agreement would probably violate ... the public records law, sunshine law.” Apparently, these were not normal circumstances. Not coincidentally, it was not until November 18, 2004, after the supposed expiration of the statute of limitations, that the City Commission was presented with the settlement proposal, which they approved.

In a transparent attempt to legitimize their reprehensible conduct, appellants contend that it is not uncommon for class members of an uncertified class to settle their claims without prejudicing the claims of unnamed class members. They also maintain that they fully intended to pursue the claims of the unnamed class members despite the fact they never did so and, instead, vigorously opposed their intervention in this lawsuit. Moreover, appellants’ position is entirely belied by the testimony of Charles Mays, an attorney for the City of Miami, who testified that this settlement was surreptitiously conditioned on the supposed expiration of the statute of limitations and the concomitant extinguishment of the unnamed class members’ claims. Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine.

Under these unique circumstances, the trial court properly set aside the $7 million settlement agreement based on breach of fiduciary duties to the class.

      . The retainer agreement called for the clients to pay Atlas Pearlman $25,000 for attorney’s fees and costs to fund the claim, and $35,000 to fund an appeal. It also stated that "after the law firm has been reimbursed for its full hourly fees (not including the retainers and cost payments), the retainer amounts and cost payments will be returned to the individuals or entities that advanced the funds.” None of the contributors to the non-profit corporation were reimbursed a penny out of the $7 million settlement.


author: SHEPHERD, J.

text:
    The ESTATE OF Ida ORLANIS, by and through Mary Ellen MARKS, Personal Representative, Appellant, v. OAKWOOD TERRACE SKILLED NURSING AND REHABILITATION CENTER, et al., Appellees.
    No. 3D05-2366.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Rehearing and Rehearing En Banc Denied Dec. 13, 2007.

      Susan B. Morrison, Tampa; Wilkes & McHugh and John R. Cummings, Tampa, for appellant.
    Cole, Scott & Kissane and Christopher B. Hopkins and Allison S. Miller-Bernstein, West Palm Beach; Wicker, Smith, O’Hara, McCoy, Graham & Ford and Shelley H. Leinicke and Rachel I. Turner, Fort Lauderdale, for appellees.
    Before SHEPHERD and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

The Estate of Ida Orlanis appeals a non-final order compelling arbitration. See Fla. R.App. P. 9.130(a)(3)(C)(iv). We conclude the appellees waived their right to arbitrate by seeking the benefits of the rules of discovery before filing their motion to arbitrate and accordingly reverse the order on appeal.

Oakwood Terrace Skilled Nursing and Rehabilitation Center is a skilled nursing care center located in Aventura, Florida. On September 5, 1995, Ida Orlanis and her daughter, Mary Ellen, executed various documents necessary to admit Ida into residence at the facility. Ida resided at the Oakwood Terrace until her death in January 2002. Thereafter, her daughter as personal representative of her mother’s estate, sued both Oakland Terrace and its successor, Regency Park at Aventura, Inc., for wrongful death, negligence, and statutory damages. One of the documents executed upon Ida’s admission to Oakwood Terrace, a Standard Admission Record and Agreement, included an optional arbitration clause. The clause reads:

12. OPTIONAL ARBITRATION CLAUSE (If the parties to this Agreement do not wish to include the following arbitration provision, please indicate so by marking an “X” through this clause. Both parties shall also initial that “X” to signify their agreement to refuse arbitration.) Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code found at Chapter 682, Florida Statutes, and judgement [sic] upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

(Emphasis added.) Neither party deleted the clause. The agreement also contains a clause stating that “in the event that the facility is sold, or license is transferred such that a new licensee operates the facility, this Agreement shall be automatically assigned to the new licensee and shall be fully binding on both parties.” Regents Park concedes it is an assignee of the agreement.

Ida advances numerous arguments challenging the enforceability of the arbitration clause. We conclude, however, that the appellees, Oakland Terrace and Regency Park, have waived any right they had to compel arbitration by affirmatively engaging in discovery on the merits of the claims made against them before filing their respective motions to arbitrate. The offending discovery included interrogatories, requests for production of documents, and notices to produce to non-parties. Although it might be less clear in some of our sister courts, see Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So.2d 25, 26 (Fla. 2d DCA 2001)(questioning whether waiver can be based upon non-record discovery), it is crystal clear in this district that we apply the broad rule that any defendant who “seek[s] the benefits of the discovery rules prior to filing [his] motion to arbitrate,” forfeits his right to arbitration. Preferred Mut. Ins. Co. v. Matrix Constr. Corp., 662 So.2d 432, 432 (Fla. 3d DCA 1995)(“We reverse a trial court’s order referring a matter to arbitration, finding that the appellees waived the right to arbitrate by seeking the benefits of discovery rules prior to filing their motion to arbitrate.”). See also Winter v. Arvida Corp., 404 So.2d 829, 830 (Fla. 3d DCA 1981)(filing of answer and proceeding with discovery constituted “actions [ ] inconsistent with the right to arbitrate”); Coral 97 Assocs. v. Chino Elec., Inc., 501 So.2d 69, 70-71 (Fla. 3d DCA 1987)(“By filing a counterclaim simultaneously with a motion to dismiss and by implementing discovery, Coral fulfilled either of the criteria for finding waiver of its arbitration right”)(emphasis added); Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229, 238 (Fla. 3d DCA 1981)(corporate defendant waived right to arbitrate where it waited eight months after filing of complaint, had pending counterclaim, case was set for trial, and “defendants actively participated in discovery against plaintiffs”). The law in this district seems to admit no exceptions. Both Terrace Oak and Regent Park availed themselves of the benefit of the rules of discovery in this case before arbitration was sought. We reverse the order on appeal and remand for further proceedings in the trial court.

