author: POLEN, J.

text:
    Paula CASTILLO and Sergio Castillo, Appellants, v. VISUAL HEALTH AND SURGICAL CENTER, INC., and W.J. Hoffman, M.D., Appellees.
    No. 4D06-2924.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Darryl L. Lewis and Rosalyn Sia Baker-Barnes of Searcy Denney Scarola Barnhart & Shipley, P.A., and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellants.
    Roberta G. Mandel of Stephens, Lynn, Klein, LaCava, Hoffman & Puya, P.A., Miami, for appellees.
   POLEN, J.

Appellants, Paula and Sergio Castillo, timely appeal a final judgment in favor of Visual Health and Surgical Center, Inc. and Dr. Walter Hoffman rendered pursuant to a jury verdict in this medical malpractice action. Appellants argue that the trial court erred (1) in allowing the jury to replicate a demonstration performed by a defense expert at trial, (2) in denying their motion for directed verdict, and (3) in denying their motion for new trial. We affirm and write to address the first two issues.

Paula Castillo had a pterygium in her right eye surgically removed by Dr. Hoffman of the Visual Health and Surgical Center. Part of Dr. Hoffman’s established routine is to use six pieces of sponge that are cut from a number of larger sponges that include a handle. The sponges are soaked in mitomycin-C, which is a chemotherapy agent that destroys the type of fast-growing cells that create pterygiums in an effort to prevent any recurrence. The sponges are left on the eye for only three minutes as mitomycin-C is a potent medication.

It is undisputed that a fragment of one of the cut sponges was left in Ms. Castillo’s eye, although appellees did not agree that was the cause of appellant’s injury.

At trial, defense expert Dr. Tseng performed a demonstration for the jury in which a Wexell sponge like the one used in the instant pterygium removal was placed in water so the jury could see how the sponge expands. While the jury was deliberating, the jury raised two questions, one of which was whether the jurors could wet- the Wexell sponge admitted into evidence. Plaintiffs’ counsel objected because they did not want the jury conducting experiments with the evidence. The court allowed the jury' to wet the sponge, though it is unclear from the record whether the jury ever actually wet the sponge.

Appellants note that the parties were not present for the experiment and did not know exactly what the sponge was going to be wet with or what the jurors would do with it. They argue that juries are not entitled to conduct their own experiments, thereby creating new evidence in the jury room outside the presence of the parties and judge.

The trial court is vested with considerable discretion in determining whether to permit exhibits introduced at trial to be taken to the jury room for use by the jury in their deliberations. Brantley v. Tampa Gen. Hosp., 315 So.2d 233, 234 (Fla. 2d DCA 1975) (citing Routh v. Williams, 141 Fla. 334, 193 So. 71 (1940)). It is well settled that a new trial will not be granted because the jury was permitted to carry with them to the jury room articles introduced in evidence which would aid them in their deliberations, unless it can be shown that the jury received testimony therefrom other than that adduced at the trial, and that such additional testimony was prejudicial. Lamb v. State, 90 Fla. 844,107 So. 530, 532 (1925).

Several jurisdictions that have addressed the issue of permissible juror experimentation have generally concluded that recreation or testing of testimony adduced at trial on objective evidence items is acceptable. 89 C.J.S. Trial § 798 (2007); Carol J. Miller, Annotation, Propriety of Juror’s Tests or Experiments in Jury Room, 31 A.L.R.4th 566 (1984). “Jurors, during deliberations, may engage in experiments which amount to no more than a careful evaluation of the evidence presented at trial.” 89 C.J.S. Trial § 798 (2007).

The cases cited by appellees support the proposition that if jurors are merely duplicating tests performed in the courtroom on exhibits sent with them to the jury room, this is not to be considered extraneous evidence and a new trial is not warranted. See Muchell v.V&V, Inc., 263 N. J.Super. 412, 622 A.2d 1365, 1366 (1992); Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co., 215 Kan. 185, 523 P.2d 709, 721 (1974); People v. Fletcher, 260 Mich.App. 531, 679 N.W.2d 127,136 (2004).

The cases cited by appellants, on the other hand, are distinguishable from the instant case in that they involve situations where (1) the evidence admitted is not in the same condition it was in at the time of the relevant incident (See United States v. Beach, 296 F.2d 153, 158 (C.A.Va.1961)); (2) jurors performed their own experiments at home and later testified before the jury much like an expert would (See Smoketree-Lake Murray, Ltd. v. Mills Concrete Constr. Co., 234 Cal.App.3d 1724, 1746, 286 Cal.Rptr. 435 (Cal.App.4 Dist.1991)); (3) jurors conducted experiments outside the courtroom with a vehicle not in evidence (See Jennings v. Oku, 677 F.Supp. 1061, 1063 (D.Hawai’i 1988)); (4) jurors used tools and other objects which were not even present at the trial or which were not used to aid the jury in understanding of testimony (See Jensen v. Dikel, 244 Minn. 71, 69 N.W.2d 108, 115 (1955)); (5) jurors used string in place of wire to conduct an experiment and string would obviously be different from the actual condition of the electric cable (See King v. Ry. Express Agency, Inc., 94 N.W.2d 657, 660 (N.D.1959)); and (6) one juror had conducted an outside experiment and told the jury that the accident could not have occurred as they described at trial (See Bickel v. State Farm Mut. Auto. Ins. Co., 557 So.2d 674, 675 (Fla. 2d DCA 1990)).

The cases cited by appellants are distinguished from the instant case, where no juror conducted any type of reenactment outside the presence of the other jurors and all members of the jury were together when the question was asked and later answered by the court. Though we are unsure of whether the jurors actually performed the experiment and with what liquid they might have performed it, a replication of a demonstration performed at trial such as this cannot be considered new extraneous evidence. Though appellants seem to suggest that they should have been present for the experiment and take issue with the fact that they did not know exactly what the sponge would be wet with or what the jurors would do with it, secret jury deliberations would no longer exist if we knew exactly what went on in the jury room. Thus, we affirm the trial court’s decision to allow the jurors to replicate the demonstration performed before the jury.

The second issue involves section 766.102(3), Florida Statutes (2007). The appellants moved for directed verdict, in which counsel argued that section 766.102(3) shifted the burden of proof to the defense to prove that Dr. Hoffman was not negligent. Section 766.102(3) provides that “the discovery of the presence of a foreign body, such as a sponge ... or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.” Appellants argued that the defense had presented only guesswork and speculation as to how Dr. Hoffman could have failed to see the sponge. The court denied the motion, stating:

There’s evidence — what is said on the witness stand that is not objected to is evidence. Everything in this trial that is admissible is evidence. There is evidence, the weight of the evidence is up to the jury. I only decide if there is evidence.
So I’m going to deny your motion ... because I think it’s unquestionable that there is evidence.

The parties have not cited, nor has our own research revealed any Florida case law interpreting section 766.102(3), Florida Statutes. We agree with appellants that the burden, when shifted to the defendant[s], cannot be met by pure speculation and conjecture. In this case, there was no evidence of how the piece of sponge was left in Ms. Castillo’s eye. Dr. Hoffman offered his hypotheses as to how the sponge could have been left in the eye despite the evidence of numerous “sponge counts” performed by Dr. Hoffman and his surgical staff. Similarly, the defense experts did not necessarily speculate, but gave hypotheses of what may have occurred during the surgery based on their years of experience as to this type of surgery. The jury is free to accept or reject any of this testimony. The trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes.

Appellants cite to Bellere v. Madsen, 114 So.2d 619 (Fla.1959). Bellere involved a rear-end collision and the presumption of negligence on the part of the defendant which shifted the burden of proof to the defendant to explain his conduct. In that case, Bellere claimed he was distracted from the traffic ahead when he saw a woman walking nearby and did not want to run her over. The Florida Supreme Court held that the defendant’s duty to keep a normal lookout for pedestrians did not justify him in completely ignoring the traffic situation in which he was at the time involved. Bellere’s explanation was insufficient to rebut the presumption of negligence.

Appellants also cite to Tozier v. Jarvis, 469 So.2d 884 (Fla. 4th DCA 1985), in which the defendant in a rear-end collision claimed that the accident must have happened because the plaintiff backed out of a restaurant driveway into the roadway, although he could not testify that he in fact saw the plaintiffs vehicle move in any direction, and admitted that he looked away from the road for two to six minutes. This court found that Jarvis’s explanation was insufficient to rebut the presumption of negligence. Paula and Sergio emphasize that the court stated that “nor can the defendant’s sheer speculation that perhaps the plaintiff was backing out of the restaurant, rather than entering the restaurant, rise to the level of affirmative testimony (much less the kind of substantial testimony) necessary to rebut the presumption of negligence.” Tozier, 469 So.2d at 888.

But the instant case does not involve the many situations that can arise on the road and the infinite number of explanations that could be given for accidents that occur. This case is instead limited to what occurs during a surgical procedure that is performed in a controlled setting with surgical staff present to witness the procedure.

Thus, we affirm as the trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes.

Affirmed.

STONE and MAY, JJ., concur.

      . The parties do not agree as to the exact size of the piece of sponge, but the range was between one millimeter and three millimeters.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Dwight Johannes DOWNS, Appellant/Appellee, v. COASTAL SYSTEMS INTERNATIONAL, INC., Appellee/Appellant.
    Nos. 3D06-2329, 3D06-102.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.

      Austin Carr, Coral Gables; Robert S. Glazier, Miami, for appellant/appellee, Dwight Johannes Downs.
    Steven P. Befera and Peterson Bernard, for appellee/appellant, Coastal Systems International, Inc.
    Before COPE, RAMIREZ and SUAREZ, JJ.
   RAMIREZ, J.

