author: PALMER, C.J. GRIFFIN, J.,

text:
    MERCEDES HOMES, INC., A Florida Corporation, Appellant, v. Luis R. COLON, Appellee.
    No. 5D05-4292.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    Rehearing Denied Oct. 11, 2007.

      David B. Weinstein and Kimberly S. Mello of Greenberg Traurig, P.A., Tampa, for Appellant.
    Michael Manglardi of Attorneys Trial Group, Orlando, and Robert Hornstein, Jacksonville, for Appellee.
   PALMER, C.J.

Mercedes Homes, Inc. (Mercedes) appeals an order entered by the trial court denying its motion to compel arbitration and to stay litigation. Determining that Mercedes was entitled to have its motion to compel arbitration granted, we reverse.

Luis Colon entered into a contract with Mercedes for the construction of a home. The contract included a provision requiring Mercedes to install sod on Colon’s yard. Eleven days after closing on his home, Colon fell while walking in his yard. He thereafter filed suit against Mercedes, alleging negligent installation of the sod and resulting bodily injury.

Mercedes responded by filing a motion to compel arbitration and to stay the litigation based on an arbitration agreement entered into between the parties in connection with a home warranty purchased by Colon from Mercedes. The arbitration agreement, in pertinent part, reads as follows:

ARBITRATION Any and all claims, disputes and controversies by or between the Homeowner, the Builder, HBW VI, or any combination of the foregoing, arising from or related to this Warranty, to the subject Home, to any defect in or to the subject Home or the real property on which the subject Home is situated, or the sale of the subject Home by the Builder, including without limitation, any claim of breach of contract, negligent or intentional misrepresentation or nondisclosure in the inducement, execution or performance of any contract, including this arbitration agreement, and breach of any alleged duty of good faith and fair dealing, shall be submitted to arbitration ....
This arbitration agreement shall be deemed to be a self-executing arbitration agreement. Any disputes concerning the interpretation or the enforceability of this arbitration agreement, including without limitation, its revoca-bility or voidability for any cause, the scope of arbitrable issues, and any defense based upon waiver, estoppel or laches, shall be decided by the arbitrator.

(Emphasis added). In the same home warranty document, negligence suits were specifically excluded from coverage under the warranty by the following language:

You are waiving the right to seek damages or other legal or equitable remedies from your Builder, his subcontractors, agents, vendors, suppliers, design professionals and materialmen, under any other common law or statutory theory of liability, including but not limited to negligence and strict liability. Your only remedy in the event of a defect in or to your Home or in or to the real property on which your Home is situated is the coverage provided to you under this express limited warranty.

(Emphasis added).

In filing its motion to compel arbitration, Mercedes argued that Colon’s personal injury claim was arbitrable and further that any dispute about its arbi-trability must be decided by the arbitrator, not the trial court. Colon responded by arguing that he was not required to arbitrate because his negligence claim was excluded from the express provisions of the warranty and, thus, also excluded from the arbitration agreement. Colon did not contend that the arbitration agreement was invalid or unenforceable because of unconscionability, lack of consideration, misrepresentation, or any other cause. Rather, he simply argued that his negligence claim was beyond the scope of the arbitration agreement because the home warranty agreement which contains the arbitration agreement excludes claims for negligence. After conducting a hearing, the trial court entered a written order denying Mercedes’ motion to compel arbitration. This appeal timely followed.

Mercedes argues that the trial court erred in deciding the scope of the instant arbitration argument because the parties had vested the authority to make that decision in the arbitrator. We agree.

The arbitration agreement requires the arbitrator, not the trial court, to determine the scope of arbitrable issues. The language of the arbitration agreement is clear:

Any disputes concerning the interpretation or the enforceability of this arbitration agreement, including without limitation, its revocability or voidability for any cause, the scope of arbitrable issues, and any defense based upon waiver, es-toppel or laches, shall be decided by the arbitrator.

The parties’ intent to vest the arbitrator with broad authority is demonstrated by the expansive language of the arbitration agreement. Under the arbitration agreement, the arbitrator is empowered to determine any and all claims, disputes, and controversies arising from or related to the warranty and to any defect in or to Colon’s home or the real property on which the home is situated. By the terms of the arbitration agreement, the parties agreed to submit claims to arbitration that were far broader than claims made under the warranty agreement, as long as those claims related to the subject home or the real property.

