author: LaROSE, Judge. ALTENBERND, Judge,

text:
    Dale D. HORNBLOWER, Appellant, v. Toynetta C. COBB, Appellee.
    No. 2D05-1265.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.
    Rehearing Denied May 9, 2006.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellant.
    David M. Caldevilla and Nicolas Q. Porter of de la Parte & Gilbert, P.A., Tampa; and Royce C. Haddad, Jr., of Haddad & Shuttera, P.A., Clearwater, for Appellee.
   LaROSE, Judge.

Dale D. Hornblower appeals the trial court’s denial of his motion to vacate a clerk’s default and for a new trial. We affirm in part and reverse in part.

This matter stems from a September 20, 2001, automobile accident involving Mr. Hornblower and Toynetta C. Cobb. Southern Group Indemnity (SGI), Mr. Hornblower’s insurer, conceded in the trial court that what happened after the accident was a “succession of errors” — an understatement, to be sure, in light of Mr. Hornblower’s absence from all proceedings below and SGI’s apparent inability to handle a personal injury claim.

Ms. Cobb reported the accident to SGI. Without controversy, SGI promptly paid her property and rental car claims. SGI also sent an accident report form to Mr. Hornblower. He never completed and returned the form. On November 5, 2001, SGI received a letter of representation from Ms. Cobb’s counsel concerning Ms. Cobb’s personal injury claim. SGI wrote to Ms. Cobb’s counsel and confirmed liability coverage for the accident.

Approximately one year later, in November 2002, Ms. Cobb’s counsel sent SGI a $20,000 demand to settle Ms. Cobb’s personal injury claim. On that same day, SGI sent a $2000 settlement offer to Ms. Cobb, an offer she rejected. SGI claims to have sent a follow-up letter to Ms. Cobb’s counsel several months later, to which it received no reply. According to Ms. Cobb’s counsel, however, SGI failed to respond to numerous telephone messages, left as late as July 2003, attempting to discuss settlement. Instead, Ms. Cobb’s counsel received only a form letter stating that SGI would close its file if Ms. Cobb did not respond to SGI’s earlier $2000 settlement offer, an offer Ms. Cobb previously rejected. Up to this point, SGI had not retained counsel.

Apparently rebuffed on the settlement front, Ms. Cobb sued Mr. Hornblower in August 2003. Mr. Hornblower was served with process but, as far as we know, he never contacted Ms. Cobb, her counsel, or SGI. Unaware of the litigation and without further efforts to contact Ms. Cobb’s counsel, SGI closed its file in September 2003.

Ms. Cobb moved for and secured a clerk’s default in mid-September 2003. Mr. Hornblower was served with the motion and the default. Ms. Cobb’s counsel sent copies to SGI. Neither Mr. Hornblower nor SGI contacted Ms. Cobb or her counsel. According to SGI, in early October 2003, its adjuster faxed the default papers to its counsel. Apparently, this is the first time that SGI attempted to retain counsel. Unfortunately, SGI did not confirm receipt of the materials; its counsel never received them. In approximately November 2003, SGI assigned Ms. Cobb’s claim to a litigation adjuster. Within a matter of days, the adjuster was injured in a motorcycle accident and did not return to work until late January 2004. For reasons unknown, SGI left the file unattended.

Having heard nothing further from SGI or Mr. Hornblower and with a clerk’s default in hand, Ms. Cobb turned her attention to the remaining issue in the trial court, damages. In December 2003, she moved to withdraw her jury trial demand. She served her motion on Mr. Hornblower. He did not object to the motion, attend the hearing, or, as far as we can determine, advise SGI. In mid-January 2004, the trial court granted Ms. Cobb’s motion and sent a copy of its order to Mr. Hornblower. Nothing indicates that Mr. Hornblower forwarded the order to SGI. Oblivious to developments in Ms. Cobb’s lawsuit, SGI reassigned the claim to a new adjuster in early February 2004. SGI offers no explanation for the approximately three-month delay in reassigning the claim.

In the later part of March 2004, Ms. Cobb filed a motion for nonjury trial. She served a copy on Mr. Hornblower. As a courtesy, her counsel sent a copy to SGI, together with a $10,000 settlement demand. SGI’s adjuster took no action other than to stuff the motion and the settlement proposal in the file.

In late March 2004, the trial court scheduled a nonjury trial. A copy of the scheduling order was sent to Mr. Hornblower and to SGI. Again, we are aware of no contact between Mr. Hornblower and SGI at this critical stage. There is no question, however, that SGI received the order. Given the course of events outlined above, it is no surprise that neither Mr. Hornblower nor SGI appeared at the damages trial. After a June 16, 2004, trial, the trial court entered a $320,491.96 final judgment for Ms. Cobb and against Mr. Hornblower. The trial court mailed the final judgment to Mr. Hornblower, who, again, as far as we can tell, did not advise SGI.

As fate would dictate, shortly after entry of the final judgment, SGI’s adjuster finally reviewed the file and realized that he had not acted on the lawsuit documents he had received previously. He called SGI’s counsel, who knew nothing about the case. Upon checking the court file, counsel discovered the final judgment. The claims adjuster no longer works for SGI.

In late June 2004, SGI’s counsel finally appeared in the lawsuit for Mr. Hornblower. She moved to vacate the clerk’s default and sought a rehearing or a new trial because Mr. Hornblower had not waived his jury trial right. Counsel argued that the clerk’s default should be vacated because Ms. Cobb’s counsel knew that SGI intended to defend Mr. Hornblower, but failed to advise SGI about the lawsuit. Under such circumstances, counsel argued that Mr. Hornblower need not demonstrate excusable neglect, due diligence, or a meritorious defense. See Fla. R. Civ. P. 1.540(b). Nevertheless, the affidavits filed in support of Mr. Hornblower’s motion acknowledged that, “as a result of a succession of errors on the part of SGI, the carrier was unable to defend its insured Hornblower and Hornblower did not appear for the subsequently set non-jury trial” and that Mr. Hornblower had a meritorious comparative negligence defense. Ms. Cobb opposed the motion and filed an affidavit chronicling her counsel’s unsuccessful attempts to communicate with SGI. The trial court denied the motion.

Clerk’s Default

The trial court denied Mr. Hornblower’s motion to vacate the clerk’s default. We review that order under an abuse of discretion standard. Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 207-08 (Fla. 2d DCA 1990). “Where there exists any reasonable doubt in the matter, and where there has been no trial on the merits, the trial court is to exercise its discretion in the direction of vacating the default.” Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3d DCA 1990) (citing North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852-53 (Fla.1962)); see also Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (acknowledging strong preference for deciding lawsuits on merits).

Yet, Mr. Hornblower is not entitled automatically to relief. He must establish: (a) excusable neglect, (b) a meritorious defense, and (c) the exercise of due diligence upon learning of the default. Coquina Beach Club Condo. Ass’n, Inc. v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002); Fla. R. Civ. P. 1.540(b). Even if we accept that Mr. Hornblower had a meritorious defense and that his SGI-appointed counsel promptly sought to vacate the clerk’s default, the absence of excusable neglect compels us to affirm the trial court’s ruling.

Although we are mindful that a trial on the merits is preferred to a default, we cannot say that the trial court abused its discretion. Mr. Hornblower received process and copies of subsequent court filings. But, he did not participate in any of the trial court proceedings. Particularly noteworthy, Mr. Hornblower came forward with no explanation for his apparent inaction throughout the course of Ms. Cobb’s lawsuit. The record is silent as to any facts that might support a finding of excusable neglect by Mr. Hornblower.

We reach a similar conclusion as to SGI’s efforts on behalf of Mr. Hornblower. SGI knew of the accident that spawned this dispute. Unfortunately, we are left with the distinct impression that SGI mishandled the processing of Ms. Cobb’s personal injury claim. The record reflects that SGI delayed in securing counsel for Mr. Hornblower, disregarded settlement overtures, and ignored critical court filings. The record contains no information suggesting that SGI had any meaningful procedure in place that, if followed, would have avoided the unfortunate events that resulted in a significant judgment against Mr. Hornblower. Cf. Mercury Marine Indus., Inc. v. Dillon, 779 So.2d 356, 357 (Fla. 2d DCA 2000) (holding failure to follow corporate policy can constitute excusable neglect). SGI’s handling of the claim, indeed, was a “succession of errors.” But, we must conclude that Mr. Hornblower has failed to establish excusable neglect by SGI. “[GJross negligence cannot constitute excusable neglect.” Otero v. Gov’t Employees Ins. Co., 606 So.2d 443, 444 (Fla. 2d DCA 1992).

Mr. Hornblower argues, unconvincingly, that Ms. Cobb knew that SGI would defend him and that it should have received notice of the default motion. The record does not support this position. SGI had the motion for default as well as the clerk’s default, albeit after the fact, as early as September 23, 2003. SGI claims to have forwarded those materials to counsel but it provides no explanation of procedures in place to ensure receipt and prompt attention by its counsel. Thereafter, the default papers and other lawsuit-related documents remained unattended in SGI’s file until after entry of the final judgment. Until entry of the final judgment, Ms. Cobb had no notice that Mr. Hornblower was represented by counsel or that SGI or anyone else intended to defend him. To the contrary, SGI told Ms. Cobb that it was closing its file.

