author: MAY, J.

text:
    LIGGETT GROUP, INC., Appellant, v. Beverly DAVIS, Appellee.
    No. 4D05-1635.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      Kelly A. Luther of Clarke, Silverglate, Campbell, Williams & Montgomery, Miami, and Alvin B. Davis, and Denise B. Crockett of Squire, Sanders & Dempsey L.L.P., Miami, for appellant.
    John Venable of Venable & Venable, P.A., Brooksville, and Angel M. Reyes and Daniel F. O’Shea of Reyes & O’Shea, P.A., Miami, for appellee.
   MAY, J.

The defendant appeals a $752,238.75 attorney’s fees award entered after it rejected the plaintiffs’ proposal for settlement. The defendant argues the court erred in preventing it from pursuing discovery concerning: (1) the “good faith” nature of the plaintiffs’ proposal for settlement; and (2) certain time spent by plaintiffs’ counsel in litigating the case. It also argues the court erred in failing to consider “all” relevant criteria in determining the fee award. We agree with the defendant’s argument in part. We reverse and remand the case for proceedings consistent with this opinion.

The plaintiffs filed suit for damages sustained from smoking cigarettes. The complaint alleged claims for fraud, fraudulent inducement, negligent failure to warn, negligent design defect, strict liability failure to warn, strict liability design defect, and for loss of support and consortium for the husband. The day after the plaintiffs retained the law firm, their lawyer wrote to them regarding a proposal for settlement. The letter stated:

Obviously we want to make an offer which we believe we could exceed by at least 25% at trial. However, we also must make an offer that we would be comfortable accepting should the defendant decide to accept our offer. We have agreed to make an Offer of Judgment in the amount of $425,000 to [the defendant]. Of this $425,000, $350,000 would be allocated to [the wife’s] claim and $75,000 to the [husband’s loss of consortium] claim....

On January 10, 2003, 91 days after they filed the complaint, the plaintiffs offered $425,000 “to settle and completely resolve all claims being made by the Plaintiffs ... as to Defendant, only, including but not limited to any potential future claims for wrongful death and/or survival damages by the estate and any lawful survivor.” The defendant rejected the proposal.

Ultimately, the jury found the defendant negligent for continuing to manufacture cigarettes after learning of the health risks they posed, and for defectively designing the cigarettes. The jury found for the defendant on the other four theories of liability and denied the husband’s loss of consortium claim. It awarded Beverly Davis $500,000 in damages for physical pain and suffering and $45,000 in past medical expenses.

The plaintiffs filed a motion for attorney’s fees, pursuant to section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442. In the affidavit filed in support of the motion, they requested $752,238.75 in attorney’s fees.

The defendant filed a memorandum of law in opposition to the motion, arguing the motion was procedurally deficient and the proposal for settlement had not been made in good faith. It also claimed that if fees were awarded, they should be significantly less than the amount requested.

On October 22, 2004, the trial court held its first hearing on the issue of attorney’s fees. The plaintiff claimed entitlement based upon the defendant’s rejection of the proposal for settlement. The defendant argued the proposal had not been made in good faith.

When the court asked the basis for the defendant’s claim of bad faith, the defendant responded that there had been insufficient time for the plaintiff to make a reasonable proposal when the proposal was suggested in a letter written the day after counsel had been retained. The defendant asked for the opportunity to take discovery on the issue, but that request was denied.

The trial court found the same letter actually evidenced good faith. It also noted the proposal had been filed ninety-one days after the complaint had been filed, in compliance with the statute and the rule. Therefore, it rejected the request for discovery because the defendant had not produced evidence of bad faith. The trial court found the plaintiff entitled to attorney’s fees. The trial court then instructed the parties to meet and narrow the issues on the reasonableness of the fees requested.

On November 18, 2004, the defendant sent the following letter to the plaintiffs.

This is to confirm that [the defendant] will not contest the hourly rates or the total number of hours set forth in Exhibit F to your September 15, 2004 affidavit in support of your motion for attorney fees in this action; however, [the defendant] reserves the right to contest, seek reductions and/or object to the requested fee award for all remaining issues, including, without limitation, the following: (a) your entitlement to a fee award; (b) the extent to which the amount sought is in excess of the attorneys’ fees and costs that plaintiffs would pay your firm under their retention agreement; (c) the results obtained; (d) the extent to which the amount sought includes work performed for other cigarette personal injury plaintiffs or any other matters; (e) the extent to which the amount sought includes work obtained by plaintiffs’ counsel from other cigarette personal injury actions or any other matter, and/or lacks novelty or complexity; and (f) that the fees attributable to Mr. Venable should be stricken because there was no valid pre-judgment contingency fee agreement between Mr. Venable and plaintiffs.

The trial court held a second hearing on attorney’s fees on January 14, 2005. The defendant admitted that it had stipulated to the hourly rate and the total number of hours expended, but argued that it still contested specific items outlined in its letter and requested the court to reduce the amount based upon criteria outlined in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Both plaintiffs’ counsel and the court maintained that only the criteria set out in Florida Rule of Civil Procedure 1.442(h)(2) were to be considered, pursuant to Sarkis v. Allstate Insurance Co., 863 So.2d 210 (Fla.2003). The court then made specific findings and awarded the plaintiffs $752,238.75 in attorney’s fees.

The defendant continues to maintain the trial court erred in awarding attorney’s fees because the plaintiffs’ proposal for settlement was not made in good faith. It also argues that the proposal failed to strictly comply with the requirements of the statute and rule. Specifically, the defendant argues the proposal was unclear how and when the lawsuit would actually be dismissed, and failed to state “whether attorneys’ fees are part of the legal claim” as required by the rule.

Rule 1.442 of the Florida Rules of Civil Procedure governs proposals for settlement. “The standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 is de novo, because a proposal for settlement is in the nature of a contract.” Hall v. Lexington Ins. Co., 895 So.2d 1161, 1165 (Fla. 4th DCA 2005). Here, the proposal for settlement stated that it would “settle and completely resolve all claims” being made by the plaintiffs against the defendant. It also provided that the proposal was inclusive of all claims for attorney’s fees and costs. In short, it was sufficient to comply with the rule.

The defendant next suggests the plaintiffs’ proposal for settlement was not made in good faith because the law firm had little or no information upon which to base the proposal, and made similar proposals in other tobacco cases against the defendant. It also suggests the trial court erred in relying only on the timeliness of the proposal in determining the existence of good faith. According to the defendant, the court should have analyzed whether the proposal was case specific, bore a reasoned relationship to the amount of the plaintiffs’ potential damages, and was based on a realistic assessment of the risk of liability. We disagree.

Florida Rule of Civil Procedure 1.442(h)(1) allows a trial court to disallow fees and costs if a proposal is not made in good faith. The offeree bears the burden of proving the offeror’s proposal was not made in good faith. Levine v. Harris, 791 So.2d 1175, 1178 (Fla. 4th DCA 2001).

A mere belief that the figure offered or demanded will not be accepted does not necessarily suggest an absence of good faith, where the offeror fully intends to conclude a settlement if the offer is accepted as made, and the amount of the offer is not so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted.

Id. at 1178. Determining good faith requires the court to decide “whether the offeror had a reasonable foundation upon which to make the offer.” Hall, 895 So.2d at 1166. We review trial court decisions on such issues for an abuse of discretion. Id.

Here, the trial court asked the defendant for evidence of its suggestion that the proposal had not been made in good faith. The defendant relied solely on the timing of the letter to suggest the timely proposal was not made in good faith. That suggestion in and of itself was insufficient proof to warrant further discovery on the issue of good faith.

Further, the defendant fails to appreciate that the actual proposal complied with the rules of civil procedure. The plaintiffs’ law firm already had the plaintiffs’ smoking history, medical treatment, employment history, and diagnosis by the time the actual proposal was made. The proposal bore a figure close to that awarded by the jury, and was made by a firm experienced in this precise type of liability litigation. We find no error in the trial court’s ruling on the issue of good faith. This is not to say that in another case, discovery may be warranted if the defendant produces evidence beyond that produced here that a proposal of settlement was not made in good faith.

The defendant next argues the attorney’s fees award is unreasonable because the trial court failed to consider criteria in addition to those listed in rule 1.442, supporting a reduction in the lodestar amount. Those criteria included: (1) the results obtained (2) the time attributable to work on other similar cases, (2) the lack of novelty and complexity, (3) the vast difference between the fees requested and those to which the plaintiffs agreed in the retention agreement, and (4) the absence of a valid pre-judgment fee agreement between the plaintiffs and a consulting attorney. The defendant maintains that consideration of these additional criteria would have resulted in the reduction of the fees awarded.

