author: PER CURIAM. POLSTON, J.,

text:
    ALTERRA HEALTHCARE CORPORATION and Deanne M. Smith as to Ai-térra Sterling House of Tallahassee, Appellants, v. The ESTATE OF Jeanette Kelley LINTON by and through Lorrie Linton GRAHAM f/k/a Lorrie Ann Graham, Personal Representative, Appellee.
    No. 1D06-0986.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Rehearing Denied April 17, 2007.

      Donna J. Fudge, Dennis J. Brennan and Connolly C. McArthur of Buckley &

      Fudge, P.A., St. Petersburg, for Appellants.
    Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa; Blair N. Mendes and Bennie Lazarra, Jr., of Wilkes & McHugh, P.A., Tampa, for Appellee.
   PER CURIAM.

This appeal arises from an order of the circuit court compelling arbitration in an action against Alterra Healthcare Corporation (“Alterra”) and its employee, Deanne Smith, by the Estate of Jeanette Linton for alleged negligence and statutory violations of the Florida Nursing Home Residents Act (Chapter 400, -Laws of Florida). The complaint alleged that Linton, an elderly woman who suffered from advanced Alzheimer’s disease, died after being beaten and raped while residing at Sterling House of Tallahassee, an assisted living facility owned by Alterra.

The defendants moved to compel arbitration, pursuant to the terms of the residency agreement. The plaintiff argued that the motion should be denied, because Mrs. Linton never signed the residency agreement, and her son, who. did sign the agreement, had no authority to do so. Even if the son had authority to sign, the plaintiff maintained that the agreement was unenforceable because it was substantively and procedurally unconscionable. In addition, the plaintiff maintained that the arbitration provision in the residency agreement was void as contrary to public policy, because it included a $250,000 cap on non-economic damages and a total waiver of punitive damages. Finally, the plaintiff asserted that the arbitration provision did not apply to the claim against defendant Deanne Smith, because Smith was not a party to the residency agreement.

Following an evidentiary hearing, the trial court entered an order granting the motion to compel arbitration but specifically ruling that the provisions that limited punitive and compensatory damages were void and unenforceable as against the public policy reflected in the Nursing Home Residents Act. Because the agreement had a severability clause, however, the court ruled that the remainder of the agreement could proceed to arbitration, except as to defendant Smith, because she was not a party to the agreement. It held that any claims against Smith were not subject to arbitration, except to the extent that the plaintiff sought to hold Alterra vicariously liable for Smith’s conduct. The court rejected the plaintiffs arguments as to the son’s authority to sign the residency agreement on Linton’s behalf. It found instead that Linton was an intended third-party beneficiary of the agreement and thus bound by its terms relative to arbitration, and there were no circumstances that would make enforcement of the contract unconscionable. The court stayed the action pending arbitration, and the case is now before us on appeal and cross-appeal.

We reject the defendants’s contention that the trial court lacked authority on a motion to compel arbitration to determine the validity of the arbitration clause. The trial court ruled that the exclusion of punitive damages and limit on non-economic damages were void as contrary to public policy, on the basis that chapter 400 is a remedial statute. In so doing, the court did not go beyond the three elements it had authority to consider in ruling on a motion to compel arbitration. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Rather, its conclusion that the damages limitations were void as against public policy was a determination of the validity of the arbitration agreement under step one of the Seifert analysis.

The defendants’ argument to the contrary notwithstanding, Bland v. Health Care & Retirement Corporation of America, 927 So.2d 252 (Fla. 2d DCA 2006) does not support their position. The language from Bland on which the defendants rely is mere dicta — a fact the Fourth District pointed out in rejecting this same argument by Alterra recently in a similar case. See Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 268 (Fla. 4th DCA 2006).

Nor is the U.S. Supreme Court’s recent decision in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) of any aid to the defendants. In Buckeye, the Supreme Court reaffirmed the general rule that “a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” See Buckeye, 126 S.Ct. at 1210. The defendants here unconvincingly argue that the plaintiff challenged the entire residency agreement, rather than the arbitration agreement alone, based on its mischarac-terization of the limitation of liability clause as “outside” the arbitration provision. However, the limitation of liability clause is plainly part of the arbitration provision, as it is expressly incorporated by reference therein. For this reason, Buckeye does not require that the arbitrator rule on the challenge to the arbitration provision.

The trial court had not only the authority, but a duty to determine the validity of the arbitration clause in light of its express limitations of liability. “It is the court’s obligation, in deciding a motion to compel arbitration, to determine whether a valid written agreement to arbitrate exists.” SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242, 1243 (Fla. 5th DCA 2006). Florida courts have expressly held that arbitration agreements eliminating punitive damages and capping noneconomic damages defeat the remedial purpose of the Nursing Home Residents Act and are therefore void as against public policy. See, e.g., Lacey v. Healthcare & Retirement Corp. of America, 918 So.2d 333, 334 (Fla. 4th DCA 2005); Romano v. Manor Care, Inc., 861 So.2d 59, 61-63 (Fla. 4th DCA 2003), rev. denied, 874 So.2d 1192 (Fla.2004); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 298-99 (Fla. 4th DCA 2005); SA-PG-Ocala, 935 So.2d at 1242.

The defendants maintain that it is for the arbitrator, not the trial court, to decide whether limitations on statutory remedies make an arbitration clause unenforceable. However, the cases on which the defendants rely are distinguishable from the present case. See Beaver Coaches, Inc. v. Revels Nationwide RV Sales, Inc., 543 So.2d 359 (Fla. 1st DCA 1989) (limiting arbitrator’s review to limitations of liability that do not pertain to the arbitration clause itself and stating that arbitrator should be bound by parties’ specific agreement barring consequential damages, unless arbitrator finds such provision unconscionable); Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86 (Fla. 2d DCA 2005) (holding that trial court, rather than arbitrator, may review a limitation of liability where unconscionability is at issue). Unconscionability is clearly at issue in the present case, and the provision limiting liability, being part of the arbitration provision, pertains to the arbitration provision itself. Therefore, the trial court had authority to determine the enforceability of the remedial limitations.

We likewise reject the defendants’ argument that the trial court lacked authority to interpret Chapter 400 in ruling that the remedial limitations of the arbitration provision were invalid. The issue of whether the provision violated public policy goes to the first Seifert inquiry: whether there was a valid agreement to arbitrate. This is a question for the trial court. See, e.g., Lacey, 918 So.2d at 334; Blankfeld, 902 So.2d at 298-99.

Nor did the trial court err in its substantive determination that the remedial limitations in the arbitration agreement were void as against the public policy of the statute. The arbitrability of statutory claims rests on the assumption that the arbitration clause permits relief equivalent to that available via the courts. An arbitration clause is thus unenforceable if its provisions deprive the plaintiff of the ability to obtain meaningful relief for alleged statutory violations. See Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998); see also Romano, 861 So.2d at 61-63.,

Like the Nursing Home Residents Act, the Assisted Living Facilities Act is a remedial statute, designed to protect the residents of such facilities. See Bryant, 937 So.2d at 266. The arbitration agreement in the present case defeats the remedial purpose of the Act by eliminating punitive damages and capping noneconomic damages, so the trial court correctly ruled that it was void as against public policy. See Bryant at 266; Lacey, 918 So.2d at 334; Romano, 861 So.2d at 61-63; see also Blankfeld, 902 So.2d at 298—99; SA—PG—Ocala, 935 So.2d at 1242.

The defendants would have us depart from Blankfeld and Lacey, in light of Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159 (Fla.1989). In Mort, the supreme court held that a party may waive her right to attorney fees under chapter 400 by accepting an offer of judgment that is silent as to attorney fees. See Mort, 553 So.2d at 161. However, Mort differed significantly from the case before us, both substantively and procedurally. Moreover, to depart from Blankfeld on this point would require us to ignore post-Mort decisions such as Lacey, Romano and Bryant, which held that similar remedial limitations were void as against public policy-

Although we affirm the trial court on the foregoing points, we reverse its ruling that the arbitration provision did not bind defendant Deanne Smith. Smith was the Residence Director at Sterling House and was not a signatory to the residency agreement. However, the arbitration clause in the agreement nonetheless applied to her.

Where the language of an arbitration provision in a contract between an employer and its customer is broad enough to include persons within the respondeat superior doctrine, claims by a client against the defendant company’s employees may be subject to arbitration, even though the employee is not a signatory to the contract. See, e.g., Shetty v. Palm Beach Radiation Oncology Associates-Sunderam K. Shetty, MD, PA 915 So.2d 1233 (Fla. 4th DCA 2005); Qubty v. Nag-da, 817 So.2d 952, 958 (Fla. 5th DCA 2002); Simpson v. Cohen, 812 So.2d 588, 590-91 (Fla. 4th DCA 2002); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Melamed, 453 So.2d 858, 860 (Fla. 4th DCA 1984), decision approved, 476 So.2d 140 (Fla.1985). Alterra could operate Sterling House only through its employees, such as Smith, so the residency agreement applies to non-signatory employees who carried out the duties and obligations of the employer under the contract. See Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1112 (3d Cir. 1993). The trial court acknowledged in its order that the plaintiff may have a claim against Alterra for Smith’s conduct under the respondeat superior doctrine, and the arbitration clause involved here is certainly broad enough to encompass any conduct by Smith alleged in the complaint. Therefore, the trial court erred in refusing to apply the arbitration provision to Smith.

