author: CANADY, Judge.

text:
    M.C.G., a child, and T.G. and M.G. individually and on behalf of M.C.G., Appellants, v. HILLSBOROUGH COUNTY SCHOOL BOARD, Appellee.
    No. 2D05-154.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.

      Rebecca O’Dell Townsend of Haas, Dut-ton, Blackburn, Lewis & Longley, P.L., Tampa, for Appellants.
    Thomas M. Gonzalez, Gregory A. Hearing, and Allison E. Rehmeyer of Thompson, Sizemore & Gonzalez, Tampa, for Ap-pellee.
   CANADY, Judge.

In this case arising under the Individuals with Disabilities Education Act (IDEA), the appellants, M.C.G. and his parents, appeal a final agency order denying his request for compensatory speech therapy to be provided by the Hillsbor-ough County School Board. Because the dispositive legal issue presented here has previously been decided — adversely to the appellants — in another case between the same parties that was reviewed in this court, we conclude that the appellants are precluded from relitigating the issue in this proceeding.

Background

M.C.G. is an autistic child who was enrolled full-time with the School Board until September 2000, when his parents withdrew him and placed him in a home education program because, the appellants allege, the individualized education program provided by the School Board was inadequate. Since then, M.C.G. has been enrolled part-time with the School Board in order to supplement his home education program. The appellants requested a due process hearing pursuant to the IDEA in Division of Administrative Hearing (DOAH) case number 01-0745E, claiming that the School Board failed to provide an appropriate education for M.C.G.

While that due process hearing was pending, in 2003 the appellants requested a separate due process hearing in DOAH case number 03-1265E, alleging that the School Board failed to provide services to M.C.G. under the IDEA. The administrative law judge (ALJ) denied the request, concluding that M.C.G. is “not entitled under the IDEA to inclusion services while [M.C.G.] is a full-time student in a home education program, and DOAH has no authority to require [the School Board] to provide such inclusion services to” M.C.G. The appellants appealed, and this court affirmed the ALJ’s order. See M.C.G. v. Hillsborough County Sch. Bd., 902 So.2d 150 (Fla. 2d DCA 2005) (table).

Later in 2003, the appellants requested a due process hearing in DOAH case number 03-3200E to determine if M.C.G. is entitled under the IDEA to compensatory speech therapy that the School Board failed to provide during the beginning of the 2003-2004 school year. The ALJ concluded that “[M.C.G.] is not entitled under the IDEA to speech therapy services or [a free appropriate public education] while [M.C.G.] is in a full-time home education program and in public school as a part-time student.” The appellants did not appeal that order.

In October 2004, the appellants filed another request for a due process hearing in DOAH case number 04-4070E, this time to determine if M.C.G. is entitled under the IDEA to compensatory speech therapy that the School Board failed to provide during a five-week period in the beginning of the 2004-2005 school year. The ALJ held a hearing and concluded that the appellants’ claim is barred by the doctrines of collateral estoppel and res judicata based on the order in DOAH case number 03-3200E. The ALJ also concluded that even if the claim was not barred, M.C.G. would not be entitled to compensatory speech therapy under the IDEA because he is enrolled in a full-time home education program. The appellants appeal this order in the instant proceeding.

Argument on Appeal

On appeal, the appellants claim that the ALJ erred in determining that M.C.G. is not entitled to services under the IDEA. The School Board responds that the appellants’ request for services is barred by the doctrines of collateral estoppel and res ju-dicata and that M.C.G. is not entitled to services under the IDEA. The appellants reply that because the time period in question in the instant case is different from the time period dealt with in the previously litigated cases, the decisions in the prior cases have no preclusive effect here. The appellants also contend, based on J.S.K. v. Hendry County School Board, 941 F.2d 1563 (11th Cir.1991), that because the order in DOAH case number 03-3200E did not receive judicial review, it should not be given preclusive effect.

Analysis

“The doctrine of collateral estop-pel — which is also known as issue preclusion and estoppel by judgment — ‘bars re-litigation of the same issues between the same parties in connection with a different cause of action.’ Cook v. State, 921 So.2d 631, 634 (Fla. 2d DCA 2005) (quoting Topps v. State, 865 So.2d 1253, 1255 (Fla.2004)) (emphasis added). “The doctrine thus comes into play in a case when, in an earlier proceeding involving a different cause of action, the ‘same parties’ litigated the ‘same issues’ that are presented once again for decision.” Id. “ ‘[T]he judgment in the first suit ... estops the parties from litigating in the second suit issues — that is to say points and questions— common to both causes of action and which were actually adjudicated in the prior litigation.’ ” Stogniew v. McQueen, 656 So.2d 917, 919 (Fla.1995) (quoting Gordon v. Gordon, 59 So.2d 40, 44 (Fla.1952)). “The determination must be essential to the pri- or adjudication in order to be given preclu-sive effect.” Cook, 921 So.2d at 684. The doctrine is applicable to administrative proceedings. Id.; see also Restatement (Second) of Judgments § 83 (1982). Ordinarily, a determination that has become final in a prior case will be given preclu-sive effect even if it has not been subjected to appellate review. See Restatement (Second) of Judgments §§ 27, 28(1), cmt. a.; see also Restatement (Second) of Judgments § 83.

In 2003, the parties to this case litigated in DOAH case number 03-1265E whether M.C.G. was entitled to services under the IDEA. The determination of whether M.C.G. — as a student in a full-time home education program — was entitled to services under the IDEA was essential to the prior adjudication and is the same issue presented in this appeal. The ALJ’s conclusion in DOAH case number 03-1265E was affirmed by this court. See M.C.G., 902 So.2d 150. Under the doctrine of issue preclusion, the appellants may not re-litigate this issue that was previously litigated.

It is true that the claim in DOAH case number 03-1265E presented a different cause of action than the claim in DOAH case number 03-4070E — the case now on appeal — because the respective cases dealt with different time periods. The doctrine of res judicata — which requires that the second suit present the identical cause of action as was previously litigated — is not applicable where the claims in the two cases concern different periods of time. Identity of causes of action “means an identity of the facts essential to the maintenance of the action.” City of Miami Beach v. Prevatt, 97 So.2d 473, 477 (Fla.1957); see also Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841, 843 (1943). A cause of action to establish entitlement to services under the IDEA by its nature pertains to a particular period of time and is based on the factual circumstances at that time.

But the variation in the time periods at issue in the two cases — which prevents application of the doctrine of res judica-ta — is not an impediment to application of the doctrine of issue preclusion, at least where there has been no material change of circumstances. Here, there is no suggestion of any change in the relevant circumstances from the time period addressed in the earlier case appealed to this court to the time period at issue in the current appeal. In both the earlier case and this case, the dispositive question was whether a student in a full-time home education program was entitled to services under the IDEA. M.C.G.’s status as a student in a full-time home education program was the same in both cases.

This case thus falls squarely within the purpose of the doctrine of issue preclusion: “preventing] repetitious litigation of what is essentially the same dispute.” Restatement (Second) of Judgménts § 27, cmt. c. Although “there is a lack of total identity between the matters involved in the two proceedings because the events in suit took place at different times,” here “the overlap is so substantial that preclusion is plainly appropriate.” Id. “[I]n the absence of a showing of changed circumstances, a determination that ... a person was [entitled to services under the IDEA] in one year will be conclusive with respect to the next [year] as well.” Id. The appellants thus are precluded from relitigat-ing the issue.

Given our conclusion regarding the pre-clusive effect of the determination made in the case that we previously reviewed, we need not consider whether the unreviewed decision in DOAH case number 03-3200E has preclusive effect.

Conclusion

Based on the determination made in the appellants’ case that we previously considered, we conclude that the appellants’ claim for compensatory speech therapy is barred by the doctrine of collateral estop-pel.

Affirmed.

STRINGER and KELLY, JJ., Concur.

      . 20 U.S.C. § 1400, et seq.

      . "The doctrine of res judicata applies when four identities are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made." Topps v. State, 865 So.2d 1253, 1255 (Fla.2004). Res judicata can also preclude the litigation of claims that "could have been” litigated in a previous case. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank L. PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3344.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Jr., Attorney General, Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

A simple “hearsay” objection fails to preserve the argument that one’s Sixth Amendment confrontation right has been violated. See Mencos v. State, 909 So.2d 349, 351 (Fla. 4th DCA 2005) (“The right of confrontation guaranteed by the Sixth Amendment ‘differs from the kind of protection that is afforded by state evidence rules governing the admission of hearsay.’ ” (quoting Lopez v. State, 888 So.2d 693, 697 (Fla. 1st DCA 2004))).