Reversed and remanded with directions.


text:
    Gregory PONTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-634.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 17, 2007.
    Gregory Ponton, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before GERSTEN, C.J., and FLETCHER and SUAREZ, JJ.
   SUAREZ, J.

Gregory Ponton seeks to reverse a final order denying a petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Ponton was convicted in 1997 after a jury trial for several counts of burglary with assault/battery while armed, armed robbery, aggravated assault with a firearm, aggravated battery, attempted kidnapping, armed burglary, and attempted robbery. He was sentenced as a habitual violent felony offender to three consecutive life sentences, with three concurrent fifteen-year mandatory minimum sentences. Ponton filed a direct appeal and this court affirmed his convictions and sentences. Ponton v. State, 744 So.2d 1009 (Fla. 3d DCA 1999). Ponton appealed this decision to the Florida Supreme Court, which dismissed the petition. Ponton v. State, 761 So.2d 330 (Fla.2000). While his appeal was pending in the Florida Supreme Court, Ponton filed his first post-conviction relief motion with the trial court, which dismissed it without prejudice pending resolution of the direct appeal, and Ponton appealed that decision to the Third District. This Court affirmed the trial court’s dismissal. Ponton v. State, 756 So.2d 1018 (Fla. 3d DCA 2000). Ponton has since filed four additional post-conviction motions, three of which raised identical issues; the fourth petition raised new issues, but the trial court denied the petition and this Court affirmed.

Ponton files this current petition pursuant to Florida Rule of Criminal Procedure 3.850. As an initial matter, he is out of time for filing a petition under this rule and Ponton provides no legal exceptions that would overcome that procedural bar. See Fla. R.Crim. P. 3.850(b). Further, each of the seven claims Ponton raises in this petition is an assertion of trial court error and an attack on his conviction. Ponton does not assert ineffective assistance of trial counsel. These claims of judicial error could have and should have been raised on direct appeal and are therefore procedurally barred. See Robinson v. State, 913 So.2d 514, 524 n. 9 (Fla.2005) (holding that a claim of trial court error is procedurally barred on a post-conviction appeal because it should have been raised on direct appeal).

Because the issues Ponton has raised in his petition are issues that he had every chance to raise on direct appeal or in a timely post-conviction relief motion, and because he is outside of the two-year window of Rule 3.850, Ponton is now foreclosed from relief.

Affirmed.


text:
    Thomas B. KEE and Helen Kee, Appellants, v. BAPTIST HOSPITAL OF MIAMI, INC., a Florida non-profit corporation; South Dade Healthcare Group, Ltd., d/b/a Deering Hospital; Allan Herskowitz, M.D.; Michael Latterman, D.O.; Inphynet Contracting Services, Inc.; South Florida Emergency Physicians, Inc.; Mitchell Gregg, M.D., Jorge Fleites, M.D. and Florida Patients Compensation Fund, Appellees.
    No. 3D06-2476.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Jan. 2, 2008.

      John W. Kearns, Coral Gables, for appellants.
    Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis and Rosemary B. Wilder, Coral Gables, for appellees.
    Before RAMIREZ, WELLS, and SHEPHERD, JJ.
   RAMIREZ, J.

Thomas B. Kee and Helen Kee appeal an award of attorney’s fees and costs entered in favor of appellee Baptist Hospital of Miami, Inc. in this medical malpractice case. We affirm because the underlying settlement proposal of Baptist Hospital was not too ambiguous and was thus enforceable.

The Kees filed a complaint against Baptist Hospital and other healthcare providers in which they alleged that the healthcare providers failed to diagnose and properly treat Mr. Kee’s stroke. Baptist Hospital thereafter filed its Proposal for Settlement in the sum of $600.00. The proposal required the Kees to execute both a General Release and Hold Harmless and Indemnity Agreement. The Hold Harmless and Indemnity Agreement obligated the Kees to hold Baptist Hospital harmless and indemnify Baptist Hospital as follows:

[F]rom any and all existing, or potentially existing, liens or other claims which any person or entities may have on the damages sought in this lawsuit arising out of [the Kees’] claims or potential claims in this case.

The Proposal for Settlement also provided that the Kees and the Kees’ counsel:

[S]hall agree that all known liens or other claims of third parties, including but not limited to, health care providers of [the Kees], will be satisfied and extinguished by [the Kees] and [the Kees’] counsel.

The Kees did not respond to the proposal and the litigation continued for several years. The trial court subsequently granted summary judgment in Baptist Hospital’s favor, and then entered final judgment awarding fees and costs in the sum of $160,912.80 in favor of Baptist Hospital.

The Kees argue that the trial court incorrectly enforced the Proposal for Settlement because the proposal was ambiguous under the Florida Supreme Court’s decision in State Farm Mut. Auto., Ins. Co. v. Nichols, 932 So.2d 1067 (Fla.2006). We are mindful of the requirements which must be satisfied for a proposal for settlement to be valid in accordance with section 768.79, Florida Statutes (2001), and rule 1.442, Florida Rules of Civil Procedure. But we do not agree that Florida law or the Nichols case, upon which the Kees exclusively rely in this appeal to invalidate the proposal on ambiguity grounds, mandates reversal here.

First, the Nichols case is factually dissimilar. The language in the settlement proposal in Nichols, for example, varies significantly from the language in the settlement proposal here. The proposal for settlement in Nichols stated at the outset that it would be:

[A] full and final satisfaction and settlement of any and all of Nichols’s claims and causes of action in, or arising out of the above-styled case.