As to the cross-appeal, we reject the plaintiffs argument that there was not a valid agreement to arbitrate that was binding on Mrs. Linton, because she did not sign the agreement. In general, arbitration provisions are personal covenants that bind only the parties thereto. See Regency Isl. Dunes, Inc. v. Foley & Assocs. Contr. Co., Inc., 697 So.2d 217, 218 (Fla. 4th DCA 1997); Karlen v. Gulf & Western Indus., Inc., 336 So.2d 461, 462 (Fla. 3d DCA 1976). But the trial court correctly concluded that Mrs. Linton was an intended third-party beneficiary of the agreement in the present case. A nonsig-natory third-party beneficiary is bound by the terms of a contract containing an arbitration clause. See Germann v. Age Inst. of Fla., Inc., 912 So.2d 590, 592 (Fla. 2d DCA 2005); Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d 1089, 1090 (Fla. 4th DCA 2001); Terminix Int’l Co., LP v. Ponzio, 693 So.2d 104, 109 (Fla. 5th DCA 1997); Zac Smith & Co., Inc. v. Moonspinner Condo. Ass’n, Inc., 472 So.2d 1324,1324-25 (Fla. 1st DCA 1985).

We further affirm the severance of the limitation of liability provision so as to enforce the rest of the arbitration provision. Although the plaintiff contends that the Lacey case compels reversal, we cannot accept this argument. Unlike the residency agreement in the instant appeal, the contract in Lacey did not contain a sever-ability clause. It was thus unnecessary for the trial court to resort to the kind of analysis employed in Lacey. Here, the remedial limitations of the contract could be eliminated without impacting the parties’ ability to arbitrate the underlying dispute. Therefore, we affirm the trial court’s severance of these provisions. See Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1024 (Fla. 4th DCA 2005).

Finally, the trial court did not err in declining to rule that the arbitration agreement was procedurally and substantively unconscionable. Both procedural and substantive unconscionability must be demonstrated in order to establish that a contract is unenforceable as unconscionable. See Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284 (Fla. 1st DCA 2003); Powertel v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). The plaintiff failed to demonstrate procedural unconscionability, which in turn renders the issue of substantive unconscionability moot. See Weston, 857 So.2d at 288. The trial court therefore did not err in declining to find the arbitration agreement unconscionable.

In sum, we affirm the trial court on all the issues raised on both appeal and cross-appeal, with the sole exception of the ruling that the arbitration clause did not apply to defendant Smith. We therefore reverse as to the refusal to compel arbitration of the claims against Smith, and we affirm as to the remainder of the order.

Affirmed in part, reversed in part, and remanded.

BARFIELD and PADOVANO, JJ., concur.

POLSTON, J., concurs in part and dissents in part with opinion.

POLSTON, J.,

concurring in part and dissenting in part with opinion.

I agree with the majority’s opinion, except I would reverse the trial court’s holding that the limitation of remedies provision of the contract is void because it violates Florida’s public policy. Although these alleged facts are horrific, and may support a legislative determination that waivers of Chapter 400 remedies should be void, it is the Florida Legislature, rather than the court, who must decide Florida’s public policy on this issue.

The residency agreement contained a section limiting liability as follows:

B. LIMITATION OF LIABILITY PROVISION: Read Carefully Before Signing
1. The parties to this Agreement understand that the purpose of this “Limitation of Liability Provision” is to limit, in advance, each party’s liability in relation to this Agreement.
2. Liability for any claim brought by a party to this Agreement against the other party, including but not limited to a claim by Alterra for unpaid Basic Service or Personal Service charges, or a claim by a Resident, or by a Resident’s Estate, Agent or Legal Representative, arising out of the care or treatment received by the Resident of Alterra, including, without limita,tion, claims for medical negligence or violation(s) of Florida Statutes §§ 400.428, and 400.429 et seq., arising from simple or gross negligence, shall be limited as follows:
a. Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, offset by any collateral source payments such as payments made by medical insurance.
b. Noneconomic damages, such as pain and suffering, shall be limited to a maximum of $250,000.
c. Interest and/or late fees on unpaid assisted living charges shall not be awarded.
d. Punitive damages shall not be awarded.

Paragraph 13 of the Arbitration Provision of the contract explicitly incorporates this Limitation of Liability Provision into the arbitration agreement, so that the limitations appear both as a stand-alone provision of the contract and as part of the arbitration provision. The contract contains a general severance provision, stating that “[sjhould any part of this Agreement be invalid, the validity of the other parts of this Agreement will not be affected.”

I agree with the majority’s opinion that the trial court, not the arbitration panel, decides whether the arbitration provision is valid. Accordingly, the trial court properly addressed whether the limitation of liability provision, incorporated by reference into the arbitration agreement, invalidated the arbitration agreement. I disagree with the trial court and majority’s ruling that the limitation of liability is invalid.

Generally, contractual waivers are enforceable under Florida law. See Shaw v. Premier Health & Fitness Ctr., Inc., 937 So.2d 1204 (Fla. 1st DCA 2006) (holding that a contractual waiver released health club from liability for its own negligent acts); In re Amendment to the Rules Regulating the Fla. Bar-Rule 4-1.5(f)(Jf)(B) of the Rules of Prof l Conduct, 989 So.2d 1032 (Fla.2006) (adopting an amendment to the Rules Regulating the Florida Bar to permit a contractual waiver of the 2004 self-enacting Florida constitutional amendment imposing a specified legal fee structure for contingency fees).

Unlike other statutory remedies, the Florida Legislature has not prohibited a waiver of the remedies provided in Chapter 400. For example, in Florida’s Unemployment Compensation Law, the Florida Legislature has specifically prohibited waiver of rights under Chapter 443, and voided any agreement that attempts to waive those rights:

443.041 Waiver of rights; fees; privileged communications.—
(1) WAIVER OF RIGHTS VOID.— Any agreement by an individual to waive, release, or commute her or his rights to benefits or any other rights under this chapter shall be void. Any agreement by an individual in the employ of any person or concern to pay all or any portion of any employer’s contributions, required under this chapter from such employer, shall be void. No employer shall directly or indirectly make or require or accept any deduction from wages to finance the employer’s contributions required from her or him, or require or accept any waiver of any right hereunder by any individual in her or his employ. Any employer or officer or agent of an employer who violates any provision of this subsection shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 443.041(1), Fla. Stat. (2002) (emphasis added).

Moreover, the Florida Legislature stated that any waiver of specified provisions of the Motor Vehicle Retail Sales Finance Act “shall be unenforceable and void.” § 520.13, Fla. Stat. (2002). Regarding liability of persons engaging in certain hazardous occupations, the legislature stated:

769.06 Contracts limiting liability invalid. — Any contract, contrivance or device whatever, having the effect to relieve or exempt the persons mentioned in s. 769.01 from the liability prescribed by this chapter shall be illegal and void. § 769.06, Fla. Stat. (2002).

If waiver of the remedies of Chapter 400 violates public policy, it should be the Florida Legislature to make that decision and specify that such waivers are prohibited and void, rather than the judiciary. See Art. II, § 3, Fla. Const, (recognizing separation of powers); Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004) (ruling that section 400.023 is a legislatively created cause of action to be brought by personal representatives only under certain circumstances, and concluding that the Florida Legislature had the authority to determine the extent of the statutory right and to prescribe or limit the remedies available for a violation of the right).

Had the legislature intended to void contractual provisions waiving remedies under Chapter 400, it could have said so. See Tallahassee Memorial Regional Medical Center v. Kinsey, 655 So.2d 1191, 1198 (Fla. 1st DCA 1995) (stating that “[h]ad the legislature intended that posting of a satisfactory ‘bond or security’ would relieve defendants of all further liability for future economic damages, it would have been an easy matter for it to have said so. In our opinion, the absence of any such language is strong evidence that the legislature did not intend the result urged by appellants. To presume such an intent in these circumstances would amount to the most blatant form of judicial legislation. We decline appellants’ invitation to don the legislative mantle.”). See also Knowles, 898 So.2d at 7 (noting that although section 400.023(1) provides remedial remedies for nursing home residents, the Court is without power to add words to the statute); Fla. Wildlife Fed’n v. State, Dep’t of Envtl. Regulation, 390 So.2d 64, 67 (Fla. 1980) (recognizing that, “[i]f the legislature had meant for the special injury rule to be preserved in the area of environmental protection, it could easily have said so”).

Moreover, in Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989), the Florida Supreme Court recognized that remedies provided in Chapter 400 may be waived when it ruled that the attorney’s fees provision of section 400.023 is “merely a statutory right to seek fees,” and that “[cjlearly, statutory rights can be waived.” See also Bland v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 258 (Fla. 2d DCA 2006) (stating that “a compelling argument can be made that, absent a legislative restriction, the courts should honor a party’s decision to contract away statutory protections. See § 400.151(2) (stating that nursing home contract shall include ‘any other matters which the parties deem appropriate’)”).

Therefore, I would affirm the trial court on all the issues raised on both appeal and cross-appeal, with the exceptions of the rulings that (i) the arbitration clause did not apply to defendant Smith, and (ii) the arbitration should not include the limitations of liability.

      . In ruling on a motion to compel arbitration, a trial court must consider (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert, 750 So.2d at 636.

      . The majority properly analyzed the case under the Florida Arbitration Code rather than the Federal Arbitration Act. The arbitration provision in the contract states that "[ejxcept as expressly set forth herein, the provisions of the Florida Arbitration Code Florida Statutes §§ 682.01, et seq., shall govern the arbitration.” See Volt Info. Seis., Inc. v. Bd. of Trs. of the Leland Stanford lunior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (holding that the Federal Arbitration Act did not preempt California law where the parties contractually agreed to abide by state rules of arbitration; "There is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.”).

      . I agree with the majority that the claims against Ms. Smith should be arbitrated because the standards for a non-signatory agent to compel arbitration described in Koechli v. BIP Int’l, Inc., 870 So.2d 940, 944 (Fla. 1st DCA 2004) are satisfied in the case.


source: Caselaw Access Project

author: STEVENSON, C.J.

license: Public Domain

text:
    Lawrence MAESTRI, Maestri-Murrell, Inc., and Tri-M Investments, Inc., Appellants, v. FLORIDA SUNRISE, LTD., Tri-M Investments of South Florida, Inc., Traci Baturin and Ted Baturin, Appel-lees.
    No. 4D06-366.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied May 3, 2007.