AFFIRMED.

KAHN, C.J., WOLF and BENTON, JJ., concur.


text:
    David P. KEVER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-4137.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    David P. Kever, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of respondent’s concession of error, the lower tribunal’s order denying the petition for writ of mandamus is quashed. Respondent’s motion for remand is granted and this matter is remanded to the circuit court for consideration of petitioner’s reply. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996).

WEBSTER, DAVIS, and LEWIS, JJ„ concur.


text:
    Cassandra CUFFIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5287.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Cassandra Cuffie, pro se, Petitioner.
    Charlie Crist, Attorney General, Terry P. Roberts and Thomas B. Winokur, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgments and sentences rendered February 9, 2005, in Leon County Circuit Court case numbers 1999-CF-004623A and 1999-CF-005025A, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(B). If petitioner qualifies for the appointment of counsel, the circuit court shall appoint counsel to represent her on appeal.

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


text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Ming-Chen CHANG and Helen Hsiang Chang, Appellees.
    No. 1D06-0628.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Guy E. Burnette, Jr., Tallahassee; Elizabeth K. Russo, Miami, for Appellant.
    Robert M. Loehr, Pensacola; William F. Merlin, Jr., Tampa, for Appellees.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of March 1, 2006, the- Court has determined that the order on appeal is not final because the claims for losses under “other coverages” of the policy, which remain pending in the lower tribunal at this time, appear to be related to the claim resolved by the order on appeal. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WEBSTER, DAVIS, and LEWIS, JJ., concur.


author: SALCINES, Judge.

text:
    Cynthia L. BROOKS, Appellant, v. AVMED, INC., Appellee.
    No. 2D05-4247.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.
    Nathaniel W. Tindall, II, Tampa, for Appellant.
    Gary L. Sanders and David A. Glenny of Bice Cole Law Firm, P.L., Ocala, for Ap-pellee.
   SALCINES, Judge.

Cynthia L. Brooks appeals from an order dismissing two of the three counts of her complaint against AvMed, Inc. Because the dismissed counts do not constitute separate and distinct causes of action which are not interdependent with the remaining count of her complaint, this appeal must be dismissed. See Fla. Lifestyles Realty, Inc. v. Goodwin, 917 So.2d 1060, 1061-62 (Fla. 2d DCA 2006); Pellegrino By and Through Pellegrino v. Horwitz, 642 So.2d 124, 125 (Fla. 4th DCA 1994).

Appeal dismissed.

DAVIS and LaROSE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    David J. BRESCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5641.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.
   NORTHCUTT, Judge.

David J. Bresch appeals the postconviction court’s denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of the motion and remand for the postconviction court to dismiss his motion as successive. See Fla. R.Crim. P. 3.850(f); Zeigler v. State, 632 So.2d 48, 51 (Fla.1993).

WALLACE and LaROSE, JJ., Concur.


author: WARNER, J.

text:
    Kenneth KOLB, Appellant, v. D.L. FUSCO, D. Inman, J. Harris and Florida Department of Corrections, Appellees.
    No. 4D05-1164.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Rehearing Denied May 1, 2006.
    Kenneth W. Kolb, Indiantown, pro se.
    No brief filed on behalf of appellee.
   On Motion for Rehearing

WARNER, J.

We deny the motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

Appellant, a prison inmate, challenges the dismissal of his civil complaint for failure to provide an affidavit of indigency in compliance with section 57.085(2), Florida Statutes (2004). We affirm.

Appellant first filed a petition for mandamus in the trial court (Case No. 04-509 CA) for replacement by the prison system of lost or destroyed personal property. He presented an affidavit of indigency pursuant to section 57.085(2), Florida Statutes. The Clerk of the Circuit Court determined that appellant was indigent, and the court then entered an order requiring monthly payments from appellant’s prison trust account to pay the filing fee in accordance with the statute. Appellant filed an appeal to this court of this order, which we treated as a petition for certiorari (Case No. 4D04-4808) and denied in January 2005, noting that the request to proceed as an indigent was not denied but that the statute requires that the inmate reimburse the clerk for the advancement of the court costs by creating a lien on the prisoner’s trust account.

In the meantime, appellant filed a second civil complaint in circuit court (Case No. 04-571) seeking damages for the loss of personal property (lost shoes) and demanded judgment for damages as well as injunctive relief.' The appellant did not file an affidavit of indigency with this complaint. Although the clerk of court notified the appellant of the deficiency, he failed to correct it by filing an affidavit, and the trial court dismissed his complaint, without prejudice. Appellant could have filed an indigency affidavit and requested reinstatement of his complaint within the time allowed for rehearing, but he did not do so. Because compliance with section 57.085 is mandatory, dismissal was proper. The requirements of section 57.085 must be met for each suit filed by an inmate, as successive filings may require other information. See, e.g., § 57.085(7), Fla. Stat.

Affirmed.

STEVENSON, C.J., and HAZOURI, J., concur.


author: LaROSE, Judge.

text:
    Andre DeQUERVAIN and Esther Maisch, Appellants, v. V. Frank DESGUIN, as the Property Appraiser of Charlotte County, Florida; Vickie Potts, as the Tax Collector of Charlotte County, Florida; and James Zingale, as Executive Director of the Department of Revenue, State of Florida, Appellees.
    No. 2D05-1880.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.

      Albert J. Tiseo, Jr., of McKinley, Itter-sagen, Gunderson & Berntsson, P.A., Port Charlotte, for Appellants.
    John L. Polk, Punta Gorda, for Appel-lees.
   LaROSE, Judge.

Andre DeQuervain and Esther Maisch (the Homeowners) appeal the trial court’s final summary judgment ruling that, because they were not permanent U.S. residents, they were not entitled to a homestead exemption for their Charlotte County home. The Homeowners immigrated from Switzerland and reside legally in the United States. They had lived and worked in Charlotte County for at least five years. They held social security numbers and drivers’ licenses, paid federal income tax, and had filed a Declaration of Domicile in Florida. However, they held only temporary visas. Thus, they could not form the requisite intent to become permanent residents for purposes of the homestead exemption. We affirm.

The Charlotte County property appraiser denied the Homeowners’ application for a 2003 homestead exemption because the Bureau of Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) had not granted them permanent resident status. Their applications for such status, however, were pending.

In their summary judgment motion, the Homeowners asserted that they had satisfied all the requirements of section 196.015, Florida Statutes (2002). Their supporting affidavits stated that they met all the requirements of section 196.012 to prove that they were “permanent residents.” The property appraiser offered no opposing affidavits. The trial court denied the Homeowners’ summary judgment motion and granted Appellees’ motion.

The Florida Constitution affords a homestead exemption to every person who has legal or equitable title to real estate on which he or she maintains a permanent residence. Art. VII, § 6(a), Fla. Const. (1968). The implementing statutes provide, in relevant part, as follows:

196.012 Definitions.
(17) “Permanent resident” means a person who has established a permanent residence as defined in subsection (18).
(18) “Permanent residence” means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred.
196.015 Permanent residency; factual determination by property appraiser.— Intention to establish a permanent residence in this state is a factual determination to be made, in the first instance, by the property appraiser. Although any one factor is not conclusive of the establishment or nonestablishment of permanent residence, the following are relevant factors that may be considered by the property appraiser in making his or her determination as to the intent of a person claiming a homestead exemption to establish a permanent residence in this state:
(1) Formal declarations of the applicant.
(2) Informal statements of the applicant.
(3) The place of employment of the applicant.
(4) The previous permanent residency by the applicant in a state other than Florida or in another country and the date non-Florida residency was terminated.
(5) The place where the applicant is registered to vote.
(6) The place of issuance of a driver’s license to the applicant.
(7) The place of issuance of a license tag on any motor vehicle owned by the applicant.
(8) The address as listed on federal income tax returns filed by the applicant.
(9)The previous filing of Florida intangible tax returns by the applicant.

The Homeowners argue that the property appraiser impermissibly considered their immigration status in denying their application. We disagree. Section 196.015 does not contain an exhaustive list of relevant factors. Rather, it identifies those factors that the property appraiser “may” consider in determining permanent residency for homestead exemption purposes. Compare § 193.011 et seq., Fla. Stat. (2005) (listing factors appraiser “shall” consider in deriving just valuation). The form used to apply for the homestead exemption is not inconsistent:

. The forms shall require the taxpayer to furnish certain information to the property appraiser for the purpose of determining that the taxpayer is a permanent resident as defined in s. 196.012(17). Such information may include, but need not be limited to, the factors enumerated in s. 196.015.

