text:
    Michael J. McMURRER, George Brady, Jr., et al., Appellant, v. MARION COUNTY, Appellee.
    No. 5D05-2240.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    Rehearing Denied Aug. 15, 2006.

      Joseph M. Hanratty of Forman, Hanratty & Montgomery, Ocala, for Appellant.
    A.J. Jim Spalla, Tallahassee, for Appel-lee.
   PALMER, J.

In this eminent domain lawsuit, Michael McMurrer, George Brady, Amelia Brady and Mack Sparks (landowners) appeal the non-final order entered by the trial court granting appellee Marion County’s motion to reinstate a quick-take order. Concluding that the trial court was without authority to reinstate the quick-take order, we reverse.

Marion County initiated an eminent domain petition against the landowners regarding property which was purportedly needed to widen a road. After a hearing, the trial court entered a written order of quick-taking and directed the County to deposit a good-faith estimate of the value of the property into the registry of the court within 20 days, as is required by section 74.051(3) of the Florida Statutes (2005).

Of importance to this appeal, the deposit was not made by the County until 25 days after the date the taking order was entered (and thus five days late).

On the same day that the deposit was made by the County, the landowners filed a motion to vacate the trial court’s quick-take order. The motion argued that, pursuant to the specific language set forth in section 74.051(3) of the Florida Statutes, the County’s failure to timely make the deposit voided the trial court’s quick-take order.

The County responded by immediately filing a motion to “reinstate” the trial court’s quick-take order. The motion explained that the delay in making the deposit was due to inadvertence and excusable neglect.

The trial court conducted a hearing on the pending motions. At the hearing, counsel for the County explained that, although the County’s good-faith deposit check had been prepared in a timely fashion, it had not been timely delivered to the court registry because the employee who was responsible for doing so had been called out of town on a family emergency. Counsel further explained that immediately upon his return to work, the employee discovered the problem and made the deposit; however, the deposit was five days late. Counsel argued that, since no prejudice had been pled or proven by the landowners, it was within the trial court’s authority to reinstate its quick-take order.

Upon review, the trial court entered an order reinstating the quick-take order “in the interest of justice.” The landowners appeal from this order, arguing that the trial court reversibly erred by reinstating its quick-take order. We agree.

Generally, our courts must strictly construe the provisions of Florida’s eminent domain statutes, as well as Florida case law regarding same, in favor of the landowner, and said statutes and case law must be substantially complied with by the condemning party. See Tosohatchee Game Preserve, Inc., v. Central & Southern Florida Flood Control Dist., 265 So.2d 681 (Fla.1972).

Here, the County proceeded with its eminent domain claim against the landowners pursuant to the quick-take provisions set forth in Chapter 74 of the Florida Statutes. Said provisions authorize the County to take possession and title to real property in advance of the entry of a final eminent domain judgment. Section 74.051(3) states that a quick-take order “shall not become effective unless the deposit of the required sum is made in the registry of the court” and that, if “the deposit is not made within 20.days from the date of the order of taking, the order shall be void and of no further effect.” § 74.051(3), Fla. Stat. (2005).

Here, the trial court erred in reinstating its quick-take order because the evidence was undisputed that the County failed to timely deposit its good-faith estimate and, thus, pursuant to the express language of section 74.051(3), the court’s quick-take order was rendered “void and of no further effect”. A void order cannot be reinstated because, by definition, a void order “is a nullity.” Goolsby v. State, 914 So.2d 494 (Fla. 5th DCA 2005).

The landowners argue that, since the trial court’s quick-take order is a nullity, it necessarily follows that the entire proceeding below was void and, therefore, the trial court must dismiss the County’s eminent domain petition. We disagree.

Section 74.051(3) of the Florida Statutes, expressly states that an untimely deposit of good-faith funds results in a quick-take order that is void. However, the statute does not provide that the entire eminent domain proceeding is void. In contrast, section 73.111 of the Florida Statutes expressly provides that, in “slow-take” eminent domain proceedings, an untimely deposit of good-faith funds results in “the proceeding” being “null and void”. Since the Legislature specifically opted to use the word “order,” not “proceeding”, in its quick-take statute, it would be improper for this court to interpret section 74.051 broadly so as to void the entire proceeding below.

The landowners also challenge the correctness of the trial court’s quick-take order, arguing that procedural irregularities which occurred during the course of the eminent domain proceedings rendered the proceedings fatally flawed. Further, they argue that the Board of County Commissioners did not properly consider the relevant factors determined by the law to be a condition precedent to enacting a resolution to take land and, accordingly, no order of taking can properly be entered in this proceeding. We do not reach these arguments since, by virtue of our decision herein, no order of taking currently exists for our review. However, such arguments may possess merit and the landowners are not precluded from raising those arguments in any further proceedings.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . Jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(ii) of the Florida Rules of Appellate Procedure which authorizes review of orders determining the right to immediate possession of property. See Security Management Corp. v. State, Dept. of Transp., 718 So.2d 339 (Fla. 4th DCA 1998).

      . Section 74.051(3) of the Florida Statutes (2005) provides:
      74.051. Hearing on order of taking

      (3) The court may fix the time within which and the terms upon which the defendants shall be required to surrender possession to the petitioner, which time of possession shall be upon deposit for those defendants failing to file a request for hearing as provided herein. The order of taking shall not become effective unless the deposit of the required sum is made in the registry of the court. If the deposit is not made within 20 days from the date of the order of taking, the order shall be void and of no further effect. The clerk is authorized to invest such deposits so as to earn the highest interest obtainable under the circumstances in state or national financial institutions in Florida insured by the Federal Government. Ninety percent of the interest earned shall be paid to the petitioner.
      (Emphasis added).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dale WHITAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2840.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    Rehearing Denied Aug. 25, 2006.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Heath v. State, 648 So.2d 660, 664 (Fla.1994) (holding the trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion).

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


author: SAWAYA, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Larry Edward ROBBINS, Appellee/Cross-Appellant.
    No. 5D05-1951.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Rehearing Denied Aug. 21, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appel-lant.
   SAWAYA, J.

Four law enforcement officers arrived at a home to execute a search warrant for illegal drugs. Larry Edward Robbins answered the door, the officers attempted to enter, and Robbins shot one of them. The State’s appeal of the thirty-year prison sentence imposed on Robbins for the crime of aggravated battery on a law enforcement officer in violation of section 784.07(2)(d), Florida Statutes (2003), directs us to a series of reclassification statutes to determine whether, as the State contends, they require imposition of a life sentence. The specific issue we must decide is whether the offense committed by Robbins — a recidivist who qualifies as a prison releasee reoffender under section 775.082(9)(a) — constitutes a life felony pursuant to section 775.087(l)(a). If it does, Robbins must be sentenced to life imprisonment pursuant to section 775.082(9)(a)3.a., just as the State contends.

The crime of aggravated battery, which is classified as a second-degree felony under section 784.045(2), is committed when the defendant: 1) causes great bodily harm, permanent disability, or disfigurement; or 2) uses a deadly weapon. § 784.045(l)(a), Fla. Stat. (2003). Hence, there are two alternative bases upon which a conviction for this offense may be established. The offense of aggravated battery is reclassified as a first-degree felony pursuant to section 784.07(2)(d) when the crime is committed against a law enforcement officer while engaged in the lawful performance of his or her duties. Mills v. State, 822 So.2d 1284, 1287 (Fla.2002) (“[A]s reflected in the language of the statute itself, section 784.07 operates as a reclassification statute.”). The critical part of our analysis must necessarily focus on whether section 775.087 (commonly referred to as the 10-20-Life statute) applies to further reclassify the crime to a life felony as a result of Robbins’ use of a firearm during the commission of the crime. This becomes problematic if the use of the firearm was an element of the crime Robbins committed because, in that instance, the crime of aggravated battery against a law enforcement officer may not be further reclassified under section 775.087. § 775.087(1), Fla. Stat. (2003) (excepting from its provisions “a felony in which the use of a weapon or firearm is an essential element”). But if the crime Robbins committed was aggravated battery on a law enforcement officer causing great bodily harm and the firearm Robbins used inflicted the harm, then reclassification is appropriate because the firearm is not an essential element of the offense. See Lareau v. State, 573 So.2d 813 (Fla.1991); Hayward v. State, 590 So.2d 976, 978 (Fla. 5th DCA 1991) (stating that facts of a criminal case that would support enhancement of aggravated battery to a first-degree felony under section 775.087(1) include “a battery in which the defendant intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement and uses a weapon”); see also Thompson v. State, 636 So.2d 599 (Fla. 5th DCA 1994) (holding that where the verdict provided that the defendant was guilty of aggravated battery causing great bodily harm with a weapon, reclassification was proper).

