author: GROSS, J.

text:
    Sylvia FORMAN, Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D06-1770.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Sarah Leftow, Boynton Beach, Advocate for Appellant.
    Terry P. Verduin, Assistant District Legal Counsel, West Palm Beach, for appel-lee.
   ORDER DIRECTING ADDITIONAL FILING

GROSS, J.

Sylvia Forman is a ninety-year-old woman who has been residing in a skilled nursing facility since 2005. In this case she challenges a final order rendered by a hearing officer affirming the Department of Children and Families’ denial of Medicaid benefits under the Institutional Care Program for August through November, 2005.

Mrs. Forman’s daughter, Sara Leftow, has filed a brief on behalf of her mother. It appears that Ms. Leftow is acting under a power of attorney to proceed on her mother’s behalf. Ms. Leftow’s brief raises valid points of concern.

However, pleadings filed by a non-lawyer on behalf of another are a nullity. See Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040, 1043 (Fla.2000). The same rule applies to briefs filed in this court. Ms. Leftow’s power of attorney to act on her mother’s behalf authorizes her to act as her mother’s agent, not as her mother’s attorney at law. See Hodges v. Surratt, 366 So.2d 768, 773 (Fla. 4th DCA 1979); Pryor v. King, 485 So.2d 28, 29 (Fla. 1st DCA 1986) (holding that trial court was correct in not allowing appellant’s wife, who was armed with appellant’s power of attorney, to represent him in a quiet title action).

The Florida rule declaring a non-lawyer’s pleadings filed on behalf of another to be a nullity is the product of the state’s policy against the unauthorized practice of law. See Torrey, 769 So.2d at 1043. However, to strike the brief would unjustly place form over substance. Id. at 1045-46. Therefore, appellant shall have 30 days to do any one of the following: (1) file an amended brief signed by Ms. For-man, assuming she is competent to do so, or (2) secure the representation of an attorney who may file an amended initial brief or adopt the previously filed initial brief in a notice of appearance, or (3) file proof that Ms. Leftow is an attorney licensed to practice law in Florida.

WARNER and TAYLOR, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Sylvia FORMAN, Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D06-1770.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Morton Kosto of Law Office of Steven E. Slootsky, Fort Lauderdale, for appellant.
    Terry P. Verduin, Assistant District Legal Counsel, West Palm Beach, for appel-lee.
   GROSS, J.

Sylvia Forman challenges a final order denying her Medicaid benefits under the Institutional Care Program (ICP) for August through November 2005 due to For-man’s failure to establish an income trust account prior to December 2005. We reverse.

Forman is 90 years old and does not have substantial assets. Her only income is a monthly pension check from the American Postal Workers’ Union of $1,904.

In the spring of 2005, Forman’s doctors told Sarah Leftow, Forman’s daughter, that it was necessary for Forman to live in a skilled nursing facility.

At that time, Leftow began the Medicaid approval process on Forman’s behalf. The Department of Children and Families assigned the matter to case specialist Marle-na Roker. On August 18, 2005, Forman submitted an application for ICP Medicaid benefits. Leftow submitted all the papers and documents that Roker told her were required for Medicaid eligibility. Leftow and Roker never discussed a Medicaid income trust account.

On August 24, 2005, Forman was admitted into Manor Care of Boca, a skilled nursing facility. Forman did not have the money for such a facility without Medicaid assistance. Manor Care therefore accepted Forman as a Medicaid pending resident, which meant that the facility anticipated Medicaid reimbursement for the time Forman spent in Manor Care prior to approval.

Leftow established a checking account at Amtrust Bank in August, 2005. The sole function of the account was to receive direct deposits of Forman’s pension check. In September, 2005, a pension check was deposited into the checking account. Lef-tow immediately sent all of the proceeds from the check to Manor Care, thus creating what she described as a “de facto trust.”

In December 2005, Roker notified Lef-tow that her mother’s application for Medicaid benefits had been denied because a proper income trust account had not been established. This was the first time that DCF notified Leftow that establishment of an income trust account was a necessary prerequisite to Forman’s eligibility for ICP Medicaid benefits. Leftow testified at the hearing that had Roker informed her of this requirement, she would have established and funded an income trust account. Leftow relied upon the expertise of a “specialist” like Roker to determine what she needed to submit to ensure that her mother would be eligible for benefits.

Immediately after the notification from DCF, Leftow established a Medicaid income trust account. DCF then found For-man to be eligible for Medicaid. Medicaid paid for the services given to Forman beginning December 2005. Forman was deemed responsible for the shortfall to Manor Care from August 24, 2005 through November 30, 2005 because of the failure to establish an income trust account.

Because Forman is indigent, she was unable to make any payments for these months. Manor Care notified Forman and her family that Forman would be discharged from the facility unless the nursing home bills were paid. Forman’s family has no funds to pay the nursing facility.

Forman appealed the denial of ICP benefits for August through November 2005. In his order denying the appeal, the hearing officer ruled that denial of benefits for August through November, 2005, was correct because ICP benefits were authorized only after the income trust was established in December, 2005.

Florida Administrative Code 65A-1.713, SSI-Related Medicaid Income Eligibility Criteria provides, in pertinent part:

(1) Income limits. An individual’s income must be within limits established by federal or state law and the Medicaid State Plan. The income limits are as follows:
(d) For ICP, gross income cannot exceed 300 percent of the SSI federal benefit rate after consideration of allowable deductions set forth in subsection 65A-1.713(2), F.A.C. Individuals with income over this limit may qualify for institutional care services by establishing an income trust which meets criteria set forth in subsection 65A-1.702(15), F.A.C.

(Emphasis added).

Florida Integrated Public Policy Manual, passage 1840.0110 Income Trusts (MSSI) describes the prerequisites for creating a qualified income trust. The Manual also states that

The Economic Self-Sufficiency Specialist must advise the individual that they cannot qualify for Medicaid institutional care services or HCBS for any month in which their income is not placed in an executed income trust account in the same month in which the income is received. (This may require the individual to begin funding an executed income trust account prior to its official approval by the District Legal Counsel.)

(Emphasis added). This policy recognizes that those seeking admission to a skilled nursing facility often will require the assistance of government specialists to navigate the complexity of applicable Medicaid-related regulations.

Where an applicant has in good faith attempted to comply with a welfare regulation and an agency representative has not complied with an obligation to fully inform the applicant of eligibility requirements, Florida courts have held applicants to be eligible for benefits. See generally Pond v. Dep’t of Health & Rehab. Servs., 503 So.2d 1330 (Fla. 1st DCA 1987); Buckley v. Dep’t of Health & Rehab. Servs., 516 So.2d 1008, 1009 (Fla. 1st DCA 1987); Gonzalez v. Dep’t of Health & Rehab. Servs., 558 So.2d 32 (Fla. 1st DCA 1989).

In Pond, an Aid to Families with Dependent Children (AFDC) applicant told a caseworker that her rent was $95 per week and that she received money to pay the rent directly from friends and neighbors. 503 So.2d at 1331. The caseworker did not explain that under the Department’s “vendor payment” policy, money paid by another on behalf of an applicant did not count as “income” if it was paid directly to a vendor, such as a landlord. Id. In affirming the denial of benefits, the hearing officer concluded that HRS personnel were not required to counsel applicants about changing their existing financial arrangements. Id. at 1332. However, the first district reversed, finding that “where, as here, a caseworker is presented with specific and revealing information regarding the applicant’s eligibility for benefits, that caseworker has an affirmative duty under 45 CFR § 206.10(a)(2)(i) to inform that applicant at least orally of the conditions relevant to her eligibility.” Id. at 1332-33.

Similarly, in Buckley, an AFDC applicant was denied benefits because her name appeared on a deed as joint owner of real estate having a net equity value of $9,097. HRS concluded that the applicant’s interest was worth $4,548, which exceeded the permissible asset limit and defeated her eligibility for benefits. 516 So.2d at 1009. The first district reversed an order denying benefits, finding that HRS failed to fulfill its duty to fully inform the applicant of eligibility requirements, so that she could have had her property excluded from the asset computation for six months while she tried “to dispose of her interest or seek a declaration that her interest was subject to a legal restriction.” Id. at 1010; see also Gonzalez, 558 So.2d at 32.

The obligation imposed upon DCF by passage 1840.0110 of the policy manual is similar to that created by 45 C.F.R. § 206.10(a)(2)(i) in Buckley and Pond. Leftow set up an account to transfer the entire proceeds of her mother’s pension check to Manor Care. She is correct that she created a de facto income trust. Had she known the specifics of the income trust, she would have complied with that requirement. Because Forman was erroneously deprived of benefits as a result of the failure of the DCF specialist to comply with the policy manual, the order denying benefits is reversed, and the case is remanded for further proceedings consistent with this opinion.

WARNER and TAYLOR, JJ., concur.

      . Section 65A-1.701(26), Florida Administrative Code, defines a "Qualified Income Trust” as one "established on or after October 1, 1993, for the benefit of an individual whose income exceeds the ICP income standard and who needs institutional care or Home and Community Based Services. The trust must consist of only the individual’s pension, Social Security and other income. The trust must be irrevocable and provide that upon the death of that individual the State shall receive all amounts remaining in the trust up to an amount equal to the total amount of medical assistance paid on behalf of that individual pursuant to the state's Title XIX state plan.”


author: MONACO, J.

text:
    Henry BLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3786.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.
    Rehearing Denied April 5, 2007.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Henry Blanton seeks review of his judgment and sentence resulting from his conviction of two counts of aggravated battery with a firearm, and one count of unlawful possession of a firearm while engaged in a criminal offense. Basically, Mr. Blanton admitted shooting his wife and son-in-law, but asserted that he did so in self-defense. Because of a violation of the double jeopardy clause, and because of an instructional error, we reverse. We note, as well, an evidentiary issue that should be corrected on any retrial of Mr. Blanton.

The instructional error grows out of the giving by the trial court of the jury instruction on the justifiable use of force. The instruction to the jury read, “the use of force likely to cause death or great bodily harm is not justifiable if you find: Henry Blanton was attempting to commit, committing, or escaping after the commission of a forcible felony.”

