author: GROSS, J. GROSS, J.

text:
    Richard GRAHAM, an individual, Ann Graham, an individual, and Ocean Ridge Yacht Club Homeowners Association, Inc., a Florida corporation, Appellants, v. The PETER K. YESKEL 1996 IRREVOCABLE TRUST, Appellee.
    No. 4D05-1100.
    District Court of Appeal of Florida, Fourth District.
    March 1, 2006.
    Opinion Denying Rehearing and Rehearing En Banc May 24, 2006.
    Roy E. Fitzgerald, Jane M. Gordon, and Alan B. Rose of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellant. ' ‘
    Gerald F. Chapman of Gerald F. Chapman, LLC, Bethesda, Maryland, and Matthew D. Landau of Landau & Segal, P.A., Hollywood, for appellee.
   GROSS, J.

We affirm the trial court’s denial óf appellants’ motion for attorney’s fees.

Richard and Ann Graham were the defendants in the circuit court. Their joint proposal for settlement did not apportion the offer between them, so that it did not “state the amount and terms attributable to- each party,” as required by Florida Rule of Civil Procedure 1.442(c)(3). This deficiency in the offer was fatal to their motion for fees.

Lamb v. Matetzschk, 906 So.2d 1037, 1042 (Fla.2005), holds that “[r]ule 1.442(c)(3) expressly requires that a joint proposal for settlement made by two or more parties be differentiated. The rule makes no distinction between multiple plaintiffs and multiple defendants, nor does it make any distinction on the theox-y of liability.”

Lamb relied primarily on Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). Willis Shaw invalidated a proposal that did not apportion a settlement amount between two plaintiffs to a single defendant. 849 So.2d at 278-79. Despite the fact that Willis Shaw involved an offer from multiple plaintiffs to a single defendant, the Lamb court stated that “[t]he same logic nonetheless applies to a situation where there is an undifferentiated offer from a single plaintiff to multiple defendants. Each defendant should be able to settle the suit knowing the extent of his or her financial responsibility.” Id. at 1040.

Here, the Grahams argue that they were sued on a “single unified claim” directed at their joint ownership of real property, so that their offer of settlement was valid. However, cases decided after Lamb recognize that the supreme court has adopted a bright line rule requiring apportionment under rule 1.442(c)(3). That the Grahams made their joint proposal for settlement as tenants by the entireties does not alter the bright line rule.

Heymann v. Free, 913 So.2d 11 (Fla. 1st DCA 2005), held that attorney’s fees were not awardable where a single plaintiff made a proposal for settlement to multiple defendants, because “the [plaintiffs] settlement proposal failed to apportion the offer between [defendants].... ” Id. at 12. The court recognized that it was “constrained by Lamb ” in a case where one defendant, the spouse of the other defendant, was vicariously liable under the dangerous instrumentality doctrine. Id.

In a situation similar to this appeal, the second district ruled that an unappor-tioned offer of judgment from multiple defendants to a single plaintiff failed to comply with rule 1.442. 1 Nation Technology Corp. v. A1 Teletronics, Inc., 924 So.2d 3 (Fla. 2d DCA 2005). The court found that Lamb controlled, stating:

Regardless of the fact that [one of the defendants] was vicariously liable for [the other defendant] or that the offer stated they would be jointly and severally responsible for the settlement amount, because the offer they presented to [plaintiff] did not differentiate between the two offeroi's, the offer did not comply with the clarification of rule 1.442(c) made by the supreme court in Lamb. Thus, the defendants were not entitled to fees and costs based on this offer of judgment.

1 Nation Tech. Corp., 924 So.2d 3, 6.

Finally, in D.A.B. Constructors, Inc. v. Oliver, 914 So.2d 462, 463 (Fla. 5th DCA 2005), two defendants jointly and severally liable under a theory of vicarious liability made a joint pi'oposal for settlement that failed to apportion “the amount of the offer between the defendants.” Id. at 463. The fifth district affirmed the trial court’s denial of fees because of the failure of the offers to apportion, “[i]n light of the extremely broad language” in Lamb. See id.

Based on Lamb, the tidal court did not err when it denied appellants’ motion for attorney’s fees.

Affirmed.

MAY, J„ and IMPERATO, CYNTHIA, Associate Judge, concur.

ON MOTION FOR REHEARING

GROSS, J.

Some motions for rehearing take us to task for not writing at all. Others criticize us for not deciding correctly. Appellants’ motion for rehearing in this case is of the latter variety.

The seven page motion states that the panel opinion overlooked or misapprehended a number of points, including the following:

1. This case did “not involve any issue of vicarious liability, derivative liability, or joint and several liability.”
2. This case involved a claim “made against joint defendants — Richard and Ann Graham, a husband and wife who were sued as the owners of tenancy by the entireties property.”
3. The panel decision “did not cite or even mention this Court’s recent decision” in Hall v. Lexington Ins. Co., 895 So.2d 1161, 1165 (Fla. 4th DCA 2005), which compels a decision in appellants’ favor.

We write to discuss these issues.

This case arose from a controversy over a boat slip at a yacht club community. Appellee, The Peter K. Yeskel 1996 Irrevocable Trust, owns a townhouse at the yacht club. The Grahams also own a townhouse. The Grahams own their unit as tenants by the entirety.

Yeskel and the Grahams disagreed about the proper location of an identified boat slip; the Grahams contended that the slip was located in front of Yeskel’s unit, on the Intracoastal Waterway, while Yesk-el believed that the correct location was in a lagoon off the Intracoastal.

Yeskel sued the Grahams in a five-count complaint — trespass, ejectment, declaratory relief concerning the boat slip, injunc-tive relief directed at the Grahams’ use of the slip, and conversion. The conversion count sought damages against the Grahams, jointly and severally.

The Grahams made the unapportioned offer of settlement described in the original opinion. The Grahams prevailed in a bench trial, and the trial court entered final judgment in their favor.

Although the Grahams owned their unit as tenants by the entirety, at least two of the counts — trespass and conversion — are torts for which Yeskel would have to have proved a separate and distinct liability for each Graham in order to recover damages. Different acts by each Graham may have given rise to different degrees of responsibility. For the purpose of deciding the required contents of a rule 1.442 offer of judgment, we see no distinction between this case and the ones cited in the panel opinion.

More significantly, as we wrote in the original panel opinion, we read Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), as adopting “a bright line rule requiring apportionment under rule 1.442(c)(3).” To us a bright line rule means that it applies in all proposal for settlement cases, without exception. Rule 1.442 applies to “all proposals for settlement authorized by Florida law ...” Fla. R. Civ. P. 1.442(a). In Lamb and rule 1.442(a), we believe that the supreme court, like Dr. Seuss’s Horton the elephant, meant what it said and said what it meant — rule 1.442(c) applies in all cases where proposals for settlement are authorized by Florida law, without an exception for claims against litigants relating to property they own as tenants by the entirety.

The Grahams complain of the difficulty of apportioning damages between them in an offer of settlement. We see no difference between this argument and the one rejected by the supreme court in Lamb:

Lamb asserts that it is impossible to apportion an offer of settlement when one of the offerees is only vicariously liable. It may take some creative drafting to fashion an offer of settlement when one party is only vicariously liable. However, we are confident that the lawyers of this State can and will draft an offer that will satisfy the requirements of the rule.

906 So.2d at 1041.

Before Lamb, some district courts of appeal loosely applied the form and content requirements of rule 1.442(c), asking whether it was fair or logical to apply the requirements of the subsection in a given case. See Safelite Glass Corp. v. Samuel, 771 So.2d 44 (Fla. 4th DCA 2000); Barnes v. Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003). Our decision in Hall followed this approach, relying on the analysis in Safe-lite and Kellogg. The first district declined to follow Safelite in Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050, 1052-53 (Fla. 1st DCA 2002); the supreme court approved the first district’s decision in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). Lamb expressly disapproved Barnes. Lamb, 906 So.2d at 1038. We do not believe that our application of rule 1.442 to the apportionment issue in Hall has survived the supreme court’s decision in Lamb.

The motion for rehearing and rehearing en banc is denied.

MAY, J„ and IMPERATO, CYNTHIA, Associate Judge, concur.

      . Dr. Seuss, Horton Hatches the Egg (Random House, Inc., 1982) (1954).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wendall HALL, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-0524.
    District Court of Appeal of Florida, First District.
    March 2, 2006.
    Rehearing Denied May 17, 2006.
    Wendall Hall, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Moore v. Correctional Medical Serv., 817 So.2d 963 (Fla. 1st DCA 2002).

BARFIELD, WEBSTER and BENTON, JJ., concur.


author: CORTINAS, Judge. SHEPHERD, J.,

text:
    Miriam Nancy FERREIRO, individually, and on behalf of all others similarly situated, Appellant, v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 3D04-3205.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    Rehearing and Rehearing En Banc Denied March 30, 2006.

      Hunter, Williams & Lynch, P.A., Coral Gables, and Christopher Lynch and Steven K. Hunter, for appellant.
    Conner & Winters, L.L.C. and James E. Green; Hicks & Kneale, P.A., Susan Y. Marcus, Hollywood, and Mark Hicks, Miami, for appellee.
    Before WELLS, SHEPHERD, and CORTINAS, JJ.
   CORTINAS, Judge.

The plaintiff, Miriam Nancy Ferreiro (“Ferreiro”), appeals from a non-final order denying her motion for class certification on the ground that she lacked standing to pursue this class action. We reverse.

In January 1997, Ferreiro rented a car from a Budget Rent A Car facility in Miami, Florida. She purchased an optional Rental Supplemental Liability Insurance Excess Policy (“excess policy”) from the defendant, Philadelphia Indemnity Insurance Company (“Philadelphia”). Soon after renting the car and purchasing the excess insurance, Ferreiro was involved in a car accident and was seriously injured.