Id. at 1079. Then it provided that Nichols would be required to:

[EJxecute a General Release in favor of State Farm, which will be expressly limited to all claims, causes of action, etc., that have accrued through the date of Nichols’s acceptance of this Proposal.

Id. The settlement proposal here contains no such language.

More importantly, the Florida Supreme Court held in Nichols that the proposal for settlement was too ambiguous because the settlement proposal failed to eliminate the ambiguity regarding one of two claims which Nichols had. Id. at 1078. At the time during which the offer was made, Nichols had two pending claims: one was a PIP claim against State Farm, and another an uninsured motorist claim arising out of the same accident. Id. It appeared as though Nichols, in order to settle one claim, would have had to sign a general release which would release his second claim as well. The release was thus unclear as to whether or not the second claim would also be released in the settlement of the first claim. There is no similar ambiguity in this case. Baptist Hospital offered to settle all claims against Baptist Hospital only, and it did not limit the Kees’ ability to recover against any other defendant.

Other Florida cases finding ambiguity are distinguishable as well. In Palm Beach Polo Holdings, Inc. v. The Village of Wellington, 904 So.2d 652, 653-54 (Fla. 4th DCA 2005), the Fourth District held that the proposal for settlement was legally deficient because it could have extinguished pending unrelated claims where there were multiple suits pending between the parties. By contrast, the situation here does not involve another pending action or potential lawsuit by the Kees against a party whose claim would be extinguished by accepting the proposal and executing the releases. The proposal in this case clearly offered to settle all claims against Baptist Hospital only, not claims against any other party.

Similarly, in Morgan v. Beekie, 879 So.2d 110, 111 (Fla. 5th DCA 2004), the Fifth District found the proposal ambiguous because the proposal did not state or identify whether the demand related to pending property damage claims or personal injury claims. The same situation occurred in Dryden v. Pedemonti, 910 So.2d 854 (Fla. 5th DCA 2005). In that case, the trial court found the proposal for settlement was ambiguous because it was unclear whether the language contained in the proposal would release PIP benefits claims or health insurance claims. Id. at 856-57. Again, this is not the situation here.

We thus conclude that the language of the settlement proposal limited recovery against Baptist Hospital to claims arising in relation to this case, and in no way interfered with the Kees’ ability to raise and recover as against any third party. Accordingly, the Proposal for Settlement was not too ambiguous. This is consistent with the Nichols case and more recent cases.

We also reject the argument that the Proposal for Settlement is ambiguous as to whether or not the Kees’ counsel must guarantee payment of any hospital liens to the extent that these are satisfied and extinguished. Furthermore, we decline to address the Kees’ contention that Baptist Hospital’s offer of settlement was not made in good faith, an argument which they inappropriately raise for the first time on appeal. For these reasons, we affirm the final judgment awarding Baptist Hospital attorney’s fees and costs.

Affirmed.


text:
    Dale Lee LENOIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1788.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing and Rehearing En Banc Denied Dec. 13, 2007.
    Dale Lee Lenoir, in proper person.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, and Richard L. Polin, Bureau Chief, for appellee.

      Before COPE, GREEN, and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals the denial of a petition for writ of habeas corpus on grounds that he was improperly denied a belated appeal of his convictions for attempted second-degree murder and unlawful possession of a firearm while engaged in a criminal offense. We affirm the trial court’s order denying the petition for writ of habeas corpus.

In April of 1992, the defendant was convicted of second-degree attempted murder and unlawful possession of a firearm while engaged in a criminal offense. His convictions were affirmed on direct appeal. See Lenoir v. State, 611 So.2d 112 (Fla. 3d DCA 1993). On January 23, 1995, he filed a Florida Rule of Criminal Procedure 3.850 post-conviction relief motion which was denied by the trial court. The defendant filed a notice of appeal of the denial of the 3.850 motion which was affirmed by this Court. See Lenoir v. State, 654 So.2d 929 (Fla. 3d DCA 1995). The defendant has filed numerous motions to vacate his sentence and for post-conviction relief in addition to petitions for writ of mandamus and habeas corpus-all of which have been denied by the trial court and affirmed by this Court.

In his instant appeal, the defendant contends that he is entitled to a belated appeal because he was improperly denied an evidentiary hearing on his January 23, 1995, 3.850 motion for post-conviction relief. The State contends there is no entitlement to a belated appeal of the order denying the motion filed in 1995, as more than two years has elapsed. Florida Rule of Appellate Procedure 9.141(c)(4) imposes a two-year, time limit on a petition for a belated appeal. The only exception is if the petitioner was unaware that an appeal h*ad not been timely filed or was not advised of the right to appeal. The defendant admits that he filed a notice of appeal of the 3.850 motion, and that it was ruled upon by the trial court and affirmed by this Court in 1995. Obviously, he was aware of the necessity to timely file the appeal. Therefore, his petition does not fall within the exceptions to the two-year, time limitation. Since all judicial effort on the post-conviction motion has terminated, see Munoz v. State, 811 So.2d 813 (Fla. 3d DCA 2002), the defendant is barred from seeking a belated appeal under Florida Rule of Appellate Procedure 9.141(c)(4).

On an appeal from the denial of a petition for writ of habeas corpus, there is no authority to reopen a motion which already has been denied and appealed, both as a direct appeal and as a post-conviction appeal.

We affirm the trial court’s denial of the petition for writ of habeas corpus.


author: COPE, J.

text:
    Bobby Allen BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-339.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 2, 2008.

      See also, 307 So.2d 921.
    Bobby A. Bryant, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

Bobby Allen Bryant filed a motion under Florida Rule of Civil Procedure 1.540, seeking to attack his conviction and sentence for first degree murder committed in 1968. The trial court denied the motion, and defendant-appellant Bryant has appealed.