      Donna M. Greenspan and Steven C. Holzman of Edwards Angelí Palmer ■ & Dodge LLP, West Palm Beach, for appellants.
    Michael A. Pancier and Steven N. Lipp-man of Rothstein Rosenfeldt Adler, Fort Lauderdale, for appellee Florida Sunrise, Ltd.
   STEVENSON, C.J.

This is an appeal from a judgment in favor of the landlord, Florida Sunrise, Ltd., and against its property manager, Lawrence Maestri, and his related companies, in a case involving a multi-party dispute between the landlord, the property manager and former tenants. We affirm the liability judgment, but reverse the damages award.

Florida Sunrise, the owner of an office building called Florida Sunrise Tower, hired appellants, Lawrence Maestri and his company, Maestri-Murrell, Inc., to serve as the property manager. In addition to serving as property manager, Maestri also leased space in the building to operate Tri-M Investments, Inc. (“TriM”), an “executive office’suite” business. Maestri later sold the business to Traci and Ted Baturin. The Baturins created Tri-M Investments of South Florida, Inc. (“Tri-MSF”) to run their newly-acquired executive office- suite business. Tri-MSF then entered into a lease with Florida Sunrise for the space previously leased by Maestri to continue to operate the business. During the course of the lease, Florida Sunrise advised Tri-MSF that the leased space actually contained 9,046 square feet, not 7,113 as previously calculated, and demanded additional rent. Consequently, Tri-MSF vacated the premises.

Florida Sunrise filed a complaint against Tri-MSF for eviction and- other related claims. Tri-MSF counterclaimed, alleging breach of lease and other legal and equitable theories. Florida Sunrise then filed a third-party complaint against Maestri and his companies (collectively referred to as the “Maestri defendants”), contending that Maestri, as property manager, had a duty to correctly identify and verify the square footage of the building for the purposes of collecting and accounting for rents due. Florida Sunrise sued. Maestri-Murrell for breaching its fiduciary duty and the implied covenant of good faith and fair dealing and sued Maestri and Tri-M for fraud in the inducement, conversion, negligent misrepresentation, and unjust enrichment. The claims, counter-claims, and third-party claims were tried by jury in the same trial.At the conclusion of the evidence, the jury found against Florida Sunrise with respect to its claims against Tri-MSF. The jury found in favor of Tri-MSF with respect to its counterclaims against Florida Sunrise and awarded $735,000; the verdict form did not delineate the award as to each count of the complaint. On Florida Sunrise’s third-party complaint against the Maestri defendants, the jury found that Lawrence Maestri and Tri-M accepted and retained benefits without paying for them, fraudulently induced Florida Sunrise to enter into the lease with Tri-MSF, and negligently misrepresented a material fact to Florida Sunrise; the jury awarded $126,340.19 to Florida Sunrise for these claims. The jury further found that the Maestri defendants fraudulently concealed a material fact from Florida Sunrise and that Maestri-Murrell breached its covenant of good faith and fair dealing and its fiduciary, duty to Florida Sunrise. On these claims, the jury awarded Florida Sunrise $551,250 against the named third-party defendants.

In Florida Sunrise, Ltd. v. Tri-M Investments of South Florida, Inc., 942 So.2d 421 (Fla. 4th DCA 2006) (hereinafter referred to as Florida Sunrise v. Tri-MSF), this court reversed the damages awarded to Tri-MSF and remanded the case for remittitur. In this appeal, Maestri challenges the trial court’s denial of his motions for directed verdict and remittitur. We have carefully examined the record and find no reversible error with regard to the trial court’s denial of any of the motions. Nevertheless, in view of our reversal of the damages award and remand for remittitur in Florida Sunrise v. Tri-MSF, we must also reverse the damages award in this case and remand for remittitur as well. In Florida Sunrise v. Tri-MSF, this court held that the lost profits component of the damages award was not sustainable since it was based on speculation regarding virtual office space and offers to buy the business. Further, this court found that testimony concerning potential buyers being “scared away” by Florida Sunrise was too speculative to support any damages for that aspect of the tortious interference claim and that $10,000 should have been deducted from the net profit calculation for officer compensation. Because the specific damage award for each cause of action was indeterminable from the verdict form, this court remanded for the trial court to determine an appropriate remittitur based on the highest damages award sustainable from the evidence at trial. The court’s decision further provided for a new trial if the trial court was unable on remand to determine an -appropriate amount for remittitur or if Tri-MSF declines to accept the remittitur.

In this three-tier dispute, a portion of the damages to Florida Sunrise caused by the conduct of the Maestri defendants was necessarily based on the damages which Florida Sunrise became obligated to pay to Tri-MSF as a result of its claims. The amount of those damages is now unsettled by the reversal in Florida Sunrise v. Tri-MSF. Counsel for Florida Sunrise conceded at oral argument that remittitur in some amount would be appropriate to the extent that the damages award in the instant case was predicated on those components of the damages which were reversed in Florida Sunrise v. Tri-MSF. Accordingly, we reverse the damages award in the instant case and remand for the trial court to determine an appropriate remittitur based on the highest award sustainable after the proceedings on remand in Florida Sunrise v. Tri-MSF, have been completed. As in Florida Sunrise v. Tri-MSF, in the event the trial court is unable to determine an appropriate amount for remittitur, or the third-party defendants decline to accept the remittitur, we remand for a new trial. See Tobias v. Osorio, 681 So.2d 905 (Fla. 4th DCA 1996).

The judgment on appeal is affirmed m part and reversed in part. This cause is remanded for further proceedings consistent with this decision.

Affirmed in part, Reversed in part, and Remanded.

KLEIN and SHAHOOD, JJ., concur.

      . The jury found for Tri-MSF and against Florida Sunrise on each of Tri-MSF’s claims for breach of. lease, breach of implied covenant of good faith and fair dealing, wrongful eviction, tortious interference with business relationships, conversion, and unjust enrichment.

      . The trial court reduced the damages awarded as to these claims by the 20% comparative negligence the jury found on the part of Florida Sunrise.


author: PER CURIAM.

text:
    Calvin POWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0683.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Rehearing Denied April 18, 2007.
    Calvin Powell, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

HAWKES, THOMAS, and ROBERTS, JJ., concur.


author: ALLEN, J.

text:
    STATE of Florida, Appellant, v. Damien Tavelle BRYANT, Appellee.
    No. 1D06-2075.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    Rehearing Denied April 17, 2007.

      Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender Tallahassee, for Appellee.
   ALLEN, J.

In this direct criminal appeal, the appellant challenges an order by which the trial court granted the appellee’s motion to dismiss a count of an information charging the appellee with using drug paraphernalia to transport cocaine in violation of section 893.147(4), Florida Statutes. The trial court’s ruling was based upon its conclusion that section 893.147(4) is unconstitutional because the statutory term “transport” is overbroad and vague. We disagree, reverse the order under review, and remand this case to the trial court.

After he was detained for a moving traffic violation, the appellee was found to be in possession of two cocaine rocks which were contained within a vial he was carrying in the pocket of his trousers. As a consequence of these circumstances, the appellee was charged with violation of section 893.147(4), which provides that it is

unlawful to use, possess with the intent to use, or manufacture with the intent to use drug paraphernalia, knowing or under circumstances in which one reasonably should know that it will be used to transport:
(a) A controlled substance in violation of this chapter; or
(b) Contraband as defined in s. 932.701(2)(a)l.

Section 893.145, Florida Statutes, defines drug paraphernalia as

all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, har-
vesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter or s. 877.111.

And section 898.145 further specifies that “drug paraphernalia” includes “[cjapsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances,” as well as “[cjontainers and other objects used, intended for use, or designed for use in storing, concealing, or transporting controlled substances.”

We reject the trial court’s conclusion that the term “transport,” as used in section 893.147(4), rendered the statute unconstitutionally overbroad. Legislation is overbroad when it is drafted in a manner that may be applied to conduct protected by the First Amendment. See Sult v. State, 906 So.2d 1013 (Fla.2005); Southeastern Fisheries Ass’n, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla.1984). Because there is no danger of any such constitutionally-protected conduct being impacted here, section 893.147(4) is not overbroad.

We likewise reject the trial court’s conclusion that the same term makes the statute unconstitutionally vague. Legislation is unconstitutionally vague when it fails to give adequate notice of what conduct is prohibited or when it invites arbitrary and discriminatory enforcement. See Simmons v. State, 944 So.2d 317 (Fla.2006); Southeastern Fisheries, 453 So.2d at 1353.

Common understanding and reason must be used when analyzing a statute, and words of common usage not specifically defined must be given their plain and ordinary meaning. Southeastern Fisheries, 453 So.2d at 1353. “Transport” is a word which clearly communicates to both law enforcement officers and members of the general public the concept of conveying a thing from one place to another. For example, it is defined in Black’s Law Dictionary 1537 (8th ed.2004) as “[t]o carry or convey (a thing) from one place to another,” and it is defined in Webster’s Ninth New Collegiate Dictionary 1255 (1989) as “to transfer or convey from one place to another.” Although the use of this term in conjunction with the broad statutory definition of drug paraphernalia means that section 893.147(4) will likely apply to a significant number of individuals who at some point possess such paraphernalia or certain controlled substances or contraband, there is nothing unconstitutionally vague about the term itself or the manner in which it is used in the statute.

The order under review is accordingly reversed and this case is remanded.

KAHN and DAVIS, JJ., concur.


text:
    William A. CABANA, Appellant, v. Sharon Ann MAYO, Appellee.
    No. 4D06-1883.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Rehearing Denied May 8, 2007.

      William A. Cabana, Venice, pro se.
    No brief filed for appellee.
   PER CURIAM.

Appellant was held in contempt for failure to pay alimony and appeals, arguing that Florida’s alimony statute, section 61.08, violates the right to privacy provided in Article I, section 23 of the Florida Constitution, and the separation of powers provision contained in Article II, section 3 of the Florida Constitution. We affirm.