The cases Mr. Hornblower cites to support his position that he need not demonstrate excusable neglect are inapposite. See, e.g., Nat’l Union Fire Ins. Co. v. McWilliams, 799 So.2d 378, 379 (Fla. 4th DCA 2001) (plaintiff received notice of representation from defendant’s counsel); Serrano v. Ayala, 728 So.2d 1231 (Fla. 3d DCA 1999) (plaintiff knew that defendant intended to defend lawsuit and default not due to defendant’s gross negligence); Levante v. Corallo, 688 So.2d 427, 428 (Fla. 3d DCA 1997) (parties actively engaged in settlement negotiations and defendant led to believe responsive pleadings unnecessary); Nico Leasing, Inc. v. Viacao Barao De Maua Ltda., 668 So.2d 335, 336 (Fla. 3d DCA 1996) (plaintiff actually aware that defendant represented by counsel); Ole, Inc. v. Yariv, 566 So.2d 812, 814 (Fla. 3d DCA 1990) (plaintiff gave carrier extension of time to procure counsel for defendant); Flaxman v. Metro. Life Ins. Co., 340 So.2d 515, 516 (Fla. 3d DCA 1976) (plaintiffs attorney actively in contact with defendant after filing suit, but did not disclose filing). After SGI paid Ms. Cobb’s property and car rental claims, there was no meaningful contact between SGI and Ms. Cobb related to her personal injury claim, despite her counsel’s efforts to resolve that claim. Because the trial court did not abuse its discretion, we affirm its order to the extent it refused to vacate the clerk’s default on liability.

New Trial

Mr. Hornblower argues that the trial court erred in having a nonjury damages trial without Mr. Hornblower’s consent. The trial court concluded that Mr. Hornblower waived any objection by failing to respond to Ms. Cobb’s motion to withdraw her jury trial demand.

The trial court’s order denying Mr. Hornblower’s motion for rehearing or new trial also is reviewed under the abuse of discretion standard. Seaboard Sys. R.R., Inc. v. Peeples, 475 So.2d 916, 917 (Fla. 2d DCA 1985). Typically, waiver is a factual matter for the trial court to decide. Bd. of County Comm’rs of Jackson County v. Int'l Union of Oper. Eng’rs, Local 653, 620 So.2d 1062, 1065 (Fla. 1st DCA 1993). Whether a jury trial can be waived by mere inaction, however, is a legal issue subject to de novo review. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005).

“The right of trial by jury shall be secure to all and remain inviolate.” Art. I, § 22, Fla. Const. Yet, it seems incongruous that Mr. Hornblower could ignore the trial court proceedings and, when faced with an adverse result, get a second bite of the apple. We also recognize the added time and expense associated with conducting a jury trial, a seemingly needless burden when one has defaulted on liability and apparently disregarded all opportunities to become engaged in the ongoing litigation. But, in light of the constitutional sanctity afforded to trial by jury, we must acknowledge that “[a] demand for trial by jury may not be withdrawn without the consent of the parties.” Fla. R. Civ. P. 1.430(d). The rule applies even where, as here, the defendant has defaulted on the liability issue. See Holiday Gulf Builders, Inc. v. Tahitian Gardens Condo., Inc., 443 So.2d 143, 145 (Fla. 2d DCA 1983).

The purpose of [rule 1.430(d) ] is to safeguard the existence of the right of jury trial to non-demanding par-ties where a demand has been made by one of the parties. Without the provision one of the parties might demand a jury and then after the time for making the demand had gone by, withdraw his demand, and leave the non-demanding parties without the right to trial by jury.

Fla. R. Civ. P. 1.430 cmt. (1967).

Mr. Hornblower did not consent expressly to a nonjury damages trial. Waiver of the jury trial right must be manifested by affirmative action, such as “a specific waiver in writing or by announcement in open court.” Barth v. Fla. State Constructors Serv., Inc., 327 So.2d 13, 15 (Fla.1976); Baron Auctioneer, Inc. v. Ball, 674 So.2d 212, 214 (Fla. 4th DCA 1996). Active participation in a nonjury trial, without objection, can also constitute a waiver. Shapray v. Hoffman, 859 So.2d 542, 543 (Fla. 4th DCA 2003); Del-Rena, Inc. v. KFM, Inc., 789 So.2d 397, 399 (Fla. 4th DCA 2001); Martin v. Ullman, 555 So.2d 1232 (Fla. 3d DCA 1989). Silence or inaction, alone, is insufficient. Baron Auctioneer, 674 So.2d at 214; Loiselle v. Gladfelter, 160 So.2d 740, 742 (Fla. 3d DCA 1964).

Mr. Hornblower’s apparent disregard of the trial court proceedings troubles us. He was served with all relevant court filings. For reasons not disclosed in the record, he did nothing. We are confident that had the trial court entered a final judgment more in line with Ms. Cobb’s earlier settlement demands, Mr. Hornblower and SGI, would “have gone on [their] way with nary a care in the world.” See Martin, 555 So.2d at 1233. But, this apparent acquiescence cannot satisfy rule 1.430(d). See Loiselle, 160 So.2d at 742 (“[W]aiver by implication ... must be more than a mere failure to appear and contest the issues of the case.”). Accordingly, the trial court erred in ruling that Mr. Hornblower waived his right to a jury trial. We reverse and remand for a new trial solely on the issue of damages.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in the affirmance of the trial court’s decision to deny the motion to vacate the clerk’s default. With much greater reluctance, I also concur in the reversal of the judgment based on the trial court’s decision to try the case without a jury-

I write to emphasize that I do not believe that Mr. Hornblower has a constitutional right to a new trial in this situation. After the entry of a default, he was provided with copies of the motion for nonjury trial, the order granting that motion, and the notice scheduling the case for nonjury trial. There is no deprivation of due process in this case, and I conclude that it would be reasonable to declare that he “waived” his right to rehearing concerning the trial court’s decision to conduct a non-jury trial by failing to object or attend. Cf. Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assurance Co., 875 S.W.2d 385, 388 (Tex.App.1993) (holding that defendant who failed to object to non-jury trial waived the right to complain on appeal that he/she was denied right to a jury trial).

Florida Rule of Civil Procedure 1.430(d) begins with the heading, “Waiver,” but, as the court’s opinion explains, it requires the “consent of the parties” to withdraw a demand for trial by jury. Mr. Hornblower may have waived rights by inaction in this case, but “consent” in this context appears to require some affirmative action that he did not take.

I suspect that many cases involving such defaults are ultimately tried without a jury. I would encourage the Civil Procedure Rules Committee to consider whether the language of this rule should be amended.

      . In seeking to vacate the default, SGI submitted affidavits from its counsel and two adjusters. No affidavit or other testimony was presented by Mr. Hornblower.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Larry Wayne BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3173.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Larry Wayne Bryant appeals from his conviction for battery on a person sixty-five years of age or older. He alleges that the trial court erred by failing to instruct the jury on the lesser-included offense of battery. We agree and reverse Mr. Bryant’s conviction and remand for a new trial.

The facts of this case are not in dispute. On May 29, 2004, Mr. Bryant was involved in a series of altercations with a sixty-five-year-old woman while both parties were guests at a beach motel in Pinellas County. During the jury trial charge conference, defense counsel requested an instruction on the lesser-included offense of simple battery, but the trial court denied that request. Defense counsel posed no objection to the court’s denial. Before the jury retired to deliberate, the court inquired whether either the State or the defense objected to the instructions as given, and defense counsel stated that he “re-urged” all the objections he had previously made. The jury found Mr. Bryant guilty of the charge of battery on a person sixty-five years of age or older, and Mr. Bryant was sentenced to 27.3 months’ imprisonment. The issue on appeal is whether the trial court’s failure to instruct the jury on the lesser-included offense of simple battery constitutes reversible error.

Battery is a category one lesser-included offense when the offense charged is battery on a person sixty-five years of age or older. Fla. Std. Jury Instr. (Crim.) 8.16 (1997). According to State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), failure to give a requested jury instruction on a necessarily lesser-included offense is per se reversible error. This principle is prefaced on the jury’s right to exercise its “pardon power” and applies regardless of the degree of proof or record evidence supporting conviction for the greater offense. State v. Wimberly, 498 So.2d 929, 932 (Fla.1986). Therefore, regardless of the fact that the age of the victim was not in dispute in this case, the trial court erred by failing to instruct the jury on simple battery.

The State argues that even if the trial court did err, such error was harmless because the jury had the opportunity to exercise its pardon power by acquitting Mr. Bryant. However, this court has specifically held that failure to instruct on a category one lesser-included offense is not subject to harmless error analysis. Boland v. State, 893 So.2d 683, 686 (Fla. 2d DCA 2005) (citing Wimberly, 498 So.2d at 932). This court has also noted that while it would prefer to be able to find such error harmless, Wimberly controls and therefore failure to instruct on a lesser-included offense mandates a reversal of the conviction and remand for a new trial. Wyche v. State, 573 So.2d 953, 955 (Fla. 2d DCA 1991), quashed on other grounds, 619 So.2d 231 (Fla.1993).

The State also argues that, even if the trial court did err in instructing the jury, the issue was not properly preserved for appeal because defense counsel failed to object to the instructions as given. While objections with regard to jury instructions are subject to the contemporaneous objection rule, State v. Delva, 575 So.2d 643, 644-45 (Fla.1991), the objectives of this rule are satisfied “when the record shows clearly and unambiguously that a request was made for a specific instruction and that the trial court clearly understood the request and just as clearly denied the request.” State v. Heathcoat, 442 So.2d 955, 956 (Fla.1983). This court, as well as other Florida courts, has repeatedly applied this rule to hold that the issue of failure to instruct on a lesser-included offense was properly preserved once the instruction was requested, regardless of counsel’s failure to object either after the request was denied or after the instructions were given. See, e.g., Flint v. State, 463 So.2d 554, 556 (Fla. 2d DCA 1985). In this case, defense counsel properly preserved the issue for appeal by requesting an instruction on the lesser-included offense of battery despite the fact that counsel arguably did not specifically protest the trial court’s denial of that request.

Therefore, we reverse Mr. Bryant’s conviction for battery on a person sixty-five years of age or older and remand this matter for a new trial.

