author: PARIENTE, J. WELLS, J., ANSTEAD, J.,

text:
    CONTINENTAL CASUALTY COMPANY, etc., Petitioner, v. RYAN INCORPORATED EASTERN, etc., et al., Respondents. Lumbermens Mutual Casualty Company, Petitioner, v. Ryan Incorporated Eastern, etc., et al., Respondents.
    Nos. SC05-1935, SC05-1816.
    Supreme Court of Florida.
    Jan. 24, 2008.

      Jonathan L. Gaines of Karen L. Stetson, P.A., Miami, FL, and William M. Martin of Peterson Bernard, Fort Lauderdale, FL, for Continental Casualty Company, Petitioner.
    Patrick E. Maloney of Tressler, Soder-strom, Maloney, and Priess, LLP, Chicago, IL, and Robert L. Donald of the Law Office of Sherman and Donald, Fort

      Myers, FL, for Lumbermens Mutual Casualty Company, Petitioner.
    Steven G. Schember and Duane A. Daiker of Shumaker, Loop, and Kendrick, LLP, Tampa, FL, for Respondents.

      . These two consolidated cases arise out of the Second District Court of Appeal’s decision in Ryan Inc. Eastern v. Continental Casualty Co., 910 So.2d 298 (Fla. 2d DCA 2005). However, because both Continental Casualty Company and Lumbermens Mutual Casualty Company separately sought review, this Court assigned individual case numbers to those appeals. Additionally, although Ryan Incorporated Eastern is listed in the case caption, it is not a party before this Court because Hartford Fire Insurance Company is the only entity that filed an answer in this appeal.

   PARIENTE, J.

This Court has for review Ryan Inc. Eastern v. Continental Casualty Co., 910 So.2d 298 (Fla. 2d DCA 2005), in which the Second District Court of Appeal certified conflict with Western World Insurance Co., Inc. v. Travelers Indemnity Co., 358 So.2d 602 (Fla. 1st DCA 1978). The conflict issue is whether a surety that pays money on behalf of its principal and is subrogated to any rights the principal has against its own insurer under principles of equitable subrogation is entitled to recover its attorney’s fees under section 627.428, Florida Statutes (2006), for prevailing in a coverage dispute against the principal’s insurer. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude that a surety that has no written assignment from the insured and is not a named or omnibus insured or named beneficiary under the policy is not entitled to attorney’s fees under section 627.428. Accordingly, we quash the Second District’s decision in Continental, which granted a motion for fees by the surety, and approve the First District’s decision in Western World, which denied a similar request for fees.

FACTS AND PROCEDURAL HISTORY

In November 2000, Ryan Incorporated Eastern (Ryan), as contractor, entered into a contract with 951 Land Holdings, Ltd. (951 Land Holdings), as owner of the property, to construct a golf course in Collier County. This contract required Ryan to obtain commercial general liability (“CGL”) insurance. Ryan obtained two separate CGL policies. The primary insurance policy was issued by Continental Casualty Company (Continental) and the excess policy was issued by Lumbermens Mutual Casualty Company (Lumbermens). In December 2000, Ryan, as the principal, and Hartford Fire Insurance Company (Hartford), as the surety, executed performance and payment bonds to 951 Land Holdings, which were subject to an August 1994 General Indemnity Agreement (GIA) between Ryan and Hartford.

After completion of the golf course, 951 Land Holdings sued Ryan and Hartford for damages resulting from contaminated grass supplied by Ryan’s subcontractor. The case proceeded to mediation, after which Hartford paid approximately $4.7 million in claims, fees and expenses to settle the dispute. Subsequently, Ryan and Hartford instituted a declaratory judgment action against Continental and Lum-bermens for failing to defend and indemnify Ryan and Hartford for the damages paid in the lawsuit brought by 951 Land Holdings. Ryan and Hartford filed a joint motion for summary judgment. Continental and Lumbermens each filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Continental and Lumbermens, concluding that there was no insurance coverage under the CGL policies based on the faulty workmanship of the subcontractor. Ryan and Hartford appealed the decision on coverage and filed a motion for appellate attorney’s fees under section 627.428.

On appeal, the Second District Court of Appeal reversed the final summary judgment in favor of Continental and Lumber-mens on the underlying coverage issue and “[remanded] this case to the circuit court for further proceedings on the authority, of J.S.U.B., Inc. v. United States Fire Insurance Co., 906 So.2d 308 (Fla. 2d DCA 2005).” Continental, 910 So.2d at 299. As to appellate attorney’s fees, the court granted Ryan and Hartford’s motion “conditioned upon the ultimate entry of judgment in favor of the Contractor and the Surety on remand.” Id. at 301. The Second District determined that when a surety such as Hartford makes payment for its principal, “the surety becomes subrogated to the rights and remedies of its principal.” Id. at 300. Because of its payment, the Second District reasoned that the surety “stands in the shoes of the Contractor as a first party claimant under the CGL policies” and is equally entitled to an award of fees under section 627.428. Id. at 301.

The Second District further elaborated on public policy considerations. Specifically, the court explained that because the GIA between Ryan and Hartford required Ryan to reimburse Hartford for any fees associated with the enforcement of the bond, a denial of fees to Hartford would make Ryan liable for those fees with no possibility of reimbursement from the insurers. See id. Because this result would contradict the purpose of section 627.428— to discourage the contesting of valid claims by insurance companies — and would “exalt[ ] form over substance,” as the principal could have carried the ball in the litigation and been entitled to the same fees, the court conditionally granted Hartford’s motion. See id.

In reaching this decision, the Second District certified conflict with Western World. In Western World, the surety and its principal sued the liability insurer for its failure to defend the principal and sought reimbursement for the money the surety paid on the bond. See 358 So.2d at 603. Similar to the Second District in Continental, the First District held that when a surety pays a judgment for the principal, the surety may be indemnified from the principal and is subrogated to any rights the principal has against its insurance carrier. See id. at 604. However, on nearly identical facts, the First District concluded that the surety was not entitled to its appellate fees because it was neither a named insured nor named beneficiary under the liability policy. See id. We accepted jurisdiction to resolve this conflict.

ANALYSIS

A. Overview of Section 627.428

This case requires us to review section 627.428, Florida Statutes (2006). Because this issue involves the interpretation of a statute, our review is de novo. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 253 (Fla.2006). Section 627.428, a provision of the Florida Insurance Code, was originally enacted in 1959, see ch. 59-205, § 477, Laws of Fla., and has been the subject of extensive interpretation by both Florida and federal courts. See, e.g., Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co., 254 F.3d 987 (11th Cir.2001); Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216 (Fla.2006); Brass & Singer, 944 So.2d at 253-54; David Boland, Inc. v. Trans Coastal Roofing Co., 851 So.2d 724 (Fla.2003); Roberts v. Carter, 350 So.2d 78 (Fla.1977). Although the section authorizes an award of attorney’s fees, it does so only in a discrete set of circumstances. The statute provides in pertinent part that

[u]pon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat.

As with any case of statutory construction, we begin with the “actual language used in the statute.” Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). This is because legislative intent is determined primarily from the text. See Maggio v. Fla. Dept. of Labor & Employment Sec., 899 So.2d 1074, 1076-77 (Fla.2005). The plain language of section 627.428 provides for an award of attorney’s fees to a “named or omnibus insured or the named beneficiary ” who obtains a judgment or decree against an insurer. § 627.428, Fla. Stat. (emphasis supplied).

A “named insured” is one who is “designated as an insured” under the liability policy. Romero v. Progressive Southeastern Ins. Co., 629 So.2d 286, 288 (Fla. 3d DCA 1993). An “omnibus insured” is one who is covered by a provision in the policy but not specifically named or designated. See Industrial Fire & Cas. Ins. Co. v. Prygrocki, 422 So.2d 314, 315 (Fla.1982) (holding that a pedestrian was an omnibus insured under a liability policy providing coverage for medical and other expenses incurred as a result of bodily injuries sustained by “a pedestrian, through being struck by the insured motor vehicle”); State Farm Fire & Cas. Co. v. Kambara, 667 So.2d 831, 831-32 (Fla. 4th DCA 1996) (holding that a resident was an omnibus insured under a landlord’s liability policy that provided coverage for “bodily injury caused by an accident on your premises you own or rent”). Additionally, the rights of an “omnibus insured” flow “directly from his or her status under a clause of the insurance policy without regard to the issue of liability.” Kambara, 667 So.2d at 833. A “named beneficiary” is one who is specifically designated as such in the policy. See Roberts, 350 So.2d at 79.

Hartford does not contend that it falls within the narrow statutory class of entities outlined in section 627.428. Rather, it argues that it is entitled to an award of fees by standing in the shoes of Ryan, the “named insured” under the CGL policies, as both an assignee and equitable subrogee. Thus, the issue we must resolve is whether a surety that itself does not fall within any statutory classification may nevertheless recover attorney’s fees by virtue of its relationship to an insured.

B. Assignment versus Subrogation

A surety may obtain standing to sue its principal’s liability insurer either through an assignment, under principles of subrogation, or both. Despite the express limitations in section 627.428 as to the class of designated entities entitled to recover attorney’s fees, this Court has previously approved an award of attorney’s fees in situations where policy coverage was obtained through an assignment from an insured. The assignment exception is derived from language in our decision in Roberts, where we rejected an award of attorney’s fees in favor of a third-party beneficiary of an insurance contract. 350 So.2d at 79.

In Roberts, an insurer and its insured appealed a district court decision authorizing an award of attorney’s fees to an injured party under section 627.428. Id. at 78. The injured party was neither an “insured [n]or the named beneficiary” under the policy, but was entitled to sue the insurer because of its status as a third-party beneficiary. See id. at 79. Because the injured third party did not fall within the narrow class of entities authorized to recover fees under the statute, we reversed the district court’s award. See Roberts, 350 So.2d at 79. In reaching this decision, we held that

an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.