Dwight Johannes Downs appeals the trial court’s order granting appellee Coastal Systems International Inc.’s (“Coastal Systems”) motion for final summary judgment, and Coastal Systems appeals the trial court’s order denying in part its Motion to Tax Costs and Attorney’s Fees. We affirm the entry of final summary judgment in Coastal Systems’ favor, but reverse the denial of its entitlement to attorney’s fees because Coastal Systems made its proposal for settlement in good faith.

In April of 2003, Downs took a shallow dive in a Miami Beach swimming area and hit his head on a submerged rock. This tragic dive rendered Downs a quadriplegic. Downs thereafter filed a negligence action against several defendants, including Coastal Systems. He alleged that Coastal Systems had a duty to warn Miami-Dade County about the hazards submerged rocks posed to bathers. This alleged duty was based upon an existing contractual relationship between Miami-Dade County Department of Environmental Resource Management (“DERM”) and Coastal Systems.

Section II of the October 3, 1995 contract between Coastal Systems and DERM required Coastal Systems to provide the following professional services to DERM:

A. Survey or evaluate prospective work sites and develop conceptual designs, permit applications, and construction plans for large scale or complex enhancement projects....
B. Assist in the preparation of studies, reports, models, or GIS and other data analysis related to major environmental issues....
C. Prepare construction plans and specifications for new projects which are relatively small in scope....
D. Construction observation and/or administration services as necessary.

Coastal Systems in turn contracted with the United States Army Corps of Engineers, Jacksonville District (“USACE”), for the preparation of reports on the same subject matter. Coastal Systems produced reports pursuant to this contract.

In Coastal Systems’ March 2000 report prepared for DERM and the City of Miami Beach, Coastal Systems conducted a coastal engineering analysis in which it described its intent, purpose and scope. Coastal Systems was to evaluate “solutions for controlling the erosion” in designated “hot spots” areas of Miami Beach. The purpose and scope of the analysis included the incorporation of “theory, numerical models, and engineering experience”; the investigation of the “processes creating the increased erosion” in these designated areas; and the evaluation of “solutions to control the shoreline retreat.”

Coastal Systems moved to dismiss the complaint, arguing the absence of a duty owed by Coastal Systems to Downs; and the absence of allegations of causation or a breach of a duty. The court granted the motion. In its Amended Complaint, Downs alleged that Coastal Systems owed a general, professional, and ethical duty to Miami-Dade County. Coastal Systems moved to dismiss the Amended Complaint. The court denied the motion.

On February 8, 2005, Coastal Systems served Downs with a Proposal for Settlement in the amount of $5,001.00. Downs filed a Second Amended Complaint for Damages, adding Miami-Dade County and Construction Aggregates Corporation as defendants, but maintaining its claim against Coastal Systems in count III of that complaint. Downs included the allegation that Coastal Systems:

[Hjaving actual or constructive knowledge of the dangerous conditions to swimmers, and having been asked by the County to review the condition of the erosion of the beach, had a general duty, independent from any professional duty and a duty not requiring any specific skills or qualifications, to advise the County of the dangerous conditions that had been previously reported in the literature upon which Coastal Systems relied in its study of erosion and in drafting its reports....

Coastal Systems filed its Answer and Affirmative Defenses to Downs’ Second Amended Complaint. Coastal Systems thereafter filed its Motion for Final Summary Judgment. The trial court granted Coastal System’s motion, finding that it did not have a duty in connection with its contractual obligations to the City, Miami-Dade County, or to DERM.

After prevailing on the motion for summary judgment, Coastal Systems filed its Motion to Tax Costs and Attorney’s Fees on the grounds that it had previously served on Downs a proposal for settlement that had not been accepted within the requisite timeframe. The trial court held that Coastal Systems was entitled to its costs from the date of the proposal for settlement, but it denied Coastal Systems’ entitlement to attorney’s fees on the grounds that the offer was not made in good faith.

Entitlement to Summary Final Judgment

We agree with the trial court that Coastal Systems was entitled to summary final judgment on the claims Downs raised in count III of his second amended complaint. As a threshold matter, Downs must first establish that Coastal Systems owed him a duty to inform him of the existence of submerged rocks in the beach area where he sustained his injuries. See, e.g., Meeks v. Fla. Power & Light, 816 So.2d 1125, 1128 (Fla. 5th DCA 2002). Downs has failed to do so.

Nowhere in the record before us is there a contractual requirement on the part of Coastal Systems to inspect the beach areas for any potentially hazardous rocks and inform anyone of such potential hazards. The contract between Coastal Systems and DERM does not include this duty upon which Downs relies. The contract indicates, for example, that Coastal Systems was to develop plans aimed at the enhancement of the coastline. This included the development of conceptual designs and construction plans, and assistance in the preparation of studies, reports, and models. The reports Coastal Systems produced pursuant to its contractual obligations, namely the March 2000 report, also do not create a contractual duty on Coastal Systems to inform anyone of any potential hazards.

There is likewise no common law tort duty upon which Downs could recover against Coastal Systems. A legal duty arises whenever a human endeavor creates a foreseeable risk of harm. See Owens v. Publix, 802 So.2d 315, 331 (Fla.2001). In light of the scope of the responsibilities DERM charged Coastal Systems, Coastal Systems could not have foreseen all of the potential hazards posed for swimmers. Downs thus cannot recover against Coastal Systems based upon a common law tort duty.

Entitlement to Attorney’s Fees and Costs

The standard of review on this issue is whether the trial court abused its discretion. See Alexandre v. Meyer, 732 So.2d 44 (Fla. 4th DCA 1999). We conclude that the trial court abused its discretion when it denied Coastal Systems’ entitlement to attorney’s fees.

Section 768.79, Florida Statutes (2005), governs offers of judgment and demands for judgment, and provides in relevant part as follows:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him ... from the date of filing of the offer if the judgment is one of no liability.

Florida Rule of Civil Procedure 1.442(h)(1) further provides that “[i]f a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such a case, the court may disallow an award of costs and attorneys’ fees.” But, absent a finding that a party’s offer of judgment was not made in good faith, the trial court cannot disallow an entitlement to an award of fees. See Vines v. Mathis, 867 So.2d 548 (Fla. 1st DCA 2004). When a court determines the existence or non-existence of good faith, the court must consider whether or not there was a reasonable basis for making the offer and an intent to settle the case. See Talbott v. Am. Isuzu Motors, Inc., 934 So.2d 643 (Fla. 2d DCA 2006).

In accordance with section 768.79, Florida Statutes (2005), Coastal Systems timely served its proposal for settlement on Downs. Downs argues that the evidence established that Coastal Systems’ proposal for settlement was a nominal one that did not rest on a reasonable evaluation of both liability and damages. However, there is no evidence in the record that Coastal Systems faced liability for Downs’ claims upon which to conclude that its proposal for settlement was necessarily inadequate. Indeed, Coastal Systems moved for summary judgment and prevailed. This fact supports the argument that Coastal Systems had a reasonable basis to have concluded that it had limited exposure and liability. See McMahan v. Toto, 311 F.3d 1077, 1083 (11th Cir.2002)(citing Levine v. Harris, 791 So.2d 1175, 1177 (Fla. 4th DCA 2001)). This conclusion was reasonably based notwithstanding that the case involved multiple defendants and the offer was made less than one year into the litigation.

Even nominal offers may be made in good faith. See Neptune Beach v. Smith, 740 So.2d 25, 27 (Fla. 1st DCA 1999) (stating that a nominal offer is not suspect merely because it is nominal). In Dep’t of Highway Safety & Motor Vehicles v. Weinstein, 747 So.2d 1019, 1020 (Fla. 3d DCA 1999), reversing the trial judge’s finding that a $1000.00 offer of judgment was not made “in good faith,” we stated:

In our judgment, although the offer was essentially nominal, the record demonstrates conclusively that, at the time it was made, “the [offeror] ... had a reasonable basis ... to conclude that [its] exposure was nominal. Specifically, the defendant could reasonably believe, as it stated it did believe, either because of a late notice which would have precluded relief under section 768.79, or because its investigation revealed substantial evidence that its trooper had not, as alleged, been guilty of any causative negligence, or both, that it was not liable at all, so that the case was worth no more than a nuisance amount to settle. This factual conclusion — that there was a “reasonable foundation,” or a “reasonable explanation,” for the offer-equates to the legal conclusion that it was made in good faith under the statute and thus that the appellant is entitled to fees.

Id. (citations and emphasis omitted). Likewise, in view of the fact that Downs never pled a legal duty upon which to rest his tort claim, Coastal Systems could reasonably conclude that the case was worth no more than a nuisance amount to settle. Downs has thus failed to satisfy his burden, see Ryan v. Lobo De Gonzalez, 841 So.2d 510, 521 (Fla. 4th DCA 2003), to prove that Coastal Systems did not act in good faith when it offered to settle.

Conclusion

For these reasons, Downs can neither recover against Coastal Systems based upon a contractual duty nor one established in common law tort. We, therefore, affirm the entry of summary final judgment as a matter of law on count III of Downs’ second amended complaint. However, we reverse the trial court’s finding that Coastal Systems’ settlement offer was not made in good faith and remand the case to determine reasonable attorney’s fees.

Affirmed in part, reversed in part.


author: SAWAYA, J.

text:
    Marion Deloris CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1429.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Marion Campbell appeals the order entered by the trial court, which revoked her probation based on her admission that she violated condition fifty-eight by failing to complete community service hours. Notably, Campbell did not admit that she violated condition eight (requiring compliance with the probation officer’s instructions) and condition six (requiring Campbell refrain from illegal drug use). Nonetheless, in the written order, the court revoked Campbell’s probation based on its finding that she had violated conditions six and eight, but oddly did not find Campbell had violated condition fifty-eight. The court sentenced Campbell to five years in the Department of Corrections.