§ 196.121(2) (emphasis added). Therefore, the property appraiser was entitled to consider the Homeowners’ immigration status in denying their application.

The property appraiser contends that without a permanent visa, the Homeowners could not form the requisite intent to reside permanently on the property for which they sought the homestead exemption. We must agree. The Florida Administrative Code provided:

Homestead Exemptions — Residence Requirement.
(1) For one to make a certain parcel of land his permanent home, he must reside thereon with a present intention of living there indefinitely and with no present intention of moving therefrom.
(2) A property owner who, in good faith, makes real property in this state his permanent home is entitled to homestead tax exemption, notwithstanding he is not a citizen of the United States or of this State. (Smith v. Voight, [158 Fla. 366] 28 So.2d 426 (Fla.1946)).
(3) A person in this country under a temporary visa cannot meet the requirement of permanent residence or home and, therefore, cannot claim homestead exemption.

Fla. Admin. Code R. 12D-7.007 (2002) (emphasis added).

In Juarrero v. McNayr, 157 So.2d 79 (Fla.1963), the supreme court held that an alien residing in the United States with a temporary visa “does not have the legal ability to determine for himself his future status and does not have the ability legally to convert a temporary residence into a permanent home.” Id. at 81. The court held that Mr. Juarrero, a Cuban refugee seeking political asylum, could not legally, rightfully, and in good faith make his Florida residence his permanent home. Id. at 80; see also Alcime v. Bystrom, 451 So.2d 1037, 1037-38 (Fla. 3d DCA 1984) (holding alien without permanent visa could not prove intention to become permanent resident for homestead tax exemption purposes notwithstanding twenty years of U.S. residence, ten years of Florida residence, and six years of local government employment); cf. Matter of Cooke, 412 So.2d 340 (Fla.1982) (relying on Juarrero and holding alien without permanent visa could not be permanent Florida resident so as to protect home from judgment creditors under homestead exemption from forced sale); Raheb v. DiBattisto, 513 So.2d 717, 718 (Fla. 3d DCA 1987) (same).

Lisboa v. Dade County Property Appraiser, 705 So.2d 704 (Fla. 3d DCA 1998), acknowledged Juarrero, but observed that “immigration policies of the United States have changed considerably since Juarrero was decided [and that] Mr. Juarrero’s visa today would- not be of a temporary nature.” Id. at 707 (citing Dep’t of Health & Rehabilitative Servs. v. Solis, 580 So.2d 146, 149 (Fla.1991) (“[A]n asylum applicant is present in the United States with no defined end or defined purpose as set out by Congress regarding temporary aliens. The status of the ... family will not change until the family chooses to leave this country or INS acts on the application for asylum.”)). Rather, Mr. Juarrero’s status would be that of one “permanently residing under color of law.” Id.

Under Lisboa, only a limited category of aliens — those with asylum applications pending as of the relevant taxing date — satisfy the homestead residency requirement without having obtained permanent resident status. Id. at 705-07 (citing 8 U.S.C. § 1101(a)(31) (stating that “permanent” means relationship of continuing or lasting nature as distinguished from temporary)); see also Opp. Atty. Gen. Fla. 2005-55 (2005).

Although federal immigration policies may have changed, Juarrero has not been overruled. The property appraiser argues correctly that, at most, Lisboa crafts a limited exemption from Juarrero’s general rule for those homestead exemption applicants who are also seeking political asylum. Lisboa’s narrow holding supports the property appraiser’s position:

The central question presented in this case is whether, as a matter of Florida law, an applicant for political asylum whose application is pending as of the relevant taxing date, is a “permanent resident” for purposes of Florida’s homestead exemption from ad valorem taxation. Based upon our review of Florida law, as well as the expert testimony presented below on the current status of United States immigration law, we answer this question in the affirmative.

Lisboa, 705 So.2d at 706.

We sympathize with the Homeowners, who, apparently, have chosen to make Charlotte County their home. But, because the homestead exemption provides relief from an ad valorem tax, we must construe the statute strictly against them. See Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla.1993) (citing axiom that all tax exemptions are to be construed strictly). Based on our record, we are compelled to abide by the applicable provisions of the Florida Administrative Code and Juarrero, notwithstanding the limited exception, not applicable here, carved out by Lisboa. Accordingly, we affirm the trial court’s final summary judgment.

Affirmed.

STRINGER and SILBERMAN, JJ., concur.


author: ALTENBERND, Judge.

text:
    CHARLOTTE COUNTY PARK OF COMMERCE, LLC, Appellant, v. CHARLOTTE COUNTY, Florida, Appellee.
    No. 2D05-1755.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.

      - Kenneth G. Oertel and Jeffrey Brown of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Appellant.
    W. Cort Frohlich and James D. Gordon, III, of Wilkins, Frohlich, Russell, Hanaoka & Mizell, P.A., Port Charlotte, for Appel-lee.
   ALTENBERND, Judge.

Charlotte County Park of Commerce, LLC (“CCPC”), appeals an order dismissing its petition for writ of mandamus and complaint for declaratory relief with prejudice. CCPC’s petition for writ of mandamus and complaint for declaratory relief sought to enforce certain development rights that it asserted it obtained by virtue of a settlement in prior litigation. The trial court dismissed the entire action because it concluded that the settlement agreement from the prior litigation, which was attached to the complaint, negated the theories alleged by CCPC. Reviewing the complaint and its attachments de novo, we conclude that the primary issue; whether the parties settled a Bert Harris Act claim as part of the settlement, cannot be resolved merely from the face of the pleadings and the attachments thereto. Accordingly, we reverse and remand for further proceedings.

In 2001, Richard Vetter, a real estate developer, bought two adjacent parcels of land in Charlotte County. He intended to develop the land into an industrial park with airside access. The property became an asset of the limited liability corporation, CCPC, of which Mr. Vetter was a principal. .Subsequently, disagreements arose between CCPC and Charlotte County (the “County”) concerning CCPC’s development rights. CCPC sued the County under several theories and obtained a preliminary injunction against the County that required the County to issue a site plan approval to the entity actually' developing the property and to take other steps. The County appealed the preliminary injunction. This court affirmed the, injunction to the extent that it ordered that the County expeditiously proceed to complete the permit application- process but-. reversed in other respects. Charlotte County v. Vetter, 863 So.2d 465 (Fla. 2d DCA 2004). The settlement at issue in this case was achieved at approximately the same time this court issued its opinion. Thus, our earlier opinion did not actually result in further proceedings on remand.

Before it settled the prior lawsuit, CCPC had formally notified the County that it had a' potential cause of action under the Bert Harris Act for deprivation of its vested rights in the' property. The Bert Harris Act provides a cause of action when a law, rule, regulation, or. ordinance established by the state “or a political entity in the state” inordinately burdens real property without amounting to a taking. § 70.001, Fla.- Stat. (2002); Palm Beach Polo, Inc. v. Village of Wellington, 918 So.2d 988, 994-95 (Fla. 4th DCA 2006). The Act was designed to promote settlement, and a claim under the Act requires a presuit procedure. CCPC could not file its Bert Harris claim simultaneously with the suit in the prior litigation because the pre-suit procedure had not been completed.

The presuit procedure had apparently been satisfied by CCPC by the time the two parties entered into the settlement agreement. CCPC had sent the County-notice of its Bert Harris claim along with a valid appraisal on May 7, 2003, as required by the statute. See § 70.001(4)(a). By our calculations, the 180-day notice period triggered by CCPC’s notice of its claim would have expired in November 2003, leaving CCPC free to commence a Bert Harris action about one month before CCPC and the County entered into the settlement agreement.

In the settlement agreement, CCPC and the County addressed the development rights of CCPC and agreed to settle all pending litigation. The settlement agreement also expressly stated in recital “C”:

As a result of the mediation conference, Vetter, ..., CCPC and Charlotte County, hereby enter into this Settlement Agreement to resolve in a fair and reasonable manner all claims and issues in the above-referenced proceedings and in potential future proceedings, including but not limited to, any Bert Harris Act claims under Chapter 70, Florida Statutes, stemming from past actions by Charlotte County.

In paragraph 12 of the settlement agreement, CCPC and the County agreed that CCPC “shall” release the County from

[a]ny and all future claims ... including but not limited to, potential actions under Chapter 70, Florida Statutes, commonly known as the Bert Harris Act, or any other takings claim.

While these provisions might suggest that the parties intended to settle CCPC’s Bert Harris claim, the language of this agreement taken as a whole does not clearly resolve the question. It is at least possible that CCPC released a Bert Harris claim but did not receive any consideration for the release that actually invoked the provisions of the Act. The ambiguity is created, in part, by the parties’ mutual failure to obtain court approval of this settlement.