Id. (footnotes omitted).

By using the phrase “contracting insured,” we unintentionally created confusion as to whether an “insured” other than the “contracting insured” could recover its fees under the statute. See Prygrocki, 422 So.2d at 315-16. However, we clarified that the term “contracting insured” was not intended to revise the language of the provision, but rather to distinguish between those persons insured under an insurance contract and the third party claimant at issue in Roberts. See id. at 316. We reiterated that the unambiguous terms of the statute clearly applied to all insureds under an insurance policy. See id. Furthermore, the Legislature amended the statute in 1982 to include “any named or omnibus insured or the named beneficiary.” Ch. 82-243, § 376, Laws of Fla.

Unfortunately, in another decision regarding the assignment exception we recognized in Roberts, this Court may have created confusion by using the words “as-signee” and “subrogee” interchangeably. See Fid. & Deposit Co. v. First State Ins. Co., 677 So.2d 266, 267, 269 (Fla.1996). In First State, an entity received an assignment from the insured for the right to recover under the insured’s insurance policy. However, we held that the assignee, as the insured’s “subrogee, will be entitled to attorney’s fees should it ultimately prevail in this litigation.” Id. at 269. As cogently stated in 16 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d (2005),

[t]he distinction between rights arising by virtue of an assignment and by way of subrogation is frequently obscured by defining one in terms of the other, in a manner which makes it difficult to tell whether the usage was an intentional recognition that the two theories are considered as equivalent or an unintentional usage in a context where the difference was unimportant.

Id. § 222:54 (footnotes omitted).

Although we agree that the terms can be interrelated and are often confused, assignment and subrogation remain distinct legal concepts. Thus, the question we must resolve is whether, for purposes of the attorney’s fees statute, obtaining the right to sue the insurer via equitable sub-rogation is functionally equivalent to obtaining that right through an assignment. Because the rights acquired under an assignment differ from the rights acquired by virtue of subrogation, we decline to equate these two distinct principles.

An assignment has been defined as “a transfer or setting over of property, or of some right or interest therein, from one person to another.” Black’s Law Dictionary 128 (8th ed.2004) (quoting Alexander M. Burrill, A Treatise on the Law and Practice of Voluntary Assignments for the Benefit of Creditors § 1, at 1 (James Avery Webb ed., 6th ed. 1894)). Essentially, it is the “voluntary act of transferring an interest.” DeCespedes v. Prudence Mut. Cas. Co., 193 So.2d 224, 227 (Fla. 3d DCA 1966); accord Fla. Power & Light Co. v. Road Rock, Inc., 920 So.2d 201, 204 (Fla. 4th DCA 2006); 3A Fla. Jur.2d Assignments § 1 (2007); 6 Am. Jur.2d Assignments § 1 (2007). Importantly, once transferred, the assignor no longer has a right to enforce the interest because the assignee has obtained all “rights to the thing assigned.” Price v. RLI Ins. Co., 914 So.2d 1010, 1013-14 (Fla. 5th DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2003)).

On the other hand, subrogation is a broader concept, involving “an act of law growing out of the relation of the parties to the original contract of insurance,” 16 Russ & Segalla, supra, § 222:53, where one entity pays the debt or discharges the obligations of another. See 22 Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 141.1[B] (2003). Two types of subrogation have been recognized-conventional and equitable. Conventional subrogation is created by an agreement between the parties whereby one party having no interest in the matter discharges the debt of another and is thus entitled to the “rights and remedies of the original creditor.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999). Essentially, it is an agreement “that the party paying the debt will be subrogated to the rights of the original creditor.” Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. KPMG Peat Marwick, 742 So.2d 328, 332 (Fla. 3d DCA 1999), approved, 765 So.2d 36 (Fla.2000). Indeed, an assignment could be part of a conventional subrogation agreement.

Unlike conventional subrogation, which is created by an express agreement, equitable (sometimes referred to as legal) subrogation arises by operation of law. See DeCespedes, 193 So.2d at 227; 31A Fla. Jur.2d Insurance § 3295 (2002). Equitable subrogation has been defined as “the substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor.” Black’s Law Dictionary 1467. Basically, it is an equitable remedy created “by the legal consequences of the acts and relationships of the parties.” Radio Station WQBA, 781 So.2d at 646. Accordingly, equitable subrogation, “the object of which is to prevent injustice,” is governed by the principles of equity. Holmes, supra, § 141.1[C][1].

The Second District premised its award of attorney’s fees on equitable subrogation, which is a remedy commonly associated with surety relationships. As we explained in Transamerica Insurance Co. v. Barnett Bank of Marion County, 540 So.2d 113, 116 (Fla.1989) (quoting Pearlman v. Reliance Ins. Co., 371 U.S. 132, 137, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962)), a surety “who pays the debt of another is entitled to all the rights of the person he paid to enforce his right to be reimbursed.” In the context of a surety relationship, the key to equitable subrogation lies in the surety’s right to indemnification. Because a surety who pays a judgment on behalf of its principal is entitled to indemnification by its principal, it has the right to be subrogated to any rights the principal has against its liability insurer if that judgment is covered by the principal’s liability policy. See Western World, 358 So.2d at 604.

Although the surety may stand in the shoes of the principal, the principal does not lose its status as an insured under the policy. In fact, as is evident from Ryan’s involvement in the underlying litigation in this case and the principal’s involvement in the underlying coverage dispute in Western World, the insured principal retains its right to sue for insurance coverage. Because the principal retains its rights under the policy, which includes the statutory right to claim attorney’s fees, the surety does not acquire the principal’s status as one of the designated entities entitled to attorney’s fees under the statute. This prevents the insurer from being subject to a claim for attorney’s fees from both the principal (insured) and the surety (subro-gee) when, as in this case, both litigate the same coverage issue. On the other hand, an assignment transfers all of the insured’s rights to a claim under the policy, including its status as an insured under the policy. Thus, an assignee is entitled to an award of fees under section 627.428. See Roberts, 350 So.2d at 79.

We reaffirm our holding in Roberts that only the named or omnibus insured, the insured’s estate, specifically named beneficiaries under the policy, and other third parties who claim policy coverage through an assignment are entitled to an award of fees under section 627.428. See id. at 78-79. Hartford does not fall within the narrow class of entities identified in the statute. Thus, the only way Hartford can recover its fees in this declaratory judgment action is through a valid assignment from Ryan, the named insured under the CGL policies.

C. Alternative Grounds

Although not raised in the Second District, Hartford argues that it obtained a valid assignment of Ryan’s rights under the CGL policies through the General Indemnity Agreement (GIA) entered into between Hartford and Ryan in 1994. We have authority to consider alternative grounds for affirming the decision below that were not raised by the parties. See Radio Station WQBA, 731 So.2d at 644. However, after examining the language of the 1994 GIA, we conclude that it does not constitute an assignment of the rights of the principal to sue its insurer for insurance coverage after the dispute arose.

Hartford also asserts that it is entitled to an award of fees under the statute based on an implied assignment, similar to the one we recognized under the unique circumstances in All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 181 (Fla.1972). In that case, a house repair company brought suit against both the owner and the insurance company that covered the owner’s house for fire damage. Id. at 131. The owner filed a cross-claim arguing that the insurer was responsible because the insurer’s agent had preap-proved All Ways’ estimate for the repairs. Id. The trial court awarded judgments in favor of All Ways and the owner and approved an award of attorney’s fees to both parties. Southern Am. Fire Ins. Co. v. All Ways Reliable Bldg. Maint., Inc., 251 So.2d 11, 13 (Fla. 4th DCA 1971).

In approving the trial court’s award, this Court determined that a contract between All Ways and the insurance company arose by implication. All Ways, 261 So.2d at 132. This implied contract “logically included an assignment” of the owner’s claim against the insurer. Id. We stated that

[u]nder such circumstances it is highly technical and unrealistic to take the view that [the statute] does not authorize an attorney’s fee for All Ways Reliable. All Ways Reliable was found by implication of the related circumstances to be the assignee of the insured Elsie Moore’s loss claim against the insurance company; and, having successfully sued the insurance company which denied the claim for the amount representing the fire loss, was entitled concomitantly to the attorney’s fee.

Id. We held that, despite being neither a named insured nor a named beneficiary under the policy, All Ways was entitled to an award of its attorney’s fees based on an implied assignment from the owner. Id.

The circumstances justifying the implied assignment in All Ways are distinguishable from the facts in this ease. Hartford did not perform under the bond as a result of the insurers’ determination that the damage was covered by the CGL policies. To the contrary, the insurers maintain that they disputed liability from the beginning, even before Hartford settled the underlying litigation. Moreover, Hartford had a duty to perform under the surety bond regardless of whether the CGL policies covered the damage. Hartford does not, and simply cannot, allege that it detrimentally relied, as the repair company did in All Ways, upon an approval from the insurers prior to performing under the bond. Therefore, there are no circumstances that would justify the existence of either an implied contract or implied assignment between the surety and insurers in this case. To the extent that our decision in All Ways appears to recognize an equitable basis for recovering attorney’s fees under section 627.428, we limit that case to its unique facts.

Hartford lastly argues that “a denial of fees to the Surety would lead to the Contractor’s responsibility to indemnify the Surety for payment of its fees without the possibility of reimbursement from the Primary Insurer and the Excess Insurer.” Continental, 910 So.2d at 301. Essentially, the argument is that a denial of fees to Hartford would “exalt form over substance,” because Ryan is liable for Hartford’s fees regardless of the outcome of this appeal. Id. Continental and Lumber-mens do not agree that the contractor, as principal, would be liable under the GIA for the surety’s attorney’s fees in the underlying coverage dispute. We do not interpret the GIA agreement. Even assuming that Hartford is correct, it is outside this Court’s purview to correct a potential inequity by interpreting a statute contrary to its plain language.