We remand this case to the trial court to correct the scrivener’s error in the written order so that it mirrors the court’s acceptance of Campbell’s plea based solely on a violation of condition fifty-eight. The revocation based on the two grounds to which Campbell did not submit a plea must be deleted. See Landry v. State, 380 So.2d 1191, 1192 (Fla. 5th DCA 1980) (finding that a trial court’s order reflecting different findings than the oral pronouncement could be a harmless clerical error when other conditions were sufficient basis for violation); see also Hayes v. State, 927 So.2d 15, 16 (Fla. 2d DCA) (affirming the conviction and sentence but remanding for entry of a corrected revocation order; noting that defendant need not be present on remand when the amended revocation order is entered), review dismissed, 936 So.2d 565 (Fla.2006); Turner v. State, 873 So.2d 480, 480-81 (Fla. 2d DCA 2004) (remanding to conform the order to the oral pronouncement).

We affirm the conviction and sentence but remand for entry of a corrected revocation order.

AFFIRMED and REMANDED.

PALMER, C.J. and THOMPSON, J., concur.


author: PER CURIAM.

text:
    Willoghby HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2246.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.
    Willoghby Hall, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Willoghby Hall appeals the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. We affirm the denial of appellant’s first claim without discussion, and reverse the trial court’s summary denial of appellant’s second claim.

In his second claim appellant argued that trial counsel was ineffective for failing to argue in a motion to suppress that defective Miranda warnings were given. Appellant specifically alleged that he was not advised that he had the right to have a lawyer present during questioning. The warnings given to appellant appear to be the same as those given in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub. nom., State v. West, 892 So.2d 1014 (Fla.2005). Appellant’s claim is legally sufficient, and the trial court failed to attach records that conclusively refute his allegations of ineffective assistance of counsel. See Burgess v. State, 965 So.2d 1239 (Fla. 4th DCA 2007); Louis v. State, 948 So.2d 869 (Fla. 4th DCA 2007); Anthony v. State, 927 So.2d 1084 (Fla. 4th DCA 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005) (finding appellant’s claim trial counsel was ineffective for failing to file a motion to suppress on the basis that the Miranda warnings were deficient under Roberts to be legally sufficient).

Accordingly, we reverse and remand either for the attachment of portions of the record that conclusively refute this claim or for an evidentiary hearing.

STONE, POLEN and TAYLOR, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: STONE, J.

text:
    William JACQUES, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellee.
    No. 4D07-731.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.
    Fred 0. Goldberg of Berger Singerman, Miami, for appellant.
    Nancy Ciampa and Leonor M. Lagoma-sino of Carlton Fields, P.A., Miami, for appellee.
   STONE, J.

In this action by an insured, the trial court entered an order dismissing counts for fraud in the inducement and negligent misrepresentation, applying the economic loss rule, and entered summary judgment in favor of the insuror on counts for breach of contract and declaratory judgment. We affirm.

Jacques’ employer provided $4,299 in disability insurance for which Jacques paid a partial premium. The employer also arranged for employees to acquire an additional supplemental disability policy, through Equitable, in the amount of $2,000 per month. Jacques applied for this supplemental policy. The policy schedule stated that Jacques’ monthly premium was $66.82 and that, beginning on the 181st day of disability, the policy would pay him the “maximum monthly amount” of $2,000 until age 65. Paragraph 10.1 of the contract states as follows:

ENTIRE CONTRACT; CHANGES

This Policy (with the application and attached papers) is the entire contract between You and Us. No change in this Policy will be effective until approved by a Company officer. This approval must be noted on or attached to this Policy. No agent may change this Policy or waive any of its provisions.

The company filled out the application for the supplemental policy before offering the application to the employees. Where Jacques was asked to describe all disability coverage in force at the time, the application stated that Jacques had an existing Paul Revere policy in the amount of $4,299 per month until age 65. Where it asked “Will coverage be Replaced/Changed or Madeover,” there was an “X” in the box marked “No” and the box asking for the date of discontinuance was left blank. Jacques did, however, place an asterisk next to the $4,299. On the same page, the application stated that the “coverage being requested” was “Base” coverage in the amount of $2,000 per month. Jacques made no special notations on this part of the application form.

On the next page, Jacques placed a second asterisk at the end of the following sentence in the agreement section of the application:

2) I will permanently discontinue all policies shown to be discontinued in answer to question 6 on or before the dates indicated. If not, benefits under any policy issued on this application may be reduced by the amount payable under such existing policies.

At the end of the application, Jacques inserted a third asterisk with the following note: “$4,299/mo will be eliminated and will be added to this policy.”

Jacques asserts that the asterisked modifications he made to the application served to increase the amount of policy coverage to $6,299 per month. Jacques’ complaint also charges that prior to his completing the application, agents of Equitable had told him that

if coverage under the Paul Revere policy was no longer available to him, the coverage under the policy ... would provide him with a maximum benefit of $6,299.00. Such agents of the Defendant instructed the Plaintiff to modify the application to reflect this and the Plaintiff acted accordingly by indicating on the application that the $4,299.00 maximum monthly benefit available under the Paul Revere policy “will not be eliminated and will be added to this policy.”

Jacques asserted that he believed Equitable would issue him the subject policy of insurance as represented by the defendant’s agent(s) simply by his making the asterisked comments on the application.

Jacques testified in deposition that he had been aware that his job would terminate in about two years. At the time he acquired the policy, he had a group policy that paid about 60% of his salary, or $4,000. He did not know what premium he was paying for that coverage. The new $2,000 policy offer came to him as a special deal because he was an employee of an Equitable affiliate. Jacques agreed that he understood that a premium for $6,299 in insurance would be more than the premium provided for $2,000 in insurance. When he left his job, he continued paying for the $2,000 in coverage, but believed that he would have a total of $6,299 in coverage. He never even thought about how the insurer would be compensated for the additional $4,299.

The $2,000 policy was issued in January 1996. Jacques left his job two years earlier than expected, in November 1996, and at some point, the pre-existing Paul Revere $4,299 policy ceased to provide coverage. He applied for Equitable benefits in 2001.

Jacques argues that under the terms of his asterisked additions to the policy/application, his coverage automatically increased when he left his job, notwithstanding a lack of provision for an increased premium or additional payment. Equitable points out that the premium issue is significant because the first page of the policy states that the policy was non-can-eellable until age 65 and that the premium could not be changed. Additionally, the application and policy unequivocally stated that the coverage was $2,000, and the policy schedule page stated that there was no modification of the pre-existing Paul Revere coverage.

We conclude that the record reflects not only that the applicant was purchasing a $2,000 policy, but that Jacques’ asterisks and notation made it clear that he was not discontinuing his Paul Revere policy. Nowhere in the application does it say that the new policy will increase when the old policy ceased to provide coverage. Jacques admits that he had no idea how such a transformation was supposed to occur and had never discussed the details of premiums.

The trial court did not err in concluding that there was no ambiguity created by the asterisked application. The court asked Jacques why he did not ask Equitable to change the policy when his group policy ceased to provide coverage. Jacques initially responded that the premium for the $6,299 would have been the same as the premium for the $2,000. However, he then conceded that, at the time he knew he was applying for the policy, he was applying for $2,000 in benefits.

With respect to Jacques’ tort claims, we conclude that the economic loss rule precludes recovery. We have considered Martin v. Principal Mutual Life Insurance Company, 557 So.2d 128 (Fla. 3d DCA 1990), and deem it distinguishable because in that case, the terms of the policy differed from the representations of the agent. See id. (holding that the terms of an insurance policy do not preclude an action against the insurer or its agent where the agent misrepresents the coverage of the insurance contract and the insured reasonably relies on the misrepresentation to his detriment).

Here, however, Jacques simply asserts he was told that if he wanted to seek increased coverage, he should make the request on the application and that he followed that instruction. The alleged advice of the agent was incorporated into the asterisks in the contract application. It is not suggested that the agent indicated that Jacques would receive an automatic increase in coverage or that no additional notice and premium payment would be required for an increase in coverage at a later date.

In Straub Capital Corporation v. L. Frank Chopin, P.A., 724 So.2d 577 (Fla. 4th DCA 1999), tenants sued a landlord, alleging fraud in the inducement and negligent misrepresentation. In reversing an award to tenants, we held that the economic loss rule barred recovery because the misrepresentations were directly related to the landlord’s performance under the lease.

There, we recognized that a party may not avoid the economic loss rule simply by entitling a claim a “fraudulent inducement” claim. Id. (citing Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74, 78 (Fla. 3d DCA 1997)). In RHI Hotels, the Third District summarized:

Misrepresentations relating to the breaching party’s performance of a contract do not give rise to an independent cause of action in tort, because such misrepresentations are interwoven and indistinct from the heart of the contractual agreement. Therefore, we clarify that where the alleged fraudulent misrepresentation is inseparable from the essence of the parties’ agreement, the economic loss rule applies and the parties are limited to pursuing their rights in contract.

Here, as in Straub, the subject representations were directly related to the breaching party’s performance and there is no view of the claim or evidence indicating that the defendant intended, at the outset, to fail or refuse to comply with the agreement terms.

The trial court also properly entered summary judgment on the contract claims. The additions to the contract did not create an ambiguity as to the coverage. They can be read either as a statement that Jacques did not intend to discontinue his existing Paul Revere coverage, or they can be read as a statement that, at some future date, he intended to increase his coverage by the amount of his existing coverage. The trial court appeared to rely on the latter interpretation in its reasoning. Not even Jacques claims that he was asking Equitable to write a policy for $6,299 per month at the time of the application. To the contrary, he expressly wrote that he was not eliminating his existing $4,299/ month Paul Revere policy, and his use of the future tense phrase “will be added” indicates the intent to take a future action regarding additional coverage.