In Lareau, the defendant shot his victim with a firearm, entered a plea to the charge of “Aggravated Battery (great bodily harm) w/firearm,” and was sentenced based on reclassification of that offense pursuant to section 775.087(1). The court discussed the two alternative bases to establish a conviction for aggravated battery and essentially recognized that the offense of aggravated battery with a deadly weapon may be committed when the victim does not suffer great bodily harm, permanent disability, or permanent disfigurement. In such circumstances, the weapon is an essential element of the offense. If, however, the weapon is used to inflict great bodily harm, permanent disability, or permanent disfigurement, and the state charges the defendant with aggravated battery causing great bodily harm, the weapon is not an essential element of the offense. In this situation, the weapon is “incidental to the offense.” 573 So.2d at 814. The court explained as follows:

The facts of this case require us to examine the interplay of the reclassification statute, section 775.087(1), with the aggravated battery statute, section 784.045....
As we read the two provisions at issue, section 784.045(l)(a) effectively reclassifies as a second-degree felony the crime of simple battery, section 784.03 of the Florida Statutes (1985), when the defendant, without the use of a deadly weapon, knowingly or intentionally causes great bodily harm, permanent disability, or permanent disfigurement. Section 784.045(l)(b) effectively reclassifies as a second-degree felony the crime of simple battery when a deadly weapon is used, by supplementing the statutory definition of aggravated battery to include the use of a deadly weapon. Simple battery, a first-degree misdemeanor, is not subject to reclassification pursuant to section 775.087(1), which applies only to felonies. Aggravated battery with the use of a deadly weapon, section 784.045(l)(b), is not subject to reclassification pursuant to section 775.087(1) because the use of a weapon is an essential element of the crime. However, section 775.087(1) permits reclassification and the consequential enhancement of penalties for the crime of aggravated battery causing great bodily harm, section 784.045(l)(a), when a weapon is used to commit the crime.
Under this statutory interpretation, the punishment for battery increases as the degree of actual injury or potential for serious injury becomes greater. For example, a simple battery without the use of a deadly weapon is a first-degree misdemeanor (section 784.03); a simple battery involving the use of a deadly weapon is a second-degree felony (statutorily redefined by section 784.045(l)(b) as aggravated battery); aggravated battery causing great bodily harm is a second-degree felony (section 784.045(l)(a)); and aggravated battery causing great bodily harm and involving the use of a deadly weapon is a first-degree felony (section 784.045(l)(a), enhanced by section 775.087(1) by virtue of the use of a weapon or firearm). This interpretation gives consistent effect to both the felony reclassification statute and the provision defining aggravated battery involving the use of a deadly weapon, and it conforms with the legislative intent of increasing the punishment of violent crimes that involve a weapon or firearm. It is also consistent with the language in section 775.087(1) providing for reclassification of felonies where the use of a weapon or firearm is not an essential element of the crime.

Id. at 814-15 (emphasis added).

Here, just as in Lareau, Robbins was charged with an underlying aggravated battery that caused great bodily injury when a firearm was used in the commission of the crime to inflict the injury. Therefore, pursuant to Lareau, the firearm is not an essential element of the crime. That this is the crime the jury convicted Robbins of committing is clearly revealed by our analysis of the jury instructions delivered to the jury, the purpose of which was to define the essential elements of the crime charged. See State v. Delva, 575 So.2d 643, 644 (Fla.1991) (“We have long held that ‘[i]t is an inherent and indispensable requisite of a fair and impartial trial ... that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.’ ”) (quoting Gerds v. State, 64 So.2d 915, 916 (Fla.1953)); see also Battle v. State, 911 So.2d 85 (Fla.2005), cert. denied, — U.S. -, 126 S.Ct. 1069, 163 L.Ed.2d 890 (2006); Scott v. State, 808 So.2d 166, 170 (Fla.2002) (“Moreover, the jury is entitled to be instructed on the elements of an offense.”). The jury instructions only instructed the jury on the offense of aggravated battery causing great bodily harm, permanent disability, or permanent disfigurement. Because the jury was not instructed that it could find Robbins guilty of aggravated battery with a weapon, it is clear that the verdict finding Robbins guilty as charged constitutes a conviction for aggravated battery causing great bodily harm, for which the use of a weapon is not an essential element. See Hayward (holding that when the jury instructions clearly instruct the jury only on the crime of aggravated battery causing great bodily harm, enhancement under section 775.087(1) to a first-degree felony is appropriate). We note that interrogatories were also included in the verdict form and the jury made a special finding that Robbins possessed a firearm during the commission of the crime, discharged the firearm, and inflicted great bodily harm on the law enforcement officer. Therefore, pursuant to section 775.087(l)(a), the crime for which Robbins was convicted may be appropriately reclassified as a life felony. See State v. Waldron, 835 So.2d 1217, 1219 (Fla. 5th DCA 2003) (“The defendant is correct that courts are obligated to adopt an interpretation that harmonizes related statutes while giving effect to each. However, the way to do that in the instant case is to give effect to subsections 775.087(2)(a)3. and (2)(c) where the defendant did not simply use a firearm in the commission of the aggravated battery but rather discharged the firearm and as a result of the discharge death or great bodily harm was inflicted upon the victim. Here the jury expressly found that the defendant discharged the firearm resulting in death or great bodily harm to the victim. The Legislature intended to punish a miscreant more severely where his use of a firearm results in death or great bodily harm. The Legislature chose the ‘10/20/ Life’ legislation to do this and the courts are bound to follow this law.”) (citations omitted). Robbins does not argue or even suggest that he does not qualify as a prison releasee reoffender under section 775.082(9)(a)3., and, therefore, pursuant to that statute, he is subject to a mandatory sentence of life imprisonment.

Rather than forcefully contest the State’s argument that use of the weapon is not an essential element of the crime he was convicted of committing, Robbins devotes most of the discussion in his brief to the assertion that the State waived its argument during the sentencing proceeding by conceding that the trial judge had discretion to decline reclassification and imposition of the mandatory life sentence. However, our review of the sentencing hearing transcript belies that assertion and clearly indicates that the State did not waive this argument. The confusion stems from reference to the 10-20-Life statute, where the court does have discretion (irrespective of whether the use of a firearm was an essential element of the crime) to impose a sentence of 25 years to life. See § 775.087(2)(a)3., Fla. Stat. (2003). The State conceded that the court did have that discretion, but did not concede imposition of the mandatory life sentence under section 775.082. Further, after the trial court ruled, the State specifically questioned the court about its finding that Count II was a first-degree felony and “[f]or the record [it] ... objected] to that finding.” Thus, the argument was not waived.

Accordingly, we reverse the sentence imposed on Robbins and remand for resen-tencing consistent with this opinion.

REVERSED AND REMANDED FOR RESENTENCING.

PLEUS, C.J., and ORFINGER, J., concur.

      . Robbins was also found guilty of attempted second-degree murder with a firearm. However, Robbins did not challenge that conviction in the instant appeal.

      . Counsel for Robbins essentially conceded that this is the crime the State charged Robbins with committing during the sentencing hearing, the transcript of which reveals the following exchange between counsel for the State and Robbins:
      DEFENSE: I want to make sure I'm on the same sheet of music with the office of the State Attorney in regards to which version of the information they are referring to as far as the Count 2 allegations.
      STATE: Referring to the one that is most recently filed, Your Honor.

      DEFENSE: I just wanted to verify because there have been several different versions of the information in this case.
      First, I take issue with the representation of the State Attorney's Office that the information in the case that was tried makes reference to great bodily harm, because it does not.
      It makes reference to the fact that there was an intentional touching or caused bodily harm. So I would defer to the court file in regards to the information. I believe the allegations in the information—
      THE COURT: We can clear that up right now if the Clerk can find me the amended information. Okay. Where is it? Just give us a moment, please.
      THE CLERK: Amended the 27th day of December, 2003? For 540, case 540?
      STATE: My copy isn’t dated. It's a two-count information.
      THE CLERK: Two-count information.
      STATE: That’s it.
      THE COURT: Can I see it just a moment, please? All right.
      DEFENSE: Your Honor, the latter part of the information — the State’s pointed out to me, the latter part of the information, the second line does allege great bodily harm.
      It was earlier in the count that it talked about bodily harm, so we can skip past that point and move directly into the primary arguments.
      The argument that counsel for Robbins proceeded to make is that double enhancement is prohibited under double jeopardy principles — an argument not raised by Robbins in this appeal.

      .The jury instruction that was given to the jury provides, in pertinent part:
      To prove the crime of Aggravated Battery of a Law Enforcement Officer, the State must prove the following five elements beyond a reasonable doubt. The first element is a definition of battery.
      1. Larry Edward Robbins intentionally touched or struck David M. Decarlo against his will or intentionally caused bodily harm to David M. Decarlo.
      2. Larry Edward Robbins in committing the battery intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement to David M. Decarlo.
      3. David M. Decarlo was a law enforcement officer.
      4. Larry Edward Robbins knew David M. Decarlo was a law enforcement officer.
      5. David M. Decarlo was engaged in the lawful performance of his duties when the battery was committed against him.


author: MONACO, J.

text:
    William I. GONZALEZ, Appellant, v. Denise AYALA, f/k/a Denise Gonzalez, Appellee.
    No. 5D05-3200.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Rehearing Denied Aug. 16, 2006.

      Dorothy J. McMichen of Dorothy J. McMichen, P.A., Orlando, for Appellant.
    Rudolph C. Campbell, Tampa, for Ap-pellee.
   MONACO, J.