On June 4, 2001, Ferreiro filed a second amended class action complaint against Philadelphia seeking (1) a declaratory judgment that Ferreiro and other similarly situated individuals are entitled to uninsured or underinsured motorist coverage pursuant to section 627.727(2), Florida Statute (1997), and (2) damages resulting from her injuries.

The parties do not dispute that the excess policy did not offer Ferreiro uninsured or underinsured motorist coverage. The parties dispute whether Ferreiro has standing to bring a class action against Philadelphia for failing to offer such coverage.

This Court, in Ferreiro v. Philadelphia Indem. Ins. Co., 816 So.2d 140 (Fla. 3d DCA 2002), held that Philadelphia was required by section 627.727(2) to inform Fer-reiro that uninsured motorist coverage was available. By mandate issued on July 19, 2002, we directed the trial court to hold Philadelphia to uninsured motorist coverage for Ferreiro.

After this Court’s decision in Ferreiro and following remand, Ferreiro filed a Motion for Class Certification seeking- to obtain uninsured and underinsured motorist coverage for a “class” she redefined as:

All individuals who purchased [excess policies] from Philadelphia Indemnity Insurance Company in the State of Florida prior to April 1, 2003, and all individuals or entities qualifying as either Class I or Class II insureds, pursuant to § 627.727 Fla. Stat., under said policies.

Philadelphia objected to certification of a class action claiming that Ferreiro lacked standing. The.trial court stayed discovery pending resolution on the issue of standing. Subsequently, the trial court denied Ferreiro’s motion for class certification on the basis that she lacked standing. However, the trial court ordered that Ferrei-ro’s individual claims would remain pending.

On de novo review, we disagree with the trial court and find that Ferreiro has standing to pursue a class action. See W.S. Badcock Corp. v. Webb, 699 So.2d 859, 861 (Fla. 5th DCA 1997)(holding that a trial court’s decision as to whether a plaintiff has standing to bring a class action is reviewed de novo).

The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable as a class action. Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997); Baptist Hosp. of Miami, Inc. v. DeMario, 683 So,2d 641, 643 (Fla. 3d DCA 1996). Thus, in this appeal, we consider only whether Ferreiro has standing to seek class action certification. We do not address Ferreiro’s capacity to represent the class as the trial court has not had an opportunity to consider and rule upon this issue. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987)(holding that a court may address whether the plaintiff has representative capacity only after determining the issue of standing), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (1988). For the same reasons, we do not address issues regarding the scope of the purported class or the merits of the class action.

To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation. Godwin v. State, 593 So.2d 211 (Fla.1992); Montgomery v. Dep’t of Health and Rehabilitative Servs., 468 So.2d 1014 (Fla. 1st DCA 1985). Absent an existing case or controversy between Ferreiro and Philadelphia, there would not be standing to pursue a class action claim or represent a class. See Webb, 699 So.2d at 860. As we have previously held:

[I]f none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class.

Taran, 685 So.2d at 1006 (quoting O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).

Philadelphia contends that Ferreiro lacks standing to bring this class action because we previously granted her declaratory relief. In support of its position, Philadelphia relies on Chinchilla v. Star Casualty Insurance Co., 833 So.2d 804 (Fla. 3d DCA 2002), Ramon v. Aries Insurance Co., 769 So.2d 1053 (Fla. 3d DCA 2000), Taran, 685 So.2d at 1006, Baptist Hospital, 683 So.2d at 643, and Syna v. Shell Oil Co., 241 So.2d 458 (Fla. 3d DCA 1970). However, none of those cases support Philadelphia’s contention that Ferrei-ro lacks standing.

For example, in Baptist Hospital, this court did not address the issue of plaintiffs standing to bring a class action and, instead, remanded the case to the trial court for a determination on plaintiffs standing. Baptist Hospital, 683 So.2d at 643.

In Ramon, the plaintiff brought a class action against an automobile insurance company after he was involved in an accident. The plaintiff conceded that the insurer settled all of his claims and that no money was due to him, but, nevertheless, he wanted to pursue the class action “so that the insurer would ‘change the way they do things.’ ” Ramon, 769 So.2d at 1054. We concluded that the plaintiff lacked standing because he had already received full payment and, thus, did not have a pending case or controversy with the insurer. Ramon, 769 So.2d at 1055.

In this case, unlike the cases cited by Philadelphia, a final judgment has not been rendered on Ferreiro’s claim for damages or on Philadelphia’s liability. In fact, the trial court correctly recognized that Ferreiro’s individual claims remained pending after the prior appeal. As such, we find that Ferreiro has standing because she continues to have a case or controversy with Philadelphia. See Taran, 685 So.2d at 1006; Ramon, 769 So.2d at 1055.

We note that the dissent confuses judicial review of standing with review of the criteria for certification of a class action. The differences in these inquiries has been described as follows:

Though there is no additional standing requirement for the plaintiff who seeks to represent a class, a proper class action requires a similarity of claims between the named plaintiffs and the class members. This similarity of claims is tested not by principles of standing, but by the application of the Rule 23(a)(3) criteria. If a class action is proper, then by definition the class representative’s claims will be typical of the class. Thus the class plaintiffs individual standing, linked to his or her asserted claim, becomes automatically linked to the class claim. Having standing which a class representative shares with the members of a class is another way of saying that the class representative is a proper party to raise a particular issue common to the class. The commonness of issues is an express requirement of Rule 23 and is an attribute of the issue involved, rather than a threshold characteristic of whether the issue meets the constitutional case or controversy test. Accordingly, a plaintiff who meets individual standing requirements possesses [standing] in the constitutional sense, and whether the plaintiff may represent the rights of others depends on the application of Rule 23 tests in the case of a class action[.]

Osgood v. Harrah’s Entertainment, Inc., 202 F.R.D. 115, 120-21 (D.N.J.2001)(citing Herbert B. Newberg & Alba Conte, Newberg On Class Actions § 2.05 (3d ed.1992)) (emphasis added).

Thus, standing is a threshold determination necessary for the maintenance of all actions, including class actions. In this case, the standing requirement is satisfied because there is a pending claim for damages between the parties as well as a pending determination of Philadelphia’s liability. Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certification, namely (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Meyer v. CUNA Mut. Group, No. 03-602, 2006 WL 197122, at *14 (W.D.Pa.2006); Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.1998); Fla. R. Civ. P. 1.220.

Accordingly, we reverse the trial court’s determination that Ferreiro lacks standing to bring a class action and remand for further proceedings consistent with this opinion. We express no opinion on the viability of the proposed class action.

WELLS, J., concurs.

SHEPHERD, J.,

dissenting.

The precise issue presented in this case is whether an individual who has obtained a court decree establishing “imputed uninsured motorist coverage” for herself under a renter’s supplemental excess insurance policy and for whom the only unresolved questions between her and her insurer are whether her actual loss falls within the established “imputed coverage” and, if so, the amount of damages to which she is entitled, has standing vel non to prosecute a separate claim for declaratory class relief to seek to establish that “imputed coverage” for persons other than herself. Because under the applicable law of this district, standing to prosecute cause of action “x” does not automatically confer standing to prosecute cause of action “y,” I conclude that at such time as Miriam Ferreiro established imputed coverage for herself in this case, her standing to proceed on behalf of the class ceased. This conclusion is also constitutionally required. Accordingly, I respectfully dissent.

The Constitutional Dimension

As the majority correctly suggests, see p. 377-78, supra, standing is a matter of constitutional dimension. In Florida, this means that “every case must involve a real controversy as to the issues presented.” Dep’t of Revenue v. Kuhnlein, 646 So.2d 717, 721 (Fla.1994). See also Godwin v. State, 593 So.2d 211, 212 (Fla.1992)(point-ing out that a case “present[ing] no actual controversy or when the issues have ceased to exist” will be dismissed as “moot”). Put another way, the parties must not be requesting an advisory opinion, Interlachen Lakes Estates, Inc. v. Brooks, 341 So.2d 993, 995 (1976), except in those rare instances in which advisory opinions are authorized. E.g., Art. IV, § 1(c), Fla. Const. (advisory opinions to the Governor).

In the context of declaratory judgment actions, see 86.011, Fla. Stat. (2005), the Florida Supreme Court has reiterated much the same rule:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.

May v. Holley, 59 So.2d 636, 639 (Fla.1952)(emphasis added); see also Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.1991)(reaffirming May); Kuhnlein, 646 So.2d at 721 (accord). Perhaps the greatest risk in the deployment of declaratory actions is that a party will seek to misuse the device to obtain an answer where it might be nice to have one, but where there is no “present, adverse and antagonistic interest in the subject matter.” May, 59 So.2d at 639. In these cases, it is our sworn responsibility to police the boundaries. See, e.g., Martinez, 582 So.2d at 1170 (“[Ajlthough a court may entertain a declaratory action regarding a statute’s validity, there must be a bona fide need for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief.”); Dep’t of Ins. v. Dade County Consumer Advocate’s Office, 492 So.2d 1032, 1043 (Fla.1986)(“Courts, in performing their function of adjudicating cases and controversies within their jurisdictions, interpret and apply the law when there is a dispute or conflict regarding how it applies.”); In re Connors, 332 So.2d 336, 340 (Fla.1976)(Hatchett, J., dissenting)(“In my opinion, no case or controversy is ripe for decision here.... Without doubting the importance of the question presented, I believe the Court oversteps jurisdictional boundaries in reaching the merits.”). I am of the view that such is our obligation here.