The plaintiffs’ response is threefold. First, the defendant stipulated to the reasonableness of the hourly rate and time expended in the letter of November 18, 2004, thereby waiving these additional criteria. Second, Sarkis, restricts the trial court to consideration of only those criteria set forth in rule 1.442. 863 So.2d at 218. And last, none of the additional criteria warranted a reduction in the award of attorney’s fees.

We find the defendant’s argument on this aspect of the attorney’s fees award compelling.

Did the defendant stipulate to the total number of hours as reasonable? In the November 18, 2004 letter, the defendant agreed it would “not contest the hourly rates or the total number of hours set forth.” However, the defendant also reserved the right to contest or seek a reduction of attorney fees due to other specific criteria, in essence the reasonableness of the attorney’s fees.

A review of the transcript from the second hearing reveals much discussion about what the stipulation meant. In the end, defense counsel indicated it would not withdraw its stipulation, but that it did not waive consideration of the criteria identified in the letter. In our view, the letter said what it meant and meant what it said, nothing more, nothing less. The defendant reserved the right to contest certain issues. The question then becomes whether those issues are criteria for the court’s consideration in awarding fees.

Sarkis points out that section 768.79, Florida Statutes (2002), authorizes an award of attorney’s fees as a sanction against a party who rejects a reasonable offer. Id. at 222. As to the reasonableness of the attorney’s fees award,

the court shall consider, along with all other relevant criteria, the following factors:
(A) The then-apparent merit or lack of merit in the claim.
(B) The number and nature of proposals made by the parties.
(C) The closeness of questions of fact and law at issue.
(D) Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal.
(E) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
(F) The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged.

Fla. R. Civ. P. 1.442(h)(2). (emphasis added).

The trial court read Sarkis to limit the criteria to be considered in awarding attorney’s fees under section 768.79 to those contained in rule 1.442. We do not find Sarkis to be as restrictive. First, the rule itself contemplates “other relevant criteria.” And, our supreme court acknowledged that a reasonable hourly rate and reasonable number of hours is to be considered, criteria not listed in rule 1.442. We read Sarkis to hold that a contingency risk multiplier is not applicable to an award of fees under 768.79, and not to eliminate consideration of “other relevant criteria.”

Of the criteria reserved for consideration by the defendant, only the novelty and complexity of the litigation seem to be addressed by rule 1.442(h)(2). This leaves open for consideration whether the time was spent on the present case or on other related cases, whether the results obtained warrant the fee requested, and whether specific time attributable to a lawyer outside the retained law firm should be included.

Because the trial court appears to have limited its consideration to factors A-F of rule 1.442, we reverse and remand the case to the trial court for consideration of the other relevant criteria argued by the defendant. This may require discovery limited to those criteria; it may not. In either event, the trial court must consider the evidence and argument supporting the “other relevant criteria” in determining a reasonable fee.

Affirmed in part and reversed in-part.

STEVENSON and DAMOORGIAN, JJ., concur.

Judge DAMOORGIAN did not participate in oral argument, but has had the opportunity to review the entire proceedings.

      . The defendant also argues the trial court failed to hold the requisite evidentiary hearings on entitlement and reasonableness of the attorney’s fees requested. Because the defendant stipulated to the total number of hours expended and a reasonable hourly rate, all that remains is the trial court’s consideration of the criteria disputed by the defendant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    D.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3480.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 868 So.2d 498 (Fla.2003).

SHAHOOD, C.J., POLEN and MAY, JJ., concur.


text:
    Arturo VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4627.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982).

SHAHOOD, C.J., POLEN and MAY, JJ., concur.


text:
    Joseph BRADLEY, Appellant, v. Sharon M. YATES, Appellee.
    No. 4D08-461.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Joseph Bradley, Jasper, pro se.
    No appearance for appellee.
   PER CURIAM.

We treat the Petition for Writ of Certio-rari as a non-final appeal seeking review of an order denying appellant’s motion to modify a temporary restraining order. See Fla. R.App. P. 9.130(a)(3)(B). We further treat the Petition as the Initial Brief. Because the initial brief presents no preliminary basis for reversal, the order is summarily affirmed. See Fla. R.App. P. 9.315(a).

WARNER, FARMER and MAY, JJ., concur.


author: DAMOORGIAN, J.

text:
    M.A. HAJIANPOUR, M.D., P.A., a Florida professional association; Zoya Physical Therapy and Rehabilitation Center, Inc.; and M.A. Hajianpour, M.D., Appellants, v. KHOSROW MALEKI, P.A., a Florida professional association; and Khosrow Maleki, M.D., individually, Appellees.
    No. 4D07-2533.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      John R. Kelso of Levey, Filler, Rodriguez, Kelso & De Bianchi, LLP, Miami, for appellants.
    Peter H. Levitt of Shutts & Bowen, LLP, Miami, for appellees.
   DAMOORGIAN, J.

Hajianpour appeals from an order declining to grant him prevailing party attorney’s fees. The trial court held that Ha-jianpour was not the prevailing party on the significant issues in litigation. We agree with the trial court and affirm.

By way of background, Maleki entered into a two-year employment agreement with Hajianpour to work as an orthopedic surgeon in his practice on September 1, 1990. The agreement allowed for termination without cause with sixty days notice, and called for prevailing party attorney’s fees. Hajianpour gave notice that the contract would terminate in 1992 and filed an action for declaratory judgment to prevent Maleki from exercising a stock option. Maleki counterclaimed for anticipatory breach of contract, fraud in the inducement, declaratory judgment, and breach of contract. The trial court entered summary judgment for Hajianpour. On appeal, this Court reversed and ordered that summary judgment be entered in favor of Maleki. Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) (Maleki I).

Maleki thereafter sought damages for breach of contract. A jury awarded Ma-leki over four million dollars in damages. This Court reversed on appeal finding that Maleki’s damage calculations were purely speculative and ordered that judgment be granted in favor of Hajianpour. M.A. Hajianpour, M.D., P.A. v. Kkosrow Maleki, P.A., 932 So.2d 459 (Fla. 4th DCA 2006) rev. denied 949 So.2d 198 (Fla.2007) (Maleki II).

Hajianpour then moved for prevailing party attorney’s fees. He asserted that he was the prevailing party because Maleki II found that he had owed no financial obligation to Maleki. The trial court denied the motion, holding that Hajianpour was not the prevailing party because he had lost the significant issues in litigation in Maleki I. Hajianpour appeals this order.

The standard of review for prevailing party attorney’s fees is abuse of discretion. Turovets v. Khromov, 943 So.2d 246 (Fla. 4th DCA 2006). The trial court must enforce contractually provided for attorney’s fees absent compelling circumstances. Hutchinson v. Hutchinson, 687 So.2d 912 (Fla. 4th DCA 1997). For the purpose of attorney’s fees, the prevailing party is the party that won on the significant issues in litigation. Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla.1992).

Maleki prevailed on the significant issues in litigation by defeating Hajianp-our’s complaint and succeeding on his own counterclaims (Maleki I) despite never collecting damages (.Maleki II). See Scutti v. Daniel E. Adache & Assos. Architects, P.A., 515 So.2d 1023, 1024-25 (Fla. 4th DCA 1987); see also Stout Jewelers, Inc. v. Corson, 639 So.2d 82 (Fla. 2d DCA 1994). As such, it appears that the parties battled to a draw. It is not an abuse of discretion to decline to award attorney’s fees when a court determines that neither party prevailed. See Merchants Bonding Co. v. City of Melbourne, 832 So.2d 184, 186 (Fla. 5th DCA 2002). Thus, Hajianp-our is not entitled to attorney’s fees as he was not the prevailing party on the significant issues in litigation. See Green Cos. Inc. v. Kendall Racquetball Inv., Ltd., 658 So.2d 1119 (Fla. 3d DCA 1995). We therefore affirm.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Crystal S. PATTERSON, Appellant, v. CONSUMER DEBT MANAGEMENT AND EDUCATION, INC., Debt Solutions Foundation, Inc., Consumer Financial Marketing, Inc., James Armstrong and Keith Klatman, Appellees.
    No. 4D07-2031.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Alan Rosenthal, Jack R. Reiter and Ten-ikka L. Cunningham of Adorno & Yoss LLP, Miami, for appellant.
    J. David Huskey, Jr. of McGee & Hus-key, P.A., Fort Lauderdale, for appellee James Armstrong.
    Scott D. Owens of Cohen & Owens, P.A., Hollywood, for appellee Keith Klatman.
   WARNER, J.

