author: KAHN, C.J.

text:
    Z. Paige BARTHLOW, Appellant, v. James B. JETT, as Clerk of the Circuit Court in and for Clay County, Florida, Appellee.
    No. 1D05-4177.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Rehearing Denied June 5, 2006.

      Roger D. Hall of Roger D. Hall, P.A., Orange Park, for Appellant.
    Robert L. McLeod II of The McLeod Firm, St. Augustine, for Appellee.
   KAHN, C.J.

Appellant, Z. Paige Barthlow, challenges an order awarding attorney’s fees and costs to appellee, James B. Jett, Clerk of the Circuit Court in and for Clay County, as sanctions for a violation of section 57.105, Florida Statutes. Because we find the trial court did not abuse its discretion in making this award, we affirm.

In February 2005, Barthlow filed an action for wrongful discharge against Jett under the Florida Whistle-blower’s Act, sections 112.3187 through 112.31895, Florida Statutes (2004). On February 25, 2005, Jett filed a motion to dismiss for failure to comply with section 768.28(6)(a), Florida Statutes, which provides that no action may be instituted against the State or its subdivisions without first having provided written notice of the claim to the appropriate agency and the Florida Department of Insurance. Barthlow, through counsel, sought a default judgment, arguing that Jett had failed to file or serve an answer and the motion to dismiss was void because it was filed by substitute counsel in the absence of an order of substitution; Barthlow also challenged the appearances of Jett’s attorneys as invalid.

On June 8, 2005, the trial court denied the motion for default and dismissed the action without prejudice. Concerning the motion for default, the court found, “[T]he court file reflects the only attorneys who have filed appearances in this cause of action are Mr. McLeod and Mr. Hession and there is no impropriety in their having done so.” The court granted the motion to dismiss without prejudice because of Barthlow’s admitted non-compliance with notice requirements in section 768.28(6)(a). The court subsequently granted Jett’s request for fees pursuant to section 57.105. This appeal followed.

“[T]he award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.” DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992); see, e.g., Jones & Granger v. Johnson, 788 So.2d 381, 382 (Fla. 1st DCA 2001) (“[0]ur standard of review in reviewing an award of attorney’s fees is whether the trial court abused its discretion.”). The statute pursuant to which the trial court assessed fees in this case provides:

Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

§ 57.105(1), Fla. Stat. (2004). The 1999 revision to section 57.105 “lowered the bar a party must overcome before becoming entitled to attorney’s fees.” Albritton v. Ferrera, 913 So.2d 5, 8 (Fla. 1st DCA 2005). As this court has explained:

This statute was adopted as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost of employing the civil justice system. The Legislature sought to accomplish these goals by subjecting litigants and their lawyers to a financial consequence if they assert baseless claims or defenses. Section 57.105, Florida Statutes (1999), expands the remedies that were previously available.
A court could award attorney’s fees under the prior version of section 57.105, only if there was a “complete absence of a justiciable issue of either law or fact.” The essential finding the court was required to make to justify an award of fees under the prior statute could only be made at the conclusion of the entire case. Until then, the trial court would be unable to determine whether all of the arguments on one side of the case were frivolous.
In contrast, the present version of the statute authorizes an award of attorney’s fees “on any claim or defense at any time during a civil proceeding or action.” This language plainly signifies that the court may award an attorney’s fee for a particular claim or defense, even before the case has been concluded. It is possible then that a court may assess attorney’s fees against a party who has asserted an unsupportable claim or defense, even though that party might ultimately prevail in the case on some other ground.

Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 417 (Fla. 1st DCA 2002) (citations omitted); see Albritton, 913 So.2d at 8 (“Under the 1999 version, a party may be subject to fees if a claim is not dropped or dismissed when it becomes evident it is no longer justiciable, even though it may not have been frivolous when filed. The 1999 version ‘imposes a duty, or at least a penalty for failing to voluntarily dismiss a claim or defense when it becomes clear that the claim or defense is untenable.’ ” (citations omitted)).

In this case, the trial court awarded fees under section 57.105(1) for two reasons: (1) Barthlow’s complaint was filed in the absence of compliance with presuit notice requirements in section 768.28(6)(a) and, when notified of this defect, Barthlow did not voluntarily dismiss the complaint; and (2) Barthlow filed a motion for default judgment without any factual or legal basis because McLeod and Hession were the only attorneys to have entered an appearance on behalf of Jett, did so in a timely fashion, and filed responsive pleadings. Barthlow does not argue or demonstrate that either of these reasons is unsupported by the record.

Barthlow argues instead that the trial court erred in awarding fees because the trial court also determined the whistle-blower action was not frivolous. Even if Barthlow ultimately prevails in her action, however, the statute allows an award of fees at this stage for the reasons found by the trial court. “[A] court may assess attorney’s fees against a party who has asserted an unsupportable claim or defense, even though that party might ultimately prevail in the case on some other ground.” Herron, 828 So.2d at 417.

Barthlow also disputes the trial court’s award of fees for failure to comply with the presuit notice requirements. She contends such failure cannot form the basis for a section 57.105 fee award. In support of this argument, Barthlow cites Widmer v. Caldwell, 714 So.2d 1128 (Fla. 1st DCA 1998). This court did hold in Widmer that “the mere failure to comply with presuit notice does not in and of itself allow an award of fees” pursuant to section 57.105. Id. at 1129. The Widmer decision is distinguishable from this case, however. First, Widmer involved the pre-1999 version of section 57.105, which, as explained above, included a higher standard for a fee award. Id. at 1128-29. Second, in Wid-mer, the failure to comply with presuit notice requirements served as the only basis for the fee (erroneously) awarded. Id. at 1129. Here, the court awarded fees because of the motion for default judgment and for Barthlow’s refusal to dismiss and refile after compliance with presuit notice requirements.

AFFIRMED.

LEWIS and POLSTON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William STROEMEL, III, Appellant, v. COLUMBIA COUNTY, Florida, Appellee.
    No. 1D05-1695.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Rehearing Denied June 5, 2006.

      Timothy P. Atkinson and Segundo J. Fernandez of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Appellant.
    Marlin M. Feagle of Feagle & Feagle, Attorneys, P.A., Lake City, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s Final Judgment on Complaint for Declaratory Judgment. In the proceeding below, appellant argued that he was permitted, as a matter of right, to construct a single family dwelling, and canoe and kayak rental facility on his Columbia County property. The bulk of appellant’s property is located within the Environmentally Sensitive Area 2 (“ESA-2”) portion of Columbia County, as defined by the county’s Land Development Regulations (“LDRs”). Appellant reasoned that section 4.4.2, Columbia County Code, expressly permits “public resource based recreation facilities,” and that his rustic canoe and kayak rental operation located on the Santa Fe River would qualify as such a use.

The trial court ruled that (i) appellant’s lot, though non-conforming due to its size, may nevertheless be used for permitted uses; (ii) any development project proposed by appellant for his Columbia County property would have to meet the criteria for ESA-2 development to be permitted without special exception, and; (iii) the plan submitted by appellant for the development of his property fails to satisfy the ESA-2 standards, so it may not be undertaken without special exception. In coming to its conclusion on point (iii), the trial court relies on the following rationale in its rejection of appellant’s argument that his proposed project is a “public resource based recreation facility]:”

[T]his is a private commercial enterprise as proposed, not a public one. Plain and obvious meaning shows that “public” modifies “facilities”, and was not intended to be read public resource based recreational facilities. Even without additional reference to other parts of the L.D.R.’s this appears plain. When coupled with the definition of “Public Buildings and Facilities” ... this becomes even more plain and obvious, and is meant to apply to governmental entities for a public service purpose.

The trial court also states that appellant’s argument on this point must fail, because section 4.4.4, Columbia County Code, prohibits “commercial uses.”

We reverse, because we agree with appellant that the trial court erred in (1) construing the phrase “public resource based recreational facilities,” and (2) in holding that all “commercial uses” are prohibited by the County Code.

I. Background

On June 25, 1996, appellant purchased 8.52 acres of wooded property situated in Columbia County along the north bank of the Santa Fe River. This property is bordered on its west by State Road 47 and on its east by a commercial goat farm. Directly across the river from this property, trailered power boats, jet skis, canoes, and kayaks are launched by the public from Santa Fe State Park. The bulk of appellant’s property is located within a portion of the county that is zoned by the county’s LDRs as ESA-2. Appellant purchased this property for the purpose of establishing a single family dwelling, as well as a rustic canoe and kayak rental operation. Appellant proposed a development plan, which includes a single family residence or caretaker’s residence, a canoe and kayak rental operation, sanitary facilities for guests, unpaved parking, educational aspects, and maintenance facilities for the repair of the canoes and kayaks.

II. The Columbia County Code

The Columbia County Code, states:

The “ESA” ... category includes three (3) zone districts: ESA-1, 2, 3. Lands in these districts are considered in need of special planning and treatment regarding land development regulation. These are not preservation districts, but land uses permitted within these districts are to provide mitigating measures to protect the natural functions of areas which are limited to the planning and treatment of land development within the one-hundred (100) year floodplain of the ... Santa Fe River Corridor.... These regulations prohibit intensive residential, intensive] recreational and intensive agricultural uses and prohibit industrial and commercial development within the 100 year floodplain of the areas designated as Environmentally Sensitive Areas.

