text:
    Sidney Z. BRODIE and Geraldine P. Brodie, Appellants, v. FOLEY & LARDNER, a general partnership, Appellee.
    No. 3D05-2426.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Rehearing Denied July 24, 2006.

      Sacher, Zelman, Van Sant, Paul, Beiley, Hartman, Rolnick & Greif, and Barton S. Sacher, and Stanley A. Beiley, and Christopher Bopst, Miami, for appellants.
    Andrew A. Ostrow (West Palm Beach), for appellee.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Sidney Z. Brodie and Geraldine P. Bro-die, (“the Brodies”) appeal the trial court’s order transferring venue to Duval County. We reverse.

Proper venue of an action is determined at the time the initial action is filed, regardless of subsequent events. See Vance v. Minton, 444 So.2d 1162 (Fla. 3d DCA 1984). Since one of the defendants resided in Miami Dade County at the inception of the lawsuit, venue is proper in Miami Dade County. See §§ 47.011, 47.021, Fla. Stat. (2005). Accordingly, we reverse the trial court’s order transferring the case to Du-val County.

Reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Aaron K. MARSH, Appellant, v. The STATE of Florida, Appellee.
    No. 05-2851.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Rehearing Denied July 25, 2006.
    Aaron K. Marsh, in proper person.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 923 So.2d 1199 (Fla. 3d DCA 2006).


text:
    David K. ELLIOTT, Appellant, v. Michael MICHEL, Carpenter Contractors of America, Inc., and Liberty Mutual Insurance Company, Intervenor, Appellees.
    Nos. 4D05-2979, 4D05-3287.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Eric L. Berger and Douglas L. Bates of Law Offices of Koppel and Bates, Plantation, for appellant.

      Edward D. Schuster and Michael M. Riedhammer of Massey, Coican & Schus-ter, LLC, Fort Lauderdale, for appellees Michael Michel and Carpenter Contractor’s of America, Inc.
    Robert E. Vaughn, Jr. of Law Office of Glenn G. Gomer, Tampa, for appellee/In-tervenor, Liberty Mutual Insurance Company.
   PER CURIAM.

Affirmed. See Kimbrell v. Paige, 448 So.2d 1009 (Fla.1984).

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


author: ROTHENBERG, Judge.

text:
    Harold L. CONNELL, Appellant, v. CAPITAL CITY PARTNERS, LLC, et al., Appellees.
    No. 3D06-109.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Rehearing Denied July 24, 2006.

      Joseph H. Fernandez, Hialeah; Kevin D. Dennis, for appellant.
    Austin Carr; Russell C. Weigel, for ap-pellees.
    Before COPE, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Harold Connell (“Connell”) appeals an order requiring him to transfer $49,000 to Capital City Partners, LLC and Capital City Partners Southeast, LLC (collectively referred to as “Capital City”). We reverse.

Capital City sued Connell for various causes of action arising out of the failed purchase of a bank, the purchase of which Connell agreed to assist. Capital City alleges that it gave Connell $200,000, which Connell used as a down payment for the bank. After the sale of the bank fell through, Connell was able to negotiate the return of $69,000 of the down payment, which Connell did not return to Capital City. Instead, he paid $5,000 of the money to his attorney, and placed the remaining $64,000 in a bank account titled in his own name.

Connell filed a counterclaim below, seeking a declaratory judgment. In the counterclaim, Connell alleges that, in addition to the down payment, Capital City was required to advance money in order to cover further expenses associated with the purchase of the bank, but that Capital City refused to advance the required sum. Connell alleges that when Capital City failed to advance the requisite funds, he obtained $44,000 from an individual named Jerry Grace (“Grace”). Connell further alleges that he, Grace, and Capital City each had a claim to a portion of the $64,000, but that he was unable to determine how much was due to each party. Therefore, he asked the court to declare the rights and interests of the parties to the $64,000 and to direct him to distribute it in accordance with those rights and interests.

On October 11, 2005, Connell filed a motion to dismiss Capital City’s complaint. Capital City set the motion to dismiss for hearing. Capital City’s notice of hearing indicates that it set the “Motion to Dismiss Amended Complaint” for hearing, and does not set forth any other motion. In accordance with the notice of hearing, the motion to dismiss was heard on December 8, 2005. There is no transcript of the hearing. On December 19, 2005, the trial court entered an order granting the motion to dismiss Count V of Capital City’s complaint, and denying the motion to dismiss the remainder of the complaint. In its order, the trial court ordered Connell to transfer $49,000 to Capital City. Connell appeals the portion of the trial court’s order requiring him to transfer the $49,000 to Capital City.

Because there was no transcript of the hearing below, the order on appeal may be reversed only if an error of law appears on the face of the order. See Reed v. Reed, 914 So.2d 26, 27 (Fla. 4th DCA 2005); Burke v. Burke, 864 So.2d 1284, 1284-85 (Fla. 1st DCA 2004); Kanter v. Kanter, 850 So.2d 682, 684 (Fla. 4th DCA 2003). We find that the order on appeal reflects an error on its face, as it reveals a denial of due process. Specifically, the order reflects that the only motion set for hearing was a motion to dismiss. The trial court, however, went beyond a determination of the motion to dismiss, by also requiring Connell to transfer $49,000 to Capital City. In requiring Connell to transfer $49,000 to Capital City, it appears that the trial court ruled on the declaratory action filed in Connell’s counterclaim. It did so, however, without prior notice that the declaratory action would be considered at the hearing, and apparently without the submission of any sworn proof. This was error because the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process. Khan v. Dep’t of Revenue, 901 So.2d 992, 992 (Fla. 4th DCA 2005); Grandini v. Carizo, 891 So.2d 1216 (Fla. 3d DCA 2005); Fouts v. Bowling, 596 So.2d 95 (Fla. 3d DCA 1992); Devaney v. Solitron Devices, Inc., 564 So.2d 1229 (Fla. 4th DCA 1990); Epic Metals Corp. v. Samari Lake E. Condo. Ass’n, Inc., 547 So.2d 198 (Fla. 3d DCA 1989); Margulies v. Margulies, 528 So.2d 957 (Fla. 3d DCA 1988). As noted by the Fourth District Court of Appeal, “the meaning of procedural due process is clear: ‘Parties whose rights are to be affected are to be heard; and in order that they may enjoy that right they must first be notified.’ ” Devaney, 564 So.2d at 1230 (quoting Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)).

We reverse because it appears on the face of the order that the trial court determined matters not noticed for hearing, thereby depriving Connell of due process.

Reversed.

      . The order states: "THIS CAUSE having come to be heard on December 8, 2005 on Defendant’s Motion to Dismiss the Amended Complaint....”

      . The order states: "Additionally the Defendant shall within ten (10) days forward to the Plaintiffs $49,000.00 currently held by the Defendant.”

      . Capital City does not seem to dispute that the hearing below was a non-evidentiary hearing, and that the trial court made its determination regarding the $49,000 based only on a discussion with counsel for the parties.


text:
    MARSHALLS OF MA, INC., a foreign corporation, Petitioner, v. Cira MINSAL, Respondent.
    No. 3D05-2415.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Rehearing Denied July 24, 2006.

      Richard A. Sherman, Fort Lauderdale; Carman, Beauchamp & Sang and Alfred R. Bell, Jr., for petitioner.
    Friedman & Friedman and John S. Sel-igman, Coral Gables; Lauri Waldman Ross, Miami, for respondent.
    Before COPE, C.J., and SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Marshalls of MA, Inc. (“Marshalls”) seeks a writ of certiorari, quashing the trial court’s order overruling its objection to the production of incident reports prepared by 700 individual Marshalls stores.

The plaintiff allegedly tripped on a belt and fell in a Marshalls store. In accordance with Marshalls’ policy, the store manager prepared a report concerning the incident. The plaintiff sought copies of all incident reports generated from each of Marshalls’ stores for three years preceding the claimed incident. Marshalls objected; the trial court overruled the objection; but limited discovery to incident reports involving individuals who allegedly tripped on merchandise on the floor of any of Marshalls’ stores within a one year period.

Marshalls seeks quashal of the trial court’s order, arguing that its incident reports are protected by the work product privilege because they were prepared in anticipation of litigation. As the trial court concluded that the incident reports were not prepared in anticipation of litigation, and the matter is before this court on a petition for writ of certiorari, our review is limited to whether the trial court departed from the essential requirements of the law. See Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000)(“For an appellate court to review a nonflnal order by petition for writ of certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”)- In the particular context of this case, certiorari should only be granted if the record does not contain competent evidence to support the trial court’s finding that the documents were not prepared in anticipation of litigation. Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, 922 So.2d 408 (Fla. 3d DCA 2006).

Because we conclude that the trial court applied the incorrect standard; there was competent record support that these reports were prepared in anticipation of litigation; and there was no competent evidence to the contrary, we find that the trial court departed from the essential requirements of the law; grant the petition; and quash the trial court’s order granting production of the requested incident reports.

The first issue we address is the correct standard which must be applied by the trial court in determining whether a document may be shielded from discovery on the basis of the work product doctrine. “Under the work-product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable.” Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 910 (Fla. 3d DCA 2004)(emphasis in original). Although incident or accident reports are often found to be work product, such a finding is not automatic. See DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988, 990, n. 2 (Fla. 3d DCA 1994)(“Defendants argue that as a matter of law, incident reports are invariably work product. That is not so.”). Incident reports may be prepared for a purpose other than in anticipation of litigation, and when this is so, the reports are not work product. Id. For example, reports prepared solely for personnel reasons, such as to decide whether an employer should discipline its employees, are not work product. See Southern Bell Tel. and Tel. Co. v. Deason, 632 So.2d 1377, 1385-86 (Fla.1994). However, even if an incident report is prepared for one reason not in anticipation of litigation, it will still be protected as work product if it was also prepared for litigation purposes. See Federal Express Corp. v. Cantway, 778 So.2d 1052, 1053 (Fla. 4th DCA 2001)(finding that, even though company manuals indicated that the reports were required for the purpose of prevention, and did not mention the use of the reports for the purpose of litigation, this did not rule out the possibility that the reports were also prepared for litigation purposes); see also District Bd. of Trustees of Miami-Dade Cmty. College v. Chao, 739 So.2d 105 (Fla. 3d DCA 1999)(finding that an incident report did not lose its work product character by being distributed to other departments for the purpose of advising that remedial measures be taken). Thus, if these reports were prepared solely for a purpose other than litigation, they are not protected by the work product privilege. If they were prepared in anticipation of litigation, they will not lose their protected status even if they were also generated for another purpose.