Crystal Patterson filed a complaint alleging sexual harassment in violation of the Florida Civil Rights Act of 1992 (“FCRA”) against her corporate employers, as well as appellees James Armstrong, the owner and sole officer and director of the corporations, and Keith Klatman, the manager of the corporations. The trial court dismissed the complaint against Armstrong and Klatman, because it concluded that the statute did not provide for individual liability. Patterson appeals, contending that Armstrong and Klatman could be liable as agents of the corporation. We hold that the statute does not extend liability to employees and affirm.

In her amended complaint, Patterson alleged that she was employed by Consumer Debt Management and Education, Inc., Debt Solutions Foundation, Inc., and Consumer Financial Marketing, Inc. Armstrong was the owner, sole officer, and director of the corporations during her employment. Patterson stated that Klat-man was the manager of the corporations during her employment, and he had told her that he had the power to fire her. She alleged that both Armstrong and Klatman sexually harassed her at work. Upon a motion to dismiss, the trial court found that Armstrong and Klatman were not agents of the employer within the meaning of the Civil Rights Act, and the act did not provide for liability for individual employees of a corporation. It dismissed the complaint against them, prompting this appeal.

The Florida Civil Rights Act provides that it is unlawful for an employer:

To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

§ 760.10(1)(a), Fla. Stat. (1992). “Employer” is further defined as “any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year, and any agent of such a person.” § 760.02(7), Fla. Stat. (1992) (emphasis added). As the definition of employer is essentially identical to that in Title VII of the Federal Civil Rights Act, see 42 U.S.C. § 2000e(b), interpretations of Title VII are persuasive in interpreting the Florida Civil Rights Act. Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1104 (Fla.1989) (applying Title VII interpretations to an earlier version of the FCRA); see also Byrd v. BT Foods, Inc., 948 So.2d 921, 925 (Fla. 4th DCA 2007).

The federal circuits are not in accord on the issue of whether individual liability may be imposed on supervisory employees of an employer for Title VII claims. See Shoemaker v. Metro Info. Servs., 910 F.Supp. 259, 264 n. 4 (E.D.Va.1996). The majority of the circuits adhere to the view that an employee/supervisor who does not otherwise meet the definition of “employer” cannot be held individually liable under Title VII as an agent of the employer. See Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.2006); Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991); Wathen v. Gen. Elec. Co., 115 F.3d 400 (6th Cir.1997). The federal district courts in Florida have followed the Eleventh Circuit and found no liability for individual employees/supervisors of corporate employers under Title VII. See Paris v. City of Coral Gables, 951 F.Supp. 1584 (S.D.Fla.1995); Blount v. Sterling Healthcare Group, Inc., 934 F.Supp. 1365 (S.D.Fla.1996). In both Paris and Blount, the court not only held that Title VII does not permit individual liability, but also that the FCRA does not permit it. More recently, the Southern District held that individual employees are not liable under the FCRA in Huck v. Mega Nursing Services, Inc., 989 F.Supp. 1462, 1464 (S.D.Fla.1997).

In Byrd, we affirmed the dismissal of all FCRA claims against an individual citing to Huck 948 So.2d at 928. Thus, we too have taken the position that individual liability does not exist under FCRA.

Although Patterson argues that the statute should be liberally construed in favor of liability of the individual supervisor who actually engaged in the sexual harassment, her position is not supported by the majority of jurisdictions, including our own, which have considered this issue. This interpretation that the statute does not cover individual liability for acts of discrimination is not new. If the legislature disagrees with the majority view, it can always amend the statute. It has not done so, and we will continue to adhere to the view that the FCRA does not impose liability on individual employees/supervisors or individuals who are the sole owners of corporations for acts of discrimination.

Affirmed,.

STONE and GROSS, JJ„ concur.


author: CORTIÑAS, Judge.

text:
    NRD INVESTMENTS, INC., Appellant, v. Dr. Nelvis VELAZQUEZ, Appellee.
    No. 3D07-1243.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Rehearing Denied March 20, 2008.

      Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

Appellant, NRD Investments, Inc. (“NRD”), seeks review of an order granting a temporary injunction (the “Injunction Order”) in favor of appellee, Dr. Nel-vis Velazquez (“Dr.Velazquez”), and a subsequent order denying modification of the injunction or rehearing (the “Denial Order”).

Dr. Velazquez is a tenant in a building presently owned by NRD where she has been leasing office space since approximately two years prior to NRD’s purchase of the building in November, 2006. On or about October 9, 2006, Dr. Velazquez and NRD entered into an agreement (the “Agreement”) whereby NRD would reduce Dr. Velazquez’s leased office space by an area of fifty square feet in exchange for providing Dr. Velazquez with an outside door and a proportionate reduction in rent. The language of the Agreement provides, in pertinent part:

1.NRD shall construct, at zero cost to Dr. Velazquez, the outside entrance door to Unit 110 on the South side of the Building (the “New Door”), as specified in plans to be provided within 30 days of the date of this Agreement. NRD will commence the preparation of the plans and construction of the New Door immediately.
2. Unit 110 shall be reduced by approximately 50 square feet (a 10x5 square foot space located on the northwest corner of the current waiting room), which shall be used to construct the Building’s security area, as specified in plans to be provided within 30 days of the date of this Agreement. NRD shall immediately commence the preparation of plans and construction of replacement walls in the waiting area of Unit 110 (the “Replacement Walls”).
3. Access to Unit 110 in order to perform the work on both the New Door and the Replacement Walls shall be coordinated with Dr. Velazquez, however, it is agreed that access to Unit 110 shall be available and that all work can begin immediately.

(Emphasis added).

On November 9, 2006, thirty-one days after the execution of the Agreement, Dr. Velazquez hand-wrote “[tjoday is Nov. 9, 2006[.] This Agreement is now null and void,” on a copy of the Agreement. She then signed this notation and delivered the annotated Agreement to NRD. More than two months later, on January 18, 2007, NRD advised Dr. Velazquez in writing that construction would commence on January 20, 2007. On January 19, 2007, Dr. Velazquez delivered another copy of the Agreement with her “null and void” notations to NRD’s in-house counsel. NRD’s counsel then went to Dr. Velazquez’s suite and the two engaged in an argument that ultimately resulted in both parties calling the North Miami Police Department (“NMPD”).

The NMPD officer arrived and after being apprised of the situation, “counseled both parties and recommended that [NRD] delay construction in [Dr. Velazquez’s] office until [Dr. Velazquez] agreed or a judge issued an appropriate order.” Demolition of the outside wall of the doctor’s suite commenced on Saturday, January 20, 2007, and by the time Dr. Velazquez arrived at her office, construction was well underway and the interior drywall had been erected to mark off a sixty-square-foot area. In what was apparently a burst of anger and frustration, Dr. Velazquez kicked two drywall panels in the construction causing damage to the drywall. She was subsequently arrested by an off-duty NMPD officer hired by NRD to serve as security during the course of construction. The arresting officer had not been informed of the events that had transpired previously. Dr. Velazquez was charged with criminal mischief and resisting arrest without violence. The latter charge resulted from Dr. Velazquez’s attempts to explain the situation to the officer while protesting her arrest.

Construction in Dr. Velazquez’s office remains incomplete. NRD has not yet installed the New Door, despite the language in the Agreement stating that it would be done “immediately.” The Injunction Order includes, among the findings of fact, that “Dr. Velazquez’s professional practice has been harmed, in that she has been forced to practice in an office with unsightly and dust-filled physical conditions, thus reflecting, to a reasonable person, on her personal judgment and the viability of her practice.”

The circuit court, after carefully reviewing the facts and evidence before it, determined that the most equitable resolution was the issuance of a temporary injunction requiring NRD to restore the condition of Dr. Velazquez’s office to its condition prior to the commencement of construction on January 20, 2007.