Our conclusion does not rest on whether it is sound public policy to allow a surety to recover its attorney’s fees from the insurer under these circumstances. If there is an injustice that requires the expansion of the statutory class of entities entitled to recover attorney’s fees under section 627.428, that argument is .one best addressed by the Legislature. See Parker v. Parker, 950 So.2d 888, 394 (Fla.2007); Dowell v. Gracewood Fruit Co., 559 So.2d 217, 218 (Fla.1990).

CONCLUSION

As we held in Roberts and again reaf-. firm today, section 627.428 authorizes an award of attorney’s fees only to “the named or omnibus insured or named beneficiary” under an insurance policy and to other third parties who obtain coverage based on an assignment from an insured. Ryan, as the named insured under these policies, has always been entitled to its fees in prosecuting this declaratory judgment action against its insurers. However, absent an assignment, Hartford as a surety is not entitled to attorney’s fees from the insurer under 627.428.

For the foregoing reasons, we quash the Second District’s decision in Continental granting attorney’s fees in favor of Hartford and approve the First District’s decision in Western World denying fees to a surety that failed to obtain an assignment. This case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

LEWIS, C.J., and QUINCE and BELL, JJ., concur.

WELLS, J., concurs in result only with an opinion.

ANSTEAD, J., concurs in part and dissents in part with an opinion.

CANTERO, J., recused.

WELLS, J.,

concurring in result only.

I concur with the decision of the majority to quash the decision of the Second District Court of Appeal in this case and to approve the decision of the First District Court of Appeal in Western World Insurance Co., Inc. v. Travelers Indemnity Co., 358 So.2d 602 (Fla. 1st DCA 1978). As the First District did, I would deny attorney fees under section 627.428 because Hartford Fire Insurance Company is not a named or omnibus insured or a beneficiary under the insurance policy.

ANSTEAD, J.,

concurring in part and dissenting in part.

I dissent from the majority’s conclusion, and conclude that Hartford is entitled to attorney’s fees. Since Hartford’s claim on the policy is solely through Ryan as an insured under the policy, it should not make a difference whether Hartford is called an assignee or a subrogee, or is claiming insurance benefits for the use and benefit of Ryan as Hartford is entitled to do as Ryan’s surety. It makes no sense that Hartford would be entitled to press Ryan’s rights to insurance coverage but would be denied attorney’s fees after successfully doing so.

In granting Hartford’s motion for attorney’s fees under section 627.428, the Second District, in a concise and well-reasoned opinion by Judge Wallace, explained:

Where, as in this case, a surety properly makes payment to correct defective construction or to complete a construction project undertaken by its principal, the surety becomes subrogated to the rights and remedies of its principal. It follows that the Surety is subrogated to any rights which the Contractor may have against its CGL carriers. For this reason, we conclude that the Surety stands in the shoes of the Contractor as a first party claimant under the CGL policies. As a first party claimant standing in the shoes of the Contractor, the Surety is entitled to an award of fees under the statute. Moreover, the Contractor executed a general indemnity agreement in favor of the Surety, which required it to indemnify the Surety for its court costs and attorney’s fees. Thus a denial of fees to the Surety would lead to the Contractor’s responsibility to indemnify the Surety for payment of its fees without the possibility of reimbursement from the Primary Insurer and the Excess Insurer. Such a result would be contrary to the goals of section 627.428. Besides, the opposing view exalts form over substance. The Surety could have achieved the same outcome by arranging for the Contractor’s attorney to carry the ball in the litigation.

Continental, 910 So.2d at 800-01 (footnote and citations omitted). Despite the fact that Hartford was neither a named or omnibus insured nor a named beneficiary under the CGL policies, the Second District concluded that Hartford, as a surety, was effectively and legally subrogated to the rights and remedies of Ryan, its principal, and therefore entitled to an award of attorney’s fees under the statute. See id.

“Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999) (quoting W. Am. Ins. Co. v. Yellow Cab Co., 495 So.2d 204, 206 (Fla. 5th DCA 1986)). Equitable-subrogation, also referred to as legal sub-rogation, “is not created by a contract, but by the legal consequences of the acts and relationships of the parties.” Dade County, 731 So.2d at 646. In general, equitable subrogation is appropriate where:

(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.

Id. (citing Fowler v. Lee, 106 Fla. 712, 143 So. 613, 614 (1932)). The party who has discharged the debt “stands in the shoes” of the party whose claim has been discharged and therefore is entitled to the “right and priorities of the original creditor.” Id.

Equitable subrogation is clearly applicable in the context of sureties. See, e.g., Transamerica Ins. Co. v. Barnett Bank of Marion County, 540 So.2d 113, 116 (Fla.1989) (“[Tjhere are few doctrines better established than that a surety who pays the debt of another is entitled to all the rights of the person he paid to enforce his right to be reimbursed.”) (quoting Pearlman v. Reliance Ins. Co., 371 U.S. 132, 137, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962)). When a surety performs or pays on behalf of its principal, it becomes “subrogated to the rights” of both its principal and its obligee. Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So.2d 1066, 1068 (Fla. 2d DCA 1980); accord Auto Owners Ins. Co. v. Travelers Cas. & Sur. Co., 227 F.Supp.2d 1248, 1259 (M.D.Fla.2002); Transamerica, 540 So.2d at 115-16; U.S. Fid. & Guar. Co. v. N. Am. Steel Corp., 335 So.2d 18, 20 (Fla. 2d DCA 1976). Although limited to the “extent of performance or payment,” the surety is “entitled to all the rights of the person [it] paid to enforce [its] right to be reimbursed.” Transamerica, 540 So.2d at 116 (quoting Pearlman, 371 U.S. at 137, 83 S.Ct. 232). Hence, to the extent that a surety performs on behalf of its principal an obligation that is covered by the policies of a principal’s liability insurers, the surety stands in the shoes of its principal and is subrogated to the rights of its principal under those policies. See Western World Ins. Co. v. Travelers Indem. Co., 358 So.2d 602, 604 (Fla. 1st DCA 1978); see also Auto Owners, 22,1 F.Supp.2d at 1260. Accordingly, a surety who performs its obligations under the surety contract is entitled to assert the rights and remedies available to the principal against an insurer in order to seek reimbursement for its outlays under the surety contract.

The majority contends that even if a surety is entitled to stand in the shoes of an insured, it does so in a limited fashion. Citing to Western World, the majority holds that a surety’s right to subrogation is limited to the rights the principal is owed under the policy with respect to indemnification and nothing more. However, no one disputes that a principal is entitled to seek recovery from its insurer for damage that is allegedly covered by the policy, and, if the insurer fails to defend the principal, the principal is entitled to recover its attorney’s fees because it was forced to sue the insurer to enforce its insurance contract. See § 627.428, Fla. Stat. Importantly, when a surety and a principal are forced to sue the principal’s liability insurer seeking declaratory, judgment that the damage paid by the surety is covered by the policies, the surety is not seeking any rights greater than is already owed to the principal under the policy and under the attorney’s fees statute.

An award of “fees has generally been denied when other persons have litigated the issue of insurance coverage on their own behalf,” such as in third party beneficiary cases. Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977). Where a third-party is not named in the policy or otherwise standing in the shoes of an insured, courts have been reluctant to award attorney’s fees. See Indus. Fire & Cas. Ins. Co. v. Prygrocki, 422 So.2d 314, 316 (Fla.1982) (stating .that “[t]hird-party claimants, as Roberts held, are not within the class of insureds” contemplated by the statute); Roberts, 350 So.2d at 79 (refusing to award attorney’s fees to a third party beneficiary who was not named in the policy); see also Am. E. Dev. Corp. v. Everglades Marina, Inc., 608 F.2d 123 (5th Cir.1979) (refusing to grant attorney’s fees to a third-party beneficiary who was not named in the policy); Essex Builders Group, Inc. v. Amerisure Ins. Co., 429 F.Supp.2d 1274, 1290-91 (M.D.Fla.2005) (refusing to grant attorney’s fees to an excess insurer because the excess insurer had not expended any fees on behalf of an insured, which would have allowed it to stand in its shoes to recover under the statute).

However, in situations where a third party has obtained rights by “standing in the shoes” of an insured, the law in Florida has allowed a recovery of attorney’s fees. See, e.g., All Ways Reliable Bldg. Maint., Inc. v. Moore, 261 So.2d 131 (Fla.1972) (allowing an assignee of an insured to recover its attorney’s fees under the statute); see also Kivi v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1288-89 (11th Cir.1983) (allowing an assignee of an insured to recover its fees); Stuyvesant Ins. Co. v. Nardelli, 286 F.2d 600, 604 (5th Cir.1961) (approving an award of attorney’s fees to an indemni-tee under the statute); but see Western World, 358 So.2d at 604 (refusing to grant attorney’s fees to a surety who was subro-gated to the rights of its principal).

Although this Court has yet to decide a case under the precise circumstances at issue here, it has interpreted section 627.428 in situations involving an insured’s assignee. This Court has concluded that an award of attorney’s' fees is appropriate in favor of an insured’s assignee who successfully sues an insurance company that contested a claim under the policy. See All Ways, 261 So.2d at 132. In All Ways, a house repairer brought suit against both the owner and the insurance company that covered the owner’s house for fire damage. Id. at 131. The owner filed a cross-claim arguing that the insurer was responsible because the insurer’s agent had preap-proved All Ways’ estimate for the repairs. Id. at 132. The trial court awarded judgments in favor of All Ways and the owner, and approved an award of attorney’s fees to both parties. S. Am. Fire Ins. Co. v. All Ways Reliable Bldg. Maint., Inc., 251 So.2d 11, 13 (Fla. 4th DCA 1971), quashed sub nom. All Ways Reliable Bldg. Maint. v. Moore, 261 So.2d 131 (Fla.1972). In approving the trial court’s award on review this Court determined that, although no express contract existed, a contract between All Ways and the insurance company arose by implication of the circumstances. All Ways, 261 So.2d at 132. This implied contract “logically included an assignment” of the owner’s claim against the insurer. Id. Importantly, this Court found that

[ujnder such circumstances, it is highly technical and unrealistic to take the view that [the statute] does not authorize an attorney’s fee for All Ways Reliable. All Ways Reliable was found by implication of the related circumstances to be the assignee of the insured Elsie Moore’s loss claim against the insurance company; and, having successfully sued the insurance company which denied the claim for the amount representing the fire loss, was entitled concomitantly to the attorney’s fee.