This instruction, which is founded upon section 776.041, Florida Statutes (2003), essentially limits a defendant’s use of self-defense. The use of force is not justifiable, according to the statute, if the person asserting it is “attempting to commit, committing, or escaping after the commission” of a felony involving the use of force. Giving the “forcible felony instruction” is inappropriate unless the defendant is charged with at least two acts: the act for which the accused is claiming self-defense as well as a separate forcible felony. See Bertke v. State, 927 So.2d 76 (Fla. 5th DCA 2006); Carter v. State, 889 So.2d 937 (Fla. 5th DCA 2004), review denied, 903 So.2d 190 (Fla.2005); Cleveland v. State, 887 So.2d 362 (Fla. 5th DCA 2004). As has been pointed out in all of the cited cases, unless a separate felony is involved, the forcible felony instruction is circular in its logic and negates the defense of self-defense. The critical issue before us, however, arises out of the fact that the defense failed to object to the instruction in the trial court. Thus, unless the error is fundamental, it is waived.

Many decisions support the proposition that this particular instructional error is fundamental. See, e.g., Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006); Cleveland; Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). This court has, in fact, certified this issue to the Florida Supreme Court on a number of occasions, most recently in Slattery v. State, 32 Fla. L. Weekly D305, — So.2d -, 2007 WL 186947 (Fla. 5th DCA Jan.26, 2007); and Zinnerman v. State, 942 So.2d 932 (Fla. 5th DCA 2006). Thus, while we reverse the judgments and sentences on this issue, we again certify the following issue to the Florida Supreme Court:

DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?

The double jeopardy violation, the second basis for reversal, is properly conceded by the State. A criminal defendant may not be convicted and sentenced for possession of a firearm while engaged in a felony when the underlying felony involves the use of a firearm. See Hall v. State, 517 So.2d 678 (Fla.1988). Here, the count for unlawful possession of a firearm while engaged in a criminal offense is subsumed within the counts for aggravated battery with a firearm. Thus, the conviction for unlawful possession of a firearm while engaged in a felony and the sentence imposed with respect to that offense must, in any event, be vacated. See Salazar v. State, 892 So.2d 545, 546 (Fla. 3d DCA), review dismissed, 905 So.2d 126 (Fla.2005); Grene v. State, 702 So.2d 510 (Fla. 3d DCA 1996); see also Smith v. State, 548 So.2d 755 (Fla. 5th DCA 1989). Accordingly, in the event that Mr. Blanton is retried for the subject offenses, he may not be convicted and sentenced of both the aggravated battery with a firearm and the related firearm possession offense.

Finally, we note as well that the trial court erred in allowing the State to call and examine Mr. Blanton’s confidential mental health expert, Dr. Ward, because Mr. Blanton had not waived the privilege he had with respect to communications with that expert. See Lovette v. State, 636 So.2d 1304 (Fla.1994). On retrial, Dr. Ward may not, absent a waiver, be called by the State.

REVERSED and REMANDED.

PLEUS, C.J. and SAWAYA, J„ concur.

      . § 784.045(l)(a)2., Fla. Stat. (2003).

      . § 790.07(2), Fla. Stat. (2003).

      . Slattery also holds that the instruction is fundamentally erroneous even where, as here, the defendant is charged with two acts, but claims self-defense as to each.


author: LEWIS, J. THOMAS, J.,

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant/Cross-Appellee, v. Thomas UEBERSCHAER, Appellee/Cross-Appellant.
    No. 1D06-0291.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Order Granting Certification May 25, 2007.
    Rehearing Denied May 25, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    Eric P. Sventek of Thomas J. Ueber-schaer, P.A., Pensacola; Louis K. Rosenbl-oum of Louis K. Rosenbloum, P.A., Pensacola, for Appellee.
   LEWIS, J.

Appellant/Cross-Appellee, Citizens Property Insurance Corporation (“Citizens”) seeks review of a final judgment in favor of Appellee/Cross-Appellant, Thomas Ueberschaer (“Ueberschaer”), which concluded, in pertinent part, pursuant to the 2004 version of Florida’s Valued Policy Law (“VPL”), as interpreted by Mierzwa v. Florida Windstorm Underwriting Ass’n, 877 So.2d 774 (Fla. 4th DCA 2004), that: Ueberschaer’s dwelling was insured for a covered peril; it was a constructive or actual total loss; and awarded policy limits for Ueberschaer’s dwelling, other structures coverage, and ordinance and law coverage. For the reasons expressed herein, we reverse the trial court’s final judgment to the extent it awards Ueber-schaer policy limits for other structures coverage and ordinance or law coverage, and remand for further proceedings consistent with this opinion. We otherwise affirm the final judgment. We find no error with respect to the remaining issues on appeal and the cross-appeal and, thus, decline to address those issues further.

I. Background

Citizens is a statutorily created insurer of last resort authorized to write insurance in Florida in accordance with section 627.351(6), Florida Statutes (2004), which limits Citizens’ mission to providing wind-only coverage. Ueberschaer owned a two-story dwelling and detached pool house in Santa Rosa County. Citizens issued a homeowners’ policy to Ueberschaer, which covered his dwelling and pool house for loss or damage caused by windstorm and other named perils with the following limits of liability: Coverage A — Dwelling ($456,300); Coverage B — Other Structures ($45,630); Coverage C — Personal Property ($228,150); and Coverage D — Loss of Use ($45,630). As pertinent to this case, damage caused by flood is specifically excluded from coverage.

On September 16, 2004, Ueberschaer’s property sustained extensive damage from both windstorm and storm surge caused by Hurricane Ivan. As a result, the Santa Rosa County Building Inspection Department issued a notice of determination of “substantial damage” to Ueberschaer which included the following directive:

As a result of a substantial damage determination, the County has determined that your structure received damages exceeding 50% of the pre-damage structure value as the result of the flooding related to Hurricane Ivan, on September 16, 2004.
Under the [National Flood Insurance Program (“NFIP”) ] requirements (44 Code of Federal Regulations 59.1), structures located within the 100-year floodplain that receive damage of any origin, whereby the cost of restoring the structure would equal or exceed 50% of the structure value, must be brought into compliance with the NFIP requirements. For residential structures with more than 50% damage, the structures must be either removed from the floodplain or have the lowest floor (including basement) elevated to or above the 100-year flood elevation. Failure to comply with this requirement will result in fines and/or legal action by the County against the owner of the structure.

Although Citizens acknowledged the county’s substantial damage determination, it informed Ueberschaer that it would pay only the damage actually caused by windstorm because the covered peril of windstorm did not cause one hundred percent of the damage.

Thereafter, on December 22, 2004, Ue-berschaer filed suit against Citizens, claiming the policy limits for his dwelling, pool house, personal property, and additional living expenses (loss of use). He alleged, among other things, that the substantial damage determination issued by Santa Rosa County rendered the insured property a total loss, which entitled him to policy limits from Citizens under the VPL, section 627.702(1), Florida Statutes (2004). He further alleged that Citizens had breached the insurance contract because he made a demand for the full amount of coverage, but Citizens failed to make such payment.

On May 19, 2005, Ueberschaer filed a Motion for Summary Judgment, arguing there was no genuine issue of material fact and that he was entitled to judgment as a matter of law pursuant to Mierzwa. Ue-berschaer alleged the flood elevation certificate issued to him revealed that the top of the bottom floor of the house in question fell below the applicable base flood elevation and that, as a result, the only way for him to conform to current construction requirements was to demolish the house and rebuild at or above the appropriate base flood elevation. According to Ueber-schaer, this represented a constructive or actual total loss of the residence, and Citizens had acknowledged that the residence had been determined to be a total loss.

In its answers to Ueberschaer’s first request for admissions, which were also filed in support of the Motion for Summary Judgment, Citizens admitted that Ueberschaer’s residence had sustained some wind damage. In its answers to Ueberschaer’s second request for admissions, Citizens admitted: the Santa Rosa County Building Inspection Department had issued a Notice of Determination of substantial damage regarding the property in question; some of the damage was caused by a covered peril; and it sent Ueberschaer a letter dated January 21, 2005, stating in part that his residence had been determined to be a total loss.

Citizens subsequently filed a memorandum of law opposing Ueberschaer’s Motion for Summary Judgment, in which it argued, among other things, that its enabling legislation precluded liability for flood damage, that Mierzwa was not controlling and conflicted with established principles of Florida law, and that the 2005 amendment to the VPL made clear that Mierzwa contradicts the legislative intent behind the VPL. Following the hearing on Ueber-schaer’s Motion for Summary Judgment, the trial court issued an Order Granting Plaintiffs Motion for Summary Judgment, in which it found that there was no material dispute as to the facts that the house at issue was insured as to a covered peril and that it was a constructive or actual total loss. Accordingly, it granted summary judgment pursuant to Mierzwa.

On August 30, 2005, the trial court entered a Final Judgment, awarding Ueber-schaer $421,906.76 for Coverage A — Dwelling, $41,734.81 for Coverage B — Other Structures, $42,370 for Coverage D — Loss of Use, policy limits for Code Compliance Endorsement, also referred to as ordinance or law coverage, which amounted to twenty-five percent of Coverage A or $114,075, and prejudgment interest of $33,564.18. The amounts awarded for Coverages A, B, and D are equal to the policy limits for each type of coverage less payments Citizens had already made to Ueberschaer.

During a September 7, 2005, hearing on Citizens’ Motion for Rehearing on Plaintiff’s Motion for Entry of Final Judgment, Citizens asserted the Final Judgment included damages not previously addressed. Citizens argued that the VPL did not apply to the ordinance or law coverage because the amount of coverage was not directly stated in the policy but, rather, was a percentage of another type of coverage provided by the policy. Thus, Citizens argued Ueberschaer should only be entitled to costs actually incurred to comply with laws or ordinances and because no such evidence was presented, the record did not support any award for ordinance or law coverage. Citizens further argued an award for other structures coverage was unwarranted because there was no evidence regarding damages done to structures other than the house. Citizens also contended that the VPL was inapplicable to loss of use coverage and that an award for loss of use was also unwarranted because it was not supported by any evidence. Ueberschaer argued the VPL applied to all types of coverage at issue and, thus, Citizens was liable for policy limits as to each type.