NRD argues that Dr. Velazquez did not demonstrate entitlement to injunc-tive relief. “The requirements for establishing the right to preliminary injunctive relief are: (a) the likelihood of irreparable harm, and the unavailability of an adequate remedy at law, (b) the substantial likelihood of success on the merits, (c) that the threatened injury to petitioner outweighs any possible harm to the respondent, and, (d) that the issuance of the injunction will not disserve the public interest.” Sanchez v. Solomon, 508 So.2d 1264, 1265 (Fla. 3d DCA 1987). The circuit court, upon reviewing the evidence before it during multiple hearings, concluded that Dr. Velazquez had properly demonstrated entitlement to a preliminary injunction.

In Florida, the “trial court is afforded broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision.” Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006) (citing Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995)). We find no abuse of discretion by the circuit court.

With respect to the first requirement, Dr. Velazquez has demonstrated that the new construction by NRD and the consequent loss of the sixty-square-foot area has deprived her of the full use of her leasehold. The present condition of her office, it stands to reason, could have a damaging impact upon her practice which would be neither easily quantifiable nor easily corrected. This potential harm, which includes but is not limited to, the loss of goodwill and patronage from her patients, may be irreparable. Moreover, while there may exist a remedy at law, nothing presented demonstrates that any such available legal remedy is adequate. Florida courts have held that when both legal and equitable remedies exist, in order to determine which of the two provides the most adequate remedy, one must consider which will offer the most expeditious relief. McNorton v. Pan Am. Bank, 387 So.2d 393, 399 (Fla. 5th DCA 1980). Given the dispute over the contractual entitlement to perform the construction in Dr. Velazquez’s office, and the present and continuing damage to Dr. Velazquez’s practice, the most sensible and expedient remedy is to restore the office to its pre-construction condition and prevent any further construction until the contractual disputes are resolved.

Dr. Velazquez has likewise demonstrated the likelihood of success on the merits. There are numerous portions of the Agreement which either create an ambiguity or lend themselves to being interpreted in favor of Dr. Velazquez when considering her claim for breach of contract. One major issue is the discrepancy between the amount of space called for in the initial plans prepared by NRD’s engineer and the amount of space specified in the Agreement. While the Agreement specifically noted the surrender of a fifty-square-foot area by Dr. Velazquez, the plans and the construction ultimately performed occupy an area of sixty square feet. Although the Agreement provides that the plans are to be prepared “immediately,” the plans demonstrating the sixty-square-foot space were prepared and in NRD’s possession prior to the drafting of the Agreement. These plans were not provided to Dr. Velazquez at the time the Agreement was signed.

The Agreement contains multiple references to the preparation of plans and construction commencing “immediately,” even though NRD did nothing other than file plans with the City until commencing construction in January. Lastly, there is an issue as to whether or not NRD properly entered into the Agreement with Dr. Velazquez because, when the Agreement was executed, NRD was not the owner of the building and despite constant references to aspects of performance that were to occur or commence “immediately,” there was no timeframe set up within which the building had to be acquired. Consequently, the Agreement is ambiguous as to when NRD’s promises would be fulfilled. There is a general preference in Florida to interpret contractual ambiguities against the drafter. City of Homestead v. Johnson, 760 So.2d 80 (Fla.2000); Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla.1980); Am. Agronomics Corp. v. Ross, 309 So.2d 582 (Fla. 3d DCA 1975). In light of this preference, and because of the numerous ambiguities in the Agreement, Dr. Velazquez has adequately demonstrated a likelihood of success on the merits of this case.

Appellant also argues that the injunction is overbroad and alters the status quo. The circuit court was correct in stating in its order that “[t]he primary purpose of entering a temporary injunction is to presérve the status quo pending the final outcome of a cause.” Yardley v. Albu, 826 So.2d 467, 470-71 (Fla. 5th DCA 2002). “The status quo which will be preserved by a preliminary injunction is the last, actual, peaceable, uncontested condition which preceded the pending controversy.” Id. at 471. quoting Chicago Title Ins. Agency of Lee County, Inc. v. Chicago Title Ins. Co., 560 So.2d 296, 297 (Fla. 2d DCA 1990). Given the dispute over NRD’s entitlement to perform the work under the Agreement and whether or not there has been a breach or termination of the Agreement, the last, uncontested condition of Dr. Velazquez’s office was that which existed prior to the January 20, 2007 construction. The court correctly ordered NRD to return the office to its pre-con-struction condition.

Based upon the facts in the record, it is also apparent that the threatened injury to Dr. Velazquez outweighs any possible harm to NRD. Other than the possible costs of demolishing the new construction returning the office to its former condition, and the costs of reconstruction should NRD be successful at the trial level, there appear to be no other damages to NRD. However, Dr. Velazquez faces the possibility of losing an unascertainable amount of business, clientele, and goodwill due to the unsightly and uncomfortable condition of her office. Taking into account the possibility that NRD may suffer damages if it is ultimately adjudicated that the Agreement is enforceable and NRD may proceed with construction, the circuit court required Dr. Velazquez to post a $15,000 bond, which she has already done. As such, NRD is safeguarded against any foreseeable damages, whereas absent the injunction, the threatened injury to Dr. Velazquez would not be adequately addressed.

Furthermore, the circuit court’s order specifically provided that the court “shall hold a final hearing on the parties’ rights under the [Agreement] as quickly as possible but no later than 30 days of NRD’s notice that it is ready for trial on these issues. The parties shall be entitled to immediate discovery limited to the scope of the hearing.” NRD had the option to notice the matter for trial and proceed on the merits in an expeditious fashion, which did not occur.

The injunction as entered does not dis-serve the public interest. When NRD’s counsel and Dr. Velazquez argued prior to construction, they contacted their local police department for guidance. The officer’s instructions to NRD were clear: do not perform construction in the absence of agreement from Dr. Velazquez or a court order. NRD chose to ignore the officer’s peaceable and facially sound solution and, nevertheless, commenced demolition and construction. As noted in the Injunction Order, “[i]t is in the public interest that private parties who seek the assistance of the police abide by their suggestions when they are facially sensible.” To find otherwise would remove any force or effectiveness from police officers instructing private citizens on peaceful, albeit temporary, solutions to disputes pending further determination from another authority.

There is also a public interest in protecting leaseholds against incursions not authorized by either law or contract. Given the nature of the dispute between the parties, it is important to have the contractual issues resolved before any interference in the lessee’s enjoyment of her property occurs. The nature of Dr. Velazquez’s profession necessitates that her patients have a comfortable environment, the disruption of which poses a very real threat of loss of business. The injunction, as issued in this case, prevents further damage from occurring and disallows unnecessary interference of Dr. Velazquez’s practice and livelihood. Accordingly, it is in the public interest to prevent the unnecessary disruption of a lessee’s business without a clear contractual right.

NRD also argues that allowing the injunction to stand as ordered would allow parties to unilaterally declare a contract to be invalid midway through a project and require the performing party to deconstruct the work performed until all contractual disputes are resolved. NRD misses the point. Here, NRD’s demolition commenced after Dr. Velazquez had nullified the Agreement and twice given NRD notice of the cancellation. Whether or not the Agreement was properly nullified is, under our legal system, left to trial courts and finders of fact. The circuit court in this matter was uniquely situated to hear and weigh the evidence before deciding whether or not an injunction was the most appropriate and judicious remedy. As is evident from the circuit court’s comprehensive, detailed, and well-reasoned order, consideration was given to the myriad of facts in this case and the applicable law before a decision was rendered.

Lastly, NRD argues that there were no evidentiary hearings held in this matter and, therefore, that the injunction was improper. The transcripts of the numerous hearings held by the circuit court demonstrate that on, multiple occasions, the parties presented evidence, including but not limited to, plans, correspondence, and photographs. Moreover, NRD never objected to the manner in which the hearings were being conducted, thus the issue has not been preserved for appeal.

For the foregoing reasons, we affirm the order granting the temporary injunction and the order denying modification of the injunction or rehearing.

      . Johnson & Wales University, the actual owner of the building when the Agreement was executed, was also a signatory to the Agreement.


author: WALLACE, Judge.

text:
    Robert Lee ANTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3733.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.
    Rehearing Denied March 17, 2008.

      A.R. Mander, III, of Greenfelder, Man-der, Murphy, Dwyer & Morris, Dade City, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Robert Anton appeals the postconviction court’s order that denied his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 8.850. In his motion, Mr. Anton raised seven claims of ineffective assistance of counsel. Because Mr. Anton did not file his motion within the two-year period allowed under rule 3.850, we affirm the order denying the motion.