Id. (emphasis supplied). Despite being neither a named insured nor a named beneficiary under the policy, we held that All Ways was entitled to an award of its attorney’s fees based on an implied assignment from the owner. Id. Because it had given such broad interpretations to the attorney’s fees provision, this Court stated that “it would appear to follow that an assignee of an insurance claim stands to all intents and purposes in the shoes of the insured and logically should be entitled to an attorney’s fee when he sues and recovers on the claim.” Id.; accord Roberts, 350 So.2d at 79.

I acknowledge that while we have held that an assignee of an insured is clearly entitled to an award under section 627.428, this Court has yet to decide a case involving a subrogee of an insured. However, because assignees and subrogees are treated similarly in terms of the rights acquired from the insured, there is simply no reason for the disparate treatment of the attorney’s fee provision in these virtually identical circumstances. In fact, the Court has previously approved an award of attorney’s fees to an assignee of an insurance claim based on principles of subrogation. See Fid. & Deposit Co. of Md. v. First State Ins. Co., 677 So.2d 266, 269 (Fla.1996). As discussed in the majority opinion, Fidelity paid a claim on behalf of its insured and in return received an assignment from the insured to sue First State, another insurer that was ultimately responsible for the loss. Id. at 267. On appeal, this Court remanded to the trial court for further proceedings, but held that Fidelity, as the insured’s “subrogee, will be entitled to attorney’s fees if it ultimately prevails in this litigation.” Id. at 269 (emphasis supplied). Although First State involved an assignment, this Court used the terms assignee and subrogee interchangeably. See id. By conditionally approving an award of fees to Fidelity as a subrogee, the Court essentially treated assignees and subro-gees similarly under section 627.428.

In Auto Owners, the United Statutes District Court for the Middle District of Florida addressed a surety’s status when pursuing a claim against its principal’s liability insurer. A commercial liability insurer brought a declaratory judgment action against a surety to determine whether damage to certain construction projects was covered under the policies. 227 F.Supp.2d at 1254. The court concluded that the surety, as an assignee and a sub-rogee, had standing as a first party claimant under the policy to pursue counterclaims against the insurance company. Id. at 1259-60. Specifically, the surety had performed on behalf of its principal, an insured under the CGL policy, and thus “[stood] in [the surety’s] shoes[,] ... [was] equitably subrogated to the rights of [the surety], and [was] considered a first party claimant on the CGL policies.” Id. at 1260. Although the attorney’s fees provision was not at issue in Auto Owners, it seems relatively clear that the court concluded that an insured’s assignee obtains the same rights and is entitled to the same status as an insured’s subrogee. Id. at 1259. Both entities can “stand in the shoes” of the insured to protect their interests, both entities have standing to sue the insured’s liability insurer, and more importantly, both parties are entitled to receive all the rights an insured has against its insurance company. Id. at 1259-60.

Additionally, the decision in Western World supports the conclusion that a sub-rogee, like an assignee, is equally entitled to all of the rights of the subrogor. In Western World, a surety paid a judgment on behalf of its principal under the terms of a security bond. 358 So.2d at 603. Thereafter, the surety and its principal sought recovery from the principal’s liability insurer for failing to defend in the underlying litigation. Id. The First District concluded the surety was entitled to indemnification from the principal and thus had “the right to be subrogated to any rights which [the principals] have against their insurance carrier.” Id. at 604 (emphasis added). Although the court’s refusal to grant attorney’s fees to the surety is the basis for the certified conflict in this case, the First District correctly concluded that the surety is subrogated to any rights of the principal against its insurer. Id.

As previously mentioned, there is no apparent distinction between the types of rights afforded to the assignee of an insured versus the types of rights afforded to a subrogee. Compare All Ways, 261 So.2d at 132 (holding that a surety who was an assignee stood in the shoes of the insured to all intents and purposes and was therefore entitled to an award of attorney’s fees) and First State, 677 So.2d at 269 (holding that an assignee of an insurance claim was entitled to an award of fees under the statute as the insured’s subro-gee) with Dade County, 731 So.2d at 647 (stating that a subrogee stood in the shoes of the person whose debt had been discharged and thereby acquired all rights as against the wrongdoer). Given that both assignees and subrogees are equally entitled to stand in the shoes of the insured, it would be “highly technical and unrealistic” not to award fees to a subrogee who successfully sues an insurance company that is ultimately responsible for the claim. All Ways, 261 So.2d at 132.

In the present case, Hartford, as surety, and Ryan, as principal, executed and delivered performance bonds to 951 Land Holdings, the owner of the property. After 951 Land Holdings brought suit against Ryan and Hartford for supplying contaminated grass to the project, Hartford, in its role as surety, paid $4.7 million to settle the underlying litigation. Continental, 910 So.2d at 301. Thereafter, Hartford and Ryan filed a declaratory judgment action against Ryan’s liability insurers seeking reimbursement because the damages satisfied by Hartford on behalf of Ryan were covered by the CGL policies. Once Hartford paid the settlement, as was required by the bond, it became subrogated to the rights of Ryan. See Dade County, 731 So.2d at 646; Transamerica, 540 So.2d at 115-16; see also Auto Owners, 227 F.Supp.2d at 1259; Western World, 358 So.2d at 604; Argonaut, 380 So.2d at 1068. Because the extent of payment is alleged to be an obligation covered by the CGL policies, Hartford is subrogated to all the rights Ryan may have against petitioners. See id. As previously discussed, these rights include an entitlement to attorney’s fees under section 627.428.

In reaching its decision, the Second District concluded that a denial of fees to Hartford would “exalt form over substance” because Ryan is ultimately liable to Hartford for its fees based on the indemnity agreement. Contintental, 910 So.2d at 301. The court reasoned that the statute’s purpose is to reimburse an insured when it is forced to sue its insurer on the policy and that a denial of fees to Hartford, where Ryan will ultimately be liable for those fees anyway, would be contrary to that purpose. Id. Petitioners argue that Hartford and Ryan are experienced entities that decided to pursue the claim in this fashion and thus the court erred in forcing petitioners to pay for Hartford’s fees simply because Ryan had a contractual obligation to do the same. However, the Second District correctly concluded that if Ryan had decided to carry the ball in the litigation, Ryan unquestionably would be entitled to its fees upon receipt of a favorable judgment against the insurers. Moreover, the mere fact that Hartford and Ryan are both involved in this litigation, each with their own attorney, should not deter this Court from approving an award of fees to Hartford. Indeed, this Court in All Ways approved a similar award, allowing both the insured and the insured’s implied assignee to recover under the statute because it would have been “highly technical and unrealistic” to reach any other result. 261 So.2d at 132. Therefore, this Court should conclude that Hartford stands in the shoes of Ryan as a first-party claimant under the CGL policies and, if successful in the action against petitioners, should be entitled to an award of attorney’s fees under section 627.428.

      . At oral argument, Hartford stated that Ryan paid a portion of this settlement. However, the actual amount contributed is unknown because it is part of a confidential settlement agreement not contained in the record.

      . On the substantive issue of liability coverage, the Second District noted that J.S.U.B. would govern the analysis of the policies’ coverage provisions, but the court could not determine from its de novo review whether the damage occurred prior to the completion of the project. See Continental, 910 So.2d at 299-300. Accordingly, the court remanded to the trial court to determine when the damage occurred and then decide the case based upon J.S.U.B. Id. at 300. The Second District's decisiori in J.S.U.B. was approved by this Court on the underlying coverage issue. See U.S. Fire Ins. Co. v. J.S.U.B., Inc., No. SC05-1295, — So.2d —, 2007 WL 4440232 (Fla. Dec. 20, 2007).

      . The provisions of section 627.428 were originally codified at section 627.0127. However, they were moved in 1971.

      . We reject the argument that Hartford is precluded from recovering attorney’s fees because it can be classified as an insurer. This Court has previously awarded attorney's fees under section 627.428 to entities engaged in the business of insurance. For example, in
        Fidelity & Deposit Co. v. First State Insurance Co., 677 So.2d 266 (Fla.1996), a fire insurer disputed coverage for a fire-damaged property arguing that it had previously cancelled the policy. Id. at 267. The insured settled with its “errors and omissions” insurer and assigned its right to sue the fire insurer for coverage. Id. We held that the "errors and omissions” insurer, which had obtained an assignment from the insured, would be entitled to an award of attorney’s fees if it was successful in the suit against the fire insurer. Id. at 269.

      . At the time of our decision in Roberts, the provision authorized an award of fees to "an insured or the named beneficiary under a policy.” § 627.428(1), Fla. Stat. (1975).

      . The insurers argue that the "anti-assignment” clause in the GIA precludes an assignment, even subsequent to the loss. However, “it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.” West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210-11 (1917); accord Better Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So.2d 141, 142 (Fla. 3d DCA 1995).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie Earl LUTON, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1800.
    Supreme Court of Florida.
    Jan. 24, 2008.
    Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit, Miami, FL, and Anthony C. Musto, Special Assistant Public Defender, Seventh Judicial Circuit, Hal-landale Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Linda S. Katz, Assistant Attorneys General, Miami, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in Luton v. State, 934 So.2d 7 (Fla. 3d DCA 2006), pursuant to article V, section 3(b)(3) of the Florida Constitution. See Luton v. State, 944 So.2d 345 (Fla.2006) (granting review). However, we have determined that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.


author: VILLANTI, Judge.

text:
    Guillermo SOTO, Appellant, v. Maria Ines SOTO, Appellee.
    No. 2D06-66.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 2007.
    Neil Morales of The Morales Law Firm, P.A., Naples, for Appellant.
    Melinda P. Riddle, Naples, for Appellee.
   VILLANTI, Judge.