Following that hearing, the trial court vacated the Final Judgment and entered an Amended Final Judgment, in which it awarded Ueberschaer the same amounts for Coverage A — Dwelling and Coverage B — Other Structures, denied further recovery for Coverage D — Loss of Use and ordinance or law coverage, and reserved jurisdiction to hear evidence and argument on Ueberschaer’s entitlement to additional amounts for the latter two types of coverage. The trial court also found that Ue-berschaer was not entitled to prejudgment interest.

Following a hearing on the issues of loss of use and ordinance or law coverage, and on Ueberschaer’s Motion for Rehearing regarding his entitlement to prejudgment interest, the trial court issued a second Final Judgment awarding the previously stated amounts for Coverages A and B, $42,370 for Coverage D — Loss of Use, and $114,075 for ordinance or law coverage (Code Compliance Endorsement). As it had done in its previously entered Amended Final Judgment, the trial court denied Ueberschaer’s claim for prejudgment interest. This appeal and cross-appeal followed.

II. Standard of Review

As both parties acknowledge, the standard of review of the granting of final summary judgment in the case before us is de novo. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005); Davis v. Bruhaspati, Inc., 917 So.2d 350, 351 (Fla. 1st DCA 2005).

III. Analysis

A. Flood Exclusion and Anti-Concurrent Cause Clause Provision

Turning now to the merits, Citizens argues the VPL does not override Citizens’ flood exclusion nor its anti-concurrent cause clause (“ACCC”). We disagree. This argument is based on Citizens’ disagreement with the holding in Mierzwa that the VPL, prior to the 2005 amendments, requires payment of policy limits when a total loss is caused by a combination of wind and flood even when the policy contains a clause specifically excluding flood damage. See id. at 777-79. The 2004 version of the VPL, which is applicable to this case, provides in pertinent part:

In the event of the total loss of any building ... located in this state and insured by any insurer as to a covered peril ... the insurer’s liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid.

§ 627.702(1).

In Mierzwa the insured had a windstorm insurance policy with Florida Windstorm Underwriting Association (“FWUA”), which had a face value of $281,000, contained an ACCC similar to Citizens’ ACCC that excluded coverage for any damage other than that caused by wind, and expressly excluded flood damage. 877 So.2d at 775-76. The insured also had separate flood insurance coverage from another insurer. Id. at 776. The insured’s home was badly damaged by a hurricane, and the insured filed claims under both policies. Id. FWUA took the position that it was liable for $73,177 as a result of the wind damage, while the flood insurer determined that the cost to repair the flood damage was $54,485. Id. Thus, the combined cost of repairs for both wind and flood damage was $127,662, and wind damage represented fifty-seven percent of that total. Id. The local building official determined that the total cost of repairs to the insured building would exceed half its value, which meant that pursuant to a local ordinance, the building had to be made to conform to building code rules applicable at the time the repairs were made. Id. at 776-77. FWUA argued the ACCC excluded its liability for the total amount of the policy under the YPL because the total loss was caused partially by flood, a specifically excluded peril. Id. at 777. Thus, FWUA argued, the text of the VPL had to give way to the ACCC, which made it liable for only fifty-seven percent of the damage. Id. The trial court agreed and entered judgment in favor of FWUA, but the Fourth District reversed, holding the VPL was applicable and required FWUA to pay policy limits. Id. at 777-78.

The Mierzwa court held that where a covered peril caused part of the damage to a structure that has been determined to be a total loss, the VPL requires the insurance carrier to pay policy limits. Id. at 777. In so holding, the Mierzwa court applied the plain meaning of the statute to reject FWUA’s argument that its liability was limited to the pro rata share of the loss caused by wind:

The meaning of the VPL is simple and straightforward. There are two essentials in the statute. The first is that the building be “insured by [an] insurer as to a [e.s.] covered peril.” § 627.702(1). The second is that the building be a total loss. If these two facts are true, the VPL mandates that the carrier is liable to the owner for the face amount of the policy, no matter what other facts are involved as to the cost of repairs or replacement. That is to say, if the insurance carrier has any liability at all to the owner for a building damaged by a covered peril and deemed a total loss, that liability is for the face amount of the policy.
The VPL statutory text does not require that a covered peril be the covered peril causing the entire loss; it need merely be a covered peril. Plainly when these requisites exist, pro rata liability under the VPL would be in conflict with its terms, because the VPL provides that any liability of a casualty insurer where a covered peril is involved in a total loss must be for the face amount rather than pro rata with other coverages.

Id. at 775-76 (alterations in original) (citations omitted). Further, the Mierzwa court found the ACCC did not relieve the insurer’s liability under the VPL because the statute and the clause conflicted, which created an ambiguity in the policy. Id. at 777. Following the rule that ambiguities in insurance contracts are to be resolved in favor of the insured, the Mierzwa court applied the VPL as written. Id. at 777-78. Applying the Mierzwa court’s straightforward analysis to this case, because a covered peril (windstorm) contributed to the damage of a structure determined to be a total loss, Citizens is liable under the VPL for the face amount of its policy.

Recently, after the trial court entered its final judgment in the present case, this Court cited Mierzwa’s above-quoted interpretation of the VPL with approval and held the plain language of the 2004 version of the VPL makes the insurer liable, if at all, then in the full amount for which the property was insured, even where multiple perils contribute to the total loss of the property. Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823, 827-28 (Fla. 1st DCA 2006), jurisdiction accepted, 948 So.2d 758 (Fla.2007). In doing so, this Court found that the 2005 amendment to the VPL cannot be read as a clarification of the legislative intent behind its predecessor because the amendment unambiguously states that it is not to be applied retroactively to claims filed before it was enacted and, thus, it was intended only to effect a prospective change in the law. Id. at 829. In regard to the 2004 version of the VPL, which is applicable here, we pointed out in Cox that “[bjecause the VPL has been amended since, moreover, there is no danger that people will rush out to cancel their flood insurance, counting on windstorm insurers to cover any total loss.” Id. at 835. This Court also made clear that the VPL controls when it conflicts with provisions of the insurance policy at issue. Id. at 832-33. As such, Citizens’ arguments that the VPL does not override the ACCC and flood exclusion in its policy and that Mierzwa misinterpreted the VPL in concluding that insurers are liable for policy limits when wind and flood combine to cause a total loss are without merit. Since Ueberschaer’s dwelling sustained a total loss, the VPL foreclosed Citizens’ challenge to Ueberschaer’s measure of damages for his dwelling.

Citizens also argues that, even if the VPL could be construed as it was in Mi-erzwa, the fact that Citizens is statutorily authorized to provide only windstorm coverage and is prohibited from providing flood coverage would prevent application of the VPL to sustain Ueberschaer’s position. We reject Citizens’ argument that imposing liability against the insurer under the VPL for a total loss caused by a combination of wind and flood conflicts with its enabling legislation, which limits Citizens’ mission to providing wind-only coverage. See § 627.351(6)(q). We find no conflict between the relevant provisions of Citizens’ enabling legislation, section 627.351(6)(q), and the VPL, section 627.702(1), as they address different situations. See generally Farris v. Fla. Dep’t of Children & Families, 941 So.2d 512, 513 (Fla. 1st DCA 2006) (finding no conflict between two provisions because the statutes referred to two different types of income/situations).

Citizens’ enabling statute provides in pertinent part: “the risk will not be covered for flood damage” and “policyholder ... making a claim for water damage against the corporation shall have the burden of proving the damage was not caused by flooding.” § 627.351(q), Fla. Stat. (2004). Here, Ueberschaer is not making a claim for flood or water damage, as the statute addresses. Instead, Ueberschaer is making a claim for windstorm damages and corresponding total loss costs by requesting a fixation of the measure of damages equal to the predetermined amount in the policy. Citizens’ enabling statute and the VPL address different situations, and the pertinent situation here, that of fixing the measure of damages where there is a total loss, is addressed by the VPL. See § 627.702(1). The insurance carrier is, therefore, responsible for the amount predetermined as policy limits. Citizens is not required to provide flood coverage, as prohibited by its enabling statute. Instead, Citizens is required only to pay policy limits when windstorm contributes to a total loss, regardless of other contributors.

If the insurance carrier aspire[d] to apportion total loss damages under the VPL when differing causes combine to create a total loss, they should begin that effort with express text ... When carriers do include appropriate text, a court can assess whether such a provision has the desired effect. Here we have no occasion to make that judgment because we face no such text.

Mierzwa, 877 So.2d at 779. Express text also could have been included in Citizens’ enabling statute, but instead, it is silent as to a total loss situation and subsequent apportionment of damages, and thus “we have no occasion to make that judgment.” See id.

Further, neither Mierzwa nor Cox requires Citizens to provide flood coverage, but only to pay policy limits for windstorm coverage when flooding contributes to a total loss partially caused by windstorm. Nothing in the enabling legislation prevents this Court from imposing liability against Citizens under the VPL when flood contributes to a total loss partially caused by wind. As Citizens’ enabling legislation does not exempt it from complying with the VPL or provide it preferential treatment over private insurance carriers, Citizens’ argument is without merit. See § 627.351(6).

Our holding is further buttressed by this Court’s analysis of the purpose of the VPL in Cox. “The purpose of a valued policy law is to fix the measure of damages when there is a total loss.... ‘[A]n important object of the statute is also to simplify and facilitate prompt settlement of insurance claims when a total loss occurs.’ ” Cox, 943 So.2d at 831 (quoting Springfield Fire & Marine Ins. Co. v. Boswell, 167 So.2d 780, 784 (Fla. 1st DCA 1964)). Another purpose is to reduce administrative costs:

Insurance companies need not incur expenses for experts to pick through rubble to ascertain, for example, whether hurricane damage was done by wind-driven surface water spray, on one hand, or rainfall in a windstorm, on the other; nor, when experts disagree on such questions, does the VPL require the parties to bear the additional expense of litigation.