FULMER, C.J., and WALLACE, J., Concur.


author: VILLANTI, Judge.

text:
    Michelle SNOW, Appellant, v. HARLAN BAKERIES, INC., a foreign corporation, Appellee.
    No. 2D05-2644.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      Troy J. Iannucci of Latour & Associates, P.A., Tarpon Springs, for Appellant.
    Angela C. Flowers of Kubicki Draper, Orlando, for Appellee.
   VILLANTI, Judge.

Michelle Snow appeals the trial court’s order awarding Harlan Bakeries, Inc., $98,800.29 in trial and appellate attorney’s fees and costs entered after Harlan Bakeries successfully defended Snow’s suit claiming that she broke her tooth on a foreign object when she bit into a bagel with cream cheese she purchased at an Einstein Bros. Bagels store. Snow raises multiple arguments on appeal; only one has merit — that the trial court erroneously decided the amount of attorney’s fees to which Harlan Bakeries was entitled without expert testimony.

Florida has a long-standing practice of requiring testimony of expert fee witnesses to establish the reasonableness of attorney’s fees. Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351, 352-53 (Fla.1987) (“[I]t is well settled that the testimony of an expert witness concerning a reasonable attorney’s fee is necessary to support the establishment of the fee.”). “At a minimum, an award for attorney’s fees ‘requires a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services.’ ” Pridgen v. Agoado, 901 So.2d 961, 962 (Fla. 2d DCA 2005) (quoting Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981)). The attorney moving for fees can testify as to the amount of time he expended, but he must present some expert testimony as to what would be a reasonable hourly fee. Fitzgerald v. State, 756 So.2d 110, 112 (Fla. 2d DCA 1999) (citing Yakubik v. Bd. of County Comm’rs of Lee County, 656 So.2d 591, 591-92 (Fla. 2d DCA 1995)).

Here, Harlan Bakeries’ trial and appellate attorneys offered sworn affidavits with attached invoices concerning the amount of time expended and the rate charged. In the affidavits, Harlan Bakeries’ attorneys asserted that their fees were reasonable. They also both testified at the attorney’s fee hearing that they thought their fees were reasonable. However, there was no testimony from an expert witness on the reasonable amount of the fees. Therefore, the trial court erred in establishing the amount of attorney’s fees. See Yakubik, 656 So.2d 591.

Because the trial court determined the amount of attorney’s fees without expert testimony, we reverse and remand. We remand because the record is not completely devoid of evidence — both the trial and appellate attorneys provided sworn affidavits and testified as to their rate and hours. See Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998) (“[W]hen the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.”). We reject Snow’s other arguments concerning the trial court’s award of attorney’s fees without comment.

Reversed and remanded for determination of amount of fees to be awarded to Harlan Bakeries’ trial and appellate attorneys.

NORTHCUTT and LaROSE, JJ., Concur.

      . After the jury entered a verdict in favor of Harlan Bakeries, the trial court granted a new trial. Harlan Bakeries appealed, and this court reversed the order granting a new trial in Harlan Bakeries, Inc. v. Snow, 884 So.2d 336 (Fla. 2d DCA 2004).

      . Although currently mandated by case law, this requirement has been criticized as "much ado about nothing” by the Fourth District in Island Hoppers, Ltd. v. Keith, 820 So.2d 967, 972 (Fla. 4th DCA 2002) ("At the most basic level, we fail to see what, if any, 'guidance' these 'fees experts’ actually provide to the well-versed trial judges of this state, who ultimately have the responsibility to determine, in their relatively unfettered discretion, whether the hours sought are reasonable, and what hourly fee(s) should be applied.”); see also Robert J. Hauser, et al., Is Expert Testimony Really Needed In Attorneys’ Fees Litigation? Island Hoppers' Call for Change and Other Ways to Reduce the Burdens of Fees, 77 Fla. B J. 38 (Jan.2003).

      . Snow's attorney waived the requirement that Harlan Bakeries’ attorneys testify under oath by stating that it did not matter whether the court put Harlan Bakeries' trial attorney under oath because "[hje’s an officer of the court.”

      . Snow's counsel preserved this issue for appeal by repeatedly objecting at the attorney’s fees hearing. He argued that an expert was a requirement and even asked for a continuance, noting that it would allow Harlan Bakeries time to get an expert. Snow's counsel renewed his objection at the end of the attorney's fees hearing, stating, "I want to make sure it is clear on the record that we didn't waive their failure of presenting any expert regarding these fees on either the trial level or appellate level.” Harlan Bakeries' trial counsel responded, "I certainly don’t believe a fee expert is required.” Harlan Bakeries’ appellate counsel suggested that she attempted to "resolve issues surrounding the attorney’s fees request and the question of whether or not we would be proceeding on the affidavits or expert testimony" before the hearing but she "did not get a response back” from Snow's counsel. Thus, Snow's counsel never made any suggestion before the hearing that he would waive the expert requirement and, in fact, strenuously objected at the hearing, preserving the issue for appeal.


author: CANADY, Judge.

text:
    James Edward YORK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2069.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      Joseph Gardner Dato of Terry & Dato, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

James Edward York, Jr., who was convicted of aggravated battery and shooting into a vehicle, argues that a jury instruction regarding justifiable use of force resulted in fundamental error. Because the jury instruction improperly suggested that the jury was required to reject the theory of self-defense on which York relied at trial, we conclude that giving the instruction was fundamental error.

Background

This appeal proceeds pursuant to our decision in York v. State, 891 So.2d 569 (Fla. 2d DCA 2005), in which we granted York a new appeal due to ineffective assistance of appellate counsel in his initial appeal. To place the issue before us in context, we summarize the testimony at York’s trial, as well as the course of the trial proceedings and the prior proceedings in this court.

According to the trial testimony, York and Joseph Yurek went out drinking one evening and then returned to York’s residence. Yurek became upset because York had obtained a phone number from a woman earlier at a bar but York refused to give the number to Yurek. At some point in the early morning, York went into the bathroom of York’s residence. At this point, York’s testimony and Yurek’s testimony diverge widely.

Yurek testified that when York went into the bathroom, Yurek saw the piece of paper containing the disputed phone number and was writing it down when York came out of the bathroom. York became angry and threatened to shoot Yurek, who ran to his vehicle. According to Yurek, he was about to start the vehicle when he was shot by York, once in the right hand and once in the side or back. Yurek testified that he did not have his rifle or any other firearm in the vehicle.

According to York’s testimony, it was Yurek who attacked York when York came out of the bathroom, because Yurek was angry that York would not give him the phone number. York stated that Yurek beat him and then grabbed York’s .22 rifle. A struggle commenced, during which the rifle went off and Yurek was shot in the hand. Yurek then pushed York, and York fell to the ground. Yurek then went to his vehicle, saying he was going to get his own gun. York insisted Yurek had two rifles in the vehicle at the time. York claimed that Yurek fired a shot at him first, after which York returned fire, striking one of the vehicle’s windows. York thus sought to establish that his conduct constituted self-defense.

Following closing arguments, the trial court issued jury instructions on aggravated battery and shooting into a vehicle. The trial court then gave instructions on the justifiable use of deadly force which included the following statement: “However, the use of force likely to cause death or great bodily harm is not justifiable if you find ... [York] was attempting to commit, or committing, or escaping after the commission of aggravated battery.” The record shows that York’s counsel did not object to the instruction but does not show that defense counsel either specifically agreed to or requested the instruction. The jury returned a verdict of guilty of aggravated battery and shooting into a vehicle.

On direct appeal, the judgments and sentences were affirmed without a written opinion. York v. State, 872 So.2d 910 (Fla. 2d DCA 2004) (table decision). York subsequently filed a petition for ineffective assistance of appellate counsel, claiming that counsel was ineffective in failing to argue on direct appeal that the jury instruction on the justifiable use of force constituted fundamental error. In York, 891 So.2d at 571 (footnote omitted), we held that the trial court erred because the jury instruction advised the jury “that the very action that York was attempting to justify as self-defense, shooting the victim, could not be considered self-defense.” We also held “that the failure of appellate counsel to argue that the jury instruction on justifiable use of force constituted fundamental error was ineffective assistance of appellate counsel,” and we accordingly granted York’s petition. Id. We directed that in the new appeal granted to York, counsel file a brief limited to the issue of “whether the justifiable use of force instruction was fundamental error.” Id. We directed a new appeal rather than requiring a new trial because we recognized that determining the fundamental error issue “requires a full review of the record on appeal.” Id.

Accordingly, the issue presented for decision now is whether giving the justifiable use of force instruction constituted fundamental error.

Analysis

In Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004), a case in which the defendant’s claim of self-defense was a disputed issue, we held that the giving of an instruction similar to the instruction at issue here was fundamental error. Citing the rule stated in Reed v. State, 837 So.2d 366 (Fla.2002), that an erroneous instruction defining an element of a crime is fundamental error if the element was disputed at trial, we concluded in Zuniga that “[t]he self-defense instruction can be likened to an element of the offense for its importance to the defendant,” and we therefore held that the error was fundamental “because the erroneous instruction was relevant to the disputed issue at trial.” Id. at 1240. Prior to our decision in Zuniga, the Fourth District held in Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003), that the giving of a similar erroneous instruction constituted fundamental error.

In subsequent cases, we have followed Zuniga in holding that where self-defense was at issue, the giving of a similar erroneous instruction was fundamental error. See Houston v. State, 919 So.2d 489 (Fla. 2d DCA 2005); Brown v. State, 909 So.2d 975 (Fla. 2d DCA 2005); Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005); Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA 2004); Hernandez v. State, 884 So.2d 281 (Fla. 2d DCA 2004); Bates v. State, 883 So.2d 907 (Fla. 2d DCA 2004). Other courts have done likewise. See Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006); Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005); Cleveland v. State, 887 So.2d 362 (Fla. 5th DCA 2004).