Background

In July 1996, the trial court sentenced Mr. Anton as a habitual offender to ten years in prison for aggravated assault and thirty years in prison for attempted robbery with a firearm, including a three-year mandatory minimum for use of a firearm. This court affirmed Mr. Anton’s judgments and sentences on direct appeal in State v. Anton, 700 So.2d 743, 750 (Fla. 2d DCA 1997) (reversing an order granting a new trial). However, we agreed with Mr. Anton that the trial court had improperly reclassified his conviction for attempted robbery with a firearm to a first-degree felony “[bjecause the carrying of a firearm was an essential element of the charged offense.” Id. at 749 (citing Williams v. State, 590 So.2d 526 (Fla. 2d DCA 1991)). This error did not affect Mr. Anton’s sentence for the attempted robbery offense because the sentence imposed was within the permitted range for a second-degree felony under the habitual offender statute. Id. at 749-50. Thus we specifically directed the trial court “on remand to correct the judgment and sentence to reflect that attempted robbery with a firearm is a second-degree felony.” Id. at 750. This court’s mandate in Mr. Anton’s direct appeal issued on November 17,1997.

For reasons unexplained in our record, the trial court did not act promptly to correct Mr. Anton’s judgment and sentence for attempted robbery with a firearm in accordance with the explicit direction of our mandate. On May 25, 2004, more than six years after our mandate issued, Mr. Anton filed a motion referencing our mandate and requesting the entry of a corrected judgment and sentence reflecting that attempted robbery with a firearm is a second-degree felony. The trial court responded to the motion by entering the requisite amended judgment on June 16, 2004.

The Postconviction Motion and the State’s Response

On December 1, 2004, Mr. Anton filed his motion for postconviction relief. The State responded that the motion was untimely because the two-year period for filing the motion began to run on the date our mandate issued — i.e., on November 17, 1997 — and expired on November 16, 1999. In support of its response, the State characterized this court’s directions on remand as calling for “a correction of a scrivener’s error, changing the notation of one of the crimes from first degree to second degree” while the judgment and sentence “remained final and intact.” Mr. Anton replied that his judgment and sentence did not become final until the reclassification of the attempted robbery offense occurred because “direct review proceedings are not technically finished until the lower court acts on the mandate.”

The Postconviction Court’s Ruling

The postconviction court rejected the State’s argument that Mr. Anton’s motion for postconviction relief was untimely filed. Instead, the postconviction court ruled that the two-year period for filing the motion did not begin to run until the entry of the amended final judgment on June 16, 2004. Concluding that the motion was timely filed, the postconviction court conducted an evidentiary hearing on Mr. Anton’s claims of ineffective assistance of counsel. After the evidentiary hearing, the postconviction court entered an order denying Mr. Anton’s motion on the merits of his claims. This appeal followed.

Discussion

We disagree with the State’s characterization of our earlier direction to the trial court in Mr. Anton’s direct appeal as the correction of a “scrivener’s error.” However, we agree with the State’s contention that Mr. Anton’s judgments and sentences became final upon the issuance of our mandate. With exceptions not material here, Florida Rule of Criminal Procedure 3.850 provides in pertinent part:

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapi-tal case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed....

For purposes of rule 3.850, “the judgment and sentence ‘become final’ ... when any [ ] direct review proceedings have [been] concluded and jurisdiction to entertain a motion [under the rule] returns to the sentencing court.” Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987).

Mr. Anton argues that his judgments and sentences did not become final on the date our mandate issued because “direct review proceedings are not technically finished until the lower court acts on the mandate.” He contends that “[w]hen the appellate court remands to the trial court with directions to correct the judgment, the trial court does not have jurisdiction to entertain a 3.850 motion until the judgment is corrected.” However, Mr. Anton does not cite any direct authority for his position, and we find it to be unpersuasive. Under Mr. Anton’s theory, it is the trial court’s action — i.e., entering the corrected judgment — that transfers jurisdiction to itself. Stated another way, Mr. Anton contends that the trial court had no jurisdiction over his case until it entered the amended judgment. Upon the entry of the amended judgment, jurisdiction returned to the trial court. But this argument is illogical. Under Mr. Anton’s theory, the trial court had no jurisdiction to correct the judgment in the first place.

Under Florida law, it is appellate court action — i.e., the issuance of the mandate — that returns jurisdiction to the trial court. Speaking of cases pending before it, the Supreme Court of Florida explained this process:

If no writ of certiorari is filed with the United States Supreme Court, as in the case at bar, the judgment and sentence become final when direct review proceedings are completed and jurisdiction to entertain the motion for postconviction relief returns to the trial court. Until this Court issues its mandate, the trial court has no jurisdiction to consider a motion to vacate filed pursuant to Rule 3.850. Therefore, in cases where no writ of certiorari is filed with the United States Supreme Court, the two-year period for filing a motion pursuant to rule 3.850 commences when this Court issues mandate.

Huff v. State, 569 So.2d 1247, 1250 (Fla.1990) (citing Scull v. State, 569 So.2d 1251 (Fla.1990)). Mr. Anton would have us regard the trial court’s action in correcting the judgment as an extension of the “direct review proceedings.” This suggestion is ill-founded because the trial court does not participate in the “review” of its own decisions. On the contrary, “[t]he appellate process is completed on the date the mandate is issued.” McCuiston v. State, 507 So.2d 1185, 1186 (Fla. 2d DCA 1987) (citing Thibodeau v. Sarasota Mem’l Hosp., 449 So.2d 297, 298 (Fla. 1st DCA 1984)); see also Beaty v. State, 701 So.2d 856, 857 (Fla.1997) (“[T]he district court of appeal’s opinion became final when no petition for rehearing was filed within fifteen days, and the two-year period for filing a motion for postconviction relief began to run upon the issuance of that court’s mandate.”). For this reason, unrelated collateral proceedings — even those that result in resentencing — do not toll the two-year period that begins when the mandate issues and the direct review proceedings conclude. See Marrero v. State, 967 So.2d 934, 936-37 (Fla. 2d DCA 2007) (holding that jurisdiction to entertain the defendant’s motion for postconviction relief returned to the trial court when the defendant’s direct appeal was concluded and that the time for filing such a motion was not tolled by the defendant’s filing of a successful petition alleging the ineffective assistance of appellate counsel that resulted in resentencing on one of the defendant’s convictions).

We note that Mr. Anton has not claimed that the trial court’s delay in correcting the judgment for attempted robbery misled him into believing that his judgments and sentences were not final or that the delay otherwise unfairly prejudiced him. In addition, Mr. Anton has not asserted that his claims fall within any of the three exceptions to the two-year time limitation established in rule 3.850(b). Our review of the record reveals that the facts on which all of Mr. Anton’s claims are based were either known to him or should have been known to him by the exercise of reasonable diligence during the two-year period that began with the issuance of this court’s mandate.

Conclusion

For these reasons, the postconviction court erred in concluding that Mr. Anton’s motion was timely filed. However, the postconviction court denied the motion on the merits. Because the motion was untimely, we need not consider the merits of Mr. Anton’s claims of ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of the motion.

Affirmed.

STRINGER and SILBERMAN, JJ„ Concur.


author: PER CURIAM. EVANDER, J., MONACO, J.,

text:
    Aleem ALI, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3593.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.
    Rehearing Denied March 7, 2008.

      Charles L. Truncale, of Charles L. Trún-cale, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

PLEUS, J. concurs.

MONACO, J., dissents with opinion.

EVANDER, J., concurs specially with opinion.

EVANDER, J.,

concurring specially.

The record unquestionably establishes that the prosecutor made several improper statements in his closing argument. Because the statements were not objected to, the issue is whether the prosecutor’s improper comments were so prejudicial as to constitute fundamental error. See Servis v. State, 855 So.2d 1190, 1193 (Fla. 5th DCA 2003). I conclude they were not.

Appellant was charged with two counts of sexual battery. He was convicted on the count for which he gave a written confession and acquitted on the count for which there was no confession. The prosecutor’s “worst” comments related primarily to the evidence relevant to the count on which Appellant was acquitted. The prosecutor’s comments regarding the evidence that related solely to the count on which Appellant was convicted, if improper, fell far short of constituting fundamental error. Thus, it appears the jury disregarded the prosecutor’s misconduct in reaching its verdict. If the jury had found Appellant guilty on both counts, I would agree that a reversal would be warranted.

MONACO, J.,

dissenting.

This case presents us with the latest iteration in the ongoing problem of lawyers behaving badly during closing argument. Because in this instance I conclude that the actions of the prosecutor amounted to fundamental error, I would reverse and remand for a new trial.