Approximately ten months after entering into the settlement agreement, CCPC took the position that the settlement agreement was intended to settle its Bert Harris claim and that certain provisions of the agreement contravened the application of “a statute,” requiring the parties to file a joint action in the circuit court to obtain approval of the settlement. See § 70.001(4)(d)(2). The County denied that any such claim had been settled. Thus, on November 23; 2004, CCPC filed its complaint seeking a writ of mandamus to compel the County to file the necessary pleadings to obtain circuit court approval of the earlier settlement. It also sought a declaration of its rights under the Bert Harris Act.

The County moved to dismiss the action, claiming that the parties had not settled a Bert Harris claim because CCPC had not filed a lawsuit for relief under the Bert Harris Act. The trial court dismissed CCPC’s petition for writ of mandamus and complaint for declaratory relief based on its finding that

although Charlotte County had been put on notice of a potential claim pursuant to § 70.001, Fla. Stat., no such claim had been filed at the time the Settlement Agreement was executed. Therefore, the parties did not settle a Bert Harris claim, as alleged by Plaintiff in its Amended Complaint.

The trial court erred in concluding that CCPC did not have a Bert Harris claim that the parties could settle simply because it had not filed suit. Indeed, the Bert Harris Act contemplates the potential resolution of claims made against a governmental entity during the presuit period without resort to suit by the property owner. CCPC had made a Bert Harris claim; it simply had not filed an action with the court for relief under the Bert Harris Act. The trial court’s erroneous ruling on the motion to dismiss prevented further consideration of the parties’ respective rights under the Bert Harris Act.

Because the intent of the settlement agreement is unclear, the dispositive issue in this case cannot be resolved as a matter of law on the face of the complaint. On remand, the trial court must determine whether the settlement agreement was intended to resolve CCPC’s Bert Harris claim. If the trial court concludes that the settlement agreement was intended to settle CCPC’s Bert Harris Act claim, it will probably need to first address the issues raised in the request for declaratory relief before reaching a decision on the petition for writ of mandamus.

Reversed and remanded for further proceedings.

CASANUEVA and SALCINES, JJ., Concur.

      . See § 70.001, Fla. Stat. (2002).

      . Although the parties make no reference to Hurricane Charley, it is probably significant to note that between the first lawsuit and this lawsuit, Hurricane Charley severely damaged property in Charlotte County. It is apparent from the pleadings that the County is now trying to place new zoning restrictions on CCPC's property, which conflict with or are more burdensome than the restrictions contained in the settlement agreement.


text:
    Tony KNIGHTEN a/k/a Toney Knighten, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-697.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Tony Knighten a/k/a Toney Knighten appeals the postconviction court’s denial of his motion to terminate public defender and appoint private counsel and his motion to compel further DNA testing. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D). Because the postconviction court failed to follow our mandate in Knighten v. State, 829 So.2d 249 (Fla. 2d DCA 2002) (Knight-en I), we reverse and remand for further proceedings.

In Knighten I, Knighten appealed the summary denial of his motion for postcon-viction DNA testing, which was filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court had held that Knighten’s motion was facially insufficient. On appeal, this court determined .that his motion sufficiently complied with the pleading requirements of rule 3.853(b), and we remanded for DNA testing. Id. at 250. On remand, the postcon-viction court entered an order granting DNA testing. The Florida Department of Law Enforcement (FDLE) reported that “[t]wo hairs (Exhibit 6A and 6B) removed from Exhibit 6 are not suitable for STR DNA analysis” and that “[n]o serological examinations were performed on Exhibit 7.”

Thereafter, Knighten filed a motion to compel, the denial of which is the subject of this appeal. Knighten argues that the postconviction court, on remand, failed to follow this court’s mandate in Knighten I because no DNA testing was performed. He argues that the FDLE report that the hairs are not suitable for an STR DNA test does not mean that the hairs would not be suitable for other types of DNA tests, such as mitochondrial DNA (mtDNA) testing.

The postconviction court, on remand, treated the motion as a successive motion for postconviction DNA testing filed pursuant to rule 3.853 and denied it. The postconviction court found that Knighten’s motion was facially insufficient under rule 3.853. Then, relying on King v. State, 808 So.2d 1237, 1249 (Fla.2002), it determined that there is no statute or rule requiring additional DNA testing.

The postconviction court erred in denying Knighten’s motion as an insufficiently pleaded rule 3.853 motion. Knighten’s original rule 3.853 motion was determined facially sufficient in Knighten I, 829 So.2d at 252. Knighten did not need to reassert the required contents of rule 3.853 in order to compel the postconviction court to order DNA testing pursuant to our mandate in Knighten I.

Further, the postconviction court, on remand, misapplied King, a death-penalty case involving a request for first-time DNA testing of a hair fragment and three hairs found in a pubic hair combing and for retesting of fingernail scrapings. See King, 808 So.2d at 1246-47. The supreme court in King affirmed the postconviction court’s denial of relief as to the hair fragment and the pubic hair combings because there was not a reasonable probability that DNA testing would lead to acquittal or a lesser sentence. Id. at 1247-48. In Knighten I, this court held “that a claim is facially sufficient with regard to the exoneration issue if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial” and concluded that Knighten had pleaded a facially sufficient claim for relief under rule 3.853. See Knighten I, 829 So.2d at 252. Thus, unlike the situation in King, the facts in Knight-en’s case satisfied the reasonable probability test.

Additionally, the supreme court in King also affirmed the postconviction denial of relief as to the retesting of the fingernail scrapings, a denial which had been based on the postconviction court’s finding that STR DNA testing, which had already been performed, was the only testing method of fingernail scrapings. King, 808 So.2d at 1248. King had challenged the accuracy of the test performed. The supreme court ruled that “[t]here is no provision in the statute or the rule for re-testing once testing has been done by FDLE.” Id. (emphasis supplied). Knighten has not challenged the accuracy of the test but rather complains that no DNA testing was actually performed.

Technically, the FDLE laboratory has yet to actually test the DNA in this case since it only attempted STR DNA testing, for which the hairs were not suitable. Neither the FDLE nor the postconviction court made any attempts to determine whether the two pubic hairs were unsuitable for all forms of DNA testing available. Although rule 3.853 and section 925.11, Florida Statutes (2004), do not delineate which form of DNA testing should be performed, this does not mean that the post-conviction court is only limited to STR DNA testing, particularly when there are other means of DNA testing that have been judicially accepted. See Magaletti v. State, 847 So.2d 523 (Fla. 2d DCA 2003) (ruling that the use of mtDNA testing to prove identity meets the test in Frye v. United States, 293 F. 1013 (D.C.Cir.1923)). In fact, it is reasonable to conclude that if another, more suitable test could exonerate Knighten, the more suitable test should be performed.

On remand, the postconviction court should conduct a hearing to determine whether the pubic hairs are suitable for other accepted forms of DNA testing. Because the postconviction court based its denial of Knighten’s motion to terminate public defender and appoint private counsel on the denial of his motion to compel, the postconviction court should also consider the merits of his motion on remand.

Reversed and remanded.

NORTHCUTT and DAVIS, JJ., Concur.


author: WHATLEY, Judge.

text:
    Jerry Stephen LINKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5772.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Jerry Links appeals his convictions and sentences pursuant to jury verdicts of possession of methamphetamine and possession of drug paraphernalia. We reverse.

The evidence adduced at trial revealed that Deputy Angulo stopped Links for speeding on the night of February 19, 2004. Deputy Angulo asked Links if he had any illegal narcotics, stolen property, or weapons in the vehicle, and Links said he did not. The deputy then asked Links for permission to search the truck, and Links gave him consent to do so. Deputy Angulo found a pipe with methamphetamine residue in the glove box of the truck next to a court notice for Links to appear regarding a traffic violation. The notice was sent to Links on January 8, and the court date was January 27, which was more than three weeks prior to the stop. Links testified that the pipe was in a red rag, but the deputy testified that he could not remember whether there was a rag. Deputy Angulo found another pipe with methamphetamine residue in a toolbox located in the bed of the truck. Both pipes were very small clear glass tubes; they were not traditional tobacco pipes. The truck belonged to Links’ boss, who had given him permission to use it to visit a friend. The truck was a company truck, and the toolbox was also company property. They were both used by eight to fifteen other employees of the stucco company. Links’ and the deputy’s testimony conflicted over whether Links told Angulo that he was the primary user of the truck and the toolbox. Links testified that he did not know that the pipes were in the glove box and the toolbox, but the other employees could have left them in those locations. Deputy Angulo testified that Links did not appear to be under the influence of drugs or alcohol.