Cox, 943 So.2d at 832. Here, the focus of Ueberschaer’s claim is to fix his damages where a covered peril caused part of the total loss, which will spare additional costs consistent with the language and purpose of the VPL. Since Ueberschaer’s dwelling sustained a total loss, the VPL foreclosed Citizens’ challenge to Ueberschaer’s measure of damages for his dwelling. Accordingly, we affirm the trial court’s determination that, under the circumstances of this case, Ueberschaer sustained a total loss to his dwelling, which entitled him to the policy limits for his dwelling under the 2004 VPL.

B. Application of the VPL to Other Structures and Law or Ordinance Coverages

Citizens argues the trial court erred in awarding policy limits for ordinance or law coverage and other structures coverage because the VPL does not apply to those types of coverages. We agree. Recently, in Vanguard Fire & Casualty Co. v. Golmon, 955 So.2d 591, 594 (Fla. 1st DCA 2006), this Court cited Citizens Property Insurance Corp. v. Ceballo, 934 So.2d 536 (Fla. 3d DCA 2006), for the proposition that other structures coverage, ordinance or law coverage, personal property coverage, and loss of use coverage are not governed by the VPL or Mierzwa. Thus, this court found that even if the insurer’s admission of limited liability under the VPL meant that it was liable for the full policy limits as to the dwelling itself, the extent of loss or damage under the remaining provisions of the policy remained unsettled. Golmon, at *3, 955 So.2d at 594-95. Accordingly, the final judgment is reversed to the extent that it awards Ueberschaer policy limits for other structures coverage and ordinance or law coverage in the absence of any evidence as to the amount of damage sustained by structures on the premises other than Ue-berschaer’s dwelling or any evidence as to the amount of increased costs Ueberschaer incurred due to the enforcement of an ordinance or law.

TV. Conclusion

For the foregoing reasons, we reverse the trial court’s final judgment to the extent it awards Ueberschaer policy limits for other structures coverage and ordinance or law coverage, and remand for further proceedings. In all other respects, the final judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

PADOVANO, J., Concurs;

THOMAS, J., Concurs in Part and Dissents in Part with Written Opinion.

THOMAS, J.,

Concurring in Part and Dissenting in Part.

I concur with the majority’s holding that the trial court erred in awarding the policy limits for ordinance or law coverage and other structure coverage, because the Valued Policy Law does not apply to those coverages.

I respectfully dissent from the majority’s holding that the Valued Policy Law requires Citizens to provide flood loss coverage. Flood loss coverage is expressly prohibited by the enabling legislation which authorizes Citizens as a quasi-governmental entity. § 627.351(6), Fla. Stat. (2004). The Legislature has the constitutional authority to create a limited insurance corporation which provides only limited coverage in order to minimize public costs. This is precisely what the Legislature did in creating Citizens. Under article II, section 3, of the Florida Constitution, we are not empowered to change this legislative act. This is especially true where the statutory language at issue is clear, is more specific than the contradictory statute, and is enacted after the conflicting provision. I respectfully submit that the majority errs in relying on a general law that does not and cannot control the more specific enabling legislation.

Two rules of statutory construction are applicable here, both of which the supreme court relied on in McKendry v. State, 641 So.2d 45 (Fla.1994). “First, a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.” Id. at 46. Here, Citizens’ enabling statute, which specifically prohibits Citizens from providing flood coverage, is more specific than the Valued Policy Law, which otherwise requires such coverage where a dwelling is a total loss. “Further, when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent.” Id. Here, the enabling statute is the later promulgated statute when compared to the Valued Policy Law. I would hold that the enabling legislation applies, not the Valued Policy Law. This enabling legislation, by its plain language, prohibits Citizens from providing flood loss coverage.

As Citizens notes, section 627.351(6)(q), Florida Statutes (2004), expressly limits Citizens’ authority to provide insurance coverage only for wind damage. Subsection (q) prohibits Citizens from requiring the insured to obtain flood coverage “if the insured or applicant executes a form ... affirming that flood insurance is not provided by the corporation and that if flood insurance is not secured by the applicant or insured in addition to coverage by the corporation, the risk will not be covered for flood damage.” Id. (emphasis added). In addition, this subsection requires that in an insured’s claim for water damage, the insured “shall have the burden of proving the damage was not caused by flooding. Id. (emphasis added). In fact, Citizens’ policies incorporate this legislative directive and exclude coverage for water and flood damage. I do not believe the Legislature could more clearly state its intent that Citizens shall not provide flood insurance, and that an applicant or insured cannot depend on Citizens for such coverage.

The Legislature acted to ensure that Citizens would not function as simply another private insurer. The enabling statute accomplishes this by: (1) creating Citizens as a not-for-profit political subdivision of the state; (2) granting immunity to Citizens’ agents, employers, and board of governors for certain actions in the performance of their duties; (3) subjecting Citizens to open meeting laws; and (4) exempting Citizens from corporate taxation and, upon dissolution, declaring its assets as state property. § 627.351(6), Fla. Stat. (2004). This legislative protocol establishes that Citizens is a political subdivision of the state. See, e.g., Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 137 F.3d 1293, 1297 (11th Cir.1998) (Citizens’ predecessor association qualified as political subdivision of state for purposes of exemption from antitrust liability, where the association acts according to clearly articulated state policy).

In my view, all of this compels one conclusion: the Valued Policy Law is not applicable to Citizens. Thus, the majority incorrectly holds that our decision today is controlled by our prior decision in Florida Farm Bureau. Although I recognize that other provisions of section 627.351(6), Florida Statutes (2004), refer to legislative directives to provide value and service to Citizens’ policyholders, that general language cannot control the more specific directives described above. I therefore respectfully dissent from the majority’s holding that windstorm insurance policies issued by this legislatively-created corporation must provide coverage for the excluded peril of flood damage under the Valued Policy Law.

ON APPELLANT’S MOTION FOR CERTIFICATION TO THE FLORIDA SUPREME COURT

PER CURIAM.

Appellant/Cross-Appellee’s motion is granted to the extent that we certify the following question to the Florida Supreme Court as a question of great public importance:

DOES THE ENABLING STATUTE FOR CITIZENS PROPERTY INSURANCE CORPORATION, § 627.351(6), FLA. STAT. (2004), PRECLUDE AN AWARD OF POLICY LIMITS UNDER THE VALUED POLICY LAW, § 627.702(1), FLA. STAT. (2004), WHEN THE COVERED PERIL OF WINDSTORM AND THE EXCLUDED PERIL OF FLOOD COMBINE TO PRODUCE A TOTAL LOSS TO THE INSURED PROPERTY?

PADOVANO, LEWIS, and THOMAS, JJ., concur.

      . In 2005, the Legislature substantially revised the VPL statute and explicitly provided that the amended law would not apply retroactively. Unlike the 2004 version of the VPL, the 2005 amendment to the VPL statute permits the insurer to apportion the benefits payable for a total loss between covered and excluded perils.

      . The Valued Policy Law was amended in 1983 to require coverage for total losses caused by multiple perils where an insurance policy provided coverage for one of those perils. See Ch. 82-243, § 539, at 1551, Laws of Fla. (amending statute so that it applies to losses attributable to any covered peril instead of only "fire or lightning”). Citizens' enabling statute was enacted in 2002. See Ch. 02-240, § 2, at 2, Laws of Fla.


author: PER CURIAM.

text:
    David E. LUTZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1111.
    District Court of Appeal of Florida, First District.
    March 29, 2007.
    Rehearing Denied May 30, 2007.
    David E. Lutz, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee for Respondent.
   PER CURIAM.

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

BROWNING, C.J., KAHN, and LEWIS, JJ., concur.


text:
    Mohammad ULLAH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2129.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.
    Paula C. Coffman, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Reversed with directions to grant the petition. See Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997).

DAVIS, KELLY, and WALLACE, JJ., Concur.


text:
    Grady M. KITTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4907.
    District Court of Appeal of Florida, First District.
    April 12, 2007.
    Rehearing Denied May 25, 2007.

      Grady M. Kittrell, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Foster v. State, 810 So.2d 910, 917 (Fla.2002); Waterhouse v. State, 792 So.2d 1176, 1193 (Fla.2001).

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Alvin GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1226.
    District Court of Appeal of Florida, First District.
    April 13, 2007.
    Rehearing Denied May 25, 2007.
    Alvin Green, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.Crim. P. 3.050.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


author: EVANDER, J.

text:
    Andrew VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4015.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    Rehearing Denied May 29, 2007.

      James S. Pnrdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   EVANDER, J.

We affirm the trial court’s order striking Vasquez’ pro se motion to withdraw a plea.

At the time Vasquez filed his motion, he was represented by counsel. A criminal defendant does not have a constitutional right to “hybrid” representation. Logan v. State, 846 So.2d 472 (Fla.2003). Generally, a pro se pleading filed by a criminal defendant should be treated as a nullity when the defendant is represented by counsel. Id. This Court has recognized limited exceptions to this general rule:

Pro se pleadings filed by a criminal defendant who is represented by counsel are generally treated as a nullity unless they include an unequivocal request to discharge counsel, Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004), assert that counsel coerced the defendant into taking certain action, Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004), or reflect an adversarial relationship between the defendant and his counsel, Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005).

Whiting v. State, 929 So.2d 673, 674-75 (Fla. 5th DCA 2006).

In his motion, it is clear that Vasquez did not seek to discharge his counsel. Vasquez did make a conclusionary allegation that he was “forced to plea.” Later in his motion, Vasquez suggests that his decision to enter a no contest plea was the result of a personality disorder that causes him to have “an uncontrollable urge to agree with authority figures.” We find these allegations are insufficient to constitute a claim that trial counsel had coerced Vasquez to enter a plea or that a patent conflict existed between Vasquez and his trial counsel. Carmona v. State, 873 So.2d 348 (Fla. 5th DCA), rev. denied, 888 So.2d 17 (Fla.2004).

AFFIRMED.