The appellant was charged with one count of sexual activity with a child involving multiple perpetrators by penile penetration of the victim’s vagina, and one count of the same crime by penile penetration of the victim’s mouth. After a two day trial, he was acquitted by a jury of the first count, but convicted of the second. The only other fact that needs to be divulged to understand my concern is that although the appellant made certain admissions that he alleged were coerced by law enforcement officers, the admissions impacted only the count he was convicted of, and not the other.

By my count there were two occasions when the prosecutor, Mr. Carlos Mendoza, stepped over the permitted line during his opening statement, and at least fourteen times when he did so during his closing argument. He managed in opening statement to insinuate (over objection and motion for mistrial), that the jury should take revenge on the appellant and personally punish him as part of their societal duty. The trial court denied the mistrial, but read a curative instruction requiring the jury to disregard those comments.

During closing argument, Mr. Mendoza used pejorative terms to characterize the appellant (see, e.g., Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994)); gave his personal opinion regarding either the justness of the cause or the guilt of the accused (see, e.g., Sempier v. State, 907 So.2d 1277 (Fla. 5th DCA 2005)); referred at least inferentially to opposing counsel’s legal argument derogatorily (see D’Ambrosio v. State, 736 So.2d 44, 48 (Fla. 5th DCA 1999)); shifted the burden of proof to the appellant (see Sempier, 907 So.2d at 1278); bolstered the credibility of the detective who purportedly coerced the appellant’s admissions (see, e.g., Servis v. State, 855 So.2d 1190, 1194-97 (Fla. 5th DCA 2003)); repeatedly ridiculed the appellant’s theory of defense (see Servis); and for good measure even threw in a couple of “Golden Rule” arguments. And all this in a closing argument consisting of only fifteen pages of the transcript for opening and thirteen pages for closing. If somewhere there is a check list for improper arguments, the prosecutor hit just about all of them.

I recognize that defense counsel did not object to the outrageous comments made by the prosecutor during the closing argument. I do not know why that happened. Maybe the attorney was put into that awkward position of believing that he had a strong case and not wanting to risk a mistrial. I do not wish to speculate. The fact is, there were no objections or motions for mistrial. Thus, unless these comments amount to fundamental error, the judgment and sentence must be affirmed.

The test seems to be that the prosecutor’s comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have reached without the comments having been made. See Spencer v. State, 645 So.2d 377, 383 (Fla.1994), cert. denied, 522 U.S. 884, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). When I read this transcript, I am not convinced that the appellant received a fair and impartial trial. Hence, I do not think that the error was harmless.

I fully appreciate the point of view articulated in the concurring opinion in this case. Judge Evander and I both agree that inappropriate comments were made by the prosecutor in his arguments. Even though Judge Evander does not conclude that the comments amounted to fundamental error, however, I do. I cannot know if the jury disregarded the prosecutor’s offensive comments. Thus, if I have to err in this regard, my judgment tilts in favor of granting a new trial.

While the State agrees that it is the duty of all counsel to refrain from improper argument, it suggests that Mr. Mendoza “was perhaps overly fond of using dramatic language.” I think it was much more than dramatic language. I think it was unfair. I think the cumulative effect of the comments met the standard for fundamental error. I think the appellant should have a new trial.

Accordingly, I respectfully dissent.

      . It is difficult for a trial judge to interject himself or herself into an argument to the jury unless the other party objects and actually signals that the opponent has overstepped the bounds.

      . See, e.g., Nowitzke v. State, 572 So.2d 1346 (Fla.1990).


author: PLEUS, J.

text:
    James R. McDONOUGH, Secretary, etc., Appellant, v. Carl DURRAH, Appellee.
    No. 5D07-1379.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.
    Rehearing Denied March 4, 2008.

      Beverly Brewster, Department of Corrections, Tallahassee, for Appellant.
    Carl Durrah, Lowell, pro se.
   PLEUS, J.

The Department of Corrections (“DOC”) appeals from an amended order denying in part and granting in part the defendant’s petition for writ of habeas corpus. The broad issue concerns whether the trial court erred in concluding that DOC was required to grant prison credit time to the defendant after he violated the suspended portion of his true split sentence and was returned to jail. The trial court ruled that the sentencing order granted such credit, albeit in contravention of Florida law, and that DOC could not, consistent with the principle of separation of powers, decline to calculate such credit in setting the defendant’s release date. We reverse that portion of the amended order which granted in part the defendant’s petition for writ of habeas corpus upon the following holding: (1) on “unsuspending” the suspended portion of the defendant’s true split sentences following his violation of probation, the defendant was not entitled to prison credit toward his remaining incarceration for the prior period of prison incarceration, Moore v. Stephens, 804 So.2d 575 (Fla. 5th DCA 2002), Crews v. State, 779 So.2d 492 (Fla. 2d DCA 2000); (2) the language in the sentencing orders relating to prison credit for “30 months, stipulated,” is ambiguous; and (3) DOC, in setting the defendant’s release date, correctly interpreted the sentencing orders consistent with settled Florida law in concluding that the defendant was not entitled to credit for his previous prison time toward the remainder of the suspended portion of the sentences. See Pressly v. Tadlock, 968 So.2d 1057 (Fla. 2d DCA 2007).

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR ENTRY OF AN ORDER DENYING HABEAS RELIEF.

GRIFFIN and THOMPSON, JJ„ concur.


author: CORTINAS, Judge. SHEPHERD, J.,

text:
    Juan Pablo LARRAIN and Maria Cecilia Sotomayor, Appellants, v. BENGAL MOTOR CO. LTD., American Honda Service Contract Corporation, Bank of America Corporation, and AutoNation, Inc., Appellees.
    No. 3D07-132.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing and Rehearing En Banc Denied March 27, 2008.

      Consumer Legal Services and Aldo Bol-liger and Kenneth W. Lockwood and Kurt D. Mitchell, Tampa, for appellants.
    Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein and Nancy W. Gregoire, Fort Lauderdale; Richard A. Iv-ers, Coral Springs, for appellees.
    Before GREEN, SHEPHERD, and CORTIÑAS, JJ.
   CORTINAS, Judge.

Juan Pablo Larrain and Maria Cecilia Sotomayor (the “Purchasers”) appeal from a non-final order granting Motions to Stay Litigation Pending Arbitration or, in the alternative, Motions to Dismiss Amended Complaint (“Arbitration Motions”) in favor of Bengal Motor Co. Ltd. and AutoNation, Inc. (collectively the “Dealers”).

On November 17, 2005, the Purchasers bought a used 2001 Ford Expedition from Bengal Motor Co. Ltd. d/b/a Maroone Honda (“Bengal”) and received a sixty-day (60) 2000-mile Limited Warranty, which required that, whenever possible, warranty repairs be made by Bengal. Additionally, Juan Pablo Larrain and Bengal signed a stand-alone arbitration agreement (“Arbitration Agreement”) which indicated that arbitration would “be the sole method of resolving any claim, dispute, or controversy .... “ that may arise between the Purchaser and Bengal or any claim resulting from a “relationship with third parties who do not sign this [Arbitration] Agreement that arises out of the [Purchaser(s)/Bengal] Dealings.” During the warranty period, the Purchasers unsuccessfully attempted to have the vehicle repaired. In January 2006, the Purchasers filed a complaint alleging that the vehicle was defective and that Bengal was in violation of express and implied warranties pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (2006) (“MMWA”). In July 2006, the Dealers filed their Arbitration Motions, which were granted by the circuit court. The Purchasers’ appeal followed.

The MMWA was enacted “to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products.... ” 15 U.S.C. § 2302(a) (2006). It was implemented to combat “an increasing number of consumer complaints regarding the inadequacy of warranties on consumer goods.” Davis v. S. Energy Homes, Inc., 305 F.3d 1268, 1272 (11th Cir.2002). Thus, the Federal Trade Commission (“FTC”) enacted the single document rule, which requires that the terms and conditions of the written warranty be “fully and conspicuously dis-closefd] in simple and readily understood language....” 15 U.S.C. § 2302(a) (2006).