In this district, as well as in other district courts, the standard to be applied when determining whether an incident report is protected by the work product doctrine, is whether the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future. Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 910 (Fla. 3d DCA 2004)(stating that a party objecting to discovery on the basis of the work product doctrine “maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insured.”); McRae’s, Inc. v. Moreland, 765 So.2d 196 (Fla. 1st DCA 2000)(holding that documents concerning an incident were work product because they were prepared when it was foreseeable that litigation could arise from the incident); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Fla. Constr., Commerce and Indus. Self Insurers Fund, 720 So.2d 535, 537 (Fla. 2d DCA 1998)(stating that, in deciding whether documents are work product, “[t]he trial court must focus on whether there is some event which could foreseeably be the basis of future litigation that compels the creation of the documents”); Waste Mgmt., Inc. v. Fla. Power & Light Co., 571 So.2d 507 (Fla. 2d DCA 1990)(applying the standard that documents are work product when they are prepared in response to an accident which foreseeably could have been made the basis of a claim); Anchor Nat’l Fin. Servs. v. Smeltz, 546 So.2d 760, 761 (Fla. 2d DCA 1989)(fínding that preliminary investigative materials are privileged “if compiled in response to some event which foreseeably could be made the basis of a claim”).

While the First, Second, Third, and Fifth District Courts apply this foreseeability standard, the Fourth District applies a somewhat stricter standard requiring that when the documents are prepared, the probability of litigation must be “substantial and imminent.” See Liberty Mut. Fire Ins. Co. v. Bennett, 883 So.2d 373 (Fla. 4th DCA 2004)(stating that doeu-ments are not work product unless they are prepared when the probability of litigation is “substantial and imminent.”), quashed on other grounds by Liberty Mut. Fire Ins. Co. v. Bennett, 905 So.2d 119 (Fla.2005); Allstate Indemnity Co. v. Ruiz, 780 So.2d 239 (Fla. 4th DCA 2001), quashed on other grounds by Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005); Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984)(finding that documents are work product only if they were prepared “in contemplation of litigation,” and that the “[m]ere likelihood of litigation does not satisfy this requirement”).

It appears that the Florida Supreme Court has not yet resolved this conflict. In Allstate Indemnity Company v. Ruiz, 899 So.2d 1121 (Fla.2005), the Florida Supreme Court accepted jurisdiction in an insurance bad faith case, based upon the conflict in the district courts with regard to the application of the work product privilege in the insurance bad faith context. While the Florida Supreme Court found that documents which might otherwise be protected by the work product privilege are not automatically protected in a bad faith insurance claim, and in fact “would appear to be freely discoverable in the bad faith action,” id. at 1131, it limited its discussion and holding to bad faith insurance claims. As the Florida Supreme Court did not address the proper standard to apply regarding discovery of documents prepared in anticipation of non bad faith tort litigation, the conflict which exists between the First, Second, Third, and Fifth Districts, with the Fourth District Court, currently remains unresolved. We are, therefore, bound by controlling precedent in this district which applies the foreseeability standard set forth in Kaufman, 885 So.2d at 910. Thus, the standard the trial court was required to apply in determining whether these incident reports were entitled to work product protection, is whether they were prepared in response to events which foreseeably could be made the basis of a claim against Marshalls.

In the instant case, the only record evidence even remotely suggesting that the incident reports were prepared for any reason other than in anticipation of litigation, is a statement by an assistant store manager of a Marshalls, made during a deposition taken in another case against Marshalls, in which the assistant manager was asked “Is one of the reasons for filling out the incident reports so that the store knows how many falls you have in a particular month or year or what the problem areas are?” The assistant manager replied “I guess that is probably what the company uses it for.” This guess is not competent, substantial evidence upon which the trial court could have concluded that Marshalls prepares incident reports solely for reasons other than litigation purposes. See RNK Family Ltd. P’ship v. Alexander-Mitchell Assocs., 890 So.2d 297, 299 (Fla. 2d DCA 2004)(testimony concerning a guess was pure speculation and not competent, substantial evidence).

In contrast, there are affidavits in the record in which the affiants specifically stated that the incident reports were prepared in anticipation of potential litigation. In the affidavit prepared by the claims specialist for CNA ClaimPlus, the company that handles the claims against Mar-shalls, the specialist stated that the incident reports were sent to her office for “use in connection with the anticipated defense of any claim which arises from said incident.” Additionally, the Senior Vice President of the Human Resources Administration of Marshalls’ parent company, submitted an affidavit stating that “It is the policy of MARSHALLS OF MA, INC., that upon any incident and/or accident in any store owned or operated by MAR-SHALLS OF MA, INC., that store personnel are required to report incidents to its insurer by and through CNA Claim-Plus, in anticipating litigation, and provide certain information for use in connection with the anticipated defense of any claim including but not limited to assisting counsel for MARSHALL[S] OF MA, INC., in their preparation for any potential litigation which may rise out of any incident or occurrence upon store premises.”

As there is substantial competent record evidence that the incident reports in question were prepared in anticipation of foreseeable litigation, which is uncontroverted by any competent evidence, we conclude that the trial court’s finding that the reports were not protected by work product, is unsupported by the record and departs from the essential requirements of the law in this jurisdiction. The fact that there was evidence that the reports may also have been prepared in order for Marshalls to identify areas of concern does not alter this finding, as it does not eliminate the work product privilege. See Federal Express Corp., 778 So.2d at 1053 (indicating that documents keep their work product protection even if they were prepared for an additional reason not in anticipation of litigation as long as the anticipation of litigation was one of the reasons for preparing the documents); Chao, 739 So.2d 105.

Based upon the previously quoted affidavits submitted by Marshalls, we conclude that Marshalls met its burden in providing competent record evidence that the incident reports were made in response to events which foreseeably could be made the basis of a claim against Marshalls. See Kaufman, 885 So.2d at 910. As this evidence was uncontroverted; the evidence that the reports were generated for a purpose other than litigation was speculative; and even if true would at best provide an additional, not the sole purposes for the creation of these reports, we conclude that the trial court departed from the essential requirements of the law when it found that the incident reports were not protected by the work product privilege. Accordingly, we grant the writ of certiorari and quash the trial courts order compelling Marshalls to produce its incident reports.

Petition granted.

      . "[AJccident reports have generally been considered not discoverable pre-trial as falling with the 'work product’ privilege because they are prepared by a party solely for litigation purposes and have no other business purpose.” Stambor v. One Hundred Seventy-Second Collins Corp., 465 So.2d 1296, 1298 (Fla. 3d DCA 1985).

      . The manager of the Marshalls store in which the plaintiff in the instant case actually fell, testified in her deposition, in response to the question "Why does this company require you to fill out an incident report every time somebody falls?” that "According to my understanding, it is to cover themselves from the people who later on might want to — the same thing that is happening right now.”


text:
    Anthony BRYANT, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1449.
    District Court of Appeal of Florida, First District.
    May 31, 2006.
    Rehearing Denied July 6, 2006.
    Anthony Bryant, pro se, Petitioner.
    Charlie Crist, Attorney General, and Warren James Pearson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus/prohibition is denied on the merits. To the extent the petition can be interpreted as seeking certiorari review of certain interlocutory orders of the circuit court, we decline to undertake such review since petitioner will have an adequate remedy by way of appeal following the entry of a final order. See generally Noack v. Blue Cross and Blue Shield of Florida, Inc., 872 So.2d 370 (Fla. 1st DCA 2004). Finally, we deny petitioner’s request that we undertake review of the order granting him leave to proceed as an indigent in the circuit court, again without prejudice to his right to seek review on plenary appeal. See LaMadline v. Crosby, 867 So.2d 552 (Fla. 1st DCA 2004).

ALLEN, WEBSTER, and HAWKES, JJ., concur.


author: WALLACE, Judge.

text:
    THE HILLIER GROUP, INC., d/b/a The Hillier Group Architecture, New Jersey, Inc., Appellant, v. TORCON, INC., Appellee.
    No. 2D05-4615.
    District Court of Appeal of Florida, Second District.
    May 31, 2006.
    Rehearing Denied July 11, 2006.

      Curtis L. Brown and Mark T. Snelson of Wright, Fulford, Moorhead & Brown, P.A., Orlando, for Appellant.
    Adam P. Handfinger and Rebecca E. Johnson of Peckar & Abramson, Fort Lauderdale, for Appellee.
   WALLACE, Judge.

The Hillier Group, Inc., d/b/a The Hillier Group Architecture, New Jersey, Inc. (Hillier), appeals a nonfinal order denying its motion to compel arbitration of a construction dispute that is the subject of an action filed by Torcon, Inc. (Torcon). Because the parties’ agreement specifically provided for arbitration of the dispute and Hillier did hot waive its right to arbitration, we reverse the circuit court’s order.

I. FACTS AND PROCEDURAL HISTORY

Beneficial Management Corporation of America (the Owner) engaged Torcon as the design/builder of an office building and parking garage located in Tampa. Torcon retained Hillier to provide architectural and engineering services on the project. Torcon and Hillier used a standard form published by The American Institute of Architects to memorialize their agreement (the Contract).