It is undisputed that Jacques knew he was getting a $2,000 per month policy for the policy premium. Although the agent told him about adding the asterisks and the language to the application, Jacques did not know how or when his existing policy was supposed to convert to his new policy or what the premium was supposed to be because “the conversation never went that far.” He had never even thought about how he would pay for the additional $4,299 in insurance after he left his job. He just kept paying the same premium he had paid for the $2,000.

Therefore, the judgment is affirmed.

MAY, J. and TUTER, JACK BEN, JR., Associate Judge, concur.


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    AMERICAN EXPRESS BANK INTERNATIONAL, Appellant, v. INVERPAN, S.A., a Panamanian corporation, Anna Hochman Britten and Haim Hochman, Appellees.
    Nos. 3D07-678, 3D07-383.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.
    Mase & Lara and Joel V. Lumer; Ka-han Shir PL and Paul E. Heimberg, Boca Raton, for appellant.
    Meland, Russin & Budwick, Miami, and Peter D. Russin and Deborah B. Jofre, for appellees.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   PER CURIAM.

American Express Bank International appeals an amended final judgment awarding attorney’s fees to Inverpan, S.A. We reverse.

Inverpan, S.A., Anna Hochman Britten and Haim Hochman [collectively “plaintiffs”] sought account statements and related documents pertaining to Ms. Britten and Inverpan’s accounts at American Express. When they were unable to obtain those documents from American Express, they filed an action against American Express seeking a judgment permitting discovery to obtain that information and any other documents pertaining to the accounts., In pertinent part, the amended complaint alleged that the plaintiffs had retained a law firm and that they are obligated to pay that firm attorney’s fees and costs. Neither the body of the complaint nor the “wherefore” clause includes a demand or request for fees. American Express filed an answer and questioned the law firm’s authority to represent one or more of the defendants. As to the attorney’s fee allegation, American Express stated that it was without knowledge, denied the allegation, and requested strict proof thereof. Subsequently, the plaintiffs filed a motion for summary judgment, which contained a demand for attorney’s fees. The trial court entered summary judgment in favor of the plaintiffs on their claim for discovery of the account documents. Following two agreed motions for enlargement of time, the plaintiffs filed a motion for attorney’s fees based on the account application and agreement and the incorporated contract (“Rules and Regulations Governing Accounts”) between American Express and Inverpan. At the hearing, American Express objected to the fee award on several bases, including the failure to plead sufficiently a request for fees. The court rejected American Express’ arguments and entered a judgment and an amended judgment for attorney’s fees in favor of Inverpan. American Express appeals.

American Express correctly argues that Inverpan waived its claim for attorney’s fees by failing to request a fee award in its initial or amended complaint. As the court held in Stockman v. Downs, 573 So.2d 835, 837-38 (Fla.1991), “a claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.” See Caufield v. Cántele, 837 So.2d 371, 377-78 (Fla.2002); Scruggs v. Sutton, 970 So.2d 853 (Fla. 3d DCA 2007). Here, Inverpan failed to file any pleading requesting such relief. Its complaint merely stated that it had retained counsel and was obligated to pay fees to that firm. That allegation does not “plead specifically a request for attorney’s fees” and is therefore insufficient. See Res Panel Refrigeration Corp. v. Bill Collins Refrigeration Seros., Inc., 636 So.2d 569, 570 (Fla. 3d DCA 1994). In addition, Inverpan’s subsequent filing of its motion for summary judgment requesting an award of fees does not justify a fee award. The request for such relief in a summary judgment motion does not satisfy Stock-man. See Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261, 1263 (Fla.1998) (“This Court’s use of the phrase ‘must be pled’ is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a).”); Sardón Found, v. New Horizons Serv. Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003); Taylor v. T.R. Props., Inc. of Winter Park, 603 So.2d 1380, 1381 (Fla. 5th DCA 1992). Furthermore, the record does not show that American Express waived its objection to the failure to plead a claim for attorney’s fees. See Stockman, 573 So.2d at 838; Sardón Found., 852 So.2d at 421-22; Taylor, 603 So.2d at 1381. Accordingly, we hold that Inverpan waived its claim for attorney’s fees. The resolution of this issue renders moot the remaining points on appeal. The amended judgment awarding attorney’s fees to Inverpan is therefore reversed.

Reversed.

      . Initially, the court entered a final judgment awarding fees. The amended judgment added a cost award.

      . The plaintiffs alleged that all of their account documents had been destroyed in a fire.

      .In response to the initial complaint, American Express filed a motion for an order requiring proof of the authority of plaintiffs’ counsel to represent Ms. Britten. American Express also filed an answer denying the complaint allegations and asserting that the complaint named the incorrect corporate entity as the defendant. Plaintiffs filed a response to the motion requesting attorney’s fees for filing that response. Subsequently, plaintiffs filed an amended complaint which named the proper party defendant.

      . The judgment does not award fees to Ms. Britten or Haim Hochman.

      . Inverpan's reliance on Florida Rule of Civil Procedure Forms 1.934 and 1.944 is misplaced. Those forms involve claims on a promissory note and for a mortgage foreclosure, respectively, and are inapplicable to the claim at issue. See Fla. R. Civ. P. 1.900(b) ("The ... forms are sufficient for the matters that are covered by them.’’); see also Buchanan & Crowder, Inc. v. Kreamer, 120 Fla. 203, 162 So. 500, 501 (1935) (holding sufficient an allegation that plaintiffs are obligated to pay their attorney a reasonable fee " 'to be fixed by this Court by reason whereof Plaintiffs claim of and from the defendants ... a reasonable Attorney’s fee ... to be determined by this Court ’ ") (emphasis added).


text:
    Victoria SANDO, Petitioner, v. STATE of Florida and Al Lamberti, as Sheriff of Broward County, Respondents.
    No. 4D08-3.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2008.
    Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondents.
   PER CURIAM.

Victoria Sando petitions this court for a writ of habeas corpus alleging that her present incarceration is illegal. We agree, grant the petition and remand the case to the trial court for further proceedings.

In June of 2006, Richard Godbout obtained an injunction for protection against domestic violence (“domestic violence injunction”) against Sando. § 741.30, Fla. Stat. (2006). On October 24, 2007, Godb-out filed an affidavit alleging that Sando violated the injunction. A “Notice of Hearing (General)” issued on November 8, 2007, setting a hearing on the affidavit for December 11, 2007. According to the petition, this notice was served on Sando on December 13, 2007, after the hearing had already been held.

Sando did not appear at the December 11th hearing, and the court found that Sando had been “served to appear in court on affidavit of violation” on November 15, 2007, that Sando had not appeared, and that, based on the affidavit and Godb-out’s testimony, Sando had violated the injunction. The court ordered Sando jailed for six months providing, “as a purge,” that she would be released upon completion of a sixty-day domestic violence class. Sando was arrested on December 28, 2007, and remains in custody.

While the trial court’s order states that it concerns “Petitioner’s Affidavit of Violation/Motion for Civil Contempt” and the order purports to provide “as a purge” that Sando complete a sixty-day domestic violence class, the court’s order amounts to a finding of criminal, not civil, contempt.

Criminal contempt is used to punish intentional violations of court orders or to vindicate the authority of the court, and “potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings.”

Gregory v. Rice, 727 So.2d 251, 253 (Fla.1999) (quoting Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985)) (emphasis omitted). Civil contempt, on the other hand, is used to compel future compliance with a court order and the coercive sanction can be avoided through obedience. Id.

The sanction in this case is criminal in nature because even the “purge” itself requires Sando to be incarcerated for at least sixty days. The court’s order punishes Sando for violating the injunction and/or failing to appear at the hearing, and the “purge” does not relate to coercing compliance with the injunction or any other court order. While rule 12.610(c)(5) and section 741.30(9)(a), Florida Statutes, provide that a domestic violence injunction may be enforced through a “civil contempt proceeding,” the sanction imposed by the court in this case was clearly criminal, seeking to punish Sando with incarceration for her alleged transgressions.

The State did not file criminal charges for Sando’s alleged violation of the domestic violence injunction. See § 741.31(2), Fla. Stat. (2007); see also § 741.2901(2), Fla. Stat. (2007) (providing that “criminal prosecution shall be the favored method of enforcing compliance with injunctions for protection against domestic violence”). If Sando had been charged criminally and arrested for the violation, the statute provides that she must be brought before the court as “expeditiously as possible for the purpose of enforcing the injunction and for admittance to bail.” § 741.30(9)(b), Fla. Stat. (2007). Sando was never brought back before the court once she was arrested in this case. She was taken to jail and immediately began serving the “sentence” pronounced in the court’s order.

Nor did the State move the trial court for an order directing Sando to show cause why she should not be held in criminal contempt for violating the injunction. § 741.31(2), Fla. Stat. (2007). See Fla. R. Crim. P. 3.840 (setting forth procedures for finding a person in indirect criminal contempt of court); see also Fla. Fam. L. R. P. 12.980(u) (standard Order to Show Cause setting arraignment on affidavit alleging violation of a domestic violence injunction). The “Notice of Hearing (General)” filed by Godbout pursuant to rule 12.923 was not the equivalent of an order to show cause issued by the court under rule 3.840.

Sando was not afforded procedural due process, as she was not permitted an opportunity to be heard on the allegations that she violated the domestic violence injunction. The trial court could not bypass the procedural and constitutional protections afforded a criminal defendant by purporting to act under its civil contempt authority. The contempt sanction in this case was clearly criminal in nature and none of the procedures relating to criminal contempt were followed. Importantly, both the direct criminal contempt rule and the indirect criminal contempt rule require the court to enter a judgment which recites the facts constituting the contempt for which the defendant was found guilty. Fla. R. Crim. P. 3.830; Fla. R. Crim. P. 3.840.