TORPY and LAWSON, JJ., concur.


text:
    Shannon SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1414.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Rehearing Denied May 31, 2007.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Shannon Smith appeals the circuit court’s order denying his 3.850 motion for post-conviction relief. We affirm on the merits and write only to address the procedure used in this case, whereby appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As our sister court has noted, no Sixth Amendment right to counsel exists in appeals of orders denying post-conviction relief. See Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998). Accordingly, neither the court nor appellate counsel in postconviction matters is bound by the procedure set forth in Anders. Id. The Fourth District has now determined that it will strike Anders briefs filed in appeals of orders denying post-conviction relief and will not conduct the intensive review required by Anders. See Medrano v. State, 795 So.2d 1009 (Fla. 4th DCA 2001). Because no Sixth Amendment right to counsel applies in this appeal, we follow the Fourth District’s lead and strike the Anders brief filed in this case.

AFFIRMED.

KAHN, POLSTON, and THOMAS, JJ., concur.


author: KLEIN, J.

text:
    AMERICAN SUZUKI MOTOR CORPORATION and Suzuki Motor Corporation, Appellants, v. Woody FRIESE, individually, and as parent and natural guardian of his minor sons, Steele Friese and Kole Friese, et al., Appellees.
    No. 4D06-4005.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Larry M. Roth of the Law Office of Larry M. Roth, P.A., Orlando, for appellants.
    Joel S. Perwin of Joel S. Perwin, P.A., and Stuart Z. Grossman of Grossman, Roth, Olin, Meadow, Cohen, Yaffa, Pen-nekamp and Cohen, P.A., Miami, for appel-lee Friese.
   KLEIN, J.

Defendants in a product liability case appeal an order denying their motion to transfer venue from Broward County to Gilchrist County, where the accident occurred. Although the parties both contend that defendants’ motion should be analyzed under the procedure adopted by our supreme court in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), Kinney does not apply to this motion, which seeks to transfer, based on forum non conveniens, from one county in Florida to another. We affirm.

Kinney, as the parties recognize, involved the issue of whether a case was properly dismissed by the trial court, because it could more conveniently be litigated in another state. That case reached the supreme court after this court certified a question of great public importance. In a footnote, we pointed out that the case involved a transfer to a foreign jurisdiction, and did not involve section 47.122, Florida Statutes (1994), which addresses intrastate changes of venue based on the convenience of parties or witnesses. Cont’l Ins. Co. v. Kinney Sys., Inc., 641 So.2d 195, 196 n. 1 (Fla. 4th DCA 1994).

Our supreme court granted review in Kinney and, based on concerns that Florida was becoming a haven for lawsuits which should be litigated elsewhere, adopted rule 1.061, entitled “forum non conveniens,” which sets forth the factors trial courts should consider for dismissal “on grounds a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida.” Fla. R. Civ. P. 1.061(a).

The only authority cited to support using the Kinney analysis here is Westchester Fire Insurance Co. v. Fireman’s Fund Insurance Co., 673 So.2d 958, 959 (Fla. 3d DCA 1996), in which the court, “in the spirit of Kinney,” affirmed the transfer of a case from Dade County to Hillsborough County.

In E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So.2d 1195, 1197 (Fla. 2d DCA 1996), the second district refused to apply Kinney to a review of the denial of a motion to transfer venue from Polk County to Lake County, explaining:

While we agree with the result reached in Westchester Fire Insurance Co., we do not agree that trial courts should use the Kinney analysis to determine if, under the statute, a change of venue is warranted within Florida. In Kinney, the court specifically noted that “[t]he legislature has not attempted to codify any version of the common law doctrine of forum non conveniens, but has approved only a far more limited set of venue statutes generally governing transfers of actions among different courts within Florida.” Kinney, 674 So.2d at 88, n. 3. We conclude that nothing in Kinney suggests that the supreme court intended that the trial court use this analysis in determining whether a motion for change of venue within Florida is appropriate.

The second district went on to apply section 47.122, Florida Statutes (1995):

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.

In Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377 (Fla. 1st DCA. 1997), the first district also rejected the use of a Kinney analysis for intrastate transfers based on forum non conveniens.

Kinney, as we explained earlier, did not involve intrastate transfers, which are governed by section 47.122. Moreover, the rule of procedure adopted by our supreme court in Kinney, rule 1.061, uses “jurisdiction other than Florida” more than once. We accordingly agree with the first and second districts that Kinney and rule 1.061 do not apply to intrastate transfers.

The complaint alleged strict tort liability and negligence against Suzuki based on defective design and manufacture. Also named as a defendant was BMS Partners, which sold and maintained the ATV in Broward County. The facts underlying the motion to transfer include that the accident occurred when the Suzuki ATV flipped over on property in Gilchrist County. In addition, defendants emphasize that plaintiff, a quadriplegic, received medical treatment at the scene and at a hospital in Alachua County, which is adjacent to Gilchrist. Plaintiff responded that the plaintiff and the six eyewitnesses to the accident all reside in Broward County, that all doctors who would testify reside in Miami, and that plaintiff is currently a patient in Miami.

We conclude, based on these facts, that the trial court did not abuse its discretion in denying the motion to change venue under section 47.122. Brown, 690 So.2d 1377.

Affirmed.

SHAHOOD, J., and REYES, ISRAEL U., Associate Judge, concur.

      . We are not certifying direct conflict with Westchester, because the Westchester panel did correctly cite section 47.122, Florida Statutes, which applies to intrastate transfers, and did not, at least on the face of the opinion, go through the Kinney!Rule 1.061 analysis. We interpret Westchester as merely expressing, as dicta, the thought that the transfer of the case from Dade County to Hillsborough County was "in the spirit of Kinney.” Westchester, 673 So.2d at 959.


author: STONE, J.

text:
    Duane GLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-132.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Glinton appeals his conviction for grand theft. He contends that the trial court erred in allowing peremptory challenges to two black venire members because the state failed to provide race-neutral reasons for the challenges. We affirm.

Voir dire was extensive, partially because of the comments of one member of the pool, prospective juror Smith. While a number of prospective jurors, or their family members, had committed crimes, or had themselves been victims or had family who had been victims, only Mr. Smith made the statement that “police officers are trained to lie.”

Although attempts to rehabilitate Mr. Smith resulted in his acknowledging that not all police officers would lie on the stand, this was not his only comment of concern to the state. He injected his personal opinions at length. At different times, his rambling became an issue for both attorneys and the trial court.

Prospective juror Stewart was not as vocal; however, Mr. Stewart also made comments raising concern.

JUROR MR. STEWART: I mean, you know, truthfully, I don’t like the law, but you know, I have to go by it.
MR. WEISSMAN (for the state): Okay. When you say — You talking about my circumstances? Or do you—
JUROR MR. STEWART: No. I’m talking about my circumstances.
MR. WEISSMAN: In general you don’t like the law?
JUROR MR. STEWART: (No verbal response.)
MR. WEISSMAN: Can I ask what part of the law? What — What law you don’t like or what part?
JUROR MR. STEWART: Well, when it comes to law, they will always harass me.
MR. WEISSMAN: Okay.
JUROR MR. STEWART: When it comes to police department and—
MR. WEISSMAN: Okay.
JUROR MR. STEWART: — stuff like that. I mean, I’ve never been arrested and, you know, never committed a crime. But, you know it seems that all the time, you know, I am the target for—
MR. WEISSMAN: For the police.
JUROR MR. STEWART: Harassment.
MR. WEISSMAN: Okay.
JUROR MR. STEWART: Profiling.
MR. WEISSMAN: All right. I — I understand what you’re saying.
A short time later, the following exchange occurred:
JUROR MR. SMITH: Like, what I’m saying, I — could make a fair judgment, sir—
MR. WEISSMAN: Okay.
JUROR MR. SMITH: — is what I’m saying. Although you’re the prosecutor and — that’s your crew. You know the police is your crew.

The state moved to strike Mr. Smith peremptorily. Following objection, the trial court conducted the requisite Neil/Slappy inquiry and upheld the peremptory challenge because Mr. Smith was “strident in his views” and because he stated that officers were trained to lie. Likewise, the state moved to strike Stewart on grounds that he said he was always harassed and treated differently by both police and doctors. Again, the trial court conducted the required inquiry and upheld the peremptory challenge, recognizing that Mr. Stewart was “in a much different category” than Mr. Smith, but that the state had also identified a race-neutral reason — the man’s persecution feelings, albeit feelings that flowed from his personal experience.

Prior to swearing in the panel, the trial court asked if the panel was acceptable to both sides. The state answered “Yes, sir;” the defense responded, “That panel’s acceptable.” Next, the trial court inquired of Glinton whether he was satisfied with the panel and with his attorney’s services and explanations through that point in the proceedings. After brief conversation, Glinton also answered that he was satisfied. Glinton’s attorney did not object to the panel prior to the jurors being sworn.

Initially, we conclude that Glinton failed to properly preserve this issue for review. Joiner v. State, 618 So.2d 174, 176 (Fla.1993) (it is necessary to renew an objection to a juror prior to the panel being sworn); see also Carratelli v. State, 915 So.2d 1256, 1262 (Fla. 4th DCA 2005); Berry v. State, 792 So.2d 611 (Fla. 4th DCA 2001); Wilkins v. State, 659 So.2d 1273 (Fla. 4th DCA 1995).

We recognize that it is possible to accept a juror, or panel, subject to an earlier objection. Mitchell v. State, 620 So.2d 1008, 1009 (Fla.1993); see also Nieves v. State, 739 So.2d 125, 127 (Fla. 5th DCA 1999). However, this is not what occurred here. We reject Glinton’s argument that his dialog with the trial court served as an objection. First, the trial court was asking about Glinton’s overall satisfaction with the proceedings. The trial court used the word “objection,” not Glinton. And, Glinton’s response was that he was satisfied, both with the panel and with his attorney.

In any event, we find no abuse of discretion in allowing the challenges to stand. “[T]he appropriate standard for appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is the abuse of discretion standard.” Files v. State, 613 So.2d 1301, 1304 (Fla.1992). Courts must employ a three-step process where peremptory challenges are exercised against a suspect class. Melbourne v. State, 679 So.2d 759 (Fla.1996).