Guillermo Soto, the Former Husband, appeals the final judgment of dissolution of marriage to Maria Ines Soto, the Former Wife. The Former Husband raises two issues on appeal: (1) that the trial court miscalculated his income available for alimony and child support and (2) that the trial court erred in the equitable distribution award. We find merit in the Former Husband’s first issue, and accordingly, we reverse the trial court’s determination as to the Former Husband’s income and remand for further proceedings to recalculate alimony and child support. We reject without discussion the Former Husband’s second issue.

When the trial court held the final hearing on the petition for dissolution of marriage, a court reporter was not present. In accordance with Florida Rule of Appellate Procedure 9.200(b)(4), the parties prepared a statement of the evidence that was subsequently approved by the trial court. Thus, as the evidentiary record, we have before us a twelve-page statement of the evidence, along with numerous financial exhibits. We conclude that the statement of evidence, which at best is a recitation of the final judgment, fails to provide an adequate basis for us to review the trial court’s determination concerning the Former Husband’s income. See Starks v. Starks, 423 So.2d 452, 453 (Fla. 1st DCA 1982) (holding that the statement of evidence was not “a sufficient substitute for ... a hearing transcript”). Therefore, the factual findings in the final judgment must be affirmed.

The Former Husband argues that “even where the appellant fails to provide a transcript, the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment.” Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998). Such a situation is present here. On its face, the final judgment contains several errors that require us to reverse and remand for an evidentia-ry hearing on the issue of the amount of the Former Husband’s income.

Because the trial court found that the Former Husband’s testimony regarding his income was inaccurate, it attempted to calculate how much the Former Husband was actually earning by examining what he and the Former Wife were actually spending. However, the trial court’s approach to achieve this goal was to then total the amount of the parties’ assets, divide that amount by the years of marriage, and obtain a quotient that would purportedly reflect how much the Former Husband was actually earning. The trial court then used this figure to set alimony and child support. Under the facts of this case, this was error.

While the approach of examining expenditures in order to determine income is legitimate, solely examining assets in a marriage of other than a nominal length to determine income is inherently flawed. Assets, especially when partially composed of real property as here, increase or decrease in value over time. Therefore, arbitrarily dividing their overall value by the number of years of the marriage will not yield a reliable reflection of the monies expended to acquire those assets; hence, the calculation will not reliably reflect current income. In addition to employing this flawed process, the trial court made several substantial mathematical errors which also necessitate reversal.

In listing the parties’ assets, the trial court erroneously listed the G. Soto Lawn Service corporation bank account twice— once valued at $108,142.63 and once valued at $108,100.53. Second, we are unable to determine whether the court’s inclusion of two joint Bank of America savings accounts is correct. The record contains evidence in support of only one account, valued at $40,456.39. It appears that the “first account” is actually the ending balance listed in the Bank of America account statement and the “second account” is actually the qualifying balance on the same account statement. Notably, no account numbers appear in the final judgment. Additionally, the final judgment listed eighteen assets and added their values for a total “in excess of $400,500.00.” (Emphasis added.) The trial court then arbitrarily rounded this imprecise number down to the whole number of $400,500.00 and divided it by “the six year period between 1988 and 2004.” There are sixteen years, not six, between 1988 and 2004. The court then used the resulting quotient of $66,750, based on the erroneous six-year period, as the amount of assets the parties had purchased each year. A correct calculation would have reflected a quotient of approximately $25,031. The court then used this erroneously calculated figure to extrapolate how much the Former Husband was actually earning.

Because significant errors are apparent on the face of the final judgment, we must reverse and remand for an evi-dentiary hearing on the issue of the Former Husband’s income. See Larrea v. Larrea, 745 So.2d 440 (Fla. 2d DCA 1999) (finding that when a transcript is not provided in the record on appeal, a trial court’s final judgment can be reversed only if an error is apparent on the face of the final judgment). At that time, the trial court may amend the monetary awards for alimony and child support if the trial judge deems the correct income recalculation makes this appropriate.

Reversed and remanded for an eviden-tiary hearing on matters related to the Former Husband’s income, alimony and child support amounts; final judgment of dissolution of marriage affirmed in all other regards.

SALCINES and LaROSE, JJ., Concur.


author: STRINGER, Judge.

text:
    Eric O. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4448.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.
    Rehearing Denied March 27, 2007.
    Fulmer, C. J., concurred in result only.

      Robin H. Stevenson, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Eric 0. Williams seeks review of the order denying his motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850, after a hearing. Williams raised two grounds for relief in his motion. We affirm the denial of ground two without comment. We reverse the denial of ground one because the State failed to produce evidence to refute Williams’ claim that trial counsel was ineffective for misadvising him regarding the maximum sentence he faced.

Williams entered a plea to reduced charges of two counts of robbery with a deadly weapon, and the trial court sentenced him to concurrent fifteen-year terms of imprisonment. In ground one of his rule 3.850 motion, Williams argued that trial counsel was ineffective for misadvis-ing him that he was subject to a mandatory life sentence for the original charges of burglary of a dwelling with a firearm and robbery with a firearm. It is undisputed that these charges did not require a mandatory life sentence.

At the hearing on his motion, Williams testified that he was represented by several attorneys prior to entering his plea. He testified that he met with attorney Aiken a couple of times and that Aiken went over his scoresheet and advised him of the minimum and maximum guidelines sentences. Attorney Aiken did not tell Williams that he would receive a mandatory life sentence if he was convicted. However, when attorney Bradstock took over his case, Brad-stock advised Williams that he would receive a mandatory life sentence if he was convicted. Williams entered a plea the same day Bradstock gave him this information. Williams claimed that he would not have entered a plea but for the misad-vice.

Consistent with Williams’ testimony, attorney Aiken testified that he discussed Williams’ scoresheet with him and did not tell Williams he was subject to a mandatory life sentence. Aiken did not remember the maximum penalty for Williams’ charges and said he would have to look at the file. However, he never consulted the file in the case. Attorney Bradstock testified that he had a very limited recollection of his discussions with Williams regarding plea negotiations and whether Williams should go to trial. In response to postcon-viction counsel’s questions regarding whether Bradstock advised Williams that he would be subject to a mandatory life sentence, Bradstock replied that he could not recall. Bradstock did not believe that Williams was facing a mandatory life sentence, but he was not sure. Bradstock testified that he discussed the plea agreement with Williams very briefly, for no more than ten or fifteen minutes.

The postconviction court found that Williams’ testimony was not credible and denied relief on this basis. The court concluded that it was unlikely that attorney Bradstock would have misinformed Williams about his potential exposure and that attorney Aiken did discuss Williams’ potential sentence with him. Williams argues that the court erred in denying his claim because the State failed to conclusively refute his testimony that he was misinformed about his potential exposure. We agree.

A defendant has the burden of proving his claim of ineffective assistance of counsel at an evidentiary hearing on a rule 3.850 motion. Green v. State, 857 So.2d 304, 305 (Fla. 2d DCA 2003). However, when a defendant presents competent substantial evidence in support of his ineffective assistance claim, the burden shifts to the State to present contradictory evidence. Id. In this case, Williams testified that attorney Bradstock misadvised him that he would receive a mandatory life sentence if he was convicted and that he would not have entered a plea but for the misadvice. Counsel’s misrepresentations regarding the length of a sentence constitute a sufficient basis for postconviction relief in the form of allowing a defendant to withdraw a guilty plea. State v. Leroux, 689 So.2d 235, 236 (Fla.1996). Williams’ testimony, if credible, was sufficient to establish that attorney Bradstock rendered ineffective assistance of counsel on this basis.

While the trial court found that Williams’ testimony was not credible, the trial court’s findings on this issue are not supported by the evidence. The court did not attribute Williams’ lack of credibility to Williams’ demeanor or any inconsistent actions or statements of Williams. If it had, it would certainly be beyond this court’s province to second-guess that determination. However, the court stated, “The Court does not find it credible that Mr. Bradstock would have told the Defendant that he could get a mandatory life sentence, if he went to trial and lost; and it appears to the Court that the Defendant would have discussed with Mr. Aiken what he faced.” The first finding has no support in the record, and the second finding does not refute Williams’ claim.

Attorney Bradstock did not remember his discussions with Williams and could not say whether the charges were subject to a mandatory life sentence. The court’s determination that Williams’ testimony was not credible must have been based on the court’s knowledge of attorney Bradstock’s reputation. While there is no evidence that attorney Bradstock was anything but a competent attorney, his reputation alone could not ensure that he did not misadvise Williams. This is not a case in which Williams’ allegation about counsel’s misrepresentation was so outrageous that the allegation in itself was unbelievable.

Furthermore, the court’s conclusion that attorney Aiken would have discussed Williams’ potential sentence with him does not refute Williams’ claim. Williams himself admitted that attorney Aiken went over his scoresheet and informed him of the minimum and maximum sentences. However, Williams’ claim was not that attorney Aiken misadvised him, but that attorney Bradstock misadvised him after he took over for attorney Aiken. We note that the State did not produce the plea colloquy to establish that the trial court informed Williams of the maximum sentence when he entered his plea.

Because the trial court did not articulate any reason for finding Williams’ testimony not credible that was supported by the evidence, Williams’ testimony was sufficient to establish that attorney Bradstock rendered ineffective assistance of counsel. The burden then shifted to the State to present evidence to contradict Williams’ claim, but neither attorney Bradstock nor attorney Aiken refuted Williams’ testimony. Accordingly, the postconviction court erred in denying relief on this ground.

Reversed.

DAVIS, J., Concurs.