The defendant was incorrect to file a motion under Rule 1.540. The Florida Supreme Court has said, “[B]y its own terms, Rule 1.540 applies only to civil causes, not to collateral claims associated with a criminal conviction.” Steinhorst v. State, 636 So.2d 498, 500 (Fla.1994); see also Williams v. State, 925 So.2d 427 (Fla. 3d DCA 2006). When such a motion is filed, it is to be treated as if it had been filed under the correct postconviction rule. See Steinhorst, 636 So.2d at 500; Williams, 925 So.2d at 428.

A claim that the trial court was without jurisdiction may be raised under Florida Rule of Criminal Procedure 3.850(a)(3). Under the case law, “absence of jurisdiction may be raised at any time.” Harris v. State, 854 So.2d 703, 705 (Fla. 3d DCA 2003), and cases cited therein.

Treating the motion as having been filed under Rule 3.850, the motion was correctly denied. Defendant-appellant Bryant maintains that the circuit court was without jurisdiction to try him because he was seventeen at the time he committed his crime in 1968. The defendant maintains he should have been tried in the juvenile court.

The defendant’s argument is based on a mistaken premise. In 1968 a juvenile was a person who was under the age of seventeen at the time of the crime. See § 39.01(6), Fla. Stat. (1967). ' A person who had attained the age of seventeen was treated as an adult. Id. at § 39.01(7). Since the defendant was seventeen at the time he committed the crime, he was an adult for purposes of the criminal law, and was properly prosecuted as an adult.

The defendant has requested that the lower tribunal number be corrected. That point has merit. The defendant’s first degree murder case was one in which the death penalty was sought. See Bryant v. State, 307 So.2d 921 (Fla. Sd DCA 1975). Under the numbering system in effect at the time, the correct lower tribunal number was 2532. We remand for correction of the lower tribunal number.

Affirmed; remanded for correction of lower tribunal number.

       Although not relevant for this appeal, the juvenile court became part of the circuit court in 1973. See § 26.012(2)(a), Fla. Stat. (Supp. 1972); ch. 72-404, §§ 3, 31, Laws of Fla.; S.J. Res. 52-D, 1972 Laws of Fla., 97,112.


author: CORTINAS, Judge.

text:
    Armando CASTILLO, Mercedes Castillo, and Carlos Castillo, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY and State Farm Fire & Casualty Company, Appellees.
    No. 3D06-2874.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 31, 2007.
    Childress Duffy Goldblatt and Michael Childress and John S. Sawin, Chicago, IL, for appellants.

      Paul L. Nettleton, Miami, for appellees.
    Before WELLS and CORTINAS, JJ., and FLETCHER, Senior Judge.
   CORTINAS, Judge.

Plaintiffs, Armando, Mercedes, and Carlos Castillo (collectively “the Castillos”) appeal from an adverse final summary judgment entered in favor of defendants, State Farm Florida Insurance Company and State Farm Fire and Casualty Company (collectively “State Farm”).

The Castillos filed suit against State Farm for breach of contract arising out of the denial of an insurance claim they made under their homeowners’ insurance policy. In their complaint, the Castillos alleged that “nearby blasting created shockwaves and vibrations which damaged the insured dwelling without displacement or permanent displacement of the earth” and that the amount for the repair “of the blasting damages” was $74,761.83.

State Farm filed a motion for summary judgment contending that, even accepting all of the Castillos’ allegations as true, the Castillos could not establish a breach of contract because, pursuant to our holding in State Farm Fire & Casualty Co. v. Castillo, 829 So.2d 242 (Fla. 3d DCA 2002) (“Castillo I”), the Castillos’ damages were excluded from coverage. In its motion, State Farm argued that the policy excluded damages caused by vibrations and shockwaves passing through the earth from nearby blasting based' on the clear and unambiguous language of the following provision:

SECTION I — LOSSES NOT INSURED
2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of
b. Earth Movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion....

(Emphasis added). Relying on our holding in Castillo I, the trial court entered summary judgment in favor of State Farm, finding that coverage was precluded under the “earth movement exclusion” in State Farm’s policy.

In Castillo I, we addressed whether an “earth movement exclusion” in State Farm’s homeowner’s insurance policy excluded damages from both natural and man-made events. Castillo I, 829 So.2d at 245. The Castillo I exclusionary clause defined “earth movement” as:

the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion. Earth movement also includes volcanic explosion or lava flow, except as specifically-provided ....

Id. at 243-244. The exclusionary clause also contained a lead-in provision which set forth that:

We do not insure for loss regardless of: (a) the cause of the excluded event; or (b) other causes of loss; or (c) whether other causes acted concurrently or in sequence with the excluded event to produce the loss....

Id. (emphasis added). Adopting the interpretation of a majority of other courts which have considered this precise policy language and found no ambiguity in the policy’s provisions, we held that the exclusionary clause, when read in conjunction with the lead-in provision, expanded the scope of the exclusion to preclude coverage for any loss resulting from earth movement regardless of the cause of the earth movement. See id.; Rhoden v. State Farm Fire & Cas. Co., 32 F.Supp.2d 907 (S.D.Miss.1998); State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042 (Alaska 1996); Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 628 N.Y.S.2d 988 (1995); Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272 (Utah 1993); Rodin v. State Farm Fire & Cas. Co., 844 S.W.2d 537 (Mo.Ct.App.1992).