§ 4.4.1, Columbia County Code (emphasis added).

Section 4.4.2 of the Code identifies “Permitted Principal Uses and Structures.” “Single family dwellings” and “public resource based recreation facilities” are expressly named as permitted principal uses and structures. § 4.4.2(2), (5), Columbia County Code. Section 4.4.3 of the Code defines and provides examples of “Permitted Accessory Uses and Structures.” These are defined as uses and structures which:

a. Axe customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures;
b. Are located on the same lot as the permitted or permissible principal use or structure, or on a contiguous lot in the same ownership; and
c. Do not involve operations or structures not in keeping with the intent of these land development districts.

§ 4.4.3(1), Columbia County Code. Examples of such accessory uses and structures include “[d]ocks, ramps, piers and walkways for residential and water-dependent commercial uses,” as well as “Residential facilities for caretakers whose work requires residence on the premises or for employees who will be quartered on the premises.” § 4.4.3(2), Columbia County Code.

Section 4.4.4 of the Code provides a list of uses and structures which are prohibited by the Code. This list includes “[industrial and commercial uses, intensive agricultural uses ..., private recreational uses and any use or structure not specifically, provisionally, or by reasonable implication permitted herein or permissible as a special exception.”

III. Public Resource Based Recreation Facilities

In determining whether appellant’s proposed development comes within the ambit of a “public resource based recreation facilit[y],” the following rules of statutory construction should be employed:

(a) In statutory construction, statutes must be given their plain and obvious meaning and it must be assumed that the legislative body knew the plain and ordinary meanings of the words.
(b) Statutes or ordinances should be given that interpretation which renders the ordinance valid and constitutional.
(c)Since zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner.
Municipal ordinances are subject to the same rules of construction as are state statutes.... [C]ourts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear, unless it is clear that the omission was inadvertent, and must give to a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body (here the City Council).

Rinker Materials Corp. v. City of North Miami, 286 So.2d 552, 553-54 (Fla.1973) (citations and footnotes omitted).

Contrary to the dictates of Rinker, the trial court’s interpretation of the Code amounts to a rewriting of the Code’s text. The trial court ignored the plain and ordinary meaning of the words used in the Code. The trial court states that “public resource based recreational facilities” was not meant to be read “public resource based recreation facilities,” but was meant to require publicly owned recreation facilities. The trial court erred by inserting these words.

Neither the term “public” nor the phrase “public resource based recreation facilities” is defined by the Code, or in case law. As such, this language must be interpreted broadly, and in favor of appellant as the property owner in this case. “Public,” when used as an adjective, means “Relating or belonging to an entire community, state, or nation .... [o]pen or available for all to use, share, or enjoy.” Black’s Law Dictionary 1242 (7th ed.1999). With these definitions in mind, it is clear that the Santa Fe River is a “public resource.” Furthermore, reading this Code provision broadly and in favor of appellant, it is obvious that a canoe and kayak rental operation would be a recreation facility based upon the Santa Fe River.

IV. Commercial Uses

The trial court’s finding that appellant may not develop his property for a canoe and kayak rental operation, because section 4.4.4, Columbia County Code, prohibits “commercial uses” is error. Section 4.4.4 does totally bar “commercial uses,” but section 4.4.3(2) specifically permits “[djocks, ramps, piers, and walkways for residential and water-dependent commercial uses” as well as the construction of residential facilities for “caretakers whose work requires residence on the premises or for employees who will be quartered on the premises.” (Emphasis added). The County apparently intends to generally prohibit commercial uses within ESA-2, but to permit some limited types of commercial activity.

“Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control .... ” Parker v. Baker, 499 So.2d 843, 845 (Fla. 2d DCA 1986). In applying this principle, commercial uses which fall under section 4.4.3(2) should be permitted, and are not subject to the general prohibition of section 4.4.4, while commercial uses not falling under section 4.4.3(2) continue to be prohibited.

Appellant’s canoe and kayak rental operation is a “water-dependent commercial use,” and is not subject to the section 4.4.4 prohibition on commercial uses. “Water-dependent Uses” are defined by the Code as “activities which can be carried out only on, in or adjacent to water areas because the use requires access to the water body for: waterborne transportation including ports or marinas; recreation; electrical generating facilities; or water supply.” § 2.1, Columbia County Code (emphasis added). Canoeing and kayaking are certainly the types of activities covered under this definition. Therefore, a commercial enterprise seeking to establish a recreational facility for canoe and kayak rentals is permissible under the provisions of the Code.

V. Conclusion

The Columbia County Code specifically permits the development of “public resource based recreation facilities,” and appellant’s proposed development qualifies as such a use. Appellant’s proposed development, though commercial, falls under the category of commercial development specifically permitted by the Code. Because we hold that appellant is permitted to implement his proposed development without first obtaining a special exception, we reverse the Final Judgment of the trial court.

REVERSED.

ALLEN, VAN NORTWICK and POLSTON, JJ., concur.

      . Both parties agree that appellant's lot is a "non-conforming lot of record,” because it is less than 10 acres in size and was in existence prior to the adoption of the County's Comprehensive Plan.

      . We reject, without further comment, appel-lee's argument that because appellant's property is of non-conforming size (less than 10 acres), a special exception is required to development the property for any purpose other than for a single family dwelling. Additionally, because of our ruling on the "public resource based recreational facilities” issue, we do not address appellant’s argument that the canoe and kayak rental operation is permitted as a use accessory to his single family dwelling.


author: WOLF, J.

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. RESCARE HOME HEALTH, INC./LIBERTY MUTUAL GROUP, Appellees.
    No. 1D05-0824.
    District Court of Appeal of Florida, First District.
    May 4, 2006.

      Cynthia Shaw, Special Disability Trust Fund, Tallahassee, for appellant.
    Mary E. Ingley, of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for appellees.
    Lamar D. Oxford and Frank C. Wesi-ghan, of Dean, Ringers, Morgan & Law-ton, Orlando, for amicus curiae Taylor Family Farms and The Florida Fruit and Vegetable Association.
   WOLF, J.

This is a timely appeal from an order of the Judge of Compensation Claims (JCC) determining the employer/carrier (e/c) is entitled to reimbursement from the Special Disability Trust Fund (Fund). The Fund raises two issues on appeal: 1) whether the JCC erred when she did not apply the four-year statute of limitations contained in section 95.11(3), Florida Statutes, to ap-pellees’ claim for reimbursement pursuant to section 440.49, Florida Statutes; and 2) whether the JCC erred in finding that the Fund had waived the applicable statute of limitations. We affirm.

The following facts are pertinent to the issues raised. The original injury to the claimant occurred on June 16, 1989. The e/c filed a timely notice of claim. A proof of claim was filed on March 6, 1996. This proof of claim was reviewed on August 15, 1996, and a letter requesting more information was sent by Fund counsel. The e/c responded to this request on October 18, 1996, and Fund counsel requested a pay history on December 20, 1996. No reply was received to this request. On September 20, 2000, the Fund sent a letter to the e/c, requesting that the e/c inform the Fund of whether it intended to pursue the claim. No response was received by the Fund until April 7, 2004, when counsel for the e/c filed a notice of appearance. On July 20, 2004, the e/c was informed by the Fund that the claim was barred.

There is no dispute that the Fund claim at issue was timely filed within the two-year limitations period specifically set forth in section 440.49(2)(g), Florida Statutes (1989). The Fund argues, however, that the four-year limitations period of section 95.11(3)(f), Florida Statutes, applicable to actions founded on “statutory liability,” applies to bar the claim because all proof required from the e/c in support of the claim was not submitted to the Fund within four years.

In Associated Coca Cola v. Special Disability Trust Fund, 508 So.2d 1305 (Fla. 1st DCA 1987), this court described the request for reimbursement from the Fund as a two step process. The first step was described as follows:

The notice of claim is the first step in obtaining reimbursement from the Fund. The filing of a notice of claim is intended to result in a determination by the Fund that the e/c are or are not entitled to reimbursement in some amount.

Id. at 1306. The court determined that section 440.49(2)(g), Florida Statutes (1985), the same provision at issue in the instant case, prescribed filing requirements for notice of claims. The court described the second step of the process as follows:

In contrast, reimbursement requests are filed after the Fund determines the e/c are entitled, generally, to reimbursement. These requests are the second step in the reimbursement process, and their purpose is to trigger reimbursement for specific amounts of compensation and medical benefits paid the injured employee by the e/c. Section 440.49(2)(g) places no time limitation on the filing of reimbursement requests.

Id. The court went on, however, to determine that the general statute of limitations was applicable to the second step: “[A]n e/c’s request for a hearing before a deputy commissioner to contest a denial of reimbursement from the Fund is an action founded on a statutory liability.” Id. Thus, the court found that the four-year limitations period contained in section 95.11(3)(f), Florida Statutes (1985), is applicable to the second step of the process.

In the instant case there is no question that the notice of claim was timely filed. The first step, however, has never been completed. No request for specific reimbursement could be filed as the entitlement to any reimbursement had not been determined prior to the order which is presently on appeal.

The filing of the proof of claim does not institute a separate cause of action. Instead, there is only one cause of action for entitlement to reimbursement from the Fund, followed by a second cause of action for the amount of that reimbursement (the “request” for reimbursement) if the Fund approves the initial claim. Proof of claim is nothing more than evidence required or requested in support of the initial claim for reimbursement filed by an e/c.