FULMER, C.J., Concurs in result only.


text:
    CITY OF TAMPA, a Florida Municipal Corporation, Petitioner, v. CITY NATIONAL BANK OF FLORIDA, a National Banking Corporation, Trustee, and Citivest Construction Corporation, a Florida for Profit Corporation, Respondents.
    No. 2D06-1383.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.
    Rehearing Denied Aug. 30, 2007.

      David L. Smith, City Attorney, and Jerry M. Gerwitz, Chief Assistant Attorney, City of Tampa, Tampa, for Petitioner.
    Scott A. McLaren and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Respondents City National Bank of Florida, a National Banking Corporation, Trustee, and Citivest Construction Corporation, a Florida for Profit Corporation.
    Robert L. Rocke, Jonathan B. Sbar and Jodi L. Corrigan of Rocke, McLean & Sbar, P.A., Tampa for Amicus Curiae National Trust for Historic Preservation; Florida Trust for Historic Preservation, Inc.; Tampa Preservation, Inc.; Historic Hyde Park Neighborhood Association, Inc.; East Ybor Historic and Civic Association, Inc.; Old Seminole Heights Neighborhood Association, Inc.; and Southeast Seminole Heights Civic Association, Inc.
    James R. DeFurio of James R. DeFurio, P.A., Tampa for Amicus Curiae Bayshore Royal Condominium & Company, Inc.
    Valerie A. Fernandez and Steven G. Gieseler of Pacific Legal Foundation, Coral Gables, for Amicus Curiae Pacific Legal Foundation.
   PER CURIAM.

The City of Tampa has petitioned for certiorari relief from an order of the circuit court that effectively reverses the City’s denial of a certificate of appropriateness (COA) for the respondents, City National Bank of Florida and Citivest Construction Corporation (hereinafter, Ci-tivest), to build a multistory residential condominium tower on Bayshore Boulevard in Tampa. Bayshore Boulevard overlooks Tampa’s Hillsborough Bay. Every day, hundreds of people enjoy its long, continuous sidewalk for walking, jogging, rollerblading, and bicycling. The homes on the inland side of the boulevard present a mix of stately older houses, low-rise apartments and condominiums, opulent new mansions, and high-rise condominiums. One section of Bayshore Boulevard, approximately three miles long, forms an outer edge of the Hyde Park Historic District.

The lots on which Citivest proposes to build are zoned to permit a high-rise multifamily structure, but they are located at the southern end of the Hyde Park Historic District, which consists predominantly of one-and two-story single-family homes and a few small low-rise apartment complexes. When Citivest appeared before the Architectural Review Commission (ARC) and then the City Council, the discussion focused almost entirely on the height of the proposed structure — a building twenty-four stories high, which would be located immediately adjacent to an eleven-story condominium built in the 1920s and a two-story apartment complex of similar vintage. Located across a side street from Citivest’s corner lot is one of the oldest homes on Bayshore Boulevard — a two-story single-family house.

This case raises complex questions of statutory construction and asks whether the underlying zoning laws and the authority of the ARC over Citivest’s buildable lots in the Hyde Park Historic District can be reconciled. In its review of the City’s action, the circuit court concluded that the City departed from the essential requirements of law when it applied the Hyde Park ARC guidelines to conflict with and alter the building envelope that was contemplated by the applicable zoning ordinance and at least preliminarily approved by the zoning administrator. The COA was denied on the basis that the proposed structure violated the historic district guidelines. This case now comes to us on second-tier certiorari, and we deny the City’s petition.

It is important to define what this case does not involve. This is not a takings case, nor does it involve a challenge to the zoning ordinances, the architectural review criteria, or the design guidelines. In fact, at this juncture, this court is powerless to comment upon or decide the validity of the ordinances involved. Nor is this court empowered to review the record to determine whether the City’s decision was supported by competent, substantial evidence. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003). The district court of appeal is simply the next step up the ladder of review — up from the ARC, to the City Council, and to the circuit court. Although the City Council apparently reviewed the ARC decision de novo, the circuit court’s jurisdiction was through certiorari, and this court now must view this case through the very narrow lens of second-tier certio-rari. “As a case travels up the judicial ladder, review should consistently become narrower, not broader.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

“As a practical matter, the circuit court’s final ruling in most first-tier cases is conclusive, for second-tier review is extraordinarily limited.” Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000). In a second-tier certiora-ri proceeding, the appellate court is limited to considering whether the circuit court afforded the parties due process and applied the correct law. Id. To apply the correct law means to observe the essential requirements of law. Heggs, 658 So.2d at 530. As recently explained by the supreme court in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003):

“[C]learly established law” can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.

Furthermore, evaluation of an alleged departure from the essential requirements of law requires consideration not only of whether a legal error has occurred but also of whether the error is so serious as to constitute a “ ‘violation of [a] clearly established principle of law resulting in a miscarriage of justice.’ ” Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (quoting Heggs, 658 So.2d at 528). Thus, we are mindful that even though our scope of review is narrow, we are nevertheless charged with ascertaining whether the circuit court, by overlooking sources of established law or applying an incorrect analysis to those it considered, committed a serious error of fundamental dimensions. Our review convinces us that the circuit court’s decision does not depart from the essential requirements of law.

The ARC, and subsequently the City, denied Citivest a COA for its proposed condominium project essentially on the basis that the structure was too tall for its historic-district location. As the circuit court found, the City departed from the essential requirements of law when it concluded that the Hyde Park Design Guidelines, as applied by the ARC, effectively “trump” the zoning administrator’s review of the plans for compliance with the zoning dictates. The RM-75 zoning designation of the property determines the maximum height of the building. Section 27-77 (Table 4-2) of the City of Tampa’s Zoning Code specifies that buildings in the RM-75 district are limited in height by a 4:1 ratio of height to setback from the lot line. In the simplest of terms, for each four feet of height, the setback must increase another foot, so the height is ultimately restricted by the size of the lot. The RM-75 zoning district for this site was created in 1987. Prior to that time — and well before the creation of the Hyde Park Historic District — the property carried a high-rise zoning designation under the City’s comprehensive plan. Thus the City has never, through its zoning designations, suggested an intent to exclude a high-rise building from this site. When the current owner of the property purchased it in 1996, he did so on notice of both the zoning designation and the fact of the property’s location within the Hyde Park Historic District. The converse is also true, however: when the Hyde Park Historic District was created, this property was placed into the district carrying its high-rise zoning designation.

Zoning is considered in chapter 27 of the Tampa City Code; subsumed within the zoning chapter are regulations governing the Architectural Review Commission. Zoning section 27-216, for instance, dictates that new construction in the Hyde Park Historic District cannot be undertaken before the ARC issues a COA. Section 27-216(Z) requires the ARC to consider the effect of the construction on not only the building site but also on “the relationship between such work and other buildings, structures or objects on the landmark site or other property in the historic district.” Obviously, in this case, the ARC, the City Council, neighbors, and other interested parties emphasized the size disparity between Citivest’s proposed highrise building and the predominantly one- and two-story houses in the historic district. But — and this is significant — the relationship consideration is qualified in the next sentence of that section: “In evaluating the effect and the relationship, -the ARC shall consider historical and architectural significance, architectural style, design, arrangement, texture, materials and color.” Notably lacking is any mention of height or mass of the proposed structure relative to others in the neighborhood.

However, section 27-216(m) of the Code lists a number of additional considerations for new construction, and these were the focus of the ARC and City Council hearings.

When the applicant wishes to undertake new construction within a historic district or on a landmark site, the ARC shall consider the compatibility of the new construction with the existing character of the district or the landmark, but the ARC shall not dictate the architectural style of the new construction. Compatible design shall mean architectural design and construction that will fit harmoniously into the district or the landmark site. New construction shall be compatible in scale, materials and quality of construction with adjacent buildings and structures that have been designated.
The ARC shall include the following points in its consideration of an application for new construction:
(1) Scale: height and width;
(2) Setback;
(3) Orientation and site coverage;
(4) Alignment, rhythm and spacing of buildings;
(5) Form and detail: Link between old and new;
(6) Maintaining materials within the district or on the landmark site;
(7) Maintaining quality within the district or on the landmark site;
(8) Facade proportions and window patterns;
(9) Entrances and porch projections;
(10) Roof forms;
(11) Horizontal, vertical or nondirectional emphasis.

(Emphasis added.)

The City argued at all stages in these proceedings that these criteria, particularly “scale: height and width,” sanction the ARC’s rejection of Citivest’s proposed construction on the basis of height. In coming to that conclusion, both the City and the ARC rejected the theory that the term “scale: height and width” referred to the height-width ratio of the facades of a new building as compared with neighboring buildings within the historic district, which is essentially an aesthetic consideration. Instead, the ARC’s and the City’s focus converged on height alone, not the design aspects of scale.

Citivest, on the other hand, consistently contended that section 27-77 governs the parameters of its project and circumscribes the ARC’s power to reject the building as too tall. Section 27-77(a)(2)(g) provides:

Schedule of statements of purpose and intent The following array presents for the several districts the statements of purpose and intent applicable to each district.
g. RM-75 residential multiple-family. This district provides primarily for high density multiple-family residential development. Such high density residential structures shall be located in close proximity to regional shopping, employment and public transportation opportunities.

Section 27-77(c) additionally provides:

Schedule of area, height, bulk and placement regulations. Except as specifically provided in other sections of this chapter, regulations governing the minimum lot area and width, required front, side and rear yards, floor area ratio, height of structures, area of signs and related matters shall be as shown in the schedule of area, height, bulk and placement regulations.

(Emphasis added.) Thus section 27-77(c), particularly the accompanying Table 4-2 mentioned above, governs the permissible height of structures. In fact, the building height “shall be as shown in the schedule,” unless conflicting regulations “specifically provide” otherwise. The design guidelines listed in section 27-216(m) are, on their face, not specific. That is because they are part of the larger context of aesthetic considerations appropriate for the historic district. Although they come within the City’s zoning code, they are not specific zoning regulations.