William Gonzalez appeals an order of the trial court transferring this post-dissolution action from the courts of Florida to those of the Commonwealth of Puerto Rico. We have jurisdiction pursuant to Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure. See Dep’t of Mgmt. Servs. v. Fastrac Constr., Inc., 701 So.2d 1200 (Fla. 5th DCA 1997). Because the trial court abused its discretion in transferring this case, and because of the manifest injustice resulting, we reverse.

The marriage between Mr. Gonzalez and the appellee, Denise Ayala, was dissolved by a judgment entered in the Circuit Court of Orange County in March of 2000. In February 2003, Mr. Gonzalez agreed with Ms. Ayala in writing to allow Ms. Ayala to relocate with their son, Billy, to Puerto Rico, provided that Mr. Gonzalez would have frequent visitation and that he would not be responsible for any child support, given the high costs of travel for visitation. The Circuit Court of Orange County entered an order adopting the agreement of the parties to that effect.

Within six months Ms. Ayala attempted to get child support and to establish jurisdiction in Puerto Rico by filing a document in the courts of Puerto Rico entitled Emergency Motion to Request Child Support and Establishment of Father and Child Relationship. Mr. Gonzalez, in response, sought and received an order from the Florida court declaring that it had continuous jurisdiction over the dissolution and visitation and other issues concerning Billy. Ms. Ayala then filed a motion for rehearing and a motion to vacate the trial court’s order on jurisdiction, the latter of which the trial court granted. Upon rehearing, however, the trial court once again granted the motion of Mr. Gonzalez and declared its continuing jurisdiction.

During the pendency of the jurisdictional matter, Mr. Gonzalez also filed a petition to modify the dissolution agreement in which he asserted that circumstances had changed since the court entered final judgment dissolving the marriage. Mr. Gonzalez alleged that Ms. Ayala had failed to send Billy for visitation with his father on two occasions; did not participate in court ordered monthly parenting meetings; would not provide Mr. Gonzalez with information regarding Billy’s school or school schedule, or medical or dental information, and other important information incident to parenting. He alleged, as well, that she had refused to allow Mr. Gonzalez to visit with Billy over the telephone, and had failed to keep an answering machine or voicemail system available or to communicate with Mr. Gonzalez regarding travel and visitation, as she had earlier agreed. Mr. Gonzalez then requested that the trial court award primary parental or residential custody of Billy to him.

After a hearing in which both parties presented witness testimony and arguments of counsel, the trial court found that Mr. Gonzalez’s allegations were true in that Ms. Ayala “has tried to alienate the minor child from” Mr. Gonzalez, and that she “is an obstructionist and has impeded” the attempts by Mr. Gonzalez to see Billy. The trial court also found that Ms. Ayala’s actions could form a basis for a change of custody, pending a determination of the best interests of the child, but decided not to transfer custody at that time, warning instead that “in the event the behavior of [Ms. Ayala] does not change radically, the Court could transfer custody” to Mr. Gonzalez. The court related in its order that Ms. Ayala “has little credibility with the Court,” and that her explanations were “patently ridiculous.” The trial court then found Ms. Ayala in contempt of court for failing to comply with the terms of the final judgment of dissolution and for obstructing visitation, and ordered her in explicit and detailed terms to comply with the orders of the court.

Less than two months later Ms. Ayala then filed a “Motion to Dismiss for Forum Non Conveniens,” attaching no affidavits or sworn statements. Neither Ms. Ayala, nor her attorney attended the hearing on the motion, and it was promptly denied. Undaunted, Ms. Ayala appealed the denial to this court. We affirmed the decision without opinion. See Ayala v. Gonzalez, 903 So.2d 947 (Fla. 5th DCA 2005).

After she received our per curiam affir-mance, Ms. Ayala then filed a Motion for Change of Venue for Inconvenient Forum in the trial court, again without supporting affidavits. At the hearing on this motion Ms. Ayala, her brother and her father testified. Oddly, both her father and brother are residents of Orlando, and they visited with Billy frequently when he came to see his father during the summer. They acknowledged that Mr. Gonzalez was very agreeable, and helped facilitate visitation with Billy. Ms. Ayala claimed that the expense and burden of traveling to Florida for hearings is “Hurculean [sic.] and serves no legitimate interest since all such hearings can be conducted by the Puerto Rican courts.” The trial court granted her motion. Mr. Gonzalez appeals.

Both a rule and a statute govern in tandem the subject of inconvenient forums. Florida Rule of Civil Procedure 1.061 sets forth the ground rules for dismissal for inconvenient forum:

(a) Grounds for Dismissal. — An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.

Section 47.122, Florida Statutes (2005), also plays a part in the decision making process. That statute states in its entirety, “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”

Forum non conveniens, by its very nature, of course, encompasses both the statute and the rule. See Thomas v. Thomas, 724 So.2d 1246 (Fla. 4th DCA 1999). Courts have, accordingly, followed the same general procedures in applying section 47.122 and Rule 1.061. See Botton v. Elbaz, 722 So.2d 974 (Fla. 4th DCA 1999).

This court has held that under section 47.122 a plaintiffs forum selection is presumptively correct, and the burden is on the opposing party to show either that undue expense or substantial inconvenience to the parties or witnesses requires a change. See Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001); Vero v. Vero, 659 So.2d 1348 (Fla. 5th DCA 1995). We have also indicated that when a, forum non conveniens challenge is raised, the parties must submit affidavits or other evidence that will demonstrate the need for the change. See Eggers; Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138 (Fla. 5th DCA 1998).

In the present case, while neither party submitted affidavits, the trial court did take live testimony. The substantive testimony, however, when matched against the specific requirements of Rule 1.061, simply does not support a change of venue. This matter was commenced in Orange County, Florida, by Ms. Ayala in 1999, and has resided in that forum through its entire history. Ms. Ayala apparently ignores the language of subsection (g) of the rule that requires the motion to be made within sixty days of service of process on the moving party. That is to say, the appellee actually chose the forum, and then lingered for five years before deciding that the forum was not convenient. The testimony of the primary witnesses who Ms. Ayala asserts would be inconvenienced, her father and brother, indicates that they have not been unduly restricted from contact with Billy as a result of the use of the Florida forum. The courts of Puerto Rico have had very little contact with the parties, and virtually none with Mr. Gonzalez. Moreover, the matter pressed with some vigor by Ms. Ayala in support of her motion is that Billy has now lived in Puerto Rico for two and one-half years. The record reflects, however, that Billy has actually been in Florida for more than forty percent of that time. As Mr. Gonzalez accurately points out, it is fundamentally unfair to transfer the case on the ground that Billy is now older and has lived in Puerto Rico for some time when it was unquestionably the actions of Ms. Ayala that have halted any progress in this case.

It appears that in reality Ms. Ayala decided that the forum was inconvenient only after the trial court ruled that she was not credible, and that she was obstructing and disobeying the orders of the court to which she had earlier agreed. Given the absence of any legal basis for a transfer of this action to Puerto Rico, and given the fact that the child’s father continues to reside in Florida, we conclude that the trial court abused its discretion in entering the Order On Former Wife’s Motion for Change of Venue for Inconvenient Forum. Cf., Steckler v. Steckler, 921 So.2d 740 (Fla. 5th DCA 2006). We, therefore, reverse and remand for further action not inconsistent with this opinion.

REVERSED AND REMANDED.

TORPY and LAWSON, JJ., concur.

      . In view of the position on the merits that we take with respect to this case we do not address the issue of whether our prior per as-riam affirmance precluded Ms. Ayala’s second motion seeking a transfer of this action to Puerto Rico.


text:
    Benjamin WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3374.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.
    Rehearing Denied Aug. 25, 2006.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed. See Card v. State, 927 So.2d 200, 203 (Fla. 5th DCA 2006) (holding that, in a prosecution for driving while license revoked as a habitual traffic offender, a certified copy of the defendant’s driving record is not testimonial hearsay and thus the record’s admission did not implicate the defendant’s Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)); Sproule v. State, 927 So.2d 46, 47 (Fla. 4th DCA 2006) (same).

ALTENBERND, SALCINES, and SILBERMAN, JJ., Concur.


author: SUAREZ, J.

text:
    Mark BLANCO, Jose L. Blanco, and Krishna Blanco, Appellants, v. Alicia D. KINAS and Stephanie A. Freeman as Trustees of the Murry Koretzky Revocable Trust, Appellees.
    No. 3D05-1725.
    District Court of Appeal of Florida, Third District.
    July 5, 2006.

      Ricardo L. Carmona, for appellants.
    McCormick & Koretzky and David A. Koretzky; Jeanne Heyward, Miami, for appellees.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Intervenors, Mark Blanco, Jose L. Blan-co and Krishna Blanco (“Blancos”), appeal an order denying their motion to vacate a final judgment in foreclosure. We affirm.