Sando may have been guilty of direct criminal contempt in failing to appear at the December 11, 2007 hearing. Woods v. State, 600 So.2d 27 (Fla. 4th DCA 1992). But see Kelley v. Rice, 800 So.2d 247 (Fla. 2d DCA 2001) (finding that failure to appear was indirect criminal contempt that could not be summarily punished under the circumstances). While the court may summarily punish direct criminal contempt in some circumstances, Sando was not informed of the accusation against her or given an opportunity to show why she should not be held in direct contempt of court. Fla. R. Crim. P. 3.830. If the court had acted under its direct contempt power, then, at a minimum, it should have afforded Sando notice and an opportunity to be heard on the charge. Bouie v. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001) (explaining that the provisions of rule 3.830 constitute the “essence of due process in criminal contempt proceedings and must be scrupulously followed”). Thus, even under the court’s direct criminal contempt power, Sando was not afforded due process before being deprived of her liberty. In essence, Sando was “sentenced” before she was ever arrested or charged with any criminal act.

Because Sando was clearly denied due process, we grant the petition. Sando shall be immediately released from incarceration without prejudice for the State to file criminal charges or for the court to initiate civil or criminal contempt proceedings consistent with the rules of procedure and due process of law.

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


text:
    Harper DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2765.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 2008.
    Harper Davis, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Reidy v. State, 965 So.2d 1177, 1178 (Fla. 5th DCA 2007).

GRIFFIN, THOMPSON, and EVANDER, JJ., concur.


text:
    Keith MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3070.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 2008.
    Keith Marshall, Carrabelle, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Robert L. PREVOST, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0648.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2008.
    Robert L. Prevost, pro se, Appellant.
    Bill McCollum, Attorney General, and Aan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order by which his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief was denied. We affirm in part and reverse in part.

The appellant argues the trial court erred in denying several of his claims as facially insufficient without providing him the opportunity to amend those claims. Because an opportunity to amend facially insufficient claims is required by Spera v. State, 971 So.2d 754 (Fla.2007), we reverse the trial court’s denial of those claims which the court found to be facially insufficient, including the appellant’s claims that defense counsel was ineffective for -failing to interview all of the witnesses to the victim’s death and that defense counsel was ineffective for failing to apprise him of significant information prior to the appellant entering his plea and receiving his sentence. We remand with directions that the trial court afford the appellant thirty days in which to cure the deficiencies in those claims found to be facially insufficient. If no amendment is filed within the time allowed, the denial of the appellant’s facially insufficient claims may be with prejudice. We affirm the denial of the other claims raised by the appellant, as the trial court properly denied them on their merits.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    DAVID M. DRESDNER, M.D., P.A., a Florida professional service corporation, Appellant/Cross-Appellee, v. The CHARTER OAK FIRE INSURANCE COMPANY, a foreign corporation, Appellee/Cross-Appellant.
    Nos. 2D05-5457, 2D05-5613.
    District Court, of Appeal of Florida, Second District.
    Jan. 18, 2008.

      George A. Vaka and Nancy Lauten of Vaka, Larson & Johnson, P.L., Tampa; Brad Salter of Law Office of Brad Salter, P.A., St. Petersburg; and Bernard Kan-ner, St. Petersburg, for Appellant/Cross-Appellee.
    Denise V. Powers of Denise V. Powers, P.A., Coral Gables; and Rebecca G. Cas-agrande of Casagrande & Associates, P.A., St. Petersburg, for Appellee/Cross-Appel-lant.
   PER CURIAM.

In this appeal we are asked to decide whether a trial court may vacate an earlier order or judgment and then reenter the same order or judgment to allow a party to perfect an appeal when the party previously failed to file a timely notice of appeal as a result of lawyer error amounting to excusable neglect. We conclude that the trial court does not have the authority to relieve a party of the consequences of his or her lawyer’s mistake under these circumstances, even though the lawyer’s error may be excusable. It follows that a trial court is precluded from setting aside an earlier order or judgment and reentering it to permit a party to perfect an appeal under these circumstances. Accordingly, we reverse the trial court’s order in this case that granted such relief under rule 1.540(b) of the Florida Rules of Civil Procedure. The reversal of that order compels the conclusion that the notice of appeal that the losing party filed after the entry of the second order was untimely filed. Consequently, we dismiss that appeal for lack of jurisdiction. We affirm a separate final judgment for attorney’s fees and costs.

THE PROCEDURAL BACKGROUND

In August 2002, David M. Dresdner, M.D., P.A. (Dr. Dresdner), filed an action against The Charter Oak Fire Insurance Company (Charter Oak) on a business owner’s insurance policy. Dr. Dresdner sought reimbursement for the loss of medical supplies valued at $125,285.82, less the applicable $500 deductible. Charter Oak contested Dr. Dresdner’s claim on the policy. After a bench trial, the trial court entered a “Non-Jury Trial Verdict” in favor of Charter Oak and against Dr. Dres-dner. On February 25, 2005, the trial court entered a final judgment in favor of Charter Oak.

After the entry of the final judgment, Dr. Dresdner timely served a “Motion for New Trial and Motion for JNOV.” The timely service of this motion postponed rendition of the adverse final judgment. Fla. R.App. P. 9.020(h). On April 6, 2005, the trial court entered an order denying Dr. Dresdner’s motion for new trial. Therefore, to appeal the final judgment in favor of Charter Oak, Dr. Dresdner was obligated to file a notice of appeal with the trial court on or before Friday, May 6, 2005. Fla. R.App. P. 9.110(b). Unfortunately, a legal assistant employed by Dr. Dresdner’s appellate lawyer apparently failed to calendar the deadline for filing the notice of appeal. As a result, Dr. Dresdner’s notice of appeal of the final judgment was not filed with the trial court until Monday, May 9, 2005. Thus the notice of appeal was filed one day late. On July 13, 2005, this court dismissed Dr. Dresdner’s first appeal for lack of jurisdiction because the notice of appeal was not timely filed.

After his first appeal was dismissed, Dr. Dresdner filed a motion for relief from judgment in the trial court under the provisions of rule 1.540(b) seeking to vacate the April 6, 2005, order denying the motion for new trial. In the motion, Dr. Dresdner alleged, in pertinent part, “[tjhat because of mistake, inadvertence and/or excusable neglect, the Notice of Appeal did not get calendared and, as . such, the Notice of Appeal was not timely filed.” The motion was supported by several affidavits that detailed the series of events that led to the late filing of the notice of appeal. The motion concluded by asking the trial court “to enter an orcier setting aside the April 6, 2005[,] Order reentering the Order with the present date and allowing [Dr. Dres-dner] to go forward with the planned appeal.”

On October 5, 2005, the trial court entered an order granting Dr. Dresdner’s rule 1.540(b) motion. In its order, the trial court found that Dr. Dresdner “ha[d] demonstrated excusable neglect to grant the relief requested.” The order vacated the trial court’s prior order of April 6, 2005, and reentered the order denying Dr. Dres-dner’s motion for new trial without any substantive change. On the same day, the trial court entered a separate final judgment awarding Charter Oak $36,021 in attorney’s fees and $3000 costs against Dr. Dresdner. The attorney’s fee award was based on a proposal for settlement under section 768.79, Florida Statutes (2001), and rule 1.442 of the Florida Rules of Civil Procedure.

On October 26, 2005, Dr. Dresdner filed a notice of appeal from the final judgment entered on February 25, 2005, and the separate final judgment for attorney’s fees and costs entered on October 5, 2005. This court designated Dr. Dresdner’s second appeal as case number 2D05-5457. Charter Oak timely appealed the order granting relief from judgment that vacated and then reentered the order denying Dr. Dresdner’s motion for new trial. This court assigned case number 2D05-5613 to Charter Oak’s appeal. Dr. Dresdner’s second appeal and Charter Oak’s appeal were subsequently consolidated, and Charter Oak’s appeal is treated as a cross-appeal.

DISCUSSION

A. Approaching the Issues

On its face, Dr. Dresdner’s second notice of appeal from the adverse final judgment entered on February 25, 2005, is timely, based on a rendition date of October 5, 2005. However, the timeliness of Dr. Dresdner’s appeal of that final judgment depends on the validity of the trial court’s order of October 5, 2005, that is challenged by Charter Oak on its cross-appeal. In effect, that order purports to change the rendition date of the February 25, 2005, final judgment on the merits from April 6, 2005, to October 5, 2005. Therefore, we are required to address first Charter Oak’s cross-appeal because of its potential impact on Dr. Dresdner’s appeal of the February 25, 2005, final judgment.

B. Charter Oak’s Cross-Appeal (Case No. 2D05-5613)

Charter Oak argues on its cross-appeal that the trial court erred in using rule 1.540(b) as a vehicle to circumvent the jurisdictional requirement that a notice of appeal be timely filed. In considering this argument, we begin by reviewing the relevant statute and rules of court. Section 59.081, Florida Statutes (2004), addresses the subject of the time for invoking the appellate jurisdiction of any court. The statute provides:

(1) The time within which and the method by which the jurisdiction of any court in this state possessed of power to review the action of any other court, commission, officer or bureau may be invoked by appeal, certiorari, petition for review or other process by whatever name designated, and the manner of computing such time shall be prescribed by rule of the Supreme Court.
(2) Failure to invoke the jurisdiction of any such court within the time prescribed by such rules shall divest such court of jurisdiction to review such cause.

Id. In accordance with the statutory plan, the Supreme Court of Florida has promulgated a rule requiring that — in order to be timely — a notice of appeal of a final judgment in a case such as this one must be filed within thirty days of the rendition of the order to be reviewed. Rule 9.110(b) of the Florida Rules of Appellate Procedure provides:

(b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing 2 copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.

Under the rule, a timely notice of appeal must be filed within thirty days of the rendition of the order to be reviewed in order for the appellate court to have jurisdiction. See Hawks v. Walker, 409 So.2d 524, 525 (Fla. 5th DCA 1982). “Under Rule 9.110, the ‘[f]ailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla. 3d DCA 2003) (alteration in original) (quoting First Nat’l Bank in Fort Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208, 208 (Fla. 1st DCA 1984)).

