author: THOMPSON, J. TORPY, J.,

text:
    PROFESSIONAL PLASTERING & STUCCO, INC., Appellant, v. BRIDGEPORT-STRASBERG JOINT VENTURE, et al., Appellee.
    No. 5D03-2572.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2006.
    Rehearing Denied Oct. 24, 2006.

      Phillip C. Dozier of Phillip C. Dozier, P.A., Apopka, for Appellant.
    William L. Grant and Earnest DeLoach, Jr., of Shutts & Bowen, LLP, Orlando, for Appellee.
   ON MOTION FOR REHEARING EN BANC

THOMPSON, J.

Professional Plastering & Stucco, Inc. (“Professional Plastering”) moves for rehearing of our reversal of the trial court’s order, which granted summary judgment to General Accident Insurance Company of America (“General Accident”). Prof'l Plastering & Stucco, Inc. v. Bridgeport-Strasberg Joint Venture, 30 Fla. L. Weekly D299, 2005 WL 176601 (Fla. 5th DCA Jan. 28, 2005). We grant the motion for rehearing, withdraw our previous opinion, and substitute in its place the following opinion that affirms in part and reverses in part the trial court’s order.

Professional Plastering was the subcontractor on a construction project. It sued the contractor in count one for breach of contract, concerning money owed for working on the project. In count two, it sued General Accident on a bond issued in connection with the project. Professional Plastering alleged that it was owed $88,387.12 for unpaid labor and materials and sought payment from General Accident under the bond. Professional Plastering claimed that work on the construction project had begun before the bond was issued and the notice of commencement was filed. It alleged that the bond was a common law bond and that the notice and other requirements of section 713.23, Florida Statutes (1999), did not apply. The court, however, ruled that the bond was a statutory bond and dismissed count two with prejudice, even though the court indicated during the summary judgment hearing that it was not going to decide whether proper bond notices were given because the dispute over notice was not yet ripe for decision.

The issue framed for our consideration, is whether the bond in this case was a statutory bond or common law bond. We follow the Second District’s analysis in Bridgeport, Inc. v. Tampa Roofing Co., 903 So.2d 306, 309 (Fla. 2d DCA 2005) (Bridgeport), and hold that the trial court correctly found that the bond in this case was a statutory bond, and appropriately granted General Accident’s motion for summary judgment on Professional Plastering’s action on a common law bond claim. Because the court specifically indicated it was not going to decide whether Professional Plastering properly and timely served the notices of nonpayment, and as there appears to be an affidavit in the file that controverts the issue of proper notification, we reverse that part of the order dismissing count two with prejudice.

The payment bond issued on 21 July 1999 was derived from an American Institute of Architects boilerplate form. Its terms and coverage were substantially similar to that outlined in section 713.23(3). See Bridgeport, 903 So.2d at 308; see also Hawaiian Inn of Daytona Beach, Inc. v. Dunn, 342 So.2d 132, 133 (Fla. 1st DCA 1977) (holding that the bond “was intended to and did substantially comply with [sjection 713.23”; therefore, because its conditions “were not broader and more protective than the statute required,” the contention that the bond was a common law bond failed). The bond’s notice provision stated that no claimant could commence an action on the bond

[ujnless claimant, other than one having a direct contract with the Principal, shall have given written notice to two of any of the following: the Principal, the Owner, or the Surety ... within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made....

However, the top of this bond was stamped with the following language: “This bond hereby is amended so that the provisions and limitations of section 255.05 or section 713.23 ..., whichever is applicable, are incorporated herein by reference.” In compliance with sections 713.13 and 713.23(1), the bond was attached to the notice of commencement recorded and entered on 30 July 1999.

Section 713.02(6), Florida Statutes (1999), provided that an owner could avoid construction liens on its property, other than that of the contractor furnishing a payment bond to the owner, by requiring the contractor to furnish a payment bond under section 713.23, which provided:

(l)(a) The payment bond required to exempt an owner under this part shall be furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement under the direct contract, and a copy of the bond shall be attached to the notice of commencement when the notice of commencement is recorded. The bond shall be executed as surety by a surety insurer authorized to do business in this state and shall be conditioned that the contractor shall promptly make payments fer labor, services, and material to all lienors under the contractor’s direct contract. Any form of bond given by a contractor conditioned to pay for labor, services, and material used to improve real property shall be deemed to include the condition of this subsection.
(b) The owner, contractor, or surety shall furnish a true copy of the bond at the cost of reproduction to any lienor demanding it. Any person who fails or refuses to furnish the copy without justifiable cause shall be liable to the lienor demanding the copy for any damages caused by the refusal or failure.
(c) Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor’s bond for protection on the work. If a notice of commencement is not recorded, or a reference to the bond is not given in the notice of commencement, and in either case if the lienor not in privity with the contractor is not otherwise notified in writing of the existence of the bond, the lienor not in privity with the contractor shall have 45 days from the date the lienor is notified of the existence of the bond within which to serve the notice....
(d) In addition, a lienor is required, as a condition precedent to recovery under the bond, to serve a written notice of nonpayment to the contractor and the surety not later than 90 days after the final furnishing of labor, services, or materials by the lienor.... The time period for serving a written notice of nonpayment shall be measured from the last day of furnishing labor, services, or materials by the lienor ...
(e) No action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given. ... The time period for bringing an action against the contractor or surety on the bond shall be measured from the last day of furnishing labor, services, or materials by the lienor ...
(2) The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor. Every claim of lien, except that of the contractor, filed subsequent to execution and delivery of the bond shall be transferred to it with the same effect as liens transferred under s. 713.2A .. ■

(Emphasis added).

Professional Plastering argues that the bond in question is a common law bond because it asserts that the bond was filed in deviation of the statutory scheme. More specifically, Professional Plastering alleges that work began on the construction site before the bond was executed, issued, and furnished as required by statute. Professional Plastering asserts that the appellees violated the statutory requirement that the bond be furnished before “commencing the construction of the improvement under the direct contract.” Indeed, the record reflects that a subcontractor engaged in some site preparation, including demolition of structures and removal of mobile homes, before the bond was provided.

General Accident, however, alleges that Professional Plastering failed to provide timely statutory notices of nonpayment, as required by the bond and statute. Professional Plastering did not begin performing work on the project until 27 December 1999, about five months after the bond was in place. It worked on the project until 16 September 2000. By the plain language of section 713.23(l)(d), Professional Plastering was required to give its notice of nonpayment to the general contractor and surety by no later than 15 December 2000, i.e., within 90 days after the final furnishing of labor, services, or materials. We cannot tell from the record whether the general contractor was ever served with a notice of nonpayment, nor can we tell whether the surety was served 107 days late as alleged by General Accident. General Accident argues that it is not required to perform under the bond if Professional Plastering failed to provide timely notice of nonpayment. The response from Professional Plastering is that its notice was timely because General Accident failed to issue the bond before commencing work on the project. Professional Plastering postulates that General Accident’s late provision of the bond renders the bond a common law, rather than a statutory bond, and that its notice was therefore timely.

While the issue of whether the notice was timely will at some point be critical, it is not germane to our present review because it was reserved by the trial judge for later determination. Our only concern is whether the filing of the bond after a small amount of work had already begun on the project renders it a common law bond. We conclude that it remains a statutory bond for all lienors who seek relief after its filing. As to those who seek payment for work done prior to the filing of the bond, the bond does not exempt the project from the liens of such persons. The project, for those lienors, is essentially unbonded. We come to this conclusion after a thorough review of the applicable case and statutory law.

The Second District has ruled that a bond similar to that in this case is a statutory bond. In Bridgeport, the surety refused to pay on a bond because, inter alia, the claimant did not meet the notice requirements of section 713.23. Bridgeport, 903 So.2d at 308. The trial court ruled that the owner, contractor, and surety had not complied with several requirements of section 713.23. Therefore, the trial court held that the bond was a common law bond that was not subject to section 713.23’s notice requirements, and granted summary judgment for the subcontractor. Id. at 308. The appellate court reversed.

The Second District initially considered whether the bond was a statutory bond or a common law bond. Id. It concluded that, “because the payment bond did not provide more expanded coverage than the statutory bond, it was not a common law bond.” Id. (citing Standard Heating Serv., Inc. v. Guymann Constr., Inc., 459 So.2d 1103, 1105 (Fla. 2d DCA 1984), and Nat’l Fire Ins. Co. of Hartford v. L.J. Clark Constr. Co., 579 So.2d 743, 744-45 (Fla. 4th DCA 1991)). The bond “contain[ed] terms that [were] substantially in the form required by section 713.23(3).” Id. Therefore, the Second District concluded that the bond was a statutory bond under section 713.23 and not a common law bond. Id. at 308-09. Here, similarly, there is no dispute that the bond did not provide more expanded coverage; moreover, it was stamped with language explicitly incorporating the provisions and limitations of section 713.23.

The court ruled that the subcontractor’s failure to comply with the statute’s condition precedent to filing suit was fatal. Bridgeport, 903 So.2d at 309 (citing Bridgeport Inc. v. Rinker Materials Corp., 849 So.2d 1193 (Fla. 4th DCA 2003) (Rinker), and Mursten Constr. Co. v. C.E.S. Indus., Inc., 588 So.2d 1061 (Fla. 3d DCA 1991)). Section 713.23 was to be accorded “a strict and literal meaning.” Id. (quoting Rinker, 849 So.2d at 1195-96). Therefore:

[E]ven if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor was not excused from complying with the requirements of section 713.23 that it provide notice of nonpayment before filing suit and that it file suit within one year from its completion of performance, and the bond did not convert from a statutory payment bond to a common law bond.

Bridgeport, 903 So.2d at 309.

The court also noted that the subcontractor showed no prejudice as a result of the alleged failure that could excuse its own obligation to comply with statutory requirements. Id. at 310. Therefore, the trial court’s order was reversed, with directions to enter judgment in favor of the Surety on the bond claim. Id. We agree with this result, and also hold that Professional Plastering’s allegation that work commenced before the bond was furnished did not convert the bond from a statutory bond to a common law bond. Moreover, we note that, like the subcontractor in Bridgeport, Professional Plastering here cannot justify its failure to provide the notice of nonpayment required by statute on any prejudice caused by the owner, principal, or surety. See Bridgeport, 903 So.2d at 310.