We decline, as did the JCC, to adopt additional statutes of limitations for the first step in the reimbursement process. The JCC specifically found that there is no statute of limitations applicable to bar a pending claim. This principle applied by the JCC is consistent with applicable law, “that the requirement of the Florida statute of limitations is met when an action is commenced within the applicable limitations period.... ” Pratt v. Durkop, 356 So.2d 1278, 1280 (Fla. 2d DCA 1978).

In light of our holding it is unnecessary to reach the second issue raised by appellant. The order of the JCC is AFFIRMED.

BARFIELD and BROWNING, JJ., concur.


text:
    Otha ABNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0473.
    District Court of Appeal of Florida, First District.
    May 5, 2006.
    Rehearing Denied June 8, 2006.
    Otha Abney, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, POLSTON, and THOMAS, JJ., concur.


author: STRINGER, Judge. CASANUEVA, Judge,

text:
    Robert LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4689.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
    Rehearing Denied June 14, 2006.

      Robert Leonard, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Robert Leonard appeals from the denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Leonard raises six grounds for relief, but we find merit in only one. Because Leonard’s claim that his trial counsel was ineffective for failing to have a necklace examined by an expert was facially sufficient, we reverse and remand for an evidentiary hearing on this single issue.

Leonard was charged with one count of burglary of a dwelling with assault or battery, two counts of sexual battery, one count of kidnapping, and one count of battery on a person over sixty-five for offenses which were alleged to have occurred on July 22, 1995. All of the charges arose from an incident in which an assailant broke into the victim’s condominium, ransacked the condominium, raped the victim twice, battered her, tied her up, and left with stolen jewelry. During the assailant’s prolonged stay 'with the victim, the assailant touched numerous items and surfaces in her condominium. The assailant also ate a single candy bar from a wrapped package of six that was in the victim’s refrigerator.

On the morning after the incident, the victim gave a statement to the police in which she gave a detailed description of her assailant. The victim also worked with a sketch artist to create a composite drawing of her assailant. In her statement, the victim told the police that she had had ample time to look at her assailant and that she was confident in her description. A neighbor of the victim told the police that he had seen someone in the hallway outside of the victim’s condominium shortly before the burglary. This neighbor also worked with a police sketch artist, and they too created a composite drawing of the person seen in the hallway. This composite drawing looked very similar to the one created by the victim.

At the victim’s condominium, the police collected numerous fingerprints from various surfaces, including a single fingerprint from the bottom of the package of candy bars in the victim’s refrigerator. They recovered a cigarette butt from the toilet. They also collected a stainless steel flashlight that the victim said did not belong to her and that had not been in her condominium before the assailant broke in. A palm print was recovered from the flashlight. In addition, the police collected several hairs from the victim’s bedding.

Despite this evidence and the composite drawing, the police were not able to identify any suspects for several months. Ultimately, the police arrested Leonard after he pawned a gold rope necklace that was similar to one taken from the victim. The pawned necklace, however, had several significant differences from the one taken from the victim. According to the victim, her rope necklace was 14-karat gold, but it had a strand of white gold woven through it. When the necklace was taken, it was in good condition. The pawned necklace was a 14-karat gold rope necklace, but it did not have the white gold strand woven through it. In addition, it was missing its clasp.

When he was arrested, Leonard looked nothing like the composite drawings prepared by the victim and her neighbor. The police subsequently showed the victim a photo-pack containing six photos, including Leonard’s. The victim failed to identify Leonard as her assailant. The police also showed the photo-pack to the victim’s neighbor, and he too failed to identify Leonard as the person he had seen outside the victim’s condominium. The palm print lifted from the flashlight did not match Leonard’s palm print. Of all of the fingerprints lifted from all of the surfaces in the victim’s condominium, only one matched Leonard, and that was the single fingerprint from the bottom of the package of candy bars. Analysis of the hairs collected from the victim’s condominium resulted in a finding that while the hairs were “consistent” with Leonard’s, they could not be definitively matched to Leonard.

At trial, Leonard’s defense was one of misidentification. The only evidence the State had connecting Leonard to the crime was the single fingerprint from the package of candy bars and the necklace. Leonard’s defense counsel presented testimony to establish that Leonard and his girlfriend shopped at the same grocery store as the victim. He also presented testimony that Leonard would sometimes pick up candy bar packages for his girlfriend’s children, but that she would sometimes make him put them back.

On the issue of the necklace, the State admitted that the pawed necklace did not match the necklace stolen from the victim. However, the State theorized that Leonard had removed the clasp from the necklace and had “unwoven” the white gold strand from it in an effort to disguise the necklace. In response, Leonard presented the testimony of his long-time girlfriend, who told the jury that Leonard had owed the rope necklace he had pawed for several years. The jury subsequently found Leonard guilty as charged, and this court affirmed his convictions and sentences. Leonard v. State, 731 So.2d 712 (Fla. 2d DCA 1999).

In his motion for postconviction relief, Leonard contended, among other things, that his counsel was ineffective for “failing] to obtain an expert to microscopically examine the necklace pawed by [Leonard].” Leonard asserted that, given the dearth of evidence against him, counsel should have fully investigated every available avenue to attack the limited physical evidence. Leonard alleged that had counsel retained such an expert, the expert would have determined that the necklace Leonard pawed could not have been altered as argued by the State, thus eliminating that piece of evidence from the jury’s consideration. Leonard also asserted that had such an expert testified, the outcome of the trial would have been different.

In summarily denying Leonard relief on this issue, the trial court noted that Leonard had presented the testimony of his girlfriend at trial and that she testified that Leonard had owed the pawed necklace for several years before his arrest. The trial court then stated that Leonard’s allegations were insufficient to state a claim for postconviction relief because Leonard “fail[ed] to indicate that an expert’s opinion would have contradicted the testimony of his ow witness.”

It is apparent from the trial court’s order summarily denying relief that the trial court misconstrued Leonard’s claim. Leonard does not deny that he was able to present some evidence to support his theory of defense. However, the testimony of Leonard’s girlfriend that he had owed a 14-karat gold rope necklace for several years would likely have been greeted with some skepticism by the jury given the long-term relationship between Leonard and his girlfriend. Further, the fact that Leonard was able to introduce some evidence in support of his theory of defense does not negate his claim that his trial counsel was ineffective for failing to seek expert testimony that would have conclusively rebutted the State’s theory.

In order to state a facially sufficient claim for postconviction relief, a defendant must allege that his trial counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Leonard’s motion sufficiently alleges these two elements, and his claims are not conclusively rebutted by any of the attachments to the trial court’s order summarily denying relief. See Fla. R.Crim. P. 3.850(d) (allowing trial court to summarily deny relief “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief’). Because this claim is facially sufficient and is not rebutted by the record attachments, Leonard is entitled to an evidentiary hearing on this issue.

We caution that our opinion does not require defense counsel to retain experts in every case to examine every piece of physical evidence. However, when the State’s evidence against a defendant is as slim as it was in this case, defense counsel has an obligation to consider every possible avenue for discrediting that evidence. It may be that counsel did so in this case; however, we have no way to making that determination without an evidentiary hearing. See Flores v. State, 662 So.2d 1350, 1351 (Fla. 2d DCA 1995) (noting that it is difficult without the benefit of an eviden-tiary hearing to determine whether or why defense counsel would have failed to explore a particular defense). Accordingly, we remand for an evidentiary hearing on this single issue.

Affirmed in part; reversed in part, and remanded for further proceedings.

CASANUEVA, J., Concurs specially.

DANAHY, PAUL W., Senior Judge, Concurs.

CASANUEVA, Judge,

Specially concurring.

I fully concur with the holding in this case to require an evidentiary hearing and the determination that a defense counsel is not required in every instance to retain an expert. However, I reach no determination as to the weight of the State’s evidence at trial.


author: SHARP, W., J.

text:
    Guillermo F. DEGUZMAN, Petitioner, v. Edda Serrano BALSINI, Respondent.
    No. 5D06-393.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.
    Rehearing Denied June 8, 2006.

      Domenick Leo, Fern Park, for Petitioner.

      Clifton H. Gorenflo of Clifton H. Goren-flo, P.A., Sanford, for Respondent.
   SHARP, W., J.

DeGuzman seeks a writ of certiorari to quash a circuit court order that directed the reinstatement of a lis pendens, which was filed against his real property by Bal-sini, his former wife, if he was unable to post a $20,000.00 bond. We grant the writ.

Balsini filed a notice of lis pendens on DeGuzman’s real property located at 910 Vineland Place, Lake Mary, Florida, on September 23, 2005. It was apparently related to a contempt/enforcement action filed by Balsini to recover child support and other financial payments owed her for the parties’ children. However, the property was not marital property and it was not included in the settlement agreement entered into by the parties during their dissolution proceedings. The property at 910 Vineland Place is located in Seminole County and is titled in DeGuzman’s sole name. It was purchased by him after the parties’ dissolution was final and used by him for visitation with his children. The children live in Seminole County, Florida, and DeGuzman lives in Puerto Rico.

On January 20, 2006, the circuit court dissolved the lis pendens, finding it was devoid of merit and frivolous. On the same day, Balsini filed a motion to set aside that order. On January 24, 2006, the court modified its order by requiring De-Guzman to post a $20,000.00 bond by January 25, 2006, and if he failed to do so, the lis pendens would be reinstated. The petition for certiorari relates to this order.