The single document rule was promulgated by the FTC through authority delegated to it by Congress in the MMWA. 15 U.S.C. section 2302(a)(8) indicates Congress’ desire that the FTC include in their regulations, “[ijnformation respecting the availability of any informal dispute settlement procedure offered by the warrantor and a recital, where the warranty so provides, that the purchaser may be required to resort to such procedure before pursuing any legal remedies in the courts.” Based on this delegation by Congress, the FTC expressed the single document rule in the following language: a warrantor shall “clearly and conspicuously disclose in a single document in simple and readily understood language: ... (6) Information respecting the availability of any informal dispute settlement mechanism elected by the warrantor in compliance with part 703 of this subchapter.” 16 C.F.R. § 701.3(a)(6) (2005).

The disclosure requirements set forth by the FTC are central to the purposes of the MMWA. By not disclosing material terms, such as an arbitration agreement, within the written warranty we would be promoting confusion and complexity to warranties, which the MMWA was designed to avoid. “The single document rule ... [requires] warrantors to present all information relevant to the warranty in one place, where it might be easily located and assimilated by the consumer.” Cunningham v. Fleetwood Homes of Ga., Inc., 253 F.3d 611, 621 (11th Cir.2001).

After reviewing the MMWA and the FTC regulations, we find that the clear language of the MMWA expresses Congress’ intent that any arbitration agreement must be disclosed within the written warranty and not as a stand-alone document. Accordingly, we reverse the order granting the Dealers’ Arbitration Motions and remand for further proceeding consistent with this opinion.

We express no opinion on whether arbitration agreements are enforceable in conjunction with a MMWA claim. Compare Dams, 305 F.3d at 1272 (indicating that the MMWA permits the enforcement of binding arbitration agreements that are contained within the written warranty), and Walton v. Rose Mobile Homes LLC, 298 F.3d 470, 475-76 (5th Cir.2002) (finding that analysis of the MMWA’s text, legislative history, and purpose indicates that compulsory arbitration of MMWA claims is permissible), with Koons Ford v. Lobach, 398 Md. 38, 919 A.2d 722, 731 (2007) (stating that Congress expressed its intent to preclude the use of binding arbitration agreements in the resolution of MMWA claims).

Reversed and remanded.

GREEN, J., concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent on the strength of Patriot Manufacturing, Inc. v. Jackson, 929 So.2d 997 (Ala.2005), in which the Alabama Supreme Court decocts and persuasively articulates the flaws in Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611 (11th Cir.2001), upon which the majority here exclusively relies. Finding myself unable to improve upon the reasoning and language of the Patriot Manufacturing court, and hopefully with its indulgence, I adopt, as my dissent, the reasoning and language of that decision, which perplexingly was not brought to the attention of this Court until the eve of oral argument.

      . The Purchasers alleged that AutoNation, Inc., as an affiliate of Bengal, was in violation of the Federal Debt Collection Practices Act and Florida's Consumer Collection Statute.

      . When construing a statute, a court should apply the analysis set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
      "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

        Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted).


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. Anthony BUSCIGLIO, Appellee.
    No. 2D06-2415.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2008.
    Rehearing Denied March 17, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue and Chandra Waite Dasrat, Assistant Attorneys General, Tampa, for Appellant.
    Eilam Isaak, Tampa, for Appellee.
   VILLANTI, Judge.

The State appeals a trial court order granting suppression of the arresting officer’s request and Anthony Busciglio’s refusal to take a breath test. The breath test request was made after Busciglio’s lawful arrest for felony driving under the influence (DUI). Because his driving privileges had been previously suspended for a prior refusal to submit to a breath test, Busciglio’s current refusal constituted a first-degree misdemeanor pursuant to section 316.1939, Florida Statutes (2005). We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B), which allows the State to appeal orders granting suppression of confessions or admissions. Because the trial court predicated its ruling on the denial of Busciglio’s right to counsel at a time when he was not legally entitled to counsel, we reverse.

The underlying facts in this appeal are not in dispute. On the evening of July 5, 2005, Officer McKendree stopped a vehicle driven by Busciglio after he cut through a parking lot presumably in order to avoid stopping for a red light and failed to use his turn signal when making a turn onto another road. Busciglio does not contest the validity of the traffic stop in this appeal. During the stop, Officer McKen-dree observed Busciglio having significant trouble handling his wallet, he smelled alcohol, and he heard glass clanging in the vehicle when he first approached it. These observations led Officer McKendree to call for a DUI officer. Officer Portman arrived on the scene.and noticed that Bus-ciglio’s eyes were bloodshot, that he smelled of alcohol, and that he swayed from side to side while standing. Officer Portman conducted field sobriety exercises, and Busciglio showed a number of signs of impairment. At that point, Officer Portman read Busciglio his Miranda rights and arrested him for driving under the influence of alcoholic beverages.

After being transported to the police station, it is uncontested that Officer Port-man read Busciglio the “Florida Implied Consent Law” from a form provided at Central Breath Testing; this warning is required by section 316.1939(1). Thus Busciglio was specifically informed of the penalty provision for a second or subsequent refusal: “It is a first degree misdemeanor to refuse to submit [to testing].” He was further advised, “[Y]our right to have a lawyer present before making any statements or during any questioning has nothing to do with taking this chemical test for the purpose of determining the— content of your breath.” After responding that he understood everything read to him, Busciglio was asked, “Are you willing to take a breath test, yes or no?” Busciglio replied, “No.” It is also undisputed that at no time before or after the implied consent warning did Busciglio invoke any Miranda rights, including his “right” to counsel.

At the hearing on the motion to suppress, it was stipulated that Busciglio’s driver’s license was previously suspended for one year for “refusal to submit to breath/urine/blood test” on February 15, 2001. After considering the testimony presented and argument of counsel, the trial court granted suppression of any evidence that Busciglio was asked to submit to the breath test or that he refused to submit to the breath test on the sole basis that as a matter of law, “[Busciglio] was entitled to counsel prior to the breath test as a result of the criminalization of his refusal.” It is from this order that the State appeals.

Appellate review of a ruling on a motion to suppress is a mixed question of law and fact. See State v. Tanner, 915 So.2d 762, 764 (Fla. 2d DCA 2005). The trial court’s findings of fact are presumed correct and will be reversed only if they are not supported by competent, substantial evidence. Id. However, “the standard of review for the trial court’s application of the law to its factual findings is de novo.” Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003). Our reversal is not based upon any erroneous factual findings made by the trial court — its factual findings are not in dispute — but upon the trial court’s misapplication of controlling legal principles to those facts.

The parties on appeal agree there is no question that prior to the enactment of section 316.1939 on July 1, 2002, a person did not have a right to counsel prior to submitting to a breath test. See, e.g., State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995). However, Busciglio argues that any precedent predating the criminalization of a refusal to take a breath test is no longer good law. The flaw with this assertion is that the enactment of the subject statute does not change the analysis of when the right to counsel under Miranda is applicable. The fact that a second or subsequent refusal can now be a first-degree misdemeanor under certain circumstances, as opposed to merely subjecting the defendant to license suspension, is not the relevant inquiry. Rather, the relevant inquiry is whether there is a right to counsel at all prior to deciding to refuse to take the test.

Initially, we note that Busciglio admirably bases his right-to-counsel argument as arising only from article I, section 9, of the Florida Constitution. He contends the Florida Constitution creates a greater right to counsel than that provided by the United States Constitution. See State v. Hoch, 500 So.2d 597, 599 (Fla. 3d DCA 1986) (holding (1) that administering a breath test is not a critical stage of the proceedings to which a Sixth Amendment right to counsel attaches and (2) that the results of a breath test are physical evidence — not testimonial — and thus, no Fifth Amendment right to counsel attaches).

Article I, section 9, provides that “[n]o person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.” (Emphasis added.) Specifically, Busciglio contends that he had a right to counsel under article I, section 9, prior to refusing to take the breath test because “his refusal exposed him to criminal charges” and, thus, he had a right not to be compelled to incriminate himself. We disagree.

The protections of the self-incrimination clause of article I, section 9, apply only to “custodial interrogations.” See Traylor v. State, 596 So.2d 957, 966 (Fla.1992). “Custody” occurs when “a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.” Id. at 966 n. 16 (citing Berkemer v. McCarty, 468 U.S. 420, 440-42, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). An “interrogation” occurs when “a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response.” Id. at 966 n. 17 (citing Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).

The parties both concede that Busciglio was in “custody” at the time he was asked to submit to the breath test because he had already been arrested for DUI and transported to the police station. However, the parties dispute whether Busciglio was subjected to an “interrogation.” Officer Portman, a state agent, clearly asked an express question of Busciglio when he asked Busciglio whether he was “willing to take a breath test.” Therefore, the only remaining issue is whether a reasonable person would conclude that Officer Port-man’s question was “designed to lead to an incriminating response.” See id.