Appellant’s marriage was dissolved in 1972, and he was ordered to pay twenty-five dollars a week in alimony. He was found to be in arrears in 1986 and 1991 and appeals a recent order finding him in contempt. Any arguments appellant has as to the constitutionality of section 61.08, under which he was required to pay alimony, were waived when he failed to raise these issues in the original dissolution proceeding. Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999) (res judicata precluded paternity claim, which had been litigated in prior case and not appealed); Johnson v. Women’s Health Ctr., 714 So .2d 580 (Fla. 5th DCA 1998) (same).

Appellant points out that the right to privacy provided in Article I, section 23, had not been in our constitution until the amendment of it, several years after the dissolution of his marriage. Even if section 61.08 violated the right to privacy, it would not relieve appellant of liability for his alimony arrearages, because they have become vested. Boyer v. Andrews, 143 Fla. 462, 196 So. 825 (Fla.1940); McArthur v. McArthur, 106 So.2d 73 (Fla.1958).

Affirmed.

KLEIN, HAZOURI and MAY, JJ., concur.


text:
    Vincent DRAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2321.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Rehearing Denied May 3, 2007.
    Patrick J. Curry, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Vincent Drago appeals the summary denial of his postconviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850. The 56-page motion raised five claims of ineffective assistance of trial counsel, one of which included 21 sub-claims, with one sub-claim containing 20 sub-parts. We affirm, without comment, as to all claims of error save for one, claim 1(P). We write to explain why we reverse as to claim 1(P) and remand for the attachment of records that conclusively refute the allegation or for an evidentiary hearing.

Drago was charged with second degree murder in the death of Drago’s female roommate. The death occurred sometime around October 8, 2000, but Drago kept the victim’s body, wrapped in a comforter, in the apartment for approximately one week before he was arrested. It is undisputed that the death resulted from a stab wound to the chest, though the victim had several other knife-related injuries to her body, which were the focus of conflicting expert testimony. According to the defense theory, the victim attacked Drago with a knife while he was lying in his bed. Drago claimed he blocked the initial attack with his hand, while still in his bed, and received a cut on the palm of his hand by the knife. Drago testified that he was able to get out of bed, wrap his hand with a towel, and then defend himself while pushing the victim out of the bedroom. Dra-go’s testimony, and statement to police, claimed the two then fell to the floor with the knife entering the victim’s chest, killing her. The jury found Drago guilty of the lesser-ineluded offense of manslaughter with a deadly weapon. This court affirmed the conviction and sentence. See Drago v. State, 859 So.2d 534 (Fla. 4th DCA 2003).

The sole issue that requires our attention is whether Drago’s attorney provided ineffective assistance of counsel for failing to present evidence of Drago’s own blood found on the “safari-print” comforter Dra-go kept on his bed. In order to demonstrate ineffective assistance of counsel, the movant must show counsel’s performance was deficient beyond reasonable professional standards and there is a reasonable probability counsel’s deficient performance affected the outcome of the proceeding or rendered it fundamentally unfair. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Provenzano v. State, 616 So.2d 428, 430-31 (Fla.1993).

In the instant case, the lower court misunderstood the allegation raised in the motion. The evidence presented at trial showed Drago had wrapped the victim’s body in her favorite comforter and placed her on the living room couch. In denying Drago’s motion, the lower court believed Drago wanted his attorney to present evidence concerning this particular comforter. However, it is clear there were two relevant comforters, the one Drago used to wrap the victim’s body and the one on Drago’s bed when he claims he was attacked by the victim. Evidence of blood on the comforter from the bedroom would appear to support Drago’s claim of self-defense, which was a contested issue at trial. The prosecutor presented at least two witnesses, Jack McCall and Amy Sin-nott, that testified no blood was found in the bedroom. The prosecutor, in closing arguments, alleged Drago’s self-defense theory could not be supported due to the lack of evidence of blood in the bedroom. If the allegations in Drago’s motion are true, regarding Drago’s own blood found on the bedroom comforter, it would seem to be a significant piece of evidence to support the self-defense theory, and would contradict the testimony of the state’s witnesses.

Our review of the entire record does not lead us to the conclusion that the bedroom attack evidence went unchallenged by the prosecutor as the state contends. Because the lower court failed to address the specific claim in the motion, we believe the lower court improperly denied relief. As such, we reverse the summary denial as to this issue alone, affirming as to all other claims of error, and remand for a limited evidentiary hearing as to claim 1(P), or attachment of record evidence that conclusively refutes the allegations.

Affirmed, in part, reversed, in part, and remanded.

GROSS, HAZOURI and MAY, JJ., concur.


author: POLEN, J.

text:
    GULF INDUSTRIES, INC., Appellant, v. Jayachandran NAIR, Sreelatha Nair, his wife, and Travelers Property & Casualty Company, Appellees.
    No. 4D05-2433.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Mark Hicks, Susan Y. Marcus, Cindy L. Ebenfeld of Hicks & Kneale, P.A., Miami, and Bart Cozad of Peterson Bernard, West Palm Beach, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellees.
   POLEN, J.

Appellant Gulf Industries, Inc. (“Gulf’) timely appeals a final money judgment against it in a personal injury jury trial in favor of co-plaintiffs/appellees Jayachan-dran and Sreelatha Nair (“the Nairs”). We affirm.

The dispute at issue in this appeal arose out of three motor vehicle accidents in which plaintiff/appellee Jayachandran Nair (“Nair”) was the victim. The first accident occurred on July 17, 1999; the second September 1, 2000; and the third August 20, 2002. Nair underwent lumbar fusion surgery on November 6, 2000 and a cervical fusion on March 5, 2003 as a result of injuries he sustained in these accidents.

Because there was no dispute that the first two accidents were caused by uninsured motorists, Travelers Property & Casualty Company (“Travelers”), which provided Nair with uninsured motorist coverage, defended both those claims. Travelers admitted that the uninsured motorists were at fault for the first two accidents and hence, that it was responsible for all damages/injuries caused by those accidents. Gulf admitted responsibility for causing the third accident and thus defended that claim. However, since Nair sustained injuries which predated the third accident, Gulf argued that Nair’s need for the second surgery was not caused entirely by the third accident. Gulf further disputed that it was entirely responsible for Nair’s present and future medical problems. Finally, Gulf challenged Nair’s assessment of economic damages.

Following trial, the jury returned a verdict of $6,971,495. It apportioned damages against Travelers (attributed to the first two accidents) in the amount of $2,714,637 and against Gulf (attributed to the third accident) in the amount of $4,256,858. After setting off personal injury protection (“PIP”) benefits, disability payments and bodily injury coverage, the trial court entered an amended final judgment (“final judgment”) against Gulf for $4,204,238 and against Travelers for $2,634,637. The trial court also awarded costs in the amount of $69,465.89 against each defendant.

High-Low Agreement

The first issue on appeal concerns a secret “high-low” agreement entered into between the Nairs and Travelers. The agreement provided a minimum payment to the Nairs of $1,000,000 irrespective of the jury’s ultimate verdict, and capped Travelers’ liability for damages caused by the first two accidents at $2,000,000 total. During the course of the trial, Gulfs counsel asked the other parties whether there were any settlement agreements among them. Both the Nairs’ counsel and Travelers’ counsel disclosed the agreement and Gulf consequently moved for mistrial, in the alternative asking the trial court to disclose the agreement to the jury. But the court denied the motion and refused disclosure. Gulf now appeals the denial of its motion and its request for publication to the jury.

A trial court’s determination regarding admissibility of evidence is subject to an abuse of discretion standard of review. Vavrus v. City of Palm Beach Gardens, 927 So.2d 992, 995 (Fla. 4th DCA 2006) (citation omitted). The same standard applies to a trial court’s ruling on a motion for mistrial. Goodwin v. State, 751 So.2d 537, 546 (Fla.1999) (citations omitted). However, whether a high-low agreement is permissible as a matter of law and/or must be disclosed to the jury is reviewed de novo. See Garrett v. Mohammed, 686 So.2d 629, 629 (Fla. 5th DCA 1996) (concluding that the trial court did not err in denying defendant’s motion for a mistrial where a high-low agreement had not been disclosed prior to trial), overruled on other grounds, Allstate Ins. Co. v. Sarkis, 809 So.2d 6, 7 (Fla. 5th DCA 2001).

Gulf concedes that the high-low agreement secretly executed by Travelers and the Nairs is not a “Mary Carter agreement” because it does not contain a pro-

portionate liability shifting feature, and therefore is not explicitly proscribed by Dosdourian v. Garsten, 624 So.2d 241 (Fla. 1993). Nevertheless, Gulf contends that high-low agreements invoke the same dangers posed by Mary Carter agreements and should therefore be banned in accordance with Dosdourian where a co-defendants) is not a party to the agreement. See id. In the alternative, Gulf asserts that, at the very least, this court should reverse and direct the trial court to grant a mistrial for failing to permit disclosure of the agreement to the jury.

The Florida Supreme Court in Dosdourian did not specifically outlaw high-low agreements in addition to Mary Carter agreements. See Garrett, 686 So.2d at 630 n. 2. This is because Dosdourian did not address 27th Ave. Gulf Service Center v. Smellie, 510 So.2d 996, 998 (Fla. 3d DCA 1987), wherein the Third District upheld the use of high-low agreements. Garrett, 686 So.2d at 630 n. 2. Addressing the question of whether high-low agreements are still permissible in light of Dosdouri-an, the Fifth District stated that the answer “perhaps ... should turn on a case by case analysis of whether such agreements are in fact true settlements.” Id. The Fifth District continued:

In deciding whether the agreements are true settlements, the trial court should consider whether the agreement requires the co-defendant to participate in the trial. In other words, is the high range of the agreement contingent on participation in the trial. The trial court should also consider the amount in controversy as a result of the agreement. The greater the window between the “high” and the “low” limits of the agreement, the more incentive a co-defendant has in genuinely and aggressively litigating the dispute. If the trial court concludes that the “high-low agreement” is not a settlement and the codefendant still has a genuine incentive to defend, then in our view the agreement would not be prohibited by Dosdourian.