We find that the order is improper. Unless an initial pleading shows that an action is founded on a duly recorded instrument concerning the real property described in the lis pendens, the court has the power to control the notice of lis pen-dens by discharging it or by requiring the party who filed the lis pendens to post a bond. Avalon Assoc. of Delaware, Ltd. v. Avalon Park Assoc., Inc., 760 So.2d 1132 (Fla. 5th DCA 2000). If the lis pendens is not based on a duly recorded instrument affecting the title to the property, the court, in its discretion, may require that the party filing the lis pendens post a bond when the property owner shows that damages will likely result in the event the notice of lis pendens is unjustified. A lis pendens places a cloud on the title that did not previously exist, if not based on a recorded instrument. Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984), approved in part, Medical Facilities Dev., Inc. v. Little Arch Creek Properties, 675 So.2d 915 (Fla.1996).

If the lis pendens were to be reinstated in this case, it should be the filer of the lis pendens — Balsini—who must post a bond, if one is required. Thus, if the filing of a notice of lis pendens was proper in this case, and if DeGuzman could have made the showing of likely damages resulting from the lis pendens, failure to require Balsini to post a bond would have been a departure from the essential requirements of law. See Medical Facilities Dev., Inc. v. Little Arch Creek Properties; 675 So.2d 915 (Fla.1996); Space Development, Inc. v. Florida One Construction, Inc., 657 So.2d 24 (Fla. 4th DCA 1995).

However, a lis pendens in this case should not have been filed because there is no connection between Balsini’s litigation to enforce and require payment of child support and the real property against which she filed the lis pendens. She completely failed to show any grounds to assert equitable or legal title to the property, nor any connection to it other than as a potential source from which to recoup child support. A lis pendens is not an appropriate instrument for use in promoting recoveries in actions for money judgments. See 51 Am.Jur.2d Lis Pen-dens § 28 (2000).

When the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized. Id. A notice of lis pendens is properly filed when a person seeks to enforce any lien upon designated real estate, but a lien which may result after a judgment provides no basis for the filing of a lis pendens notice. Id. at § 37.

In addition, the notice of lis pen-dens filed in this case failed to comply with the statutory requirements of section 48.23(l)(a), Florida Statutes (2005). Specifically, it did not state the time that the action was instituted and it did not provide a statement of the relief sought as to the property. See Bothmann v. Harrington, 458 So.2d 1163, 1168 n. 5 (Fla. 3d DCA 1984) (notice of lis pendens is procedurally defective if it fails to contain all of the required information under section 48.23(l)(a), Florida Statutes).

In response to this court’s show cause order as to why the writ should not be granted, Balsini filed a motion to dismiss this certiorari proceeding, claiming that the controversy is now moot. She alleged that on February 23, 2006, the circuit court modified the January 24, 2006 order, by expunging the lis pendens, after the property was sold to a third party under threat of foreclosure.

DeGuzman replied that in order to avoid foreclosure, he agreed to post the $20,000.00 bond through the title closing agent, Watson Title Services, Inc., and that the lis pendens was expunged only because he was found to meet the $20,000.00 bond requirement, using proceeds from the sale of the property to a third party. In essence, a $20,000.00 bond is currently being held by the trial court, as a result of the January 24, 2006 order.

Accordingly, we find that the January 24, 2006 order requiring DeGuzman to post a $20,000.00 bond was contrary to the essential requirements of the law, and that it is not moot. The bond currently held by the trial court is unlawful and should be voided and the currency returned to De-Guzman.

Petition for Certiorari GRANTED; Order QUASHED.

PLEUS, C.J., and GRIFFIN, J., concur.

      . See generally Medical Facilities Dev., Inc. v. Little Arch Creek Properties, 675 So.2d 915 (Fla.1996).

      . Cf. Sparks v. Charles Wayne Group, 568 So.2d 512 (Fla. 5th DCA 1990), receded from in part, Chiusolo v. Kennedy, 589 So.2d 420 (Fla. 5th DCA 1991).


text:
    Richard Lee COLONEL, Appellant, v. MELROSE AREA PROPERTY OWNERS, etc., et al., Appellees.
    Nos. 5D04-3781, 5D05-1825.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.
    Rehearing Denied June 8, 2006.
    Richard Lee Colonel, Hawthorne, in proper person.

      Lawrence J. Marraffino, Gainesville, and C. Wesley G. Currier, St. Simons Island, GA, for Appellees.
   PER CURIAM.

Sua sponte, we consolidate these two appeals, which emanate from the same lower court proceeding. We affirm the lower court’s orders in all respects except that portion of the order dated June 2, 2005, awarding attorney’s fees to Appel-lees, Carl and Julie Schlick. Because the attorney’s fee award was based on a joint proposal for settlement that did not state the amount attributable to each offering party, the proposal was defective and the fee award erroneous. Lamb v. Matetzschk, 906 So.2d 1037, 1042 (Fla.2005); D.A.B. Constructors, Inc. v. Oliver, 914 So.2d 462 (Fla. 5th DCA 2005).

AFFIRMED IN PART; REVERSED IN PART.

SHARP, W., TORPY and LAWSON, JJ., concur.


author: MAY, J.

text:
    Frederick FISHER and Carolina Fisher, Appellants, v. CERTAIN INTERESTED UNDERWRITERS AT LLOYDS SUBSCRIBING TO CONTRACT # 242/99, Appellee.
    No. 4D04-4425.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied July 10, 2006.

      Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa and Bob G. Freemon of Bob G. Freemon, P.A., Tampa, for appellants.
    Robert C. Groelle and Roland V. Bernal of Groelle & Salmon, P.A., Wellington, for appellee.
   MAY, J.

Homeowners appeal a final judgment denying them insurance coverage for damage to their personal property. They argue the trial court erred in determining the mold damage to their personal property was not a direct physical loss caused by the .discharge of water thereby depriving them of insurance coverage for that loss. They further argue the trial court erred in requiring them to repay monies tendered by the insurer for future additional living expenses and depreciation. We agree with the homeowners that the policy covers the mold damage sustained to their personal property. However, we agree with the insurer that it is entitled to recoup monies it conditionally paid for additional living expenses and depreciation. We therefore reverse in part and affirm in part.

The homeowners had an insurance policy underwritten by Lloyds that covered both their dwelling and personal property. The dwelling coverage, Coverage A, was “all-risk” coverage. The personal property coverage, Coverage C, was “named peril” coverage.

The insuring language of the latter coverage provided:

We insure for direct physical loss to the property described in Coverage C caused by a peril listed below unless the loss is excluded in SECTION I—EXCLUSIONS.
12. Accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance[.]

(Emphasis added.) The exclusions referred to in Section I do not apply.

After a month-long vacation, the homeowners returned home to discover that a water pipe had leaked under the foundation. The insurer denied coverage for damage to personal property that did not have direct contact with the discharged water.

The homeowners argued to the trial court that the “all-risk” coverage for the dwelling under Coverage A also applied to Coverage C, thereby providing coverage for the mold damage to their personal property because it was not expressly excluded. The insurer responded that the two coverage sections had to be read independently of one another. The trial court ruled in favor of the insurer and denied the homeowners coverage for the mold damage to their personal property.

On appeal, the homeowners and the insurer maintain their respective positions. On this first point, we agree with the insurer. Whether there is coverage for the personal property rests on the provisions of Coverage C for personal property; not with a distorted reading of Coverage A for dwelling coverage. See Poulton v. State Farm Fire and Cas. Cos., 267 Neb. 569, 675 N.W.2d 665 (2004).

In Poulton, the Nebraska Supreme Court distinguished all-risks coverage and named-perils coverage by describing an all-risks policy as “provid[ing] coverage for all direct losses not otherwise excluded,” while conversely, a named-perils policy covers only those stated perils named as included. When both types of coverage appear in different sections of a single insurance policy, as with Lloyds, the reader cannot intermingle the terms. See N.H. Ins. Co. v. Carter, 359 So.2d 52 (Fla. 1st DCA 1978).

There can be no doubt that Coverage C—personal property applies to the homeowners’ claim for mold damage to their personal property. Whether that provision provides coverage for the mold damage sustained is a more difficult issue. The specific provision requires that the damage be a “direct physical loss” caused by a “named peril.” In this case, the mold damage resulted from the discharge of water—a named peril. The real question we must answer is whether this damage is a “direct physical loss” or merely a consequence of the named peril. Our reading of Coverage C, in light of case law interpreting similar provisions, leads us to conclude there is coverage for the mold damage to the homeowners’ personal property in this case.

Courts must construe insurance contracts “in accordance with the plain language of the policy.” Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 735 (Fla.2002). Furthermore,

[w]hen possible, courts should give effect to each provision of a written instrument in order to ascertain the true meaning of the instrument. Where the contract is susceptible to an interpretation that gives effect to all of its provisions, the court should select that interpretation over an alternative interpretation that relies on negation of some of the contractual provisions.

Id. at 739 (quoting Inter-Active Servs., Inc. v. Heathrow Master Ass’n, 721 So.2d 433, 435 (Fla. 5th DCA 1998)).