Here, as in Zuniga^ the erroneous instruction was relevant to the disputed issue of self-defense at trial. The self-defense claim — which was supported by York’s testimony — was the crux of the case. The central disputed issue in the case was who fired first, York or Yurek. Giving the jury a misleading instruction on such an issue clearly is an error which reaches “ ‘down into the validity of the trial itself.’” State v. Delva, 575 So.2d 643, 644 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). It is also an error squarely within the scope of the principle we stated in Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985), that fundamental error occurs where an erroneous instruction is given and “the effect of that instruction is to negate the defendant’s only defense.”

Conclusion

York’s self-defense claim was the basis for his whole defense at trial. The erroneous justifiable use of force instruction therefore constituted fundamental error. York’s convictions and sentences are reversed, and the case is remanded for a new trial.

Reversed and remanded for new trial.

DAVIS, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The erroneous language in the instruction was based on section 776.041(1), Florida Statutes (2001), which provides, in pertinent part, that the defense of justifiable use of force "is not available to a person who ... [i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” The statute envisions a scenario in which a defendant who has committed or attempted to commit a forcible felony has also — either during the commission of that forcible felony or in its aftermath — engaged in conduct for which he has been charged with a separate offense but which he claims was justified by self-defense. The statutory provision is based on the sensible notion that persons committing or attempting to commit forcible felonies or fleeing the scene of such crimes are not legally entitled to meet force with force. In the instant case, the type of scenario to which the statute applies was not present. Both offenses charged against York involved the same conduct of shooting Yurek in his vehicle. The instruction incorrectly suggested to the jury that a claim of the justifiable use of force was not available as a defense to those charges. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

      . An exception from the doctrine of fundamental error applies in circumstances "where defense counsel affirmatively agreed to or requested” an erroneous instruction. State v. Lucas, 645 So.2d 425, 427 (Fla.1994). Such circumstances are not present in the instant case.


author: SILBERMAN, Judge.

text:
    HEALTH OPTIONS, INC., Appellant, v. Betty A. KABELLER, Appellee.
    No. 2D04-5679.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      Charles C. Lane of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellant.
    Robin Gibson of Gibson, Valenti & Ashley, P.A., Lake Wales, for Appellee.
   SILBERMAN, Judge.

Health Options, Inc., appeals a summary judgment and a final judgment awarding damages in favor of Betty A. Kabeller. Because the trial court erred in its analysis of the provisions of Health Options’ group Health Maintenance Organization (HMO) plan and in resolving an issue of material fact, we reverse and remand for further proceedings.

Ms. Kabeller was covered under an HMO plan for health care services issued by Health Options. In late 2000, she was diagnosed with a “carcinoid tumor in her ileum, metastatic cancer in 5 of 8 lymph nodes, and numerous palpable nodules in her liver.” After her oncologist told her that he did not know of any specific treatment for her cancer, Ms. Kabeller investigated her options and learned of a program at the University of Maryland involving TheraSphere treatment. That treatment introduces “a serum-like substance through a needle into a strategic artery.” The substance “consists of millions of insoluble microscopic glass beads containing radioactive Yttrium90 permanently imbedded within the beads.” The treatment purportedly concentrates radiation locally to a tumor and does not damage healthy parts of the body.

According to Ms. Kabeller, her physicians agreed that she could not be successfully treated by surgery, chemotherapy, or traditional radiation therapy and that TheraSphere treatment was her best option. She sought approval from Health Options to pursue the treatment. Health Options refused, asserting that the treatment was excluded from coverage under the plan because it was experimental, in-vestigational, and not medically necessary. Ms. Kabeller decided to obtain the treatment anyway. Then, after exhausting internal and external administrative remedies with respect to Health Options’ coverage decision, Ms. Kabeller instituted a civil suit against Health Options to recover the cost of the treatment. Health Options denied liability and raised several affirmative defenses, including that the services for which Ms. Kabeller sought reimbursement were excluded under the plan as experimental or investigational.

Ultimately, Ms. Kabeller filed a motion for summary judgment, arguing that although the plan excludes coverage for experimental or investigational services, an exception to that exclusion applies and, accordingly, her TheraSphere treatment is covered under the plan. The plan excludes coverage for

Experimental or Investigational services except as otherwise covered under the Bone Marrow Transplant provision of the Transplant Services subsection, and except for any drug prescribed for the treatment of cancer that has been approved by the FDA for at least one indication, provided the drug is recognized for treatment of the Covered Person’s cancer in a Standard Reference Compendium or recommended for treatment of the Covered Person’s cancer in Medical Literature. Drugs prescribed for the treatment of cancer that have not been approved for any indication are excluded.

(Emphasis added.) The emphasized language above is the exception to the exclusion that is at issue here.

Ms. Kabeller argued that the first requirement of the exception had been satisfied, stating “TheraSphere is approved for commercial use by the United States Food and Drug Administration pursuant to approval granted December 10, 1999 under a Humanitarian Use Device Exemption.” With respect to the second part of the exception, Ms. Kabeller filed an affidavit by a reference librarian that identified three “peer reviewed national professional journals] published in the United States.” In addition, she filed three articles from those journals and, as to one article, contended that it established that “TheraSphere treatment is recognized for treatment of liver cancer in Medical Literature.”

Noting that the earlier internal and administrative reviews of the coverage decision concluded that the exception to the exclusion was inapplicable because Thera-Sphere is a “device” and not a “drug,” Ms. Kabeller argued that the plan does not support such a limitation. She argued that under section 641.31(4), Florida Statutes (2001), “[ejvery health maintenance contract, certificate, or member handbook shall clearly state all of the services to which a subscriber is entitled under the contract and must include a clear and understandable statement of any limitations on the services or kinds of services to be provided”; that the plan does not define the terms “device” and “drug”; and that TheraSphere treatment should be covered regardless of whether it is the administration of a drug or the use of a device.

Further, Ms. Kabeller argued that the rules of construction for such contracts require that they be interpreted in favor of greater indemnity. Citing to DaCosta v. General Guaranty Insurance Co. of Florida, 226 So.2d 104 (Fla.1969), and Medical Center Health Plan v. Brick, 572 So.2d 548 (Fla. 1st DCA 1990), she contended that if the plan is susceptible to more than one interpretation, the interpretation providing the greater coverage would prevail. She asserted that in the absence of definitions for the terms “device” and “drug” in the plan, the terms must be given their “plain and ordinary meaning,” State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So.2d 397, 401 (Fla. 4th DCA 1996), or “read in light of the skill and experience of ordinary people,” Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994). She contended that ordinary people would use the word “device” for the bedside mechanism used to inject the treatment and that they would use the word “drug” for the serum-like substance that carries the microscopic glass beads containing the Yttrium90. Notably, Ms. Kabeller did not present any evidence that TheraSphere treatment is the administration of a drug, and none of the articles that she filed with the trial court describe the treatment as the administration of a drug. Indeed, the articles recognize that the treatment is the administration of radiation therapy, and one article specifically uses the term “device.”

Health Options filed its own motion for summary judgment and a supporting affidavit by Scot N. Ackerman, M.D., a board certified radiation oncologist and the chief of the radiation oncology section at a medical center in Jacksonville. Dr. Ackerman stated that TheraSphere is a device and is considered by the FDA to be a device, not a drug. He noted that the FDA approved TheraSphere treatment “for radiation treatment or as a neoadjuvant to surgery or transplantation in patients with unres-cectable hepatocellular carcinoma (HCC).” He observed that Ms. Kabeller was not diagnosed with HCC but “was diagnosed with metastatic carcinoid tumor” and that TheraSphere was not approved for use in patients with “metastatic carcinoid tumor.” Further, he stated that there was “a consensus of opinion among experts that further studies, research or clinical investigation of TheraSphere was necessary to determine maximum tolerated dosages, toxicity, safety, efficacy, or efficacy as compared with standard means of treatment of Ms. Kabeller’s diagnosed condition.” He added that TheraSphere had not been proven to be safe and effective to treat individuals with Ms. Kabel-ler’s condition and that “the predominant opinion among experts as expressed in published peer reviewed literature was that further studies were necessary in order to determine safety, toxicity, or effectiveness compared with standard alternatives for TheraSphere treatment for Ms. Kabeller’s diagnosed condition.”

In its order granting summary judgment, the trial court determined that TheraSphere is a radiation treatment for cancer and that radiation treatments for cancer are covered by the plan. The court considered the exclusion for experimental or investigational services but concluded that the exception eliminated the exclusion in this case, resulting in coverage. The court stated that the plan did not give notice to Ms. Kabeller “that covered radiation treatments would be limited to treatments from a drug and would not include radiation treatments characterized as coming from a device.” The court cited to section 641.31(4) and found that the plan did not define the terms “device” or “drug” and did not contain a “ ‘clear and understandable’ statement limiting the covered radiation treatments to substances defined as drugs and excluding substances defined as devices.” Later, the court entered a final judgment in Ms. Kabeller’s favor for damages, attorney’s fees, and costs.

On appeal, Health Options argues that the trial court erred in its analysis of the plan, the impact of section 641.31(4), and the evidence of record. Health Options also argues that Ms. Kabeller did not carry her burden for summary judgment and that the trial court should have entered summary judgment in its favor.

Our standard of review is de novo because we are reviewing a summary judgment involving a question of law, that is, the trial court’s legal analysis of the plan provisions. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Smith v. Frontier Commc’ns Int’l, Inc., 805 So.2d 975, 977 (Fla. 2d DCA 2001); Am. Equity Ins. Co. v. Van Ginhoven, 788 So.2d 388, 390 (Fla. 5th DCA 2001). In Smith, this court explained:

Where the interpretation or construction of a written instrument and the legal effect to be drawn from the instrument is at issue, the appellate court is not restricted in its ability to reassess the meaning and effect of the instrument, and the appellate court may reach a conclusion contrary to the conclusion of the trial court.