As previously indicated, the current circumstance of this case is that there is a case and current controversy between Fer-reiro and her insurer with respect to whether or not her insurer owes her any compensation for the loss that she has suffered — i.e., whether she suffered a loss attributable to the act of an uninsured motorist. However, there is no longer any dispute concerning whether she has coverage under the policy for such a loss if it occurred. Indeed, because the decision rendered by us in Ferreiro is one of first impression that has since not been considered or ruled upon by any other District Court in this state or the Florida Supreme Court, our decision would be controlling on the question of the existence of “imputed coverage” in any trial court in this state should another Philadelphia insured raise the question. Pardo v. State, 596 So.2d 665, 666 (Fla.1992)(“[T]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court. Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”)(internal citations omitted). Accordingly, to hold that Ferreiro has standing to prosecute the class action in this case simply because she has not prosecuted to completion her individual claim for damages based upon coverage previously established by her is violative of the constitutional underpinnings of the case and controversy requirement in Florida law. See Kuhnlein, 646 So.2d at 720-22 (The standing requirement in Florida’s courts of general jurisdiction is co-extensive with the requirement that there be a case and controversy). Carefully examined, I believe the authorities from our District which the majority finds inapposite, see p. 377-78, supra, likewise compel this conclusion.

OUR AUTHORITIES

I find our recent decision in Baptist Hosp. of Miami, Inc. v. DeMario, 661 So.2d 319 (Fla. 3d DCA 1995), instructive if not controlling of the instant case. In DeMario, Michael DeMario sought declaratory class relief, alleging that he was overcharged for copies of medical records he requested from Baptist Hospital. See § 395.3025(1), Fla. Stat. (1995). When the hospital neglected to respond to the complaint, the trial court entered a default against it on the plaintiffs individual claim and then certified a class based solely upon the fact of the default. We reversed the class certification because the rigors of class certification had not been considered or satisfied. Id. at 320. We also sua sponte signaled the existence of a potential threshold issue concerning whether De-Mario had standing to serve as the class representative. Id. at 322, n. 6 (“We likewise express no view on the question whether the existence of a default as to plaintiffs individual claim places the plaintiff in a different position than the rest of the class, such that the plaintiffs standing to serve as class plaintiff is adversely affected.”). Rather than addressing that issue on remand, however, the trial court determined to delay it until the hearing on the motion to certify the class. The hospital countered by re-raising the issue to us on a petition for writ of certiorari and arguing its threshold character. Baptist Hosp. v. DeMario, 683 So.2d 641, 642 (Fla. 3d DCA 1996). We granted the writ and remanded the case to the trial court with directions to stay discovery on the class certification issue pending a determination on DeMario’s standing to serve as the class representative because “DeMario, unlike any other member of the putative class, has had liability determined in his favor-” Id. at 643 (emphasis added). Just as in our case, DeMario’s claim had not proceeded to a final resolution. Id.; see also Fla. R. Civ. P. 1.500 (distinguishing between a default and a final judgment after default). If the fact that Mr. DeMar-io had not obtained a final judgment after default on his individual claim was immaterial to the remand of his case for the immediate resolution of the standing issue there, as it must have been, then whether or not Ferreiro has received a final judgment on her individual claim should likewise be immaterial to the resolution of the standing issue in our case.

Although the remaining authorities dismissed by the majority are factually distinguishable from both DeMario and our case on the ground that no separate, potentially viable, individual claim existed at the time of the entry of the dismissals for lack of standing, nevertheless they illustrate the point that standing is determined by reference to the purported class action claim. For example, in Syna v. Shell Oil Co., 241 So.2d 458 (Fla. 3d DCA 1970), the plaintiff Sidney Syna filed a class action complaint to recover alleged usurious credit card interest. On the day Shell’s answer was due, its counsel informed Syna by letter that it was canceling his credit card and returning the three dollars in question. In its simultaneously filed answer, the company raised as an affirmative defense that the case should be dismissed because “there [no longer] existed [a] present controversy between ‘the Plaintiff and the Defendant.’ ” The trial court agreed, and we affirmed. Syna, 241 So.2d at 459.

Likewise, in Chinchilla v. Star Cas. Ins. Co., 833 So.2d 804 (Fla. 3d DCA 2002), Star Casualty mailed Chinchilla a letter informing her that she needed to pay an additional premium by a date certain in order to maintain her personal injury protection medical benefits coverage on her motor vehicle. However, she never received the letter and her coverage was cancelled, a fact she did not discover until months later, when she was injured in a collision involving the vehicle. After determining that Chinchilla could reasonably have believed she had paid all premiums due, and wishing to avoid litigation, Star responded to her claim for benefits by reinstating her policy and providing coverage for the accident. Chinchilla then filed a class action suit on behalf of all persons who, among other things, had their policies cancelled for non-payment or who were charged a premium beyond the cancellation date stated in the letter. We affirmed the trial court’s decision finding that Chinchilla lacked standing to be the class' representative. Chinchilla, 833 So.2d at 805-06. “Chinchilla” we observed, “[refuses to] accept yes for an answer.” Id. Ferreteo likewise seems unwilling to recognize what she has legally accomplished.

,,,⅜ Ramon v. Aries Insurance Company, 769 So.2d. 1053 (Fla. 3d DCA 2000), Ramon sought to establish a class action, on behalf of himself and all others similarly, situated against Aries Insurance Company on the basis that the insurer had improperly withheld a personal injury protection deductible for medical costs incurred by him in an accident while a passenger in a vehicle owned by Irene Lopez. Months after the accident, he married Lopez’ daughter and the couple moved in with Lopez. As events1 unfolded, Aries discovered that it had erroneously withheld the deductible on the mistaken belief that Ramon was living in the home of-the named insured, Irene Lopez, at the time of the accident. See § 627.739, Fla. Stat. (1999). Upon discovering its error, Aries paid Ramon the deductible and moved for summary judgment on the ground that Ramón no longer had standing to maintain the class action because there was no case or controversy between him and Aries," The trial court granted the motion and wé affirmed. Ramon, 769 So.2d at 1055.

Finally, in Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004 (Fla. 3d DCA 1997), Adam Taran and Eric Micha-lowsky brought a class action against their health insurers, alleging that they had been overcharged insurance premiums for newborn health insurance. The insurers filed affidavits demonstrating that the premiums charged were proper, which led to summary judgment in favor of the insurers based on lack of standing. We again affirmed. Taran, 685 So.2d at 1007.

From this group of cases — all from this court and spanning more than three decades — I believe the following conclusions flow. First, if a question of the standing of a class representative to represent the class exists in a case, that issue must be resolved before class certification is addressed. Second, the fact that an individual has standing to prosecute his individual claim to judgment but has not yet obtained that judgment is not dispositive of whether that individual has standing to serve as a class representative. See DeMario, supra. Third, it is a cardinal principle that standing ceases to exist where, prior to certification, an individual dispute is resolved, regardless of whether it is through unilateral action of the. defendant in removing the issue from dispute, an agreement of the parties, or a determination by the trial court which (as in the instant case) may be reviewed through appellate proceedings. Applying these principles drawn from our case law, I conclude that the law of this District compels us to affirm.

CONCLUSION

The court below entered judgment against the plaintiff on the class claim presented by her on the ground that her standing to continue to represent the purported class ceased at the time we issued our Ferreira decision which fully and finally determined that she had “imputed coverage” for any loss caused by an uninsured motorist as a matter of law by virtue of the fact that Philadelphia neglected to give her the opportunity to accept or decline such coverage at the time she purchased Philadelphia excess insurance coverage. At the same time, the trial court held that she could continue to pursue her individual claim made in a separate count of the complaint for damages alleged by her to have been caused by an uninsured motorist pursuant to her policy as legally reconstructed. For the reasons stated, I believe the trial court was correct in this decision and would therefore affirm the judgment below.

      . In her second amended class action complaint, Ferreiro defined the "class” of persons entitled to a declaration of uninsured or un-derinsured motorist coverage as: Individuals who have purchased from Philadelphia Indemnity Insurance Company, [an excess policy] which is delivered or issued for delivery in Florida in conjunction with the rental of a vehicle which is registered or principally garaged in Florida, as well as occupants of said vehicles, and who have sustained damages in the past five years as a result of the alleged negligence of an uninsured/underinsured motorist while an occupant of said rental vehicle.

      . Section 627.727(2) provides, in pertinent ' part, that:
      [A]n insurer issuing [an excess policy] shall make available as a part of the application for such policy, and at the written request of an insured, limits [of uninsured motorist coverage] up to the bodily injury liability limits contained.in such policy or $1 million, whichever is less.
      § 627.727(2), Fla. Stat. (1997).

      . Federal Rule of Civil Procedure 23(a) is virtually identical to Florida Rule of Civil Procedure 1.220(a).


text:
    Eric M. HOFFMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1469.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    Rehearing Denied May 25, 2006.
    Eric M. Hoffman, in proper person.
    Charles J. Crist, Jr., Attorney General, and Ishir Mehta, Assistant Attorney General, for appellee.
    Before COPE, C.J., and WELLS and SUAREZ, JJ.
   PER CURIAM.

We affirm the trial court’s denial of the motion of defendant-appellant Eric M. Hoffman to modify the terms of his probation so as to transfer his supervision from Monroe County to Broward County. As the trial court correctly concluded, the defendant must exhaust his administrative remedies by applying to the Florida Department of Corrections for transfer of supervision. See Henderson v. Crosby, 891 So.2d 1180, 1182 (Fla. 2d DCA 2005); Hidalgo v. State, 729 So.2d 984, 987 (Fla. 3d DCA 1999); Sutton v. Strickland, 485 So.2d 25 (Fla. 1st DCA 1986).