Subsequent to our decision in Castillo I, the Florida Supreme Court considered the issue of whether damages caused by blasting were covered under an all-risk insurance policy that also contained an “earth movement exclusion.” Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1084 (Fla.2005). The Fayad exclusionary clause defined “earth movement” as “earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting....” Id. However, unlike the policy in Castillo I, the policy in Fayad did not contain a lead-in provision excluding coverage “regardless of [ ] the cause of the excluded event.” IcL at 1088. Based on this distinction, the Court found that the Fayad exclusionary clause was ambiguous and applied the principle of ejusdem gen-eris. See id. at 1087-89 (adopting the interpretation of a majority of courts which have construed an all-risk insurance policy that contains an “earth movement exclusion” but does not contain a lead-in provision excluding coverage for damage from earth movement “regardless” of its cause). In so doing, the Fayad court looked to the terms which preceded the language “earth sinking, rising or shifting” in the exclusionary clause and found that, because the terms “earthquake,” “landslide,” and “mudflow” generally denote natural disasters or perils, the insurer must have intended that the “earth movement exclusion” preclude from coverage damage caused only by the enumerated natural disasters or perils, which are natural events. Id. at 1088. Because man-made blasting is an explosion that does not ensue from or follow one of the enumerated natural disasters or perils, the court held that the insurer’s policy provided coverage for damage caused by a man-made event such as blasting. Id. at 1089-90.

The case before us is distinguishable from both Castillo I and Fayad. This case involves allegations that vibrations and shockwaves caused by blasting and without displacement of the earth resulted in damage to an insured dwelling. The policy does not specifically address whether or not damages caused by blasting, shock-waves, or vibrations categorically fall under “earth movement” and would, therefore, be excluded from coverage. Thus, the allegations raised by the Castillos, if true, may fall outside the earth movement exclusion.

“[W]hen the terms of the contract are ambiguous [and] susceptible to different interpretations, parol evidence is admissible to ‘explain, clarify or elucidate’ the ambiguous term.” Strama v. Union Fid. Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001) (citing Friedman v. Va. Metal Prods. Corp., 56 So.2d 515, 517 (Fla.1952)). Given that the policy is ambiguous as to whether damages caused by shockwaves and vibrations in the absence of displacement of the earth are covered, State Farm’s internal operating guideline OG 75-105 (“OG 75-105”) is both instructive and admissible as parol evidence. The allegations by the Castillos that vibrations and shockwaves actually occurred and damaged the insured dwelling without accompanying displacement of the earth appear to be contemplated as a potentially covered loss by State Farm. For example, OG 75-105 provides in pertinent part:

V. BLASTING AND RELATED VIBRATION LOSSES WITH EARTH MOVEMENT
A. Damage from blasting, headache balls, etc. cannot occur unless the earth moves. Therefore, the ‘in the absence of language found in the earth movement exclusion would apply to eliminate coverage.
By interpretation, coverage will be provided for damage as a result of shockwaves being transmitted through the earth so long as there is no permanent displacement of the earth itself.
B. Several examples may assist in applying this interpretation:
1. Blasting throws earthen debris directly upon the building causing damage which would not have occurred had the earth not been projected against the building. This would be considered as direct blast damage and the claim should be paid.
On the other hand, blasting which destabilizes the hillside, which in turn creates a landslide that damages the insured dwelling would fall within our definition of earth movement as ‘landslide’ and is directly addressed in the exclusion. This would not be a payable claim.
2. Blasting that causes shock-waves/vibration to be transmitted through the earth to the insured dwelling and which shockwaves damage the dwelling without displacement of the earth would be considered a covered loss.
However, if the shockwaves caused the earth beneath the dwelling to settle, sink, or otherwise become permanently displaced, we would attempt to separate the damages caused by the settlement from those caused by the vibration and pay only those caused by the vibration.

(Emphasis added). By its own guidelines, State Farm envisions a possible scenario where shockwaves and vibrations caused by blasting may result in damage to an insured dwelling without displacement of the earth. Not only does such an event appear to be conceivable, State Farm even acknowledges that such a loss would be covered.

Whether or not the shockwaves and vibrations alleged by the Castillos damaged their dwelling without displacement of the earth is an issue of material fact. The burden is upon the party moving for summary judgment to demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Pennco, Inc. v. Am. Gen. Home Equity, Inc., 629 So.2d 307 (Fla. 2d DCA 1993). Moreover, the movant must “demonstrate conclusively that the non-moving party cannot prevail.” Pennco, 629 So.2d at 308. Here, the Castillos specifically alleged that the damages to the dwelling occurred without the displacement of the earth, permanent or otherwise, and while such an event may prove to be improbable, State Farm has presented no evidence conclusively foreclosing this possibility, for which coverage exists under the Castillos’ policy.

Furthermore, in Florida, “[w]hen an insurer relies on an exclusion to deny coverage, it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation.” Northland Cas. Co. v. HBE Corp., 160 F.Supp.2d 1348, 1359 (M.D.Fla.2001). “Once the insured establishes a loss apparently within the terms of an all-risk policy, the burden shifts to the insurer to prove that the loss arose from a cause which is excepted.” B & S Assocs., Inc. v. Indem. Cas. & Prop., Ltd., 641 So.2d 436, 437 (Fla. 4th DCA 1994) (citing Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. 2d DCA 1984)). In the case before us, the Castillos specifically alleged in their complaint that the blasting “created shock-waves and vibrations which damaged the insured dwelling,” without “displacement or permanent displacement of the earth.” On its face, this allegation appears to fall outside the exclusion despite the language of the lead-in provision which precludes coverage “regardless of ... the cause of the excluded event” when the loss would not have occurred in the absence of an excluded event. State Farm, however, has not met the burden of demonstrating that the loss resulted from a cause excepted from coverage, and furthermore did not demonstrate that there were no genuine issues of material fact. For these reasons, the entry of summary judgment in favor of State Farm was improper.