Id.

In this case, the high-low agreement did not require Travelers to participate in the trial; Travelers could present a defense or withdraw and simply stand on the agreement. Furthermore, the $1,000,000 range between the high and low limits of the agreement suggests that Travelers had a genuine incentive to defend itself against fault resulting from the first and second accidents. Cf. Cardona v. Metro Transit Agency, 680 So.2d 1098,1099 (Fla. 3d DCA 1996) (reversing trial court’s refusal to enforce high-low agreement where agreement set settling defendants’ liability at a range of no more than $100,000 and no less than $15,000). Based on these considerations, we find that the high-low agreement was not prohibited.

The next, and perhaps more contentious, question is whether trial courts should permit nonsettling defendants to disclose high-low agreements to juries. The answer, however, is not perfectly clear, and a study of the admissibility of high-low agreements in other states demonstrates that there is no consensus on the issue. Compare Reynolds v. Amchem Prods., Inc., 32 A.D.3d 1268, 1269, 822 N.Y.S.2d 216 (2006) (“Absent evidence of collusion between the co-defendant and plaintiffs to the detriment of the company,

the failure to disclose the high-low agreement did not mandate reversal.”), Monti v. Wenkert, 2006 WL 3908564, *14, 2006 Conn.Super. LEXIS 3849, 45-6 (Conn.Super.Ct.2006) (In upholding use of high-low agreement without disclosure to nonset-tling defendant: “If the true alignment of the codefendants is apparent to the parties, the court and the jury, introduction of the agreement to the jury is unnecessary because there is no prejudice to be avoided.”), and Ziegler v. Wendel Poultry Seros., Inc., 67 Ohio St.3d 10, 17, 615 N.E.2d 1022 (Ohio 1993) (holding high-low settlement agreement between estate and company was not a Mary Carter agreement and it was not erroneous to have allowed the company to participate in the trial or by failing to disclose the agreement to the jury), with Hashem, v. Les Stanford Oldsmobile, Inc., 266 Mich.App. 61, 84-85, 697 N.W.2d 558 (Mich.Ct.App.2005) (requiring disclosure of high-low agreement to prevent distortion of the adversarial process and preserve integrity of the judicial system), Gen. Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (Md.1980) (stating that disclosure was required to allow jury to judge the credibility of witnesses), and Mustang Equip., Inc. v. Welch, 115 Ariz. 206, 210, 564 P.2d 895 (Ariz.1977) (“[T]he disclosure of [pretrial] agreements is or should be required to avoid the inherent tendency to work a fraud on the court and to avoid “collusion” between the plaintiff and some of the defendants”) (citing Ward v. Ochoa, 284 So.2d 385 (Fla.1973)).

The lack of accord concerning publication of high-low agreements is perhaps due to underlying and often conflicting policy considerations. On one hand, secret agreements between plaintiffs and one or more of several defendants can mislead the jury and may “border on collusion,” thereby robbing the judicial system to some extent of its truth-seeking function.

See Hashem, Lahocki and Welch, supra; see also Ward, 284 So.2d at 388 (“The search for the truth, in order to give justice to the litigants, is the primary duty of the courts.”).

Yet, while disclosure may avoid collusion between plaintiffs and settling defendants, see Welch, 115 Ariz. at 210, 564 P.2d 895, it may also lead the jury to believe that those plaintiffs and settling defendants conspired to prevent a fair trial. Luis F. Collins, Admissibility of High/Low Settlements, Fla. B.J., Jan. 1993, at 37. Disclosure may also detract from the benefits high-low agreements bestow because the knowledge that such agreements will be viewed by the jury might deter parties from entering into them to begin with. For instance, the high-low agreement enables parties to manage the risks of litigation and essentially “amounts to insurance against a catastrophic verdict, with the premium being the surrender of total victory.” Stephen C. Yeazell, The Changing Landscape of the Practice, Financing and Ethics of Civil Litigation in the Wake of the Tobacco Wars: Seventh Annual Clifford Symposium on Tort Law and Social Policy: Refinancing Civil Litigation, 51 DePaul L.Rev. 183, 197 (2001); see also Steven R. Gabel, High/Low Settlement Agreements: Method for Dispute Resolution, 73 MI Bar Jnl. 74, 74-5 (1994) (noting that high-low agreements protect defendants from exposure exceeding policy limits and allow plaintiffs with sizable economic and non-economic damages to enjoy the certainty of a minimum payment amount; “[t]he [high-low] agreements promote finality, certainty, ease of administration and a degree of comfort for the parties to the agreement”). High-low agreements also facilitate trials:

It is no secret that our system of civil justice has generated a pent-up demand for low-cost litigation. As a result, a procedure that lowers the cost of litigation — for example, a small-claims court — -will increase the volume of litigation and the number of trials (albeit cheaper, quicker trials). The development of the high-low agreement demonstrates the existence of a parallel demand for low-risk adjudication. Any technique, public or private, that reduces the range of possible outcomes at trial could help answer that demand by making trial less scary, which might encourage more parties to take their chances and try it.

Samuel L. Gross & Kent D. Syverud, Don’t Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L.Rev. 1, 61-62 (1996) (citations omitted). To require publication of high-low agreements to juries might go some way in defeating these objectives.

Moreover, “If the true alignment of the codefendants is apparent to the parties, the court and the jury, introduction of the agreement to the jury is unnecessary because there is no prejudice to be avoided.” Monti v. Wenkert, 2006 WL 3908564, *14, 2006 Conn.Super. LEXIS 3849, 45-6 (Conn.Super.Ct.2006). This logic was mirrored in Smellie, where the third district held that, since high-low agreements were a “common form of settlement” and did not shift liability, their compulsory admission into evidence was sufficiently prejudicial to warrant a new trial on liability. Smellie, 510 So.2d at 998. Similarly, in this case, Travelers was in a position adverse to Gulf regardless of the agreement because it was potentially liable for damages resulting only from the first two accidents, whereas Gulf was responsible for damages caused by the third accident. As such, Travelers would naturally attempt to shift fault to the third accident. In addition, Gulf had greater potential for liability than Travelers because it had $11,000,000 of coverage under its applicable insurance policies ($1,000,000 automobile liability policy in addition to $10,000,000 umbrella policy), as opposed to a combined $2,000,000 in coverage, $1,000,000 for each of the first two accidents, under Nair’s Travelers policy. Therefore, despite the high-low agreement, the Nairs would also be inclined to argue that the third accident was the primary cause of Nair’s injuries and medical expenses. Accordingly, while the agreement relieved Travelers from exposure to a “bad faith” suit, it did not cause either Travelers or the Nairs to shift alignment and litigate this case for each other’s benefit — the danger of a “sham of adversity” between plaintiff and settling defendant, see Dosdourian, 624 So.2d at 246 (citation omitted), was not present in this case. Therefore, we conclude that introduction of the agreement into evidence would have been unnecessarily prejudicial.

Also of concern is the possibility that disclosure of high-low agreements may lead to improper publication of insurance coverage to juries. Florida courts have recognized the public policy of this state of not presenting evidence of insurance coverage to juries. In re Amendments to the Rules Regulating the Fla. Bar — Advertis ing, — So.2d — , —, 2006 WL 3093126, at *25-26, 2006 Fla. LEXIS 2594, 70 (Fla.2006); see also Beta Eta House Corp. v. Gregory, 237 So.2d 163, 165 (Fla. 1970) (stating that existence or amount of insurance coverage has no bearing on issues of liability and damages, and such evidence should not be considered by the jury), superseded by statute on other grounds, Hazen v. Allstate Ins. Co., 952 So.2d 531 (Fla. 2nd DCA 2007) (citing § 627.7262, Fla. Stat. (1991)). To disclose the high-low agreement in this case would in effect reveal to the jury the amount of Nair’s uninsured motorist coverage under his insurance policy with Travelers. Therefore, while Dosdourian encourages full disclosure to the jury, see Dosdourian, 624 So.2d at 247, and an uninsured motorist carrier that is lawfully sued by a plaintiff and properly joined as a party to the lawsuit must be disclosed to the jury as a party defendant (as opposed to being identified as a co-counsel for the tortfeasor), Medina v. Peralta, 724 So.2d 1188, 1189 (Fla.1999); see also Krawzak v. Gov’t Employees Ins. Co., 660 So.2d 306, 310 (Fla. 4th DCA 1995), we find that disclosure in the instant case would have been unwarranted.

Neurosurgical Independent Medical Examination

The second issue on appeal concerns Gulfs request for an independent medical exam (“IME”). On July 23, 2004, after calendar call and about five weeks before the trial was originally scheduled to commence, Gulf served a Notice of Request for Physical Examination pursuant to Florida Rule of Civil Procedure 1.360, to be given by Dr. Jordan Grabel (“Gra-bel”), a neurosurgeon. As Gulfs counsel explained at the hearing on its request, it had previously deemed a neurosurgical IME unnecessary because another expert witness, a prominent treating neurosurgeon, had already issued a report stating that the motor vehicle accident of July 17, 1999 (the first accident) was the major contributing cause of Nair’s symptoms, injury, disability and need for medical and surgical care, a judgment favorable to Gulfs defense. However, as a result of that doctor’s subsequent deposition testimony, in which he attributed the majority of Nair’s complaints to the third accident, Gulfs counsel argued that it needed another expert neurosurgeon to rebut his revised opinion. Nevertheless, the trial court sustained the Nairs’ objection to the motion.