The Third District reached a similar result in another case and held that the failure to file a notice of commencement at all did not absolve a material supplier of its responsibility for complying with statutory notice requirements. Mursten Constr., 588 So.2d at 1061. There, the notice of bond was not filed until after the supplier sued the owner to foreclose on a mechanic’s lien. Id. at 1062. The supplier amended its complaint to add a claim against the surety and general contractor to recover under the bond. Id. However, the supplier failed to serve written notice of nonpayment on the contractor. Id. The Third District, citing its obligation “to give the mechanic’s lien statute a strict, and therefore literal, reading,” held that the supplier’s failure to serve written notice constituted a failure to comply with the statutory condition precedent to recovery on the bond. Id. at 1062-63; see also Rinker, 849 So.2d at 1195 (holding that late notice of the bond did not excuse supplier from its obligation to comply with statutory notice requirements).

The holdings in Bridgeport and Mursten Construction appear consistent with a full reading of section 713.23. This court must give full effect to statutory provisions and construe them in harmony with each other. Am. Home Assurance Co., 908 So.2d at 367-68. Subsection (l)(a) requires the bond under this section to be issued before work commences: the payment bond “shall be furnished ... in at least the amount of the original contract price before commencing the construction of the improvement under the direct contract, and a copy of the bond shall be attached to the notice of commencement when the notice of commencement is recorded.” But the statute clearly contemplates the possibility that a payment bond may not immediately satisfy this requirement. For example, section 713.23(l)(c) addresses notice where a notice of commencement is not filed or the bond is not referenced in a notice of commencement. Perhaps most importantly, section 713.23(2) says specifically that:

The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor. Every claim of lien, except that of the contractor, filed subsequent to execution and delivery of the bond shall be transferred to it with the same effect as liens transferred under s. 713.24.

(Emphasis added).

Here, it is undisputed that Professional Plastering began work on the project months after the payment bond was issued and that it had notice of the bond. To adopt its position would require us to ignore this provision of the statute (as well as the plain language of the bond itself), and to fail to give it full effect and construe it in harmony with the statute’s other language.

Professional Plastering urges us to conclude that its notice requirements were different because the contractor began work before the notice of commencement and bond were filed. We find no statutory or case law to support this conclusion. On the contrary, such an approach could needlessly complicate construction litigation subjecting sureties to attack by delinquent claimants; parties that fail to comply with explicit notice requirements, the statutory condition precedent to recovery, could seek payment anyway based on alleged technical violations. We join the Second District in rejecting this approach, which is inconsistent with a strict reading of section 713.23. Here, the surety issued a bond that was facially sufficient under 713.23 and duly noticed. The subcontractor began work on the project many months after the notice of commencement and attached bond were recorded. The subcontractor, therefore, was required to comply with the notice obligations contained in section 713.23(d).

We agree with the dissent that the statute seeks to protect those who provide labor and materials for real property improvement, but note that the legislature tempered that goal with strict notice requirements. Accordingly, we follow Bridgeport. A contrary rule would grant claimants, who failed to fulfill statutory conditions precedent to recovery, a powerful incentive to salvage their noncompliance for spurious reasons. These claimants could dig for “noncompliance” wholly unrelated to the work the claimants performed and the conditions the claimants failed to meet. This would encourage needlessly expensive and time-consuming litigation and discovery over tangential issues, and trial courts, rather than granting summary judgment because claimants did not fulfill the statutory conditions precedent, could expend further resources on irrelevant issues. Such a rule might also needlessly increase the transaction costs of bonding construction projects because a surety could no longer rely on the notice requirements provided by statute if it erroneously relied on a principal’s representations that, for example, work had not already commenced. Moreover, this contrary rule would serve no purpose other than to relieve the subcontractor from its own failure to comply with the statute’s explicit condition precedent.

The trial court correctly found that the bond was a statutory bond, and we agree with the trial court’s conclusion. We reverse that part of the summary judgment to the effect that the judgment with respect to count two is with prejudice, and remand the case to the trial court, because the matter of whether proper notice was given by Professional Plastering was specifically excluded as a subject of the summary judgment hearing.

The order of the trial court is AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN, SAWAYA, MONACO, LAWSON and EVANDER, JJ., concur.

TORPY, J., concurring in part, and dissenting in part, with opinion, in which PLEUS, C.J., PALMER and ORFINGER, JJ., concur.

TORPY, J.,

concurring in part and dissenting in part.

In this dispute between a subcontractor and a payment bond surety, the primary issue on appeal is whether the bond qualifies as a so-called “statutory” payment bond. The importance of this determination to the parties here is that, if the bond is a statutory bond, the statutory notice provisions (rather than the notice provisions expressed in the bond itself) are preconditions to the action against the surety. Apparently, although not clear from the record, Appellant complied with the notice provisions required by the terms of the bond but not the more stringent provisions required by the statute. Notwithstanding the remand by the majority, it appears that the majority opinion puts a stake through the heart of Appellant’s remaining claim.

Our resolution of this issue is purely a question of legislative intent based on the language of the pertinent provisions of the Construction Lien Law, chapter 713, Florida Statutes. Under the Construction Lien Law, an owner can exempt himself from liens by requiring the contractor to furnish a statutorily qualified payment bond. In this regard, the statute provides:

In any direct contract the owner may require the contractor to furnish a payment bond as provided in s. 713.28, and upon receipt of the bond the owner shall be exempt from the other provisions of this part as to that direct contract....

§ 713.02(6), Fla. Stat. (emphasis added).

To qualify, the bond must, among other statutory requirements,

be furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement under the direct contract, and a copy of the bond shall be attached to the notice of commencement when the notice of commencement is recorded.

§ 713.23(l)(a), Fla. Stat. (emphasis added).

Although the majority acknowledges this language, it concludes that other subsections of 713.23, namely subsections (l)(c) and (2), “contemplate” that a statutory bond need not be furnished before construction is commenced to be effective as to claimants who furnish labor and materials after the bond is furnished. In holding as it has, the majority implicitly holds that the various subsections are contradictory. I disagree.

Neither of the subsections upon which the majority relies contradict subsection (l)(a). Subsection (l)(c) addresses the separate requirement that a qualifying bond be attached to and recorded with the notice of commencement. When the bond is not attached to the notice of commencement or the notice of commencement is not recorded, as required by subsection (l)(a), claimants may not be aware of the bond’s existence. In that circumstance, subsection (l)(c) merely extends the time for claimants to provide statutory notices until after they receive actual notice of the existence of the bond. Thus, subsection (l)(c) deals with the failure to record the bond. In applying this subsection to the instant case, the majority mistakenly equates “furnishing” a bond with “recording” a bond. These are clearly distinct statutory requirements under subsection (l)(a), as evidenced by the use of the conjunction “and” following a comma in subsection (l)(a). To qualify under subsection (l)(a), the bond must be both “furnished” before commencement “and” attached to the recorded notice of commencement. Subsection (l)(c), therefore, is not applicable here where construction began before the bond was furnished.

Subsection (2), also relied upon by the majority, similarly does not contradict subsection (l)(a). It merely states what effect the bond has on “liens.” When a proper bond is provided, subsection (2) states that the bond secures all subsequent liens, thereby exempting the owner’s property, an essential purpose of the payment bond statute. The bond to which subsection (2) refers is the bond specified in subsection (l)(a). Otherwise, subsection (l)(a) becomes superfluous, because, under the majority’s interpretation of subsection (2), any bond could exempt the owner’s property. Clearly, that is not intended.

As an apparent alternative to its statutory analysis, the majority holds that literal compliance with section 713.23(l)(a) is not required here because this particular claimant furnished labor and materials after the bond was furnished and was not harmed by the delay. Thus, the majority reaches the paradoxical conclusion — without any statutory support — that the same bond can be a “statutory” bond as to some claimants but a “common law” bond as to others. Under a logical extension of the holding of the majority, any of the statute-ry criteria for 713.23 bonds may be circumvented when no actual harm results from the failure to strictly adhere to the legislative criteria. For example, if the bond is not furnished in “at least the amount of the original contract price,” but if the amount is sufficient to pay all outstanding claims, the majority apparently would conclude that no harm equates to statutory compliance. But see Gen. Elec. Co. v. Commercial Standard Ins. Co., 335 So.2d 624, 625 (Fla. 1st DCA 1976) (actual prejudice notwithstanding, § 713.23 bond must be furnished in amount of contract to qualify as statutory bond).

I disagree with the “no prejudice” analysis of the majority. The lien statute is entirely a legislative creation, and we are obligated to enforce it in accordance with the clear, manifest intent of the legislature. Hunt Truck Sales & Serv., Inc. v. Bonanza Const., Inc., 353 So.2d 612, 613 (Fla. 4th DCA 1977) (section 713.23 bond must comply with provisions of that section). Furthermore, even assuming that the lack of prejudice may excuse strict performance under section 713.23, in excusing the surety from the technical nuances of the statute, the majority affords disparate treatment to sureties and claimants. If sauce for the goose is sauce for the gander, claimants should be excused from compliance with statutory notice provisions when the surety is not prejudiced. Unless a payment bond surety has released its principal before learning of the claim, it would not appear that the surety is prejudiced by untimely notice.

Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002), upon which the majority relies to support its “no prejudice” analysis is inapposite. That case dealt with a public project payment bond under the provisions of section 255.05, Florida Statutes. The distinction is significant because the public project payment bond statutory scheme contains an unambiguous expression of legislative intent that public project payment bonds must be construed as statutory bonds and “shall not under any circumstances be converted into common law bonds.” § 255.05(4), Fla. Stat. (2005). In light of this express legislative mandate, the court in Florida Crushed Stone Co. held that to construe a nonconforming public project payment bond as a common law bond would be “contrary to the express language of the statute.” Id. at 716. See also Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360 (Fla.2005) (noting 1980 legislative change to § 255.05, precluding courts from construing deficient statutory bond as common law bond).