Castillo I, which is heavily relied upon by State Farm, is distinguishable because, in that case, we reviewed the issuance of a summary judgment in favor of an owner which did not involve the same issues before us in this matter. Notably, Castillo I did not involve issues of whether the insurance carrier met its burden of providing evidence to support its position that the exclusion at issue covered the alleged claim, nor did it address the existence of any genuine issues of material fact. Furthermore, in Castillo I, the issue before us was whether the earth movement exclusion applied to both natural and man-made occurrences. Additionally, there was undisputed record evidence that the damage to the dwelling in Castillo I was caused by “earth movement generated by nearby blasting.” There is no such undisputed record in this case. On the contrary, the Castillos have alleged that their damages occurred without any displacement of the earth. For these reasons, Castillo I is distinguishable from this case.

Based upon the foregoing, the entry of summary judgment in favor of State Farm was improper.

Reversed.

      . Even though the plaintiffs in this case share the same surname as the plaintiffs in Castillo I, the cases involve different parties and are unrelated.

      . The principle of ejusdem generis provides that "where general words follow an enumeration of specific words, the general words are construed as applying to the same kind or class as those that are specifically mentioned.” Fayad, 899 So.2d at 1088-89 (citing Arnold v. Shumpert, 217 So.2d 116, 119 (Fla.1968)).

      . In Castillo I, the trial court appointed an umpire who determined that the damage to the insureds' home was caused by earth move-merit from blasting in the general vicinity. Castillo I, 829 So.2d at 243.


author: ROTHENBERG, Judge.

text:
    Mario PIERRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2401.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 12, 2007.
    Mario Pierre, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The appellant, Mario Pierre (“Pierre”), filed a petition with the Florida Supreme Court attempting to invoke the Court’s all writs jurisdiction. The Florida Supreme Court transferred the petition to the circuit court for consideration as a motion for postconvietion relief pursuant to either Florida Rule of Criminal Procedure 3.850 or 3.800(a). Although the trial court failed to articulate under which rule its denial was based, we affirm.

In his petition and this appeal, Pierre contests the life sentence imposed pursuant to a finding of guilt as to armed kidnapping. The life sentence imposed was an upward departure from the recommended sentencing guidelines based upon Pierre’s escalating pattern of criminal behavior. As Pierre’s life sentence on this count was an upward departure and the trial court failed to submit written reasons for imposing the upward departure, Pierre filed a motion to correct his sentence. Based upon this motion, the trial court conducted a hearing and signed the transcript of the original sentencing hearing, stating that the transcript would serve as the court’s written order. Pierre contends that his sentence is illegal because: (1) the trial court did not file a separate written order articulating its reason(s) for the departure sentence, and (2) the ground for the upward departure was determined by the trial court, not the jury.

We find that Pierre’s first claim, that the trial court erred by failing to file a written order articulating its grounds for imposing a departure sentence, has already been litigated and decided adversely to Pierre by this court. See Pierre v. State, 821 So.2d 1174, 1175 (Fla. 3d DCA 2002) (rejecting Pierre’s argument that his departure sentence must be vacated because the trial court failed to file written reasons within the time allowed under sentencing statute, where at hearing on Pierre’s motion to correct sentence, trial court signed the transcript of the original sentencing hearing, stating that the signed transcript would stand as the departure order) (citing Mandri v. State, 813 So.2d 65 (Fla.2002)).

As to his second claim, Pierre relies on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ap-prendi, however, only applies to sentences which exceed the statutory maximum. See Glennon v. State, 937 So.2d 1149, 1149 (Fla. 5th DCA 2006); Altman v. State, 852 So.2d 870, 876 (Fla. 4th DCA 2003). As the statutory maximum penalty for the crime of armed kidnapping is life imprisonment, Pierre’s sentence is not illegal based upon Apprendi.

While we recognize that the United States Supreme Court in Blakely extended application of Apprendi to sentences which exceed the recommended sentencing guidelines, even if the sentence imposed is less than the statutory maximum for the offense, Blakely was issued over two years after Pierre’s convictions and sentences became final and Blakely does not apply retroactively to sentences which became final prior to its issuance. See Hughes v. State, 901 So.2d 837, 848 (Fla.2005).

Affirmed.

      . Pierre was convicted after a jury trial of burglary, two counts of aggravated battery, and one count of armed kidnapping.


author: PER CURIAM. RAMIREZ, J.

text:
    Diane D. FERRARO, n/k/a Diane Deighton, Appellant, v. James L. FERRARO, Appellee.
    No. 3D06-1876.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 8, 2008.

      Kohlman Hernandez and Robert F. Kohlman; and Greene Smith & Associates, and Cynthia L. Greene, Miami, for appellant.
    Dino G. Galardi, Coral Gables, for appel-lee.
    Before GERSTEN, C.J., and GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Diane D. Ferraro, n/k/a Diane Deighton (the Mother), appeals from an order denying her petition to modify child support. We affirm.

The parties have three children. When their marriage was dissolved, the court ordered James L. Ferraro (the Father) to pay child support. In the parties’ most recent child support modification agreement, the Father agreéd to pay child support of $12,000 per month directly to the Mother. Thereafter, the Mother petitioned the court for an upward modification of this amount.

The Mother’s petition was referred to a general magistrate who held a two-day trial. The general magistrate found that since the previous modification agreement, the Father has consistently and continuously paid the Mother the $12,000 per month in direct child support.