Our conclusion is compelled by the case of First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In First Options, Mr. and Mrs. Kaplan, along with Mr. Kaplan’s wholly owned investment, company, MKI, were in a dispute- with First Options resulting from a “workout agreement.” The workout agreement was embodied in four documents and governed the working out of debts owed by the Kaplans and MKI to First Options. When First Options’ demands for payment went unsatisfied, it sought arbitration under an arbitration agreement contained in the workout document. MKI had signed the workout document containing the arbitration agreement; the Kap-lans had not. MKI submitted to arbitration but the Kaplans objected, arguing that their dispute was not arbitrable. The arbitrators decided they had the authority to rule on the merits and ruled in favor of First Options. Although the district court confirmed the award, the circuit court of appeals reversed, holding that the Kaplans’ dispute was not arbitra-ble. The Supreme Court granted certio-rari to consider two questions regarding the standard the court of appeals used to review the determination that the Kap-lans’ dispute was arbitrable.

The Supreme Court first identified the three types of disagreements involved:

First, the Kaplans and First Options disagree about whether the Kaplans are personally hable for MKI’s debt to First Options. That disagreement makes up the merits of the dispute. Second, they disagree about whether they agreed to arbitrate the merits. That disagreement is about the arbitrability of the dispute. Third, they disagree about who should have the primary power to decide the second matter. Does that power belong primarily to the arbitrators (because the court reviews their arbitra-bility decision deferentially) or to the court (because the court makes up its mind about arbitrability independently)? We consider here only this third question.

First Options, 514 U.S. at 942, 115 S.Ct. 1920.

The Supreme Court, thereafter, set forth the following standard for considering “who” should decide the arbitrability of a dispute:

Wé believe the answer to the “who” question (i.e., the standard-of-review question) is fairly simple. Just as the arbitrability of the merits of a' dispute depends upon whether the parties agreed to arbitrate that dispute, so the question “who has the primary power to decide arbitrability” turns upon what the parties agreed about that matter. Did the parties agree to submit the arbi-trability question itself to arbitration? If so, then the court’s standard for reviewing the arbitrator’s decision about that matter should not differ from the standard courts apply when they review any other matter that parties have agreed to arbitrate. That is to say, the court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances. If, on the other hand, the parties did not agree to submit the arbitra-bility question itself to arbitration, then the court should decide that question just as it would decide any other' question that the parties did not submit to arbitration, namely, independently. These two answers flow inexorably from the fact that arbitration is simply á matter of contract between the parties; it is ■ a way to resolve those disputes-but only those disputes-that the parties have agreed to sübmit to arbitration.
We agree with First Options, therefore, that a court must defer to an arbitrator’s arbitrability decision when the parties submitted that matter to arbitration. When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally (though with a qualification we discuss below) should apply ordinary state-law principles that govern the formation of contracts.
Courts should not assume that the parties agreed to arbitrate arbitrability unless there is “clea[r] and unmistakabl[e]” evidence that they did so.

First Options, 514 U.S. at 943-44, 115 S.Ct. 1920 (quoting AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal citations omitted)).

In Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), the Supreme Court reiterated that

[t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the “question of arbitrability” is an issue for judicial determination [ujnless the parties clearly and unmistakably provide otherwise.

(quoting AT & T Technologies, Inc., 475 U.S. at 649, 106 S.Ct. 1415).

Here, the language of the arbitration agreement clearly and unmistakably requires the arbitrator to decide, in the first instance, the scope of the arbitration provision and the enforceability of any purported limitation of Mr. Colon’s right to pursue a claim for personal injuries. Thus, the trial court erred in denying Mercedes’ motion to compel arbitration.

The Second District Court of Appeal reached the same conclusion in Mercedes Homes, Inc. v. Rosario, 920 So.2d 1254 (Fla. 2d DCA 2006). In that case, the Rosarios contracted with Mercedes to build a house and they received the same home warranty and arbitration agreement at issue in this case. After they moved in, the Rosarios noticed that the windows were leaking, causing mold to grow. They sued Mercedes for breach of contract, violation of Florida’s building code, violation of Florida’s Deceptive and Unfair Trade Practices Act, and fraudulent concealment. Mercedes moved to compel arbitration. Among other things, the Rosarios argued that the arbitration agreement did not apply because the warranty excluded coverage for violations of the building code, mold damage, and personal injury. The Second District rejected the Rosarios’ argument, holding that the trial court should have compelled arbitration because the arbitration agreement “clearly states that disputes regarding the interpretation of the arbitration clause, including the scope of arbitrable issues, will be decided by the arbitrator.” Rosario, 920 So.2d at 1256.