In September of 2001, the Blancos’ grandmother defaulted on a note and balloon mortgage for $25,000. Assignee of the mortgage, Koretzky, brought suit to foreclose the note and mortgage and filed a lis pendens in April of 2002. The parties entered into a settlement in January of 2003, whereby the grandmother agreed to pay Koretzky a lump-sum of $34,000, inclusive of principal, interest and attorney’s fees. It was further agreed that if payment was not received by January 15, 2003, Koretzky would be entitled to a final judgment of foreclosure. The grandmother failed to make any payment. In August 2003, Koretzky filed a notice of hearing for a motion for final judgment of foreclosure, which was served upon the parties and a final judgment of foreclosure was entered. In November 2004, the Blancos moved to intervene based on an unrecorded quit claim deed of the property to them from their grandmother signed a few days before she died in April 2003. The Blancos claimed lack of notice of the August 2003, foreclosure hearing and usury, and moved to vacate the final judgment.

We uphold the trial court’s rejection of the Blancos’ claim of lack of notice in that they failed to rebut the presumption that proof of mailing of the notice of the final foreclosure hearing evidences that the notice of hearing was received. E.g., Brown v. Giffen Indus., Inc., 281 So.2d 897 (Fla.1973); Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980). Moreover, we uphold the trial judge’s denial of the motion to vacate the judgment of final foreclosure on grounds of usury. If the Blancos’ argument is that the note and mortgage are usurious, the denial of the motion to set aside was proper. The grandmother entered into a stipulation for settlement of the foreclosure suit after entry of default. Therefore, the Blancos are now estopped from raising the defense of usury as to the note and mortgage. See Park Ave. Inv. & Dev., Inc. v. Barkheimer, 471 U.S. 1108, 105 S.Ct. 2171, 85 L.Ed.2d 859 (1985); Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971) (stipulation estops borrower from raising statutory defense of usury). If the Blancos’ argument is that the amount of the final judgment claimed by Koretzky and entered by the trial judge in August 2003, is usurious, the denial of the motion to set aside was, again, proper. The Blancos neglected to file affidavits or allege with the required particularity facts which would have shown a usurious intent on behalf of the lender, Koretzky. See Diversified Enters., Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962); DuPont Plaza, Inc. v. Samuel Kipnis Family Found., 132 So.2d 352 (Fla. 3d DCA 1961); Am. Nat’l Growers Corp. v. Harris, 120 So.2d 212 (Fla. 2d DCA 1960). Despite being given numerous opportunities, they failed to do so. As such, the trial judge was correct in denying the motion to set aside without an evidentiary hearing. See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).

Affirmed.

      . Although it is not an issue, this court, as did the trial judge, questions why it took so long to raise the issue of this unrecorded deed.


author: STEVENSON, C.J.

text:
    Jacovis James SARIDAKIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2545.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Rehearing Denied Aug. 23, 2006.

      Ira D. Karmelin and Victoria Vilchez, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Appellant, Jaeovis Saridakis, was found guilty of indirect criminal contempt for violating a “no-contact” order with his former wife and was ordered to serve a one-year term of probation. Appellant raises a single issue on appeal, arguing that because criminal contempt is not specifically designated as a first degree misdemeanor, it is a misdemeanor of the second degree and, as a result, his one-year probation term exceeds the statutory maximum. See § 775.081(2), Fla. Stat. (“Any crime declared by statute to be a misdemeanor without specification of degree is of the second degree.”); § 775.082(4)(b), Fla. Stat. (second degree misdemeanor punishable by imprisonment of no more than sixty days). Because criminal contempt is an offense which is neither a felony nor a misdemeanor, but is punishable by a term of imprisonment not to exceed one year, we find appellant’s argument unpersuasive and affirm.

The Florida Supreme Court addressed the issue of criminal contempt in Aaron v. State, 284 So.2d 673 (Fla.1973):

Section 38.22 of the Florida Statutes, F.S.A., authorizes courts to impose imprisonment and fines for contempt, but states no maximum time for such imprisonment. Section 775.01 of the Florida Statutes, F.S.A., provides that the common law crimes of England are crimes in Florida. Section 775.02 of the Florida Statutes, F.S.A., provides that when no maximum punishment is prescribed for criminal contempt, the maximum shall not exceed one year imprisonment and a fine of $500.00.
Therefore, we must conclude that criminal contempt is a crime under Florida law, with the possible maximum punishment exceeding six months’ imprisonment.

Id. at 676 (footnotes omitted).

We reject for several reasons appellant’s contention that, pursuant to section 775.081(2), criminal contempt is a second degree misdemeanor. Section 775.081(2) provides that “[a]ny crime declared by statute to be a misdemeanor without specification of degree is of the second degree.” Even though contempt is punishable in the same manner as a misdemeanor, we do not believe it can reasonably be said that contempt is a “crime declared by statute to be a misdemeanor.” As the court noted in Moorman v. Bentley, 490 So.2d 186, 187 (Fla. 2d DCA 1986), “[w]hile the contempt power of Florida courts has been codified by statute, section 38.22, Florida Statutes (1985), there is no statute which defines the crime or establishes the punishment.” When the legislature has wanted to “declare” a crime, to be a misdemeanor, it has done so in clear and direct terms. See, e.g., § 836.01, Fla. Stat. (“Any person convicted of the publication of a libel shall be guilty of a misdemeanor ....”); § 812.014(2)(e), Fla. Stat. (theft of property valued at $100 or more but less than $300 is “punishable as a misdemean- or”); § 806.13(l)(b)2., Fla. Stat. (criminal mischief resulting in damage greater than $200 but less than $1,000 “is a misdemeanor”).

Because common law crimes are punishable by imprisonment not to exceed twelve months, the punishment imposable for criminal contempt is identical to that imposable for a misdemeanor. See §§ 775.01, 775.02, Fla. Stat.; Aaron, 284 So.2d at 676. Nevertheless, simply because, “[f]or all practical purposes, criminal contempt is the equivalent of a misdemeanor,” does not mean it is a misdemeanor. See Moorman, 490 So.2d at 187. Indeed, one court has stated that “[c]ontempt is neither a felony nor a misdemeanor.” In re A.L., 705 So.2d 1048, 1049 (Fla. 2d DCA 1998) (citing Ducksworth v. Boyer, 125 So.2d 844 (Fla.1960)).

Further, applying section 775.081(2) (providing that any misdemeanor not declared by statute to be of the first degree is of the second degree) to section 775.02 (providing that common law offenses may be punishable by imprisonment not to exceed twelve months) would render the latter meaningless since, in all instances, common law crimes would be classified as second degree misdemeanors by default. The maximum term of imprisonment for a second degree misdemeanor is limited to sixty days. See § 775.082(4)(b), Fla. Stat. Thus, section 775.081(2) would prohibit a term of imprisonment in excess of sixty days for any common law offense and the twelve-month maximum sentence contemplated under section 775.02 would be illusory.

“It is well settled in Florida that the courts will disfavor construing a statute as repealed by implication unless that is the only reasonable construction.” Palm Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249, 250 (Fla.1987). “Instead, we are obligated ‘to adopt an interpretation that harmonizes two related, if conflicting, statutes while giving effect to both.’ ” Jones v. State, 813 So.2d 22, 25 (Fla.2002) (quoting Palm Harbor, 516 So.2d at 250). Under Florida law, the legislature is presumed not to have intended to write a statute that renders void in its application another statute that has not been amended or repealed. See T.R. v. State, 677 So.2d 270, 271 (Fla.1996) (stating “courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another”). Thus, this court must assume the legislature intended sections 775.081(2) and 775.02 to operate coexten-sively and have the fullest possible effect; we, therefore, adopt a construction that harmonizes both provisions.

Accordingly, we affirm the one-year term of probation ordered by the trial court in the instant case.

Affirmed.

SHAHOOD and MAY, JJ., concur.

      . Section 775.08(2), Florida Statutes, provides that "[t]he term 'misdemeanor' shall mean any criminal offense that is punishable ... by a term of imprisonment ... not in excess of 1 year.”


author: WELLS, J.

text:
    Luis SANCHEZ, Appellant, v. Joseph MONDY and Matilde Mondy, Appellees.
    No. 3D06-131.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Sept. 7, 2006.

      Anthony F. Sanchez, Miami, for appellant.
    Ron Cordon, for appellees.
    Before RAMIREZ, and WELLS, JJ., and LEVY, Senior Judge.
   WELLS, J.

Luis Sanchez appeals from a final judgment denying specific performance of a real estate contract. Sanchez claims that the trial court erred in relying on the testimony of a handwriting expert in denying relief. We agree and reverse.

The sole issue below, and ultimately here, is whether Matilde Mondy, who co-owned a duplex in Little Haiti with her husband Joseph Mondy, signed a contract to sell this property. The undisputed testimony was that in May 2003, Joseph and Matilde’s daughter contacted Pauline Lopez, a longtime neighbor and Coldwell Banker agent, to list the Little Haiti duplex for sale. The property was initially listed at $150,000, later reduced to $140,000, and then re-listed for $140,000 in November 2003. Both Joseph and Matilde Mondy executed the listing agreements, the latter being executed by both Mr. and Mrs. Mondy while in Ms. Lopez’s presence.