In addition, the Father has paid for medical, health, and dental insurance costs, one half of all medical, health, and dental expenses over $3,000 per year, and all private school tuition, fees, books, and tutoring costs for all three children. The general magistrate also found that the Father is paying all expenses, including tuition, fees, books, room and board, and incidentals for the parties’ oldest son who is away at college.

The trial court requested the general magistrate to provide more specific findings. The general magistrate further found that the parties’ middle child is currently in a full-time residential facility for which the Father is paying. Additionally, the Father is paying the oldest, child’s automotive expenses of approximately $1,500 per month, as well as the cell phone bills for all three children. The Father also pays for all expenses on the former marital residence where the Mother and the youngest child reside.

The general magistrate also recognized that a strict mathematical application of the child support guidelines obligates the Father to approximately $44,680 per month in child support. However, the general magistrate again recommended denial of the Mother’s motion to modify the child support.

The trial court carefully considered the evidence in the case and the general magistrate’s findings and conclusion. It agreed with the general magistrate’s recommendation that the circumstances warranted deviating from the guidelines. See 61.30(l)(a), Fla. Stat. (2002) (stating that a trier of fact may order child support which varies from the guideline amount where the guideline amount would be unjust or inappropriate); Finley v. Scott, 707 So.2d 1112, 1116 (Fla.1998) (affirming that the actual expenditures for the needs of the child should be weighed in determining whether to vary the guideline amount).

In Miller v. Schou, 616 So.2d 436, 438 (Fla.1993), the Florida Supreme Court held that an increase in ability to pay is itself sufficient to warrant an increase in child support. However, the Court recognized that “[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle,” and “Florida’s trial courts are fully capable of making the determination of an appropriate amount of support in these cases.” Miller, 616 So.2d at 439; see also Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999) (denying modification where the court found that the children, even considering the substantial wealth of their father, lacked nothing).

Here, the general magistrate found that the children’s needs were being met by the $12,000 the Father was paying directly to the Mother, as well as the additional indirect payments of at least $16,770. This finding was supported by competent substantial evidence. Where a general magistrate is appointed to make factual determinations, the trial court is bound by such determinations provided they are supported by competent substantial evidence which are not clearly erroneous. Robinson v. Robinson, 928 So.2d 360, 362 (Fla. 3d DCA 2006).

Accordingly, we affirm the order denying a modification of child support under the overwhelming circumstances in this case.

Affirmed.

GERSTEN, C.J. and GREEN, J„ concur.

RAMIREZ, J.

(dissenting).

I respectfully disagree with the majority’s affirmance in this case under the authority of Miller v. Schou, 616 So.2d 436 (Fla.1993). The Miller case, in fact, would support a reversal.

The mother appealed the trial court’s denial of her exceptions to the report and recommendations of the hearing officer because the hearing officer’s conclusions were legally erroneous. In particular, she alleges as error the fact that the hearing officer’s report stated that “the mother has not met her burden of proof to support an upward modification of child support. The children’s needs are being fully met....” As Miller makes clear, the hearing officer is simply wrong as a matter of law. Miller states, “a substantial change in the paying parent’s income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need.” Id. at 437. The mother presented overwhelming evidence that the father’s income had increased substantially.

The father had been paying $12,000 per month in child support. The hearing officer found that the presumptive child support amount to be awarded pursuant to the child support guidelines was $23,483 per month for one child; $35,294 for two children; and $44,680 for three children. Under section 61.30(l)(b), of the Florida Statutes, the guidelines establish a substantial change in circumstances upon which a modification may be granted if the difference between the existing monthly obligation and the amount provided for under the guidelines is at least fifteen percent. Because the father is paying less than twenty-seven percent of the guidelines’ presumptive child support, I believe the mother sustained her burden of proving a substantial change.

The evidence presented at the hearing overwhelmingly confirmed a substantial change in the father’s income. The parties settled upon an initial amount of child support in a 1995 agreement whereby the father would pay $6,500 per month, an amount not computed in accordance with the guidelines. Thereafter, the parties agreed to increase the child support to $10,000 per month and later, in the year 2000, the parties agreed to a further increase to $12,000 per month. None of these modifications were computed based upon any form of financial disclosure or upon the child support guidelines.

In 2003, the mother petitioned for modification. The hearing officer found that the father’s net monthly income was $453,483, yielding a net annual income of $5,441,796. It is undisputed that this was substantially higher than his prior income.

The majority opinion does not address the hearing officer’s erroneous legal analysis. Understandably, the amount of child support the mother is receiving does not elicit much sympathy for her cause. Perhaps using the correct legal analysis, the hearing officer would have arrived at the same result, but I believe placing the burden on the mother may have skewed the result. We can review de novo the hearing officer’s legal reasoning.

I agree with the majority opinion that factual determinations should be affirmed if supported by competent substantial evidence, but there is nothing on the record to support the finding that the father was paying $12,000 per month when it is undisputed that he has been paying $9,000 per month. Evidently, the hearing officer believed that $12,000 per month met the needs of the parties’ two minor children. Neither the circuit judge nor the majority of this panel have addressed this discrepancy. I believe the trial court abused its discretion in not correcting this error and in not ordering the father to pay $12,000 per month retroactively. Nierenberg v. Nierenberg, 758 So.2d 1179, 1180 (Fla. 4th DCA 2000) (finding that the trial court erred in failing to make child support modification retroactive to date of petition for modification; retroactive award in such cases is the rule rather than the exception). See, e.g., Brock v. Brock, 695 So.2d 744, 745 (Fla. 1st DCA 1997).