After the project was completed, the Owner sued Torcon for alleged design and construction defects in the project. In turn, Torcon filed a separate action against Hillier and several other subcontractors for indemnity and breach of contract. Hillier responded by moving to dismiss the complaint because, among other reasons, Torcon had not submitted its claim to arbitration as required by the Contract.

After a hearing, the circuit court entered a written order denying Hillier’s motion. The circuit court’s order contained the following brief explanation for the denial of Hillier’s arbitration demand: “Tor-con is not required to submit its claims against Hillier to Arbitration.” The basis of the circuit court’s ruling is not clear from the written order. However, the trial judge stated at the motion hearing that Hillier had waived its arbitration right by failing to make a timely demand for arbitration of the parties’ ongoing dispute.

II.PRELIMINARY MATTERS

Our standard of review of an order denying a motion to compel arbitration is de novo. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259 (Fla. 2d DCA 2004). “In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)).

III.TORCON’S ARGUMENTS

In this appeal, Torcon restates the four arguments it made in the circuit court in opposition to Hillier’s request for arbitration. First, the Contract merely calls for presuit, nonbinding mediation or arbitration rather than binding arbitration. Second, Torcon’s claims against Hillier are so inextricably intertwined with the claims of the Owner against Torcon and Torcon’s claims against the other subcontractors that judicial economy requires resolving all claims in a single action. Third, Hillier waived its right to arbitration by failing to timely serve a demand for arbitration in accordance with the requirements of the Contract. Finally, Hillier also waived its right to arbitration by filing an answer to a separate action for declaratory relief filed by Torcon against Hillier without asserting its right to arbitration. We will consider each of these arguments separately.

IV.DISCUSSION

A. Nonbinding Arbitration or Binding Arbitration?

Torcon’s first argument is based on a minute dissection of the language of the arbitration provision in the Contract. Article 6 of the Contract addresses the subject of “Dispute Resolution — Mediation and Arbitration” in detail. Paragraph 6.1 of Article 6 provides:

Claims, disputes or other matters in question between the parties to this Part 2 Agreement arising out of or relating to this Part 2 Agreement or breach thereof shall be subject to and decided by mediation or arbitration. Such mediation or arbitration shall be conducted in accordance with the Construction Industry Mediation or Arbitration Rules of the American "Arbitration Association currently in effect.

Torcon argues that because the words “only,” “solely,” “binding,” or “final” are not found in the arbitration provision, at best it only suggests nonbinding arbitration as one method of dispute resolution.

Torcon’s first argument is unpersuasive for two reasons. First, the language of paragraph 6.1 providing that the parties’ disputes “shall be subject to and decided by mediation or arbitration” is sufficient to create an enforceable agreement for binding arbitration. The Third District has held an arbitration clause with similar operative language to be valid and enforceable. See Post Tensioned Eng’g Corp. v. Fairways Plaza Assocs., 412 So.2d 871, 872-73 (Fla. 3d DCA 1982). We decline to adopt a rule that would require an arbitration clause to contain one or more “magic words” to be enforceable. Second, Torcon’s strained interpretation of paragraph 6.1 is incompatible with Florida’s strong policy favoring the enforcement of agreements to arbitrate. See Orkin Exterminating, 872 So.2d at 263. The application of this policy is especially appropriate in cases such as this one involving a complicated construction industry dispute. See K.P. Meiring Constr., Inc. v. Northbay I & E., Inc., 761 So.2d 1221, 1223 (Fla. 2d DCA 2000). “When there is an enforceable arbitration agreement, the courts should require the terms to be followed.” Healthcomp Evaluation Servs. Corp. v. O’Donnell, 817 So.2d 1095, 1097 (Fla. 2d DCA 2002).

B. Considerations of Judicial Economy

Torcon relies on cases from other jurisdictions for its argument that considerations of judicial economy support- the trial court’s decision to deny Hillier’s motion to compel arbitration. We find the Florida authorities more persuasive, and we disagree with Torcon’s second argument. In Post Tensioned Engineering, an owner filed suit against a contractor. 412 So.2d at 872. The contractor moved to compel arbitration in accordance with a contract. Id. The trial court denied the motion, and the contractor petitioned for a writ of certiorari. Id. On appeal, the owner urged the Third District to deny the contractor’s petition because the owner had not sued only the contractor with whom it had an agreement to arbitrate, “but has sued and - intends to sue others with which it has no such agreement, and with which, therefore, the dispute must be litigated in court.” Id. at 875. Our sister court emphatically disagreed. Id. “In light of the strong public policy favoring arbitration,” the Third District reasoned, “we cannot accept the proposition that a party to a'contract calling for " arbitration may avoid that undertaking by the simple device of joining as defendants in its lawsuit others with which the party has no such agreement to arbitrate.” Id. (citations omitted). Both the Fourth District and the Fifth District have also held that a party cannot avoid a contractual duty-to arbitrate by asserting claims against additional parties. See Kinder Mobile Home Sales, Inc. v. Clemens, 794 So.2d 677, 679 (Fla. 5th DCA 2001); Steinberg/W.F.I. Foods, Inc. v. D.C.M. & Assocs., 522 So.2d 512, 513 (Fla. 4th DCA 1988). Under the circumstances of this case, considerations of judicial economy have no role to play in determining whether the parties’ dispute is subject to arbitration. Cf. Healthcomp Evaluation Servs., 817 So.2d at 1097 (stating that the trial court improperly considered judicial economy in refusing to compel arbitration of three counts encompassing arbitrable claims in an eight-count complaint where the claims asserted in the other five counts were nonarbitrable).

C. Waiver by Failure to Make a Timely Demand

A consideration of Torcon’s argument that Hillier waived its arbitration right by failing to make a timely demand requires a review of the pertinent provision of the Contract. Paragraph 6.3 of Article 6 addresses the subject of how the parties are to make a demand for arbitration:

Demand for arbitration shall be filed in writing with the other party to this Part 2 Agreement and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of repose or limitations.

Thus the arbitration provisions in the Contract do not fix a specific time limit for making a demand for arbitration. Instead, they only require that the demand be made “within a reasonable time.”

At the hearing in the circuit court on Hillier’s motion, the trial judge reviewed Article 6. Afterwards, the trial judge initiated a colloquy with Hillier’s attorney concerning Hillier’s compliance with the provisions of paragraph 6.3:

THE COURT: Has Hillier filed a demand for arbitration or mediation with the American Arbitration Association?
MR. BROWN [Hillier’s attorney]: Hillier has not, but Torcon has not. Torcon is the one filing the complaint.
THE COURT: Right. Well, then it’s been waived.
MR. BROWN: How has it been waived, Judge?
THE COURT: Because you didn’t do it.
It says right here. The contract says, “Demand-” you are the one that wants the mediator or arbitrator, right?
MR. BROWN: I’m not the one — I don’t want to do either. I don’t want to be in litigation. The person that’s initiating the cause of action—
THE COURT: If you don’t want to do either then, you didn’t want to arbitrate.
MR. BROWN: Well, in [this] instance I’m asking for the arbitration right now.
THE COURT: Too late.
MR. BROWN: Okay.
THE COURT: Too late.
MR. BROWN: Okay.
THE COURT: You started to litigate, and when you — if you wanted to mediate [sic], you got to mediate [sic] in accordance with the contract.
THE COURT: That’s what the contract says. And they have to do it by making a demand for it and filing a demand with the American Arbitration Association. They haven’t done that — ■

This interesting exchange between the trial judge and Hillier’s counsel raises two questions about the sufficiency of Hillier’s demand for arbitration: (1) whether Hillier’s failure to demand arbitration prior to being sued amounted to a waiver of its arbitration right and (2) whether Hillier had waived its right to arbitration by failing to comply with the requirements of the Contract that the assertion of that right be made within a reasonable time after the claim arises.

The implication of the trial judge’s comments was that Hillier was required to make a demand for arbitration with the American Arbitration Association before Torcon filed its lawsuit or Hillier would waive its right to arbitration. The response by Hillier’s counsel — “I don’t want to do either” — was entirely understandable. Insofar as our record reflects, Hillier had no claim against Torcon. Thus Hillier had no reason to file a lawsuit or to initiate an arbitration proceeding against Torcon. Both proceedings would undoubtedly be costly, and Hillier had nothing to gain in either forum. But once Hillier was brought into court, it promptly opted for arbitration instead of litigation.

We think that the adoption of the rule that a defending party waives the right to arbitration by failing to demand it prior to being sued would be unwise. Such a rule would enable one of the contracting parties to circumvent an arbitration provision by filing a lawsuit before the other party filed a demand, thereby encouraging the immediate resort to litigation as soon as a dispute became a glimmer on the horizon. This would upset the established expectations of contracting parties who have chosen arbitration as the preferred means of settling their disputes. Thus, as in this case, where the arbitration clause in the parties’ agreement requires only a reasonable time within which a demand for arbitration is to be made, the party filing the lawsuit cannot argue for a waiver based on the defending party’s failure to preempt the litigation with an earlier demand for arbitration. Consequently, Hillier’s failure to initiate an arbitration proceeding before Torcon filed its lawsuit did not result in a waiver of its right to demand arbitration under the Contract.

We turn now to Torcon’s argument that Hillier’s arbitration demand was untimely. Torcon claims that Hillier was on notice of the dispute about the project in January 2003. Nevertheless, Hillier did not demand arbitration until it filed its motion to dismiss Torcon’s complaint twenty-one months later in September 2004. According to Torcon, Hillier did not make its demand for arbitration within a reasonable time, and Hillier thereby waived its right to arbitration.