The disposition I advocate is not one of form over substance. A subcontractor or supplier should be able to make an objective determination of whether a bond qualifies as a statutory bond based upon the application of unambiguous statutory criteria. See WMS Const., Inc. v. Palm Springs Mile Assocs., Ltd., 762 So.2d 973, 975 (Fla. 3d DCA 2000) (question subcontractor must successfully resolve, or risk the loss of its compensation, is nature of bond). But even if substance does give way to form here, the courts have uniformly enforced the technical niceties of the Construction Lien Law in a strict fashion without regard to considerations of equity or actual prejudice. See, e.g., W.W. Plastering, Inc. v. Chism Const. Inc., 867 So.2d 600, 602 (Fla. 1st DCA 2004) (lien law is a creature of statute and must be strictly construed); Zalay v. Ace Cabinets of Cleanvater, Inc., 700 So.2d 15, 17 (Fla. 2d DCA 1997) (Florida construction lien laws must be strictly construed).

Under the holding of the majority, the surety may escape liability to a claimant under a payment bond for a risk that it clearly assumed. If this occurs, Appellant will not be paid for its labor and materials. This result flies in the face of the fundamental purpose of the Construction Lien Law, which is to protect those who have provided labor and materials for the improvement of real property. WMS Const., Inc., 762 So.2d at 974-75. If that is where the chips fall when both claimant and surety are treated alike, then so be it. Here, however, the surety may unfairly escape liability by insisting that the claimant strictly comply with statutory notice provisions while at the same time successfully arguing that its strict compliance with the very same statute is excused. This result is simply not fair. I would reverse the lower court’s determination that the bond was statutory.

I concur with the majority that the trial judge erred in dismissing count II with prejudice because the record does not conclusively establish that Appellant failed to satisfy statutory conditions precedent.

PLEUS, C.J., PALMER and ORFINGER, JJ., concur.

      . We note that, even if different notice requirements applied, an assumption undermined by the amendment, such a difference does not constitute "expanded coverage” sufficient to transform a statutory bond into a common law bond. See Nat’l Fire Ins. Co. of Hartford v. L.J. Clark Constr. Co., Inc., 579 So.2d 743, 745 (Fla. 4th DCA 1991).

      . We applied a similar principle to fashion a remedy in a public construction bonding case, noting that "it would be unfair to insist on the timely performance by the claimant when such nonperformance was caused by the failure of the bond to be recorded." Fla. Crushed Stone Co. v. Am. Home Assurance Co., 815 So.2d 715, 717 (Fla. 5th DCA 2002) (emphasis added); see also Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 367 (Fla.2005) (approving Florida Crushed Stone and overruling opinions holding that companies’ technical noncompliance with section 255.05(6) prevented them asserting statutory notice and time requirements even if claimants were not prejudiced).

      . I only advocate this position alternatively given the majority's determination that the bond is statutory and its disparate application of the "no prejudice” principle. If the bond is a common law bond, as I contend it is, then compliance with unambiguous notice provisions contained therein is required as a matter of contract law.

      . Likewise, Bridgeport, Inc. v. Tampa Roofing Co., 903 So.2d 306 (Fla. 2d DCA 2005), does not support the view of the majority. There, the court held that the bond did comply with the requirements of the statute.

      . Appellant recovered summary judgment against the contractor who is apparently judgment-proof.


source: Caselaw Access Project

author: SHARP, W., Senior Judge.

license: Public Domain

text:
    BEAZER HOMES CORP., Fabian Chiriboga, et al., Appellants, v. Edward BAILEY, Jill R. Bailey, et al., Appellees.
    No. 5D05-2229.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rehearing Denied Oct. 27, 2006.

      Steven L. Brannock, of Holland & Knight LLP, Tampa, and Thomas M. Burke and Christopher Annunziato of Holland & Knight LLP, Orlando, for Appellant.
    Kathleen M. Skambis and Christopher C. Skambis of The Skambis Law Firm, Orlando, for Appellee.
   SHARP, W., Senior Judge.

Beazer Homes Corporation (Beazer), a contractor who sold lots to, and built homes for, the plaintiffs involved in this lawsuit, and Fabian Chiriboga (Chiriboga) and Ralph Rosen (Rosen), Beazer’s sales representatives, appeal from a non-final order that denied their motions to compel arbitration. This lawsuit commenced when four home buyers, the Baileys, the Heningers, the Margolis and the Magees (Buyers) sued Beazer, Chiriboga and Ro-sen, for various causes of action, which stem from alleged oral misrepresentations and failures to disclose, committed by Beazer’s sales agents. Each of the contracts between Beazer and the respective buyers, contain an agreement to arbitrate controversies arising out of the contract. We reverse and remand.

The Buyers alleged that they bought lots and built homes after Chiriboga and Rosen promised them that, from their lot and home, they would have an unobstructed view of a golf course, which was adjacent to the subdivision in which the lots were sold. Beazer owned the lots, but it did not develop the subdivision nor did it have any interest in the golf course. The Buyers alleged that Chiriboga and Rosen convinced them to purchase specific lots “with a golf course view,” for a premium of either $30,000 or $32,000. They were also told that the golf course owner might build a wall that would partially block the view of the golf course, but that this was not likely. However, the sales representatives persuaded the Buyers to construct two story homes with second story balconies (in the cases of three Buyers), to insure that their golf course view would never be blocked. The Buyers further allege that at the time these representations were made, Beazer and its sales representatives knew that the golf course owner planned to construct an eight-foot wall in the near future, as well as plant trees which would totally block the Buyers’ view of the golf course, even from the second stories of their homes.

Thereafter, when the golf course owner revealed to the public its plans to build the wall and to block off the golf course view with the tree landscaping, the Buyers sued the appellants, alleging fraud and violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Each Buyer alleged Beazer and its sales representatives had misrepresented that their lots would have a permanent golf course view, at least from the second story of their homes. The Buyers alleged that they relied on those misrepresentations and failure to disclose, which was known to Beazer and its sales representatives. As a result, the Buyers averred that they suffered damages, in the form of the premium price paid for their lots, and the cost of the balcony options. For the fraud count, the Buyers sought only a damage remedy. The FDUTPA counts are based on the same set of facts, and the Buyers sought damages and an award of attorney fees.

The Buyers disclose in their complaint that the covenants and restrictions in the Public Records for their subdivision expressly do not guarantee a view of the golf course by the developer, an entity different than Beazer, or the homeowners association. Paragraph 2 of Article XII provides:

Neither the Developer nor the Association guarantees or represents that any view over and across the Golf Course from adjacent or approximate Lots will be preserved without impairment. Neither the Developer, the Association nor the owner of the Golf Course will have any obligation to prune or thin trees or other landscaping, and the owner of the Golf Course will have the right, in its sole and absolute discretion, to operate and maintain the Golf Course in accordance with any standards adopted from time to time by such owner and to add and remove trees, walls, fences and other landscaping to and from the Golf Course from time to time. In addition, the owner of the Golf Course, in its sole and absolute discretion, may change the location, configuration, size and elevation of the trees, bunkers, fairways and greens on the Golf Course from time to time. Any such additions or changes to the Golf Course may affect the view of the Golf Course from the Lots.

Appellants responded to the Buyers’ complaint by moving to abate and to compel arbitration based on the sales contract signed by Beazer and the Buyers. Article X.C. of the contracts provides:

Should a controversy, claim or dispute arise out of this contract, Buyer(s) shall submit to binding arbitration. Seller and Buyer hereby agree to a waiver of a jury trial.

Appellants argued that claims for fraud in the inducement directed to the entire agreement or provisions other than the arbitration clause contained within the agreement, should be resolved by arbitration, and that counts brought under FDUTPA should also be properly submitted to arbitration. Chiriboga and Rosen argue that the counts filed against them, in their individual capacities, should be arbitrated as well, because they are agents of Beazer, and the causes of action against them are interdependent with claims against Beazer.

The Agreements of Sale also contain an integration provision in Article X. CONTRACT, A.

This contract supersedes all prior contracts between the parties here to. There are no collateral understandings, representations or agreements other than those contained herein or added by written instrument attached hereto, duly executed by Buyer and Seller. No salesman, employee, agent or seller has any authority to modify the terms hereof, or make agreements, representations, or promises which might postpone, limit, modify, or extinguish the terms hereof. No agreement or representation has been made by Seller, its agent or representatives to obtain any loan for Buyer or to guarantee the Buyer will secure any loan.

There is no mention in the contracts of any golf course view.

The trial court denied the motion to compel arbitration, without giving reasons. Our review of this issue is de novo. See Vacation Beach, Inc. v. Charles Boyd Construction, Inc. 906 So.2d 374 (Fla. 5th DCA 2005)(Florida law); Qubty v. Nagda, 817 So.2d 952 (Fla. 5th DCA 2002)(federal law); Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001)(Florida law); Florida Title Loans, Inc. v. Christie, 770 So.2d 750 (Fla. 1st DCA 2000)(Florida law). The case sub judice involves the application of Florida law, rather than federal law.

The Buyers argued below, as well as on appeal, that the cause of action for fraudulent inducement is not within the scope of the arbitration provision. Seifert v. U.S. Home Corporation, 750 So.2d 633 (Fla.1999), applying Florida law, describes the kind of arbitration clause involved in this case as “narrow” rather than “broad” because it refers only to disputes arising “out of’ the contract, rather than “relating to” the contract. Thus, they maintain, the scope of such a narrow arbitration provision encompasses only claims having a direct relation to the terms and provisions of the contract, its interpretation and performance. They submit that fraud in the inducement claims should be excluded under state law, even though under federal law, they would be included.

The Buyers also argue that the essence of this controversy is a tort. Fraudulent inducement involves a contract only tangentially. The controversy does not concern the duties and obligations of the parties regarding the construction and sale of the homes. The allegations merely relate to a duty owed the general public not to lie and make false representations to induce a sale of real estate. They argue that Sei-fert has decreed that such tort causes of action are not even within the scope of a broad arbitration clause. They also argue that Chiriboga and Rosen cannot require arbitration because they are not parties to the contract.