On September 21, 2004, the trial court conducted hearings on pretrial issues and Gulf again requested the Grabel IME, which the trial court denied as well as rejecting Gulfs subsequent motion for rehearing. Even so, Gulf never again requested the Grabel IME, nor took a single step towards asking the court to revisit its ruling, despite the fact that the trial did not begin until March 2005 as a result of delays caused by Hurricane Jeanne. As such, we find that Gulf waived its right to appeal the denial of its request for the Grabel IME. Cf. Antun Inv. Corp. v. Ergas, 549 So.2d 706, 708 (Fla. 3d DCA 1989) (where party provided with copies of reports two days before trial commenced and the court recessed for an additional week, and neither deposed the expert nor requested a continuance, the court found that any prejudice befalling that party from admission of the reports was attributable to its own failure to act); see also Leinhart v. Jurkovich, 882 So.2d 456, 460 (Fla. 4th DCA 2004) (stating that whether to permit a defendant’s requested examination under Florida Rule of Civil Procedure 1.360 is a matter of discretion) (citing State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111, 111 (Fla. 2d DCA 1994)).

Based on the foregoing, we affirm as to both issues.

Affirmed.

WARNER and GROSS, JJ., concur.

      . According to the complaint, Joseph A. Craft, an employee of Gulf, negligently operated a motor vehicle owned by Gulf while in the course and scope of his employment, causing the vehicle to collide with a motor vehicle operated by Nair.

      . Declaring Mary Carter agreements void as against public policy, the Florida Supreme Court in Dosdourian defined the typical Mary Carter agreement as "a contract by which one codefendant secretly agrees with the plaintiff that, if such defendant will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other co-defendants.” Dosdourian, 624 So.2d at 243.

      . " 'Bad faith’ in the defense of the insured in a claim for personal injury is the failure of the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same ... The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. The question of bad faith arises when a verdict is rendered in excess of the insured’s policy limits. If the insurer of the tortfeasor had an opportunity to settle within the policy limits under circumstances in which it, exercising reasonable care and good faith to its insured, should have settled, the insured tortfeasor has a cause of action for bad faith.” Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525, 528-31 (Fla. 1975).

      . Florida Rule of Civil Procedure 1.360(a) states, in pertinent part:
      (1) Any party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition which is the subject of the requested examination is in controversy.
      (A) When the physical condition of a party or other person under subdivision (a)(1) is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action, and on any other person with or after service of the process and initial pleading on that party.
      The request shall specify a reasonable time, place, manner, conditions, and scope of the examination and the person or persons by whom the examination is to be made. The party to whom the request is directed shall serve a response within 30 days after service of the request, except that a defendant need not serve a response until 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. The response shall state that the examination will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated.


text:
    Michael A. CORKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0428.
    District Court of Appeal of Florida, First District.
    March 8, 2007.
    Rehearing Denied April 13, 2007.
    Michael A. Corker, pro se, Petitioner.-
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c); Hall v. Fla. Dept of Corr., 778 So.2d 465 (Fla. 1st DCA 2001).

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    CITY OF TARPON SPRINGS and Florida League of Cities, Inc., Appellants, v. Michael VAPORIS, Appellee.
    No. 1D06-2995.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Rehearing Denied April 12, 2007.

      Lamar D. Oxford and Alan D. Kalinoski, of Dean, Ringers, Morgan & Lawton, Orlando, for Appellants.
    Jason L. Fox, of the Law Offices of Carlson & Meissner, Clearwater, for Ap-pellee.
   PER CURIAM.

Appellant seeks review of an award of benefits to Appellee/Claimant via application of the “firefighter’s presumption,” section 112.18, Florida Statutes (2005). We reverse, and address the proper application of this presumption.

Claimant began employment as a firefighter on January 27, 1986. His initial employment physical was partially administered ten days before he began working, and the remainder of the physical was completed fifteen days after he began working. On February 14, 2005, Claimant suffered a heart attack. In seeking workers’ compensation benefits, he sought to take advantage of section 112.18, which provides as follows:

Any condition or impairment of health of any ... firefighter ... caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such firefighter ... shall have successfully passed a physical examination upon entering into any such service ..., which examination failed to reveal any evidence of any such condition....

§ 112.18, Fla. Stat. (2005).

Contrary to Appellant’s position, we hold that the examination was successfully passed upon Claimant’s entry into service as a firefighter. We distinguish Cumbie v. City of Milton, 496 So.2d 928 (Fla. 1st DCA 1986), on factual grounds, noting that the examination there was not given until two years after employment commenced. And we distinguish Sledge v. City of Fort Lauderdale, 497 So.2d 1281 (Fla. 1st DCA 1986), on legal grounds, noting that the characterization of the examination as “preemployment” is mere dicta, as the issue at hand was whether the statute of limitations had run.

We also hold that the firefighter’s presumption merely switches the burden of proof from claimant to employer/carrier, and may be overcome by, as the statute plainly states, “competent evidence.” In the instant case, it appears the judge of compensation claims (JCC) erroneously applied a greater burden of proof to the employer/carrier, as she explicitly stated that the sole medical testimony “[fell] far short of establishing that some other specific hazard or non-occupational hazard was the cause of claimant’s disease.” All that the statute requires to overcome the presumption is competent substantial evidence that convinces a JCC that the disease was caused by some non-work-related factor, not that it was caused by any sort of “specific hazard or nonoccupational hazard,” as the JCC concluded here.

Accordingly, we REVERSE the order and REMAND for the JCC to consider the evidence under the proper burden of proof.

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    Gary MASSEY, Appellant, v. Calvin F. DAVID, Appellee.
    No. 1D06-3657.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Rehearing Denied April 11, 2007.

      Joseph W. Little, Gainesville, and Robert C. Widman, Venice, for Appellant.
    John A. DeVault, III, and Courtney K. Grimm of Bedell, Dittmar, DeVault, Pil-lans & Coxe, P.A., Jacksonville, and John H. Pelzer of Ruden, McClosky, Smith, Schuster <& Russell, P.A., Ft. Lauderdale, for Appellee.
   PER CURIAM.

Gary Massey appeals a final judgment assessing costs in favor of appellee, Calvin F. David. Massey raises three points on appeal: (1) the trial court erred in awarding David costs for expert witnesses that were not authorized by section 57.071, Florida Statutes; (2) the trial court erred in the amount of costs it awarded David for four expert witnesses; and (3) the court erred when it did not enter judgment for Massey following the first phase of the trial and award him costs and fees in connection with that phase. As we explain below, none of these points has merit. Accordingly, we affirm the judgment on appeal.

Before addressing the points on appeal, we note some aspects of the procedural history of this case. The main case is a legal malpractice action arising out of a toxic tort case initiated by Massey in 1991 and for which David provided legal representation to Massey. A previous opinion from this court provides additional details concerning the main case. See Massey v. David, 831 So.2d 226 (Fla. 1st DCA 2002). The trial court bifurcated the legal malpractice case, with a Phase I trial on the issue of negligence/liability and a Phase II trial on the issue of damages. In the Phase I trial, the jury found negligence on the part of David that caused damage to Massey. In the Phase II trial, however, the jury awarded no damages to Massey. Massey appealed and this court per curiam affirmed the defense judgment. See Massey v. David, No. 1D06-627, 952 So.2d 1195 (Fla. 1st DCA Feb. 15, 2007).

The trial court rendered a separate judgment awarding David costs which we address in this appeal. In his first argument, Massey contends the trial court erred in entering a final judgment “predicated in part on the proposition that § 57.071(2) Fla. Stat. was unconstitutionally enacted in violation of the Florida Supreme Court’s Article V § 2(a) exclusive powers.” Initial Br., at 6-7 (footnote omitted). Section 57.071(2), Florida Statutes, provides:

Expert witness fees may not be awarded as taxable costs unless the party retaining the expert witness furnishes each opposing party with a written report signed by the expert witness which summarizes the expert witness’s opinions and the factual basis of the opinions, including documentary evidence and the authorities relied upon in reaching the opinions. Such report shall be filed at least 5 days prior to the deposition of the expert or at least 20 days prior to discovery cutoff, whichever is sooner, or as otherwise determined by the court. This subsection does not apply to any action proceeding under the Florida Family Law Rules of Procedure.

§ 57.071(2), Fla. Stat. (1999). Massey mentioned the statute in his written objections, conceding that the trial court had to

follow the decision in Estate of Cort v. Broward County Sheriff, 807 So.2d 736 (Fla. 4th DCA 2002), which held the stat-

ute unconstitutional. Nothing, however, indicates the trial court specifically considered this statute in awarding costs to David. At no point during the hearing or in the order on appeal did the trial court mention Cort or section 57.071(2); nor did the court make any findings relating to the provisions of the statute, such as the furnishing of written reports to the opposing party, the filing of such reports, and the timing of such filings.

Assuming the trial court did consider Cort, the trial court did not err in following that decision as it stands as the only appellate decision addressing this issue. See, e.g., Mercury Ins. Co. of Fla. v. Coatney, 910 So.2d 925, 926 (Fla. 1st DCA 2005) (“In the absence of a supreme court decision on point, the trial court is bound to follow decisions of the district courts of appeal, and where there is no decision on point from the district court for the subject circuit, the trial court is bound to follow precedents of other district courts of appeal.”), review denied, 924 So.2d 809 (Fla.2006). Further, from our review, the Fourth District correctly found the statute an unconstitutional intrusion on “the powers of the judiciary, through the Florida Supreme Court, to determine matters of practice and procedure before the Florida Courts.” Cort, 807 So.2d at 738; see Art. V, § 2(a), Fla. Const. (“The supreme

court shall adopt rules for the practice and procedure in all courts.... ”). As the Fourth District explained, “section 57.071(2) does not create a right to recover expert witness fees, but rather sets forth the procedure for recovering under that right.” Cort, 807 So.2d at 738.

Moreover, even if, as urged by Massey, the statute is substantive, it still would not apply in this case. The disputed section was added in 1999, effective October 1999, well after the cause of action in this case arose. See Ch. 99-225, § 5, at 1407 (providing substance of amendment), § 36, at 1428 (providing effective date), Laws of Fla. Cf. § 57.071, Fla. Stat. (1997) (“If costs are awarded to any party the following shall also be allowed: (1) The reasonable premiums or expenses paid on all bonds or other security furnished by such party. (2) The expense of the court reporter for per diem, transcribing proceedings and depositions, including opening statements and arguments by counsel. (3) Any sales or use tax due on legal services provided to such party, notwithstanding any other provision of law to the contrary.”).