To prove constructive possession of a controlled substance, the State must prove beyond a reasonable doubt that the defendant knew of the presence of the contraband and was able to exercise dominion and control over it. See Diaz v. State, 884 So.2d 387 (Fla. 2d DCA 2004). Knowledge of the illicit nature of the controlled substance is no longer required. § 893.101, Fla. Stat. (2003). At the conclusion of the State’s case and at the conclusion of all the evidence, Links moved for judgment of acquittal, arguing that he had no knowledge of the presence of the contraband. The trial court erred in denying Links’ motions because the State failed to present substantial, competent evidence that Links knew of the presence of the pipes. The pipes were found in a company truck that was used by anywhere from eight to fifteen other employees. The only evidence connecting Links to the pipes was the court notice sent to him that was next to the pipe in the glove box. However, that notice was for a court date more than three weeks prior to the stop. The State presented no evidence of when Links put the notice in the glove box or whether the pipe was in the glove box when he did so and he knew of its presence. Accordingly, we reverse Links’ convictions.

Reversed.

ALTENBERND, J., Concurs.

KELLY, J., Concurs in result only. •


author: CASANUEVA, Judge.

text:
    VARIABLE ANNUITY LIFE INSURANCE CO., Appellant, v. Jeffrey HAUSINGER, Appellee.
    No. 2D05-5305.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.

      Charles Wachter, Hala Sandridge, and Katherine C. Lake of Fowler White Boggs Banker, P.A., Tampa; and Larry S. Poz-ner and Anthony L. Giacomini of Hoffman Reilly & Pozner LLP, Denver, CO, for Appellant.
    Robert B. Gough, III, of Hill, Ward & Henderson, P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

Variable Annuity Life Insurance Co. (VALIC) appeals from an order denying its motion for preliminary injunction against its former employee, Jeffrey Hau-singer. Because the trial court erred as a matter of law when it rejected the statutory presumption of irreparable harm that applies in a case like this, we reverse.

VALIC employed Jeffrey Hausinger to sell annuity products to Hillsborough County school system employees. When Mr. Hausinger first went to work for the company in February 2002, he signed a registered representative agreement acknowledging that he was an at-will employee. In consideration for access to certain confidential and proprietary information of his employer, Mr. Hausinger agreed not to disclose trade secrets — including customer identities and account information — at any time after his termination and not to disclose or use any confidential and proprietary information for a period of two years after termination. Mr. Hausinger further agreed that, in the event of termination and for one year thereafter, he would not solicit directly or indirectly any customers who had been assigned to him within one year preceding his departure. Finally, he agreed to in-junctive relief if he violated these provisions of his employment contract.

In August 2005, Mr. Hausinger left VALIC and went to work with Merrill Lynch. At the time of his resignation, Mr. Hausinger had more than a thousand VALIC clients. Within a short time after Mr. Hausinger departed, VALIC discovered that he was soliciting VALIC customers on behalf of Merrill Lynch. VALIC also discovered that prior to his departure, Mr. Hausinger had downloaded confidential customer information and trade secrets from his multiple password-secured VAL-IC laptop onto a portable flash drive and had taken the information with him to Merrill Lynch. Approximately ten days after VALIC’s demand, Mr. Hausinger returned the flash drive; within a few more days, Mr. Hausinger returned a box containing over three hundred client files, confidential paperwork, and VALIC forms.

Within two weeks after Mr. Hausinger’s departure, VALIC discovered that he had been soliciting certain “premium” clients who had large sums of money to roll over into a Merrill Lynch account. VALIC ultimately pinpointed at least seven former clients who rolled their accounts over to Merrill Lynch, the combined assets of which were over a million dollars.

VALIC immediately moved for preliminary injunction, contending that Mr. Hau-singer had violated an enforceable nonsoli-citation agreement and that VALIC had suffered and would continue to suffer irreparable injury from Mr. Hausinger’s breach, for which there was no adequate remedy at law. In its motion for preliminary injunction, VALIC pleaded the operation of section 542.335(l)(j), Florida Statutes (2005), which creates a presumption of irreparable harm upon violation of an enforceable restrictive covenant: “A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of the restrictive covenant.”

Quoting directly from the statute, this court analyzed section 542.335(1)0 in America II Electronics, Inc. v. Smith, 830 So.2d 906, 908 (Fla. 2d DCA 2002), and held that “a party seeking to enforce a restrictive covenant by injunction need not directly prove that the defendant’s specific activities will cause irreparable injury if not enjoined. Rather, the statute provides that ‘[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.’ ” In this case, the trial court recognized that the statute operates to create a presumption of irreparable injury to the employer and that the burden shifted to Mr. Hau-singer to establish the absence of such injury. However, because VALIC presented evidence as to the actual damages it had suffered as to seven specific clients, the trial court concluded that legal damages were sufficient to compensate VALIC and that it had not suffered irreparable harm.

In our view, the trial court misunderstood the statutory presumption. It is true that money damages were ascertainable as to some clients that Mr. Hausinger admittedly solicited. But the harm presumed under the statute includes the potential damage to VALIC’s longstanding relationships with its customers and the protection of confidential client information. A federal district court in Florida’s Middle District commented upon the irreparable harm presumption in North American Products Corp. v. Moore, 196 F.Supp.2d 1217, 1230-31 (M.D.Fla.2002):

The focus of preliminary injunctive relief is on maintaining long standing relationships and preserving the goodwill of a company built up over the course of years of doing business....
Plaintiffs [sic] argument that there is no irreparable harm because Plaintiffs injuries, if any, are subject to a monetary judgment, is equally without merit and has been rejected by other courts, where, as here, there is a statutory presumption of irreparable harm.

The North American Products court cited Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hagerty, 808 F.Supp. 1555, 1559 (S.D.Fla.1992), which emphasized the presumption of harm in a case like this one, involving breach of a noncompetition agreement by copying sensitive information from an employer’s computer and soliciting from the former employer’s clientele:

Florida courts have repeatedly held that injunctive relief is appropriate where customer lists are involved. In Carnahan v. Alexander Proudfoot Co., 581 So.2d 184 (Fla. 4th Dist.Ct.App.1991), the court found that even if irreparable injury was not presumed, copying computer disks and soliciting clients would cause irreparable harm. Under the current facts and statute, however, irreparable injury actually is presumed. Moreover, the Florida Supreme Court has held repeatedly that where a Defendant has breached a covenant not to compete “[t]he Court may award damages ... but the normal remedy is to grant an injunction. This is so because of the inherently difficult task of determining just what damage is actually caused by the employee’s breach of the agreement.” Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974).

The trial court correctly found that VALIC had established a prima facie case and recognized that irreparable injury was presumed. It erred, however, by finding that Mr. Hausinger had rebutted that presumption through VALIC’s demonstration of its known financial losses up until the date of the hearing. Because the court erred as a matter of law, we reverse the denial of the motion for preliminary injunction and remand for further proceedings.

WHATLEY and WALLACE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    GULF SHORES, L.L.C., Appellant, v. RIVERWOOD COMMUNITY DEVELOPMENT DISTRICT, Joseph and Patricia J. Bartkus, Nancy Diasparra, Antonion Innarelli, Patrick Leonard, S & B Cutter, Barbara McDonald, Joseph Bush, Elizabeth O’Brien, William Mack, Thorton Ivenor, Daniel Mehlman, Harry Knobloch, Teddy Gibula, Richard Holden, Randolph Rebhan, Edward Furstein, Robert Crosby, and Robert Fegan, Appellees.
    No. 2D05-3034.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
    Warren R. Ross of Wotitzky, Wotitzky, Ross, Goldman, Sturges & Tuttle, P.A., Punta Gorda, for Appellant.
    Andrew H. Cohen of Hankin, Persson, Davis, McClenathen & Darnell, Sarasota, for Appellee Riverwood Community Development District.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Gulf Shores, L.L.C., appeals a judgment for attorneys’ fees and costs entered in favor of Riverwood Community Development District. Because Riverwood failed to timely serve a motion for fees and costs pursuant to Florida Rule of Civil Procedure 1.525, we reverse.

Riverwood sued Gulf Shores under various theories. Ultimately, the parties entered into a settlement stipulation that states in pertinent part as follows:

7. Gulf Shores stipulates as to the District’s entitlement to reasonable attorney fees and taxable costs. The amount of the reasonable attorney fees and taxable costs will be determined by the Court.
12. Upon entry of the Order by the Court approving this Stipulation and upon all parties fully complying-with the terms of this Stipulation, the respective parties shall waive and release all claims, if any, that they may currently have against each other and/or its officials, employees and consultants, for any matter from the beginning of time to the present, including without limiting the generality of the foregoing, any and all claims for costs, expenses and attorney’s fee incurred in this action (except Gulf Shores has agreed to payment of attorney fees and costs to the District as referenced in paragraph 7 above).