1. Scope of the Arbitration Provision— Fraud in the Inducement Claims

As a matter of pure logic, if a contract is entered into because of the fraud or misrepresentations of one party, the whole contract should fail, including any agreement to arbitrate contained in the contract. However, that is not the course which case law has taken. Beginning with Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the majority ruled that if the alleged fraud related to the arbitration clause itself, then a court should resolve the issue. But if the fraud in inducement related to the whole contract which contained an agreement to arbitrate, that issue should be resolved by arbitration. The three dissenting judges described the majority holding as “fantastic.”

If there has never been any valid contract, then there is not now and never has been anything to arbitrate. If Pri-ma’s allegations are true, the sum total of what the Court does here is to force Prima to arbitrate a contract which is void and unenforceable before arbitrators who are given the power to make final legal determinations of their own jurisdiction, not even subject to effective review by the highest court in the land.

388 U.S. at 425, 87 S.Ct. 1801.

Granted the arbitration provision in Pri-ma Paint was broader than the one involved in this case, and the Court was interpreting federal law, nevertheless, the courts in this state have followed that ruling in fraud in the inducement cases, almost without exception, whether applying federal or state law. In Florida Dept. of Ins. v. World Re, Inc., 615 So.2d 267 (Fla. 5th DCA 1993), applying federal law, this court applied federal law in determining that a controversy involving fraud in the inducement directed at the totality of a contract, was not properly sent to arbitration because the scope of the arbitration provision was so narrow, i.e. “an irreconcilable difference of opinion [arising] as to the interpretation of this certificate.”

However, the World Re opinion recognized that Prima Paint holds that a claim of fraudulent inducement may be within the scope of an arbitration agreement. It cited federal cases which have required arbitration for fraud in the inducement claims under arbitration provisions similar to the one involved in this case. Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840 (2d Cir.1987)(“all claims and disputes of whatever nature arising under this contract”); S.A. Mineracao Da Trindade-Samitri v. Utah Int’l, Inc., 745 F.2d 190 (2d Cir.1984)(“any question or dispute arising] or occur[ring] under” the agreement).

In Medident Construction, Inc. v. Chappell, 632 So.2d 194 (Fla. 3d DCA 1994), the court applied state law, but followed the Prima Paint ruling. In that case, a dispute involved a construction contract, which contained an arbitration provision that “all disputes between the parties” would be submitted to arbitration. That arbitration clause is no broader than the one involved in this case. The court ruled:

The issue on appeal is whether the initial validity of the contract as a whole is to be decided by the trial court or by arbitration pursuant to the arbitration clause in the contract. Where fraud or some other ground for avoidance or invalidity of contract is alleged as to an entire agreement rather than specifically as to the arbitration clause contained within that agreement, the entire matter should be resolved by arbitration, [citations omitted] Only if the attack is specifically and exclusively directed toward the arbitration clause or a separate agreement to arbitrate may the court try the issue before submitting the balance of the dispute to arbitration.

Id. at 194.

As in this case, the validity of the arbitration clause itself was not challenged. All of the allegations attacked the contract as a whole. The Medident court concluded that the relief sought by the plaintiff below (a declaration of the parties’ rights under the contract, compensatory and punitive damages and fees pursuant to the contract), was within the scope of the arbitration provision.

In Great Western Financial Securities Corp. v. Grandison, 701 So.2d 1202 (Fla. 5th DCA 1997), which applied federal law, this court ruled that a fraud and civil theft dispute should be arbitrated, based on an arbitration clause which provided “all controversies between the parties” would be submitted to arbitration, citing Medident, and other Florida court of appeal decisions. See also Micronair, Inc. v. City of Winter Haven, 800 So.2d 622 (Fla. 2d DCA 2001). That arbitration clause is no broader than the one involved in this case.

In Qubty, this court applied federal law, but said it was the same under Florida law, in ruling that a fraud in the inducement claim was within the scope of an arbitration provision requiring arbitration of “all controversies that may arise between us concerning any order or transaction, or the continuation, performance or breach of this or any other contract between us.” That arbitration clause is also no broader than the one involved in this case.

A line of cases which diverges from Pri-ma Paint holds that where a party seeks to rescind a contract based on fraud in the inducement, the arbitration provision in the contract itself is not enforceable. The rationale is similar to that employed by the Prima Paint minority quoted above: If there is no contract, there can be no arbitration clause “of the contract.” See Sanchez v. Criden, 899 So.2d 326 (Fla. 3d DCA 2005); Diez-Sierra v. Aguera, 762 So.2d 557 (Fla. 3d DCA 2000); Borck v. Holewinski, 459 So.2d 405 (Fla. 4th DCA 1984). A trial court, as well as the appellate court, must determine whether “true rescission” is sought, as opposed to partial rescission in conjunction with a claim for damages and other relief. Borck.

However, this exception to the Prima Paint rationale is limited to cases where only rescission is sought, and where the controversies between the parties have no relation to the contract itself. As Judge Aldrich noted in Lummus Co. v. Commonwealth Oil Refining Co., 280 F.2d 915 (1st Cir.1960), arbitration provisions could prove easily avoided, if breach of contract claims recast in terms of fraud, sufficed. If the cause of action essentially seeks damages for deceit or fraud, and involves an affirmance of part of the contract, the arbitration clause in the contract should be given force and effect. These kinds of disputes can be said to involve “voidable” as opposed to “void” contracts. In the case of void contracts, arbitration clauses in the contract may be unenforceable until the legality of the contract is determined.

In this case, the fraud in inducement claims could have been restated as breach of contract claims because the Buyers do not seek rescission of the entire contract but rather only damages. And it may be impossible to obtain complete rescission under the circumstances in this case. Further, as noted above, there is an integration clause in the sales contract, which may affect the outcome of this case, and thus, the resolution of controversies necessarily will involve an interpretation of the sales contracts.

Nor do we think other cases denying enforcement of arbitration clauses in other contexts are applicable to this case. In Grosseibl v. J. Chris Howard Builders, Inc., 739 So.2d 1255 (Fla. 5th DCA 1999), which applied Florida law, this court ruled that an arbitration provision in a home warranty which applied to breach of warranty claims, did not apply to claimed construction and building code defects because the warranty expressly excluded such claims and the warranty was separate from the construction contract. In this case there is only one contract.

In Citigroup, Inc. v. Amodio, 894 So.2d 296 (Fla. 4th DCA 2005) and Episcopal Diocese of Central Fla. v. Prudential Securities Inc., 925 So.2d 1112 (Fla. 5th DCA 2006), both of which applied federal law, the courts rejected compelled arbitration of disputes because they were outside the scope of the arbitration provisions. In Amodio, an investor sued for negligent misrepresentation and fraud, based on losses for having retained WorldCom stock in his account. The account agreement required arbitration of “all controversies which may arise concerning any order or transaction of the construction, performance or breach of this agreement.” The investor later sought advice from an analyst with a company unrelated to the holder of his investment account, who told him not to sell WorldCom. The investor relied on the advice and lost all value from his WorldCom portfolio. Both the trial court and the appellate court read the scope of the arbitration agreement narrowly, and determined that the dispute did not involve orders, transactions or performance of the investment agreement, and thus arbitration could not be compelled. However, in this case, the arbitration clause is broader and requires arbitration of any claim, dispute or controversy arising out of the contract.

Similarly, the Episcopal Diocese case narrowly construed the arbitration clauses involved. One required arbitration of “all controversies which may arise between us concerning any transaction, ... my account, or any other agreement between us.” The other clause required arbitration of all controversies that “may arise between us concerning any transaction or the construction, performance or breach of this or any other agreement.” In that case, the essence of the claim was that the investment company failed to warn its client, after the client left the investment company, against placing its account with a former employee of the investment company, when the investment company knew the employee had mishandled the client’s account and had been fired by it for cause. The court determined that the scope of the arbitration clause did not encompass breach of a common law duty to warn, after termination of the investment agreement, and noted the narrow language of the arbitration clause itself, which limited its scope to disputes about transactions in the account and the construction and performance of the investment agreement. The arbitration clause in the case at issue is not so limited.

II. Impact of Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999).

The Buyers contend that Seifert has impacted the Prima Paint line of cases, by removing from arbitration, tort and fraud claims, such as those asserted in this case. We disagree. Seifert does emphasize the importance of the broad or narrow language used in arbitration provisions. But as demonstrated above, the arbitration language used in this case has been considered sufficient to require arbitration of fraud in the inducement claims by both state and federal courts, interpreting state and federal law.

Seifert carved out of the requirement to arbitrate under state law the kind of tort claims that are based on a general duty owed to all people, regardless of whether or not they were parties to a contract, such as personal injury claims in the context of defective design and strict liability. In Seifert, a homeowner who had signed a contract with the builder, filed a wrongful death case against the builder after her husband died, due to a defective building design which allowed the air conditioning system to pick up carbon monoxide gas from the garage and carry it into the home. The court described the essence of that controversy as a subsequent and independent tort, based on common law principles. It was merely fortuitous that the plaintiff had signed a contract with the defendant. The duty of providing a safe design was owed to the public generally, not just the parties to the contract.

However in this case, the duties and relationships of the parties were created only by the sales contract. No third persons could have sued Beazer under these circumstances, although indeed, there is a general common law duty not to lie or misrepresent facts in connection with selling real estate.

In Kaplan v. Kimball Hill Homes Florida, Inc., 915 So.2d 755 (Fla. 2d DCA 2005), applying Florida law, the court dealt with an arbitration clause in a contract between a home purchaser and builder, and the purchaser’s law suit for fraud and fraud in the inducement. The purchasers claimed the builder made false statements regarding its ability to complete the home in the time required by the contract, and failed to disclose facts regarding water runoff and drainage from an adjacent property, as well as obstruction by landscaping of the golf course view from the home site. The arbitration clause required arbitration of “any controversy or claim between the [parties] relating to this agreement or ... the home or the project or community in which the home is located, whether the controversy or claim arose or is based upon actions and occurrences before or after the date of this agreement.”