In closing, we note that the dissent argues that, at the least, we should remand the case to the trial court to consider the issue of unconscionability. However, Colon’s issues on appeal did not include either an argument that the provision was unconscionable or a request that we remand for consideration of unconscionability. Accordingly, it would not be proper for us to remand for that purpose. See Norris v. Edwin W. Peck, Inc., 381 So.2d 353 (Fla. 5th DCA 1980).

We reverse and remand for further action consistent with this opinion.

REVERSED and REMANDED.

ORFINGER, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

Prosaic as the majority’s decision in this case may seem, its effect is, in my opinion, quite remarkable. It places an imprimatur of judicial approval on a scheme whose ambitious end is the elimination of personal injury claims in any case where the victim has a contractual relationship with the tortfeasor. As the majority opinion reflects, the strength of this scheme is that it is grounded quite firmly in a virtually unbroken line of decisions of the United States Supreme Court. The scheme, works by simply connecting the dots between these decisions and incorporating their precepts into a series of documents representing the contractual relationship between the consumer/victim and the tort-feasor. In this case, for example, there are three documents, each of which contains a seemingly innocuous component, but which, when combined, create a kind of chain reaction that can virtually atomize any tort claim.

I will not try to reproduce in detail the documents involved in this case. They are simply too lengthy, and to do so seems somehow reprehensible-a little like publishing the blueprints for a nuclear device. Basically, however, the following is a general description of how the scheme works. For simplicity, assume that the tortfeasor is a seller and the victim is a buyer of his goods. In the case before us, the product bought and sold was a new Mercedes home.

First, in your purchase contract document, tell the buyer that you supply your product with a special (but) “limited warranty”. The warranty might make a soothing reference to a desirable outcome like “Asset Protection” and the name might suggest that the warranty comes from a very important warranty-giving company. Specify that it is the buyer’s only remedy for any construction defect.

Several months later, when the home has been built, make the buyer fill oiit an “application” for this warranty, which will convey the impression that it is both desirable and exclusive, even though it is both required and automatic. The seller will pay the “premium” himself, which avoids any effort on the part of the consumer to refuse to sign up. The application must contain a provision that the buyer agrees that the warranty is an express limited warranty and that the seller can be hable to no one for any claim that is not covered by the warranty documents. Then, give the buyer the thirty-one page Warranty Booklet. Among other things, it will explain that the warranty is actually a contract between the buyer and the seller, not the warranty company; and that the warranty company is not a warrantor but a “warranty administrator” who has only undertaken “certain tasks and ... certain obligations.”

Somewhere after the provision informing the buyer that this warranty will be their exclusive remedy and that no person or entity will be liable to the buyer for any claim not covered by the warranty, add a provision that excludes personal injury claims from the warranty. This is a key provision whose purpose is to transmogrify a warranty exclusion into a release. For good measure, include a waiver by the buyer of any right the buyer might have to seek damages from anyone connected with the product for damages under any theory of liability, including negligence and strict liability.

The problem, of course, is how to get any court to accept this document as a release of liability for personal injury. This, I suspect, would not be easy in any state, and given prevailing Florida law on liability releases, it would be nearly impossible to have enforced in this State. The solution is not to try. Instead, included in that thirty-one page warranty booklet is a provision that all claims arising not only under the warranty but also broadly “related to” any claim, including: “the subject home, to any defect in or the real property on which the subject home is located, or the sale of the subject home by the builder ...” must be submitted to arbitration. (Please pause and take a moment to read the arbitration clause.)