A substantive statute is presumed to operate prospectively rather than retrospectively unless the Legislature clearly expresses its intent that the statute is to operate retrospectively. This is especially true when retrospective operation of a law would impair or destroy existing rights. Procedural or remedial statutes, on the other hand, are to be applied retrospectively and are to be applied to pending cases.... [Substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (citations omitted); see also, e.g., Young v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985) (“In Florida, it is clear that in the absence of an explicit legislative expression to the contrary, a substantive law is to be construed as having prospective effect only. This rule mandates that statutes that interfere with vested rights will not be given retroactive effect. On the other hand, statutes which relate only to the procedure or remedy are generally held applicable to all pending cases.” (citations omitted)).

In his second point, Massey argues the trial court erred in the amount of costs awarded for David’s Phase II trial expert witnesses Dr. Philip Guzelian, Dr. Robert Laureno, John Spencer, and Donald Wiggins. “An order granting or denying attorney’s fees and costs is reviewed on the abuse of discretion standard.” E & A Produce Corp. v. Superior Garlic Int’l, Inc., 864 So.2d 449 (Fla. 3d DCA 2003); see also, e.g., Durrance v. Sanders, 329 So.2d 26, 30 (Fla. 1st DCA 1976) (“In taxing costs, a trial court has wide discretion.”). Massey has not shown that the court abused its discretion in awarding the costs at issue.

In his third point, Massey argues the trial court should have entered judgment for him following the Phase I trial, in which he prevailed, and pursuant to such judgment, awarded him fees and costs for the Phase I trial. The panel considering the main appeal in this case essentially decided this issue when it affirmed the judgment for David. Furthermore, the Third District’s decision in Sure Snap Corp. v. Baena, 705 So.2d 46 (Fla. 3d DCA 1997), is on point. That decision, like this case, involved a legal malpractice action. See 705 So.2d at 47-48. The jury found the attorney and law firm at fault, but also determined the client suffered no damage as a result of the actions of the attorney and the firm. See id. at 48. The trial court entered a final judgment for costs in

favor of the client because the court determined the client was the prevailing party in the malpractice claim. See id. On appeal, the Third District reversed on this issue:

Although the jury found that [the attorney] and the law firm acted improperly in failing to preserve the civil suit, the jury also found that [the client] would not have been successful in the underlying civil suit. It is well settled that “[a] cause of action for legal malpractice has three elements: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s negligence resulted in and was the proximate cause of loss to the client.” The third element regarding the loss to the client is not satisfied unless the plaintiff demonstrates that there is an amount of damages which the client would have recovered but for the attorney’s negligence.
Accordingly, even though the jury found that [the attorney] and the law firm were at fault for failing to preserve the underlying claims, they are not legally and/or financially liable to [the client], since their alleged inaction did not cause any injury to [the client].

Id. at 48-49 (citations omitted; underline emphasis added). Thus, Sure Snap involves virtually the same general factual scenario as this case and, accordingly, the same reasoning applies. As in Sure Snap, the jury (in Phase II) ultimately returned a verdict awarding no damages. Therefore, Massey did not satisfy the third element of the legal malpractice claim— David’s actions did not cause Massey to suffer any injury. Accordingly, the court properly entered a final judgment in favor of David at the conclusion of the proceeding, and Massey was not entitled to costs. See § 57.041(1), Fla. Stat. (1997) (“The party recovering judgment shall recover

all his or her legal costs and charges which shall be included in the judgment .... ”); see also, e.g., Cheetham v. Brickman, 861 So.2d 82, 83 (Fla. 3d DCA 2003) (“The law is clear that only a prevailing party who recovers a judgment is entitled to recover costs under section 57.041.”); Tacher v. Mathews, 845 So.2d 332, 334 (Fla. 3d DCA 2003) (“Section 57.041 mandates that a party recovering a judgment is entitled as a matter of right, to recover lawful court costs.... Judgment is defined as ‘[a] determination of a court of law; a judicial decision.’ ”); Figliolia v. Butler, 757 So.2d 1269, 1270 (Fla. 4th DCA 2000) (“According to section 57.041(1) of the Florida Statutes (1997), ‘[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.’ Since the final judgment awarded Butler $0, she did not recover judgment. Because Butler did not recover judgment in this case, we hold the trial court erred in awarding her costs.” (citation omitted)).

Based on the foregoing, we AFFIRM the final judgment assessing costs.

ALLEN, KAHN, and DAVIS, JJ., concur.

       Separate costs judgments are regularly appealable as final judgments. See, e.g., Dudley v. McCormick, 799 So.2d 436 (Fla. 1st DCA 2001) (affirming award of costs under section 57.041 and indicating separate judgment had awarded costs and defense judgment in "main” case previously appealed and affirmed); Danner Constr. Co. v. Reynolds Metals Co., 760 So.2d 199 (Fla. 2d DCA 2000) (reversing denial of costs, noting that amended final judgment in defendant’s favor was affirmed in separate appeal, and finding defendant entitled to costs as prevailing party pursuant to section 57.041).


text:
    Marcus L. ISOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1649.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Rehearing Denied April 12, 2007.
    Marcus L. Isom, pro se, Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part; reverse in part; and remand for further proceedings consistent with this opinion.

Appellant timely filed his motion for postconviction relief, listing 22 grounds alleging ineffective assistance of trial counsel. In a subsequently filed and sworn “Supplement/Addendum,” appellant added an additional claim of ineffective assistance of counsel, which he numbered ground 23. The trial court ordered the state to respond to all of appellant’s claims. The state did respond, conceding the necessity of an evidentiary hearing on some of the claims and arguing for the summary dismissal of the others. Ultimately, an evi-dentiary hearing was held on appellant’s grounds 1-5, 9, 12, 14 and 16-22, at which hearing appellant was represented by court-appointed counsel. The remaining grounds 6, 7, 8, 10, 11, 13 and 15 were summarily denied. Ground 23 was omitted altogether from the trial court’s several orders.

In the meantime, appellant filed a pro se motion seeking the discharge of his court-appointed counsel on grounds of conflict of interest, professional negligence, unprofessional conduct and general ineffectiveness. Following a hearing at which appellant and his attorney were permitted to testify, the trial court found there was no legal basis to discharge counsel and, therefore, denied the motion.

Appellant raises seven points on appeal, challenging the denial of his motion to discharge appointed postconviction counsel; the failure to address ground 23 of his motion for postconviction relief; the summary denial of grounds 8 and 15, without attaching portions of the record conclusively refuting his claims; the summary denial of grounds 6, 7, 10, 11 and 13, on the basis that those claims were facially insufficient; and the denial of grounds 1-5, 9, 12, 14 and 16-22 following the evidentiary hearing.

We affirm, without discussion, the denial of relief on those claims heard at the evi-dentiary hearing, as there was competent substantial evidence to support the trial court’s findings that appellant’s trial counsel was not ineffective. We also affirm the summary denial of grounds 8 and 15, because the record conclusively supports the trial court’s conclusion that appellant is not entitled to relief. Cf Bland v. State, 563 So.2d 794, 794-95 (Fla. 1st DCA 1990) (holding that the trial court’s failure to attach portions of the record upon which it had relied in summarily dismissing the defendant’s motion was not reversible error where the same portions of the record were relied upon by the defendant on appeal and appeared in the record on appeal). Lastly, we affirm those points on appeal which challenge the trial court’s denial of the motion for discharge of court-appointed counsel because it is clear from the record that no valid reason for discharge existed.

However, as to the remaining points raised by appellant, we are constrained to reverse. Although it is clear from the record and the several orders of the trial court that the court attempted to comply with its responsibility under rule 3.850 to review the record and files in this case, the sheer volume of claims of ineffective assistance of counsel resulted in appellant’s ground 23 being lost in the glut of pages. In addition, we conclude that grounds 6, 7, 10, 11 and 13 were facially sufficient to require the trial court either to attach portions of the record conclusively supporting their summary denial, or to hold an evidentiary hearing. Accordingly, we reverse the denial of grounds 6, 7, 10, 11, 13 and 23, and remand for attachment of portions of the record conclusively refuting appellant’s claims, or for an eviden-tiary hearing.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., concur.


author: EVANDER, J.

text:
    Roger THORPE, Christine Thorpe, et al., Appellants, v. Matthew GELBWAKS, et al., Appellees.
    No. 5D06-2950.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    Rehearing Denied April 18, 2007.

      Eric A. Lanigan, Winter Park, for Appellant.
    Matt G. Firestone of Pohl & Short, P.A., Winter Park, for Appellee.
   EVANDER, J.

The plaintiffs below (hereinafter referred to as the “Thorpes”) appeal from an order granting Matthew Gelbwaks’ motion to dismiss for lack of personal jurisdiction. We have jurisdiction. We find the trial court erred in granting Gelbwaks’ motion to dismiss, and accordingly, we reverse.

In March 2006, the Thorpes filed their second amended complaint against Keith Albrizzi, Claudine Andrews, Lawrence Haber and Gelbwaks for violation of the Sale of Business Opportunities Act, violation of the Florida Deceptive and Unfair Trade Practices Act, fraudulent practices, and common law fraud. The defendants were alleged to be the stockholders of Relay Transportation, Inc. (hereinafter “Relay”). The Thorpes alleged they paid $50,000 to purchase a franchise from Relay.

Among other things, the Thorpes alleged the defendants misrepresented Relay’s financial condition, misrepresented the franchise’s expected sales and profits, and failed to make certain legally required disclosures. But for this alleged misconduct by the defendants, the Thorpes claim they would not have purchased the franchise from Relay. The Thorpes further alleged that notwithstanding their best efforts, the franchise was a complete failure. The franchise was located in Winter Park, Florida.