The court ruled that the disputes fell within the scope of the arbitration provision, and that the legal label attached to the dispute, tort or breach of contract, is not controlling. It noted that the arbitration clause in this case was “broad,” but it also said that tort claims based on duties that are dependent on'the existence of a contract are normally arbitrable. It found that there was an undeniable nexus between the disputes and the contract, and that the resolution of those issues would necessarily require reference to the contract. It followed the Prima Paint rule that since the claim attacks the entire contract rather than specifically the arbitration provision, the dispute must be resolved by the arbitrators.

Similarly in Maguire v. King, 917 So.2d 263 (Fla. 5th DCA 2005)(apparently applying Florida law), this court held that fraud in the inducement claims regarding a sale of real property were subject to arbitration by a broad arbitration clause in the contract. The purchaser claimed he had been promised two acres of drainage rights but had only received one. Applying Seifert, this court held that a dispute arises from a contract if it at least raises an issue that requires reference to or construction of some portion of the contract for resolution. Thus the tort claims based on duties created by a contractual relationship between the parties are normally arbitrable. It cited with approval many Florida appellate decisions which have held, both before and after Seifert, that a claim of fraud in the inducement does not preclude enforcement of an arbitration provision.

Stacy David, Inc. v. Consuegra, 845 So.2d 303 (Fla. 2d DCA 2003), involved fraud in inducement claims or negligent misrepresentations arising in the context of a contract to buy a car. The contract contained a broad arbitration clause. The court held that fraud in the inducement claims regarding purchases of automobiles are dependent on the contract and are considered as arising out of or relating to the contract. It cited cases before and after Seifert, and concluded that Seifert did not change this line of cases. We agree.

III. FDUTPA Claims Subject to Arbitration.

Claims brought under FDUTPA have been held to be subject to arbitration if a contract between the parties provides for arbitration. For example, In Aztec Medical Services, Inc. v. Burger, 792 So.2d 617 (Fla. 4th DCA 2001), the disputes involved numerous contracts between the parties concerning how doctors would render healthcare services to individuals covered under a health care provider’s health benefit contract and how they would be compensated. The doctors brought suit alleging breach of contract, and violations of FDUTPA, which rested on the same facts and were parallel to the breach of contract claims. The court held that the arbitration provision was broad enough to encompass the FDUTPA claims. It provided: that “any dispute” between the parties about their “business relationship” would be submitted to arbitration.

Merely because the dispute or claim is founded on breach of a statute rather than breach of contract, does not exempt it from arbitration. See Prudential Securities, Inc. v. Katz, 807 So.2d 173 (Fla. 3d DCA 2002). If the statutory cause of action is based, as in this case, on matters growing out of a contract which covers the dispute, and relies on the same facts as the dispute which is subject to arbitration, there is no basis to exclude the FDUTPA issue from arbitration.

Where claims of fraud are alleged based on the FDUTPA, Florida courts have refused to enforce arbitration clauses on only a limited basis, such as where the arbitration clause is unconscionable, Fonte v. AT & T Wireless Services, Inc., 903 So.2d 1019 (Fla. 4th DCA 2005); Stewart Agency, Inc. v. Robinson, 855 So.2d 726 (Fla. 4th DCA 2003); where it is against public policy, Presidential Leasing, Inc. v. Krout, 896 So.2d 938 (Fla. 5th DCA 2005); or where the provision is deemed to limit access to the courts, Value Car Sales, Inc. v. Bouton, 608 So.2d 860, 861 (Fla. 5th DCA 1992). Thus, arbitration under the FDUT-PA rises or falls on grounds such as equity, public policy, or constitutional prohibition. None of these grounds was alleged in the complaints in this case.

IV. Sales Representatives of Beazer Entitled to Compel Arbitration.

The Buyers argue that Chiriboga and Rosen are not entitled to enforce the arbitration provision because they are not parties to the sales contracts. However both Florida courts and the federal courts have recognized that non-signatories can compel arbitration by a signatory, when the proceeding concerns actions taken by the non-signatory/agent of a signatory. See Koechli v. BIP International, Inc., 870 So.2d 940, 944 (Fla. 1st DCA 2004); Liberty Communications, Inc. v. MCI Telecommunications Corp., 733 So.2d 571 (Fla. 5th DCA 1999); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Melamed, 453 So.2d 858, 860 (Fla. 4th DCA 1984). Logically a corporation cannot act except through its agents.

In this case, the alleged misrepresentations or failures to disclose were accomplished by Beazer employees, Chiriboga and Rosen, on Beazer’s behalf. There is no allegation that Chiriboga or Rosen acted separately and independently from Beazer, and the allegations against them mirror the allegations against Beazer. In sum, the counts against Beazer rely entirely on the actions of its agents, Chiriboga and Rosen. Under such circumstances, equitable estoppel establishes the agents’ ability and entitlement to compel arbitration. See Armas v. Prudential Securities, Inc., 842 So.2d 210, 212 (Fla. 3d DCA 2003); Koechli.

REVERSED and REMANDED.

PLEUS, C.J., and TORPY, J., concur in result only.

      . See Fla. R.App. P. 9.130(a)(3)(C)(iv).

      . See Jensen v. Rice, 809 So.2d 895 (Fla. 3d DCA 2002).

      . See Vacation Beach, Inc. v. Charles Boyd Construction, Inc., 906 So.2d 374 (Fla. 5th DCA 2005); Micronair, Inc. v. City of Winter Haven, 800 So.2d 622 (Fla. 2d DCA 2001); Riverwalk Apartments, L.P. v. RTM General Contractors, Inc., 779 So.2d 537 (Fla. 2d DCA 2000); Florida Title Loans, Inc. v. Christie, 770 So.2d 750 (Fla. 1st DCA 2000) (arbitration clause unenforceable when one party unilaterally rescinds the contract and the other seeks to reinstate it); Party Yards, Inc. v. Templeton, 751 So.2d 121 (Fla. 5th DCA 2000).

      . See e.g., Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74, 77 (Fla. 3d DCA 1997). But see Rodriguez v. Tombrink Enterprises, Inc., 870 So.2d 117 (Fla. 2d DCA 2003); Mejia v. Jurich, 781 So.2d 1175 (Fla. 3d DCA 2001).

      . It is impossible to ascertain from the opinion whether Florida or federal law was applied.

      . See Orkin Exterminating Co. v. Petsch, 872 So.2d 259 (Fla. 2d DCA 2004); Stacy David, Inc. v. Consuegra, 845 So.2d 303 (Fla. 2d DCA 2003); Value Car Sales, Inc. v. Bouton, 608 So.2d 860 (Fla. 5th DCA 1992).

      . Cf. Presidential Leasing, Inc. v. Krout, 896 So.2d 938 (Fla. 5th DCA 2005).

      . See U.S. Const., amend. I and XIV; art. 1, section 21, Fla. Const.


author: ALLEN, J.

text:
    Earl Roy BARNHILL, William A. Barnhill, Lance M. Ward, as Personal Representatives of the Estate of Hereford M. Barnhill, Okaloosa Probate Case No.: 03-CP-391-C and Earl Roy Barnhill and William A. Barnhill, Individually, Appellants, v. Glen Edward LOWE and Pamela J. Metcalf, Appellees.
    No. 1D05-5813.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.
    Rehearing Denied Oct. 31, 2006.

      Daniel C. Campbell, Crestview, for Appellants.
    Thomas P. Crapps of Graham & Crapps, P.A., Tallahassee, for Appellee Glen Edward.
    Lowe, and Michael Chesser of Chesser & Barr, P.A., Shalimar, for Appellee Pamela J. Metcalf.
   ALLEN, J.

The appellants, heirs of Hereford M. Barnhill and personal representatives of his estate, challenge a summary final judgment in favor of Appellee Glen Edward Lowe adjudging that his claim to 122 acres of real property located in Okaloosa County, Florida, is superior to that of the appellants because Lowe was a bona fide purchaser of this property from Barnhill’s grantee, Pamela J. Metcalf. The appellants also challenge the trial court’s denial of their motion for summary judgment quieting title in their favor against the claims of Lowe and Metcalf as to a 33-acre portion of this property. Because a plain reading of the deed from Barnhill to Met-calf reveals that this 33-acre portion of the property was never conveyed to Metcalf, and because there were disputed issues of material fact regarding whether Lowe was a bona fide purchaser of the remaining acreage, we reverse the summary final judgment in favor of Lowe in its entirety, and we remand this ease with directions that judgment be entered for the appellants as to the 33-acre portion of the property and that title to the remaining property be resolved through further proceedings in the trial court.

In December, 2002, Barnhill executed and recorded a deed conveying the following to Metcalf:

Southeast 1/4 of Section 27-Lots 1 thru 7 located on Old River Road in Baker, Florida. The total amount of acreage per lot is as follows: Lot #1=10.9392 acres; Lot #2=11.6388 acres; Lot #3=11.6281 acres; Lot #4=11.7264 acres; Lot #5=23.7210 acres; Lot #6=10.1370 acres; Lot #7=10.0213 acres.

It is undisputed that the reference to the seven lots in the deed corresponded to an unrecorded plat in Barnhill’s possession at the time. Thereafter, in June, 2003, following Barnhill’s death, Metcalf executed and recorded a deed conveying the following to Lowe:

SOUTHEAST 1/4 OF SECTION 27* LOTS 1 THRU 7 LOCATED ON OLD RIVER ROAD IN BAKER, FLORIDA. *TOWNSHIP 4 NORTH RANGE 24 WEST. THE TOTAL AMOUNT OF ACREAGE PER LOT IS AS FOLLOWS: LOT# 1=10.9392 ACRES: LOT # 42[sic]=11.6388 ACRES; LOT #3=11.6281 ACRES; LOT #4= 11.7264 ACRES; LOT #5=23.7210 ACRES; LOT # 6 = 10.1370 ACRES; LOT # 7 =10.0213 ACRES.

The appellants were the plaintiffs in the trial court. In the first count of their complaint, they asserted that a 33-acre portion of the 122 acres claimed by Lowe was conveyed to neither Metcalf nor Lowe. In the second count, they asserted that the conveyance of the remaining acreage to Metcalf was procured through undue influence, that Lowe paid less than full consideration to Metcalf, and that Lowe was on notice of their claims at the time of the conveyance to him. Concluding that all of the 122 acres in dispute were conveyed from Barnhill to Metcalf and from Metcalf to Lowe, and that the undisputed material facts demonstrated that Lowe was a bona fide purchaser for value and without notice of the appellants’ claims to the property, the trial court entered summary final judgment in favor of Lowe and against the appellants as to both counts of their complaint.