805 So.2d at 977. In addition, pursuant to Florida Rule of Civil Procedure 1.510(c), a trial court may only grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See also Hervey v. Alfonso, 650 So.2d 644, 645 (Fla. 2d DCA 1995).

The limited evidence contained in the record is that TheraSphere is a device and not a drug. Notwithstanding that evidence, the trial court concluded that the plan did not adequately exclude coverage for devices and, therefore, that the exception to the exclusion, which refers to drugs prescribed for the treatment of cancer that meet certain requirements, applied. In its analysis, the trial court relied heavily on section 641.31(4), which states as follows:

Every health maintenance contract, certificate, or member handbook shall clearly state all of the services to which a subscriber is entitled under the contract and must include a clear and understandable statement of any limitations on the services or kinds of services to be provided, including any copayment feature or schedule of benefits required by the contract or by any insurer or entity which is underwriting any of the services offered by the health maintenance organization. The contract, certificate, or member handbook shall also state where and in what manner the comprehensive health care services may be obtained.

We cannot agree with the trial court that the plan’s lack of definitions for the terms “device” and “drug” violated section 641.31(4) and served to eliminate the exclusion for experimental or investi-gational services. In Jefferson Insurance Co. of New York v. Sea World of Florida, Inc., 586 So.2d 95, 97 (Fla. 5th DCA 1991), the Fifth District stated that “[t]he mere failure to provide a definition for a term involving coverage does not necessarily render the term ambiguous.” Courts should not “put a strained and unnatural construction on the terms of a policy in order to create an uncertainty or ambiguity.” Id. Instead, “the terms of the contract must be given their everyday meaning and read in light of the skill and experience of ordinary people.” Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994). In Deni Associates of Florida, Inc. v. State Farm Fire & Casualty Insurance Co., 711 So.2d 1135 (Fla.1998), the supreme court addressed the lack of definitions for the words “irritant” and “contaminant” in an insurance policy exclusion and concluded that the absence of definitions did not render the policy ambiguous.

Here, the pertinent exclusion is for “Experimental or Investigational services.” The term “Experimental or Investigational” is defined in the plan. Among other things, devices and drugs that meet the requirements specified in the definition would be considered experimental or in-vestigational. Such devices and drugs would, by definition, fall within the exclusion unless the exception to the exclusion applies. The exception specifies the circumstances under which a “drug prescribed for the treatment of cancer” would not be considered “Experimental or Inves-tigational.”

After reviewing the entire plan, we agree with Health Options’ argument that the lack of definitions for the terms “device” and “drug” does not violate section 641.31(4) and does not make the exclusion inapplicable to Ms. Kabeller’s claim. Read in context, the plan provides adequate notice as to the services to which a subscriber such as Ms. Kabeller is entitled and the limitations on those services or kinds of services. Even if some individuals might disagree as to whether TheraSphere is a device or a drug, the possibility of disagreement does not require the conclusion that the plan violates section 641.31(4). Thus, because the trial court’s decision largely rested on the erroneous conclusion that the plan violated section 641.31(4), we reverse the summary judgment and the final judgment.

In the summary judgment, the trial court also stated that “whether the exclusion exists or not, the cancer patient exception serves to eliminate the exclusion.” This statement was apparently based on the court’s view that the articles filed by Ms. Kabeller demonstrated that Thera-Sphere treatment met the requirements of the exception. However, the trial court did not consider the substance of Dr. Ack-erman’s affidavit, which specifically outlines why TheraSphere treatment does not meet the requirements of the exception. Instead, the court characterized Dr. Ack-erman’s affidavit simply as seeking “to establish the validity of the exclusion to the Covered Service.”

This characterization is incorrect as Dr. Ackerman’s affidavit also states that Ms. Kabeller was not diagnosed with the type of cancer for which the FDA had approved treatment with TheraSphere and that TheraSphere is not a drug recognized for the treatment of Ms. Kabeller’s diagnosed condition. Further, two of the articles on which Ms. Kabeller relied address only the treatment of HCC, which is not the type of cancer with which Ms. Kabeller was diagnosed. Thus, the record reflects a genuine issue of material fact, and the trial court erred in entering summary judgment. See Hervey, 650 So.2d at 645.

Health Options contends that in addition to reversing the summary judgment, we should remand for entry of judgment in its favor. We disagree. The trial court’s decision was based on the lack of definitions in the plan, the conclusion that the plan violated section 641.31(4), and the conclusion that TheraSphere had been recommended for treatment of Ms. Kabeller’s cancer. As noted previously, the trial court did not consider the substance of Dr. Ackerman’s affidavit and whether either party would be entitled to summary judgment in light of that affidavit or on grounds other than those that the trial court specifically, but erroneously, found to be controlling. Our decision should not be construed as precluding either party from again seeking entry of summary judgment consistent with this opinion, the available evidence, and the applicable law.

Reversed and remanded.

WHATLEY and VILLANTI, JJ., Concur.

APPENDIX

The HMO plan contains the following definition for “Experimental or Investiga-tional”:

Experimental or Investigational means any evaluation, treatment, therapy, or device which involves the application, administration or use, of procedures, techniques, equipment, supplies, products, remedies, vaccines, biological products, drugs, pharmaceuticals, or chemical compounds if, as determined solely by HOI:
A. such evaluation, treatment, therapy, or device cannot be lawfully marketed without approval of the United States Food and Drug Administration or the Florida Department of Health and approval for marketing has not, in fact, been given at the time such is furnished to the Covered Person;
B. such evaluation, treatment, therapy, or device is provided pursuant to a written protocol which describes as among its objectives the following: determinations of safety, efficacy, or efficacy in comparison to the standard evaluation, treatment, therapy, or device;
C. such evaluation, treatment, therapy, or device is delivered or should be delivered' subject to the approval and supervision of an institutional review board or other entity as required and defined by federal regulations;
D. reliable evidence shows that such evaluation, treatment, therapy, or device is the subject of an ongoing Phase I or II clinical investigation, or the experimental or research arm of a Phase III clinical investigation, or under study to determine: maximum tolerated dosage(s), toxicity, safety, efficacy, or efficacy as compared with the standard means for treatment or diagnosis of the Condition in question;
E. reliable evidence shows that the consensus of opinion among experts is that further studies, research, or clinical investigations are necessary to determine: maximum tolerated dosage(s), toxicity, safety, efficacy, or efficacy as compared with the standard means for treatment or diagnosis of the Condition in question;
F. reliable evidence shows that such evaluation, treatment, therapy, or device has not been proven safe and effective for treatment of the Condition in question, as evidenced in the most recently published medical literature in the United States, Canada, or Great Britain, using generally accepted scientific, medical, or public health methodologies or statistical practices;
G. there is no consensus among practicing Physicians that the treatment, therapy, or device is safe and effective for the Condition in question; or
H. such evaluation, treatment, therapy, or device is not the standard treatment, therapy, or device utilized by practicing Physicians in treating other patients with the same or similar Condition.
“Reliable evidence” shall mean (as determined by HOI):
A. records maintained by physicians or hospitals rendering care or treatment to the Covered Person or other patients with the same or similar Condition;
B. reports, articles, or written assessments in authoritative medical and scientific literature published in the United States, Canada or Great Britain;
C. published reports, articles, or other literature of the United States Department of Health and Human Services or the United States Public Health Service, including any of the National Institutes of Health, or the United States Office of Technology Assessment;
D. the written protocol or protocols relied upon by the treating physician or institution or the protocols of another physician or institution studying substantially the same evaluation, treatment, therapy, or device;
E. the written informed consent used by the treating physician or institution or by another physician or institution studying substantially the same evaluation, treatment, therapy, or device; or
F. the records (including any reports) of any institutional review board of any institution which has reviewed the evaluation, treatment, therapy, or device for the Condition in question.
NOTE: Services or supplies which are determined by HOI to be Experimental or Investigational are excluded (see Exclusions and Limitations Section).- In making benefit determinations, HOI may also rely on the predominant opinion among experts, as expressed in the published authoritative literature, that usage of a particular evaluation, treatment, therapy, or device should be substantially confined to research settings or that further studies are necessary in order to define safety, toxicity, effectiveness, or effectiveness compared with standard alternatives.

      . The plan defines the term "Experimental or Investigational.” The definition is contained in the appendix attached to this opinion.


author: ALTENBERND, Judge.

text:
    CLEARVIEW IMAGING, L.L.C., as Assignee of Yvonne L. Finch, individually and on behalf of all those similarly situated, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 2D05-491.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; J. Daniel Clark of Clark & Martino, P.A., Tampa; and Scott R. Jeeves of The Jeeves Law Group, P.A., St. Petersburg, for Appellant.
    John R. Blue, Chris S. Coutroulis, E. Kelly Bittick, Jr., and Joanna Garcia of Carlton Fields, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Clearview Imaging, L.L.C. (“Clear-view”), appeals an order dismissing with prejudice its second amended complaint against State Farm Mutual Automobile Insurance Company (“State Farm”). We reverse and remand for further proceedings consistent with the Third District’s decision in Millennium Diagnostic Imaging Center, Inc. v. Security National Insurance Co., 882 So.2d 1027 (Fla. 3d DCA 2004).

On November 22, 2002, a driver insured by State Farm sustained bodily injuries in an automobile accident. As a result of the accident, the driver received magnetic resonance imaging services (an MRI) from Clearview in January 2003. Clearview submitted a claim to State Farm for the MRI services in the amount of $1166.98. State Farm processed the claim and paid Clearview $1128.82. Thus, the dispute between these specific parties involves $38.16.