(1) once a proper objection to the challenge has been made, the trial court must ask the proponent of the challenge to explain his reason for making the strike; (2) the burden of production then shifts to the proponent to come forward with a race-neutral reason; (3) if the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

Crews v. State, 921 So.2d 864, 866 (Fla. 4th DCA 2006). The third step focuses on the genuineness of the explanation, as opposed to its reasonableness. Melbourne, 679 So.2d at 764. This process incorporates the Neil inquiry and the Slappy factors, to wit: (1) alleged group bias not shown to be shared by the juror in question; (2) either failure to examine or perfunctory examination of the juror; (3) singling out the juror for special questioning designed to evoke a particular response; (4) the prosecutor’s offered reason is unrelated to the facts of the case; and (5) challenge based on reasons equally applicable to other seated jurors. Slappy, 522 So.2d at 22.

Glinton contends that the third, fourth, and fifth factors apply to his case. We emphasize that Mr. Smith was not singled out by the state. He singled himself out by volunteering an excess of opinions. It became necessary to question him further in order to figure out where he was going with some of his statements. Whether police officers are trained to lie was central to this case since so much of the witness testimony was from police officers. And, no other juror made a similar statement or behaved in a similar fashion, although Mr. Stewart expressed agreement. The offered reasons for a strike “must be weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record.” Id.

As applied to Mr. Stewart, the factors also fall short. Mr. Stewart had the floor far less than Mr. Smith; he was not singled out, nor were his questions any different from those asked of all other venire members. Mr. Stewart’s comments amounted to a belief that he had suffered from racial profiling. Furthermore, Mr. Stewart’s perception of his mistreatment because of his race ran deep and, despite attempts to rehabilitate, he kept coming back to the same theme.

Mr. Stewart’s opinions and feelings were the direct result of his experience as a black man. However, the state was not asking to strike him because of his race, but because of his statements. Although not directly analogous, the facts in Crews are somewhat similar to those at bar. A prospective black juror responded that he felt some laws were immoral. 921 So.2d at 865. The defendant in that case claimed error in the trial court’s allowance of a peremptory strike of the juror without a race-neutral explanation. Id. Our court said, “[wjhen examined in a vacuum the example of an immoral law given by the juror cannot be deemed race-neutral. However, when taken in context, it is clear that the juror indicated he may not follow a particular law if he did not find it moral. The state demonstrated this through its explanation.” Id. at 868.

We have considered the holding in Turnbull v. State, 31 Fla. L. Weekly D2728, — So.2d -, 2006 WL 3078754 (Fla. 3d DCA Nov.1, 2006), and distinguish it because in that case, the prosecutor initiated the subject of racial profiling, while in the instant case, the stricken juror raised the issue on his own initiative several times.

As reasonable minds could view the state’s reasons with regard to both jurors as race-neutral, we affirm.

We also find no reversible error or abuse of discretion in the trial court’s admission of evidence of marijuana present at the time of arrest.

Affirmed.

SHAHOOD and HAZOURI, JJ., concur.

      . State V. Neil, 457 So.2d 481 (Fla.1984); State v. Slappy, 522 So.2d 18 (Fla.1988).


author: FARMER, J.

text:
    Donna JAQUITH, Appellant, v. Wayne H. SPATH and Brandy Bail Bonds, Inc., Appellees.
    No. 4D05-4351.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Rehearing Denied June 5, 2007.
    Jeffrey M. Weissman of Weissman Der-vishi Borgo & Nordlund, P.A., Fort Laud-erdale, for appellant.
    C. Edward McGee, Jr. of McGee & Hus-key, P.A., Fort Lauderdale, for appellee.
   FARMER, J.

This dispute erupted between investors in a bail bond business, each suing the other for damages and control of two corporate entities. One year into the litigation, Jaquith filed for relief under chapter 7 of the Bankruptcy Code. In the bankruptcy case, the Trustee sought permission to sell her interest in the corporations to Spath- — along with “any pre-petition [e.s.] claims or causes of action.” The Bankruptcy Court order approving the sale excluded only post-petition claims of Jaquith from that which had been sold. As a result, Spath dismissed his pending action against Jaquith because he had now acquired all of her interest in the company.

While the Bankruptcy case was pending and before the entry of the order approving the Trustee’s sale, the Florida Department of Insurance initiated license disciplinary proceedings against Jaquith. She alleges that these administrative proceedings were instigated by Spath out of animosity towards her.

Later, after the Bankruptcy sale, Ja-quith amended her counterclaims in the previously stayed civil case to causes of action outside of the scope of the property sold to Spath. In turn Spath moved for summary judgment on all of Jaquith’s revised claims. Both supported their position with affidavits and memoranda. She also filed procedural and evidentiary objections and other documents. The trial court granted summary judgment, reciting some of the procedural history, but did not state conclusions of law, and made no express rulings on Jaquith’s various objections and motions to strike. Jaquith now appeals, arguing that Spath failed to file a proper and adequately specific motion for summary judgment, failed to meet his burden of proof to obtain a proper summary judgment, failed to submit admissible evidence, improperly filed and brought to the attention of the trial judge prejudicial materials (including unaccepted settlement proposals), and did not establish that her opposing factual and legal arguments were insufficient to avoid summary judgment.

We are unable to find prejudicial error. The judgment is founded on a conclusion that all of Jaquith’s amended claims actually relate to pre-Bankruptcy petition conduct. The Bankruptcy sale transferred all claims based on pre-petition conduct to Spath, so no causes of action based on such conduct survived the Bankruptcy sale and discharge. We also agree with the trial court’s implicit conclusion that Jaquith’s procedural arguments are either unsustainable or are immaterial and thus harmless.

Affirmed.

GUNTHER and WARNER, JJ., concur.

      . They are A-All Night Bail Bond, Inc., and A AAchen Express Bail Out, Inc.

      . She alleged breach of a shareholder agreement, tortious interference re her shareholder rights, malicious prosecution and abuse of process regarding the license disciplinary proceedings, and intentional infliction of emotional distress for essentially the same conduct.


text:
    Scott WIBBENS, Petitioner, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF DRIVER IMPROVEMENT, Respondent.
    No. 1D07-0084.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Rehearing Denied May 30, 2007.

      Michael T. King of Stone, Taylor & Associates, P.A., Jacksonville, for Petitioner.
    Judson M. Chapman, General Counsel, and Bryan Thomas Pugh, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
   PER CURIAM.

Scott Wibbens petitions this court for a writ of mandamus, complaining that the Circuit Court for Duval County improperly dismissed his certiorari petition. We have jurisdiction in accordance with Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002).

Wibbens’ certiorari petition challenged an order of the Department of Highway Safety and Motor Vehicles which suspended his driver’s license. At issue is the timeliness of the certiorari petition. The department’s order was signed and dated by the hearing officer who issued it on October 3, 2006. The certiorari petition was filed with the circuit court on November 3, 2006, thirty-one days later. Florida Rule of Appellate Procedure 9.100(c)(1) provides that a certiorari petition must be filed within 30 days of rendition of the order sought to be reviewed. This time limit is jurisdictional and failure to meet it will result in dismissal of the petition. Hofer v. Gil De Rubio, 409 So.2d 527 (Fla. 5th DCA 1982). Thus, the date of rendition of the order must be established in order to ascertain whether the circuit court’s jurisdiction was timely invoked.

The department’s own rule, FAC Rule 15A-6.013(12), provides that “the date of rendition of a final order shall be the date of mailing entered on the driver license record.” Wibbens attached to his motion for rehearing in the circuit court a copy of an envelope which provided prima facie evidence that the order was mailed to him on October 4, 2006. Neither party provided the circuit court with any evidence of when such mailing was entered on Wib-bens’ driver license record, although two different versions of petitioner’s record are now before this court as inclusions in the parties’ appendices. One makes no mention of the order in question. The other, a more complete record, contains an entry of October 3, 2006, which simply states “final order of suspension rendered” on that date. The department relies on this version of Wibbens’ driver record to argue that the certiorari petition was untimely and correctly dismissed.

In this court’s view, the entry described above is not conclusive of the matter. To comply with the department’s rule, the driver license record must reflect a date when the order is mailed to the licensee. A docket entry which states that an order was rendered on a particular date is insufficient. Instead, the entry must describe a particular action, such as filing of the order with the clerk or, as in this case, mailing of the order to the parties. The appellate tribunal, as arbiter of its own jurisdiction, must determine when the lower tribunal’s order was rendered.

Upon consideration of the above, we find that the order suspending Wibbens’ license has not yet been rendered as that term is defined by the department’s rule. Thus, the time for review of that order has not yet begun and there is no rendered order for the circuit court to review. Mitchell v. Leon County Sch. Bd., 591 So.2d 1032 (Fla. 1st DCA 1991); see also Sibley v. State, 876 So.2d 1278 (Fla. 5th DCA 2004); Burkette v. Sharp, 752 So.2d 77 (Fla. 2d DCA 2000). The circuit court therefore correctly dismissed the certiorari petition, although for the wrong reason. The petition for writ of mandamus must accordingly be denied, but this disposition is without prejudice to petitioner’s right to seek review in the circuit court once the order has been properly rendered by the making of an entry in his drivers license record that the order was mailed to him. The department must give Wibbens notice of such entry in order to comply with due process. Finally, we note that our holding today does not result in invalidation of a multitude of departmental orders. See Latin Express Serv., Inc. v. Dep’t of Revenue, 660 So.2d 1059 (Fla. 1st DCA 1995).

PETITION DENIED.

BROWNING, C.J., KAHN, and LEWIS, JJ., concur.

      . Mailing of the order to the parties is rendition in workers' compensation proceedings. Fla. R.App. P. 9.180(b)(3).


text:
    Michael E. GRAY, Appellant/Cross-Appellee, v. ADAMS GRADING AND TRUCKING, INC., a foreign corporation, and John M. Bloodsworth, an individual, Appellees/Cross-Appellants.
    No. 1D06-1760.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Rehearing Denied May 24, 2007.

      D. Marc Warner of Fisher, Butts, Se~ chrest & Warner, P.A., Gainesville, for Appellant/Cross-Appellee.
    Thomas J. Guilday, Albert J. Woller-mann and Marc A. Peoples of Guilday, Tucker, Schwartz & Simpson, P.A., Tallahassee, for Appellees/Cross-Appellants.
   PER CURIAM.