Although the trial court accepted Lowe’s argument that the deeds from Barnhill to Metcalf and from Metcalf to Lowe conveyed the entire southeast 1/4 of section 27, a plain reading of these deeds reveals that they did not. The reference to the southeast 1/4 of section 27 was plainly nothing more than a reference to the general area within which the specifically described lots being conveyed were located. This general reference does not control over the very clear and specific description of the individual lots being conveyed. Because the 33-acre portion of the disputed property for which the appellants sought summary judgment does not lie within any of the specifically described lots, the trial court erred in denying the appellants’ motion for summary judgment in their favor as to these 33 acres.

The trial court also erred in its ruling that there were no genuine issues of material fact as to whether Lowe was a bona fide purchaser without notice as to the remaining acreage. It is axiomatic that a grantee who takes title to real property with actual or constructive knowledge of the claims of third parties is subject to those claims. Moyer v. Clark, 72 So.2d 905 (Fla.1954).

In his sworn statements, Lowe asserted that Metcalf approached him and represented that she owned 122 acres of land that she would sell for $40,000. Lowe testified that he agreed to this sum and executed a mortgage in this amount payable to Metcalf, but Lowe testified further that he had retained possession of this mortgage and that the mortgage had not been recorded. He claimed that he had been making payments on the mortgage debt. Lowe denied providing any other consideration for the land, although he represented that Metcalf had separately purchased a vehicle from him (a Lincoln) and that he had later referred her to his step-grandfather, a local attorney, when she told him she needed some legal help. Lowe claimed that he took title to the property without any actual or constructive notice of any possible claim to the property by anyone other than Metcalf.

Metcalf testified in her deposition that before Lowe became involved, a couple offered her $7,000 per acre for one of the lots, but that she was unable to sell the lot because the property was “all tied up in probate.” She claimed that she still owned the entire parcel and would try to get this same couple to renew their offer. When asked about the deed in which she had purportedly conveyed this very property to Lowe, Metcalf stated that she contacted Lowe when the probate and “all this other stuff come up,” and that he offered to help her “just kind of get all this mess taken care of where I could — you know, just kind of go on with my life, I reckon.” “Just by, you know, helping me get all this stuff taken care of with the land and, I guess, getting mine back.”

When Metcalf was asked to detail the understanding she had reached with Lowe, Lowe interrupted Metcalfs deposition and suggested that she go outside and speak with his step-grandfather, who was the attorney then representing both Lowe and Metcalf. She did so, and then, upon returning, stated that Lowe offered to buy the property in exchange for two vehicles (a 1992 Lincoln Town Car and a 1995 Geo Tracker), $40,000 in cash (that would not be paid until “the deal is over and done with”), and some “help.” She later explained that the “help” was for Lowe to provide a lawyer for her, and she clarified that she had not yet been paid any money for the property. She also alleged that there was nothing in writing other than the deed that would reflect her agreement with Lowe. She then claimed that she actually had another deal with him, one in which he would return lots four and five to her, “the original lot that I wanted as my own,” if she paid for the legal services he had secured. When asked how she was gaining any benefit by selling 122 acres to Lowe for $40,000 after having been offered $70,000 for just one ten-acre lot, she stated, “Well, I guess by [him] paying [attorney]^ fees.”

It is apparent that there are serious questions regarding whether the purported conveyance between Metcalf and Lowe was an arms-length transaction in which Lowe acted in good faith and without actual or constructive knowledge that there was a challenge to the validity of Metcalfs title to the property. Metcalf and Lowe do not agree as to the amount and nature of the consideration paid by Lowe for the property. They do not agree as to whether any of the consideration had been paid at the time of the underlying litigation. They do not agree as to whether a mortgage was provided to secure Lowe’s obligation to make payment for the property, a mortgage which — if it indeed exists— oddly, has never been recorded, and even more oddly, is in the physical custody of the purported mortgagor. And, most importantly, they do not agree as to whether Lowe was aware of problems Metcalf was having regarding the title to the property when the property was purportedly conveyed from Metcalf to Lowe. Lowe claims that he knew of no claim to the property by any third party, but Metcalf seems to claim that a significant consideration in her decision to convey the property to Lowe was his promise to help her with her legal problems relating to the property. In light of the genuine issues of material fact revealed by the conflicts between the sworn statements of Lowe and Metcalf, the trial court erred in entering summary final judgment for Lowe on the theory that he was a bona fide purchaser of the property.

The summary final judgment is reversed, and this case is remanded with directions that judgment be entered in favor of the appellants as to the first count of their complaint and that the second count of their complaint be reinstated.

KAHN, C.J., and BARFIELD, J., concur.


author: PER CURIAM. ERVIN, J.,

text:
    The DOCTORS COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF INSURANCE as Receiver of Caduceus Self-Insurance Fund, Inc., Appellee.
    No. 1D05-5643.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.
    Rehearing Denied Nov. 2, 2006.

      Arthur J. England, Jr., and Edward G. Guedes of Greenberg Traurig, P.A., Miami; Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee; William R. Clayton of Greenberg Traurig, P.A., Fort Lauderdale; Michael P. Dickey of Barron, Redding, Hughes, Fite, Fen-som, Sanborn & Kiehn, Panama City, for Appellant.
    Eric Scott, Senior Attorney, Department of Financial Services, Tallahassee; Theodore R. Doran, Aaron R. Wolfe, Scott R. Rost, and Carolyn S. Ansay of Doran, Wolfe, Rost, Ansay & Kundid, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, The Doctors Company, appeals an adverse final judgment awarding the Department of Financial Services $17.9 million in damages and prejudgment interest in a breach of contract action. Appel-lee is the receiver of Caduceus Self Insurance Fund Inc., a self-insurance medical malpractice trust. Appellant asserts that the trial court reversibly erred by excluding the testimony of Appellant’s expert witnesses and by denying Appellant’s motion for a continuance filed on the eve of trial.

We affirm because the trial court did not err on either issue and therefore did not abuse its discretion.

Factual Background

Caduceus was created by several Florida physicians in thé 1970s. In 1998, Caduceus entered into a contract with Appellant, a California-based insurance entity looking to expand its operations into Florida. Under the terms of the Master Agreement, Appellant acquired Caduceus’s offices, including its staff and its relationships with its agents throughout Florida. Appellant primarily authored the Agreement. Both parties agree that the Agreement is “unambiguous, integrated, and should be enforced pursuant to [its] clear terms.”

In exchange for Caduceus’s assets, Appellant agreed to pay Caduceus business fees for each new insured and for the cumulative profit generated by its Florida operations from 1999-2002. The Agreement specifically defined the term “cumulative profit.”

Although Appellant succeeded in Florida, it declined to pay any new business fees or cumulative profit to Caduceus. Caduceus had planned to pay its malpractice claims with money received from Appellant, but when Appellant failed to pay, Caduceus lacked sufficient cash to pay its claims. The State declared Caduceus insolvent and placed it in receivership. Under the liquidation order and Chapter 631, Florida Statutes (2000), Appellee was responsible for collecting all debts owed to Caduceus. Appellee determined that Appellant failed to account for, calculate, and pay Caduceus the cumulative profit earned by Appellant, as required by the Agreement. Accordingly, Appellee filed a breach of contract action in February 2002.

Procedural and Evidentiary Context of Trial Court’s Rulings

In August 2004, the trial court told both parties that once the court set the case for trial, it would not postpone the trial date. Nearly six months later, approximately three years after it filed suit, Appellee requested that the court set a trial date, and Appellant did not object.

In April 2005, the trial court issued an order setting the case for trial in September 2005. The order required Appellee to list and designate all of its witnesses no later than 90 days before trial. Appellant was required to list its witnesses no later than 60 days before trial. The order warned the parties that no “document or witness not contained in the above-referenced lists will be permitted to be introduced or to testify at the time of trial, except by order of the court after showing of good cause.” (Emphasis added.)

In May 2005, Appellant sent Appellee two interrogatories. In response to one interrogatory, Appellee listed its expert witness, Edward Buttner, a certified public accountant, and later supplemented its answer with a detailed explanation of Mr. Buttner’s opinion and a full description of his calculation of damages. In July 2005, Appellant disclosed the name of its expert, James Schacht, but conducted little discovery and took no depositions before this time.

One day before trial Appellant moved to amend its witness list, seeking to add Jeff Donaldson, Chief Actuary, as a witness. The trial court denied Appellant’s motion, finding that (1) the issues sought to be addressed by Mr. Donaldson were “obvious and apparent”; (2) Appellant waited too long to disclose Mr. Donaldson; and (3) allowing Mr. Donaldson to testify would prejudice Appellee.

At trial, Appellee’s expert, Mr. Buttner, testified that he calculated the cumulative profit due to Appellee based on Appellant’s annual statements and other data provided by Appellant. Mr. Buttner testified that based on this data, Appellant generated $14.1 million in cumulative profit which it failed to pay Caduceus, as required under the Agreement.

During Appellant’s case-in-chief, Mr. Schacht testified as an “expert in the field of insurance industry transactions and custom and usage.” Appellee objected to his expert opinion testimony based on section 90.705(2), Florida Statutes (2005). Appel-lee then conducted a thorough voir dire of Mr. Schacht, and Appellant proffered his testimony. On proffer, Mr. Schacht testified that he is neither a certified public accountant nor an actuary, and that he had spent no more than 20 hours preparing for trial. Mr. Schacht testified that he arrived at his opinion by reviewing deposition summaries completed by two subordinate employees. These employees also reviewed Mr. Buttner’s report for Mr. Schacht.