Affirmed.


text:
    Darrell DUNN, Appellant, v. Mona Lisa KEAN, Appellee.
    No. 1D05-1188.
    District Court of Appeal of Florida, First District.
    March 14, 2006.
    Rehearing Denied May 18, 2006.
    Appellant, Pro Se.
    Claire A. Duchemin, Esquire, of Claire A. Duchemin, P.A., Tallahassee, for Appel-lee.
   PER CURIAM.

Discontent with the administration of their mother’s probate estate, Appellant and his brother turn to this court for at least the tenth time. All of the issues raised in this appeal are again without merit, and the trial court is affirmed without further discussion.

Appellee moves for attorney’s fees pursuant to section 57.105, Florida Statutes (2005), which enables this court to sanction Appellant with fees if he knew or should have known his claims were legally and factually without merit. See Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649, 651 (Fla. 1st DCA 2004). Appellant should have known his claims were legally and factually without merit.

The majority of the issues in this appeal have already been heard and decided by this court. The issues not previously decided are nothing more than mere expressions of Appellant’s dissatisfaction with the trial court’s exercise of its discretion. Unfortunately, Appellant’s dissatisfaction is not accompanied by any legal basis as to how the court abused its discretion. Accordingly, we grant Appellee’s motion for attorney’s fees pursuant to section 57.105 and remand to the trial court to determine the amount.

AFFIRMED and REMANDED.

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Larry LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5143.
    District Court of Appeal of Florida, First District.
    March 29, 2006.
    Rehearing Denied May 17, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 1, 2005, the Court has determined that the October 3, 2005, Order Denying Reimbursement of Filing Fees, is, in effect, an order denying rehearing of the court’s October 22, 2004, Order Denying Motion for Refund of Filing Fees, which is not an appealable order. See Fla. R.App. P. 9.130(a)(4).

It is clear from the record that the lower tribunal treated the appellant’s initial motion for refund of the filing fee as a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. Thus, the October, 2004, order denying that motion would have been appealable to this Court pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). However, to the extent that the appellant is seeking review of that earlier order, the appeal is untimely. Because the appellant’s Motion for Refund of Filing Fee, filed in the lower tribunal on June 16, 2005, was unauthorized, see Frantz v. Moore, 772 So.2d 581 (Fla. 1st DCA 2000), and untimely, see Florida Rule of Civil Procedure 1.530(b), the motion failed to delay rendition of the underlying order denying relief from judgment. See Fla. R.App. P. 9.020(h). Consequently, the notice of appeal is untimely with regard to the October 22, 2004, order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, WEBSTER, and BENTON, JJ., concur.


text:
    Michael D. DREW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0409.
    District Court of Appeal of Florida, First District.
    April 4, 2006.

      Michael D. Drew, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B); Baker v. State, 878 So.2d 1236 (Fla.2004).

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Robert A. GAITHER, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D05-5482.
    District Court of Appeal of Florida, First District.
    April 4, 2006.
    Robert A. Gaither, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Kevin D. D’HAITI, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-4812.
    District Court of Appeal of Florida, First District.
    April 4, 2006.
    Kevin D. D’Haiti, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

BARFIELD, BROWNING and THOMAS, JJ., concur.


author: WELLS, Judge.

text:
    Stacii Dazjwain LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2114.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.

      Stacii Dazjwain Lewis, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Stacii Dazjwain Lewis challenges a denial of his rule 3.850 motion for postconviction relief. We find that the trial court improperly summarily denied the motion, and we reverse. On April 19, 2005, Lewis filed a motion for postconviction relief raising a number of issues. The court denied the Lewis’s motion for postconviction relief, concluding that the motion was stricken as successive. This is, of course, a proper basis under Rule 3.850 for the denial of such a motion, provided that “the prior determination was on the merits.” See Fla.R.Cr.P. 3.850. In the instant case, however the record does not support the conclusion that a prior motion had been filed or that a determination on the merits had been made. We, therefore, reverse and remand with instructions that the trial court conduct an evidentiary hearing or, if the court denies the motion without hearing, attach to its order of denial portions of the record below conclusively establishing that the appellant is not entitled to relief.


author: LAWSON, J. TORPY, J.,

text:
    Valgean D. BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1040.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Valgean D. Britton, (“Britton”), appeals her judgment and sentence for manslaughter with a knife for the stabbing death of her husband, (“the decedent”). The single issue raised on appeal is whether the trial court erred in excluding testimony about an incident that occurred almost three years before the stabbing, during which the decedent is alleged to have threatened two men by saying: “Don’t be laughing at me. I’ll blow your head off.” We affirm.

At trial, Britton admitted to stabbing her husband, but claimed self-defense. In support of her self-defense claim, Britton and three independent defense witnesses testified at length regarding multiple prior incidents of violence by the decedent against Britton. With respect to the excluded evidence, however, the trial judge found that the unfair prejudicial effect of the evidence substantially outweighed its probative value considering the prior incident’s remoteness in time, the lack of connection between the incident and the crime charged, and the speculative nature of “any real connection whatsoever as far as any apprehension in her [Britton’s] mind.”

When addressing a defense proffer of third-party testimony regarding specific acts of violence by a victim, a trial court is required to consider “the need to limit evidence of specific acts [of violence] because, inter alia, a jury may tend to give the evidence too much weight, or it may sidetrack the jury’s focus.” State v. Smith, 573 So.2d 306, 318 (Fla.1990). Therefore, even where a proper predicate is laid showing that the defendant was aware of the prior act of violence, “corroborative evidence should be admitted cautiously.” Id.

In this case, Britton told police officers prior to her arrest that she knew the decedent was not carrying a weapon when she stabbed him. Further, the defense presented no evidence that the decedent had ever threatened Britton with a gun. Additionally, Britton testified that she did not think about any of the decedent’s past acts of violence prior to stabbing him. In fact, she even testified that she did not fear her husband at all because of his past violence. Rather, the only thing that caused her fear on the morning of the stabbing was the fact that he would not stop striking her and had a “rage in his eyes.” In light of these facts, the threat that the decedent is alleged to have uttered to two men almost three years earlier does not seem to have had any relevance to Britton’s state of mind on the morning of the stabbing. Given the proffered testimony’s lack of probative value, and the possibility of prejudice or confusion had it been admitted, we find the trial court was well within its discretion to exclude the evidence.

Alternatively, Britton argues that even if this testimony was properly excluded as part of her direct case, she should have been allowed to use it after the State “opened the door” by calling the decedent’s employer to testify about the decedent’s reputation in the community for peacefulness. While we agree that the trial court erred by not allowing the defense to cross-examine the State’s rebuttal witness regarding his knowledge of specific acts of violence by the decedent, we recognize the defense accomplished the same end by securing an admission from the witness that he really did not know about the decedent’s reputation outside of the workplace. The witness also admitted on cross-examination that he knew nothing about the decedent’s home life, and never socialized with him away from the work setting. In light of these concessions, and the extensive testimony from multiple witnesses regarding the .decedent’s violence outside of the work setting, we find no reasonable possibility that the error com tributed to the conviction. See generally State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.

ORFINGER, J., concurs.

TORPY, J., concurs specially, with opinion.

TORPY, J.,

concurring specially.

I concur with the majority’s result and part of its opinion. I think the lower court committed error in excluding the evidence about the “shotgun incident” at both procedural phases of the trial. Although I am constrained to agree that the errors were harmless, I wish to expound upon the analysis of the majority on this issue.

Appellant’s self-defense theory involved her contention that her husband reacted violently whenever she indulged in crack cocaine binges away from home, especially when she was in the company of other men. According to Appellant, as long as she smoked crack at home, her husband was happy and non-violent. Indeed, her husband allegedly supplied her with crack. When she “partied” at crack houses, however, her husband would react violently towards her out of jealousy.

The shotgun incident occurred after Appellant had been on a crack binge for several days. Apparently, Appellant was dropped off at her home by a man who resided in the same complex. When her husband discovered the identity of the man who had given her a ride, he assumed a romantic involvement between the two. As a result, he became enraged, went to the man’s apartment and threatened to shoot him with a shotgun.

Throughout their tumultuous six-year '■marriage this violent course of conduct, provoked by Appellant’s drug use at crack houses, continued.

Under Appellant’s account of the killing of her husband, she had once again been on a several-day crack and alcohol binge with unnamed people. She knew from past experience that her husband would be angry with her. While walking home in the early morning, she encountered a male stranger from whom she obtained a cigarette. The male stranger began to walk with her towards her home when they unexpectedly came face-to-face with Appellant’s husband on the side of the road. According to Appellant, her husband became enraged at the sight of Appellant in the company of a male and began to attack her with his fists at which time she stabbed him once in the chest.

Clearly, this evidence of the earlier shotgun incident was relevant and material because it tended to prove the reasonableness of Appellant’s apprehension. As Professor Ehrhardt explains in his treatise on evidence:

When a criminal defendant alleges self-defense, evidence of the victim’s character trait of violence may be admissible for two purposes....
The second purpose for which evidence of the victim’s violent or aggressive character is admissible when an accused claims self-defense is to prove that the accused was reasonably apprehensive of the victim and that the defensive measures of the accused were reasonable. In this situation, the evidence is being offered to prove the defendant’s state of mind, that is, the reasonableness of the defendant’s belief concerning imminent danger, rather than the conduct of the victim. As a foundation for the admission of evidence for this purpose, there must be some evidence of an overt act by the victim about the time of the event which reasonably indicated a need for the defendant to act in self defense, and there must be evidence that the accused knew of the victim’s acts of violence or aggression. The admissibility of this evidence to establish the accused’s apprehension does not violate the policy of section 90.404 which excludes character evidence when it is offered to prove conduct. In this situation, the evidence is offered to prove the reasonable apprehension or state of mind of the accused rather than to prove that the victim actually was the first aggressor.