Appellant, Michael Gray, appeals a final judgment entered for Appellees following a jury trial, raising five issues on appeal. Because we must reverse and remand for a new trial on Appellant’s first issue, whether the trial court erred in failing to instruct the jury on concurring cause, we decline to address the remaining four issues. Appellees raise one issue on cross-appeal, which is moot in light of our decision.

On July 16, 2003, Appellant was working on a road construction project for Anderson Columbia, Inc. Appellee, Adams Grading and Trucking, Inc., was a subcontractor and provided dump trucks. One of the dump trucks, driven by Appellee John Bloodsworth, ran over Appellant’s foot as Appellant knelt down to lay a string-line. Co-workers pulled Appellant from underneath the dump truck, but Appellant’s foot was permanently damaged.

In his complaint, Appellant alleged that Mr. Bloodsworth negligently moved his truck during a period when work was stopped on the project to allow Appellant to lay a string-line. At trial, Appellees argued that Anderson Columbia caused Appellant’s injury because it instructed him where to stand, it did not have an adequate number of people working on the construction site, and its superintendent instructed Mr. Bloodsworth to back up his truck. Appellees presented expert witness testimony of a traffic reconstructionist to support this theory.

During the charge conference, Appellant requested the court to instruct the jury on concurring cause by giving Standard Jury Instruction 5.1(b). The trial court declined to give the instruction, stating that no cause other than negligence had occurred. The jury returned a verdict in favor of Appellees, finding no negligence on the part of Mr. Bloodsworth, which was a legal cause of any loss, damage or injury to Appellant.

Appellant moved for a judgment notwithstanding the verdict and/or a new trial. Arguing that the trial court erred when it refused to instruct the jury as requested, Appellant stated that the evidence supported giving the instruction and that the jury might have been misled by the court’s failure to give the instruction. The court denied Appellant’s motion, but admitted that it erred in finding that the “other cause” referred to in instruction 5.1(b) was a cause other than negligence, i.e., an act of God. Although admitting error, the court remained convinced that it properly denied Appellant’s request for a concurring cause instruction, stating that the jury was not misled because the other instructions given did not permit it to decide the ease based on which party was more negligent.

Decisions regarding jury instructions are reviewed under an abuse of discretion standard. Golian v. Wollschlager, D.M.D., 893 So.2d 666, 667 (Fla. 1st DCA 2005). When a plaintiff requests a concurring cause instruction, the court commits reversible error if “[f]irst, the facts as viewed most favorably to the plaintiff support the need for such an instruction, and second, the failure to give the instruction may mislead the jury.” Roby v. Kingsley, 492 So.2d 789, 791 (Fla. 1st DCA 1986).

In Little v. Miller, 311 So.2d 116 (Fla. 4th DCA 1975), the Fourth District held that the trial court erred when it denied the appellant’s request to give a concurrent cause instruction, reasoning that the facts were in dispute, and depending on which set of facts the jury believed, any one of three drivers, or some combination thereof, could have been negligent and liable for the resulting car accident. Id. at 117, 119. Similarly, disputed facts were present here and, depending on which set of facts the jury believed, either Appellees or Anderson Columbia, or some combination of their actions, could have caused Appellant’s injury.

“[RJeversible error is committed when jury instructions are ‘reasonably calculated to confuse or mislead’ the jury.” Sanchez v. Hussey Seating Co., 698 So.2d 1326, 1328 (Fla. 1st DCA 1997) (citations omitted). To determine whether a jury was properly instructed, the reviewing court must examine the instructions as a whole. Grimm v. Prudence Mut. Cas. Co., 243 So.2d 140, 143 (Fla.1971). “[I]f the jury instructions as a whole fairly state the applicable law, failure to give a particular instruction does not constitute error.” Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001) (citations omitted).

When viewing the jury instructions given as a whole, we conclude that the trial court’s failure to instruct the jury on concurring cause may have misled the jury. See Roby, 492 So.2d at 792. “The purpose of the concurring cause instruction is to negate the idea that a defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.” Id. at 791. Standard Jury Instruction 5.1(a), which was read to the jury, does not address concurring cause and, when given alone, may lead a jury to conclude that a defendant is only liable when his negligence is the sole cause of the injury. Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992). In addition, the trial court’s instructions on apportioning damages do not sufficiently address concurring cause. See id. (“the instruction on assessing damages, standing alone, is patently insufficient protection against the risk of confusion arising by a failure to give the concurring cause instruction”).

Appellant was not required to prove that Mr. Bloodsworth’s negligence was the sole cause of his injury, only that Mr. Bloods-worth’s action was one cause of his injury. Based on the “but for” language contained in Standard Jury Instruction 5.1(a), the jury very easily could have been misled, concluding that both Mr. Bloodsworth and Anderson Columbia were negligent, but that Anderson Columbia was more negligent, thus relieving Mr. Bloodsworth and Adams Grading and Trucking of liability. Giving Standard Jury Instruction 5.1(b) would have corrected any erroneous belief on the jury’s part that it must decide the case based on which party was more negligent. See Roby, 492 So.2d at 792. Accordingly, we reverse and remand for a new trial.

We write to address one additional issue raised by Appellant which may become an issue again during a new trial. At trial, Appellees’ traffic reconstruction expert witness testified that Anderson Columbia was solely liable for Appellant’s injury. His opinion was based, in part, on his determination that Appellant should have heard Mr. Bloodsworth reversing the dump truck due to the decibel level of the truck, and he testified extensively on various decibel levels; however, he is not a sound engineer and never tested Appellant’s hearing ability. Appellant requested an opportunity to voir dire Appellees’ expert on his sound expertise, but the trial court denied the request, stating that Appellant could address this issue during cross-examination.

While we sympathize with Appellant’s frustration at the lack of foundation for this expert witness’s opinion on decibel levels and the denial of his request to conduct a voir dire of the expert witness on his opinion, we find that Appellant failed to preserve his objection to the sound testimony. Appellant argued generally in his motion in limine that the expert’s numerous opinions invaded the province of the jury and that the expert’s testimony should not be admitted because he was a traffic reconstructionist with no knowledge or experience in construction site safety. Appellant did not, however, contemporaneously object to the expert witness’s testimony regarding decibel levels or move to strike it at the conclusion of the testimony; therefore, we cannot address this issue on appeal. See Nordyne, Inc. v. Fla. Mobile Home Supply, 625 So.2d 1283, 1286 (Fla. 1st DCA 1993).

REVERSED and REMANDED with instructions consistent with this opinion.

BROWNING, C.J., and KAHN and POLSTON, JJ., concur.

      . Standard Jury Instruction 5.1(b) states:
      In order to be regarded as a legal cause of Doss] [injury] [or] [damage], negligence need not be the only cause. Negligence may be a legal cause of Doss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such [loss] [injury] [or] [damage].

      . Standard Jury Instruction 5.1(a) states:
      Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the negligence, the [loss] [injury] [or] [damage] would not have occurred.


text:
    John BAILEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2470.
    District Court of Appeal of Florida, First District.
    April 23, 2007.
    Rehearing Denied May 24, 2007.
    John Bailey, pro se, Petitioner.
    Kathleen Van Hoene, General Counsel, Florida Department of Corrections, Tallahassee; and Bill McCollum, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner challenges the denial of his petition for writ of mandamus in this prisoner disciplinary proceeding, and he also challenges an order imposing a lien upon his inmate trust account for court costs relating to his petition. We conclude that the circuit court properly denied the petition for writ of mandamus. However, as the appellee concedes, the underlying proceeding constituted a “collateral criminal proceeding,” and therefore the imposition of the lien was improper. See Jackson v. McDonough, 31 Fla. L. Weekly D2299, — So.2d -, 2006 WL 2527244 (Fla. 1st DCA Sept.5, 2006); Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Accordingly, the petition for certio-rari is denied, but the lien order is quashed. The circuit court should direct the reimbursement of any funds that have been withdrawn from the petitioner’s account to satisfy the lien.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


author: STEVENSON, C.J.

text:
    Laurence McNAMARA, Drew Martin, and Anabeth Karson, and their attorneys, Littman, Sherlock & Heims, P.A. and Howard K. Heims, Esquire, Appellants, v. CITY OF LAKE WORTH, a Florida municipal corporation, and Regina Campbell, Appellees.
    Nos. 4D06-1766, 4D06-2053.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.

      Howard K. Heims and Virginia P. Sherlock of Liftman, Sherlock & Heims, P.A., Stuart, for appellants.
    Ronald E. Crescenzo of Casey Ciklin Lubitz Martens McBane & O’Connell, West Palm Beach, for appellee City of Lake Worth.
   STEVENSON, C.J.

Lawrence McNamara, Drew Martin and Anabeth Karson filed a complaint against the City of Lake Worth under Florida Statutes section 163.3215, challenging the adoption of ordinance 2004-12. The trial court granted final summary judgment in favor of Lake Worth because the complaint did not comply with section 163.3215, in that it was not timely filed. This court affirmed the final judgment in McNamara v. City of Lake Worth, 923 So.2d 510 (Fla. 4th DCA 2006) (table), but denied Lake Worth’s motion for appellate attorney’s fees, which relied on Florida Statutes section 57.105. For the reasons stated below, we affirm Lake Worth’s subsequent award of trial level fees, which was also based on section 57.105.