Busciglio argues that the officer’s question was designed to elicit either a “yes” or “no” response. He further concludes that a “no” response is “clearly incriminatory” because the State intends to use such a response “to show consciousness of guilt” and “as an element of the crime of refusing [to take the breath test] pursuant to [section] 316.1939.” We will now address why this logic fails.

First, “a main focus of Florida confession law has always been on guarding against one thing — coercion.” Traylor, 596 So.2d at 964. Asking a defendant to comply with conduct he has no “right” to refuse does not invoke any degree of coercion associated with impermissible interrogation. Section 316.1932(l)(a)(l)(a) provides: “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test....” Thus a driver is statutorily preordained to have already consented to take a breath test, and coercion cannot be a factor when an officer prompts an ar-restee to perform the test he already agreed to take.

Second, while the officer’s prompt may be in the form of a question, it does not jeopardize Busciglio’s constitutional right to counsel because no interrogation of constitutional proportion is involved. “ ‘[IJnterrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’ ” Timmons v. State, 961 So.2d 378, 380 (Fla. 4th DCA 2007) (quoting Innis, 446 U.S. at 302, 100 S.Ct. 1682). In other words, even if coercion were a factor to consider, the question of whether Busciglio was willing to take a breath test “would not make [him] feel compelled to incriminate himself.” See id. (explaining that questions which are not designed to lead to an incriminating response would not make a person feel compelled to incriminate himself or herself). There is no contention in this case that any officer knew Busciglio was a DUI/refusal recidivist or that any officer knew a “no” response from him would have been an incriminating response.

From the officer’s point of view, giving the implied consent warning is simply part of the performance of his duty and not part of any “interrogation.” From Bus-ciglio’s point of view, which is the more relevant inquiry, he may have felt compelled to choose the lesser of two evils: i.e., he could refuse and potentially violate section 316.1939 or he could take the test and potentially provide incriminating evidence to be used against him in a DUI trial. Of course, if unimpaired, the test result could provide exonerating evidence. However, there is a telling maxim that applies in this instance: no injury can be complained of by a consenting party. As discussed earlier, once Busciglio exercised his privilege to drive, he consented to taking a breath test. See § 316.1932. Therefore, Busciglio had already consented, and Officer Portman’s question was merely an opportunity for Busciglio to withdraw that consent — with possible consequences — as opposed to an effort by Officer Portman designed to lead Busciglio to incriminate himself by refusing.

The choice to comply with the law confronts our citizenry on a daily basis. It is not a complex choice that generally evokes a right to counsel. The fact that criminal penalties apply when one chooses to break the law, such as the relatively recent criminalization of a refusal to take a breath test, should be an expected consequence. Regardless, any guesswork as to possible criminal consequences a refusal might entail was removed when the statutorily required implied consent proviso was read to Busciglio.

Moreover, although the parties do not couch their arguments on appeal in terms of the Fifth Amendment, we find it helpful to briefly address it in order to shed further light on the logic inherent in our holding. The Fifth Amendment applies only when a defendant is compelled to make an incriminating “testimonial” communication. See Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Although the Supreme Court declined to define “testimonial” in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court has since provided some guidance on the subject. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006). Specifically, statements are “testimonial” when “the primary purpose of [an] interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 2274 (emphasis added). Under this logic, Busciglio’s refusal to submit to a breath test could not qualify as a testimonial response because the primary purpose of any solicitation was not to establish or prove a past event. For example, Officer Portman’s question did not pertain to whether Busciglio had a past DUI conviction or whether he had refused to take a breath test in the past. Rather, Officer Portman’s yes/no question concerned merely a current event: i.e., whether Bus-ciglio would take the test at that moment in time. At the point in time when Officer Portman asked the question, the crime concerning Busciglio’s refusal had not yet occurred. Under Davis, future-looking statements not involving a conspiracy are generally not considered testimonial and thus the right to counsel should not attach.

Lastly, because the issue on appeal involves a question of first impression in Florida, we will now examine select cases from other jurisdictions for additional guidance. The Ninth Circuit Court of Appeals addressed a similar issue in Deering v. Brown, 839 F.2d 539 (9th Cir.1988). In Deering, the court concluded that a refusal to submit to a breath test is neither testimonial nor compelled, even when the refusal constitutes a crime. 839 F.2d at 544. The court noted that it has been widely held that a refusal used as evidence of a crime is not “testimonial.” Id. at 542. The court explained that the refusal is not transformed into a testimonial response merely because it is used as a direct element of a crime. Id. Further, a refusal cannot be considered to be “compelled” because the criminalization increases “the compulsion to submit to the breathalyzer test, not the compulsion to refuse, and refusal is the conduct made criminal in the statute.” Id. at 543.

Similarly, the Supreme Court of Vermont held that a refusal to submit to a breath test is not compelled testimony protected by the Fifth Amendment or Miranda, even though criminal penalties apply to the refusal. See State v. Morale, 174 Vt. 213, 811 A.2d 185, 186 (2002). In Morale, the Vermont Legislature had enacted an implied consent law very similar to Florida’s section 316.1932. See id. at 188. Also similar to Florida, the court noted that the legislature chose to penalize refusal to take a breath test as opposed to compelling submission to the test. See id. In holding that a defendant’s refusal does not fall under the protections of Miranda, the court explained that Miranda concerns are not relevant because an officer has no incentive to coerce the defendant into refusing; indeed, the officer hopes the defendant will submit, not refuse. Id. at 189. The court further explained that in asking whether a defendant will submit to the test, the officers are inquiring about a future act, not a past crime. Id.

Finally, the Virginia Court of Appeals also held that refusing to provide a breath sample when a criminal penalty will apply to such a refusal is a nontestimonial act. See Rowley v. Commonwealth, 48 Va.App. 181, 629 S.E.2d 188, 190 (2006). We agree with the courts’ logic detailed in Deering, Morale, and Rowley. Further, we have examined and rejected Busciglio’s countervailing case law from other jurisdictions.

In conclusion, whether analyzed under article I, section 9, of the Florida Constitution or the Fifth Amendment of the United States Constitution, under the circumstances of Officer Portman’s perfunctory performance of his duty which involved, if not required, a postarrest statutory explanation of Busciglio’s obligation to take a breath test, neither the yes/no question nor its answer constituted a testimonial interrogation implicating Busciglio’s right to counsel. Accordingly, it was legal error to suppress these statements, and the order granting their suppression must be reversed.

Reversed and remanded for further proceedings.

DAVIS, J., and BENNETT, ROBERT B., JR., Associate Judge, Concur.

      . Probable cause for the traffic stop was challenged below but is not contested on appeal. In fact, Officer McKendree testified that although he could have issued two traffic infraction tickets to Busciglio for failure to use a turn signal and for avoiding a traffic device by going through a parking lot and could also have impounded Busciglio’s vehicle, he exercised officer "discretion” not to do so.

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

      . To be guilty of violating section 316.1932, the defendant must have been "informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months." § 316.1939(l)(c). The defendant must also have been "informed that a refusal to submit to a lawful test of his or her breath, ... if his or her driving privilege has been previously suspended for a pri- or refusal to submit to a lawful test ... [constitutes] a misdemeanor.” § 316.1939(l)(d).

      . Busciglio also contended below that the Miranda warnings given at the scene were deficient because they did not properly advise him of his right to have counsel present "during” questioning. See Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007) (holding that "any time” is insufficient to warn accused of right to counsel "during” questioning). The trial court agreed and suppressed other statements in relation to the DUI charge, but that ruling is not the subject of this appeal.

      . We note that Busciglio could not have committed a misdemeanor under section 316.1939 by the mere act of refusing the test. The other relevant elements of the crime are (1) previous suspension of his driving privilege for a prior refusal, (2) probable cause by the officer that Busciglio was driving under the influence, (3) lawful arrest for DUI, and (4) a properly administered warning that his driving privilege would be suspended and that he would be guilty of a misdemeanor if his driving privilege had been suspended previously for a prior refusal. See § 316.1939(1).

      . Busciglio also argues that the State does not need the breathalyzer results or evidence of a refusal to take the test in order to prosecute for the crime of driving under the influence because impairment remains an available alternate method of proof. While this may be true, this is a strategy decision — which only the State, and not the defense, controls. Thus we reject without further discussion this contention as being irrelevant to the issue on appeal.