Mr. Schacht further testified that Mr. Buttner’s cumulative profit calculation was flawed because it failed to take into account loss reserves, as required under Florida law, therefore, Mr. Buttner’s profit calculation was somehow inflated. Mr. Schacht further claimed that Mr. Buttner employed defective methodology by equating the term “collected premium” with the amount of reported written premiums, even though the written premiums may not have actually been received during the contractual period. Mr. Schacht, however, did not, and could not, provide his own “cumulative profit” calculation, and he could neither agree nor disagree with any of the figures which formed the basis of Mr. Buttner’s calculation.

After hearing arguments regarding Mr. Schacht’s testimony, the trial court granted Appellee’s motion to exclude his testimony. The trial court found that Mr. Schacht’s testimony was not relevant or material, and that it would not assist the jury in reaching an informed decision. The court reasoned that Mr. Schacht could not establish a foundation on which to offer an expert opinion because the three sources on which his opinion depended were unreliable and were not the type of sources upon which experts in the field normally relied. These three sources were: (1) Appellant’s attorney; (2) an actuary at Mr. Schacht’s consulting firm who had informally discussed the matter with Appellant’s actuary; and (3) Mr. Schacht’s “suspicion” that Appellant’s annual statements did not include bulk reserves.

Appellant then called its chief financial officer, David Preimesberger, as both an expert and a fact witness. The trial court excluded Mr. Preimesberger’s opinion testimony because he was not timely designated as an expert pursuant to the trial court’s order. During Mr. Preimesber-ger’s lay testimony, he acknowledged that he was not personally involved in preparing any cumulative profit calculations. Although Appellant’s controller previously answered interrogatories relating to cumulative profit calculations, Appellant did not call the controller as a witness.

The jury returned a verdict in favor of Appellee and awarded damages in the amount of the cumulative profit as deter-' mined by Mr. Buttner.

Exclusion of Appellant’s Expert Witnesses

In our consideration of the trial court’s ruling excluding the testimony of Appellant’s expert witness, we apply the well established standard of review that “acceptance or rejection of expert testimony is a matter within the sound discretion of the lower tribunal, and such decision will not be overturned on appeal absent a showing of abuse of discretion.” Gray v. Russell Corp., 681 So.2d 310, 316 (Fla. 1st DCA 1996). We find that Appellant has failed to demonstrate reversible error because the trial court did not abuse its discretion and, in fact, correctly excluded Mr. Schacht’s testimony.

The trial court’s decision to exclude Mr. Schacht’s testimony was controlled by section 90.705(2), Florida Statutes (2005), which states:

Prior to the witness giving the opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness’s opinion. If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.

An expert opinion is inadmissible where it is apparent that the opinion is based on insufficient data. Dempsey v. Shell Oil Co., 589 So.2d 373, 380 (Fla. 4th DCA 1991). See also Centex-Rooney Constr. Co., Inc. v. Martin County, 706 So.2d 20 (Fla. 4th DCA 1997).

The trial court properly exercised its discretion when it excluded Mr. Schacht’s testimony based on conversations he had with Appellant’s attorney and with an actuary at his consulting firm. Mr. Schacht’s opinion, if allowed, would have been based on inadmissible hearsay. The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence. See Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995); cf. Linn v. Fossum, 894 So.2d 974, 979 (Fla. 1st DCA 2004) (explaining that a medical doctor’s opinion testimony was admissible when it was based partly on inadmissible hearsay and partly on admissible evidence because a medical doctor would normally rely, in part, on conversations with others in forming an opinion).

Additionally, Mr. Schacht’s reliance on information provided by Appellant’s counsel was not the type of communication “reasonably relied upon by experts in the subject to support the opinion expressed.” See § 90.704, Fla. Stat. (2005); Gray, 681 So.2d at 315-16 (stating that the trial court properly excluded expert evidence in its entirety based on expert’s failure to rely on sound data in forming his opinion). Mr. Schacht’s reliance on informal discussions with the actuary was similarly unreliable because it also was not the type of information normally relied upon by experts.

Excluding Mr. Schacht’s testimony based on his “suspicion” that Mr. Buttner’s calculations of cumulative profit did not take into account bulk reserves was also an appropriate exercise of the trial court’s discretion. An expert’s opinion testimony is inadmissible if it is grounded on speculation, conjecture, or incorrect assumptions. See All Am. Pool Surface, Inc. v. Jordan, 870 So.2d 885, 886 (Fla. 3d DCA 2004). Thus, the trial court was eminently correct in its ruling to exclude Mr. Schacht’s testimony.

Mr. Schacht’s proffered testimony demonstrated that he could not express an opinion on any relevant matter and that he would have confused the jury, rather than assisting it, by inserting additional issues into an already complicated case. Although the Agreement specifically defined “cumulative profit” and the parties agreed that the Agreement was clear and unambiguous, Mr. Schacht attempted to reinterpret the parties’ meaning of the term. As the trial court repeatedly noted, whether Appellant made a long-term profit through its acquisition of Caduceus was legally irrelevant; the only dispute at trial was whether Appellant earned a cumulative profit, as defined by the Agreement, from 1999-2002. Whether the Agreement could have been more clearly drafted to protect Appellant’s business interest was not relevant, and the trial court correctly excluded Mr. Schacht’s attempt to make it relevant. See New York Life Ins. Co. v. Childs, 252 So.2d 288, 290 (Fla. 3d DCA 1971) (finding no error in trial court’s exclusion of testimony when the proffer demonstrated that the testimony was neither relevant nor material to the issues involved).

Appellant next argues that the trial court abused its discretion in excluding the expert testimony of Mr. Preimesberger and Mr. Donaldson. We disagree.

Appellant failed to comply with the trial court’s order to file within a specific time a complete list of all witnesses, including its designated expert witnesses. While Appellant named Mr. Preimesber-ger as a fact witness and provided his name as an expert in one interrogatory response, he was never identified as an expert witness and Appellant could not show that it had furnished either a curriculum vitae or a summary of his proposed expert testimony. Therefore, because Appellant’s lack of notice deprived Appellee of an adequate opportunity to depose Mr. Preimesberger before trial, the trial court properly excluded his testimony. See Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981).

We decline to consider whether the trial court erred in excluding Mr. Donaldson’s testimony. Appellant did not proffer this testimony, and an offer of proof must be made in order to preserve the issue of excluded evidence. See Finney v. State, 660 So.2d 674, 684 (Fla.1995) (explaining that without a proffer, it is impossible for an appellate court to determine whether error occurred, and if so, what effect the error had on trial).

The Denial of Appellant’s Motion for Continuance

We find that the trial court did not abuse its discretion in denying Appellant’s motion for a continuance. This case had been pending for three and one-half years, and Appellant filed its motion to continue little more than one month before the scheduled date of trial. We believe the trial court’s action conformed with the discretionary factors governing the consideration of such motions, as set out in Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998).

Conclusion

We hold that the trial court did not abuse its discretion in any of its challenged rulings. AFFIRMED.

WEBSTER and THOMAS, JJ., concur; ERVIN, J., concurring and dissenting with opinion.

ERVIN, J.,

concurring and dissenting.

I agree with all aspects of the majority’s opinion except that affirming the exclusion of Mr. Schacht’s expert testimony. Because I am of the firm belief that the lower court’s ruling was an abuse of discretion that significantly prejudiced The Doctors Company (TDC) in its defense, I would reverse the judgment entered and remand the case for new trial. Although I acknowledge that Mr. Schacht’s opinion could properly be disallowed if it relied solely on information received from TDC’s attorney and conversations between his firm’s actuary and TDC’s actuary, my review of his proffered testimony convinces me that his opinion was independently based on his own analysis, and was far more than simply a suspicion, speculation, or conjecture in concluding that the cumulative profit calculation made by the Department’s expert, Edward Buttner, was substantially flawed.

Mr. Schacht’s testimony was clearly offered for the purpose of rebutting Mr. Buttner’s opinion that TDC owed Caduceus’s receiver $14,153,458 for breach-of-contract damages, a figure precisely mirrored by the jury’s verdict. TDC attempted to defend the Department’s claim through the testimony of its only expert witness by showing that the $14.1 million profit figure Mr. Buttner had estimated, based on his examination of TDC’s documents and discovery answers, was excessive, because it failed to take into consideration bulk reserves typically set off against premiums collected by malpractice insurers such as TDC.

Mr. Schacht admitted during his proffered cross-examination that he had earlier stated in his deposition that upon reviewing TDC’s 2001 annual statement filed with the Department, he noted more than $27 million in unpaid losses had been reported, leading him to “suspect” that bulk reserves were not included in the statement, and, because of Mr. Buttner’s failure to take them into account in reaching his unpaid cumulative profit estimate, his opinion was substantially flawed. Mr. Schacht further explained that after initially determining that reserves had been omitted, he sought confirmation of that opinion from his firm’s in-house actuary, who also consulted with an actuary employed by TDC. A careful review of Mr. Schacht’s testimony in its entire context reveals he first independently concluded that Mr. Buttner’s calculation was incorrect before he asked an opinion from others, and that his own opinion was separately based on his own review of certain documents of TDC that had been admitted into evidence.

In reaching his decision that no profit had been made by TDC during the three-year transitional period provided in the contract, Mr. Schacht focused his attention on pertinent definitions in the Master Agreement and the annual statements reported to the Department during the same span of time. He explained that a correct calculation depended on the premiums collected, and losses and expenses deducted from them in order to ascertain the amount of cumulative profit, defined in the Master Agreement as

[t]he aggregate of Cumulative Net Retained Premium plus Cumulative Estimated Investment Income, less the aggregate of Cumulative Incurred Losses, Cumulative Allocated Loss Adjustment Expense, Death/Disability/Retirement Reserves, and cumulative Operating Expenses payable by TDC.

Mr. Schacht’s analysis separately took into account each of the components of the above definition.

Turning to the first item listed, “cumulative retained premium,” Mr. Schacht noted that the term is separately defined in the agreement as “the total premium collected by TDC.” Although the contract does not explain the means by which a premium is collected, Mr. Schacht explained, observing that Mr. Buttner had equated the definition of premium in the agreement with written premium, that a written premium is understood in the insurance industry as the amount of premiums written for policies during their entire coverage period; however, the amounts of the written premiums reported to the Department in TDC’s annual statements did not mean that they had actually been received. He opined that Mr. Buttner’s calculation for the receipt of written premiums was inaccurate because it had failed to consider associated losses for the entire policy periods, contrary to principles of statutory accounting requiring a proper matching of income with expenses. This omission, according to Mr. Schacht, accounted for more than $9 million of Mr. Buttner’s entire $14.1 million cumulative profit estimate.