A casual examination of these documents might lead a careless reader to think that, if the claim is for a personal injury and the warranty expressly excludes any claim for personal injury, there would be nothing to arbitrate. According to the majority, however, if the arbitration provision in the warranty requires the question of what is arbitrable to be submitted to the arbitrator, even- though it is clear that the claim is not covered by the warranty, the question of whether the warranty operates as a bar to any personal injury claim must be decided in arbitration by the arbitrator. But see Nunez v. Westfield Homes of Florida, Inc., 925 So.2d 1108 (Fla. 2d DCA 2006); Grosseibl v. J. Chris Howard Builders, 739 So.2d 1255, 1257 (Fla. 5th DCA 1999) (arbitration agreement placed in a separate warranty agreement and the warranty does not cover any of the disputes or claims alleged in the complaint does not apply to require arbitration of non-warranty claims).

The final phase of this scheme is the most important. It is essential to be precise in the arbitration provision about exactly what arbitration is required. Specify who the arbitrator will be and what rules will apply. Find a for-profit arbitration service with a serious-sounding name suggesting expertise in whatever product you have produced, and a good acronym. What their actual qualifications are, or are not, will be none of the buyer’s business, and the case law across the country suggests that unless the president of such arbitration service actually perjures himself, their role as arbitrator and their power based on the arbitration “agreement” to determine both technical and legal issues will usually be enforced. Because you refer many matters to this arbitration service and specify them by name' in the printed form contract, they will know that you admire their decision making. If you cease to include them in your contracts or refer matters to them, they will understand that you no longer admire their decision making. This provides the economic incentive to rule in favor of the seller that is so woefully lacking in judicial proceedings. As a fail-safe device, include a provision that the seller, at his sole discretion, can select any other arbitration service he chooses.

The plan is not fool-proof, but it seems to be working pretty well so far.

This Case Is an Example of How the Plan Works

By virtue of the majority’s agreement with Mercedes Homes that their documents require Mr. Colon’s personal injury claim to be sent to arbitration with Construction Arbitration Services, Inc. [“CAS”], even though it is clear that he is making no claim under the warranty and that he has no claim under the warranty, the CAS arbitrator will now decide whether the combination of the Mercedes purchase contract, the Home Buyers Warranty VI application form signed by Mr. Colon and the HBW VI warranty booklet constitute a release by Mr. Colon of any personal injury claim he may have against Mercedes. In my view, the majority has gone wrong by interpreting the documents to require that any dispute, including arbitrability, whether arising under the warranty or not, has to be arbitrated.

The majority’s error lies in its application of the First Options v. Kaplan case. Having concluded that the language of the arbitration agreement in the warranty booklet includes clear language of agreement to arbitrate the scope of arbitrable issues, the majority concludes its work is done. This is wrong for several reasons. First and foremost, the majority ignores the structure of the overall agreement and, accordingly, the context of the “arbitrability” language. The correct question to ask under First Options is “did the parties agree to submit the issue of arbitrability to arbitration,” which is a matter of state law concerning the formation of contracts. 514 U.S. at 944, 115 S.Ct. 1920. The second question is “arbitrability of what?” Did Mr. Colon agree to the arbitration of the arbitrability of any claim or only warranty claims? The agreement to arbitrate arbitrability has to be clear and unmistakable. Id. A party can only be forced to arbitrate those issues it specifically agreed to arbitrate. Id. The problem in this case is that Mercedes Homes chose to put its stipulation for arbitration of arbitrability inside a separate warranty booklet issued by a third-party warranty company as part of the purchase of warranty coverage by the seller. It defies credulity to say that it is probable, much less clear and unmistakable, that in accepting the builder’s warranty as explained in the thirty-one page booklet, Mr. Colon intended to submit to arbitration any claim extraneous to the warranty, or to waive any claim for personal injury, much less that he agreed to submit to arbitration the question whether his asserted waiver of any claim for personal injury is arbitrable. As the case law sadly reflects, many judges haven’t appreciated the implications of these purposely complex provisions, much less the average consumer. The arbitration agreement contained in the purported third-party warranty must be confined to the warranty. I say that the provision relied on by the majority gives the arbitrator the power to decide what is or is not within warranty arbitration, nothing more. Mr. Colon’s claim is indisputably not a warranty claim so there is nothing for the arbitrator to decide.