Our review of the record does not convince us that the trial court abused its discretion in granting attorney’s fees under section 57.105. See Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006) (holding that the trial court’s award of attorney’s fees under section 57.105 is reviewed on appeal under an abuse of discretion standard). We also reject appellants’ claim that the trial court was required to deny Lake Worth’s motion for trial level attorney’s fees simply because this court had earlier denied Lake Worth’s motion for appellate fees based on section 57.105. The Third District recently addressed a similar issue concerning attorney’s fees. In Labbee v. Harrington, 913 So.2d 679 (Fla. 3d DCA 2005) (“Labbee /”), the Third District reversed an order vacating a default judgment against James Harrington, but denied Beatriz Labbee’s motion for section 57.105 attorney’s fees. After the case was remanded, Harrington asserted that the trial court was obligated to vacate a prior award of appellate and trial level attorney’s fees because the Third District’s ruling was the law of the case. See Labbee v. Harrington, 957 So.2d 1188 (Fla. 3d DCA Mar. 7, 2007) (“Labbee II”). Thereafter, the trial court denied Labbee’s motion for section 57.105 trial and appellate level attorney’s fees. See id. The Third District held during the subsequent appeal that the prior denial of appellate attorney’s fees was the law of the case for appellate level fees, but not for trial level fees. Because the trial court’s denial of trial level section 57.105 fees was based solely on its acceptance of Harrington’s law of the case argument, the Third District remanded the case back to the trial court to consider the award of trial level attorney’s fees under section 57.105.

As in Labbee II, we conclude that our prior denial of appellate fees under section 57.105 does not preclude the trial court’s award of trial level attorney’s fees in the same action. This is so because review under the abuse of discretion standard allowed for the trial judge’s order to withstand scrutiny. We have considered the other issues on appeal, but find no error.

Affirmed.

KLEIN and MAY, JJ., concur.


author: THOMPSON, J. EVANDER, J., LAWSON, J.,

text:
    Ginger STARLING, Appellant, v. ALLSTATE FLORIDIAN INSURANCE COMPANY, Appellee.
    No. 5D05-2829.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    Rehearing Denied May 31, 2007.
    David R. Heil of David R. Heil, P.A., Winter Park, for Appellant.
    Rosemary Wilder, Michael C. Clarke, and Matthew N. Posgay of Kubicki Draper, Miami, for Appellee.
   THOMPSON, J.

Ginger Starling appeals from a final summary judgment entered in favor of her insurance carrier, Allstate Floridian Insurance Company (“Allstate”), in her breach of contract action on a property insurance policy claim. At issue is whether Starling’s failure to timely complete sworn proof-of-loss forms as a condition precedent to bringing a lawsuit bars a jury trial. Because Starling materially breached the policy’s condition precedent, we affirm.

Allstate insured Starling’s house, which sustained severe fire damage on 27 August 2001. She and her daughter stayed that night with Starling’s mother. According to her recorded statement to the fire department, Starling returned home to check on her cats when she saw smoke coming out of the garage. She went to her neighbors to call the fire department. The fire department told Starling that she was a suspect in the suspicious fire they believed was intentionally set. She subsequently filed a claim, gave Allstate a recorded statement, and sat for an examination under oath (“EUO”). Ultimately, Allstate’s investigator, like the Fire Marshal, concluded the fire, caused by available materials inside the linen closet, was suspicious.

Starling testified in her EUO that her home had been in foreclosure proceedings for three and one half years at the time of the fire. She had not made house payments while it was in foreclosure, had prepared to put the house up for sale, and had quit her job one month before the fire. She had disconnected her phone service, and the electric and water service were shut off for nonpayment on the day of the fire.

During Starling’s August 2001 recorded statement, she said she would mail her property inventory list to Allstate within one month. Patricia Reed, Allstate’s claims representative, informed Starling by letter of 31 August 2001 that she had 60 days to provide a signed, notarized sworn statement and proof-of-loss and enclosed two copies of the form. On 21 September 2001, Reed reminded Starling by letter that her policy required that she submit the forms within 60 days of the fire.

Starling brought to the October 2001 EUO an unnotarized and incomplete form because she did not know the total value of her loss. She agreed to send Allstate the notarized and sworn statement and proof-of-loss, but Allstate did not receive it until June 2002, three months after she filed suit in March 2002. Starling did not submit a contents inventory until December 2002.

Allstate denied her allegations and asserted affirmative defenses of failure of conditions precedent and Starling’s intentional or fraudulent conduct. The only reason for the claim’s denial, Reed testified by deposition, was that Starling set the fire. In September 2003, Allstate denied the claim based on concealment of fraud, not failure of conditions precedent.

Allstate sought summary judgment because Starling failed to provide a notarized proof-of-loss and record of repair expenses within the 60-day period and she did not hold an insurable interest in the property. At the summary judgment hearing, Starling’s counsel admitted the sworn statement was not provided to Allstate until June 2002. Counsel asserted that Starling was not really pleading waiver, but substantial compliance with the policy.

The trial court, relying on Ferrer v. Fidelity & Guaranty Insurance Co., 10 F.Supp.2d 1324, 1326 (S.D.Fla.1998), and Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300, 304 (Fla. 4th DCA 1995), granted summary judgment based upon the insured’s failure to comply with a condition precedent that she provide a sworn proof-of-loss. The trial court wrote:

4. Paragraph 12 of the policy conditions states the following: “Suits Against Us. No suit or action may be brought against us unless there has been full compliance with all policy terms. Any suit or action must be brought within five years after the inception of loss or damage.”
5. There is no genuine issue of fact and ALLSTATE is entitled to judgment as a matter of law. Plaintiff failed to comply with the policy conditions precedent to institution of suit. These provisions are clear and unambiguous. It is not necessary for the insurance company to prove prejudice where the insured fails to comply with a policy condition precedent to suit. Goldman v. State Farm Fire General Ins. Co., 660 So.2d 300 (Fla. 4th DCA 1995). Where the insured has failed to provide sworn proof-of-loss in accordance with the policy contract, the insured is barred from filing suit against the insurer for the policy proceeds. See, Ferrer v. Fidelity and Guaranty Ins. Co., 10 F.Supp.2d 1324 (S.D.Fla.1998).

Starling, proclaiming the ruling draconian, contends it was error to require absolute compliance with the 60-day time limit and her substantial compliance precluded summary judgment. The policy requires the insured to give Allstate a signed, sworn proof-of-loss within 60 days after a loss and provides that “[n]o suit or action may be brought against us unless there has been full compliance with all policy terms.”

We take account in interpreting Goldman the concept of materiality as an element of a breach that, as in this case also, justified summary judgment. In other words, a material breach of an insured’s duty to comply with a policy’s condition precedent relieves the insurer of its obligations under the contract. To further explain, the Goldman court affirmed summary judgment after the insureds refused to submit to an EUO following the insurer’s first demand, a scheduled EUO continued by the insureds, their filing suit, and the insurer’s final request six weeks later. The lower court wrote that the plaintiffs’ failure to submit to an EUO prior to filing their lawsuit was a material breach of the insurance contract and relieved the insurer of its obligation to pay under the policy. Goldman, 660 So.2d at 302. Cited in that opinion are several other cases that held a failure to submit to an EUO was a material breach of the policy terms and a condition precedent to the insured’s right to recover. See e.g., Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944 (11th Cir.1990) (affirming summary judgment when insured refused to submit to EUO before his arson trial, or during the four months following completion of the trial, and not until after appeal instituted, constituted material breach of policy); Laine v. Allstate Ins. Co., 355 F.Supp.2d 1303 (N.D.Fla.2005) (granting summary judgment when insured, after repeated requests by insurer, refused to submit to EUO for more than five years after fire he allegedly set); Fassi v. Amer. Fire & Cas. Co., 700 So.2d 51 (Fla. 5th DCA 1997) (affirming summary judgment when insureds refused EUO after insurer provided five opportunities to comply); Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA 1993).

This reasoning applies equally to a policy’s condition precedent that an insured submit a sworn proof-of-loss. In Ferrer, the insureds never submitted a sworn proof-of-loss. As the court expressed in Haiman v. Federal Insurance Co., 798 So.2d 811 (Fla. 4th DCA 2001):

[A] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.

In this case, Starling did not submit a sworn proof-of-loss until three months after she filed suit or contents inventory for another six months. Thus we agree with the trial court’s entry of final summary judgment based upon her material breach of the condition precedent to maintaining suit. It is undisputed that Starling materially breached the policy’s condition precedent that she provide within 60 days sworn proof-of-loss, inventory of damaged property, and proper records of her repair expenses. Her failure to substantially comply with the policy’s condition precedent bars recovery.

Accordingly, we AFFIRM the summary judgment in Allstate’s favor.

EVANDER, J., concurs specially with opinion.

LAWSON, J., dissents, with opinion.

EVANDER, J.,

concurring specially.

I concur in Judge Thompson’s opinion. I write only to emphasize that this case does not involve a situation where an insurance company played a game of “gotcha.” It is undisputed that Allstate requested the Sworn Proof of Loss (including a list of damaged or destroyed property) on at least five occasions prior to the commencement of the lawsuit. Notwithstanding these repeated requests, Starling was over thirteen months late in providing a list of the property she claimed was damaged or destroyed in the fire. Significantly, Starling’s belated compliance came over eight months after she filed her lawsuit. Furthermore, the record is devoid of a reasonable explanation by Starling for her willful refusal to provide a Sworn Proof of Loss prior to commencing this action.

The undisputed material facts support a conclusion that, as a matter of law, Starling materially breached her duty to comply with the insurance policy’s condition precedents.

LAWSON, J.,

dissenting.

I agree with the majority’s analysis of the law, but must respectfully disagree as to its application in this case. As explained in Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001), if “ ‘the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury’ ” on the question of whether “ ‘failure to comply with policy provisions made a prerequisite to suit’ ” constitutes a material breach of the policy so as to preclude recovery from the insurer (quoting Diamonds & Denims, Inc. v. First of Georgia Ins. Co., 203 Ga.App. 681, 417 S.E.2d 440, 441-42 (1992)). During her examination under oath (or, EUO), Ms. Starling testified that she had already mailed in a proof of loss form. She also brought a partially-completed form to the EUO, where it was examined by Allstate’s representative. During the EUO, Starling explained that she had not yet completed the form because she had not yet been able to calculate the total value of her claim. Because Starling partially complied with the policy requirement, and provided an explanation for her noncompliance, I believe that a question of fact existed as to whether Starling materially breached her policy by waiting eight more months before submitting the final, notarized form.

      . Written requests were made by Allstate by letters dated August 31, 2001, September 21, 2001, February 13, 2002, and February 22, 2002. A verbal request was made on October 8, 2001.