In support of its waiver theory, Torcon relies on Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979). In Lyons, the owners of a construction project notified the general contractor of defects in the construction. Id. at 908. Five months later, when the general contractor had not responded, the project architect notified the contractor of its written decision that “the deficiencies were [the contractor’s] responsibility to remedy.” Id. Three months after the second notice, the owners filed a lawsuit against the general contractor. Id. The general contractor countered by filing a motion to compel arbitration in accordance with the parties’ contract. The contract provided that a failure to demand arbitration within thirty days of a party’s receipt of the architect’s decision on a dispute that had been referred to them would “result in the Architect’s decision becoming final and binding upon the Owner and the Contractor.” Id. at 907. Based on the specific time limit for making the demand for arbitration fixed in the parties’ contract, the Third District held that the contractor had waived its right to demand arbitration because it had failed to file the demand within the thirty-day limit. Id. at 908.

In this case, the contract between Tor-con and Hillier does not provide a specific time limit within which a demand for arbitration must be made, except that the demand must be made within a reasonable time and within the period of the applicable statute of limitations. Therefore, Lyons is not controlling here. In Alderman v. City of Jacksonville, 902 So.2d 885, 887 (Fla. 1st DCA 2005), the First District distinguished untimeliness of a demand for arbitration and waiver of the right to demand arbitration. “Mere delay creating untimeliness is distinct from the active participation that creates waiver. Because the facts of this case suggest only delay, a waiver analysis is improper. And questions of timeliness are to be decided by an arbitrator, not a trial court.” Id. (citations omitted).

Although a motion to compel arbitration or to stay the proceedings pending arbitration would have been preferable, Hillier’s motion to dismiss claiming a right to arbitration under the Contract was sufficient to raise the issue. Balboa Ins. Co. v. W.G. Mills, Inc., 403 So.2d 1149, 1150-51 (Fla. 2d DCA 1981); Hirschfeld v. Crescent Heights, X, Inc., 707 So.2d 955, 956 (Fla. 3d DCA 1998). Filing the motion to dismiss did not constitute active participation in the lawsuit that would waive Hillier’s right to arbitration. Prudential-Bache Sec., Inc. v. Pauler, 488 So.2d 894, 895 (Fla. 2d DCA 1986); Hirschfeld, 707 So.2d at 956. “The question of waiver is one of fact, reviewable for competent substantial evidence. All questions about waivers of arbitration should be construed in favor of arbitration rather than against it.” Doctors Assocs., Inc. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005) (citation omitted). Whether Hillier’s demand for arbitration was untimely under the Contract is a question for the arbitrator to decide. See Executive Life Ins. Co. v. John Hammer & Assocs., Inc., 569 So.2d 855, 857 (Fla. 2d DCA 1990); Alderman, 902 So.2d at 887; CED Constr., Inc. v. Kaiser-Taulbee Assocs., Inc., 816 So.2d 813, 814 (Fla. 5th DCA 2002).

D. Waiver by Failing to Demand Arbitration in Other Litigation

Finally, Torcon argues that Hillier waived its right to arbitration by omitting to demand arbitration in its answer to a separate action for declaratory relief filed by Torcon against Hillier. Torcon sued Hillier for declaratory relief after it had filed the action asserting claims for indemnity and breach of contract against Hillier and the other subcontractors on the project. In the separate action for declaratory relief, Torcon asked the circuit court to construe the Contract and determine that Hillier was required to participate in and to attend the mediation of Torcon’s dispute with the Owner. Hillier served its answer to the action for declaratory relief the same day that it served its motion to dismiss Torcon’s complaint for indemnity and breach of contract. In its answer to the action for declaratory relief, Hillier alleged that Torcon’s action was barred by the statute of limitations and that the complaint failed to state a cause of action, but it did not assert a right to arbitration under the Contract. Torcon argues that Hillier’s omission to assert its arbitration right in the action for declaratory relief amounted to a waiver of its right to arbitration in the pending damages action.

We find Torcon’s final argument unpersuasive. Granted, litigation by a party of arbitrable issues might support a finding of the waiver of the right to arbitration of related issues in a subsequent proceeding. See, e.g., MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 250-55 (4th Cir.2001) (evaluating a claim of waiver predicated on prior litigation of related arbitrable issues but finding no waiver under the facts of the case). A court may find that a party has waived its right to arbitration by participating in an earlier action where the party’s participation has given it an advantage when it submits a subsequent claim to arbitration. See generally Commonwealth Equity Servs., Inc. v. Messick, 152 Md.App. 381, 831 A.2d 1144 (2003) (discussing waiver of the right to arbitrate a dispute based on participation in prior litigation that provided the party demanding arbitration with various benefits including: discovery; a “ ‘second chance in another forum’ ” when the party obtained an adverse ruling in an earlier proceeding; forcing the opposing party to “‘incur undue expense in terms of filing fees and [] duplicative expenses in replicating ... the pleading and discovery phases of litigation in arbitration’ ”; and “‘undue and unwarranted delay’”) (citations omitted). However, Hillier served its answer and affirmative defenses to the action for declaratory relief on the same day that it served the motion to dismiss that included a demand for the arbitration of Torcon’s claims for indemnity and breach of contract. Under these circumstances, Torcon cannot support its claim of waiver by pointing to any advantages that Hillier gained in the damages action by reason of its omission to demand arbitration in the action for declaratory relief.

We also note that although the subject matter of the action for declaratory relief is related to the other pending action, the claims asserted in each lawsuit are separate and distinct. For this additional reason, a finding of waiver would be inappropriate here. Finally, Torcon makes no argument for and cites no authority in support of the proposition that its attempt to require Hillier to participate in the mediation with the Owner is even subject to arbitration under the Contract.

V. CONCLUSION

For these reasons, we reverse the order under review, and we remand this case to the circuit court for the entry of an order compelling arbitration of the parties’ dispute.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ., Concur.

      . We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

      . This form is identified as AIA Document B901, Standard Form of Agreement Between Design/Builder and Architect (Parts 1 and 2) (1996 edition).

      . The parties agree that for purposes of Tor-con’s claims against Hillier, the operative portion of the Contract is the Part 2 Agreement.


author: KLEIN, J.

text:
    Randall CARUSO, Appellant, v. Marlene Joy CARUSO, Appellee.
    No. 4D06-694.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.

      Robert L. Bogen of the Law Offices of Robert L. Bogen, Boca Raton, and Jonathan S. Root of Graner, Root & Heimovics, P.A., Boca Raton, for appellant.
    Stephen Rakusin of The Rakusin Law Firm, P.A., Fort Lauderdale, for appellee.
   On Motion To Review Stay

KLEIN, J.

A money judgment was entered against the appellant, a former husband, for ar-rearages, in 2001, when the parties’ marriage was dissolved. After an appeal the husband filed a motion to vacate the writ of execution in the trial court, contending that our reversal of a portion of the dissolution judgment mandated that the arrear-age judgment be set aside. The trial court denied relief, but granted the former husband’s motion to stay execution of the judgment pending this appeal. The former wife has filed this motion for review of the order granting the stay, and we grant the motion.

Florida Rule of Appellate Procedure 9.310(b)(1) provides that a party may obtain an automatic stay of execution of a money judgment pending review by posting a bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments. Rule 9.310(c) defines a good and sufficient bond as one with a principal and a surety company authorized to do business in Florida, or cash deposited with the circuit court clerk.

The trial court had no authority to withhold execution on this money judgment unless a bond as described above was posted. Mellon United Nat'l Bank v. Cochran, 776 So.2d 964 (Fla. 3d DCA 2000) and cases cited. See Rule 9.310, Committee Notes, 1992 Amendment, which state in part: “The committee was of the opinion that a meaningful supersedeas [of a money judgment] could be obtained only through the use of either a surety company or the posting of cash.”

We accordingly vacate the order granting the stay.

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


text:
    Dewey AYERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1689.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied July 25, 2006.
    Paul E. Gifford of Law Offices of Paul E. Gifford, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Washington v. State, 895 So.2d 1141 (Fla. 4th DCA 2005); Hudson v. State, 825 So.2d 460, 471 (Fla. 1st DCA 2002) (stating that appellate courts are generally required to apply law as it exists at time of appeal, rather than as it existed when case was before trial court).

STONE, WARNER and POLEN, JJ., concur.


text:
    Robby Eugene HOGAN a/k/a Nevia Abraham, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1438.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Robby Eugene Hogan a/k/a Nevia Abraham, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Dickey, 928 So.2d 1193 (Fla.2006).

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


author: SHAHOOD, J.

text:
    M.A. HAJIANPOUR, M.D., P.A., a Florida professional association, Zoya Physical Therapy and Rehabilitation Center, Inc., and M.A. Hajianpour, M.D., individually, Appellants, v. KHOSROW MALEKI, P.A., a Florida professional association, and Khosrow Maleki, M.D., individually, Appellee.
    No. 4D05-2142.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied July 25, 2006.

      John R. Kelso and Catherine M. Rodriguez of Levey, Airan, Shevin, Roen, Kelso, Corona & Herrera, LLP, Coral Gables, and Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for appellants.
    Jeffrey P. Kaiser, Coral Springs, for appellee.
   SHAHOOD, J.

This is an appeal by appellants, M.A. Hajianpour, M.D., P.A., M.A. Hajianpour, M.D. (collectively, Hajianpour), and Zoya Physical Therapy and Rehabilitation Center, Inc. (Zoya), from the Final Judgment for Damages Upon Counterclaim in favor of appellees, Khosrow Maleki, P.A., and Khosrow Maleki, M.D. (collectively, Ma-leki). We reverse and remand with directions to the trial court to enter an amended final judgment in favor of appellants, Hajianpour and Zoya.

This action was instituted by Hajianp-our’s filing of an action for declaratory relief seeking a determination of the parties’ respective rights under an employment agreement between Hajianpour and Maleki. Maleki filed a counterclaim for anticipatory breach of contract, fraud, declaratory judgment, and breach of contract. The trial court granted summary judgment in favor of Hajianpour on all issues. On review, this court reversed, directing the trial court to enter judgment in favor of Maleki. See Khosrow Maleki, P.A v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000).