In December 2003, Dr. Sanchez, a retired physician, offered to purchase the duplex. Following negotiations conducted by Ms. Lopez, Mr. Mondy agreed to sell the duplex for $132,000. A sales contract was prepared by Ms. Lopez and executed by Dr. Sanchez in Ms. Lopez’s presence. Ms. Lopez then took the contract to the Mondys’ home for execution. At this point the facts presented by the parties diverge.

According to Ms. Lopez, when she arrived at the Mondy home, Mrs. Mondy answered the door and ushered her in. Lopez claims that Mrs. Mondy knew that she was there to have a sales contract executed, but claiming illness, retired to her bedroom to rest while Ms. Lopez went over the contract with Mr. Mondy in the living room. Ms. Lopez further testified that after discussing the terms of the contract with Mr. Mondy, he executed it, after which the Mondys’ adult daughter, Natasha, took the contract into the bedroom where it was signed by Mrs. Mondy. After receiving the fully executed contract, Ms. Lopez left. According to Ms. Lopez, she did not hear from the Mondys again until shortly before the scheduled January 2004 closing when Mr. Mondy called to advise her that he did not want to sell because the sales price was too low.

The Mondys subsequently were notified by both telephone and by mail (delivered by Federal Express) of the closing of the sale but neither attended. After a number of telephone calls from the closing agent, Mrs. Mondy and a male acquaintance appeared at the closing agent’s offices where the closing agent reviewed the contract with them and where, according to the closing agent, Mrs. Mondy acknowledged that her initials were those affixed to the bottom of each page and that it was her signature affixed to the contract.

With the exception of agreeing that Mr. Mondy signed the sales contract in the presence of Ms. Lopez at his home and that neither he nor his wife appeared for the closing, the testimony elicited by the Mondys contradicted this evidence in every respect. The Mondys’ daughter denied that she was at home when Ms. Lopez brought, and Mr. Mondy executed, the contract. Mrs. Mondy denied having signed the contract or acknowledging to the closing agent that she had initialed or signed the contract. And Mr. Mondy testified that although Mrs. Mondy was at home when Ms. Lopez brought and he executed the sales contract, Ms. Lopez left without obtaining Mrs. Mondy’s signature “because she [Mrs. Mondy] is not the one selling houses. I am the one selling houses.”

On the record, the trial judge observed that he believed the testimony of the real estate and closing agents and that he found that the Mondys’ testimony was not credible. He nonetheless ruled in the Mondys’ favor, after concluding he was bound by the testimony of a handwriting expert called by the Mondys, who opined that the person who signed a number of unauthenticated specimen documents purportedly belonging to Mrs. Mondy was not the same person who signed the sales contract.

The trial court erred in concluding that the testimony of the expert mandated a decision in the Mondys’ favor. At common law it was not possible to prove that a signature or writing was genuine by comparing it with any other signature or writing; however in the interest of promoting the administration of justice in cases where comparisons of disputed writings were properly made, the harsh rule of the common law was abolished by what is now section 92.38 of the Florida Statutes. Chem. Corn Exch. Bank & Trust Co. v. Frankel, 111 So.2d 99, 100-01 (Fla. 3d DCA 1959); see Thompson v. Freeman, 111 Fla. 433, 149 So. 740, 743 (1933).

Section 92.38 provides:

Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by the witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the jury, or to the court in case of a trial by the court, as evidence of the genuineness, or otherwise, of the writing in dispute.

Under this provision, the trial court must be satisfied that the comparison standard offered is genuine before admitting it as the standard. Pate v. Mellen, 275 So.2d 562, 563 (Fla. 1st DCA 1972). This requirement “can be met by evidentiary proof presented to the judge, or by admission of its genuineness by the parties in the pleadings or before the court, or when it is in evidence before the court in the case for some other purpose.” Barron v. State, 207 So.2d 696, 697 (Fla. 3d DCA 1968). However, none of the three alternative means of proving genuineness was demonstrated in the instant case, and the specimens used for comparison by the expert correctly were not admitted into evidence. Because there could be no comparison of handwriting without the writings by which the comparison was made being properly before the court, Thompson, 149 So. at 743, the trial court should not have allowed and relied on the expert’s testimony comparing the sales contract with those documents.

Considering the trial court’s express reliance on the handwriting expert’s testimony in ruling in the Mondys’ favor, this error cannot be deemed harmless and mandates reversal. See Centex-Rooney Const. Co., Inc. v. Martin County, 706 So.2d 20, 26 (Fla. 4th DCA 1997).

We also believe that Dr. Sanchez was effectively sandbagged by this testimony. This action initially was set for trial for the two week period commencing June 20, 2005. The pre-trial order required both parties to identify all expert witnesses and the subject matter and the substance of the facts and opinions about which each expert was expected to testify no later than sixty days prior to the trial period set, in this case by approximately mid-April of 2005. It was not, however, until May 31, 2005, that the Mondys notified Dr. Sanchez of their intention to call a handwriting expert, and it was not until long after that date that the Mondys actually identified the expert they intended to call. In the meantime, discovery was cut off by court order. Although Dr. Sanchez filed a motion in limine to preclude the testimony of this witness, the motion was not heard until the witness was actually called to testify. Thus, while cross examination was permitted, the sequence of the trial court’s rulings effectively precluded any meaningful opportunity for Dr. Sanchez to adequately prepare for this expert’s testimony or to take those steps that would put Dr. Sanchez on equal footing with his adversaries. This, we believe, was tantamount to trial by ambush. See Pipkin v. Hamer, 501 So.2d 1365, 1370 (Fla. 4th DCA 1987) (confirming that the object of requiring reasonable compliance with a pretrial order is to avoid trial by ambush).

The unfairness of what occurred is heightened by what we cannot help but observe was the sheer implausibility of the expert’s conclusions and is yet another reason why this testimony should never have been relied on. See Hajianpour v. Maleki, 932 So.2d 459, 464 (Fla. 4th DCA 2006) (“When the expert’s opinion is based on speculation and conjecture, not supported by the facts, or not arrived at by recognized methodology, the testimony will be stricken.”).

Accordingly, we reverse the final judgment in the Mondys’ favor and remand for entry of a new judgment without consideration of the handwriting expert’s testimony.

      . The trial court cited to section 725.01 Florida Statutes, which is a part of the Florida Statute of Frauds, requiring a contract for the sale of lands to be in writing and signed by the party to be charged.

      . Among other things, when shown her signature (notarized by her attorney) on her affidavit in opposition to Dr. Sanchez’s motion for summary judgment, Mrs. Mondy unequivocally denied that it was her signature. Only after a convoluted argument from her attorney regarding a distinction between the words "signature” and "sign” in Creole, did Mrs. Mondy testify that she did not know what the word "signature” meant but that she did sign the affidavit.

      . Previously numbered section 90.20.

      . Throughout the expert’s testimony, Dr. Sanchez's counsel objected to the use of the comparison specimens because they were not in evidence, because they consisted of photocopies rather than original specimens of Mrs. Mondy’s signature, and because there was no evidence that the specimen documents either belonged to Mrs. Mondy or that they had in fact been signed by her. The comparison specimens were not admitted into evidence and when the Mondys' counsel pointed to the listing agreement, which was in evidence and which Mrs. Mondy admittedly had signed, the expert advised the court that she could not form an opinion based on an in-court review of this document.

      . The expert’s opinion that the same person did not sign the specimen documents and the sales contract was predicated on comparison of the signatures on photocopies of six specimen documents with the sales contract. While admitting that utilizing photocopies rather than originals made any comparison suspect, the expert nonetheless opined that the photocopied specimen signatures were not made by the same person who signed the sales contract because: (1) Mrs. Mondy’s first name, Matilde, was spelled ’’Matilde” on the specimens but "Maltide” on the contract; (2) Mrs. Mondy’s first name was written in cursive on the specimens but printed in part on the contract; and, (3) the letters "dy” at the end of Mondy in the specimens were of equal height while the "d” in Mondy on the contract was twice as high as the "y.”
      In light of the fact that the expert did not know whether the specimens she examined actually belonged to Mrs. Mondy or whether Mrs. Mondy had actually signed them, it would appear that the expert's opinion that the person who signed the specimens was not the same as that who signed the sales contract was simply not relevant to whether Mrs. Mondy was the person who signed the sales contract. See § 90.401, Fla. Stat. (2005) ("[Relevant evidence is evidence tending to prove or disprove a material fact”). Additionally, the expert's admission that spelling differences alone would not support a conclusion that the signatures on the specimen documents and the sales contract were made by different people, combined with the fact that there is no consistency whatsoever in the comparative heights of the letters "dy” in the word Mondy in those documents bearing Mrs. Mondy's signature that were introduced into evidence, confirms that the expert’s testimony was sheer sophistry.
      Moreover, Mrs. Mondy's signature on the renewal listing agreement (Exhibit 9 in evidence), a signature not disputed as being hers and not provided to the expert, is virtually identical to Mrs. Mondy’s signature on the sales contract. Mrs. Mondy’s first name on the renewal listing agreement is spelled ”Mal-tide” just as it is on the sales contract; Mrs. Mondy's first name on the renewal listing agreement is printed, rather than written in cursive, just as it is on the sales contract; and, the "d” in Mondy on the renewal listing agreement, is almost double the height of the "y” just as it is on the sales contract. Thus, on this record, even if relevant, the expert’s opinion was too speculative to support a judgment in the Mondys’ favor.


text:
    CHURCH & TOWER OF FLORIDA, INC. v. BELLSOUTH TELECOMMUNICATIONS, INC., and Liberty Mutual Fire Insurance Company, Appellees.
    No. 3D05-437.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Sept. 8, 2006.