In considering the next term in the cumulative profit definition, “cumulative estimated investment income,” Mr. Schacht observed that the term was in part defined as “[t]he total amount of interest income projected by TDC to be earned on cumulative net retained premium, based on TDC’s actual and projected interest income percentage levels, over a five year horizon from the date of receipt of [the] ... premium.” He explained that because the agreement provided that interest on premiums collected was to be computed over a five-year period, such time span corresponded similarly with the four to five-year term customarily required by malpractice insurers such as TDC to resolve claims filed against its insureds.

Turning to the expenses and losses listed in the definition, Mr. Schacht opined that Mr. Buttner had failed to apply correctly the contractual term “cumulative incurred losses” in reaching his cumulative profit figure. That term, defined as the “the total indemnity amount paid to claimants plus the actuarially determined total indemnity reserve since the effective date,” includes, Mr. Schacht explained, case reserves, ie., what an adjuster would consider a particular claim to be worth, as well as bulk reserves, what an actuary would estimate to be the ultimate cost to resolve all claims, and, because of the delay involved in resolving such claims, malpractice insurers typically set aside large amounts of reserves, which causes the actual reporting of their payment to be extended beyond the three-year term of the parties’ contract, often four to five years, a factor, Mr. Schacht noted, Mr. Buttner’s analysis did not take into consideration.

In analyzing the next expense item listed in the definition of cumulative profit, “cumulative allocated loss adjustment expenses [CALAE],” defined as “amounts payable or reserved by TDC directly attributable to specific claims, including but not limited to payments for defense attorneys, medical evaluation of patients, expert medical reviews and witnesses,” Mr. Schacht determined from his examination of TDC’s 2001 annual statement that two reported items therein, “direct losses unpaid” and “direct defense and cost containment expense unpaid,” totaling more than $27 million, led him to believe that Mr. Buttner’s calculation of a $14.1 million cumulative profit did not properly include the setting aside of reserves for the payment of CALAE. Such reserves were, in his opinion, contemplated by the parties’ definition of CALAE in that they are typically made by medical malpractice insurers to be used for expenses associated with the handling of future claims, including those for the payment of defense attorneys, medical evaluation of patients, and similar costs. Because the payments for CALAE, as they are for cumulative incurred losses, frequently require four to five years, the reservation of funds for such purpose could be expected to continue beyond the December 31, 2001, reporting period of TDC’s annual statement and would not be reflected on its reports as a paid expense item.

Mr. Schacht continued that extended reserves are common as well for another designated expense item in the cumulative profit definition, ie., “death/disability/retirement reserves,” defined as a portion of the net retained premium reserved by TDC for the purpose of satisfying future claims beyond the policy period for its insureds at no additional premium due to the .death, disability, or retirement of the insured. He explained that such reserves involve coverage extending after the expiration of the policy period, requiring TDC to set aside revenues for the future payment of claims filed against those insureds following their death, disability, or retirement, and, as the other items previously mentioned, he noted they were not expressly listed as unpaid on TDC’s annual statements. . .

To summarize, if Mr. Schacht had been allowed to testify, he would have said that the Department’s expert failed to consider bulk reserves in reaching his cumulative profit figure, and that his analysis was flawed because it focused almost entirely on the premium/income side of the cumulative profit definition. He would have also pointed out that medical malpractice coverage requires an insurer to take into account not only the actual payments made to claimants during the policy period, but also an actuarially determined indemnity reserve for future claims that includes bulk reserves. Finally, Mr. Schacht would have concluded from his examination of all of the pertinent information submitted to him that TDC had made no profit during any of the three-year transitional period.

In my judgment, the underlying facts or data ■ provided a sufficient basis for Mr. Schacht’s opinion, offered as a means of rebutting the opinion of the Department’s expert, because, first, the contractual language itself supplied notice that the parties’ agreement contemplated the setting aside of bulk reserves for the resolution of future claims, and, second, an examination of TDC’s 2001 annual statement, reflecting a $27 million loss in two reported items, caused by, among other things, “direct defense and cost containment expense unpaid,” clearly implied the reservation of monies for such purpose, which Mr. Butt-ner’s evaluation made no attempt whatsoever to take into account.

In excluding Mr. Schacht’s testimony, the lower court apparently overlooked the fact that his opinion was primarily grounded on facts or data that had been admitted into evidence: the parties’ agreement and TDC’s 2001 annual statement. The provisions of section 90.705(2), relating to the procedure for discovering the foundation of an expert’s opinion, must be considered in connection with those of section 90.704, describing the type of information reasonably relied on by an expert. Section 90.704 states in part that “[t]he facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial.” As such, Mr. Schacht, qualified as an expert in the field of insurance industry transactions, should be considered to have first-hand knowledge of the underlying facts, the documents in evidence, which he personally examined. Cf. Jones v. State, 289 So.2d 725, 727 (Fla.1974) (qualified expert could express an opinion based on testimony heard by him in court).

Under the circumstances, the record provides no support for the trial court’s conclusion that Schacht’s expert testimony would be of no assistance to the jury; indeed, it would have aided them in understanding the evidence, particularly the complicated definitions set out in the Master Agreement and their application to the profits and losses reported by TDC.

In addition to excluding TDC’s expert because it determined the sources for his opinion were unreliable, the trial court deemed that his opinion lacked an eviden-tiary foundation as a result of his failure to supply a replacement figure for that given by Mr. Buttner. The burden, however, was not on TDC to establish a dollar amount; it was rather placed on the Department, as the party seeking an award of damages. The failure of the defendant’s expert to offer a substitute number hardly meant that his opinion had no foundation. It was the prerogative of the defense to present expert witness testimony for the purpose of deconstructing and rebutting the opinions and calculations of the opposing party’s witness. As the Fourth District observed in Griefer v. DiPietro, 708 So.2d 666, 672 (Fla. 4th DCA 1998): “Rebuttal to challenge the calculations of a defense expert is permissible rebuttal evidence.” See also Zanoletti v. Norle Props., Corp., 688 So.2d 952 (Fla. 3d DCA 1997) (holding the trial court’s exclusion of plaintiffs expert testimony for the purpose of rebutting the calculations of the defense’s expert was an abuse of discretion).

In my judgment, any questioned deficiency in Mr. Schacht’s expert witness testimony went to the weight of his opinion, not its admissibility. As the Florida Supreme Court observed in Florida Department of Transportation v. Armadillo Partners, Inc., 849 So.2d 279, 287-88 (Fla.2003): An expert’s “opinion may be subject to impeachment or to having its weight reduced because of its failure to properly consider one of the many factors that may influence an opinion ..., but that failure should not prevent the opinion’s admission, nor cause its complete exclusion from the jury’s consideration.” Accord Dixon v. River City Brewing Co., 904 So.2d 447, 448 (Fla. 1st DCA 2005).

In regard to the Department’s argument that TDC should be bound by the admission made by it in its answer to the complaint that the agreements were unambiguous and should be enforced pursuant to their clear terms, it should be observed that notwithstanding the parties’ pleadings, both in fact considered parol evidence necessary to explain the contractual definitions. For example, as previously noted in this dissent, although the term “cumulative retained premium” was defined in part as the “total premium collected by TDC,” the agreement did not otherwise define the manner in which the premiums were to be collected, which was clearly essential in reaching a determination of cumulative profit. Additionally, during discovery, the Department advised TDC that its expert would testify on the “definition of terms of art within the accounting profession, and the insurance industry accounting terms, contained within the Master Agreement.” Finally, the trial court ruled prior to trial that both parties’ experts would be allowed to “explain ... their understanding of ... what the [contractual] term means to them as an expert.” It is obvious from the parties’ conduct at trial that any agreement made by them pre-trial as to the contract’s lack of ambiguity was generally disregarded by both.

The lower court’s error in excluding Mr. Schacht’s opinion testimony, moreover, cannot, be deemed harmless. During closing arguments, the Department’s attorney repeatedly informed the jury that its expert witness’s cumulative profit figure was undisputed and unrebutted, and the jury, as stated, returned a verdict in the exact amount the expert had opined was owed. Indeed, it is well recognized that the exclusion of a party’s sole, non-cumulative rebuttal testimony that goes to the heart of the principal defense is an abuse of discretion requiring reversal of the judgment and a remand of the case for a new trial. See Griefer v. DiPietro, 708 So.2d at 672; Dos Santos v. Carlson, 806 So.2d 589, 541 (Fla. 3d DCA 2002). For the reasons stated, I would reverse the judgment entered below and remand the case for new trial.

      . We similarly agree that the trial court properly placed limits on Mr. Preimesberger’s testimony as a fact witness due to the fact that he was not employed by Appellant until 2004, after the three-year transitional period referred to in the Agreement. As such, he lacked personal knowledge of many of the matters relevant and material to the issues to be decided by the jury. See § 90.604, Fla. Stat. (2005).

      . Mr. Buttner also admitted that he had relied on information from other consultants in his firm in forming his opinion.

      . Mr. Buttner's conclusion was apparently based on TDC’s response to the Department’s interrogatory admitting that the two terms had the same meaning.

      . The effective date of the agreement was January 1, 1999.

      . The omission of bulk reserves in Mr. Butt-ner’s calculations was based on two arguably incorrect assumptions made by him, as was gleaned from Mr. Schacht’s proffered testimony and supported by the record: First, Mr. Buttner surmised that because a footnote appeared in TDC’s 1999 profit-sharing calculation, advising that bulk reserves had not been considered, the absence of a similar footnote in TDC’s 2001 calculation meant that bulk reserves were in fact taken into account, which, as Mr. Schacht would have attempted to explain, they were not. Second, Mr. Butt-ner assumed that TDC had not set aside such reserves because TDC’s answers to the Department's interrogatories never mentioned their existence, although he acknowledged that none of the inquiries specifically asked whether bulk reserves had been included.