When submitting its claim, Clearview maintained it was entitled to $1166.98 as full payment for personal injury protection benefits under section 627.736(5)(b)(5), Florida Statutes (2002), which requires personal injury protection insurers to pay an additional amount, adjusted annually, based on the “medical Consumer Price Index for Florida.” State Farm, however, decided that it did not have to pay an additional sum because there was no “Consumer Price Index for Florida” and thus that portion of the statute was void for uncertainty.

Accordingly, the larger dispute in this case involves the constitutionality and proper interpretation of section 627.736(5)(b)(5). This statute was enacted, effective June 19, 2001, and imposes a statutory method for calculating fees for MRI services paid by personal injury protection insurance coverage. See ch.2001-271, Laws of Fla. In pertinent part, section 627.736(5)(b)(5) states:

Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjtisted annually by an additional amount equal to the medical Consumer Price Index for Florida.

(Emphasis added.) There apparently was little controversy about this statute until November 1, 2001.

In April 2003, Clearview filed a one-count class action complaint seeking damages for unpaid benefits. Shortly after Clearview filed its complaint, the legislature amended section 627.736(5)(b)(5) so that the annual adjustment occurred on August 1 and was based on “the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor.” See eh.2003-411, Laws of Fla.

State Farm filed a motion to dismiss Clearview’s complaint, maintaining that no “medical Consumer Price Index for Florida” existed in January 2003. Thus, although State Farm was quite willing to receive the benefit of the 175 and 200 percent caps on fees for MRI services provided in this statute, it concluded that it had no statutory obligation to increase the amount that it paid .for these services because the legislature had written a void or ambiguous clause within two sentences of the statute.

Clearview admitted that no “Consumer Price Index for Florida” was expressly created by the United States Department of Labor, Bureau of Labor Statistics, and that “medical” was not an accurate description of any item in the indices created by the Bureau. It suggested, however, that the “medical care” item of the “Consumer Price Index for All Urban Consumers in the South Region” was a logical index to fulfill the intent of the legislature and that no other index or category would adequately fulfill that intent. It supported this argument by suggesting that the legislature’s amendment of section 627.736(5)(b)(5), where the provision “medical Consumer Price Index for Florida” was replaced by “Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region” was a “clarification” of the 2001 language. In the alternative, it maintained that the entire statutory method for controlling fees for MRI services in section 627.736(5)(b)(5) should be invalidated if the statute did not properly allow for inflationary increases.

On May 6, 2004, the trial court dismissed Clearview’s complaint for failure to state a cause of action. Thereafter, on May 19, 2004, Clearview amended its complaint and alleged two counts. In count I, it sought payment for the MRI services including the inflationary cost adjustment, claiming that the amended statute was merely a clarification of the legislature’s initial intent. In count II, it sought a declaratory judgment and requested that if it did not prevail on the theory described in count I it should be entitled to seek a reasonable fee for its services without reference to any portion of section 627.736(6)00(5).

State Farm again filed a motion to dismiss. After hearings on these issues and full briefing of the legal arguments, the trial court entered an order dismissing the complaint with prejudice. Clearview appeals that final order.

The Third District reviewed a similar order in Millennium Diagnostic Imaging, 882 So.2d 1027. It concluded that the statutory amendment of section 627.736(5)(b)(5) fit within that category of amendments that may serve as legislative interpretation of the original law rather than a substantive change thereof. Thus, it held the amendment clarified the original legislative intent which was that the Consumer Price Index to be applied was the “Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region.” We adopt the analysis of the Third District’s opinion in Millennium Diagnostic Imaging as our own and reverse and remand for further proceedings.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . A similar “medical Consumer Price Index for Florida” provision in section 627.736(5)(b)(3), Florida Statutes (2002), applies to nerve conduction testing. Like section 627.736(5)(b)(5), this section was amended by the legislature in 2003 to be based on the "Consumer Price Index for All Urban Consumers in the South Region.” See ch.2003-411, Laws of Fla.

      . We note that during the pendency of this appeal, the trial judge had an opportunity to sit on a circuit court appellate panel reviewing a county court order on essentially the same issue. That panel reached the same result that we reach today. See Premier Open MRI, L.L.C. v. Progressive Express Ins. Co., No. 04-5919, 2005 WL 1077722 (Fla.Cir.Ct. Apr. 18, 2005)

      . If we had not reached this outcome, we note that the trial court’s decision to enforce the cap on fees for MRI services while declaring the inflationary cost adjustment to be unconstitutionally vague would have been troublesome. Under the analysis in Florida Department of State, Division of Elections v. Martin, 916 So.2d 763 (Fla.2005), given the legislature's obvious intent to control the cost of MRI services with a method fair to both the providers and the insurance companies, we are inclined to believe that the statutory method could not have been enforced after November 1, 2001, and that MRI services would have been subject to the same rules of reasonableness that existed prior to the statutory amendment in 2001.


author: BERGMANN, CHARLES ED, Associate Judge.

text:
    Edward G. KARZ, Appellant, v. Fred O. DICKENSON and Sandra Lambert, in their official capacities, Department of Highway Safety and Motor Vehicles, Appellee.
    No. 2D04-5435.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      Rhonda F. Goodman of Rhonda F. Goodman, P.A., Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert Dietz, Assistant Attorney General, Tampa, for Appellee.
   BERGMANN, CHARLES ED, Associate Judge.

Edward Karz appeals the final judgment of the trial court finding that the Department of Highway Safety and Motor Vehicles (DHSMV) has administrative authority “to place restrictions on driver[’s] licenses which would include the placement of ignition interlock devices,” although such restrictions were not part of Karz’s sentence. We reverse.

Section 316.193(2)(b)(l), Florida Statutes (2003), requires that after a third conviction of driving under the influence (DUI), “the court shall order the mandatory placement ... of an ignition interlock device” upon the convicted person’s vehicle. When Karz was convicted of a third DUI offense, the trial court suspended his driver’s license for six months but did not impose the mandatory placement of the device as part of his sentence. The State did not appeal. When the period of suspension expired and Karz applied for reinstatement of his driver’s license, the DHSMV imposed the restriction of the ignition interlock device administratively.

Karz brought an action in the trial court seeking, inter alia, injunctive and declaratory relief. Finding that the DHSMV has the authority to impose the ignition interlock device restriction on driver’s licenses, the trial court denied the relief sought, and Karz brought this appeal.

Three other district courts have ruled in similar circumstances that the DHSMV had no authority to impose the ignition interlock device administratively when the trial court did not impose the restriction during sentencing. See Embrey v. Dickenson, 906 So.2d 316 (Fla. 1st DCA 2005); Dickenson v. Aultman, 905 So.2d 169 (Fla. 3d DCA 2005); Doyon v. Dep’t of Highway Safety & Motor Vehicles, 902 So.2d 842 (Fla. 4th DCA 2005). We agree with those decisions and adopt the reasoning set forth therein in this case. Accordingly, we reverse the final order of the trial court.

Reversed and remanded.

ALTENBERND and DAVIS, JJ., Concur.

      . The nature of the proceedings in the circuit court and the method of review in the district court has varied among these cases. We conclude that it is unnecessary in this case to decide whether all the approaches taken were appropriate because it is clear that the circuit court’s jurisdiction could be invoked to resolve this issue and we would have jurisdiction to review that legal ruling.

      . Section 322.2715(4), Florida Statutes (2005), which became effective July 1, 2005, would appear to have allowed the administrative action in this case if it had been enacted at the time of Karz’s offense.


author: PER CURIAM.

text:
    Valerie J. QUINLAN, as Personal Representative of the Estate of Betty Jean Jacobsen, Appellant, v. ROSS STORES and Sedgwick Claims Management Services, Appellees.
    No. 1D05-2952.
    District Court of Appeal of Florida, First District.
    April 24, 2006.
    Rehearing Denied July 3, 2006.
    Kevin G. Bennett and Howard S. Gross-man of Howard S. Grossman, P.A., Boca Raton, for Appellant.
    Maria Kayanan of Kubicki Draper, Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation case, the deceased claimant’s personal representative appeals from an order of the judge of compensation claims denying her motion to enforce a proposed settlement agreement. The proposed agreement was based on the terms of a Mediation Settlement Agreement that the parties had reached as to the claimant’s compensable industrial accident. Because the contingencies to final settlement set forth in the Mediation Settlement Agreement had not occurred, we agree with the judge’s ruling that a final and enforceable agreement was never made.

The Mediation Settlement Agreement was expressly not final and was contingent upon both parties’ approval of a Medicare set-aside amount for future medical care. It was also expressly contingent upon resolution of any Medicare lien(s) that may be determined to exist. Neither of these contingencies had come to pass at the time that the claimant signed a draft proposed settlement agreement prepared by the carrier’s attorney. Nor did the employer/carrier ever execute the proposed agreement. Although the proposed settlement agreement contained a recommended figure for the Medicare set-aside amount, that amount had yet to be approved by the Centers for Medicaid and Medicare Services (“CMMS”) at the Department of Health & Human Services. Such approval was required before the employer/carrier could sign off on the amount. Further, the parties agree that the existence and amount of any Medicare liens had yet to be determined at the time the claimant signed the proposed agreement. The claimant died less than a month after signing the draft documents.

We agree with the judge’s conclusion below that the express contingencies set forth in the Mediation Settlement Agreement were not satisfied at the time the claimant signed the proposed agreement or by the time she died. We reject the claimant’s argument that the mere inclusion in the draft agreement of the recommended set-aside amount and discussion of responsibility for any liens therein amounted to resolution of these issues and fulfillment of the contingencies. Competent substantial evidence in the record supports the judge’s finding that the parties intended for finality of the settlement agreement to hinge on both approval of the set-aside amount by CMMS and actual resolution of any Medicare liens after the existence and amount thereof had been determined.