In Fred Meyer, Inc. v. Central Mutual Insurance Co., 235 F.Supp. 540 (D.Or.1964), the United States District Court for the District of Oregon concluded that perishable food spoiled after hurricane force winds knocked out the power to refrigerators was a “direct loss.” It considered opinions from the Minnesota and Oregon courts that had interpreted the words “proximate,” “immediate,” and “direct” as synonymous. The court held “that the loss before [it] was a ‘Direct Loss by Windstorm’ within the meaning of the Direct Damage Insurers’ policies” because the power loss was the direct result of the storm thereby making the food spoilage “a direct and natural consequence of the loss of the power.” Id. at 543, 547.

In this case, no one disputes that the mold resulted from the discharge of water — a named peril. The question is whether the damage was “direct” or consequential. We hold that the mold damage in this case was a “direct” consequence of a named peril. The discharge of water set into motion a sequence of events proximately resulting in mold damage to the homeowner’s personal property.

A proper definition of ‘direct loss’ is loss proximately caused by the peril insured against, and the term ‘proximate cause’ as applied in insurance cases has essentially the same meaning as it does in negligence cases, except that in insurance cases, the element of foreseeableness or anticipation of the injury as the result of the peril insured against is not required.... Thus, in a suit on a policy insuring for ‘direct loss’ caused by the named peril, a proper definition of proximate cause would be that cause which in a natural and continuous sequence unbroken by any new and intervening cause, produces a loss, and without which the loss would not have occurred.

Fed. Ins. Co. v. Bock, 382 S.W.2d 305, 307 (Tex.Civ.App.1964) (citations and punctuation omitted).

We live in a day and age where mold is a damage commonly resulting from the discharge of water. It makes little sense to construe the policy so narrowly that the consequential mold damage from the discharge of water is not covered. To do so would require us to turn a blind eye to what common sense dictates. Had the insurer desired to exclude the damage for mold, it could easily have done so. We therefore reverse the trial court’s judgment to the extent it denied coverage for mold damage to the homeowner’s personal property.

In its judgment, the trial court also required the homeowners to repay the insurer for monies it tendered to the insured for future additional living expenses and depreciation awarded in the appraisal. The homeowners argue the payment was tantamount to a confession of judgment. We disagree.

In its cover letter forwarding the payment, the insurer clearly indicated that payment was made because of a recent decision of the United States District Court for the Middle District of Florida. Three Palms Pointe, Inc. v. State Farm Fire & Cas. Co., 250 F.Supp.2d 1357 (M.D.Fla.2003), aff'd, 362 F.3d 1317 (11th Cir.2004). The insurer tendered this payment to avoid any claim for bad faith even though it disagreed with the court’s decision. This did not prevent the insurer from asking the state trial court to rule on the issue of coverage for the homeowners’ claim for future additional living expenses and depreciation. The trial court found the claim was not covered and ordered the homeowners to return those funds. We find no error in the court’s decision on this issue and affirm that part of the judgment requiring the homeowners to repay the insurer.

Affirmed in part and Reversed in part.

WARNER, J., and SWEET, GARY L„ Associate Judge, concur.


text:
    Juan SAMUELS, Appellant, v. LUXURY IMPORTS OF PALM BEACH, INC., d/b/a Lexus of Palm Beach, Appellee.
    No. 4D04-2987.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied July 10, 2006.
    Raymond G. Ingalsbe of Raymond G. Ingalsbe, P.A., Palm Beach Gardens, for appellant.
    G. Jeffrey Vernis and Karen M. Nissen of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for appellee.
   PER CURIAM.

The appellant, Juan Samuels, challenges a jury verdict against him and in favor of Luxury Imports of Palm Beach, Inc. with respect to the sale of a used car to Samu-els. The gravamen of Samuels’ complaint was that Luxury Imports falsely represented to him that the vehicle had never been in a significant collision. The jury rendered a special interrogatory verdict, answering three questions on three theories of liability. The jury specifically found that Luxury Imports did not make fraudulent misrepresentations to Samuels, engage in violations of the Florida Deceptive and Unfair Trade Practices Act, or convert his property in connection with the sale. The issues Samuels raises on appeal concern the improper admission of evidence relating to Samuels’ damages and improper argument by defense counsel with respect to damages. We conclude that the errors, if any, in admitting this testimony or argument of counsel were harmless, because the jury never reached the issue of damages, having found for Luxury Imports on the liability issues. See § 59.041, Fla. Stat.

Affirmed.

WARNER, KLEIN, JJ., and BAILEY, JENNIFER D., Associate Judge, concur.


author: WARNER, J.

text:
    Toni BARONE, an individual, and Old District Promotions, Inc., a Florida corporation, Appellants, v. David ROGERS, an individual, John Lombardo, an individual, New Spirit, Inc., a Florida corporation, L.B.R. Assoc., Inc., a Florida corporation, Wilton Manors Properties, Inc., a Florida corporation, Four Buddies, Inc., a Florida corporation, and John Doe, an unknown individual, Appellees.
    No. 4D05-1163.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied June 29, 2006.

      Kraig S. Weiss of Silverberg & Associates, P.A., Weston, for appellants.
    David Mogul of Law Offices of David Mogul, P.A., Fort Lauderdale, for appel-lees.
   WARNER, J.

The trial court entered an order enforcing a settlement agreement reached in open court. Appellant challenges that order, contending that the court erred in determining the terms of the settlement and failed to include an essential provision of the agreement. Because we conclude that the terms are ambiguous, we reverse.

The parties were co-owners of various bars and restaurants. Appellant, Toni Barone, sued her co-owners, David Rogers and John Lombardo, as well as their various corporations, alleging various causes of action, including breach of fiduciary duty and breach of contract. These claims arose out of Barone’s removal as an officer and director in the four defendant corporations in which Barone was a minority shareholder. Barone was excluded from the management of the corporations after her removal. The parties reached a settlement agreement in February 2004, to be effective immediately, and the lawyers stated its terms on the record in court. Those terms ended up being disputed by the parties after the conclusion of the court proceedings.

The settlement agreement called for Rogers and Lombardo to transfer to Bar-one full ownership of the corporations involved with two bars, together with the liquor licenses. Barone would transfer to Rogers and Lombardo full ownership of the other two corporations, which controlled another restaurant and bar, together with the associated liquor license. All parties were to execute the necessary documents to effect these transfers. The parties agreed to each accept the “corporate status” as is, except they agreed to cooperate to minimize tax issues with respect to the transfers, e.g., possibly transferring the stock to a different name. In addition, Barone agreed to pay Lombardo $14,000 within five months, subject to his submitting documentation to her of his personal credit card debt for property which would remain in one of the bars being transferred to Barone. Failure to make payment would not undo the entire settlement but could be enforced by a monetary claim.

Barone’s attorney also stated on the record that the parties made warranties and representations to each other. First, they warranted that all of the business conducted since January 1, 2004, was “in the ordinary course of business;” that there was no unusual commingling or taking of funds; that the books of the businesses would be produced within seven days; and that thereafter the parties would have thirty days to contest any improper transfers or commingling. Barone’s attorney then said, “There will be all reps and warranties, in the ordinary course of business, outstanding debts with the exception of one debt, TMT.” The court questioned the parties regarding insurance coverage, and both attorneys stated that they represented that insurance would stay in place.

The court then asked the parties about an “evaluation of the liquor or the food on premises.” Rogers and Lombardo’s attorney stated that, “This is ‘as is.’ ” And the court again asked about what would occur if, for instance, the bar received purchases from the liquor supplier. Barone’s attorney stated, “That’s why we stipulated that there is nothing outside the ordinary course of business beyond the thirty days, save for the exception of that one electrical company.” Rogers and Lombardo’s attorney then said, “Other than as specifically provided, there are no adjustments for any debits, or credits, or any arrears, or for any monies coming in as we speak, or hereafter, subject to the terms of the accounting just agreed upon.” The parties also agreed that should any dispute arise out of the settlement agreement, the prevailing party would be entitled to attorney’s fees and costs. The parties were to follow up the announcement of settlement with a written agreement incorporating their understanding, but they could never agree to the terms of the writing.

Almost immediately, the parties were in dispute regarding the settlement. Barone discovered that the defendants owed over $50,000 for overdue bills that were incurred over thirty days prior to the settlement, which she contended breached the representations and warranties of the settlement agreement. She further complained that the documentation submitted by Lombardo to prove the expenditure of his personal funds on property in the bar Barone received was insufficient. After a significant period of time and several extensions for the exchange of documents with respect to the settlement, Barone moved to compel the signing of a settlement agreement. Rogers and Lombardo objected to its terms, claiming that the settlement agreement was an “as is” settlement agreement.

Eventually, the matter wound up in front of the court on Barone’s motion to determine the pending settlement issues and to compel signatures on the settlement documents. It does not appear that this was an evidentiary hearing. The court reviewed the transcript of the announcement of the settlement and determined that the settlement was “as is” on the financial and physical condition of the corporate entities. It also determined that Barone agreed to pay Lombardo $14,000 within five months of the agreement. Although Barone contended that Lombardo and Rogers violated the settlement agreement by not effectively transferring the companies, the court found that they had fulfilled their obligations. It thus ordered Barone to execute various transfer documents for the liquor licenses and corporate filings and to pay the $14,000 to Lombar-do.