A review of the relevant rules of court also requires us to consider whether the rules authorize a trial court to extend the time for the filing of a notice of appeal. Rule 1.090(b) of the Florida Rules of Civil Procedure grants the trial court broad authority to enlarge the time for acts required to be done or allowed to be done under those rules. However, rule 1.090(b) specifically provides that the trial court “may not extend the time for ... taking an appeal or filing a petition for certiorari.” See In the Interest of T.D., 623 So.2d 851, 852 (Fla. 1st DCA 1993) (holding that a trial court has no authority under rule 1.090(b) to extend the time for taking an appeal); see also Hayman v. State, 634 So.2d 1097,1098 (Fla. 2d DCA 1994) (holding that the trial court in a criminal case had no power to extend the time for the filing of a notice of appeal). It follows that the trial court in this case had no general authority to extend the time for Dr. Dres-dner to file his notice of appeal.

However, in Dr. Dresdner’s case, the trial court did not rely on rule 1.090(b) to extend the time for Dr. Dresdner to file his notice of appeal. Instead, the trial court vacated its April 6, 2005, order denying Dr. Dresdner’s motion for new trial and reentered that order without substantive change on October 5, 2005. The effect of vacating and then reentering the order denying the motion for new trial was to postpone rendition of the February 25, 2005, final judgment that Dr. Dresdner wished to appeal. The trial court took this action under the authority of rule 1.540(b) based on its finding of excusable neglect by Dr. Dresdner’s appellate lawyer in calendaring the deadline for filing the first notice of appeal. Therefore, our task is to decide whether the trial court could vacate its earlier order under rule 1.540(b) and reenter it to permit Dr. Dresdner to perfect his appeal based on a finding of lawyer error amounting to excusable neglect.

In this regard, Charter Oak has directed our attention to a Third District decision involving similar facts. In Thermoplastic & Signs, Inc. v. Metropolitan Dade County, 746 So.2d 1140 (Fla. 3d DCA 1999), the appellant sought review in the Third District of an order of the circuit court acting in its appellate capacity. Id. at 1141. The appellant had failed to file its notice of appeal within thirty days of the rendition of the order to be reviewed because it had sent the notice of appeal and the filing fee to the wrong place. Id. The appellant subsequently filed a “Motion to Set Aside Mandate and Re-Date Order” in the circuit court. Id. The circuit court granted the motion and reentered a second order with language identical to the first order that the appellant had attempted to appeal. Id. Then the appellant timely filed a notice of appeal from the second order. Id.

On review in the Third District, that court treated the appellant’s notice of appeal as a petition for writ of certiorari and dismissed it as untimely. Id. The Third District explained:

The circuit court’s republication of its denial of certiorari without any change in substance from the original final order did not accomplish the circuit court’s goal of providing an extension of time for filing for review. As this court has held, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. See B.G. Leasing, Inc. v. Heider, 372 So.2d 184 (Fla. 3d DCA 1979). The notice of appeal having been filed more than thirty days after rendition of the original final order, we lack jurisdiction over it.

Id. In a similar case, the Fourth District affirmed a trial court order that had denied relief under rule 1.540(b) where the late filing of the appellant’s notice of appeal resulted from an error committed by the appellant’s lawyer. See Feinberg v. Feinberg, 410 So.2d 517, 518 (Fla. 4th DCA 1981).

In this case, Dr. Dresdner does not contend that the trial court had the authority to extend the time for the filing of his notice of appeal. Instead, Dr. Dres-dner relies on a line of cases that he says stands for the proposition “that a party has a right to seek relief from judgment as a pre-requisite [sic] to seeking an appeal.” Dr. Dresdner urges us to affirm the circuit court’s October 5, 2005, order granting his 1.540(b) motion because there has been no showing that the circuit court abused its discretion.

However, the cases on which Dr. Dres-dner relies all involve situations in which a party’s ability to file a notice of appeal in a timely manner was stymied or hindered by action attributable to the trial court or the clerk. See, e.g., Schultz v. Time Warner Entm’t Co., 906 So.2d 297, 299 (Fla. 5th DCA 2005) (approving the grant of relief under rule 1.540(b) where the appellant’s late filing of the notice of appeal was caused by an error in the clerk’s office); Pompi v. City of Jacksonville, 872 So.2d 931, 933 (Fla. 1st DCA 2004) (reversing a denial of relief under rule 1.540(b) where the appellate lawyer and his secretary were misled concerning the rendition date of the order to be appealed by a clerk’s stamp that was difficult to read and by misinformation concerning the rendition date furnished to the secretary by an employee in the clerk’s office); Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298, 1300 (Fla. 4th DCA 1998) (holding that the trial court abused its discretion in denying a motion to vacate under rule 1.540(b) where the moving party did not receive a copy of the order until it was too late to file a notice of appeal). Unlike Thermoplastic and Feinberg, the late filing of the appellants’ notices of appeal in these cases resulted from trial court or clerk errors that were beyond the control of the appellants and their respective lawyers. Thus the rationale of the decisions favorable to the late-filing appellants in these and similar cases is one of fundamental fairness.

This principle is stated explicitly in Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980). In Gibson, the trial court omitted to mail to counsel for either party a copy of a final judgment. Id. at 350. By the time counsel for the defendant received a copy of the judgment that was adverse to his client, it was too late to file a notice of appeal. Id. The defendant filed a motion for relief under rule 1.540(b), but the trial court denied the motion. Id. On appeal, the Fifth District reversed the order denying relief to the defendant. Id. at 351. The Fifth District explained its decision as follows:

Neither plaintiff nor defendant received a copy [of the judgment]. Therefore Rule 1.540(b) should be liberally applied here. “While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.” Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970).

Id. Thus the Fifth District suggests in Gibson that to deny relief to a party who has lost the right to appeal as a result of action attributable to the trial court would be inconsistent with due process of law.

However, in Dr. Dresdner’s case, as in Thermoplastic and Feinberg, considerations of fundamental fairness and due process of law are not implicated. Neither the trial court nor the clerk thwarted Dr. Dresdner’s plan to perfect an appeal from the February 25, 2005, final judgment. Instead, the series of events that led to the late filing of Dr. Dresdner’s first notice of appeal originated in the office of his appellate counsel. It follows that the decisions in Schultz, Pompi, Rosso, and similar cases are inapposite here.

For these reasons, the trial court erred in granting Dr. Dresdner’s 1.540(b) motion. We reverse the October 5, 2005, order that vacated the April 6, 2005, order denying Dr. Dresdner’s motion for new trial and reentered it without substantive change. On remand, the trial court shall deny the rule 1.540(b) motion; vacate its October 5, 2005, order denying the motion for new trial; and reinstate the April 6, 2005, order denying the motion for new trial.

C. Dr. Dresdner’s Appeal (Case No. 2D05-5457)

Although it appears that Dr. Dresdner’s appeal of the adverse final judgment on his insurance claim against Charter Oak lacks merit, we decline to address the merits of his appeal of that final judgment because we lack jurisdiction to do so. Because we reverse the October 5, 2005, order on Charter Oak’s cross-appeal, Dr. Dres-dner’s appeal of the February 25, 2005, final judgment is now untimely. Accordingly, we dismiss Dr. Dresdner’s appeal of that final judgment for lack of jurisdiction.

With the dismissal of Dr. Dres-dner’s appeal of the February 25, 2005, final judgment, the only matter remaining to be disposed of is the separate final judgment in favor of Charter Oak for attorney’s fees and costs that was entered on October 5, 2005. Dr. Dresdner’s second notice of appeal of this separate final judgment was timely filed. However, Dr. Dresdner has omitted to address the issue of the final judgment for attorney’s fees and costs in his initial brief. Since Dr. Dresdner has failed to argue the point, we deem any potential issue pertaining to the final judgment for attorney’s fees and costs in favor Charter Oak to have been waived or abandoned. See City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla.1959); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1988). Accordingly, we affirm the final judgment for attorney’s fees and costs in favor of Charter Oak.

Affirmed in part, reversed in part, dismissed in part, and remanded with directions.

STRINGER and WALLACE, JJ., Concur.

CASANUEVA, J., Concurs in result only.

      . Because Dr. Dresdner’s action against Charter Oak was heard without a jury, this motion should have been designated as a motion for rehearing. Fla. R. Civ. P. 1.530(a).

      . We agree that Dr. Dresdner presented competent, substantial evidence to the trial court from which the trial court could properly conclude that the late filing of the first notice of appeal resulted from a secretarial oversight in calendaring the deadline for filing the notice. A secretarial or clerical oversight that results in a missed filing deadline may constitute excusable neglect. See, e.g., State, Dep’t of Transp. v. Southtrust Bank, 886 So.2d 393, 396 (Fla. 1st DCA 2004); Al Hendrickson Toyota, Inc. v. Yampolsky, 695 So.2d 948, 948 (Fla. 4th DCA 1997); Fla. Aviation Acad. v. Charter Air Ctr., Inc., 449 So.2d 350, 353 (Fla. 1st DCA 1984).


author: PLEUS, J.

text:
    Roberta FERNANDEZ-FOX, Appellant, v. ESTATE OF David P. LINDSAY, Deceased, Appellee.
    No. 5D07-717.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.

      Teresa N. Phillips and Alexander S. Douglas, II, of Pohl & Short, P.A., Winter Park, for Appellant.
    Craig Corbett and James B. Byrne, of Law Office of James B. Byrne, Jr., P.A., Longwood, for Appellee, Vivienne Titus.

      Mark A. Reyes, Sanford, for Appellee, Estate of David P. Lindsay.
   PLEUS, J.