Even if the design guidelines as set out in section 27-216(m) were specific regulations, they were never intended to conflict with or supersede the primary zoning designations. This is apparent from their original statutory enactment. The Hyde Park Historic District was created with reference to section'266.407, Florida Statutes (1995), later renumbered section 266.0057, titled “Powers of governing bodies in and of Hillsborough County; architectural review board.” Section 27-213 of the City Code, titled “Architectural Review Commission — Powers and duties,” refers to section 266.0057 and states:

The architectural review commission shall have the following responsibilities as authorized and empowered by the provisions of this chapter and by F.S. Ch. 266.0057, F.S.:
(1) Approval or disapproval of plans related to ... new construction involving ... historic districts....
(2) Specific authorities and powers. In addition to the powers and duties stated elsewhere, the ARC shall take action necessary and appropriate to accomplish the purposes of this division. These actions include:
a. Approval or disapproval on applications for certificates of appropriateness ....

The language of the enabling statute is a telling limitation on the powers of the ARC. Section 266.0057(2)(c)(l) authorizes the ARC to

[a]pprove or disapprove plans for buildings to be erected ... within the historical district.... [T]he control of the erection ... of new ... buildings or structures ... is hereby designated to be a public purpose; but no rule may be adopted which is in conflict with any zoning ordinance of the governing bodies applicable to such area.

(Emphasis added.) Although the statute was sunsetted in 1997 when it became superfluous after the City had adopted its historic preservation ordinance, the continued inclusion of specific reference to the statute in the Code establishes a control and limitation upon the powers of the ARC.

Furthermore, section 27-216(o) of the Code states as follows:

The zoning administrator shall be the sole administrator of this Code as it pertains to landmark and historic district boundaries, the requirements for permitted or permissible special uses, the schedule of area, height, bulk and placement regulations, the parking requirements and any other item not dealing specifically with the procedure and review criteria for obtaining a certificate of appropriateness.

(Emphasis added.) The grammatical structure of that section reinforces its plain meaning that the zoning administrator, not the ARC, has the final word on height and “any other item not dealing specifically with the procedure and review criteria for obtaining” a COA. Thus, height — an item with which the COA review criteria are not concerned — is governed by the zoning administrator, not the ARC.

Our analysis of the applicable statutes, code sections, and case law convinces us that the circuit court correctly applied the law in this matter and did not overlook any other source that would assist in its réview. This court has diligently combed every appendix, case, ordinance, and statute submitted on behalf of any party — and has searched many other resources — in an attempt to ascertain whether the ARC possesses the authority or power to require a reduction in height of the proposed building so that it will be “compatible” with the historic character of the neighborhood and the surrounding structures. Repeatedly, we have scoured the record and applicable law for the answer to this question: Can the ARC, based on the design criterion of “scale: height and width” alone, limit a proposed structure to any particular height? No such power granted by the appropriate sovereign has been identified.

The City could have solved this issue by rezoning this property or, alternatively, carving this land out of the historic district, or even defining an overlay district encompassing this property and others that would include height limitations. Section 27-458(a) of the City Code declares that “the purpose of an overlay district is to allow for the application of specific regulations to a distinct geographic area.” And section 27-458(b) further declares: “The overlay district concept is discussed in the Comprehensive Plan as a method of preserving the character of an area. It will encourage development to occur that is compatible with the existing scale and pattern of surrounding properties.” Section 27-523 defines a historic residential overlay district as follows:

A special overlay district which recognizes and protects historic patterns of development including but not limited to the following physical elements: setback, height, site orientations and massing of buildings and accessory structures, placement of sidewalks, parking areas and infrastructure. Its purpose is to conserve existing neighborhood patterns of development by retaining historic structures that contribute to that pattern, while assuring that new construction will be consistent with it.

Thus, the City Code explicitly contemplates the creation of historic overlay districts in which building height can be limited in spite of underlying zoning. An example is the Seminole Heights Residential Historic Overlay District, which is separate and distinct from the historic district. The specific intent of the overlay district “is to ensure that infill residential development and additions thereto are compatible in building and structural orientation, height, lot dimensional requirements and other site spatial relationships to the precedent within the established neighborhood.” § 27-464(b), Tampa City Code (emphasis added). Such extensive power was not granted to the Hyde Park Architectural Review Commission.

This is a true apples and oranges case. The historic guidelines do not envisage application to a lot zoned RM-75 for height and density as a vehicle to reduce the height of the building. They are design guidelines, not specific zoning regulations. Although this case does not present constitutional issues, this language from the Third District Court of Appeal is helpful: “Zoning as applied to the height of buildings is an exercise of the police power. The height limitation must be specific and must promote the health, welfare, safety, and morals of the public in order to be valid and withstand an attack upon it as an unwarranted exercise of that power.” Town of Bay Harbor Islands v. Burk, 114 So.2d 225, 227 (Fla. 3d DCA 1959). A specific height restriction that could be generally applied to all properties in a historic, district is permissible. See Mandel v. City of Santa Fe, 119 N.M. 685, 894 P.2d 1041 (1995).

Unfortunately, the City has not undertaken legislative action that would avoid this conflict. The circuit court made this observation in its order denying the City’s motion for clarification: “The City of Tampa has created this quagmire of competing and seemingly inconsistent building requirements.” We fully concur with that opinion.

Having found no departure from the essential requirements of law in the circuit court’s order denying the City’s petition for certiorari, we deny this petition.

CASANUEVA and DAVIS, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: TORPY, J.

text:
    George W. PARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3080.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Rehearing Denied July 20, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

TORPY, J.

After this court affirmed without opinion Appellant’s challenge to his violation of probation conviction, Appellant now seeks rehearing on one point — whether the conflict between the trial court’s oral pronouncement and the written order can be addressed on direct review when the error was not first presented to the trial court by a contemporaneous objection or rule 3.800(b) motion. We deny the motion for rehearing but write to address Appellant’s contention that our decision in this case conflicts with two recent panel decisions of this Court.

After hearing on Appellant’s violation of probation charge, the trial court orally ruled that Appellant had violated condition (8) of his probation. However, the written order makes a finding that Appellant violated both conditions (8) and (10). Under these circumstances, had Appellant notified the trial court of the error, the oral pronouncement would control and the written order should have been corrected to conform to the oral ruling. Appellant never raised this issue with the trial court, however.

Thus, in its answer brief, the State asserted that this issue was not preserved for appellate review. Although Appellant acknowledged that he did not direct this error to the attention of the trial judge by a contemporaneous objection or by filing a rule 3.800(b) motion, he contended in his reply brief (without citation to any legal authority) that direct review is available nevertheless. Neither party favored us with a citation to the controlling authority on this point, but our research reveals that this exact issue was settled many years ago in Thomas v. State, 763 So.2d 316 (Fla.2000). Based on Thomas, we are powerless to correct this patent error in the face of the State’s preservation objection.

Insofar as our recent panel decisions are concerned, neither is in tension with our disposition in this case. In each of those cases, as the opinions expressly state, the State conceded error. Whether the confessions of error were made because the error was properly preserved, because the State mistakenly overlooked the issue, or because- the State consciously decided to waive the issue in the interest of judicial economy cannot be determined from the opinions. What can be determined is that preservation was not an impediment in either case.

REHEARING DENIED.

LAWSON and EVANDER, JJ., concur.

      . Appellant also sought rehearing en banc, which has been denied by separate order.

      . Bitzer v. State, 958 So.2d 1029 (Fla. 5th DCA 2007); Knight v. State, 954 So.2d 1266 (Fla. 5th DCA 2007). Knight relied upon our decision in Brown v. State, 786 So.2d 1257 (Fla. 5th DCA 2001), in which the error had been preserved by a rule 3.800(b) motion. Brown, 786 So.2d at 1258 n. 1.

      . In addition to Thomas, there are several other cases on all fours but none were cited to us by either party. See, e.g., Evett v. State, 947 So.2d 662 (Fla. 2d DCA 2007); Ballester v. State, 779 So.2d 624 (Fla. 2d DCA 2001); Gammon v. State, 778 So.2d 390 (Fla. 2d DCA 2001). We assume that this was an oversight and admonish counsel for both parties to be more thorough with their research. It is counsel’s responsibility to advise the court of available precedent on a legal point, especially when controlling precedent exists.


author: KLEIN, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Elizabeth CLARK, Respondent.
    No. 4D07-848.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Rehearing Denied Dec. 5, 2007.

      Thomas C. Mielke, Miami, for petitioner.
    Michael A. Catalano of Michael A. Cata-lano, P.A., Miami, for respondent.
   KLEIN, J.

Clark’s driver’s license was suspended as a result of her refusal to submit to a breath test after a traffic accident which occurred in October, 2005. Clark challenged the suspension on the ground that the officer did not properly read her the statutory implied consent warnings; however, the administrative hearing officer concluded that her license was properly suspended. Clark then sought review in circuit court, which reversed her license suspension, and the state now petitions for certiorari review in this court. We deny the petition.

Section 316.1932(l)(a)l.a., Florida Statutes (2006) provides that a person who accepts the privilege of operating a motor vehicle in this state is deemed to have consented to a breath test to determine alcohol in the blood. The statute requires a law enforcement officer who reasonably believes a driver is under the influence of alcohol to advise the driver that a refusal to submit to a breath test will result in the suspension of the driver’s license. Other statutory provisions such as section 316.1932(l)(c) (medical condition precludes breath test) or section 316.1933(1) (impaired driver caused serious injury or death) authorize blood withdrawal; however, they were not applicable in this case.

Clark challenged her license suspension because the warning given her by the officer erroneously informed her that her driving privileges would be suspended if she refused to submit to a breath, blood or urine test. Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988) (statute does not authorize officer to request blood test except under conditions described in statute providing for blood test). State v. Slaney, 653 So.2d 422 (Fla. 3d DCA 1995) (police were not authorized under the implied consent statutes to advise defendant that, despite fact that no person was killed or injured, he would lose driver’s license if he refused to consent to a blood withdrawal). Citing Chu and Slaney, the circuit court reversed the administrative order suspending Clark’s license, and the state seeks review by certiorari.