This conclusion is also reached as a matter of state law interpretation of contracts under Florida law. In the Rosario opinion, relied on by the majority, the court unfortunately did not consider the structure of the contractual arrangement between the buyer, seller and HBW VI and the placement of the arbitration provision in the warranty booklet instead of in the purchase contract. This issue, however, has directly and extensively been considered in other Florida cases, such as the Grosseibl and Nunez decisions referenced above. In Nunez, the court found that a buyer’s, claim that his home was built in violation of the building code was not within the scope of the warranty and, therefore, a demand for arbitration under the arbitration provision in the warranty did not cover the plaintiffs claims.

This Court’s earlier decision in Grosseibl is even more specific on this point. If there is a tort claim between parties to a contract containing an agreement to arbitrate but the claim is not within the warranty provisions of the contract, then the arbitration provisions of the warranty do not mandate arbitration. Judge Sharp distinguished agreements where parties agree to arbitrate all disputes from arbitration clauses placed in a “separate warranty agreement and the warranty does not cover any of the disputes or claims.” 739 So.2d at 1255. The majority errs by failing to construe the “arbitration of arbi-trability” clause in the arbitration section of the warranty booklet as applying to warranty claims only. The Court of Appeals of New Mexico correctly decided this' issue in interpreting these same HBW documents:

We acknowledge that the arbitration provision includes wording saying that claims, disputes and controversies arising from or related to the sale of the home, including any claim of breach of contract, and negligent or intentional misrepresentation, shall be submitted to arbitration. However, we are unpersuaded that these words should be read outside the warranty context or outside the rest of the language of the provision.

Campos v. Homes By Joe Boyden, L.L.C., 140 N.M. 122, 140 P.3d 543, 546 (2006).

There is nothing “clear and unmistakable” about this agreement - to arbitrate arbitrability. I do not know why the Rosario court did not look beyond the language of the “arbitration of arbitrability” phrase in the Mercedes documents, but if they had, I am certain they would agree that an agreement to arbitration of arbi-trability is limited to the warranty in which it is located.

A more correct resolution of this case may also be found in the Florida Supreme Court’s decision, Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999). There the court had to decide the arbitrability of a tort claim against a home builder for the negligent désigñ and construction of an air conditioning system that pulled in carbon monoxide from the garage and distributed it throughout the house, causing personal injury to the owner. The Seifert court found that this was not an arbitrable claim under the agreement that broadly called for arbitration of any claim “arising under or related to this Agreement or to the Property....” The court observed that the duty of reasonable care at issue was a duty owed generally to anyone who might foreseeably be injured, not just the other contracting party. Thus, the tort claim was not covered by the arbitration provision in the contract for the purchase and sale of the home. The Seifert court specifically observed that this issue could interchangeably be viewed either as whether a valid agreement to arbitrate existed, or whether the tort claim was covered by the arbitration provision. Id. at 636, n. 2. The court said that no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate, and proceeded to decide the issue as a matter of law. Id. at 636.

When these three complex documents comprising the agreement are viewed together, the conclusion is inescapable that what the documents say — certainly what a consumer like Mr. Colon would understand — is that the arbitration provisions in the warranty apply only to warranty issues and that a claim outside the warranty is a claim outside of arbitration. If it were not for the single word “including” in the middle of the lengthy arbitration provision, contained on page 6 of the thirty-one page warranty booklet, that Mr. Colon impliedly agreed to by signing the “application for home enrollment,” which incorporated the booklet by reference, Mercedes would have no argument at all. As a matter of contract interpretation, any doubt about whether the arbitration provision in the warranty has any application to non-warranty claims should be resolved against the drafters of the form. At least one state supreme court has found the HBW documents to be procedurally and substantively unconscionable and therefore entirely unenforceable. Burch v. Second Judicial District Court, 118 Nev. 438, 49 P.3d 647 (2002).

I am very impressed that the trial judge in this case, Judge Moxley, figured out what was happening here instantly. Basically, he told the attorney for Mercedes that if it was Mercedes’ intention to ask the arbitrator to throw out the personal injury claim on the basis that the warranty documents constituted a waiver of any personal injury claim, he would not send it to arbitration because he believed that was an issue for him to determine judicially. Mercedes’ lawyer would not deny that was the intention, and Judge Moxley refused the referral.