Barone appeals this order of enforcement, contending that the court erred in its interpretation of the agreement as being an “as is” transaction. Specifically, she argues that the court erred in failing to include the terms regarding the warranties and representations with respect to unpaid bills that were older than thirty days; representations that there was no commingling of funds; and the requirement that Lombardo supply documentation that the $14,000 owed to him was for equipment purchased for the bar.

An agreement announced in open court is an enforceable settlement agreement. Cohen v. Cohen, 629 So.2d 909, 910 (Fla. 4th DCA 1993). As settlement agreements are contractual in nature, they are interpreted and governed by contract law. Cheverie v. Geisser, 783 So.2d 1115, 1118 (Fla. 4th DCA 2001). Just as with other contracts, to be enforceable a settlement agreement “must be sufficiently specific and mutually agreeable as- to every essential element.” Long Term Mgmt., Inc. v. Univ. Nursing Care Ctr., Inc., 704 So.2d 669, 673 (Fla. 1st DCA 1997).

The interpretation of a contract is generally a question of law for the court. See DEC Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427 (Fla.1990). However, where the wording of an agreement is ambiguous, its interpretation involves questions of fact, precluding summary disposition. See Ieracitano v. Shaw, 815 So.2d 787 (Fla. 4th DCA 2002); Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc., 513 So.2d 218 (Fla. 1st DCA 1987). Contracts are to be construed in accordance with the intentions of the parties. PS Marinas 3 v. Marina Funding Group, Inc., 889 So.2d 167, 169 (Fla. 3d DCA 2004). The determination of whether there is a meeting of the minds as to essential elements of an ambiguous contract requires a consideration of all of the surrounding circumstances. Id.

In the case before us, the terms of the settlement agreement announced in open court were ambiguous, at the very least. Contrary to the trial court’s determination that it was an “as is” transfer of the corporations, throughout the transcript the parties agreed that the transfers of the corporate interests were subject to various representations and warranties, including a representation that all business for the past two months was “in the ordinary course of business.” The court was told twice that there was a representation that there was nothing outside of thirty days, save for one electric bill. Rogers and Lombardo’s attorney, however, also ambiguously stated that “other than as specifically provided, there are no adjustments for ... any arrears.” Both of these statements are ambiguous as to whether the settlement included a representation that there were no accounts owed by the businesses which were in arrears for more than thirty days. Further, the only provisions regarding the transaction being “as is” refer to the corporate status and to the current inventory of each bar.

The issue to be determined is whether there was a meeting of the minds regarding these ambiguous terms, or if not, whether the term was an essential element of the transaction such that without assent to its term no contract came into existence. See Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So.2d 404, 408 (Fla.1974) (“Even though all the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them.”). This is a question of fact, subject to proof. An evidentiary hearing on the issue is required.

As to the $14,000 payable to Lombardo, the agreement was clear and unambiguous that payment was subject to Lombardo providing proof that he personally paid for property remaining with the bar. Where the provision is clear, the standard of review is de novo, and the appellate court may reach a different interpretation than the trial court. Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003). Here the trial court erred in failing to condition the payment of the $14,000 on Lombardo’s compliance with that clear contract provision. On remand, the trial court should make a factual determination as to whether Lombardo properly substantiated his entitlement to the $14,000.

Because the court erred in determining, as a matter of law, that the contract was an “as is” contract, when the terms announced in open court were ambiguous or clearly contrary to those determined by the trial court, we reverse and remand for an evidentiary hearing on the interpretation of the settlement agreement.

Reversed.

GROSS and HAZOURI, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Enrique M. DOBARGANES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-424.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Enrique M. Dobarganes, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

The defendant argues that the written sentence, which classifies him as a habitual felony offender and a habitual violent felony offender, does not conform with the trial court’s oral sentencing pronouncement. Because the record now before us fails to make the required showing, see Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005), we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to relief.

Reversed and remanded for further proceedings.


author: CORTINAS, Judge.

text:
    James ARONSON and Jonathan Aronson, as Trustees of Revocable Indenture of Trust of Hillard J. Aronson, and James Aronson and Jonathan Aronson, individually, Appellants, v. Doreen ARONSON, Appellee.
    No. 3D05-2960.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Buckingham, Doolittle & Burroughs and H. Michael Muñiz and Michael D. Mopsick, Boca Raton, for appellants.
    Shutts & Bowen and William Jay Palmer, Miami, for appellee.
    Before FLETCHER, RAMIREZ, and CORTINAS, JJ.
   CORTINAS, Judge.

Appellants, James Aronson and Jonathan Aronson, individually, and as Trustees of the Aronson Trust, appeal from a final order finding that Hillard Aronson’s (the “Settlor” or “Mr. Aronson”) quit claim deed conveying his Florida condominium to his second wife, Doreen Aronson (“Ms. Aronson”), was valid.

In early 1996, the Settlor was the sole owner of a condominium located in Key Biscayne, Florida (the “property’). On July 2, 1996, while residing in Massachusetts with Ms. Aronson, the Settlor created a revocable trust (the “Trust”) in which he was both a life beneficiary and a trustee. That same day, the Settlor conveyed the property to himself as trustee, by a warranty deed.

On December 16, 1996, the Settlor, in his individual capacity as “a married man,” conveyed the same property to Ms. Aron-son by a quit claim deed. On March 13, 2003, Appellants, who are the children of the Settlor from his first marriage, individually and in their capacity as successor trustees of the Trust, filed a complaint seeking a declaratory judgment to invalidate the conveyance to Ms. Aronson on the ground that the property had already been conveyed to the Trust on July 2, 1996.

Prior to trial, the trial court granted Appellants’ motion in limine to bar evidence at trial seeking to prove the Set-tlor’s intent in the execution of the quit claim deed. At trial, the court applied Massachusetts law to construe the Trust. The trial court found that the Settlor intended to reserve his power to withdraw property from the Trust and that Ms. Ar-onson was “a natural object of his bounty and the Trust contains a number of provisions in her favor.” The trial court also found that the Settlor meant to convey whatever interest he had to Ms. Aronson by the quit claim deed. The trial court concluded that there was “sufficient compliance with the Trust requirements” to complete the conveyance.

Appellants argue that the quit claim deed was fatally defective because the Set-tlor had divested himself of legal title to the property when he conveyed it to himself as trustee. See Buerki v. Lochner, 570 So.2d 1061, 1063 (Fla. 2d DCA 1990)(noting that a trustee is the legal title holder of the trust property). Appellants maintain that, once the Settlor executed a warranty deed transferring his interest in the property to the Trust, legal title to the property fully vested in the trustee and was no longer held by the Settlor in his individual capacity. Therefore, the Settlor no longer possessed a legal interest in the property that he could convey to Ms. Ar-onson. Additionally, Appellants contend that the trial court committed reversible error when it considered the Settlor’s intent in executing the quit claim deed to Ms. Aronson because the language of the deed was clear and unambiguous and the court had properly ruled to exclude the Settlor’s intent during a hearing on Appellants’ motion in limine.

Conversely, Ms. Aronson maintains that the Settlor reserved the right, in the Trust instrument, to transfer any trust asset in his individual capacity. Ms. Aronson argues that the Settlor withdrew the property from the Trust in compliance with the Trust requirements.

We review the trial court’s order de novo as the validity of the conveyance involves a question of law and construction of a written instrument. See Davis v. Rex, 876 So.2d 609, 613 (Fla. 4th DCA 2004); Smith v. Frontier Commc’ns Int’l, Inc., 805 So.2d 975, 976 (Fla. 2d DCA 2001).

Here, the Settlor executed a warranty deed conveying the property to himself, as trustee. Thus, the Settlor, in his capacity as trustee, became the legal title holder of the trust property. See Buerki, 570 So.2d at 1063. Once the Settlor held the property as trustee, for the benefit of the beneficiaries of the trust, he no longer possessed the power to convey the property in his individual capacity.

Although we are unaware of any Florida court decision squarely addressing the issue raised in this case, we are persuaded by the Supreme Court of Massachusetts’ decision in Bongaards v. Millen, 440 Mass. 10, 793 N.E.2d 335 (2003). In Bongaards, the grantor created a trust where she was the sole trustee, and conveyed real estate to the trust. Id. at 337. A year later, the grantor executed a deed, signed by her as an individual, which purported to convey the real estate to her daughter, Jean. Id. at 338. The court had to consider whether Jean’s estate, for the purposes of determining her husband’s elective share, included the subject real estate. Id. at 338. The court rejected the husband’s argument that the deed needed to be considered in conjunction with the grantor’s intent and Jean’s acquiescence to that intent. Id. at 339. Instead, the court found that, where a deed is clear and unambiguous on its face, a mutual intent to convey and receive title to the property is irrelevant. Id. Accordingly, the court found that, since the grantor did not own the property in her individual capacity, she could not validly convey it by a deed notwithstanding the parties’ intent. Id.