C. Ehrhardt, Florida Evidence § 404.6 (2005 ed.) (original footnotes omitted). When evidence is offered for this purpose, it may be in the form of specific instances of conduct. Hedges v. State, 667 So.2d 420 (Fla. 1st DCA 1996); Smith v. State, 410 So.2d 579 (Fla. 4th DCA 1982). As a predicate for the admission of this evidence, it must be established that the accused was aware of the incident. State v. Smith, 573 So.2d 306, 318 (Fla.1990).

The majority concludes that evidence of the shotgun incident was properly excluded under section 90.403 because of its remoteness in time and circumstance. I disagree with this rationale for exclusion of the evidence because both incidents involved similar circumstances and a pattern of conduct that persisted throughout the parties’ six-year marriage. In my view, the probativeness of this evidence was not “substantially outweighed, ” by the danger of unfair prejudice. Although the trial court’s discretion is broad in applying section 90.403, here, in my view, the trial judge abused his discretion in excluding the evidence.

Even if this instance of violent conduct of the victim was not admissible in the defense’s case-in-chief, I agree with the majority that the lower court erred in limiting the defense when it attempted to cross-examine the State’s witness. Again, Professor Ehrhardt addresses this issue: tioning the witness about events and matters which were being discussed in the community concerning the individual. In discussing the cross-examination of character witnesses, the court in Fine v. State [70 Fla. 412, 418, 70 So. 379, 381 (1915) ] stated:

During cross-examination of a witness who testifies to a person’s reputation for a particular character trait, it is proper to test the sufficiency of the witness’s knowledge of the reputation by ques-
[W]here a witness is asked what the reputation of a person is for peace and quiet, he is called upon to tell what opinion is generally entertained of such person by those acquainted with him, and in testing the credibility of such witness it is permissible to inquire into the rumors and reports of particular transactions upon which he bases his own conclusions as to the reputation of the person inquired about.... Such examination is permitted only for the purpose of testing the credibility of the witness testifying to the good character of the person inquired about, and not as evidence affecting the latter’s character.
This examination can include reference to matters that would not otherwise be admissible, e.g., arrests. Obviously, these matters must be relevant to the character trait testified to on direct examination. For example, a witness who testifies that the defendant in a manslaughter prosecution has a good reputation as a peaceful and law-abiding citizen, can be asked on cross-examination if the witness.has heard that the defendant has committed specific acts of violence. If the witness has not heard the comment and speculation which resulted from those acts, the jury may doubt whether the witness is capable of giving rehable testimony as to the person’s reputation.

Ehrhardt, supra, § 405.1 (footnote omitted).

The trial court’s errors notwithstanding, I agree that we should affirm because the errors were harmless beyond a reasonable doubt.

Appellant met her husbánd on the street in the'early morning hours while he was on his way to work. She knew he would be angry with her, yet, she was walking home at a time and place where an encounter might occur. By her own admission, she carried a knife in her pocket — the kind with a locking blade. After stabbing her husband, she discarded the knife in the side yard of a house some 70 yards from the body. She knocked on the door of a residence and summoned authorities. When police arrived, and after they concluded that the victim was dead, she concocted a story about a'vaguely described male who had allegedly fought with the victim, stabbed him and fled on foot. When she repeated the story for various police officers and investigators, inconsistencies in her story became apparent.

The self-defense theory was first suggested by police interrogators hours after Appellant had repeatedly blamed the crime on an unknown, non-descript assailant. Interrogators suggested self-defense as a psychological ploy to induce Appellant to admit that she had stabbed her husband. When she finally admitted that she had stabbed him, her version of the events was vague and illogical.

When she testified at trial, her account was inherently implausible and inconsistent with the accounts she had given to police. She said that she encountered her husband without warning, even though he was walking in the opposite direction on the street. Allegedly, her husband started hitting her immediately, even though she was still in the company of the unidentified man. She said she was fleeing from him while he was hitting her in the back of the head, yet, she stabbed him in the chest. Finally, she said the knife was folded in her pocket when he attacked her, but she provided no logical account explaining how she thwarted the attack by reaching into her pocket, opening the knife, which would have taken two hands, and stabbing the physically superior man in the chest.

The physical evidence was also inconsistent with her account. She had no apparent injuries, despite having been allegedly hit repeatedly in the face with a closed fist. The victim’s body showed no trauma other then the knife wound and a facial abrasion consistent with the victim’s fall. No defensive wounds or injury to his hands were discovered.

Although the excluded evidence was relevant, it was largely cumulative. Appellant testified in detail about numerous past incidents where she had been beaten by her husband. Several witnesses (including her preacher, nine-year-old daughter and a friend) corroborated her testimony.

Having thus considered the effect of the error in light of the other evidence, I concur with the majority that the error was harmless beyond a reasonable doubt.

      . §§ 782.07, 775.087, Fla. Stat. (2004).

      . The two men would have testified that the decedent was holding a shotgun when he made the threat, but that he never pointed it at them. Instead, he immediately turned and retreated without incident.

        .See Johnson v. State, 718 So.2d 848 (Fla. 5th DCA 1998) (noting evidence of the victim's prior acts of violence are generally admissible in support of the self-defense theory when known to defendant at the time of the alleged crime to show the defendant's state of mind and the reasonableness of defendant’s apprehension and actions).

      . § 90.403, Fla. Stat. (2004).

      . The judge expressly stated that he would not exclude the evidence based solely upon the prior incident’s remoteness in time to the stabbing.

      . According to Britton, she had disappeared on a several-day cocaine binge before returning on the morning of the stabbing. This was, according to Britton, a somewhat regular occurrence. It was also the event that had historically precipitated the decedent's violence against her. Britton testified that when she would disappear on a 'drug binge her husband would generally strike her several times upon her return, after which they would “make up.” This had happened, according to Britton, about three or four times over a three-year period. Because of this history, Britton testified she anticipated that her husband would strike her when she returned on the morning of the stabbing.

      . See § 90.404(l)(b)2, Fla. Stat. (2004) (allowing prosecution in a homicide case to offer “[ejvidence of a character trait of peacefulness of the victim ... to rebut evidence that the victim was the aggressor”).

      . See Cornelius v. State, 49 So.2d 332 (Fla. 1950) (recognizing the purpose of cross-examination is to enlighten the jury as to whether the witness actually—as a matter of fact— knows the general reputation of the defendant and to place the jury in a better position to pass upon the credibility of the witness' testimony.)

      1. The first purpose (not applicable here) is to show that the victim was the aggressor. The only permissible form of evidence that may be offered for this purpose is reputation evidence. § 90.405(1), Fla. Stat. (2004). Because the accused’s state of mind is not the issue for which the evidence is offered, it is not necessary that , the accused be aware of the victim’s reputation. Dwyer v. State, 743 So.2d 46, 48 (Fla. 5th DCA 1999).

      . The State argues that this predicate was lacking and urges that we affirm because the error was not preserved. I disagree. The trial court granted the' State's motion in li-mine based on the State’s argument that the prior incident was too remote, not that Appellant lacked knowledge of the incident. Because of the procedural posture of the case at the time of the ruling by the lower court, to preserve the issue for review, the defense was not called upon to lay a predicate for the admission of the evidence, only to proffer the substance of the excluded evidence. § 90.104(l)(b), Fla. Stat. (2004).


author: HAWKES, J.

text:
    J.B., III father of J.B., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-3387.
    District Court of Appeal of Florida, First District.
    April 7, 2006.

      Richard D. Ogburn, Esq., Panama City, for Appellant.
    David M. Noll, Esq., Florida Department of Children and Families, Panama City, for Appellee.
   HAWKES, J.

The Department of Children and Families (DCF) obtained an order adjudicating 12-year-old J.B. dependent. The adjudication was based on J.B.’s exposure to small quantities of marijuana and residual amounts of cocaine in several areas of J.B.’s house.. Appellant, J.B.’s father, argues mere exposure to small quantities of illicit drugs, standing.alone, cannot support a finding of dependency. We agree and reverse.

Facts and Procedural Background

J.B. was residing with his mother and Appellant when the Bay County Sheriffs Department executed a search warrant on the home. During the search, J.B. was awake in his bedroom, which he shared with Appellant. In that bedroom, the officers found approximately one gram of marijuana loose in a trash can, “as if [Appellant] had dumped a shake tray off,” and a residual amount of marijuana in a smoking device in a box on the closet floor. In the other bedroom, which was occupied by J.B.’s mother, the officers found approximately one gram of marijuana and a hemostat in a box on the bed, a partially smoked marijuana cigarette in a tray on the bed, and loose Carisoprodol pills throughout the room. In the living room, the officers found.less than one gram of marijuana loose on the coffee table which also appeared to be “shake.” In the kitchen, the officers found a crack pipe and cut straw containing residual amounts of cocaine. After the search, Appellant and J.B.’s mother were arrested, and J.B. was placed in shelter with his maternal grandparents.

DCF subsequently filed a petition to adjudicate J.B. dependent. At the dependency hearing, a Bay County Sheriffs investigator testified he found the drugs and paraphernalia in Appellant’s home while J.B. was present, but there was no evidence J.B. had come into contact with the drugs or paraphernalia. J.B.’s mother testified to smelling marijuana on Appellant after he and J.B. returned from the grocery store about a week before his arrest. A DCF child protective investigator testified Appellant admitted to'using marijuana, but said he never used it in J.B.’s presence. The DCF investigator acknowledged J.B. did not need any kind of medical treatment on the night of the arrest.

The trial court ultimately adjudicated J.B. dependent based on three findings.

First, the trial court found J.B. was abused as a result of Appellant’s drug use, which affected his ability to provide and care for J.B. The evidence cited to support this finding was the testimony that drugs were present throughout J.B.’s home.