Pursuant to the mandate, the trial court entered summary judgment in favor of Maleki on all liability issues. The determination of damages was set for trial, with the issue of damages for fraud being severed from the issue of damages based on breach of contract, anticipatory breach of contract, and declaratory judgment.

The jury found that Maleki’s damages as a result of Hajianpour’s breach of contract were $1,850,000 as of September 1, 1992. In accordance with the verdict, the trial court entered a Partial Judgment for Damages Upon Counterclaim in favor of Maleki in the amount of $1,850,000, with prejudgment interest in the amount of $2,188,408.47. Thereafter, Maleki voluntarily dismissed his fraud claim. Final Judgment was entered in favor of Maleki in the total amount of $4,037,858.47.

The decisive issue at trial and in this appeal was the value of Hajianpour’s medical practice. Each doctor in this case presented a different theory supporting its valuation of the practice. Appellants urge that the trial court erred in allowing valuation testimony that was incompetent and relied upon speculation and unfounded assumption.

Maleki’s expert was James E. McNulty, Ph.D. (McNulty). He is a professor of finance at Florida Atlantic University and holds various degrees in corporate finance and economics. Valuation of stocks and companies is a subject he regularly teaches. When Maleki sought to have McNulty qualified as an expert witness, Hajianpour objected on the basis that he had once been found incompetent to testify in a federal court. After McNulty testified that the issue in the federal case referred to by Hajianpour related to student loans and had nothing to do with the issues in this case, the court declared him to be an expert.

Of the two or three methods of determining the value of closely held stock, the principal one, and the one utilized by McNulty in this case, is the discounted cash flow method. McNulty was engaged by Maleki in 1997 and asked to calculate the “hypothetical value of the stock, assuming that the breach of contract had not occurred.” In performing this task, McNulty reviewed the financial statements of the practice, Medical ECONOMICS, statements of Hajianpour, financial statements of Zoya, information data from the Bureau of Labor Statistics, interest rate information from the Federal Reserve database, Hajianpour’s deposition, Maleki’s deposition, the agreement between the parties, and information gathered from a phone conversation with Maleki in 1997.

Because the contract assumed an ongoing relationship between Maleki and Ha-jianpour, McNulty’s valuation was based on that assumption even though “it’s a hypothetical because the contract was breached.” The discount rate which McNulty used was fifteen percent, higher than the bond rate of seven and a half percent because of the greater risk inherent in investing in stocks. Based on labor information, McNulty calculated a twelve percent growth rate in the company.

McNulty assumed that these two physicians would continue in practice for twenty years, despite the fact that neither one of them had a long term employment agreement or a non-compete agreement with the P.A. He was unable to explain any factual basis for his assumption that they would practice together for twenty years. By assuming a rapid increase in their practice, he calculated that in the year 2012, which was twenty years after the breach of contract, these two physicians would be together grossing $18.7 million, and they would each be earning $5 million a year after taxes. He then discounted their earnings to somehow find that the value of all of the stock of the P.A. as of September 1, 1992, was $12 million. He then testified that one-half of the stock, which plaintiff was entitled under the agreement to purchase for $50,000, had a value of $6 million. He refused to consider the fact that from 1992, until the trial in 2004, neither of these physicians had ever earned more than $600,000 in one year.

On cross-examination, McNulty admitted that he assumed in his valuation an ongoing business even though he knew there was not one because the litigation began in July 1992. He assumed no breach and did not consider whether a buyer would buy a business in litigation. McNulty did not consider the present or future impact of competing practices.

Hajianpour’s attorney questioned McNulty as to how he could conclude that Hajianpour, who obtained his medical license in 1988 and borrowed $100,000 to start his practice, could turn that into an $8,000,000 business in only three years. McNulty responded that the valuation included the efforts of both of the doctors and, in part, took into consideration the various HMO contracts the doctors had obtained. McNulty did not, however, review any of the contracts to determine their value. Any information gathered about the contracts was given to him by Maleki; it was his understanding that Ha-jianpour did not produce the documents.

McNulty rejected counsel’s suggestions that the doctors could have sold the business for $8,000,000 if, as he says, there was a market for it. McNulty explained that that figure was the value of the business as an ongoing business with those two doctors. It was not necessarily the price a buyer would pay to buy the practice without those doctors. He stated that the figures he came up with were not out of line with the national income average for orthopedic surgeons according to data from Medical Eoonomics.

McNulty agreed that valuation is “an art rather than a science” and that ten different experts might have ten different opinions. McNulty had no personal knowledge of an orthopedic practice ever selling at the price he estimated for this one. In addition, prior to this case, he had never valued a professional association provider of medical services.

Hajianpour argues that it was error to allow Maleki’s expert to use a valuation method that was based on conjecture and speculation. We agree.

In Thompson v. Thompson, 576 So.2d 267, 268 (Fla.1991), the supreme court addressed the following certified question: “In marriage dissolution proceedings to which an owner of a professional association is a party, may the value of the professional association’s goodwill be factored in in determining the professional association’s value?” The court answered the question with a “qualified affirmative.” Id.

“Goodwill” is the “advantage or benefit a business has beyond the value of its property and capital.” Id. Goodwill attaches to, and is dependent upon an existing business entity; it has a value “independent of the continued presence or reputation of any particular individual.” Id. at 269, 270. A person’s reputation and skill is not a component of goodwill. Id. With regard to valuing the goodwill of a business, the Thompson court approved the fair market value approach, and directed that “it be the exclusive method of measuring the goodwill of a professional association.” Id. at 270. The fair market value approach is what a willing buyer would pay and what a willing seller would accept for the sale of a business absent any duress. Id. “The excess over assets would represent goodwill.... Actual comparable sales are not required, so long as a rehable and reasonable basis exists for an expert to form an opinion.” Id. Under Thompson, a valuation of enterprise goodwill may not be “predicated on the principal’s continued involvement in the business” or the principal’s agreement to refrain from participating in any like or competing business. See Held v. Held, 912 So.2d 637 (Fla. 4th DCA 2005).

Hajianpour relies upon Thompson and the cases citing Thompson, all dissolution cases, to support his position that the trial court erred in allowing McNulty to base his opinion on the two doctors’ continuing involvement in the business.

Hajianpour’s analysis is premised on the partnership between the doctors terminating as of September 1992. In that context, courts have logically rejected valuations that include personal goodwill because that aspect is really “probable future earning capacity,” not relevant in dividing property for a dissolution. Thompson, 576 So.2d at 270. McNulty’s valuation, on the other hand, assumed an ongoing practice with continuing future income because those were the terms of the agreement, absent a breach. Hajianpour argues that his June 1992 letter terminating the agreement requires a valuation which does not assume an ongoing partnership or business relationship. He is correct. See Thompson.

Dr. Henry Fishkind (Fishkind), an economist, was Hajianpour’s expert. He had previously evaluated three medical practices. In this particular ease, Fishkind felt that a discounted cash flow analysis was not appropriate because it assumes a future income stream and, in his opinion, based on the fact that the doctors were already fighting, they would not continue the business relationship and generate future income. He did agree, however, that, based on the agreement, it did appear that the parties intended an ongoing relationship. Instead, he used a fair market analysis, finding it to be more appropriate when there is uncertainty as to whether this would be an ongoing entity. In doing so, he reviewed the personal tax returns from both of the doctors, the tax returns of the business, the financial statements from the business, the employment agreement, McNulty’s report and deposition, and comparable information about other medical practices that sold in 1992.

Fishkind testified that he did not believe that a willing buyer would have paid for the practice because it could not reasonably be viewed as an ongoing business. The only thing of value, according to Fish-kind, was the liquidation value of the assets. Although he agreed that the revenue was impressive, approximately $400,000 to $500,000 per year per doctor, it was entirely dependent on those two doctors and there was no employment agreement in place requiring them to continue in that practice. Fishkind did not believe that the business had any value independent of the doctors. With regard to Zoya, Fishkind determined that its net book value was $28,558. Fishkind also pointed to the fact that, since the breach, Maleki continued to practice and earned a great deal of money. In Fishkind’s opinion, Maleki had mitigated any and all damages he might have sustained as a result of the breach and was entitled to nothing.

On cross-examination, Fishkind was asked to assume the doctors were getting along and intended to continue in business together. Based on that assumption, he was asked whether he would use a discounted cash flow analysis. He answered, “no, I wouldn’t use the discounted cash flow.”

When the expert’s opinion is based on speculation and conjecture, not supported by the facts, or not arrived at by recognized methodology, the testimony will be stricken. See Sun Bank/N. Fla., N.A. v. Edmunds, 624 So.2d 753 (Fla. 1st DCA 1993); see also Petticrew v. Petticrew, 586 So.2d 508 (Fla. 5th DCA 1991).

As stated in Division of Administration v. Samter, 393 So.2d 1142, 1145 (Fla. 4th DCA 1981), “no weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning.” We, therefore, hold in this case, it was error to admit the testimony of Maleki’s expert.

Further, as this court held in Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999), in an en banc decision: “Because there was no proof at trial under the correct measure of damages, we reverse the final judgment and remand for the entry of a judgment for [appellants].”

Because we are reversing on this issue, it is not necessary, and we decline, to discuss the other issues raised by appellants.

Reversed.

KLEIN and TAYLOR, JJ., concur.


text:
    Juan LONDONO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3323.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied July 25, 2006.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Colitto, 929 So.2d 654 (Fla. 4th DCA 2006).

STONE, POLEN and FARMER, JJ„ concur.


text:
    Jeromy BAUTZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1790.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Jeromy Bautz, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of Bautz’s rule 3.800 motion to correct sentence is affirmed without prejudice. Bautz may raise the claim of a violation of the plea agreement in a timely and legally sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. See Catlin v. State, 929 So.2d 1087 (Fla. 4th DCA 2006); Lee v. State, 637 So.2d 391 (Fla. 4th DCA 1994).