I stand with Judge Moxley. What we have begun to see is that virtually all consumer transactions, no matter the size or type, now contain an arbitration clause. And with every reinforcing decision, these clauses become ever more brazenly loaded to the detriment of the consumer — who gets to be the arbitrator; when, where, how much it costs; what claims are excluded; what damages are excluded; what statutory remedies are excluded; what discovery is allowed; what notice provisions are required; what shortened statutes of limitation apply; what prerequisites even to the right to arbitrate are thrown up— not to mention the fairness or accuracy of the decision itself. The drafters have every incentive to load these arbitration clauses with such onerous provisions in favor of the seller because the worst that ever happens, if the consumer has the resources to go to court, is that the offending provisions are severed. The state courts, demoralized by the United States Supreme Court’s disapproval, have too often allowed these overreaching provisions to succeed. Most consumers can’t read them, won’t read them, don’t understand them, don’t understand their implication and can’t afford counsel to help them out.

It is the role of the state courts to determine whether an arbitration provision is unconscionable and it is time that we take that responsibility seriously. One commentator famously remarked that the United States Supreme Court’s complete embrace of arbitration would allow “birds of prey” to “sup on workers, consumers, shippers, passengers and franchisees.” The decision in this case shows that the prediction was correct. But the state courts and state legislatures are not as helpless as we appear.

Because Mr. Colon raised generally the issue of the unconscionability of the CAS arbitration clause, the majority’s decision to reverse the trial court’s decision should, at the very least, include a remand to the trial court to examine and rule on this issue. That is what the Second District Court of Appeal did in Kel Homes, LLC v. Burris, 933 So.2d 699 (Fla. 2d DCA 2006). There, faced with an attack on an arbitration clause specifying “CAS” as the arbitrator and containing similarly overreaching provisions, the court .remanded for further proceedings to “develop” the issue of invalidity of the arbitration clause. Even in the Rosario case, the trial court said that the validity of the arbitration clause was for the court to determine. It found that the trial court had implicitly determined the provision to be valid only because the trial court had enforced the agreement in part. Here, the trial court refused to enforce the agreement at the first hearing on grounds the majority now reverses. We should send this case back for further proceedings to develop the issue of invalidity of the arbitration clause in its entirety based on unconscionability.

The trio of documents at issue in this case offer a wealth of procedural and substantive unconscionability issues. Procedurally, the buyer is told when first contracting to purchase a subsequently-to-be-built home that Mercedes is “enrolled” in the HB VI Asset Protection Program (APP) provided by Home Buyers Warranty Corporation VI, but that the specific coverage of this warranty will be contained in the application and ‘Warranty Booklet,” which are to be supplied later. There is no arbitration provision in the contract for purchase of the home itself. The application and warranty booklet are not presented until after the home has been completed. The entire structure of the transaction appears contrived and calculated to mislead. The fact that there is no explanation of the implications of these documents for non-warranty issues reinforces that concern.

Substantively, the arbitration clause presents many issues. First, and most obviously, an arbitration clause placed in a warranty booklet that purports to extend beyond issues pertaining to the warranty, as this one does, is deceptive. Second, the selection of CAS as the arbitrator warrants investigation to ascertain its economic relationship with Home Buyers Warranty Corporation and the construction industry and to examine its partiality. The fact that HBW can, in its sole discretion, select any other arbitration service it chooses is worrying. Also, CAS can manipulate the governing rules by selecting unilaterally when to demand arbitration. The documents also allow the builder to litigate freely with the consumer and then to switch to arbitration, as and when it chooses, because the buyer expressly waives his right to assert the seller’s waiver of arbitration. The clause even provides that to the extent any rule of whatever arbitration service it, in its sole discretion, selects is in conflict with any state or local law, ordinance or judicial rule, the arbitration rule supersedes.

Finally, there is the cost of arbitration. Under the documents, the homebuyer essentially agrees to bear administrative costs and arbitrator fees equally with the builder. The expenses of a private arbitration can be enormous. This provision alone may discourage or even prevent the consumer from pursuing any claim, warranty or non-warranty.

I suppose the case of Luis Colon tripping over badly laid sod in his yard in Rockledge, Florida, does not offer a very compelling scenario, but imagine instead a badly hung chandelier falling on the head of some prominent person in Washington, D.C., injuring him severely. I would love to be in the room when it was explained to him that he had given up any claim for compensation for his injuries by buying a house with a HBW VI express limited warranty; and if he did not believe this to be the law, Mr. Harvy Short, a construction arbitrator with over twenty years’ experience in residential roofing, would be happy to explain it to him.