      Richard A. Sherman, Fort Lauderdale; Julio C. Acosta, Miami, and Michelle C. Lopez, for appellant.
    Gordon, Hargrove & James, John R. Hargrove, Carol A. Gart and Scott Mar-kowitz, Fort Lauderdale, for appellees.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Church & Tower of Florida, Inc. (“Church & Tower”), appeals an order granting summary judgment on indemnity in favor of BellSouth Telecommunications, Inc. (“BellSouth”). We affirm.

Bellsouth’s claim for indemnity arises out of a contract between the two parties which contains an indemnity provision. In 1995, Church & Tower entered into the contract in question with BellSouth in which Church & Tower agreed to replace and relocate BellSouth utility poles in North Dade County. The contract contains the following indemnity provision:

[T]he Contractor [Church & Tower] further specifically agrees to indemnify and hold harmless the Indemnitees from all Liabilities, by reason of any injury, death, or damage to any person or property whatsoever, caused by, arising from, incident to, or connected with the performance or nonperformance of the work contemplated by this Contract which is, or is alleged to be, caused in part (whether joint, concurrent, or contributing) or in whole by any act, omission, default, or negligence (whether active or passive) of the Indemnitees.

In 2001, Church & Tower replaced a pole at Bellsouth’s direction. A construction worker nailing plywood to an adjacent building was severely injured when his nail gun came in contact with electrical wires installed on the pole by FPL. The worker’s guardian sued FPL and BellSouth alleging negligence in the placement of the pole and the attachment of the electrical lines too close to the building. BellSouth cross-claimed against Church & Tower for contractual indemnity. The trial court granted summary judgment in favor of Bell-south on the cross-claim finding that the indemnity provision required Church & Tower to indemnify BellSouth for the claim. Church & Tower appeals.

We review the construction of the indemnity clause of the contract de novo. See Team Land Dev., Inc. v. Anzac Contractors, Inc., 811 So.2d 698 (Fla. 3d DCA 2002). We find that the terms of the indemnity clause are unambiguous and that the clear provisions of the contract require Church & Tower to indemnify BellSouth for any alleged acts of negligence arising out of work performed by Church & Tower under the contract, see Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528 (Fla.2005) (term “arising out of’ used in indemnification clause unambiguous); Liberty Mut. Ins. Co. v. Capeletti Bros., Inc., 699 So.2d 736 (Fla. 3d DCA 1997) (court must give effect to plain meaning of contract), and hold that the indemnification clause is valid and enforceable. See Univ. Plaza Shopping Ctr. v. Stewart, 272 So.2d 507 (Fla.1973); Metro. Dade County v. CBM Indus., 776 So.2d 937 (Fla. 3d DCA 2000). Specifically, the clause requires Church & Tower (the Contractor) to indemnify BellSouth (the Indemnitee) for all liabilities alleged to have been caused by BellSouth arising from or connected with the work performed by Church & Tower pursuant to the contract. The complaint alleges that Bellsouth’s negligence in placing the pole too close to the building was a cause of the injuries sustained. As the allegations arise out of the work contracted for by Church & Tower, the provision requires Church & Tower to indemnify BellSouth.

The summary judgment on indemnity in favor of BellSouth is affirmed.


text:
    John M. COLDIRON, Petitioner, v. SEMINOLE COUNTY SHERIFF’S DEPARTMENT, Respondent.
    No. 5D06-1761.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Rehearing Denied Aug. 16, 2006.
    John M. Coldiron, E. Palatka, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

We deny John M. Coldiron’s petition for writ of mandamus, which sought to require the Seminole County Sheriffs Department to return $10,487 to him seized as part of a drug trafficking investigation. Coldiron furnished to us an order of the Seminole County Circuit Court forfeiting the money to the Sheriffs Department pursuant to the Florida Contraband Forfeiture Act §§ 932.701-.707, Florida Statutes (2002). That defeats his claim to the money.

Mandamus is a common law remedy used to enforce an “established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” Puckett v. Gentry, 577 So.2d 965, 967 (Fla. 5th DCA 1991); see Jackson v. Fla. Dep’t of Corrs., 790 So.2d 381, 386 (Fla.2000). Mandamus may not be used to establish rights. Fla. League of Cities v. Smith, 607 So.2d 397, 401 (Fla.1992). Instead, a party petitioning for a writ of mandamus must establish a clear legal right to the requested relief, an indisputable legal duty, and have no adequate remedy at law. See Chapman v. State, 910 So.2d 940, 941 (Fla. 5th DCA 2005). Clearly that has not occurred here. If Coldiron believes that the forfeiture judgment is flawed, he should seek relief pursuant to Florida Rule of Civil Procedure 1.540. We express no opinion on the merits of any such effort.

MANDAMUS DENIED.

THOMPSON, ORFINGER and TORPY, JJ., concur.


author: WALLACE, Judge.

text:
    James D. STERLING and Carolyn, Sterling, as Parents and Natural Guardians of James D. Sterling, Jr., a minor; and James D. Sterling and Carolyn Sterling, individually, Appellants, v. The OHIO CASUALTY INSURANCE COMPANY, Appellee.
    No. 2D05-1875.
    District Court of Appeal of Florida, Second District.
    July 21, 2006.
    Rehearing Denied Aug. 25, 2006.
    George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellant.

      Wayne Tosko of Vasquez & Tosko, LLP, Orlando, for Appellee.
   WALLACE, Judge.

James D. Sterling and Carolyn Sterling appeal a final summary judgment in favor of The Ohio Casualty Insurance Company. The trial court declared that the underinsured motorist coverage provided by Ohio Casualty on a business automobile insurance policy issued to “James D. Sterling, d/b/a J.D.’s Backhoe Service” did not provide coverage for the Sterlings’ minor son when, as a pedestrian, he was struck by an underinsured motorist. We affirm. A business automobile insurance policy issued in Florida insuring exclusively business or commercial vehicles is not statutorily compelled to utilize a definition of “insured” that would provide uninsured or underinsured motorist coverage to a family member of the owner of the insured commercial vehicle when the family member is struck as a pedestrian. Ohio Casualty’s policy did not voluntarily provide coverage for this claim. If the Sterlings desired to have higher limits of uninsured motorist coverage, they were free to purchase that coverage on their family automobiles.

On December 14, 2002, the Sterlings’ minor son was walking near the intersection of Bell Tower Road and State Road 674 in Hillsborough County when he was struck by a vehicle driven by Crystal Frei-tas. Freitas had liability insurance on her vehicle, but it was insufficient to cover the damages sustained by the Sterlings’ son.

At the time of the accident, the Sterlings had two insurance policies that had been obtained from an independent insurance agent. Southern-Owners Insurance Company, a member of the Auto-Owners Insurance Group, had issued a policy to “James D. & Carolyn Sterling” that provided coverage on two family automobiles, one driven for pleasure and the other driven to work or school. The policy provided uninsured motorist coverage in the amount of $50,000 per person on each of the two vehicles. This coverage stacked to provide $100,000 in total underinsured motorist coverage for this claim. The Sterlings paid a premium for this coverage of approximately $150 for a six-month term. The Sterlings settled their claim with Auto-Owners during the pendency of the proceedings in the trial court. There is no dispute that this policy, providing family automobile insurance coverage, was required to insure family members for such claims.

Mr. Sterling had obtained a second insurance policy, issued by Ohio Casualty, on a Ford F450 flatbed truck and a “goose-neck” trailer. This policy was issued with a declarations page entitled “Business Automobile Policy Declarations,” and the coverage was provided using a standard “Business Auto Coverage Form” that is copyrighted by the Insurance Services Office and identified as form CA 00 01 07 97. The named insured on this policy is “James D. Sterling, d/b/a J.D.’s Backhoe Service.” This policy provides $300,000 in uninsured motorist coverage on the truck at an annual cost of $106. It did not provide or charge for uninsured motorist coverage on the trailer. The description of “covered autos” for this policy included only those autos described on the declarations page.

The liability coverage in the Ohio Casualty policy covered Mr. Sterling as the named insured, anyone driving the scheduled vehicles with his permission, employees under certain circumstances, and a few other narrow categories of people. Unlike a family automobile insurance policy, this business policy did not provide liability coverage for the family members of the named insured.