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Curtis EASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5763.
    District Court of Appeal of Florida, First District.
    June 6, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court ruled that appellant’s motion was successive, as the issues raised therein had already been raised in prior motions and decided adversely to appellant. We affirm in part but reverse that part of the trial court’s order denying ground one of appellant’s motion and remand to the trial court to either resentence appellant or attach documents establishing that appellant’s five-year sentence in ease number 97-1458 does not constitute a manifest injustice.

Appellant was sentenced for robbery with a firearm in case number 97-1458 as a youthful offender to four years’ imprisonment with two years of probation to follow. After appellant completed youthful offender boot camp his sentence was modified to two years of probation. Subsequently, appellant violated his probation by committing two new law offenses in case numbers 98-5051 and 98-5041. Appellant’s probation in case number 97-1458 was revoked, and he was sentenced to five years’ imprisonment for the violation of probation.

In ground one of his motion, which was raised and rejected in a previous post-conviction proceeding, appellant asserts that his five-year sentence for violating his probation in case number 97-1458 is illegal. He contends that because he completed boot camp, upon his violation of probation the court was required to sentence him to no more than 364 days in prison under sections 958.045(5)(c) and 958.04(2)(b), Florida Statutes (1997). In the previous order, the trial court had ruled that the five-year sentence was not illegal under section 958.14, which the court ruled controlled appellant’s sentence, because appellant committed new law violations. Under that section, upon the revocation of probation, the court may sentence a defendant “to the custody of the [DOC] for a substantive violation for a period [no] longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated.”

The trial court erred in its previous denial of ground one. In Mason v. State, 864 So.2d 1225 (Fla. 1st DCA 2004), this Court held that a defendant who violated youthful offender probation imposed after he successfully completed boot camp by committing a new law offense could be sentenced to no more than 364 days. This Court ruled that the specific provisions of sections 958.045(5)(c) and 958.04(2)(b) su-perceded the general provisions of section 958.14. Id. Under Mason, appellant should have been sentenced to no more than 364 days in case number 97-1458 for violating his probation. Appellant’s five-year sentence in case number 97-1458 is illegal. See Mims v. State, 871 So.2d 1003 (Fla. 1st DCA 2004) (holding that a sentence beyond 364 days imposed upon a boot camp graduate for a substantive violation of probation is illegal).

Although defendants are generally precluded from raising identical issues in successive rule 3.800 motions that were previously denied on the merits, an exception to this rule exists when a manifest injustice can be determined from the face of the record. See State v. McBride, 848 So.2d 287, 291-292 (Fla.2003). A manifest injustice occurs when a defendant’s sentence exceeds the statutory maximum. See Cilio v. State, 913 So.2d 1233 (Fla. 2d DCA 2005); see also Zolache v. State, 687 So.2d 298 (Fla. 4th DCA 1997) (holding that law of the case may be revisited because it is fundamentally unfair for a defendant to serve an illegal sentence). Appellant’s sentence in case number 97-1458 to five years’ imprisonment is well beyond the statutory maximum of 364 days and, therefore, appears to constitute a manifest injustice.

However, it also appears that appellant is serving concurrent sentences of fifteen years’ and five years’ imprisonment in case numbers 98-5051 and 98-5041 respectively. If this is true, no manifest injustice has occurred. Under the Florida Supreme Court’s decision in McBride, the application of collateral estoppel to preclude a successive rule 3.800(a) motion does not constitute a manifest injustice where the trial court improperly denied the first rule 3.800 motion but, as a practical matter, the defendant’s total prison time would not be reduced if the illegal sentence was corrected because he is serving a more lengthy, concurrent sentence for another crime. Appellant’s sentences in case numbers 98-5051 and 98-5041 were not included in the record. Upon remand, the trial court should either grant relief or attach documents showing that appellant’s five-year sentence in case number 97-1458 does not constitute a manifest injustice. The denial of the remaining grounds of appellant’s motion is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    SHOPPES OF LIBERTY CITY, LLC, Appellant, v. Adolfo SOTOLONGO and Dahyanna Sotolongo, Appellees.
    No. 3D05-1714.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Roland Gomez, Miami Lakes, and Ronnie Guillen, for appellant.
    Hunter, Williams & Lynch, Coral Gables, and Christopher Lynch for appellees.
    Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

A defendant in a personal injury action appeals from an order denying its application for attorney’s fees and costs pursuant to unaccepted proposals for settlement under section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. Although it is not disputed that the circumstances otherwise entitled the appellant to these fees, the trial judge ruled that the proposals for settlement served on October 22, 2003, were fatally premature as filed “earlier than 90 days after the action [was] commenced” against the defendant. Fla. R. Civ. P. 1.442(b). This conclusion was based, in turn, on the determination that although this defendant was first named in the action when the plaintiffs filed a motion to amend the complaint to add the defendant in accordance with an attached third amended complaint on June 16th, and the court thereafter orally granted the motion on July 17th prior to service on defendant on July 22nd, the action was not commenced within the meaning of the rule until July 25th — 89 days before the proposals — when the formal order amending the complaint, which had been signed on July 24th, was filed with the clerk. We reverse for two separate reasons.

I.

First, appropriately applying Totura & Co. v. Williams, 754 So.2d 671 (Fla. 2000), we conclude that, for purposes of this rule, the action was commenced against the appellant on June 16th — beyond the allegedly critical 90-day period before the proposals — when this defendant was first named in the proposed amended complaint. See also Outboard Marine Domestic Int’l Sales Corp. v. Fla. Stevedoring Corp., 483 So.2d 823 (Fla. 3d DCA 1986) (action commenced for statute of limitations purposes when complaint was submitted to the clerk even though it was then returned to plaintiffs’ counsel because correct filing fee was not attached).

Furthermore, that the proposals were not premature is shown also by the fact that the defendant was served with the third amended complaint on July 22nd— still outside the 90-day period and days before the purely ministerial act of filing the formal order. It can hardly be correctly said that an action is not “commenced” until after its actual service. See Totura, 754 So.2d at 671.

II.

Even if this were not true, we have squarely held in Kuvin v. Keller Ladders, Inc., 797 So.2d 611 (Fla. 3d DCA 2001), that a mere prematurity of a defendant’s proposal for settlement does not disentitle it to recovery under the pertinent rule. As the appellees concede, the Kuvin case alone requires reversal. See also Byrne-Henry v. Hertz Corp., 927 So.2d 66 (Fla. 3d DCA 2006); Swift v. Wilcox, 924 So.2d 885 (Fla. 4th DCA 2006); Mills v. Martinez, 909 So.2d 340 (Fla. 5th DCA 2005).

Accordingly, the order under review is reversed with directions to award the appellant attorney’s fees and costs under the statute and rule.

Reversed and remanded.

      . The proposals for settlement were for $900 to Adolfo Sotolongo and for $100 to Dahyan-na Sotolongo. The defendant won a jury ver-diet and ensuing judgment in its favor after trial.

      . As to this holding, we repeat what was said in Kuvin:

      While this situation may be strictly distinguishable from the plaintiffs offer involved in Grip [Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262 (Fla. 4th DCA 2000), review denied, 790 So.2d 1102 (Fla.2001)], it is obvious that our approach to the issue is entirely contrary to that of the majority in Grip and entirely in accordance with Judge Farmer’s dissent. If this renders us in conflict with Grip, we are pleased to acknowledge it.

        Kuvin, 797 So.2d at 613 (footnote omitted); see also Nationwide Mut. Fire Ins. Co. v. Robinson, 851 So.2d 888 (Fla. 4th DCA 2003), quashed on other grounds, 887 So.2d 328 (Fla.2004).


author: SUAREZ, Judge.

text:
    Olegario RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-390.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   SUAREZ, Judge.

The defendant appeals his conviction and sentence for second-degree murder with a deadly weapon. We affirm.

The defendant seeks a new trial claiming that the State improperly impeached him at trial. He additionally seeks certification of the following question to the Florida Supreme Court as a matter of great public importance: FOLLOWING THE LaGRAND CASE, THE AVENA CASE AND PRESIDENT BUSH’S MEMORANDUM, HOW WILL FLORIDA REMEDY VIOLATIONS OF THE VIENNA CONVENTION ON CONSULAR RELATIONS? The State asserts that no evidentiary error occurred, and that the question should not be certified because the Florida Supreme Court has already resolved this issue. We agree with the State on both points.

The defendant was charged with second-degree murder with a deadly weapon for stabbing his cousin with a knife. The defendant waived his Miranda rights and voluntarily confessed to police the day after the offense. At trial, he admitted that he stabbed the victim, but claimed that he did so in self-defense. In both his confession to the police and at trial, he stated that he and the victim had a long history of violent confrontations; that the victim physically attacked him hours before the stabbing; that after the physical attack the defendant purchased a knife; that the defendant, the victim, and two others went to a bar and shot pool that evening; and that after arriving home, the defendant stabbed the unarmed victim in the neck as the victim approached him.

Defendant contends that he is entitled to a new trial because the State improperly impeached a portion of his trial testimony with his statement to police. The defendant argues that the impeachment was improper because the statement he gave to the police was not materially inconsistent with his trial testimony. We disagree. See generally Pearce v. State, 880 So.2d 561 (Fla.2004). Furthermore, any error was harmless beyond a reasonable doubt because it could not have affected the jury’s verdict under the facts of this case. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); see Marmol v. State, 750 So.2d 764 (Fla. 3d DCA 2000) (holding improper victim questioning to be harmless error where the evidence, including the defendant’s own post-arrest statement, completely refuted his defense of self-defense).