Roberta Fernandez-Fox appeals a trial court order denying her petition for an extension of time to file an independent action against the estate of David P. Lindsay. Fox argues that the trial court erred in finding that a motion to strike was the same as an objection and, because the trial court’s order was premised on this finding, reversal is required. We agree and reverse.

Fox and Lindsay owned a duplex as tenants in common and attempted to change title to a joint tenancy with right of survivorship. Although they endorsed mortgage documents with the designation JTWROS following their signatures, the change was never made in the public record. In August 2003, before they could make the proper changes, Lindsay died and left a will devising his estate to his stepson, stepdaughter-in-law, Vivienne Titus, and their children.

In August 2005, Fox filed a petition for administration. Additionally, Fox made several claims against the estate for storage fees, funeral expenses, and various claims involving the maintenance of the duplex she co-owned with Lindsay. Thereafter, Titus filed a motion to strike Fox’s claims. Fox responded by filing an action against Titus and the estate to quiet title in the duplex. Titus’ motion to strike Fox’s claims was denied by the trial court.

In November 2005, Mark Reyes was appointed personal representative. He filed objections to Fox’s claims nine months after his appointment, in September 2006. In accordance with Florida law, Fox petitioned the court for an extension of time to file an independent action in response to Reyes’ objections. Upon considering the petition, the court determined that Titus’ original motion to strike was an objection and Fox’s claims were barred for not filing an independent action within thirty days of Titus’ motion to strike. After denial of a motion for reconsideration, this appeal followed.

Fox argues that the trial court incorrectly ruled that a motion to strike and an objection are the same. Because the trial court’s ruling is based on interpretation of the Florida Probate Code and Florida Probate Rules, this Court’s standard of review is de novo. See, e.g., Pinellas County v. City of Largo, 964 So.2d 847, 851 (Fla. 2d DCA 2007). Section 733.705(2), Florida Statutes, provides, in pertinent part:

[A] personal representative or other interested person may file a written objection to a claim. If an objection is filed, the person serving it shall serve a copy of the objection as provided by the Florida Probate Rules. The failure to serve a copy of the objection constitutes an abandonment of the objection.

(Emphasis added). Subsection (5) provides that the claimant has “30 days from the date of service of an objection within which to bring an independent action on the claim.” § 733.705(5), Fla. Stat.

The Florida Probate Rules, referenced in section 733.705, delineate specific requirements for filing an objection. Rule 5.496 states, in pertinent part:

(a) Filing. An objection to a claim shall be in writing and shall be filed on or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of the claim, whichever occurs later.
(c) Service. A personal representative or other interested person who files an objection to the claim shall serve a copy ... on the claimant or claimant’s attorney within 10 days after the filing of the objection....
(d) Notice to Claimant. An objection shall contain a statement that the claimant is limited to a period of 30 days from the date of service of an objection within which to bring an action as provided by law.

Fla. Prob. R. 5.496 (2005) (emphasis added).

Thus, the Florida Probate Code requires an objection to be served according to specific requirements. These include filing within a specified time period, personal service on the claimant, and a statement notifying the claimant of the time period limiting claimant’s right to assert an independent action. Fla. Prob. R. 5.496. In this case, the motion to strike never indicated that it was also an objection and, more importantly, the motion to strike did not contain a statement that the claimant was limited to a thirty day period to file an independent action. Under the rule, this is required for an objection. Thus, even assuming that the motion to strike could double as an objection, it failed to comply with the rules governing the manner for objecting to a claim.

An objection must comply with the statutory requirements of section 733.705 and Rule 5.496. Because the motion to strike did not meet the requirements for an objection, the trial court erred by treating the two as the same.

Although the trial court additionally ruled that Fox’s motion for extension failed to establish requisite good cause because it was unsupported by a sworn affidavit or other evidence, we disagree. Fox’s petition made clear that a prior suit was pending with regard to ownership of the duplex. This Court has previously held that where an extension of time to establish an independent claim would not be prejudicial to the estate, courts generally should grant such extensions. Williams v. Estate of Williams, 493 So.2d 44 (Fla. 5th DCA 1986). See also Kelly Assisted Living Svcs., Inc. v. Estate of Reuter, 681 So.2d 813 (Fla. 3d DCA 1996). In Williams, this Court held that “the estate suffered no prejudice or surprise, since the claim and attempted suit had put it on notice of the substance of the claim.” 493 So.2d at 46. Likewise, in the instant ease, the fact that the suit had been filed on the claim to the duplex meant that the estate was on notice of such claims and would not have been prejudiced by the extension of time. The claims were filed in August of 2005. Thus, at the time of the objections in September 2006, the claims had existed for thirteen months. The estate was specifically named as a party to the claim on the duplex and was on notice that Fox sought to quiet title. The additional claims — to storage fees, funeral expenses, and alternative claims for maintenance of the duplex — had been outstanding for nearly a year. Because the facts in this case demonstrate that the estate was aware of the claims for an extended period of time and was joined as a party to a suit, good cause did exist and further, the estate would not have been prejudiced by an extension of time. Under these circumstances, the trial court should have granted the extension.

Finally, both Fox and the estate request an award of attorney’s fees. The parties argue that they are entitled to fees as compensation for action taken for the benefit of the estate. However, because the decision of the trial court is reversed, Fox will be able to pursue a claim against the estate. A claim against the estate is not a benefit to the estate. Additionally, because the estate loses the appeal and now must litigate Fox’s claim, the estate’s attorneys have not benefited the estate. Accordingly, neither party is entitled to attorney’s fees because neither party has benefited the estate.

REVERSED AND REMANDED.

MONACO and EVANDER, JJ., concur.


author: PERRY, B., Associate Judge.

text:
    Kenneth B. WHEELER, Appellant, v. Albert POWERS, etc., et al., Appellee.
    No. 5D07-494.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.

      Alex C. Costopoulos and Alexander S. Douglas, II of Pohl & Short, P.A., Winter Park, for Appellant.
    David A. Burt and Donald E. Hawkins of Hawkins, Hawkins & Burt, LLP, Dayto-na Beach, for Appellee.
   PERRY, B., Associate Judge.

Kenneth B. Wheeler appeals the trial court’s order dismissing his probate revocation petition for lack of standing in the probate of the estate of Dorothy L. Powers. Because we conclude that Mr. Wheeler has standing as the alternate personal representative under a prior Will, we reverse and remand for further proceedings.

In 2000, Dorothy L. Powers and her husband, Albert Powers, retained Kenneth B. Wheeler, an estates and trust attorney, to prepare estate planning documents. Dorothy requested in her initial Will that Mr. Wheeler act as first successor trustee, personal representative, Attorney-in-Fact, and, if requested to do so by Merrill Lynch Trust Company, special trustee in her revocable trust, last Will and Testament, and durable power of attorney.

On December 13, 2001, Dorothy had Mr. Wheeler prepare an amendment to her Will wherein she disinherited her stepson, Brian Powers, and named Albert as her personal representative and Mr. Wheeler as her alternate personal representative. Dorothy and Albert were named co-trustees of the revocable trust, and upon Dorothy’s death, Mr. Wheeler and Albert were to serve as co-trustees.

On December 20, 2004, Dorothy created several new estate planning documents through a different attorney. These included a new Will and a new durable power of attorney naming Albert as her Attorney-in-Fact and her previously disinherited stepson, Brian, as her alternate Attorney-in-Fact. She also signed an amendment to her revocable trust that named Albert as trustee, and Brian and Wachovia Bank as alternate co-trustees.

On January 27, 2005, Dorothy signed another Will naming Albert as her personal representative and Brian as her alternate personal representative. Dorothy was involuntarily hospitalized approximately two weeks later after becoming disoriented, paranoid and suicidal. She was diagnosed with late stage Alzheimer’s disease, and passed away on October 11, 2005.

On February 24, 2005, Albert resigned as Dorothy’s Attorney-in-Fact due to failing health and Brian became her Attorney-in-Fact.

On October 19, 2005, Mr. Wheeler filed a Caveat by Interested Person. The caveat stated that Mr. Wheeler’s interest was “that of potential sole beneficiary of the estate of Dorothy L. Powers” and “as co-Trustee of the Dorothy L. Powers Revocable Trust under agreement dated June 8, 2000, amended and restated on January 5, 2001, and further amended and restated on December 13, 2001.”

On May 2, 2006, Albert petitioned for probate of Dorothy’s January 2005 Will. The Will was subsequently admitted to probate and Albert was appointed personal representative. The Clerk of Court failed to timely notify Mr. Wheeler as a caveator that administration had commenced.

On June 29, 2006, Mr. Wheeler filed his counter petitions to the administration of the January 2005 Will. Mr. Wheeler’s counter petitions alleged: (1) the 2001 estate planning documents were Dorothy’s true testamentary intent and that she either lacked the testamentary capacity to execute the December 2004 and January 2005 estate planning documents, or that those documents were procured by Brian Power’s undue influence; (2) Mr. Wheeler is an interested party as he was named as alternate personal representative and co-trustee in Dorothy’s prior valid Will; and (3) Dorothy’s Will was improperly admitted to probate and letters of administration issued in error because timely notice was not provided to a caveator.

As a result, Mr. Wheeler sought declaratory relief to set aside the December 2004 and January 2005 estate planning documents and probate revocation for failure to provide formal notice to a caveator. In addition, he contended that Albert was not mentally or physically capable of fulfilling his duties as personal representative and co-trustee, and, therefore, Mr. Wheeler should be the primary personal representative and trustee under the 2001 Will.

On December 8, 2006, the trial court entered an Order of Dismissal for Lack of Standing on the basis that Mr. Wheeler’s status as an alternate personal representative under a prior Will and a co-successor trustee under a prior trust did not bestow standing, that he was not an heir and did not represent an heir, and that his desire to see the testator’s intent be carried out did not confer standing on an otherwise disinterested person. Mr. Wheeler timely appealed this order.