Ms. Aronson notes that the Bongaards court acknowledged that a trust instrument may permit partial revocation or alteration of a trust, provided that there is a reserved power to do so, and provided further that the authority is “ ‘exercised in strict conformity to its terms.’ Bongaards, 793 N.E.2d at 339 (emphasis added)(quoting Phelps v. State St. Trust Co., 330 Mass. 511, 115 N.E.2d 382, 383 (1953)). “The law of Massachusetts is plain that a valid trust, once created, cannot be revoked or altered except by the exercise of a reserved power to do so, which must be exercised in strict conformity to its terms.” Phelps v. State St. Trust Co., 330 Mass. 511, 115 N.E.2d 382, 383 (1953). In support of her position, Ms. Aronson refers to several provisions in the Trust, which reserved certain powers to the Settlor. For example, the Trust contains the following provisions:

ARTICLE I
The Settlor shall have the right to revoke the Trust hereunder, or to withdraw any portion of the Trust fund, in whole or in part, or to amend this agreement from time to time by an instrument in writing delivered to the Trustee.
ARTICLE IV
(A) While the Settlor survives and while neither of the two conditions (i) or (ii) below has occurred, the Settlor shall have sole responsibility for the supervision and character of the investments held in the Trust and for all decisions as to the retention disposition, investment, reinvestment, or other administration of the assets held in the Trust and the Trustee shall abide by such decisions and execute all documents which may be required to effectuate them, including, without limitation, proxies, subscriptions, and documents of sale....

The trial court relied on these provisions in concluding that there was “sufficient compliance with the Trust requirements” to complete the conveyance to Ms. Aron-son.

However, assuming that the Trust reserved to the Settlor and the Trustee certain powers to dispose of trust assets, there is no question that Mr. Aronson failed to withdraw the property in strict compliance with the Trust instrument as it required the Settlor to deliver a written document to the Trustee in order to withdraw the Trust assets. See Bongaards, 793 N.E.2d at 339. Instead, Mr. Aronson conveyed real property in his individual capacity, which he did not legally own in that capacity. Accordingly, the subsequent transfer was invalid as a matter of law.

We need not and, indeed, cannot attempt to glean Mr. Aronson’s intent in transferring the property to the trust, or subsequently to Ms. Aronson in his individual capacity. Here, there was no ambiguity in either the original transfer of the property to the Trust by warranty deed or the subsequent transfer of the property to Ms. Aronson by quit claim deed. See Dolphins Plus, Inc. v. Hobdy, 650 So.2d 213, 214 (Fla. 3d DCA 1995)(noting that unambiguous language of a written instrument is not subject to judicial construction or interpretation). Having created a valid trust and being familiar with the powers he retained therein, as well as the law in this area, Appellants contend that Mr. Ar-onson’s intent was to appease his second wife and effectuate a sham transaction he knew to be legally invalid. Conversely, it is argued that Ms. Aronson was the natural object of Mr. Aronson’s bounty and that the subsequent transfer must be held to be valid to give meaning to Mr. Aron-son’s actions. These and other explanations may exist in attempting to ascertain the true motive behind Mr. Aronson’s actions. However, the choice of any particular scenario to explain and give meaning to Mr. Aronson’s intent involves guesswork that is not likely to produce enduring legal principles under which to consider future cases.

Rather than attempt to guess Mr. Aron-son’s intent, especially where there is no ambiguity, we are persuaded by the legal reasoning and holding in Bongaards. Since Mr. Aronson, the grantor, did not own the property in his individual capacity, he could not validly convey it by a deed, notwithstanding his intent. See id.

Reversed and remanded.

      . The dispute concerns the remainder interest in the property as Appellants concede that the Trust provides Ms. Aronson with a life estate in the property.


text:
    George BATTLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0433.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Nancy Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

George' Battles seeks a belated appeal from an order which extended his term of probation. Petitioner has provided undisputed evidence that the trial judge failed to advise him of his right to appeal. The state opposes the petition, contending that this court should find that Battles is estopped to challenge the extended probation because he accepted the benefit of the extension to avoid a prison sentence and/or because petitioner waived his right to appeal. We find that these arguments are not relevant to the issue of whether Battles is entitled to a belated appeal. State v. Trowell, 739 So.2d 77 (Fla.1999). Instead, they may be presented by the state in its answer brief in the direct appeal which will ensue.

The petition is granted and George Battles is afforded a belated appeal from the order rendered May 11, 2004, in Duval County Circuit Court case number 2000 CF 2665. See Byrd v. State, 916 So.2d 926 (Fla. 1st DCA 2005); Turner v. State, 745 So.2d 535 (Fla. 1st DCA 1999). Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, VAN NORTWICK, and BROWNING, JJ., concur.


author: SALCINES, Judge.

text:
    Marcella D. RIMES, Petitioner, v. Clinton T. RIMES, Respondent.
    No. 2D05-5763.
    District Court of Appeal of Florida, Second District.
    May 17, 2006.
    Rehearing Denied June 20, 2006.
    Susan J. Silverman, Sarasota, for Petitioner.

      R. Lynette Mancuso of Burgess, Harrell, Maneuso, Olson & Colton, P.A., Sarasota, for Respondent.
   SALCINES, Judge.

Marcella D. Rimes petitions this court for writs of certiorari regarding multiple rulings made by the circuit court in a single order. She also petitions this court for a writ of prohibition. For the reasons explained below, we decline to grant her petitions.

The order which is the subject of Ms. Rimes’ petitions was entered by the circuit court and contains two distinct rulings. In the order, the circuit court denied Ms. Rimes’ motion to remove a parenting coordinator. The circuit court also denied Ms. Rimes’ petition for writ of prohibition which challenged the authority of Judge Don Hall to preside over ongoing postdis-solution matters.

Ms. Rimes correctly asserts that the only vehicle by which this court may review the portion of the order denying her motion to remove the assigned parenting coordinator is a petition for writ of certio-rari pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A). Ms. Rimes has failed to demonstrate, however, that she meets the stringent requirements for entitlement to certiorari relief notwithstanding the serious allegations she lodged against the assigned parenting coordinator. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995) (explaining the three-prong test which must be met before an appellate court can grant relief from an erroneous interlocutory order). Thus, we dismiss her petition for writ of certiorari.

With respect to the portion of the circuit court’s order denying her petition for writ of prohibition in regard to the judicial assignment of Judge Hall, Ms. Rimes seeks relief by petition for writ of certiora-ri or through an original petition for writ of prohibition. In her petition for writ of prohibition filed with the circuit court, Ms. Rimes asserted, in part, that Judge Hall, who was a DeSoto County judge at that time, was improperly acting as a de facto circuit judge because the chief judge of the judicial circuit had not entered an administrative order assigning Judge Hall to preside over the case. In denying Ms. Rimes’ petition for writ of prohibition, the circuit court found that Judge Hall had been appointed by administrative order to preside over the case in an appointment which had been renewed every six months. Although counsel argued to the circuit court that he had been unable to find an administrative order appointing Judge Hall, no evidence was presented to demonstrate that Judge Hall had not been properly assigned to hear this case. See Romeo v. Romeo, 907 So.2d 1279, 1284 (Fla. 2d DCA 2005) (stating “it is black letter law that argument of counsel does not constitute evidence”).

Ms. Rimes now asserts, in her original petition for writ of. prohibition, that the circuit court acted in excess of its jurisdiction. She maintains that by denying her amended motion for writ of prohibition, the circuit court effectively assigned or reassigned the case on a permanent basis to Judge Hall without the authority to do so. The circuit court’s order, however, did not assign the matter to Judge Hall on a permanent basis. It merely recognized that Judge Hall had been assigned by administrative order.

Ms. Rimes has not demonstrated that she meets the requirements which would allow this court to issue either a writ of certiorari or a writ of prohibition. Additionally, even if reviewed as an appeal from a final order denying a petition for writ of prohibition, reversible error has not been shown. Ms. Rimes simply failed to present sufficient evidence to support her claim that Judge Hall had not been properly assigned to preside over the case.

Petition for writ of certiorari dismissed; petitions for writ of prohibition or writ of certiorari denied.

CASANUEVA and SILBERMAN, JJ., Concur.


author: SUAREZ, J.

text:
    MURTON ROOFING CORPORATION, Appellant, v. FF FUND CORPORATION, Appellee.
    No. 3D05-2108.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.

      Vincent F. Vacearella and Jordan M. Keusch, Aventura, for appellant.
    Cinque & Cinque and Robert Cinque, New York, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Murtón Roofing Corporation (“Murtón”) appeals the lower court’s order vacating an arbitration award. We reverse the order and reinstate the award.

Murtón and FF Fund Corporation (“FF”) were parties to arbitration conducted by the American Arbitration Association (“AAA”) to resolve a dispute regarding payment under a construction contract. A sole arbitrator appointed by the AAA presided over the two-day hearing. FF introduced testimony of four live witnesses. Murtón relied on the deposition and affidavit of one witness. At the end of the second day, Murtón produced the affidavit of Mr. Thyssen. FF claimed to have been surprised by the affidavit, as it was not informed of the affidavit before the hearing, and the affidavit testimony was contrary to what FF expected Thyssen to testify to, if called. Prior to arbitration, FF had set Thyssen for deposition, but canceled the deposition and did not have him appear for the arbitration. The arbitration proceedings were concluded after Murtón introduced Thyssen’s affidavit. There is a dispute in the record as to whether the arbitrator agreed to consider further evidence from FF regarding the Thyssen affidavit after the proceedings had concluded. Several days later, and after FF learned that the arbitrator had reached his decision in favor of Murtón, FF filed a complaint with the AAA alleging that the arbitrator was biased. FF alleged numerous improprieties, the principal one being that the arbitrator refused to consider new evidence — a second Thyssen affidavit allegedly recanting the contents of the one that Murtón presented by at the hearing. AAA affirmed the award in a written response. FF moved the trial court to vacate the arbitration award pursuant to section 682.13, Florida Statutes (2005), and Murtón moved to confirm the award pursuant to section 682.12, Florida Statutes (2005). After discovery and an evidentiary hearing, the trial court granted FF’s motion and vacated the award, finding that FF was prejudiced by the arbitrator’s refusal to consider the second Thys-sen affidavit which the trial court found to be material to the controversy.