The primary argument advanced by the state is that Chu and Slaney were criminal cases in which the issue was whether the test results of blood withdrawal should be suppressed. The state contends that, unlike Chu and Slaney, this case involved an administrative proceeding, and cites cases from other jurisdictions holding that the exclusionary rule does not apply in administrative proceedings. See e.g. Nevers v. State, Dept. of Admin., 123 P.3d 958 (Alaska 2005) (exclusionary rule for unlawful search or seizure does not apply in administrative driver’s license revocation hearing).

The problem with the state’s argument is that in Chu and Slaney, as well as the cases from other jurisdictions, the issue was whether the test results of blood withdrawal were admissible in evidence. Unlike the cases relied on by the state, in this case Clark did not consent to any tests and there was no evidence, such as a test result, to suppress. The exclusionary rule was not involved here.

The state acknowledges, but attempts to minimize the error in the warning given Clark in this case; however, the error may have misled Clark into thinking that she would have to submit to a more invasive test, the withdrawal of blood, than was authorized by the statute. We accordingly conclude that the circuit court did not depart from the essential requirements of law in holding that, where the officer’s warning did not comply with the statute, Clark’s license could not be suspended under the statute. The petition for certiorari is denied.

SHAHOOD, C.J., and TAYLOR, J., concur.


author: ROTHENBERG, Judge.

text:
    Captain PAPADOPOULOS, Appellant, v. CRUISE VENTURES THREE CORP., et al., Appellees.
    No. 3D06-1835.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Luis A. Perez, for appellant.
    Hayden Milliken and William B. Milliken, Tampa, for appellees.
    Before GERSTEN, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Captain Solon M. Papadopoulos (“Papa-dopoulos”), the plaintiff below, appeals a final order issued by the trial court dismissing his negligence action against Cruise Ventures Three Corp., International Shipping Partners, Inc., and DLJ Capital Funding, Inc. (collectively “the defendants”). We affirm.

Papadopoulos, a seaman, claims he was injured when the vessel he was working on encountered a severe storm and strong winds on December 17, 2000, resulting in the ship taking on water and in a U.S. Coast Guard rescue of those on board. The ship ultimately sank.

Papadopoulos claimed that as a result of this experience, he developed post-traumatic stress disorder and leukemia. In answers to interrogatories propounded by the defendants, Papadopoulos stated that prior to the subject accident, he was both medically and physically fit; was not taking any medicine or drugs; and denied being diagnosed and/or receiving any treatment for any of the ailments described in Dr. Karianakis’ report. Dr. Karianakis, a hematologist, was treating Papadopoulos for hairy cell leukemia. Additionally, Papadopoulos testified under oath in his deposition that he had not been treated for leukemia prior to the subject accident.

When Papadopoulos was questioned during his deposition regarding any pre-incident pension/disability litigation, he testified that he had never been involved in any litigation; he had not applied for nor received any disability benefits in Greece, his native country; and that he had not received any pension benefits in Greece.

An investigation performed by the defendants, however, revealed that prior to the subject accident, in December 2000, Papadopoulos had engaged in litigation in Greece regarding work-related injuries he sustained in 1995; he was diagnosed with hairy cell leukemia on November 4, 1995; and he was awarded a pension beginning on January 1, 1996, based upon a medical opinion finding that he was sixty-seven percent disabled. The litigation in Greece continued for years and involved protracted litigation and appeals that were ongoing during the instant litigation.

Based upon the ample record before us, we find that the trial court did not abuse its discretion in dismissing Papadopoulos’ lawsuit. See Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003) (holding that the dismissal of a plaintiffs action for fraud on the court is reviewed under an abuse of discretion standard and the trial court’s findings will not be disturbed upon a clear showing of fraud, pretense, collusion, or similar wrongdoing); Metro. Dade v. Martinsen, 736 So.2d 794, 796 (Fla. 3d DCA 1999) (Sorondo, J., concurring) (stating that “few crimes ... strike more viciously against the integrity of our system of justice than the crime of perjury,” and that based upon Martinsen’s misrepresentations and omissions regarding her medical history during the course of discovery, she had forfeited her right to proceed); Mendez v. Blanco, 665 So.2d 1149, 1150 (Fla. 3d DCA 1996) (affirming trial court’s dismissal of the plaintiffs complaint where the plaintiff committed serious misconduct by repeatedly lying under oath); see also Romero v. Harbin, 876 So.2d 1, 1 (Fla. 3d DCA 2004); Long v. Swofford, 805 So.2d 882, 884 (Fla. 3d DCA 2001); Rosenthal v. Rodriguez, 750 So.2d 703, 704 (Fla. 3d DCA 2000).

We entirely agree with the trial court that Papadopoulos has forfeited his right to seek redress from his claimed injuries based upon his material misrepresentations and omissions that go to the heart of his claims. We, therefore, affirm the trial court’s order dismissing Papadopoulos’ negligence action.

Affirmed.


author: DAVIS, Judge.

text:
    Ronald Joseph POIRIER, Appellant, v. Isaac C. NEWTON, Appellee.
    No. 2D06-4696.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
    Stuart J. Nunez, Key Largo, for Appellant.
    Andrew J. Rodnite, Jr., of Reeser, Rod-nite, Outten & Zdravko, P.A., Palm Harbor, for Appellee.
   DAVIS, Judge.

Ronald Joseph Poirier challenges the trial court’s nonfinal order denying his motion to dissolve Isaac Newton’s notice of lis pendens. Pursuant to Loidl v. I & E Group, Inc., 927 So.2d 1016, 1017 (Fla. 2d DCA), review denied, 939 So.2d 93 (Fla.2006), we treat this appeal as a petition for writ of certiorari and deny the same without comment.

Denied.

NORTHCUTT, C.J., and SALCINES, J., Concur.


author: SALCINES, Judge.

text:
    K.C. CROMWELL, INC., a North Carolina Corporation, as successor to K.C. Cromwell, a Florida corporation f/k/a Spartan Staffing, Inc. d/b/a Workforce, U.S.A., Appellant/Cross-Appellee, v. Michael R. POLLARD, Appellee/Cross-Appellant.
    No. 2D06-1010.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.

      Frank E. Brown of Macfarlane Ferguson & McMullen, Tampa, for Appellant/Cross-Appellee.
    James G. Brown and Allen J. McKenna of Ford & Harrison LLP, Orlando, for Amicus Curiae Academy of Florida Management Attorneys, Inc.
    John G. Crabtree of The Florida Appellate Alliance, PLC, Key Biscayne; Shannon McLin Carlyle of The Florida Appellate Alliance, PLC, The Villages; Gregg I. Shavitz and Perry Tanksley of The Shavitz Labor Pool Law Firm, PLC, Boca Raton; and David J. George and Stuart A. Davidson of Lerach Coughlin Stoia Geller Rud-man & Robbins, LLP, Boca Raton, for Appellee/Cross-Appellant.
   SALCINES, Judge.

K.C. Cromwell, Inc., d/b/a Workforce, U.S.A. (“Workforce”), appeals the final judgment for $160,000 in damages awarded to Michael Pollard based on the circuit court’s determination that it violated section 448.24(l)(b), Florida Statutes (2000-2003). We reverse.

Workforce operates a daily temporary staffing service and is a “labor pool” as defined in section 448.22(1) of the Florida Labor Pool Act. Mr. Pollard was a day laborer who was employed by Workforce from February 12, 2000, until April 23, 2003. While employed by Workforce, Mr. Pollard used a service it provided which transported him from the Bradenton offices to and from designated worksites within Manatee County. Workforce charged Mr. Pollard a fee for the transportation service and was paid by payroll deduction. The fee charged by Workforce ranged from $1 to $1.50 per one-way trip.

Mr. Pollard brought an action alleging that Workforce violated section 448.24(l)(b) which outlines the duties and rights of the labor pool and day laborer with regard to charges for transportation. The version of this statute in effect from 2000 through 2003 provides that a labor pool may not charge a day laborer “[m]ore than a reasonable amount to transport a worker to or from the designated worksite, but in no event shall the amount exceed the prevailing rate for public transportation in the geographic area.”

The trial court held that the Manatee County Area Transit System rate of $1 for each one-way trip was the prevailing rate for public transportation in the Manatee County geographic area. It concluded that in order to comply with section 448.24(l)(b), $1 was the maximum amount Workforce could have deducted from Mr. Pollard’s pay and found that Workforce violated the statute on 160 occasions. In accordance with section 448.25, the trial court awarded Mr. Pollard damages in the amount of $1000 for each violation. On appeal, Workforce asserts that the final judgment should be reversed because the version of section 448.24(l)(b) in effect in 2000 through 2003 is unconstitutionally vague.

On markedly similar facts, the Fourth District Court of Appeal recently addressed the constitutionality of section 448.24(l)(b) in Liner v. Workers Temporary Staffing, Inc., 962 So.2d 344 (Fla. 4th DCA 2007). The Fourth District upheld the circuit court’s determination that the 2003 version of the statute is unconstitutionally vague. We agree, adopt the rationale of the Fourth District as stated in Liner, and declare that the version of section 448.24(l)(b) in effect in 2000 through 2003 is unconstitutionally vague.

Reversed.

WHATLEY and STRINGER, JJ., concur.

      . Because we reverse the trial court’s final judgment, we do not address the issues raised in Mr. Pollard’s cross-appeal.

      . Mr. Pollard also was employed to work at jobsites located in Sarasota, Hillsborough, and Pinellas counties, but he restricted the allegations in his complaint to relate only to his employment in Manatee County.

      .The language of section 448.24(b)(1) remained unchanged from 2000 until it was amended in 2006. See Ch.2006-10, § 1, Laws of Fla. (effective July 1, 2006).