The instant case is distinguishable from our recent decision in Calderon v. J.B. Nurseries, Inc., 933 So.2d 553, 2006 WL 263644 (February 6, 2006). In Calderon, the judge of compensation claims found that the parties intended to settle the appellant’s claim by their mediated settlement agreement. We held that the appellant’s later refusal to execute a release, despite having agreed in writing to execute any releases the employer/carrier may require, did not void the binding settlement agreement. Significantly, in Calderon, we were bound by the judge’s factual finding that the parties intended that the mediated agreement constitute a final settlement of the claim. See id. at 554; see also Dixie Lime & Stone Co. v. Lott, 196 So.2d 422 (Fla.1967); Prather v. Process Systems, 867 So.2d 479 (Fla. 1st DCA 2004).

We are not faced with such a finding as to the parties’ intent in the present case. To the contrary, the judge in this case found that the parties did not intend that the Mediation Settlement Agreement was to be final and enforceable, and that they instead intended that its finality would depend upon the subsequent provision and execution of additional documents. This finding is supported by the language of the Mediation Settlement Agreement itself, which expressly states, “The parties acknowledge that this document does not represent the final agreement & that subsequent documents will be prepared & signed by the parties.” Because the judge’s factual finding as to the parties’ intent is supported by competent substantial evidence, it is conclusive on that point, just as a contrary finding under the facts presented in Calderon was conclusive. See Dixie Lime; Prather.

Based on the record, the judge correctly ruled that the necessary and express contingencies to finality set forth in the Mediation Settlement Agreement had not yet occurred at the time the claimant signed the draft proposed settlement agreement. Therefore, we affirm the judgment below.

ERVIN, PADOVANO, and HAWKES, JJ., concur.


text:
    J.R.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4410.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, J.R.H., punched a middle school classmate, and the state charged him with felony battery pursuant to section 784.03(1) and (2), Florida Statutes (2005). The felony charge was based on appellant’s plea of guilty to a battery charge in an earlier case, for which the court withheld adjudication.

The trial court found appellant guilty of felony battery, over his objection that the state could not establish the felony because it had not proved that he had “one prior conviction for battery” within the meaning of section 784.03(2). Appellant relied on J.E.A v. State, 842 So.2d 851 (Fla. 2d DCA 2002), to argue that the state was required to establish that he had been previously adjudicated delinquent of battery in order to obtain a felony battery conviction.

Recently this court aligned itself with J.E.A in holding that the state could not utilize a prior withhold of adjudication of delinquency as a “conviction” to elevate a simple battery to felony battery. W.J.H. v. State, 922 So.2d 458, 459 (Fla. 4th DCA 2006).

Based on W.J.H., we reverse the felony battery disposition and remand with instructions that the trial court enter a new disposition order for the crime of simple battery.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Max FENELON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-227.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Max Fenelon, Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Max Fenelon appeals the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion raised two claims, but we reverse only as to one. We accept the state’s concession of error on this claim and reverse, because the trial court failed to attach record evidence to refute the facially sufficient claim that the ten-year sentence for battery while in a detention facility exceeded the five-year statutory maximum for a third-degree felony. See § 784.082(3), Fla. Stat. (1999); Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996) (holding that the trial court must attach portions of the record conclusively refuting a legally sufficient 3.800(a) claim).

Accordingly, we reverse and remand for attachment of portions of the record refuting appellant’s claim of an illegal sentence, if such records exist.

WARNER, TAYLOR and MAY, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Marlon JAMES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D05-2392.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Rehearing Denied July 18, 2006.

      Marlon James, in proper person.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before LEVY, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The petitioner, Marlon James, was convicted of one count of sexual battery by digital penetration of the victim’s anus and one count of sexual battery by penetration of the victim’s anus with the petitioner’s penis, and was sentenced to fifteen years incarceration followed by five years of probation. His convictions and sentence were affirmed on direct appeal. James v. State, 901 So.2d 212 (Fla. 3d DCA 2005). In the instant petition for writ of habeas corpus, the petitioner raises two claims of ineffective assistance of appellate counsel. As we conclude that the petitioner’s second claim is meritorious we grant the petition on this claim only.

The petitioner’s first claim, that appellate counsel failed to raise the fundamental nature of a jury instruction error regarding sexual battery, is without merit, as appellate counsel did raise this issue on direct appeal. The trial court, in reading the jury instruction on sexual battery, instructed the jury that the petitioner could be found guilty of this charge if his sexual organs “penetrated or had union with” the victim’s anus, while the information only charged him with penetration. This issue was, in fact, raised on direct appeal, wherein we found that no fundamental error had occurred, as penetration was not disputed and the only issue at trial was whether the act was consensual. We, therefore, deny the petition as to this claim.

The petitioner’s second claim, that appellate counsel was deficient for failing to raise that his sentence of fifteen years incarceration followed by five years of probation was illegal, as it exceeds the statutory maximum for a second degree felony, is meritorious. Florida Rule of Appellate Procedure 9.140(e) provides that a defendant may raise a sentencing error in the trial court “at the time of sentencing” or by filing “a motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” Rule 3.800(b) provides that a motion to correct a sentencing error, including an illegal sentence, may be filed:

(1) Motion Before Appeal. During the time allowed for filing of a notice of appeal of a sentence....
(2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served.

This rule also applies to fundamental sentencing errors occurring after November 12, 1999, the effective date of the amendment to Rule 3.800. See Fla. R.App. P. 9.140(e); Fla. R.Crim. P. 3.800(b) (2000); Brannon v. State, 850 So.2d 452 (Fla.2003); Amendments to Fla. Rules of Criminal Procedure, 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015, 1020 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000).

The Florida Supreme Court in Brannon specifically noted that “[i]n adopting rule 3.800(b)(2), we stated our expectation that ‘these amendments will provide an effective, and hopefully more ‘failsafe,’ procedural mechanism through which defendants may present their sentencing errors to the trial court and thereby preserve them for appellate review.’ ” Brannon, 850 So.2d at 454 (quoting Amendments to Fla. Rules of Criminal Procedure, 761 So.2d at 1017-18). The Court noted that an advantage of this amendment, besides expanding the period in which a defendant may file a motion to correct a sentencing error, is that it gives “appellate counsel, with expertise in detecting sentencing error, the opportunity to identify any sentencing errors and a method to correct these errors and preserve them for appeal.” Brannon, 850 So.2d at 455.

The petitioner correctly asserts that he was convicted of two - second degree felonies, each carrying a fifteen-year statutory maximum. The trial court did not state whether the sentence imposed, a fifteen-year sentence followed by five years of probation, was a split sentence whereby the petitioner would serve the incarceration portion of his sentence on one count and the probationary portion on the other count, or whether she was imposing a fifteen-year sentence followed by five years of probation on each count concurrently, which would constitute an illegal sentence. Thus, we find that the petitioner’s appellate counsel provided ineffective assistance of counsel by failing to detect the sentencing error and failing to bring it to the trial court’s attention prior to filing its appellate brief.

Accordingly, we grant the petition as to the petitioner’s sentencing claim only and remand to the trial court to clarify and/or correct the sentence imposed with the defendant present.

Petition granted in part and denied in part.


text:
    J.L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-977.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s finding of guilt for first degree misdemeanor battery without discussion. We remand, however, for the trial court to correct the disposition order to reflect that J.L.’s probationary term is limited to one year. § 985.231(l)(a)l.a, Fla. Stat. (2005).

STONE, POLEN and FARMER, JJ., concur.


author: MAY, J.

text:
    FRANKLIN FINANCIAL, INC., Appellant, v. Thomas K. WHITE, Norma Jean Prevatt a/k/a Norma Jean White, and Big Lake National Bank, Appellees.
    No. 4D05-1063.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      James J. Webb of Haley, Sinagra, Paul & Toland, P.A., Fort Lauderdale, for appellant.
    Daniel S. Mandel of Mandel, Weisman, Heimberg & Brodie, P.A., Boca Raton, for appellees.
   MAY, J.

A judgment hen holder and a mortgage hen holder each claim a superior interest in the same real property. The appeal raises two issues: whether the judgment was valid and whether a judgment hen may be rerecorded after it expires. Franklin Financial, Inc., the judgment hen holder, appeals a final summary judgment in favor of Big Lake National Bank, the mortgage hen holder. The court declared Franklin Financial’s judgment invalid and therefore it had no judgment hen. For the reasons that follow, we reverse.

In the early 1990’s, a judgment was entered against Norma K. Prevatt and her now deceased husband. The judgment also named several other interested parties as defendants. The original judgment holder appears to have attempted to record the judgment in 1994. It is unclear from the record if this judgment hen ever matured, but in any event, the original judgment holder never executed on the judgment.

Through a series of assignments, Franklin Financial came to hold the judgment. On January 29, 2003, Franklin Financial recorded the judgment along with an affidavit containing its address. It filed a complaint to foreclose the judgment hen on property owned by Mrs. Prevatt in Okeechobee County, Florida.

The complaint also named Mrs. Pre-vatt’s current husband, Thomas White, and Big Lake National Bank (“Big Lake”) as defendants. After Franklin Financial recorded the judgment, Mrs. Prevatt conveyed the property to her husband and Big Lake recorded a mortgage on the property.

Both Franklin Financial and Big Lake filed motions for summary judgment. Franklin Financial asked the court to declare its interest superior while Big Lake asked the court to declare Franklin Financial’s interest in the property invalid.

The court found Franklin Financial had no valid lien on the property. It held the underlying judgment defective because it failed to affix liability to a specific defendant in the body of the judgment. The trial court granted summary judgment for Big Lake finding it had the superior interest in the property.

This appeal presents two issues. The first issue involves the validity of the judgment.