The uninsured and underinsured motorist coverage was provided on a form identified as form CA 86 14 02 01, entitled “Florida Uninsured Motorists Coverage Non-Stacked.” This form indicates that it is to be used with a business auto coverage form. In this form, Ohio Casualty agrees to “pay all sums the ‘insured’ is legally entitled to recover ... from the owner or driver of an ‘uninsured motor vehicle.’ ” The definition of “insured” for purposes of this uninsured motorist coverage included anyone occupying a covered auto or occupying a temporary substitute for such an auto. It also covered anyone entitled to recover damages because of bodily injury sustained by an insured occupying such an auto. The policy does not expressly cover the family members of the named insured.

The policy was also issued with a form identified as form NP 71 13 05 01 and entitled “An Important Notice to Our Commercial Automobile Policyholders Regarding Changes to Your Uninsured Motorist Coverage.” This notice states:

The intent of Uninsured and/or Un-derinsured Motorist Coverage on a Commercial Automobile Policy is to cover you or your employees while operating or occupying an owned automobile described on the policy. Court decisions in other jurisdictions have expanded the scope of the Uninsured/Underinsured Motorist Coverage beyond this intent. The Courts have ruled that the language in the Commercial Automobile Uninsured/Underinsured Motorist Covered endorsement was confusing. As a result of the confusing language, the Courts went on to say that employees of a business were entitled to the Uninsured/Underinsured Motorist Coverage of the employer’s Commercial Automobile policy while operating a non-business owned automobile for non-business purposes.
This broadening of coverage, unless corrected, will result in higher insurance premiums and increased legal fees for you and your business.
We want to help you protect what’s yours, so in response to these decisions, we have corrected the confusing language and returned the scope of Uninsured/Underinsured Motorist Coverage to its original intent. The Uninsured/Underinsured Motorist endorsement attached will only provide Uninsured/Underinsured Motorist Coverage to you or your employees while operating or occupying an owned auto described on the policy.
If you feel there is a need to extend any of the coverages of your Commercial Auto Policy to you or your employees for the use of any other automobile not described on the policy, we suggest you consult with your agent for assistance and guidance.

The Sterlings made a claim for underin-sured motorist benefits under both the Auto-Owners and the Ohio Casualty insurance policies. When Ohio Casualty declined to provide uninsured motorist coverage for the Sterlings’ claim, they filed an action for declaratory relief. The action also sought coverage from Auto-Owners. Both insurance policies were properly attached to the complaint. As explained earlier, the action against Auto-Owners settled. Thereafter, both the Sterlings and Ohio Casualty filed motions for summary judgment that are essentially motions for judgment oh the pleadings because neither party relies on facts or matters beyond the content of the complaint and the insurance policies attached to the complaint. The trial court ruled in favor of Ohio Casualty, and the Sterlings appeal that judgment.

On appeal, the Sterlings do not claim that the language of the business automobile policy is ambiguous. They recognize that Ohio Casualty wrote the policy to exclude coverage for the claim of the Sterlings’ son as a pedestrian. They argue that Florida law and the public policies surrounding that law prohibit Ohio Casualty from issuing such a policy and that the policy must be construed to provide coverage to the Sterlings’ son as a “Class I” insured. We disagree.

Section 627.727(1), Florida Statutes (2002), states, in relevant part:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder....

This statute has never mandated that specific persons be included in the policy’s definition of “persons insured thereunder.” No other statute requires a special definition of insured either for liability or uninsured motorist coverage. We note that the Florida Motor Vehicle No-Fault Law expressly requires PIP coverage on a motor vehicle policy to insure “the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle.” § 627.736(1), Fla. Stat. (2002). Thus, in at least one circumstance in which the legislature intended to mandate the definition of “insured,” it has done so expressly.

The Sterlings argue that the language in section 627.727(9)(d), which allows an insurance company to issue policies excluding coverage for “the named insured or family members residing in her or his household” under certain circumstances, compels all other policies issued to individuals to be written using the definition of “insured” that is appropriate for a family automobile insurance policy even if the vehicle is a business motor vehicle. The fact that the legislature approved this limitation on coverage does not suggest to this court that it intended to compel coverage in a business insurance policy for risks beyond the needs of a business.

In the absence of a statutory requirement, the Sterlings argue that Florida has announced a strong public policy favoring uninsured motorist coverage in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971). There is no question that the courts favor uninsured motorist coverage, but even in Mullís the court described this coverage as “family protection.” Id. at 233. The concept of providing coverage to family residents in the household of the named insured was based on the fact that the liability coverage in a family policy provided protection for family members. Even when the supreme court clarified the scope of this coverage in Government Employees Insurance Co. v. Douglas, 654 So.2d 118 (Fla.1995), it did so in the context of family automobile coverage. Admittedly, much of our case law and even portions of the statute are written with the expectation that the law applies to family automobile insurance policies, but we are unconvinced that this fact prohibits unincorporated businesses from purchasing the same business-oriented policies that are purchased by corporations. See Liberty Mut. Ins. Co. v. Weiss, 790 So.2d 475 (Fla. 3d DCA 2001) (business automobile policy did not provide UM coverage for pedestrian who was not insured thereunder). The holdings in Mullis and Douglas do not require an insurer to provide uninsured motorist coverage using a definition of “insured” in a business automobile policy that is a substantial expansion of the definition normally used in a business policy. The courts of Florida have never held that an unincorporated business must purchase a more expensive insurance policy covering nonbusiness risks unless it takes special steps to opt out of that coverage.

The leading treatise on uninsured motorist insurance observes:

When a motor vehicle insurance policy is issued to a partnership, the courts have usually concluded that it is appropriate to extend coverage to family members of the partners. Similarly, when insurance — acquired by the owner of a business — is issued in the trade name of the owner, coverage claims by that individual’s relatives have usually been sustained.

1 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 4.4, at 99-100 (rev.3d ed.) (footnote omitted). The cases cited for that proposition, however, seem to be distinguishable from the facts in this case. In several cases, the insurance policy expressly stated that if issued to an individual, coverage would extend to family members. See O’Hanlon v. Hartford Accident & Indem. Co., 639 F.2d 1019 (3d Cir.1981) (applying Delaware law); Gallups v. Aetna Cas. & Sur. Co., 513 F.Supp. 1074 (N.D.Ala.1981); Bushey v. N. Assurance Co. of Am., 362 Md. 626, 766 A.2d 598 (2001). We agree that the language of the insurance policy would control in such a situation, but the language of the policy in this case without ambiguity does not insure the Sterlings’ child.

In Patrevito v. Country Mutual Insurance Co., 118 Ill.App.3d 573, 74 Ill.Dec. 259, 455 N.E.2d 289 (1983), the court held that uninsured motorist coverage should be available for the individual who was actually the named insured on a policy issued in the name of the individual unincorporated business. It reasoned correctly that the trade name was not a separate entity and that the person insured was the individual who was doing business using the trade name. In this case, if Mr. Sterling had been the pedestrian, rather than his family member, coverage may have existed. The issue in this case, however, is not whether a trade name is a separate entity but whether a business automobile policy issued exclusively on commercial vehicles must use a definition of insured that includes the business owner’s family members. Nothing in the Florida statutes or the courts’ expressed public policies would appear to compel such a result.

Because the Sterlings also sued the insurer providing their family automobile coverage, this case clearly demonstrates that individuals have the ability to provide adequate uninsured motorist coverage for their families without intermingling family and business expenses. We emphasize that this is not a case in which a family placed its personal vehicle on a business policy. No one suggests that the insurance company issued an improper insurance policy. The flatbed truck was a business vehicle, and nothing in Florida law appears to compel an insurance company to issue uninsured motorist coverage on such a vehicle as if it were a family car.

Affirmed.

FULMER, C.J., and CANADY, J„ Concur.

      . A trailer is not self-propelled and has no motor. No one argues in this case that the policy was required to provide uninsured motorist coverage on a trailer.

      . If the courts were to so hold in the absence of an express statute, it is an interesting question how a business would prorate the cost of the policy for tax and accounting purposes to separate the deductible business expense from the nondeductible family expense.


author: WOLF, J. ERVIN, J.,

text:
    Miriam TIPTON, Appellant, v. E-Z SERVE CONVENIENCE STORES INC. and Royal & Sunalliance, Appellees.
    No. 1D05-2490.
    District Court of Appeal of Florida, First District.
    July 26, 2006.
    Karla G. Hart and Paul M. Anderson, of Anderson & Associates, P.A., Tallahassee, for appellant.
    Christopher J. DuBois and Mary E. Cruickshank, of DuBois & Cruickshank, P.A., Tallahassee, for appellees.
   WOLF, J.

Miriam Tipton (claimant) appeals from a final order of the Judge of Compensation Claims (JCC) determining the claimant is not entitled to attorney’s fees. We determine that the JCC’s factual findings were supported by competent substantial evidence and that his legal conclusion was correct. We, therefore, affirm.