Second, the trial court found J.B. was neglected, because he was “exposed to an environment that caused his physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” The evidence cited in support of this finding was that J.B. “had to witness a search warrant being perfected, the parents .being arrested and removed from the home, and officers searching his home where the parents were in possession of .illegal drugs.” The trial court concluded: “[i]f not for law enforcement and the Department, [J.B.] would have been left completely alone and unattended.”

Third, the trial court found J.B. was at imminent risk of being abused or neglected. The evidence cited to support this finding was “the foregoing” — i.e., the same evidence used to support the findings of abuse and neglect.

Dependency Adjudications

“A [trial] court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the [trial] court applied the correct law and its ruling is supported by competent, substantial evidence in the record.” J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 949 (Fla. 1st DCA 2004) (quoting In re M.F., 770 So.2d 1189, 1192 (Fla.2000)). For a dependency adjudication to be affirmed, there must be competent, substantial evidence that a child was either: (1) abused, abandoned, or neglected by the parents; or (2) at imminent risk of being abused, abandoned, or neglected by the parents. See id.; § 39.01(14)(a) & (f), Fla. Stat. (2004).

Abuse

An abused child is one who is subjected to “any, willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (2004) (emphasis added).

Exposing a child to controlled substances constitutes “harm” in only two situations: (1) when a mother’s use of a controlled substance during her pregnancy demonstrably adversely affects the child; or (2) when a parent’s “continued chronic and severe use of a controlled substance” demonstrably adversely affects the child. See § 39.01(30)(g), Fla. Stat. (2004). Here, DCF presented no evidence that Appellant’s drug use was continuous, chronic, or severe, or that J.B. was demonstrably adversely affected by Appellant’s drug use. See P.D. v. Dep’t of Children & Families, 866 So.2d 100, 102 (Fla. 1st DCA 2004).

The trial court’s order also suggests J.B. was harmed by witnessing the search of his home and his parents’ arrest. Again, no evidence was presented to support this finding. Specifically, DCF did not offer any testimony, medical reports, or expert opinion indicating J.B. suffered any physical, emotional, or mental impairment as a result of the search and arrest.

Because the record lacks competent, substantial evidence that J.B. suffered harm pursuant to section 39.01(30), the trial court’s adjudication of dependency based on a finding of abuse must be reversed.

Neglect

A neglected child is one who “is deprived of ... necessary food, clothing, shelter, or medical treatment or ... permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(45), Fla. Stat. (2004).

The trial court’s basis for finding J.B. had been neglected was that “if [it was] not for law enforcement and [DCF], the child would have been left completely alone and unattended.” By itself, evidence that a 12-year-old child is left alone, or could have been left alone, is not sufficient to establish neglect. Even if J.B. had been briefly left alone, there was no evidence indicating hé would have been deprived of necessary food, clothing, shelter, or medical treatment. Further, there was no evidence J.B. was ever in danger of becoming significantly physically, mentally, or emotionally impaired.

Because the record is devoid of competent, substantial evidence that J.B. was neglected pursuant to section 39.01(45), the trial court’s adjudication of dependency based on a finding of neglect must be reversed.

Imminent Risk

To prove there is an imminent risk a child will be abused or neglected, DCF must offer competent, substantial evidence that abuse or neglect is “impending and about to occur.” See J.B.M., 870 So.2d at 951. If there is no nexus between the parent’s alleged behavior and the likelihood a child will suffer abuse and neglect, then a finding that abuse or neglect is “impending” or “about to occur” cannot be upheld. See B.D. v. Dep’t of Children & Families, 797 So.2d 1261 (Fla. 1st DCA 2001) (reversing a dependency adjudication because there was not a sufficient nexus between a parent’s psychiatric disorder and the likelihood the parent would neglect the child).

Here, there is no evidence that Appellant’s behavior posed any likelihood that J.B. was at imminent risk of being abused or. neglected as those terms are defined by statute. Absent such evidence, the trial court’s adjudication of dependency based on this ground must be reversed.

Conclusion

Because the trial court’s order adjudicating J.B. dependent as to Appellant is not supported by competent, substantial evidence, the order is REVERSED.

VAN NORTWICK and THOMAS, JJ., concur.

      . Appellant was released on bond three days later, and ultimately sentenced to misdemeán- or probation.

      . In P.D., we reversed 'an order that adjudicated a newborn child dependent based solely upon a showing of cocaine in the child’s blood at birth, because DCF failed to show the child was "demonstrably adversely affected” by the mother’s cocaine use. 866 So.2d 100. In addressing this "demonstrably adversely affected” requirement, Judge Kahn observed: "[T]he Legislature provided a particularized definition of ‘exposure to a controlled substance.’ The words chosen by the Legislature cannot be viewed as mere sur-plusage because they sharpen the definition of ‘harm.’ ” Id. at 102.


text:
    Samuel SAPP, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-5326.
    District Court of Appeal of Florida, First District.
    April 7, 2006.
    Rehearing Denied May 15, 2006.
    Samuel Sapp, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

ERVIN, PADOVANO and HAWKES, JJ., concur.


author: PER CURIAM. KAHN, C.J.,

text:
    M. Rony FRANCOIS, Secretary, Department of Health, Appellant, v. Mark OSTERBACK, Appellee.
    No. 1D05-1848.
    District Court of Appeal of Florida, First District.
    April 7, 2006.
    Rehearing Denied May 15, 2006.
    Lucy Schneider, Assistant General Counsel, Florida Department of Health, Tallahassee, Attorney for Appellant.
    Mark Osterback, Pro Se.
   PER CURIAM.

AFFIRMED.

PADOVANO and LEWIS, JJ., concur; KAHN, C.J., concurs with Written Opinion.

KAHN, C.J.,

concurring.

This case is before the court for the second time. The case involves a chai-lenge by Osterback to the Department of Health’s repeal of chapter 10D-7 of the Florida Administrative Code. In the first appeal, we determined: (1) repeal of the rule was rulemaking; and (2) repeal of Chapter 10D-7 was prima facie unlawful because of the Department’s failure to identify statutory authority for the rule. Osterback v. Agwunobi, 873 So.2d 437, 442 (Fla. 1st DCA 2004). Upon remand, the circuit court entered an order granting Osterback’s prayer for a declaratory judgment and finding that the Department engaged in an invalid exercise of delegated legislative authority. I write separately because the Department’s appeal of the trial court’s ruling is not professionally defensible.

On appeal, the Department argues three issues: (1) trial court did not have subject matter jurisdiction to entertain a challenge to a repealed rule; (2) the invalid exercise of delegated authority was caused by a “miscitation” of the proper authorizing statute; and (3) trial court failed to accord proper deference to the Department in carrying out its delegated legislative authority. All three matters were disposed of in the first appeal. In particular, the issue of subject matter jurisdiction was completely sealed by this court’s pronouncement that the Department’s repeal of the code chapter was tantamount to rulemaking. Osterback, 873 So.2d at 440; see Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (“[Questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.”). Moreover, the Department’s assertion that it simply “miscit-ed” the authorizing statute is both tardy and disingenuous. The Department has never disclosed any steps toward a proper repeal of the rule based upon what it now asserts as appropriate authority. Finally, the argument of proper deference assumes proper delegated legislative authority, which we found lacking in the first appeal. Osterback, 873 So.2d at 441 (“The briefs and the record on appeal fail to show that [the] DOH ever complied with requirement to identify the statute implemented by the repeal of 10D-7.”).

The pressing of these positions before this court by a state agency and its attorney is improper. See R. Regulating Fla. Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding ... unless there is a basis for doing so that is not frivolous .... ”). I do. not ignore the particular exigencies that face attorneys employed by a state agency. Nevertheless, just as attorneys employed by powerful individuals and corporations are responsible for their professional actions, so also are government lawyers. Although the client has the ultimate say concerning the objectives of legal representation, the means by which such objectives are pursued are left to the professional judgment of the lawyer after consultation with a client. See R. Regulating Fla.. Bar 4-1.2.


text:
    Catina SIMMONS-RUSS, as Personal Representative of the Estate of Phyllis Simmons, deceased, Appellant/Cross-Appellee, v. Chookiert EMKO, M.D., Appellee/Cross-Appellant.
    No. 1D05-2348.
    District Court of Appeal of Florida, First District.
    April 7, 2006.

      Daryl D. Parks and Kendra N. Davis, of Parks & Crump, LLC, Tallahassee, for Appellant/Cross-Appellee.
    Robert G. Churchill, Jr., Craig A. Dennis and Tiffany Rohan-Williams, Tallahassee, for Appellee/Cross-Appellant.
   PER CURIAM.

The appellant/cross-appellee, as the personal representative of the Estate of Phyllis Simmons, appeals the trial court’s final judgment following entry of a directed verdict in favor of the appellee/cross-appellant (the defendant in the trial court), Dr. Chookiert Emko, M.D., in a medical negligence action. The cross-appeal challenges the trial court’s earlier ruling denying a motion for summary judgment. We have carefully examined the record, especially the expert testimony of Dr. Sessoms, which, according to the appellant/cross-ap-pellee, was sufficient to send the case to the jury. Where an expert’s testimony is so equivocal, confusing, and internally contradictory and irreconcilable as utterly to lack any probative value, the trial court is justified in entering a directed verdict against the party relying on that expert testimony to establish an essential element of the claim. See Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 327-29 (Fla. 1st DCA 2002); L.R. v. State, 698 So.2d 915, 916 (Fla. 4th DCA 1997); Whitten v. Erny, 152 So.2d 510, 512 (Fla. 2d DCA 1963). Because the appellant/cross-appellee’s expert testimony failed to satisfy the requirements of Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1020 (Fla.1984), as to the essential element of causation, we conclude that the trial court correctly entered a directed verdict and final judgment in favor of the appel-lee/eross-appellant. Given our affirmance of the trial court’s directed verdict and final judgment, the issue on cross-appeal is moot.