The defendant additionally requests that we certify a question to the Florida Supreme Court concerning the Vienna Convention on Consular Relations. He is a Mexican national and claims that the treaty gave him the right to consular assistance following his arrest. He was neither offered nor given such assistance. The trial court denied the defendant’s motion to suppress his voluntary confession on the grounds that he was not given consular assistance. The trial court was correct. The Florida Supreme Court has held that suppression of a custodial statement is not a remedy for a violation of the Vienna Convention. Therefore, “even if [the defendant] had standing to assert a right to consular assistance under the Vienna Convention and were to show that right was violated, this would not be grounds for suppression of an otherwise voluntary confession.” Conde v. State, 860 So.2d 930, 953 (Fla.2003). Accordingly, we decline to certify the question to the Florida Supreme Court.

Affirmed.

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


text:
    Jimmy CASIMIR, Petitioner, v. James R. McDONOUGH, Secretary, Department of Corrections, Respondent.
    No. 3D05-2547.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing Denied July 11, 2006.

      Jimmy Casimir, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for respondent.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

Jimmy Casimir (“Casimir”) seeks a Writ of Habeas Corpus pursuant to Rule 9.141(c), Florida Rules of Appellate Procedure, based upon five claims of ineffective assistance of appellate counsel. As we conclude that Casimir’s claims are without merit, we deny the petition.

Casimir was convicted after a jury trial of the following offenses: two counts of attempted first degree murder with a firearm, two counts of attempted second degree murder with a firearm, and two counts of conspiracy to commit first degree murder. On February 16, 2005, this court affirmed the judgment and sentences imposed. Casimir v. State, 894 So.2d 252 (Fla. 3d DCA 2005). Casimir asserts that appellate counsel’s failure to raise four claims and his abandonment of an additional claim constitute ineffective assistance of appellate counsel, warranting a discharge of the charges or a new trial.

Casimir’s first claim of ineffective assistance is based upon appellate counsel’s failure to raise what Casimir contends was a violation of his right to a speedy trial. Appellate counsel is, however, not required to raise a meritless claim. See Card v. State, 497 So.2d 1169, 1177 (Fla.1986)(appellate counsel cannot be labeled ineffective for failing to raise issues which have no merit). We find no merit to this claim as (1) the record reflects a waiver of the right to a speedy trial on November 11, 2002, and (2) the trial actually commenced within the speedy trial period. A joint continuance was granted on November 11, 2002, well before expiration of the speedy trial period on February 24, 2003, thereby resulting in a waiver of the right to a speedy trial. The trial commenced on February 12, 2003, twelve days prior to the expiration of the speedy trial period.

Casimir failed to address the November 11, 2002 waiver, arguing only that, because the jury was selected and sworn on February 12, 2003 and the trial adjourned until February 25, 2003, he was entitled to a discharge of the charges against him. In Moore v. State, 368 So.2d 1291 (Fla.1979), the Florida Supreme Court specifically held that when the jury panel is sworn for voir dire examination, the trial is deemed to have commenced for the purpose of the speedy trial rule. In McDermott v. State, 383 So.2d 712 (Fla. 3d DCA 1980), this court recognized that when the jury panel is sworn, the trial commences, and therefore, a continuance during the process of the trial is not governed by the speedy trial rule, and that a continuance during the process, even when it results in a lapse between jury selection and the examination of witnesses, lies within the sound discretion of the court. Id. at 714. Therefore, the issue is whether the interruption resulted in prejudice to the defendant. Id. In Holmes v. State, 883 So.2d 350 (Fla. 3d DCA 2004), a thirteen-day delay between the first and the second day of voir dire was found not to be unreasonable where good cause was shown and no prejudice was demonstrated. See also Johnson v. State, 660 So.2d 648 (Fla.1995)(wherein a twenty-four-day delay was found permissible between the conclusion of voir dire and the commencement of trial); Hernandez v. State, 572 So.2d 969, 972 n. 2 (Fla. 3d DCA 1990)(eleven-day delay; no showing of prejudice); Compo v. State, 525 So.2d 505, 506 (Fla. 2d DCA 1988)(twelve-day delay; no showing of prejudice). As the delay in the instant case was for thirteen days, the basis for the delay was for good cause, and no prejudice was shown, we find that even if there had not been a waiver of the speedy trial period by Casimir, the trial commenced within the speedy trial period, and the delay between jury selection and the examination of witnesses does not entitle Ca-simir to a discharge of the charges against him.

Casimir’s second claim is that, while trial counsel did not properly preserve the issue below, appellate counsel should have raised, as fundamental, the State’s voir dire examination, which he contends was a pre-trying of the State’s case. The complained-of inquiry was regarding the jury’s ability to weigh the evidence if they found that they did not like the witnesses. As we conclude that the inquiry was proper, and the issue was not preserved, appellate counsel did not provide ineffective assistance of counsel by failing to raise the issue on direct appeal.

We likewise find Casimir’s remaining claims meritless. We find no error regarding the trial court’s ruling allowing the State to call as its witness Cornelius Haggerty, a private investigator hired by the defense and who was listed as a defense witness. The defense had confirmed its intent to call Mr. Haggerty as a witness; that Mr. Haggerty would testify that he took a statement of one of the victims, Leslie Estimable; and that in this statement, Mr. Estimable recanted the earlier statement he had given to the police. The State called Mr. Haggerty in anticipation of his testimony. The State’s theory of the case was that the defendant planned and attempted to kill the victims. It was the State’s position that, when the private investigator appeared in Mr. Estimable’s hospital room where he lay paralyzed, and with no notice to the State, identified himself as an investigator hired by the defendant who was there to take a statement from him, Mr. Estimable became frightened and changed his statement to protect himself. The State called the investigator to explain the change in Mr. Estimable’s statement, arguing that the change was due to his fear of the defendant. While Casimir argues that, by allowing the State to call his witness as a State witness, it violated the attorney-client privilege, it is clear that the State’s examination of the witness did not involve privileged information. See State v. Investigation, 802 So.2d 1141 (Fla. 2d DCA 2001).

When instructing the jury regarding the charge of criminal conspiracy, the trial court told the jury that before they could find Casimir guilty of criminal conspiracy, the State was required to prove beyond a reasonable doubt that:

1. The intent of Jimmy Casimir, also known as McHarry Lafontant was that the offense of first degree murder would be committed.
2. In order to carry out the intent Jimmy Casimir, also known as McHarry Lafontant,
agreed,
conspired,
combined, and/or
confederated
with Frankie Lafontant and/or an unknown black male to cause first degree murder to be committed either by them or one of them, or by some other person.

(emphasis added). Casimir claims that the use of the and/or conjunction in this instruction constitutes fundamental error, and therefore, appellate counsel’s failure to raise the issue on appeal denied him effective assistance of appellate counsel. We disagree. The instruction, as given, provided that before the jury could find Casi-mir guilty of conspiracy, the State was required to prove that Casimir intended to kill the victim, that in order to carry out that intent, he conspired with his brother, Frankie Lafontant, an unknown black man, or both, to effectuate the crime. Thus, unlike Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001), and other cases where it was determined that fundamental error occurred due to the use of an “and/ or” conjunction in a jury instruction, Casi-mir could not be found guilty of the crime unless he personally intended that the murder be committed and conspired with at least one other person to carry out that intent. See also Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005)(finding no fundamental error in the use of the “and/ or” conjunction when it is clear that the defendant’s conviction could not be based solely upon finding that another defendant’s conduct satisfied the elements of the offense).

We also find that Casimir’s final argument, that appellate counsel abandoned his claim regarding the inadmissibility of the 911 tape recording introduced at trial, is meritless, as appellate counsel clearly did not abandon this claim, as it was one of the points argued in direct appeal.

Petition denied.


author: HAZOURI, J.

text:
    Joel SCOTT, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee.
    No. 4D05-2644.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Rehearing Denied July 25, 2006.

      Lawrence M. Kopelman of Kopelman & Blankman, P.A., Fort Lauderdale, for appellant.
    Hinda Klein and Leslie Hinds St-Surin of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellee.
   HAZOURI, J.

Joel Scott appeals from a final judgment of dismissal with prejudice of his bad faith claim against Progressive Express Insurance Company. The issue presented is whether the trial court erred in dismissing Scott’s claim for punitive damages pursuant to section 624.155, Florida Statutes (2002), because Scott failed to allege additional compensatory damages other than those incurred in the underlying claim for personal injury protection benefits. We hold the dismissal was erroneous and reverse.

Scott alleged in his complaint for bad faith that, under his policy with Progressive, Progressive was obligated to pay 80% of all reasonable and necessary medical expenses as provided in the Personal Injury Protection (PIP) provisions in the policy as required by section 627.736(l)(a), Florida Statutes (2002). Because Progressive failed to make payment and this violation occurred with such frequency as to indicate a general business practice constituting willful, wanton, malicious and reckless disregard for the rights of its insureds, Scott claimed entitlement to punitive damages.

On May 28, 2002, Scott was involved in an automobile accident resulting in physical injury for which he sought medical treatment. He incurred medical bills and submitted them to Progressive for payment pursuant to the terms and conditions of his policy and to the Florida No-Fault Act. See §§ 627.730-627.7405, Florida Statutes (2002). Scott contended that Progressive’s payment of less than 80% of his reasonable expenses for medically-necessary care violated section 627.736(l)(a) and Progressive’s obligations under the policy.

On July 29, 2003, Scott filed a civil remedy notice of Progressive’s alleged violation with the Department of Insurance as required by section 624.155(3)(a), in order to perfect his right to pursue the civil remedies authorized under section 624.155. The notice, in addition to other allegations, stated that Progressive, as a general business practice and in wanton and willful disregard for the rights of its insureds, fails to pay 80% of reasonable and necessary medical expenses and continually reimburses its insureds in amounts on less favorable terms than those required by section 627.736(l)(a) and its policy of insurance. In addition, the notice claimed that this conduct violated section 626.9541(l)(i)(2).