The question on appeal is whether an alternate personal representative under a prior Will and a co-successor trustee under a prior trust has standing to contest a Will.

Mr. Wheeler’s standing as an alternate personal representative turns on whether he is an “interested person.” The Probate Code defines “interested person” as follows:

(21) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate .... The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

§ 731.201(21), Fla. Stat. (2003). The statute clearly defines “interested person” to include the personal representative of an estate. This definition has been expanded to include a nominated personal representative under a previous will. Engelberg v. Bimbaum, 580 So.2d 828 (Fla. 4th DCA 1991). The statute does not require that the person be an heir or represent an heir but only that the person “may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(21).

In Hayes v. Guardianship of Thompson, 952 So.2d 498, 507 (Fla.2006), the Supreme Court recognized a fluid definition of “interested person” that “may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.” The Court described standing as “a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.” Id. at 505; see Gieger v. Sun First Nat’l Bank of Orlando, 427 So.2d 815 (Fla. 5th DCA 1983). “Generally, one has standing when he has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation.” Id. at 817.

Orders of dismissal based on a lack of standing must be reviewed de novo. Putnam County Envtl. Council, Inc. v. County Comm’rs of Putnam County, 757 So.2d 590 (Fla. 5th DCA 2000). “In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005). Accepting all well-pled allegations in Mr. Wheeler’s complaint as true, he would become the personal representative and trustee of Dorothy’s estate under her prior Will. Thus, we find that he fits the definition of an “interested person” as he may reasonably be expected to be affected by the outcome of the instant proceeding and the non-probate of the 2001 Will. See § 731.201(21).

However, we do not suggest that every personal representative from every prior will should be granted standing. As stated in Hayes, the definition of “interested person” is fluid and “must be determined according to the particular purpose of, and matter involved in, any proceeding.” 952 So.2d at 507. In this case, Dorothy was of sound mind when she prepared her 2001 Will and placed Mr. WTieeler in fiduciary positions. Nearly four years later and six weeks before she was involuntarily hospitalized with late stage Alzheimer’s disease, she removed Mr. WTieeler from the Will and added her previously disinherited stepson.

Mr. WTieeler allegedly lost standing under Dorothy’s 2001 Will due to undue influence. He was the alternate personal representative and co-trustee for approximately four years until Dorothy changed her Will under suspicious circumstances. Under these circumstances, we find that Mr. Wbeeler is an “interested person” within the meaning of section 731.201(21). Therefore, we reverse the trial court’s denial of relief on this claim.

Because we conclude that Mr. WTieeler has standing as an alternate personal representative under a prior Will, we need not reach the issue of whether Mr. WTieeler has standing as a co-successor trustee under a prior trust.

Another issue raised on appeal is whether probate of the 2005 Will should be revoked because timely notice was not provided to a caveator. Florida Probate Rule 5.260(f) states that “[a]fter the filing of a caveat by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the cave-ator’s designated agent.” Additionally, the Florida Supreme Court has long recognized that the fifing of a caveat precludes the admission of a will to probate until the caveator is provided statutory notice. See Street v. Crosthwait, 136 Fla. 327, 186 So. 516 (1939); Barry v. Walker, 103 Fla. 533, 137 So. 711 (1931); Grooms v. Royce, 638 So.2d 1019 (Fla. 5th DCA 1994); In re Estate of Hartman, 836 So.2d 1038 (Fla. 2d DCA 2002); Nardi v. Nardi 390 So.2d 438 (Fla. 3d DCA 1980). Since we find that Mr. Wheeler was an “interested person” within the meaning of section 731.201(21), we hold that the trial court erred in not revoking the probate of the 2005 Will because timely notice was not provided to a caveator as required by Florida Probate Rule 5.260(f) and Florida ease law. Thus, the orders appointing the personal representative and admitting the 2005 Will to probate must be set aside to provide notice to the caveator.

As a result of our decision regarding the revocation of probate of Dorothy’s 2005 Will, we must now decide whether this resets the notice period as to all beneficiaries. Albert and Brian rely on In Re Estate of Socarras v. Royal Bank of Canada, 384 So.2d 242 (Fla. 3d DCA 1980), to argue that the notice period resets only to the caveator because only the caveator should not be prejudiced by the failure to receive notice. They base their argument on the court’s statement that “the failure of the clerk of the court to notify the caveator that the administration had commenced should not inure to the benefit of the estate and operate to the detriment of the creditor.” Id. at 243. However, Albert and Brian’s argument would act to negate part of the purpose of filing a caveat — to receive notice in order to protect an interest prior to the admission of any purported testamentary documents into probate. Conversely, we find that the notice period should reset to all beneficiaries pursuant to the reasoning of In Re Estate of Socarras. The failure of the clerk of the court to notify the caveator that the administration had commenced should not inure to the benefit of the will proponent and to the detriment of the heirs or beneficiaries who rely on the caveator to protect their interest.

We conclude that Mr. Wheeler is an “interested person” pursuant to section 731.201(21) and the relevant case law because he was the alternate personal representative for approximately four years until Dorothy changed her Will under suspicious circumstances. Thus, Mr. Wheeler had standing to file a caveat and was entitled to notice. Additionally, the notice period resets as to all beneficiaries. Therefore, the judgment of the trial court is reversed and this case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

GRIFFIN and PLEUS, JJ., concur.

      . The trust was the beneficiary of Dorothy’s 2001 Will and her subsequent 2005 Will.

      . In Hayes, the Court dealt with a similar issue to the instant case but as applied to guardianship proceedings. The Court held that a person has standing to participate in a guardianship proceeding if the Florida Guardianship Law or the Florida Probate Rules entitle the person to notice of the proceeding or authorize the person to file an objection in the proceeding. 952 So.2d at 506.


author: DAVIS, Judge.

text:
    In the Interest of J.D., a child. G.P., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D07-89.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.
    G.P., pro se.
    Bernie McCabe, State Attorney, and Amy V. Archibald, Assistant State Attorney, Clearwater, for Appellee.
   DAVIS, Judge.

G.P. (the Father), pro se, challenges the trial court’s order which (1) directed that his son, J.D., remain in the custody of the mother; (2) terminated the Department of Children and Family Services’ supervision; and (3) retained jurisdiction. We affirm but write only to point out that the Father, who is incarcerated, is mistaken in concluding that the trial court’s order essentially terminates his parental rights. See § 39.621(9), Fla. Stat. (2006) (“The permanency placement is intended to continue until the child reaches the age of majority.... [However, i]f a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification of the order.”).

Affirmed.

VTLLANTI and LaROSE, JJ., Concur.


author: MONACO, J.

text:
    Thomas M. DUFFEY, Appellant/Cross-Appellee, v. Denise Lou DUFFEY, Appellee/Cross-Appellant.
    No. 5D07-1369.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.

      James L. Homich, Mt. Dora, for Appellant.
    Denise L. Duffey, Tavares, pro se.
   MONACO, J.

This rather bitterly contested dissolution of marriage action resulted in a final judgment of dissolution that we affirm in all respects, save one. We conclude that because the trial court did not consider the issue framed by the pleadings of whether the former husband should be required to obtain and maintain a policy of life insurance to secure his obligated payments of alimony and child support, a remand on this matter is required.

Very briefly, the former husband, Thomas M. Duffey, who is now 63 years old, and the former wife, Denise Lou Duffey, had a long-term marriage that resulted in one adopted child who is now over the age of majority, and another adult, but dependent child who was born with Down’s Syndrome, and suffers from other serious medical conditions. According to the final judgment, the factual findings of which are supported by substantial competent evidence, the parties established a profitable business in the electronics and computer industry, and'lived an “upper middle class” lifestyle. As the marriage fell apart, the business failed, the former husband moved to Kentucky to be with his girlfriend and his child by her, and the assets formerly enjoyed by the parties dwindled substantially. During the course of the- marriage, Mr. Duffey maintained a life insurance policy on his life in the amount of $1,500,000 in which Ms. Duffey was named as the beneficiary. Eventually, the policy was cancelled for nonpayment of premiums.

Ultimately the trial court issued an order that dissolved the marriage and, among many other things, required Mr. Duffey to pay child support and permanent periodic alimony to Ms. Duffey, as well as retroactive child support of $20,365.92, and retroactive alimony of $95,000. Although Ms. Duffey’s petition for dissolution requests the court to require Mr. Duffey to maintain life insurance on his life in an amount adequate to secure payment of his support obligations, the trial court did not address this issue in its otherwise very detailed and well-reasoned order.

Section 61.08(3), Florida Statutes (2007), addresses the insurance issue as follows:

To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

In Sobelman v. Sobelman, 541 So.2d 1153, 1154-55 (Fla.1989), the Florida Supreme Court held that this statute authorizes a trial court to order the obligated spouse to purchase life insurance or other security to satisfy arrearages or otherwise to protect the spouse receiving the support in “appropriate circumstances.” See also Layeni v. Layeni, 843 So.2d 295, 300 (Fla. 5th DCA 2003). “Appropriate circumstances” may include the dire impact that the sudden death of the obligated party would have on the receiving party. See, e.g., Richardson v. Richardson, 722 So.2d 280, 281 (Fla. 5th DCA 1998); Sasnett v. Sasnett, 679 So.2d 1265,1268-69 (Fla. 2d DCA 1996).

In the present case the trial court made no findings with respect to the insurance issue as raised in the pleadings. Accordingly, on remand the trial court should make findings concerning the issue of whether appropriate circumstances exist to justify requiring the former husband to acquire and maintain life insurance to secure his support obligations under the final judgment. In all other respects, however, the final judgment is affirmed.

AFFIRMED and REMANDED with instructions.

PLEUS and EVANDER, JJ., concur.