AFFIRMED.

BARFIELD, BROWNING and THOMAS, JJ. concur.


author: DAVIS, J.

text:
    Joyce BYRD, Appellant, v. MOLTECH POWER SYSTEMS and Amerisure Insurance, Appellees.
    No. 1D05-1970.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Rehearing Denied May 18, 2006.

      Suzanne M. Himes of the Law Office of Suzanne M. Himes, P.A., Ocala, for Appellant.
    Michael C. Crumpler of the Law Offices of Michael C. Crumpler, Jacksonville, for Appellees.
   DAVIS, J.

This is a workers’ compensation appeal challenging as unreasonable the amount of attorney’s fees awarded to claimant. Finding no abuse of the JCC’s discretion in this matter, we affirm.

After claimant’s counsel successfully prosecuted claimant’s controverted repetitive trauma injury claim, the parties agreed that the amount of claimant’s attorney’s fee would be based upon the hours expended rather than the statutory guideline fee and that evidence as to the amount of the fee to be awarded would be submitted by expert affidavits. Claimant’s counsel filed a verified petition listing total attorney time of 332.40 hours and paralegal time in the amount of 20.30 hours. When multiplied by the sum of $250.00 an hour, which claimant’s fee expert averred was reasonable, the hours claimant’s counsel expended yielded a total fee of $83,100.00. The E/C’s attorney-fee expert, however, opined that both the hourly rate and the hours claimed to have been spent by claimant’s counsel on this case were excessive.

Following the hearing, the JCC entered an abbreviated final order, finding reasonable only 160 hours of attorney time, at $200.00 per hour, and 6.7 hours of paralegal time at $65.00 per hour, resulting in a total attorney’s fee of $32,000.00, and a paralegal fee of $435.50. Claimant filed a motion to vacate the abbreviated final order and a request for entry of a detailed final order. The JCC granted the motion, vacated the abbreviated final order, and issued a detailed final order. In the detailed final order, the JCC further reduced the number of hours that he found to have been expended by claimant’s counsel from 160 to 155. The JCC additionally changed the hourly paralegal rate from $65.00 per hour to $55.00 per hour, and concluded that no penalties or interest would be assessed if the E/C paid the amounts ordered within 30 days from the date of the order.

In this appeal from the detailed final order, claimant first contends that the JCC abused his discretion by admitting, over claimant’s objection, the billing records of defense counsel in this fee hearing. We disagree. It is true that this Court rejects “the suggestion that an award of fees to a claimant’s attorney should be influenced or controlled by evidence of the hourly rate charged by defense lawyers.” Spaulding v. Albertson’s, Inc., 610 So.2d 721, 724 (Fla. 1st DCA 1992). Further, “the records of one’s opponent are, at best, only marginally relevant to the general issue of determining an appropriate amount of attorney’s fees to be awarded in a given case.” HCA Health Servs. of Fla., Inc. v. Hillman, 870 So.2d 104, 106 (Fla. 2d DCA 2003). However, in the context of determining a reasonable fee,

Florida has not yet adopted a hard and fast rule regarding the discovery and admission of opposing counsel’s fees. This reflects the salutary view that the discovery may be justified in some eases but not in others and that it is a matter that should rest within the sound discretion of the trial court.

Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720, 724-25 (Fla. 5th DCA 1999).

Although the JCC did admit into evidence the records of E/C’s defense counsel, the JCC did so because the parties stipulated that the fee award should be determined by multiplying the number of hours reasonably expended by a reasonable hourly rate. The claimant’s attorney averred to having spent more than 332 hours on this case, and thus, the JCC was required to determine whether having spent in excess of 332 hours on this routine repetitive trauma case was reasonable. While the defense counsel’s records may have been only marginally relevant in this regard, we find no abuse of discretion in the JCC’s admission and consideration of defense counsel’s billing records in this particular fee hearing. Moreover, it is disingenuous of claimant’s attorney to take the position in this appeal that the billing records of defense counsel were irrelevant to the determination of a reasonable fee, as it was claimant’s attorney who initially sought discovery of defense counsel’s records with regard to determination of her fee, arguing in her motion to compel discovery that these records were relevant and material to the determination of whether the hours she spent on this case were reasonable.

We also find no merit to appellant’s second contention that the final order is not supported by competent substantial evidence. The parties agreed that evidence as to the amount of the fee to be awarded would be submitted by expert affidavit. The JCC considered both experts’ affidavits. The JCC then sufficiently explained why he placed more weight on the opinions of the E/C’s expert than on the opinions of the claimant’s expert:

The Claimant’s attorney represented that she spent a total of 332.4 hours of attorney time ... plus 20.3 hours of paralegal time. The expert witness for the Claimant, Mr. Hill, appears to have simply adopted the time spent, both attorney and paralegal, without any limitation whatsoever. Such apparent lack of independent review or judgment limits the probative value of this opinion. I agree with the opinion of the expert witness for the E/C, Robert Keeter, that much of the time was excess. In fact, except as otherwise noted herein, I accept all of the opinions as expressed by Mr. Keeter oyer those of either Mr. Himes or Mr. Hill, as they are more credible, well-reasoned and logical. After considering the challenges voiced by the E/C, as well as after careful review of the time records in the Verified Petition, I accept the opinions expressed in the affidavit of Mr. Keeter, the expert witness for the E/C and find that only 155 hours of attorney time were spent on activity which should be the responsibility of the E/C.

The JCC’s adoption of 155 hours as reasonable is supported by the E/C’s éx-pert’s careful analysis of the time claimed to have been spent by claimant’s attorney. The E/C’s expert crossed through each and every time entry that he found to be excessive, explained why he believed the entry to be excessive, and then proposed an amount of time which, in the expert’s opinion, would have been reasonably spent on this case by an attorney who is as experienced at handling workers’ compensation cases as is claimant’s attorney.

Claimant’s third contention on appeal is that the JCC erred by allowing the E/C 30 days to pay the attorney’s fee award before claimant would be entitled to interest and penalties. Claimant has waived this issue for appeal. The 30-days-before-interest-accrues ruling was contained in the abbreviated final order. When claimant challenged the abbreviated final order and requested a more specific final order, claimant did not challenge this ruling. Moreover, when claimant’s request for a more specific final order was granted, this ruling was also included in that final order. Even though this ruling was arguably outside the scope of the issues presented and was arguably a matter of law or fact that the judge may have overlooked or misapprehended, claimant did not seek rehearing thereof. Florida Administrative Code Rule 60Q-6.122(2)(b) allows motions for rehearing of rulings that were outside the scope of the issues presented, and 60Q-6.122(2)(c) allows for motions for rehearing to seek clarifications in matters of law or fact that the judge may have overlooked or misapprehended. Because claimant twice failed to provide the JCC notice and an opportunity to cure, claimant waived this issue for appeal.

Finally, there is no merit to claimant’s fourth contention on appeal, which is that the JCC “sanctioned” claimant’s counsel when she requested an appealable final order by further reducing the attorney’s fee award from 160 hours to 155 hours. The JCC accepted the testimony of E/C’s expert, which was that 155 hours were reasonable for this routine repetitive trauma case. The JCC explained that, in his original abbreviated final order, he had mistakenly concluded that the E/C’s expert opined that 160 hours were reasonable, when further scrutiny of the affidavit of the E/C’s expert revealed that the expert’s true opinion was that 155 hours were reasonable.

Accordingly, because the issues claimant raises on appeal are either without merit or were waived for appellate review, the JCC’s final order is affirmed.

LEWIS, J., concurs; ERVIN, concurs in result.


author: BROWNING, J.

text:
    Theresa L. FIVECOAT, Appellant, v. PUBLIX SUPER MARKETS, INC., and Publix Risk Management/Hartford Insurance Company, Appellees.
    No. 1D05-1438.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Patricia E. Thorne, Delray Beach; and Bill McCabe, Longwood, for Appellant.

      Danni Lynn Germano, North Fort Myers, for Appellees.
   BROWNING, J.

Claimant, Theresa L. Fivecoat, appeals a final order of the Judge of Compensation Claims (JCC) finding that a valid settlement agreement was reached between the parties at mediation, held on February 11, 2004; that the mediation was contingent upon Claimant’s accepting the sum of $42,500.00 from the employer and its carrier administrator (E/C) within 24 hours; that Claimant (through her attorney) did accept the settlement offer within the designated time, as required by the mediation agreement; that the parties then agreed that an additional $552.20 would be factored into the contract for settlement entered by the parties on February 11 and would be paid to Claimant by the E/C; and that a valid contract for settlement existed between the parties. The JCC ratified the contract and directed Claimant to sign the appropriate settlement papers and forward them to E/C’s counsel, whereupon E/C would forward a check in the amount of $43,052.20. We reverse the final order and remand for further proceedings because the E/C, as the parties seeking to enforce the settlement agreement, failed to meet their strict burden to prove that Claimant’s attorney had “clear and unequivocal authority to settle on the client’s behalf.” Sharick v. Se. Univ. of the Health Scis., Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004); See Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002); See Vantage Broad. Co. v. WINT Radio, Inc., 476 So.2d 796, 797 (Fla. 1st DCA 1985) (addressing “strict standard of proof’ to show that attorney had clear and unequivocal authority to enter into stipulation on client’s behalf).