On March 28, 2005, Riverwood filed a notice of hearing for June 6, 2005, concerning “Plaintiffs Attorneys Fees and Costs.” On March 31, 2005, the trial court entered an order approving the settlement stipulation, adopting the stipulation as an order of the court, and dismissing the lawsuit. In its order, the court stated that “[e]xcept as otherwise provided in the Stipulation, each party to bear its own costs and attorneys’ fees” and that it retained “jurisdiction over the parties and subject matter so as to give the terms and provisions of this Stipulation and Order full force and effect and to otherwise enforce the terms of the parties’ Stipulation.”

On June 2, 2005, Riverwood filed a “Memorandum of Law in Support of Request for Attorney’s Fees,” and on June 6, 2005, Gulf Shores filed a memorandum in opposition to the request for fees and costs. Also on June 6, the trial court held a hearing concerning fees and costs. In its memorandum and at the hearing, Gulf Shores argued that Riverwood was precluded from recovering fees and costs because Riverwood did not serve a motion for fees and costs within thirty days of the order dismissing the case as required by rule 1.525. Riverwood responded that the settlement stipulation established its entitlement to fees, with only the amount left to be determined. Gulf Shores replied that the stipulation did not waive compliance with rule 1.525 and that Riverwood did not comply with the rule. The trial court rejected Gulf Shores’ argument and ■awarded fees and costs to Riverwood.

Rule 1.525 states as follows: “Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Gulf Shores argues on appeal that the fee and cost judgment must be reversed because Riverwood never served a motion in compliance with rule 1.525.

The stipulation reflects that the parties did not address rule 1.525 or agree to waive the rule’s requirements. This court has previously held that “[r]ule 1.525 is a bright-line rule that must be applied strictly.” Caldwell v. Finochi, 909 So.2d 976, 978 (Fla. 2d DCA 2005); see also Nicoletti v. Nicoletti, 902 So.2d 215, 216 (Fla. 2d DCA 2005); Lyn v. Lyn, 884 So.2d 181, 182 (Fla. 2d DCA 2004). Even if a trial court enters an order finding that a party is entitled to fees but reserving jurisdiction to determine the amount, the party must still serve a timely motion under rule 1.525. Caldwell, 909 So.2d at 978. But see Hart v. City of Groveland, 919 So.2d 665, 669 (Fla. 5th DCA 2006) (questioning “whether it makes sense to require a motion” under rule 1.525 when a court enters a judgment granting fees and costs “and all that remains is a determination of the reasonable amount”). In Molloy v. Flood, 884 So.2d 256 (Fla. 2d DCA 2004), this court also determined that service of a notice of hearing instead of a motion for fees and costs is not sufficient to comply with the rule.

Here, the fact that the parties stipulated to entitlement did not satisfy the requirements of rule 1.525. To the extent Riverwood wished to obtain a judgment for fees and costs, it was obligated to serve a motion within thirty days after the filing of the order dismissing the case.

As we have done previously, we note that other appellate courts have held that a judgment reserving jurisdiction to award fees and costs automatically extends the time to file a rule 1.525 motion. See Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004), review granted, 903 So.2d 190 (Fla.2005); Fisher v. John Carter & Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004). To the extent our holding conflicts with those decisions, we certify conflict.

Because Riverwood failed to timely serve a motion pursuant to rule 1.525, we reverse the judgment awarding attorneys’ fees and costs. In light of our decision, the other issues argued by Gulf Shores are moot.

Reversed; conflict certified.

CASANUEVA and STRINGER, JJ„ Concur.


author: STRINGER, Judge.

text:
    Alberto GUERRA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2401.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
   STRINGER, Judge.

Alberto Guerra appeals the denial of his motion to correct jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

Guerra claims that his written sentencing order does not conform to the trial court’s oral pronouncement of sentence. Specifically, Guerra alleges the written sentencing order does not reflect the amount of jail credit that the trial court awarded in its oral pronouncement of sentence. Such claim is cognizable under rule 3.800(a). Hunter v. State, 846 So.2d 1227, 1228 (Fla. 2d DCA 2003); Watts v. State, 790 So.2d 1175, 1176 (Fla. 2d DCA 2001); Williams v. State, 744 So.2d 1156, 1156 (Fla. 2d DCA 1999). If a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement. Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003).

In denying Guerra’s motion, the post-conviction court appears to have ruled that Guerra was not entitled to the specific credit requested. The postconviction court did not address the issue of whether the written sentence conformed to the oral pronouncement, and our record does not contain the transcript of the sentencing hearing. Therefore, we reverse and remand for the postconvietion court to review the record and determine whether there is a discrepancy between the oral pronouncement and the written sentencing order. Watts, 790 So.2d at 1176; Williams, 744 So.2d at 1156. If a discrepancy exists, the written sentence must be corrected to conform to the oral pronouncement. Id. If the postconviction court again denies Guerra’s claim, it must attach those portions of the record that conclusively refute the allegation. Id.

Reversed and remanded.

SILBERMAN and CANADY, JJ., Concur.


text:
    Nathan CUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4678.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
   SALCINES, Judge.

Nathan Cutler challenges the postcon-vietion court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The State candidly concedes that because Cutler successfully completed a boot camp operated by the Department of Corrections, the trial court erred in sentencing him to a term of imprisonment in excess of 364 days after Cutler violated his youthful offender probation. See Bloodworth v. State, 769 So.2d 1117, 1118 (Fla. 2d DCA 2000). Accordingly, we reverse and remand for resentencing.

On September 17, 2001, the trial court sentenced Cutler in cases 99-17534 and 01-2064 as a youthful offender to concurrent terms of four years’ incarceration followed by two years’ probation. On July 2, 2002, Cutler finished boot camp and his sentences were modified to five years’ youthful offender probation pursuant to section 958.045(5)(c), Florida Statutes (1999, 2001). On May 15, 2004, the trial court found Cutler in violation of probation in both cases. As a result, the trial court sentenced him to seventy-five months’ incarceration in one case and to terms of seventy-five months and sixty months’ incarceration in the second case. All the sentences were to be served concurrently.

In his rule 3.800(a) motion, Cutler alleged that because he successfully completed boot camp, sections 958.04(2)(b) and 958.045(5)(c) limit his prison exposure to 364 days upon violation of youthful offender probation. See Bloodworth, 769 So.2d at 1118. But see Holmes v. State, 899 So.2d 432 (Fla. 3d DCA 2005) (holding sections 958.04(2)(b) and 958.045(5)(c) do not apply to a defendant who was committed to a boot camp not operated by the Department of Corrections); Lee v. State, 884 So.2d 460 (Fla. 4th DCA 2004) (same). The postconviction court did not agree. Citing section 958.14, it determined that because Cutler’s probation was revoked based on a substantive violation, it could sentence Cutler to the maximum sentence authorized for the offenses for which he was on probation. This rationale was rejected in Mims v. State, 871 So.2d 1003, 1004 (Fla. 1st DCA 2004), which held that section 958.045(5)(c) rather than section 958.14 controlled when a youthful offender had violated probation following successful completion of boot camp.

Accordingly, we reverse and remand for Cutler to be resentenced in both cases in accordance with section 958.04(2)(b) and 958.045(5)(c) to a total of 364 days’ imprisonment with credit for time served.

Reversed and remanded for resentenc-ing.

WHATLEY and SILBERMAN, JJ., Concur.

      . "Boot camp” refers to the youthful offender basic training program per section 958.045, Florida Statutes.


text:
    Ralph A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D05-4344, 2D05-5701.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
   LaROSE, Judge.

Ralph A. Johnson appeals the postcon-viction court’s orders denying two of his motions to correct illegal sentences filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because his two rule 3.800(a) motions concern the same claim, we consolidate his appeals sua sponte. The postconviction court determined that Mr. Johnson’s sentences did not violate the Prison Releasee Reoffender Punishment Act (PRR), § 775.082(9)(a), Fla. Stat. (1999). We reverse and remand for resen-tencing.