I would reverse.


text:
    Cesar A. HERNANDEZ-CANTON, Elvis Cruz, William Hopper, Jack Wolfe, and Al Sasiadeck, Petitioners, v. MIAMI CITY COMMISSION, City of Miami, Kubik, LLC, and Biscayne Premier Investments, Inc., Respondents.
    No. 3D07-465.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing and Rehearing En Banc Denied Jan. 2, 2008.

      See also 917 So.2d 293.
    Michael A. Sastre, Miami, for petitioners.
    Greenberg Traurig, P.A., and Elliot H. Scherker and Lucia Dougherty and Brigid F. Cech Samóle, Miami; Jorge L. Fernandez, City Attorney, and Rafael Suarez-Rivas, Assistant City Attorney, for respondents.
    Before COPE, RAMIREZ, and SALTER, JJ.
   COPE, J.

The question before us in this proceeding is whether the Miami City Commission misinterpreted this court’s prior ruling in Morningside Civic Ass’n, Inc. v. City of Miami Comm’n, 917 So.2d 293 (Fla. 3d DCA 2005). We conclude that our prior ruling was misinterpreted. We therefore remand for a new hearing.

In 2004, the Miami City Commission enacted a zoning resolution granting approval for a development proposed by Rubik, LLC and Biscayne Premier Investments, Inc. (collectively “the developer”). At the hearing before the City Commission, there was a disagreement about which version of Section 1305 of the Miami City Code would be applicable. Section 1305 had been amended in January 2004. The developer and the City Commission took the position that the old version was applicable. The objectors argued that the new version was applicable. Id. at 294.

The City Commission applied the old version and approved the project. The objectors sought certiorari review in the circuit court appellate division, which denied certiorari.

On second-tier certiorari review in this court, we concluded that the new version of Section 1305 was the applicable version. Id. Our court concluded that the City Commission and the appellate division of the circuit court had applied the incorrect law. Id. We quashed the ruling of the appellate division of the circuit court, id., and by unpublished order on motion for clarification, stated that “[t]he matter shall be remanded by the Circuit Court to the Commission for further proceedings consistent with this court’s opinion.” Order, March 22, 2006.

When the matter returned to the City Commission, there was a disagreement about how to interpret this court’s opinion. The City Attorney took the view that our court had left the 2004 zoning resolution intact, and had simply remanded so that the City Commission could make findings in support of its 2004 resolution. The objectors argued that the earlier zoning resolution could not stand in view of this court’s determination that the 2004 resolution was based on the wrong law, i.e., the wrong version of Section 1305.

The City Commission accepted the proposition that its 2004 zoning resolution had not been overturned. The City Commission enacted a new zoning resolution which made the findings contemplated by the new version of Section 1305. The objectors sought certiorari review in the appellate division of the circuit court, which was denied.

The objectors then sought second-tier certiorari review in this court. The petition for certiorari is well taken.

We must respectfully say that our prior opinion was misinterpreted in the proceedings on remand. In order for the developer’s application to be approved, it was necessary for the developer to demonstrate compliance with the new version of Section 1305. Since the City Commission in 2004 applied the old version of Section 1305, it follows that the 2004 zoning resolution was defective and had to be set aside. It was necessary for the City Commission to conduct a new hearing and make a determination whether the developer’s proposed project does, or does not, comply with the new version of Section 1305.

We therefore grant certiorari and quash the decision of the circuit court appellate division. We vacate the 2006 and 2004 zoning resolutions. We remand this matter to the circuit court appellate division, with directions to remand the matter to the City Commission for a new hearing and determination by the City Commission whether the proposed project does, or does not, comply with Section 1305 as amended in 2004.

At the new hearing, the developer has the burden of demonstrating compliance with the new version of Section 1305. The City Commission must reopen the record and afford the developer and the objectors an opportunity to present new evidence if they so choose. Alternatively, the developer and the objectors are free to rely on the existing record if they so choose.

We address two other issues raised by the objectors in their petition. The objectors complain that, at the hearing below, the City Commission did not allow adequate time for the objectors to present their position. Under the circumstances of this case, we agree. The new version of Section 1305 contains nine Design Review Criteria, some of which have multiple subdivisions. The City Commission was asked to make a total of twenty-five findings relating to the Design Review Criteria and their subdivisions. The City Commission allotted only eight minutes per side for the developer and the objectors to make their presentations. Under the circumstances, we must respectfully state that eight minutes per side was too short a time allotment. While we do not specify any particular length of time, on remand a reasonable time allotment shall be given to each side.

Second, the objectors in their petition raise a facial constitutional challenge to Section 502(c) of the City of Miami Zoning Code, which is the City’s floor area ratio ordinance. We agree with the developer that a petition for writ of certiorari cannot be used for this purpose. “[A] petition seeking certiorari review is not the proper procedural vehicle to challenge the constitutionality of a statute or ordinance.” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (citation omitted). A challenge to the constitutionality of an ordinance “must be determined in original proceedings before the circuit court, not by way of a petition for writ of certiorari.” Id. (internal quotation marks and citations omitted).

As we did in our prior opinion, we conclude that the exercise of “second-tier” certiorari is appropriate where, as here, there has been an application of the incorrect law in the proceedings below. See Omnipoint Holdings, 863 So.2d at 199 (Fla.2003); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982); Morningside Civic Ass’n, 917 So.2d at 295. Second-tier certiorari is also appropriate where, after an earlier second-tier certio-rari proceeding, there has been a departure from the terms of the appellate court ruling in the proceedings on remand.

For the stated reasons we grant certio-rari and remand for proceedings consistent with this opinion.

      . We express no opinion on whether the existing record is, or is not, legally sufficient to support the position of either side.