There are certain requirements for a judgment to be valid. A final judgment must contain the address and the social security number, if known to the prevailing party, of each person against whom the judgment is rendered. § 55.01, Fla. Stat. (1994). However, errors in names, addresses, or social security numbers, or the failure to include the same, shall in no way affect the validity or finality of a final judgment. § 55.01, Fla. Stat. (1994). A judgment is still valid “if the parties for and against whom [it] is rendered are so referred to therein as that a reference to its caption, or to the pleadings, process, and proceedings in the action, will make certain the names of the parties thus referred to.” Taylor v. Branham, 35 Fla. 297, 17 So. 552, 555 (1895). “Every judgment may be construed and aided by the entire record.” Id.

The judgment here identifies Mrs. Prevatt and her deceased husband in the caption and establishes liability against the “defendants” in its body. The record from the earlier lawsuit clearly establishes the judgment bound Mrs. Prevatt personally. Therefore, the judgment is valid as a matter of law and the court erred in entering a summary judgment in favor of Big Lake.

The second issue involves whether Franklin Financial can rerecord the judgment after the original judgment lien has expired. The original judgment lien holder attempted to record the judgment in 1994. It is unclear if it properly recorded the judgment. Whatever the case, no judgment lien would have existed when Franklin Financial came to hold the judgment in 2003. The original judgment lien would have either never existed because it was improperly recorded or would have expired under the statute then in force.

Franklin Financial claims a plain reading of the statute governing judgment liens allows a judgment creditor to rerecord a judgment after the first judgment lien has expired. We agree.

Section 55.10(1), Florida Statutes (2003), provides that a judgment becomes a lien on real property in any county where a certified copy of it is recorded in the official records of the county. The judgment lien lasts for a period of ten years. Id. The lien may be extended for an additional period by rerecording a certified copy of the judgment prior to the expiration of the lien and by simultaneously recording an affidavit with the current address of the person who has a lien as a result of the judgment. § 55.10(2), Fla. Stat. (2003). No judgment can be a lien beyond twenty years after the date of the original judgment. § 55.081, Fla. Stat. (2003). The statute is silent as to whether the judgment may be rerecorded after the original judgment lien has expired.

The statutory mechanism for extending the life of a judgment lien was designed to allow the judgment creditor to maintain its priority over any subsequent lien holders. When a judgment is recorded, the judgment lien takes priority over any liens recorded thereafter. It maintains this priority so long as it exists. If the judgment lien begins to reach its statutorily defined time limit, the judgment creditor may file for an extension pursuant to section 55.10(2). The logical result of filing an extension is that the life of the original judgment lien is extended. By extending the judgment lien’s life, the judgment creditor maintains the judgment lien’s priority over any liens recorded after its original date of recording and also over any hens recorded after its date of extension.

A different outcome is produced if the judgment creditor allows the judgment lien to lapse without filing for an extension. In that case, the judgment lien ceases to exist. The judgment creditor may choose to rerecord the judgment at a later time, but a new judgment lien is created and it takes no priority over liens already recorded. Like a child that wanders out of a queue, the newly rerecorded judgment lien has lost its place and must go to the back and stand behind all previously recorded judgment liens.

We hold a judgment creditor may rerecord a judgment even after the original judgment hen has expired. Franklin Financial’s judgment was a valid judgment against Mrs. Prevatt. The recording of that judgment created a valid judgment hen. Big Lake’s mortgage, recorded after Franklin Financial’s judgment hen, is the junior interest.

Reversed.

STONE and GROSS, JJ., concur.

      . Mrs. Prevatt has remarried since the original judgment issued. She is now known as Norma Jean White.

      . At the time the original judgment holder attempted to record the judgment, a judgment lien was only valid for a period of seven years. § 55.10(1), Fla. Stat. (2004).

      . Obviously, the judgment is against the judgment debtor personally. When the judgment creditor rerecords the judgment, the new judgment lien only attaches to property then in the judgment debtor's possession and not to property that has been transferred by the judgment debtor since the original judgment lien expired.


author: SHAHOOD, J.

text:
    Joseph William FINFROCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1761.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Joseph William Finfroek, Moore Haven, pro se.
    No appearance for appellee.
   SHAHOOD, J.

Appellant, Joseph William Finfroek, a pro se litigant, appeals from an Order on Petition for Name Change of Adult. The trial court summarily denied the petition without providing appellant an opportunity to present evidence. We reverse and remand for an evidentiary hearing.

Section 68.07, Florida Statutes, states that a petition for name change must allege and show, among other things, that “the petitioner’s civil rights have never been suspended, or if the petitioner’s civil rights have been suspended, that full restoration of civil rights has occurred.” § 68.07(2)(k), Fla. Stat. (2005). If a petition for name change is facially sufficient, it should be granted so long as there is no evidence of a wrongful or fraudulent purpose. See Brown v. Name Change, 611 So.2d 1355 (Fla. 2d DCA 1993); see also Hoyos v. Singletary, 639 So.2d 631 (Fla. 4th DCA 1994) (holding that, because appellant’s petition was facially sufficient, he was entitled to an evidentiary hearing so that he could prove that his motivation for changing his name was without ulterior or illegal motive, a requirement of section 68.07(j), Florida Statutes).

Appellant’s petition tracks the statute and appears to be facially sufficient, although there is one discrepancy. He lists the dates of his various felony convictions and two appear to have occurred after 1995. In the same petition, however, he states that his civil rights have never been suspended and, if they have, they have been restored.

Section 944.292(1), Florida Statutes, states, “[u]pon conviction of a felony ... the civil rights of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution.” The effective date of subsection (k) of section 68.07 was June 15, 1995. If the felonies for which a petitioner has been convicted occurred prior to that date, the subsection is inapplicable. See In re Name Change Petition of Mullin, 892 So.2d 1214 (Fla. 2d DCA 2005) (holding that subsection (k) did not apply in that case because the appellant’s felonies occurred prior to the effective date of subsection (k)).

The issue in this case is whether the trial court is required to hold an evidentia-ry hearing. In Gosby v. Third Judicial Circuit, 586 So.2d 1056, 1057 (Fla.1991), the Florida Supreme Court considered the denial of a petition for writ of mandamus seeking a ruling on a petition for name change. The court reversed the appellate court, which affirmed the denial of a ruling because appellant did not plead or prove that he could attend a hearing. The holding in Gosby was that the court could not require an inmate to attend a hearing but could accommodate him in other ways without simply denying the petition. The court did not expressly state that the trial court was obligated to hold a hearing and, in fact, stated in dicta that “[t]o determine whether the allegations in the name change petition are true, the trial court has discretion to order a hearing if the court chooses.” Id. at 1057. This court has held that, if the petition is facially sufficient, the trial court must conduct an evidentiary hearing. See McCallister v. State, 695 So.2d 856 (Fla. 4th DCA 1997) (reversing denial of petition for name change where petition was facially sufficient, but was summarily denied without an evidentiary hearing); see also In re Keppro, 573 So.2d 140 (Fla. 1st DCA 1991) (holding that it was error to summarily deny facially sufficient petition for name change without evi-dentiary hearing).

Because the state has not filed an appearance in this appeal, the facial sufficiency of appellant’s petition is not questioned. From the record before us on this appeal, however, it is not possible to verify appellant’s felony record or confirm whether his civil rights have ever been suspended or restored. Thus, it is unclear from this record whether subsection (k) applies and would preclude grant of appellant’s petition for name change. Under these circumstances, the trial court should not have summarily denied the petition without providing appellant the opportunity to present evidence on this issue. As in Gosby, the court in this case can conduct the hearing by telephone, as contemplated in rule 2.071, Florida Rules of Judicial Administration.

Based on the record before us and an examination of the petition, it appears that petitioner is currently incarcerated in the Florida State Prison System. Therefore, there is a possibility, indeed a probability, that his civil rights have been suspended and his petition, filed under oath, contains a false statement. If the trial court finds this to be the case, the court may consider bringing this fact to the attention of the State Attorney of the Nineteenth Judicial Circuit for possible perjury charges.

Reversed and Remanded for an Eviden-tiary Hearing.

KLEIN and TAYLOR, JJ., concur.


text:
    Patrick BOWEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1569.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sims v. State, 681 So.2d 1112 (Fla.1996); Grossman v. State, 525 So.2d 833 (Fla.1988).

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Cindy GRAY, Appellant, v. SUNBURST SANITATION CORPORATION, and Sunshine Meadows Equestrian Village, Inc., Appellees.
    No. 4D05-1414.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP., for appellant.
    J. Craig Delesie, Jr. of Smith Clark Delesie Bierley Mueller & Kadyk, Tampa, for appellee Sunshine Meadows Equestrian Village, Inc.
    Daniel J. Santaniello of Luks, Santaniel-lo, Perez, Petrillo & Gold, Fort Lauder-dale, for appellee Sunburst Sanitation Corporation.
   PER CURIAM.

Plaintiff appeals an order dismissing her case upon a finding that she indisputably committed a fraud on the court through perjured testimony, which in turn resulted in the loss of evidence necessary to the defense. The trial judge recognized that “dismissal is the most severe of all possible sanctions” and should be employed only in “extreme circumstances.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998). Moreover, the judge also, acknowledged that dismissal may be imposed as a sanction for litigation misconduct “only on a ‘clear showing of fraud, pretense, collusion or similar wrongdoing.’ ” Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003) [c.o.]. He also found the evidence clear and convincing. Piunno v. R.F. Concrete Constr., Inc., 904 So.2d 658, 658-59 (Fla. 4th DCA 2005). We have carefully examined the record and áre unable to find that the trial judge abused his discretion.

Affirmed.

STONE, POLEN and FARMER, JJ., concur.


text:
    Monica JACOBSON, Appellant, v. Robert R. JACOBSON, Appellee.
    No. 4D05-1667.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    George E. Gelb of Kramer, Ali, Fleck, Hughes, Gelb & Bornstein, Jupiter, for appellant.
    Lisa D. Harpring, Vero Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

WARNER, GROSS and HAZOURI, JJ., concur.