In 1999, a jury convicted Mr. Johnson of robbery and battery on a person sixty-five years of age or older. For the robbery count, the trial court sentenced Mr. Johnson as a habitual felony offender (HFO), see § 775.084(1), Fla. Stat. (1999), to thirty years in prison, suspended after fifteen years, with the remainder to be served on probation. This was a true split sentence. The trial court also imposed a concurrent fifteen-year mandatory minimum sentence under the PRR. For the battery count, the trial court sentenced Mr. Johnson as an HFO to a concurrent ten-year prison term.

Mr. Johnson argues that the sentences for the robbery count violate the PRR because the incarceration period for each sentence is equal. See Grant v. State, 770 So.2d 655 (Fla.2000). Mr. Johnson’s claim meets the definition of an illegal sentence under Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). Because Mr. Johnson’s total HFO sentence (thirty years) exceeds his total PRR sentence (fifteen years), the postconviction court found Mr. Johnson’s sentences to be legal. We disagree.

In Grant, the defendant argued that his concurrent fifteen-year HFO and PRR sentences for sexual battery violated his double jeopardy rights. Id. at 657. The supreme court rejected this argument. Id. at 658. However, the supreme court concluded that the sentences violated the PRR because the HFO and PRR sentences were equal in length. Id. at 659. The supreme court observed that, under the PRR, “ ‘[njothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to [the HFO statute] or any other provision.’ ” Id. at 658 (citing § 775.082(8)(c), Fla. Stat. (1997), now § 775.082(9)(c)) (emphasis supplied). Consequently, concurrent HFO and PRR sentences for the same offense are permissible when the incarceration period of the HFO sentence exceeds the PRR sentence. Id. at 658-59.

The sentences in Grant involved equal periods of incarceration under the HFO and PRR. Grant’s reasoning is equally applicable to a true split sentence. We reiterate, section 775.082(9)(c) provides that “[njothing in-this subsection shall-prevent a court from imposing a greater sentence of incarceration as authorized by law....” Thus, if the incarceration portion of an HFO sentence does not exceed the PRR sentence, the sentences violate the PRR. See Grant, 770 So.2d at 659; Morales v. State, 901 So.2d 1032, 1033 (Fla. 2d DCA 2005).

Because the incarceration portion of Mr. Johnson’s HFO sentence equals his PRR sentence, we reverse and remand for re-sentencing.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

      . A true split sentence "consist[s] of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion.” Poore v. State, 531 So.2d 161, 164 (Fla.1988), superseded by statute on other

        grounds as recognized in Crews v. State, 779 So.2d 492 (Fla. 2d DCA 2000).


text:
    Frances L. BLAND, by and through her Daughter and Next Friend, Sharon COKER, Appellant, v. HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, d/b/a Heartland of Zephyrhills, Appellee.
    No. 2D05-3107.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.

      Valeria Hendricks and Thomas S. Harmon of Davis. & Harmon, P.A., Tampa, for Appellant.
    John R. Blue, Sylvia H. Walbolt, Matthew J. Conigliaro, and Henry G. Gyden of Carlton Fields, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Frances Bland seeks review of a nonfi-nal order granting Health Care and Retirement Corporation of America’s (HCR’s) motion to dismiss and to compel arbitration. We have jurisdiction. Fla. R.App. ■ P. 9.130(a)(3)(C)(iv). We affirm the trial court’s order.

Mrs. Bland was admitted to Heartland of Zephyrhills, an HCR nursing home, in October 2002. As is increasingly unfortunate in an area with an aging population, Sharon Coker, Mrs. Bland’s daughter, admitted her to Heartland because she could no longer care for her mother in her home. Four days after Mrs. Bland’s admission, Ms. Coker signed a number of documents, including an arbitration and limitation of liability agreement (the Agreement) on her mother’s behalf. The Agreement was worded clearly, conspicuous and separate from other documents Ms. Coker signed. Subsequently, Ms. Coker sued HCR in circuit court, seeking damages and other relief on her mother’s behalf for HCR’s alleged violation of the Nursing Home Residents’ Rights Act. §§ 400.022, - .023, Fla. Stat. (2001). HCR moved to dismiss the lawsuit and to compel arbitration.

The Agreement provides, in part, as follows:

A. ARBITRATION PROVISIONS
1.1 Any and all claims or controversies between the Facility and the Resident arising out of or in any way relating to the Resident’s stay at the Facility, including disputes regarding interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428', 400.429 ...), shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Florida Arbitration Code, Florida Sta-tu[t]es §§ 682.01, et. seq., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this Agreement.
* * *
B. LIMITATION OF LIABILITY PROVISION: Read Carefully Before Signing.
1.1 The parties to this Agreement understand that the purpose of this “Limitation of Liability Provision” is to limit, in advance, each party’s liability in relation to this Agreement.
1.2 Liability for any claim brought by a party to this Agreement against the other party, ... including, without limitation, claims for medical negligence or violation(s) of Florida Statutes §§ 400.022, et. seq., arising from simple or gross negligence, shall be limited as follows:
1. Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, off-set by any collateral source payments; any outstanding liens shall be satisfied from the damages awarded.
2. Non-economic' damages shall be limited to a maximum of $250,000.
3. Interest on unpaid nursing home charges shall not be awarded.
4. Punitive damages shall not be awarded.

Other provisions of the Agreement limit discovery. HCR is obligated to pay all of the arbitrator’s fees and costs. Under the Agreement, the parties also waived any right to recover attorneys’ fees or costs. Any arbitration between the parties would occur in Pasco County before a single arbitrator who must be a retired judge or a ten-year member of The Florida Bar. The Agreement obligates the arbitrator to apply the Florida evidence and civil procedure rules. Moreover, the Agreement specifically provides that any arbitration award must be consistent with Florida law. The Agreement states that the arbitrator’s award will be final and binding without any appeal except as provided by Florida law. See § 682.13(l)(a)-(e), Fla. Stat. (2001); Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328-29 (Fla.1989). Mrs. Bland had a three-day revocation period in which to cancel the Agreement. Neither she nor Ms. Coker exercised that right.

The remedies available to Mrs. Bland, should she prevail in any arbitration against HCR, are fewer than those to which she would be entitled in a circuit court lawsuit under the Nursing Home Residents’ Rights Act. For example, punitive damages are available as a possible remedy under the statute. §§ 400.0237(2), .0238. Attorneys’ fees are available in limited circumstances. §§ 400.023(1), .0238(2). The statute does not cap noneconomic damages. § 400.023-.0238.

In the trial court, Mrs. Bland argued that the Agreement was procedurally and substantively unconscionable. On appeal, she contends that the remedial limitations violate public policy. We hold that the trial court properly determined that the Agreement was not unconscionable. As for Mrs. Bland’s public policy argument, we conclude that the arbitrator may address the validity and enforceability of the Agreement’s remedial limitations.

In assessing the enforceability of an arbitration agreement, we consider (1) whether there is a valid written agreement to arbitrate, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The validity of the arbitration agreement is the sole issue before us.

The trial court properly rejected Mrs. Bland’s argument that the Agreement was procedurally and substantively unconscionable. On this point, we review the trial court’s factual findings under a competent, substantial evidence standard and its application of the law to the facts de novo. Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284 (Fla. 1st DCA 2003).

To succeed on an unconscionability claim, Mrs. Bland must demonstrate both procedural and substantive uncon-scionability. Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264-65 (Fla. 2d DCA 2004); Belcher v. Kier, 558 So.2d 1039, 1040 (Fla. 2d DCA 1990); see also Weston, 857 So.2d at 284. Procedural un-conscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability to know and understand the disputed contract terms. Petsch, 872 So.2d at 265; Weston, 857 So.2d at 284. Substantive unconscionability, on the other hand, requires an assessment of whether the contract terms are “so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” Weston, 857 So.2d at 285. A substantively unconscionable contract is one that “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Kier, 558 So.2d at 1044 (quoting Hume v. United States, 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889)).

In her trial court affidavit, Ms. Coker stated that she signed the Agreement, together with several other documents, at Heartland four days after her mother’s admission. The Agreement was a separate document and there is no suggestion that HCR hid its terms from Ms. Coker. See Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). Nonetheless, she claimed that no one explained what she was signing or what would happen if she refused to sign. Ms. Coker, who had a limited formal education, claimed that she did not know what arbitration meant.

Karen Walsh, Heartland’s admissions director, testified through deposition that she spent approximately two hours with Ms. Coker on the day Ms. Coker signed the Agreement and other documents. Ms. Coker had ample opportunity that day to review and ask questions about any of the documents. Ms. Coker was not rushed or forced to sign the Agreement. Furthermore, Mrs. Bland’s continued stay at Heartland was not conditioned on Ms. Coker signing the Agreement. Ms. Walsh’s customary practice was to advise residents or those acting on their behalf that they could choose whether or not to sign the Agreement. Refusal to sign would not have led to Mrs. Bland’s expulsion from Heartland.