Claimant rightfully acknowledges that the JCC has the authority to determine whether a valid, binding settlement agreement was reached and, if so, to give it effect. See Chubb Group Ins. Co. v. Easthagen, 889 So.2d 112 (Fla. 1st DCA 2004). A settlement agreement, such as the one purportedly entered by the parties (through their attorneys) at the February 11 mediation, is governed by contract law. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985). Such agreements “are highly favored and will be enforced whenever possible.” Id. Contracts, including settlement agreements, are to be construed according to the parties’ intent, as demonstrated by the words used. See Gendzier v. Bielecki 97 So.2d 604, 608 (Fla.1957); Ross v. Savage, 66 Fla. 106, 63 So. 148, 155 (1913). An objective .test is to be used to determine whether Claimant accepted the E/C’s offer and whether the settlement is enforceable. See Robbie, 469 So.2d at 1385; King v. Bray, 867 So.2d 1224, 1227 (Fla. 5th DCA 2004).

The E/C implicitly concede that for the settlement agreement to be valid and enforceable against Claimant, counsel for Claimant had to have her client’s clear and unequivocal authority to settle on the client’s behalf. See Dixie Operating Co. v. Exxon Co., U.S.A., 493 So.2d 61, 63-64 (Fla. 1st DCA 1986); Nehleber v. Anzalone, 345 So.2d 822, 823 (Fla. 4th DCA 1977). In their answer brief, the E/C contend that Claimant’s counsel was, indeed, given such authority. However, the record belies the E/C’s contentions, for the JCC (addressing the claimant’s lawyer, Ms. Thorne) made the following findings at the hearing:

THE COURT: I think what occurred here was you did not really have your client’s permission to go forward with the settlement, but you assumed that you did when you accepted the additional monies, when you relayed to Ms. Wolfe [the E/C’s counsel] that the additional monies would seal the deal. You yourself admitted that you didn’t go back to the claimant and say, listen, I told them that if they gave this in addition you would take it: Am I correct? Do you understand?
MS. THORNE: Are you asking me if— THE COURT: Yes.
MS. THORNE:' Correct. I did not call her back because it was getting late, she was already tired, and— "
THE COURT: Right.' But I think the argument that she’s tired, she’s been there so many hours, she doesn’t understand this word or that word, I don’t think those are valid arguments for the simple reason that she had representation. Not from one attorney, but two. And it is your responsibility as her attorney to explain these words to her to make her understand exactly what she is doing.
MS. THORNE: Yes, ma’am.

The testimony of Claimant’s counsel established that the day after the purported mediated settlement, counsel became concerned because she had not heard from Claimant. When counsel called Claimant and asked what her position was concerning the settlement, Claimant answered: “I don’t have any choice.” Counsel testified that over her 20 years’ experience, she had heard clients comment that they did not have any choice other than to accept the money and settle. Counsel assumed inappropriately that Claimant meant the same thing. Counsel then had decided that perhaps Claimant might do a little better, so counsel arranged to sweeten the deal for her client by asking the E/C to pay an additional $552.20 (owed under a prior agreement), whereupon Claimant’s counsel told the E/C’s attorney that it would be “a done deal.” Subsequently, Claimant asked why she was being asked to visit the office to sign a settlement agreement that she did not want to accept. When counsel reminded her of her prior comment that she did not have any choice, Claimant clarified that she had meant she had no choice other than to turn down the settlement offer because she needed medical treatment, including a spinal fusion, and the settlement proposal would not take care of her needs. In short, even if the parties’ attorneys agreed to the settlement, the record conclusively showed that Claimant did not give her attorney clear and unequivocal authority to agree to the settlement proposal. “[C]ourts have been very stringent in what they find to be a ‘clear and unequivocal’ grant of authority.” Weitzman v. Bergman, 555 So.2d 448, 449 (Fla. 4th DCA 1990). Given these circumstances, the JCC cannot compel enforcement of the settlement agreement. See Sosnick v. McManus, 815 So.2d 759, 762 (Fla. 4th DCA 2002). Referring to the requirement of clear and unequivocal authority from the client, the E/C note:

Adherence to this rule does not preclude the application of principles of equity when a party has relied to its irreparable detriment on the representations of the opposing attorney.

Dixie Operating Co., 493 So.2d at 63-64. Such an argument involving factual determinations is appropriately raised in the lower tribunal.

We REVERSE the JCC’s final order and remand for further proceedings.

BARFIELD and THOMAS, JJ., concur.


text:
    Frederick EDLUND, Sally Edlund and Christopher Edlund, Appellants, v. SEAGULL TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D05-261.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Robert H. Cooper, Aventura, for appellant.
    Kahan, Shir and Guy M. Shir and Patrick Dervishi, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

In this action for specific performance, Christopher Edlund and his parents, Sally and Frederick Edlund, appeal from a summary judgment ordering them to sell their condominium to Seagull Townhomes Condominium Association for fair market value. We reverse.

In September 1993, Christopher Edlund purchased a condominium unit at Seagull Townhomes Condominium. In 2001, Christopher quitclaimed his interest in the condominium to his parents, Frederick and Sally Edlund. He neither notified the Condominium Association’s boahd ’ 6f the proposed transfer nor did he receive its approval to do so at that time.

A little less than a year after this transfer, the Condominium Association notified Christopher that he had violated the Condominium’s documents by failing to notify it of this transfer. A week later, the Association sued both Christopher and his parents. Shortly thereafter, Christopher’s parents re-conveyed the property to Christopher. The Association then acknowledged the earlier transfer from Christopher to his parents and amended its complaint to allege that the re-conveyance was null and void because it was not approved by the Association. The Association also sought, via an action for specific performance, to enforce its right of first refusal to purchase the unit under the following provisions of its Declaration of Condominium:

16.01 In the event any unit owner wishes to sell, transfer, rent or lease his unit, the Association shall have the option to purchase, rent or lease said unit, upon the same conditions as are offered by the unit owner to a third person....
16.02 Should a unit owner wish to sell, transfer, lease or rent his condominium unit, he shall, before accepting any offer to purchase, sell, lease or rent his condominium unit, deliver to the Board of Directors of the Association a written notice containing the terms of the offer he has received and wishes to accept....
16.03 The Board.. within ten (10) days after receiving such notice ... shall either consent to the transaction ... or by written notice ... designate the Association, or one or more persons, other than unit owners, who are willing to purchase, lease or rent upon the same terms....
16.04 The stated designee ... shall have fourteen (14) days from the date of the notice ... to make a binding offer to buy, lease or rent upon the same terms and conditions.... Thereupon, the unit owner shall either accept such offer or withdraw and/or reject the offer specified in his notice to the Board of Directors....

(Emphasis added).

Summary judgment thereafter was entered in the Association’s favor finding first that the initial transfer from Christopher to his parents had been approved by the Association, making the parents the owners of the unit, and second, that the parents’ re-transfer of the unit to Christopher, was “null and void” because it had not been approved by the Association. The trial court also concluded that the Association was entitled to specific performance of that portion of the condominium documents according it a right of first refusal prior to a unit owner’s lease, transfer or sale. Because the “re-sale” to Christopher was for only nominal consideration — $10-—the Edlunds were ordered to sell the unit to the Association for fair market value to be determined by appraisal as ordered by the court.

We find no error in the trial court’s conclusion that the initial transfer of the unit from Christopher to his parents was approved by the Association and that the parents now own it. We also find no error in the court’s conclusion that under the condominium documents, the parents’ attempt to re-convey to Christopher is a nullity. We cannot, however, agree that the condominium documents may be enforced by requiring the parents to convey the unit to the Association.

Courts have no authority to make new or different contracts for the parties and may only compel performance of a contract in the precise terms agreed upon by them. See, e.g., Giehler v. Ward, 11 So.2d 452, 453 (Fla.1955) (holding that “one of the most firmly established principles of the law of specific performance is that the court will not make a new or different contract for the parties, simply because the one made by them proves ineffectual; and, ordinarily, it will compel the performance of a contract only in the precise terms agreed upon by the parties themselves”) (citations omitted); Squires v. McCarey, 515 So.2d 316, 317 (Fla. 5th DCA 1987) (same); see also Palm Beach Hotel Condominium Ass’n v. Rogers, 605 So.2d 143, 145 (Fla. 4th DCA 1992) (confirming that a declaration of condominium must be strictly construed); Brickell Bay Club Condominium Ass’n, Inc. v. Hernstadt, 512 So.2d 994, 996 (Fla. 3d DCA 1987) (a statutorily required declaration of condominium governs the relationships between condominium unit owners and the condominium association; it is more than a mere contract spelling out mutual rights and obligations of the parties thereto; and it must be strictly construed).

Seagull Townhomes Condominium’s declaration of condominium clearly and unambiguously states that where the Association opts to exercise its right of first refusal to purchase a unit, the owner may still withdraw the decision to sell. The trial court could not, therefore, order the Edlunds to sell to the Association; it could only afford the Association the opportunity to exercise its option to purchase along with .the Edlunds’ option to withdraw their decision to sell. That portion of the judgment requiring the Ed-lunds to sell their unit to the Association for fair market value is, therefore, reversed.

      . While we have reservations as to whether this transfer was a sale, we note that any sale or rental without prior Association approval is deemed a breach and is null and void under the terms of Seagull's declaration of condominium, but that the Association can approve the transfer after the fact:

        16.01 .■.. Any attempt to sell, rent or lease said unit without prior approval of the Association shall be deemed a breach of this Declaration, shall be wholly null and void, and shall confer no title or interest whatsoever upon any purchaser, tenant or lessee; provided, however, any deed or lease may be validated by subsequent approval of the Association in the event of a sale or lease without prior approval as herein provided.

      . Notwithstanding the Association's letter advising Christopher that he had violated the Association’s rules by failing to obtain approval of the transfer to his parents, the trial court accepted the position asserted by the Association’s affidavit that this transfer from Christopher to his parents had been approved.