Gelbwaks moved to dismiss for lack of personal jurisdiction on the grounds the second amended complaint failed to allege sufficient facts to obtain jurisdiction over him under Florida’s long-arm statute and failed to allege sufficient minimum contacts between Gelbwaks and the State of Florida.

In his supporting affidavit, Gelbwaks averred, inter alia, that he was a New Hampshire resident and had never been a resident of Florida. He denied all allegations of wrongdoing.

In response, the Thorpes argued Gelb-waks was subject to Florida’s jurisdiction because they had sufficiently alleged Gelb-waks had committed tortious acts within the state. § 48.19300(b), Fla. Stat. (2003).

The Thorpes also filed an affidavit of a former Relay employee, Robert Gregg. Gregg averred that during the relevant time periods (May 2003 — September 2003), Gelbwaks was Relay’s Vice-President of Franchise Operations and was “actively involved on a daily basis in the development of the documents and procedures to be used in the marketing and sale of [Relay] franchises and in the development of financial spreadsheets and other documents being developed for the franchise sale to [the Thorpes].” Gregg further averred that during this time period, Gelb-waks would regularly stay in an apartment in Florida during the work week.

In its order granting Gelbwaks’ motion to dismiss, the trial court found Gelbwaks’ affidavit had shifted to the Thorpes the burden of proving that Gelbwaks had committed a tortious act in Florida. The court further found that Gregg’s affidavit did not refute Gelbwaks’ sworn denials of any wrongdoing. Accordingly, the trial court concluded the Thorpes had not established a basis for jurisdiction over Gelbwaks under Florida’s long-arm statute.

The trial court’s analysis was incorrect. The trial court’s focus should have been on whether the tort, as alleged, occurred in Florida, and not whether the Thorpes proved that Gelbwaks had actually committed a tort in Florida. OSI Indus., Inc. v. Carter, 834 So.2d 362, 367-68 (Fla. 5th DCA 2003); see also Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730 (Fla. 3d DCA 2006); Walter Lorenz Surgical, Inc. v. Teague, 721 So.2d 358 (Fla. 1st DCA 1998), rev. denied, 731 So.2d 650 (Fla.1999).

The Florida Supreme Court has articulated a two-step inquiry for determining whether long-arm jurisdiction over a nonresident defendant in a given case is proper. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm jurisdiction statute. If so, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). A court can exercise personal jurisdiction only if the nonresident defendant maintains certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fan-play and substantial justice. Id. at 502.

Initially, a plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. Id. at 502 A defendant contesting personal jurisdiction must file a motion to dismiss. By itself, the filing of a motion to dismiss does nothing more than raise the legal sufficiency of the pleadings. To contest the jurisdictional allegations of the complaint or to raise a contention of minimum contacts, the defendant must file affidavits in support of his position. The burden is then shifted to the plaintiff to prove, by affidavit, the basis upon which jurisdiction may be obtained. Id. at 502.

If the facts relating to personal jurisdiction, as set forth in the affidavits of the plaintiff and defendant, can be harmonized, the court may decide the issue without an evidentiary hearing. If the affidavits cannot be reconciled to enable the trial court to decide the issue on undisputed facts, then a limited evidentiary hearing is necessary to determine the jurisdictional issue. Id. at 503; see also XL Vision, LLC. v. Holloway, 856 So.2d 1063, 1066 (Fla. 5th DCA 2003) (limited evidentiary hearing is required “[w]hen the facts relating to personal jurisdiction are in dispute.”) (emphasis added).

In the present case, Gelbwaks filed an affidavit that provided, in relevant part, as follows:

4. That he has read the allegations of the Second Amended Complaint filed herein and states that the following allegations are untrue:
a. any allegation that he was involved in the omission of, or concealing of, required disclosures to the Plaintiffs concerning the franchise described in the Second Amended Complaint;
b. any allegation that he was involved in any alleged failure by any of the other defendants to provide any required disclosures;
c. any allegation that' he was involved in any affirmative misrepresentations allegedly made by any of the other Defendants;
d. any allegation, to the extent one has been made, that he was involved in any affirmative misrepresentations made to the Plaintiffs;
e. any allegation that he was involved in the omission of, or concealing of, any material facts relating to the franchise sold to [the Thorpes].
10. That he was never involved in any negotiations between [Relay] and the Plaintiffs concerning the business venture which is the subject of the Second Amended Complaint.
11. That he was not involved, either while present in Florida, or while in another location, in any decision made by the other Defendants to provide financial information to Plaintiffs in advance of the payment of $50,000.00 to [Relay],

Gelbwaks’ denials of any wrongdoing, as set forth in paragraph four of his affidavit, constitute mere legal conclusions, not assertions of fact. Acquadro v. Bergeron, 851 So.2d 665, 672-73 (Fla.2003). Therefore, the Thorpes were not required to file an affidavit refuting these conclusionary statements. Id. at 672-73.

In Acquadro, the plaintiff filed a complaint against several defendants for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress. As to nonresident defendant, Dr. Acquadro, the plaintiff alleged the doctor made telephone calls from Massachusetts- to police and prosecutors located in Florida, falsely and maliciously accusing plaintiff of committing a crime in Florida. Dr. Acquadro filed a motion to dismiss for lack of personal jurisdiction. In his accompanying affidavit, he denied he made false statements regarding the plaintiff to police and prosecutors. He did not deny that he had provided information regarding the plaintiff to the police and prosecutors. . The plaintiff did not file any affidavits in response to Dr. Acquadro’s motion. The court found Dr. Acquadro’s averments that he had not provided false information to police and prosecutors to constitute legal conclusions rather than assertions of fact. The court concluded that Dr. Acquadro’s motion to dismiss was properly denied because Dr. Acquadro had not refuted the jurisdictional allegations encompassed in the plaintiffs malicious prosecution claim.

Similarly, in OSI Industries, the plaintiff alleged the nonresident defendant knowingly made certain misrepresentations to plaintiff to induce plaintiff to continue his employment with a corporation in which the defendant was a principal. In support of his motion to dismiss for lack of personal jurisdiction, the defendant filed an affidavit denying that he had made any misrepresentations to the plaintiff. In his affidavit, the defendant acknowledged that he possibly had telephone conversations with plaintiff while the plaintiff was located in Florida. The plaintiff filed an affidavit averring that the defendant had made misrepresentations to the plaintiff, by telephone, while the plaintiff was located in Florida. This court affirmed the trial court’s denial of the defendant’s motion to dismiss. We found that no evidentiary hearing was required because the affidavits could be harmonized as to the facts concerning personal jurisdiction. Specifically, the defendant’s affidavit did not refute the plaintiffs sworn statement that telephone conversations between plaintiff and defendant regarding the terms of plaintiffs employment had taken place while the plaintiff was situated in Florida.

Gelbwaks’ averment that he was not involved in the negotiations between Relay and the Thorpes (paragraph ten of the affidavit) does constitute a factual assertion related to the issue of personal jurisdiction. Gelbwaks’ statement that he was not involved in any decision made by the other defendants to provide financial information to the Thorpes in advance of the $50,000 payment (paragraph eleven of the affidavit) is also a factual assertion related to the jurisdictional issue. However, these assertions are insufficient to negate the allegations of the second amended complaint that Gelbwaks participated in the preparation of knowingly false financial spreadsheets and other documents. These assertions also fail to negate the Thorpes’ allegation that Gelbwaks participated in the decision to knowingly refuse to make certain required disclosures to the Thorpes in connection with the sale of the franchise.

Robert Gregg’s affidavit also supports the conclusion that Gelbwaks’ motion to dismiss should have been denied. Gregg averred that he worked with Gelbwaks at Relay during the relevant time period. As previously noted, Gregg stated Gelbwaks was actively involved in the development of the financial spreadsheets and other documents related to the sale of the franchise to the Thorpes. In their second amended complaint, the Thorpes alleged these documents contained misrepresentations which were part of the basis of the Thorpes’ various claims.

The trial court applied an incorrect burden to the Thorpes by requiring proof that Gelbwaks had, in fact, committed a tort in Florida. OSI Indus., 834 So.2d at 367-68. The second amended complaint sufficiently alleged Gelbwaks had committed tortious acts in the state of Florida. Gelbwaks’ affidavit did not sufficiently refute the Thorpes’ allegations relating to personal jurisdiction. Thus, the Thorpes satisfied the statutory prong of the two-step test enunciated in Venetian Salami

We further find the Thorpes satisfied Venetian Salami’s constitutional prong by demonstrating Gelbwaks had sufficient minimum contacts with Florida to satisfy due process requirements. Gelb-waks did not refute the statements set forth in Gregg’s affidavit that he regularly worked in the State of Florida from May— September 2003, and was involved in the development of the financial spreadsheets and other documents related to the sale of a franchise, located in Florida, to the Thorpes. Clearly, these facts would support the conclusion that Gelbwaks could “reasonably anticipate being haled into a Florida court” on claims related to this transaction. Maehtinger, 937 So.2d at 736.

Finally, Gelbwaks argues the trial court’s decision can be affirmed based on the corporate shield doctrine. We reject this argument. The corporate shield doctrine does not protect a corporate officer who commits fraudulent or other intentional misconduct, as alleged here. Doe v. Thompson, 620 So.2d 1004, 1006 n. 1 (Fla.1993); see also XL Vision, LLC.

REVERSED and REMANDED.

PLEUS, C.J. and SAWAYA, J., concur.

      . Fla. R.App. P. 9.130(a)(3)(C)(i) ("Appeals to the district courts of appeal of non-final orders are limited to those that ... determine ... the jurisdiction of the person.”).

      . §§ 559.80-.815, Fla. Stat.

      . §§ 501.201-.213, Fla. Stat.

      . § 817.416, Fla. Stat.

      . The franchise operation involved the sale and rental of electrical vehicles.

      . § 48.193. Acts Subject Person to Jurisdiction to Courts of State
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of any of the following acts:

      (b) committing a tortious act within this state.

      . The standard of review of a trial court's ruling on a motion to dismiss for lack of jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002).