A trial court may only set aside an arbitration award upon the grounds set forth in section 682.12, Florida Statutes (2005). Davenport v. Dimitrijevic, 857 So.2d 957 (Fla. 4th DCA 2003). An arbitrator’s refusal to consider material evidence can be grounds to vacate an award. § 682.13(l)(d), Fla. Stat. (2005). A trial court’s decision to confirm or vacate an arbitration award is reviewed for “an abuse of extremely limited discretion.” Commc’ns Workers of Am. v. Indian River County Sch. Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004), review denied, 901 So.2d 873 (Fla.2005).

We reverse the trial court’s order vacating the arbitration award because the record does not demonstrate that the arbitrator abused his discretion in not considering Thyssen’s second affidavit, or that any alleged error prejudiced FF. First, the arbitrator did not abuse his discretion by rejecting FF’s request to submit evidence after the arbitration hearing ended. Both parties had the opportunity to present evidence and call witnesses during the two-day arbitration hearing. FF chose not to depose Thyssen before the hearing, did not ask him to sign an affidavit, and did not call him to testify at the arbitration hearing. Murtón, however, obtained an affidavit from Thyssen and submitted it at the hearing. The arbitrator did not abuse his discretion by refusing to draw out the arbitration and permit FF to present additional evidence after the close of the proceedings simply because FF was surprised by the contents of Thyssen’s affidavit. Affiliated Mktg., Inc. v. Dyco Chems. & Coatings, Inc., 340 So.2d 1240 (Fla. 2d DCA 1976) (holding that the trial court erred by setting aside an arbitration award because it was based on insufficient and inappropriate evidence; noting that arbitration is not governed by the safeguards of trial).

Furthermore, even if the arbitrator had erred by refusing to consider a second affidavit from Thyssen, such would not require the arbitration award’s reversal because the evidence was not material. The arbitrator testified before the lower court that, even if FF produced evidence that Thyssen’s first affidavit was obtained under duress, his arbitration decision would still have been the same. The second affidavit that FF sought to introduce, therefore, was not material. Lake County Educ. Ass’n v. Sch. Bd., 360 So.2d 1280, 1284 (Fla. 2d DCA 1978) (the arbitrator is “the sole and final judge of the evidence and the weight to be given to it”). As the arbitrator determines the weight to be given the evidence, FF could not have been prejudiced by his failure to consider it. Open Bible Comty. Church v. Paragon Constr. Unltd., Inc., 751 So.2d 188 (Fla. 3d DCA 2000) (arbitrator did not abuse his discretion by declining the church’s second request for a postponement of the arbitration hearing where the church failed to establish that the arbitrator refused to hear evidence material to the controversy); Int’l Med. Ctrs., Inc. v. Sabates, 498 So.2d 1292 (Fla. 3d DCA 1986)(no prejudice ensued from ex parte phone call during which the party simply confirmed information that both arbitrators already knew, and which was presented at the hearing). Accordingly, we reverse the trial court’s order vacating the arbitration award.

Reversed, arbitration award reinstated.


text:
    Marvin BARRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0537.
    District Court of Appeal of Florida, First District.
    May 22, 2006.
    Marvin Barrington, pro se, Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated March 15, 2006, and the state’s reply, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on February 2, 2006, appealing the Order on the appellant’s postconviction motion, signed on November 28, 2005, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App.9.110(b); Fla. R.Crim. P. 3.800.

ALLEN, WOLF, and WEBSTER, JJ„ concur.


text:
    Jeffrey R. HASTINGS, Appellant, v. James R. McDONOUGH, Sec., Fla. D.O.C., Appellee.
    No. 1D06-1041.
    District Court of Appeal of Florida, First District.
    May 22, 2006.
    Jeffrey R. Hastings, pro se, Appellant.
    Louis A. Vargas, General Counsel, and Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 10, 2006, the Court has ‘determined that the lower tribunal’s February 16, 2006, order is not an appealable order. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005),

ALLEN, WOLF, and WEBSTER, JJ„ concur.


text:
    Thurnal GLOVER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1036.
    District Court of Appeal of Florida, First District.
    May 22, 2006.
    Thurnal Glover, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Michael RENDER, Petitioner, v. DEPT. OF CORRECTION, Respondent.
    No. 1D06-0831.
    District Court of Appeal of Florida, First District.
    May 23, 2006.
    Michael Render, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Delarian ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2001.
    District Court of Appeal of Florida, First District.
    May 23, 2006.
    Delarian Robinson, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    George ASSIFF, Appellant, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Appellee.
    No. 3D05-1457.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      George J.F. Werner, Clearwater, for appellant.
    Donnise A. DeSouza, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The sole issue raised by the appellant is whether the trial court erred in dismissing his complaint, rather than transferring the action from the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida (“State Court”) to the United States District Court for the Southern District of Florida in Miami (“Federal Court”). As we find no error in the trial court’s ruling, we affirm.

On February 8, 2005, the plaintiff, George Assiff, filed a complaint in State Court against Carnival Corporation d/b/a Carnival Cruise Lines (“Carnival”). The plaintiff sought damages for injuries he allegedly sustained when he tripped and fell onboard a Carnival cruise ship and for injuries resulting from the ship’s medical doctor’s misdiagnosis. Attached to the complaint was the passenger ticket contract, which contains the following forum selection clause in Paragraph 15:

It is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A., to the exclusion of the Courts of any other county, state or country.

In addition, the complaint alleges that the plaintiff is a resident of Pinellas County, Florida, and Carnival is a foreign corporation authorized to do business in the State of Florida, with its principal office located in Miami, Florida.

Carnival filed a motion to dismiss the complaint, arguing that the State Court was the improper forum based on the forum selection clause contained in Paragraph 15 of the passenger ticket contract. Following a hearing, the trial court granted the motion to dismiss without prejudice, based on the forum selection clause. This appeal follows.

The plaintiff contends that, pursuant to section 47.122, Florida Statutes (2005), the trial court was authorized to transfer the action from the State Court to the Federal Court, and therefore, the trial court erred when it dismissed the action. We conclude that the plaintiffs reliance on section 47.122 is, however, misplaced. Section 47.122 is Florida’s forum non con-veniens statute and the complaint in this case was dismissed based upon a forum selection clause contained in the passenger ticket contract, not forum non conveniens. Thus, section 47.122 is inapplicable.

The plaintiff also contends that the action was removable from State Court to Federal Court pursuant to 28 U.S.C. § 1441 (2005). We disagree. 28 U.S.C. § 1441 allows for the removal of a case from a state court to a federal court under specific circumstances, which we find are not present in this case. 28 U.S.C. § 1441 provides in relevant part as follows:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

In the instant case, 28 U.S.C. § 1441 is inapplicable for the following reasons: (1) the defendant did not seek removal; (2) the claim does not “aris[e] under the Constitution, treaties or laws of the United States,” see Garcia v. Parker & Co. Worldwide, Civ.A. B-05-300, 2006 WL 197035 (S.D.Tex. Jan.23, 2006)(“Maritime claims do not ‘arise under the Constitution, treaties, or laws of the United States’ for purposes of removal jurisdietion.”)(quoting Tennessee Gas Pipeline v. Houston Cas. Ins., 87 F.3d 150, 153 (5th Cir.1996)); Auerbach v. Tow Boat U.S., 303 F.Supp.2d 538, 542 (D.N.J.2004)(“[A]dmiralty claim does not arise under the federal constitution, treaties, or laws, and cannot be removed freely to federal court under [28 U.S.C.] Section 1441.”); and (3) there is no diversity of citizenship between the parties.

Thus, since there is no statutory mechanism to remove or transfer this matter to federal court, the trial court properly dismissed the complaint. We recognize that, as a result of the one-year statute of limitations contained in Paragraph 14(a) of the passenger ticket contract, it appears that the plaintiff will be barred from filing his action in the Federal Court. Nonetheless, this alone is insufficient to warrant reversal of the trial court’s order granting Carnival’s motion to dismiss. See Continental Ins. Co. v. M/V Orsula, 354 F.3d 603, 608 (7th Cir.2003)(“[T]he dismissal of a cause of action for improper venue ... after the statute of limitations has run does not, on its own, constitute an abuse of discretion.”); Hapaniewski v. City of Chicago Heights, 883 F.2d 576 (7th Cir.1989). Therefore, the order under review is affirmed.

Affirmed.

      . Carnival also argued that the action was time barred based on the one-year limitation period contained in Paragraph 14(a) of the passenger ticket contract. However, as the trial court specifically ruled that it was not deciding that issue, we do not address this argument, although Carnival also seeks affir-mance arguing that the plaintiff’s complaint was not timely filed in the State Court.


text:
    Garwade FLASH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1562.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied June 29, 2006.
    Garwade Flash, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice for appellant to bring this claim in a properly sworn rule 3.850 motion.

STEVENSON, C.J., POLEN and SHAHOOD, JJ., concur.