The following factual recitation comes from the JCC’s order:

2. On November 11, 1996, the captioned Claimant, Miriam Tipton ... suffered a compensable accident by injury arising out of and within the course and scope of the Claimant’s employment with [appellee,] Employer. The Claimant came under the care and treatment of Dr. Michael Rohan, M.D., an orthopedic surgeon. Dr. Rohan was the Claimant’s authorized treating physician. The Claimant treated with Dr. Rohan for some time and then there was a hiatus in her treatment sometime in 2001 according to the depositional testimony of Rasha Youssef, the claims adjuster. Although, there is no evidence that Dr. Rohan was ever de-authorized by the Employer/Carrier, the doctor’s office incorrectly would not allow the Claimant to see the doctor when she attempted to make an appointment in the Fall of 2003. The Claimant retained legal counsel and filed two Petitions for Benefits (PFB). The first PFB dated October 1, 2003 was filed on October 6, 2003 and it requested an “[o]rthopedic surgeon based on the previously authorized physician (Dr. Rohan) has advised that he is no longer authorized to evaluate or treat the claimant.” ... On October 8, 2003, two days after the filing of the first PFB, counsel for the Employer/Carrier [E/C] ... furnished a correspondence by facsimile transmission to counsel for the Claimant advising counsel that if the Claimant “wishes to continue to treat with Dr. Rohan, he is willing to provide ongoing treatment. Please have your client contact Dr. Rohan and schedule an [sic] appointment at her convenience. If there are problems with the scheduling of an appointment, please let me knoiv.” Furthermore, by separate correspondence Mr. DuBois advised and provided Dr. Rohan with written confirmation of the Carrier’s authorization to continue to treat the Claimant. The continued authorization of Dr. Rohan was clear and unambiguous. At the final hearing, the Claimant testified that on two occasions thereafter she attempted to schedule an appointment with Dr. Rohan’s office but was unable to secure such an appointment from the doctor’s office. There is no evidence indicating that either the Claimant or her attorney requested the Carrier or their counsel to schedule an [sic] appointment for her after she again experienced difficulty setting an office visit. There is also no evidence indicating that the Carrier was aware that Claimant was having difficulty setting an appointment. [Rather than contacting the E/C, claimant filed a petition for benefits.] There was no showing by the Claimant that Dr. Rohan “no longer was authorized to evaluate or treat the Claimant” as alleged in her PFB.

The JCC further found,

At no time was there any resistance by the Employer/Carrier to the continuation of authorization of Dr. Rohan as the Claimant’s treating physician and that was stated in the abbreviated final order. The problems with the scheduling an appointment for the Claimant with Dr. Rohan was caused by the doctor’s office and not any action of the Employer/Carrier. Nor was there any evidence that the Claimant specifically requested the Carrier to schedule an appointment for her.

Based upon these facts, the JCC reached the following conclusion:

5. I find that although the Abbreviated Final Order of June 29, 2004 required the Employer/Carrier to “further clarify the authorization of Dr. Rohan, M.D., so that said physician’s office will schedule appropriate medical appointments for the Claimant” there was no award of any new benefit consisting of another orthopedic surgeon or primary care physician as claimed in her PFBs. The order held that the Carrier had authorized care with Dr. Rohan. The order requested the Carrier to again “clarify” the doctor’s authorization in an effort to avoid further delay in scheduling an appointment for the Claimant.
6. After considering the evidence and testimony presented in this cause, I find that if the Claimant, or her counsel, had clearly communicated their desire to have the Carrier schedule an appointment, this matter could have been amicably resolved without the protracted litigation and expense that took place here. In conclusion, I find the Claimant was not successful in securing any medical benefit that she claimed or that was not already being provided to her by the Employer/Carrier, and that the abbreviated final order only resulted in an administrative directive to the Carrier to contact Dr. Rohan and again clarify his continued authorization to treat the Claimant. Therefore, based on the above I must find no entitlement to an award of an attorney’s fee or reimbursable taxable costs under section 440.34(3)(a), Florida Statutes, permitting fees be paid by the Employer/Carrier against whom Claimant successfully asserts claim for medical benefits.

We cannot improve on the well-reasoned order of the JCC. AFFIRMED.

DAVIS, J., Concurs; ERVIN, J., Dissents with Opinion.

ERVIN, J.,

dissenting.

Certain findings in the judge of compensation claims’ (JCC’s) order denying attorney’s fees and costs are inconsistent with what he had earlier found in his abbreviated final order. For example, in the order of denial, the judge concluded: “I find the claimant was not successful in securing any medical benefit that she claimed or that was not already being provided to her by the employer/carrier, and that the abbreviated final order only resulted in an administrative directive to the carrier to contact Dr. Rohan and again clarify his continued authorization to treat the claimant.” This finding appears to be in direct conflict with the finding previously made by the judge in his abbreviated final order:

4. The evidence presented supports the position of the Claimant concerning the issue that she is unable to receive medical care with her previously authorized treating physician, Dr. Michael Ro-han, M.D., although the Employer/Carrier authorized such care.

As a result of the above finding, the judge ordered the employer/carrier (E/C) to furnish further palliative care to claimant and to clarify the authorization of Dr. Rohan to enable his office to schedule claimant appropriate appointments.

In addition to the above, the judge made a finding in the order of denial that is directly contradicted by the record, stating:

After considering the evidence and testimony presented in this cause, I find that if the Claimant, or her counsel, had clearly communicated their desire to have the Carrier schedule an appointment, this matter could have been amicably resolved without the protracted litigation and expense that took place here.

He otherwise found that there was no “evidence that the claimant specifically requested the carrier to schedule an appointment for her.”

The judge’s finding in this regard requires a more detailed recitation of the facts than those provided in the order, quoted in the majority’s opinion. After filing her two petitions for benefits, seeking further authorization of medical care in October 2003, the claimant twice unsuccessfully attempted to schedule appointments with Dr. Rohan, once shortly before mediation was conducted on January 15, 2004, and the second, one week before the final merits hearing before the JCC, beginning May 27, 2004. The claimant herself testified, without contradiction, that following mediation, while riding down the elevator with the E/C’s attorney, she had expressed to him her request, due to her inability to receive medical treatment, for the provision of other medical care.

The parties’ attempt to resolve their differences through mediation was also unsuccessful and resulted in an impasse. Finally, it was not until the entry of the abbreviated order in June 2004, that the E/C was finally directed to instruct Dr. Rohan for the purpose of his office scheduling appropriate medical appointments on behalf of claimant. Obviously, the record of the proceedings clearly shows that claimant, through her counsel, had communicated her desire for the claimant’s continued treatment by Dr. Rohan through the filing of their petitions, through the unsuccessful mediation proceeding, and finally through the completion of the merits hearing, involving a lapse of nearly nine months until the entry of the abbreviated order.

Although, as the JCC found in the order denying fees, the abbreviated final order did not award any benefit, it in fact served to require the carrier to facilitate treatment that had been authorized but was not provided, even though the E/C was aware through its attorney that Dr. Rohan had refused to see the claimant. The record thus indicates that the carrier was indifferent to the claimant’s unsuccessful efforts to obtain treatment for her continuing pain following knee replacement. It obviously ignored the claimant’s request for assistance and did not respond to the two petitions for benefits. This is precisely the type of passive resistance or indifference that the attorney-fee statute was designed to correct: to “assur[e] the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. A number of years ago, this court addressed an employer’s failure to adequately monitor a worker’s progress in the context of a claim for a bad-faith attorney-fee award, saying:

The delay or denial of payment, without a showing of active effort and initiative on the part of the carrier to fairly and expeditiously determine its obligation to place needed benefits in the hands of the injured worker is totally inconsistent, in our view, with the notion that claimant is entitled under this law to have his benefits paid without the necessity of first seeking the advice and services of an attorney for the simple purpose of making his claim of entitlement to benefits known to the carrier.

Fla. Erection Servs., Inc. v. McDonald, 395 So.2d 203, 211 (Fla. 1st DCA 1981).

The situation in this case is analogous to the facts set forth in Mylock v. Champion International, 906 So.2d 363 (Fla. 1st DCA 2005), in which the E/C advised claimant that his care was being transferred from his authorized treating physician to a “replacement physician.” The claimant filed a petition for benefits seeking continued authorization of his treating physician. The E/C responded, a mediation conference was held, and a report was filed indicating that all issues had been resolved, including the continued authorization of claimant’s treating physician and payment of a medical bill. Claimant’s counsel filed a petition for attorney’s fees based on the successful prosecution of the medical benefits claim. The JCC denied the petition, finding the carrier never informed claimant’s treating physician that claimant was being transferred to another doctor, and further finding claimant had not been denied treatment. This court reversed, because the claimant prevailed on his medical benefits claim through his attorney’s efforts, albeit through mediation rather than the necessity of a merits hearing. Id. at 366. In comparison, the record in the present case is clear that but for the intervention of claimant’s counsel, which culminated in the abbreviated order confirming claimant’s entitlement to continued care by her authorized physician, she would not have received the treatment that was authorized but not provided.

The judge’s interpretation of the carrier’s responsibilities in regard to an injured employee of whom it is clearly on notice is not receiving the treatment needed is clearly at variance with the legislative intent in its enactment of the workers’ compensation legislation. For all of the above reasons, I would reverse the order denying fees and remand with directions for the judge to award a reasonable attorney fee.

      . “To malee clear; to free of confusion; to make understandable” Webster’s Ninth New Collegiate Dictionary, p. 245.