Progressive responded to Scott’s civil remedy notice by denying all of the allegations. Progressive did not pay the damages giving rise to the claims within sixty (60) days of the date that the notice was perfected. Progressive chose to litigate1 Scott’s underlying claim for PIP benefits which he previously filed on July 30, 2003.

After many months of litigation, Progressive settled Scott’s underlying claim for PIP benefits which included Scott’s attorney’s fees and costs. In reaching this settlement, the release specifically stated that the settlement did not apply to any subsequent bad faith claim Scott might choose to pursue.

Following the settlement of the PIP suit, Scott filed the bad faith lawsuit which is the subject of this appeal. Progressive moved to dismiss Scott’s complaint, asserting that because no compensatory damages were alleged, any claim for punitive damages could not be sustained. Scott acknowledged that he could not allege any additional compensatory damages other than the damages in the underlying PIP suit and the lower court granted Progressive’s motion to dismiss and entered a final judgment of dismissal with prejudice.

“The standard of review of orders granting motions to dismiss is de novo.” MEBA Medical & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). “In assessing the adequacy of the pleading of a claim, the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader.” Id.

Section 627.736, Florida Statutes (2002), entitled “Required personal injury protection benefits; exclusions; priority; claims,” provides:

(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury ... to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services....

Scott alleged below that Progressive violated this section and section 626.9541(l)(i)2 which provides:

(1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS. — The following are defined as unfair methods of competition and unfair or deceptive acts or practices:
(i) Unfair claim settlement practices.—
2. A material misrepresentation made to an insured or any other person having an interest in the proceeds payable under such contract or policy, for the purpose and with the intent of effecting settlement of such claims, loss, or damage under such contract or policy on less favorable terms than those provided in, and contemplated by, such contract or policy; ...

Scott filed his bad faith/civil claim against Progressive under section 624.155, Florida Statutes, which provides in pertinent part:

(1) Any person may bring a civil action against an insurer when such person is damaged:
(a) By a violation of any of the following provisions by the insurer:
1. Section 626.9541(l)(i), (o), or (x);
(b) By the commission of any of the following acts by the insurer:
1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests;
Notwithstanding the provisions of the above to the contrary, a person pursuing a remedy under this section need not prove that such act was committed or performed with such frequency as to indicate a general business practice.
(2)(a) As a condition precedent to bringing an action under this section, the department and the insurer must have been given 60 days’ written notice of the violation ...
(d) No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.
(3) Upon adverse adjudication at trial or upon appeal, the insurer shall be liable for damages, together with court costs and reasonable attorney’s fees incurred by the plaintiff.
(4) No punitive damages shall be awarded under this section unless the acts giving rise to the violation occur with such frequency as to indicate a general business practice and these acts are:
(a) Willful, wanton, and malicious;
(b) In reckless disregard for the rights of any insured; or
(c) In reckless disregard for the rights of a beneficiary under a life insurance contract.
(7) The civil remedy specified in this section does not preempt any other remedy or cause of action provided for pursuant to any other statute or pursuant to the common law of this state. Any person may obtain a judgment under either the common-law remedy of bad faith or this statutory remedy, but shall not be entitled to a judgment under both remedies. This section shall not be construed to create a common-law cause of action. The damages recoverable pursuant to this section shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the insurer and may include an award or judgment in an amount that exceeds the policy limits.

Progressive argues that Scott is precluded from bringing his bad faith claim for punitive damages because he has not alleged additional compensatory damages other than those which have already been paid as a result of the settlement.

Progressive’s argument that Scott is precluded from bringing a bad faith claim because his compensatory damages were paid in the settlement of the PIP lawsuit is unpersuasive and controlled by this court’s decision in Howell-Demarest v. State Farm Mutual Automobile Insurance Co., 673 So.2d 526 (Fla. 4th DCA 1996). In Howell, the insured’s State Farm policy provided $100,000 in medical payment coverage and $10,000 in PIP coverage. The PIP coverage paid 80% of the medical expenses and 60% of the loss of income up to its limits. After an accident, Howell-Demarest requested that State Farm pay her medical bills from her medical pay coverage, not her PIP coverage, in order to maximize her benefits for lost wages under the PIP coverage. State Farm failed to comply and Howell-Demarest sued for PIP benefits, also alleging State Farm’s refusal was a general business practice which gave rise to a statutory punitive damage claim. State Farm made the same argument that Progressive makes in the instant case, i.e., that it had paid the compensatory damages after the suit was filed and therefore there could be no claim for punitive damages. Addressing this argument this court stated:

State Farm paid the compensatory damages after suit was filed and argues that there can be no claim for punitive damages in the absence of a claim for compensatory damages. That argument is unavailing where, as here, there is a settlement of the compensatory damage claim, but no settlement of the punitive damage claim. Stephenson v. Collins, 216 So.2d 433 (Fla.1968).

Id. at 528 n. 1.

A settlement is the functional equivalent of a confession of judgment or a verdict in favor of the insured. See Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla.1983). In the instant case, the parties entered into a settlement for the underlying PIP benefits and executed a release which specifically preserved any subsequent bad faith claim. If we were to accept Progressive’s argument, we would render remedies under section 624.155, Florida Statutes, ineffectual because insurers could refuse to pay claims, ignore civil remedy notices, settle or even have judgments entered against them in underlying claims and then contend that insureds have no right to pursue bad faith claims if the damages are paid even if the insurer engages in egregious conduct with such frequency as to constitute a general business practice.

Progressive’s settlement of its obligation to Scott is the equivalent of a verdict in favor of Scott and therefore Scott’s actions for benefits have been resolved in his favor. Progressive’s failure to pay benefits to Scott under his policy within sixty days of receiving the notice under section 624.155 entitles Scott to make his claim for bad faith. Scott’s allegation that Progressive’s acts occur with such frequency as to indicate a general business practice and that these acts were willful, wanton, malicious and in reckless disregard of the rights of Progressive’s insureds is sufficient to state a cause of action for punitive damages. We therefore reverse the judgment of dismissal and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and GROSS, JJ„ concur.


author: THOMPSON, J.

text:
    Rebecca BLAYLOCK, Appellant, v. Randal S. ZELLER, Appellee.
    No. 5D05-3820.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Rehearing Denied July 6, 2006.

      Jon H. Gutmacher, Orlando, for Appellant.
    John R. Hamilton, of Foley & Lardner, LLP, Orlando, for Appellee.
   THOMPSON, J.

Rebecca Blaylock timely appeals a final injunction entered against her. Randal S. Zeller sought ex parte a temporary injunction against Blaylock for protection against repeat violence under section 784.046, Florida Statutes (2004), which the court issued. The court conducted a final hearing on the petition, for which Blaylock had notice. On appeal, she contends the trial court made two errors. First, she claims she was denied due process of law because no sworn testimony was presented and she was not given an opportunity to cross-examine or present witnesses. Second, the court prohibited her from possessing or using firearms when no evidence was presented that she was a danger to Zeller or herself. We affirm the order granting an injunction, but require that the trial court strike the portion of the injunction that prohibits Blaylock from possessing or using firearms or ammunition.

In his sworn petition, Zeller alleged that Blaylock continued to stalk his wife and him, and that they feared for their lives. She repeatedly watched the couple, trespassed on their property, took photographs of them and their home, made complaining phone calls to his employer, stated that she would burn down their house, and stated that she would do whatever it took to get rid of them and have them fired. Zeller attached to his petition an incident report from the Orange County Sheriffs Office concerning similar actions by Blay-lock against Zeller. Blaylock and Zeller were sworn and testified at the final hearing. Although Blaylock denied Zeller’s allegations, she explicitly agreed to most of the conditions in the injunction. The court entered an order granting the final judgment of injunction for protection against repeat violence and ordered Blaylock not to possess or use firearms or ammunition.

Blaylock did not seek modification or dissolution of the injunction under section 784.046(11), but now appeals. She argues she was denied due process, and that her constitutional rights were infringed by the firearms prohibition. Zeller confesses error on the firearm prohibition and does not object to this court vacating the portion of the injunction prohibiting the use or possession of firearms. Thus, the only issue on appeal is whether Blaylock was denied due process.

Blaylock alleged that, at the injunction hearing, there was no sworn testimony, and she was denied an opportunity to cross-examine Zeller or present witnesses. The record does not support the allegations. The record shows Blaylock received procedural due process, which required (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case. Zureikat v. Shaibani, 31 Fla. L. Weekly D758, — So.2d -, 2006 WL 565907 (Fla. 5th DCA Mar. 10, 2006). The record reveals that Blay-lock and Zeller testified and each could have cross-examined the other. More important, Blaylock stated she had witnesses at the hearing, but she elected not to call them to testify; the trial court did not ignore them. Fair notice of Zeller’s allegations and petition was afforded to Blay-lock, who was given the opportunity to present her case at a hearing before an impartial decision maker; she was entitled to no more. Id; see also Exceletech, Inc. v. Williams, 579 So.2d 850, 852-53 (Fla. 5th DCA 1991).

Also, we find no error because Blaylock agreed to most of the terms of the injunction, which are unobjectionable. See, e.g., Goosen v. Walker, 714 So.2d 1149, 1149-50 (Fla. 4th DCA 1998) (affirming a judgment under section 784.046, Florida Statutes (1997), that enjoined neighbor from photographing or videotaping his neighbors). As to the firearms prohibition, Zeller concedes he did not ask for such a prohibition and the issue was not presented or discussed during the hearing. Thus, we strike that portion of the injunction prohibiting the use or possession of firearms or ammunition and requiring Blaylock to surrender any firearms or ammunition in her possession.

AFFIRMED in part, REVERSED in part and REMANDED.

PLEUS, C.J. and SAWAYA, J., concur.

      . Although Blaylock stated she had four witnesses available to testify, she never called them. Further, she did not attempt to cross-examine Zeller.