Nothing in the record indicates that Ms. Coker questioned any provision of the Agreement while meeting with Ms. Walsh. Even during the three-day revocation period, it appears that Ms. Coker sought no advice concerning documents that she now claims she did not understand. See Weston, 857 So.2d at 288. HCR prevented no such action by Ms. Coker.

We cannot agree with Mrs. Bland’s contention that procedural unconscionability is evident. The totality of the circumstances before the trial court demonstrates that Ms. Coker, acting for her mother, had a meaningful opportunity to review the Agreement and to accept or reject its terms before she signed it. Moreover, she did not obtain further guidance about or reconsider her decision during the revocation period. Ms. Coker’s limited education and apparent failure to consider carefully the Agreement cannot, on the record before us, compel a conclusion that she was forced to accede to a proeedurally unconscionable arrangement. See Weston, 857 So.2d at 284.

Mrs. Bland’s reliance on Romano v. Manor Care, Inc., 861 So.2d 59, 60-63 (Fla. 4th DCA 2003), review denied, 874 So.2d 1192 (Fla.2004), is unavailing. In Romano, the elderly husband of a nursing home resident signed an arbitration agreement shortly after his wife’s admission and after being told that he had to sign it. The court concluded that -the circumstances surrounding execution of the arbitration agreement demonstrated some quantum of procedural unconscionability. Id. at 62; see also Prieto v. Healthcare & Ret. Corp. of Am., 919 So.2d 531 (Fla. 3d DCA 2005) (holding agreement unconscionable where father was enroute from hospital to nursing home, and daughter was told to execute documents before he arrived). Notably, Romano employed a “sliding scale” approach to testing the un-conscionability of an arbitration agreement. Romano, 861 So.2d at 62. Under this standard, a high degree- of substantive unconscionability coupled with, even scant evidence of procedural unconscionability renders an arbitration agreement unenforceable. Id. Romano concluded that the limitations on the remedies available to the nursing home resident abrogated statutory rights and, consequently, rendered the arbitration agreement a contract of “egregious substantive unconscionability.” Id. at 64.

This court, however, eschews the “sliding scale” approach. Rather, we assess procedural unconscionability and substantive unconscionability independently. Petsch, 872 So.2d at 265 (citing Eldridge v. Integrated Health Servs., Inc., 805 So.2d 982 (Fla. 2d DCA 2001)). Having concluded that the trial court properly determined that the Agreement was not procedurally unconscionable, we need not address the issue of substantive unconscionability. Id.; Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1027 (Fla. 4th DCA 2005) (finding no need to address substantive unconscionability where there 'is finding that procedural unconscionability is lacking).

Although our precedent precludes us from assessing the remedial limitations under the substantive unconsciona-bility rubric, we recognize Mrs. Bland’s separate contention that those limitations violate public policy as expressed in the Nursing Home Residents’ Rights Act. Public policy and unconscionability concerns, albeit based on similar facts, are distinct issues. Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 299 (Fla. 4th DCA), review denied, 917 So.2d 195 (Fla.2005). Mrs. Bland raised this argument in a trial court memorandum opposing HCR’s motion to dismiss and to compel arbitration. She did not advance this argument at the motion hearing, however. Consequently, the trial court did not rule on the issue.. See Miller v. Miller, 709 So.2d 644, 645 (Fla. 2d DCA 1998) (holding court cannot address on appeal appellant’s issue not ruled upon by trial-court); Philip J. Padovano, Florida Appellate Practice § 8.1, at 144 (2006 ed.). Despite the absence of a specific ruling, we are, nonetheless, compelled to address an -issue that is becoming a recurrent -.theme in cases brought before the district courts of appeal.

We are mindful that some courts, on public policy grounds, have refused to enforce remedial limitations in nursing home arbitration or have refused totally to order arbitration where such restrictions are present. See Blankfeld, 902 So.2d 296; Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333 (Fla. 4th DCA 2005). The remedial limitations in nursing home arbitration may be troubling to some. After all, the Nursing Home Residents’ Rights Act is “[a] remedial statute ... designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good.” Lacey, 918 So.2d at 334. Unquestionably, the legislature enacted the statute to protect some of Florida’s most vulnerable residents. § 400.011; Romano, 861 So.2d at 63; Mang v. Country Comfort Inn, Inc., 559 So.2d 672, 673 (Fla. 3d DCA 1990). Arguably, therefore, the Agreement’s remedial limitations undermine the statute’s salutary purposes. While superficially appealing, the argument is too facile.

We also must recognize that Florida public policy favors arbitration. Petsch, 872 So.2d at 263; Maguire v. King, 917 So.2d 263 (Fla. 5th DCA 2005). Nothing in the Nursing Home Residents’ Rights Act reflects a legislative hostility to arbitration. Moreover, as a general proposition, a party may waive statutory rights. Unicare Health Facilities, Inc. v. Mart, 553 So.2d 159, 161 (Fla.1989); see also Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755 (Fla. 2d DCA 2005). The Nursing Home Residents’ Rights Act does not expressly prohibit a contractual waiver or limitation of statutory rights. Cf. Holt v. O’Brien Imports of Fort Myers, Inc., 862 So.2d 87, 90 (Fla. 2d DCA 2003) (noting statute prohibited fee waiver). The legislature could have included such a restriction in the Nursing Home Residents’ Rights Act. Petsch, 872 So.2d at 261; see, e.g., § 769.06 (prohibiting contracts limiting liability in context of fellow servant act as illegal and void). Accordingly, a compelling argument can be made that, absent a legislative restriction, the courts should honor a party’s decision to contract away statutory protections. See §'400.151(2) (stating that nursing home contract shall include “any other matters which the parties deem appropriate”).

Despite these competing, and compelling, arguments, once the trial court completes its three-prong task under Seifert, 750 So.2d at 636, we see no reason why the arbitrator, in the first instance, cannot decide whether to enforce the remedial limitations. Kaplan, 915 So.2d at 761; Petsch, 872 So.2d at 264; Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86 (Fla. 2d DCA) (noting that arbitrator should in first instance decide validity of remedial restrictions in arbitration provision), review denied, 908 So.2d 1057 (Fla.2005). Such a determination is well within the arbitrator’s ken. Buckeye Check Cashing v. Cardegna, — U.S. -,-, 126 S.Ct. 1204, 1210, 163 L.Ed.2d 1038 (2006) (holding that regardless of whether challenge is brought in federal or state court, challenge to validity of contract as whole, and not specifically to arbitration clause, must go to arbitrator).

The arbitrator can assess the public policy concerns in the context of a fully developed factual record. Conceivably, the evidence presented in arbitration could render these concerns moot. For example, a factual finding that noneconomic losses did not exceed $250,000 would render the contractual limitation irrelevant. Similarly, a finding that the evidence did not justify an award of punitive damages would eliminate the need to address the validity of a punitive damages bar.

Nothing in the Agreement limits the arbitrator’s authority to enforce, or refuse to enforce, the remedial limitations. Cf. Holt, 862 So.2d at 89 (holding arbitration agreement unenforceable where it precluded arbitrator from awarding injunctive relief); Flyer Printing Co. v. Hill, 805 So.2d 829, 833 (Fla. 2d DCA 2001) (upholding circuit court’s refusal to enforce fee splitting provision of arbitration agreement because it contravened statute and defeated its remedial purpose). This case is unlike Blankfeld, 902 So.2d at 299, where the governing rules of the arbitration body imposed burdens of proof that effectively precluded recovery for negligence. The Agreement contains no such restrictions. Indeed, the Agreement commands that “the arbitrator shall apply, and the arbitration award shall be consistent with Florida law....” The parties, in effect, have empowered the arbitrator to address Mrs. Bland’s public policy concerns. Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327 (11th Cir.2005). The arbitrator may exercise that authority and determine whether the Agreement’s remedial limitations are enforceable.

Affirmed.

STRINGER and SILBERMAN, JJ., Concur.

      . The Agreement was intended to be signed by "Resident, Guardian or Other Legal Representative.” The nature of Ms. Coker’s authority to execute the Agreement for her mother was not addressed in this appeal.

      . In her trial court memorandum, Mrs. Bland also suggested that allowing arbitration of nursing home claims under chapter 400 violated Florida public policy. To the extent the Agreement implicates interstate commerce, we note that such a result could trigger federal preemption concerns under the Federal Arbitration Act. See 9 U.S.C. § 1 ei seq.; Buckeye Check Cashing, Inc. v. Cardegna, - U.S. -, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967).