I vote to affirm.

      . This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

      . The trend in the decisions of the recent and current United States Supreme Court to displace litigation with arbitration and to immunize it from any regulation on the part of state courts or state legislatures is well described by academics in tones of increasing alarm. See, e.g., Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence, 2006 Tex. L.Rev. 1097, 1139-46 (2006); Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Not Enacted by Congress, 34 Fla. St. U.L.Rev. 99 (2006).

      . I do, however, reproduce the arbitration clause in its entirety in footnote 3, and it should be carefully read.

      . This is the arbitration clause contained in the warranty booklet:
      ARBITRATION Any and all claims, disputes and controversies by or between the Homeowner, the Builder, HBW VI, or any combination of the foregoing, arising from or related to this Warranty, to the subject Home, to any defect in or to the subject Home or the real property on which the subject Home is situated, or the sale of the subject Home by the Builder, including without limitation, any claim or breach of contract, negligent or intentional misrepresentation or nondisclosure in the inducement, execution or performance of any contract, including this arbitration agreement, and breach of any alleged duty of good faith and fair dealing, shall be submitted to arbitration by and pursuant to the rules of Construction Arbitration Services, Inc. (hereinafter “CAS") in effect at the time of the request for arbitration, or by such other arbitration service as HBW VI shall, in its sole discretion select, and pursuant to the rules of that arbitration service in effect at the time of the request for arbitration. This arbitration agreement shall inure to the benefit of, and be enforceable by, the Builder’s subcontractors, agents, vendors, suppliers, design professionals, insurers and any other person whom the homeowner contends is responsible for any defect in or to the subject Home or the real property on which the subject Home is situated. Any party shall be entitled to recover reasonable attorney’s fees and costs incurred in enforcing this arbitration agreement, and the arbitrator shall have sole authority to award such fees and costs. The decision of the arbitrator shall be final and binding and may be entered as a judgment in any State or Federal court of competent jurisdiction. This arbitration agreement shall be deemed to be a self-executing arbitration agreement. Any disputes concerning the interpretation or the enforceability of this arbitration agreement, including without limitation, its revocability or voidability for any cause, the scope of the arbitrable issues, and any defense based upon waiver, estoppel or laches, shall be decided by the arbitrator.
      The initiation of or participation by any party in any judicial proceeding concerning this arbitration, agreement or any matter arbitrable hereunder shall not be deemed a waiver of the right to enforce this arbitration agreement, and notwithstanding any provision of law to the contrary, shall not be asserted or accepted as a reason to delay, to refuse to participate in, or to refuse to enforce this arbitration agreement.
      Any parly who shall commence a judicial proceeding concerning a dispute which is arbitrable hereunder shall also be deemed to be a party requesting arbitration within the meaning of this arbitration agreement. The administrative fee charged by the arbitration service shall be borne equally between the Homeowner and the Builder in the case of the Builder’s One Year Workmanship/Two Year Systems Warranty Coverage. The administrative fee charged by the arbitration service will be paid by HBW VI in the case of single-arbitrator Structural Defect arbitrations. The administrative fee charged by the arbitration service will be paid by the Builder in the case of a dispute between the Builder and/or HBW VI. The arbitrator’s compensation fee shall be borne equally by the arbitrating parties for single-arbitrator arbitrations. Additional fees may be assessed in accordance with the arbitration rules and fees.
      HBW VI shall have the right, in advance of the arbitration proceeding, to reinspect any Home which is the subject of the arbitration proceeding if the request for arbitration was made more than sixty (60) days following the last claim decision of HBW VI concerning such Home. No arbitration proceeding shall involve more than one single-family detached dwelling or more than one multi-family building.
      The parties expressly agree that this Warranty and this arbitration agreement involve and concern interstate commerce and are governed by the provisions of the Federal Arbitration Act (9 U.S.C. § 1, et seq.) now in effect and as the same may from time to time be amended, to the exclusion of any different or inconsistent state or local law, ordinance'or judicial rule; and to the extent that any state or local law, ordinance or judicial rule shall be inconsistent with any provision of the rules of the arbitration service under which the arbitration proceeding shall be conducted, the latter rules shall govern the conduct of the proceeding.
      If any provision of this arbitration agreement shall be determined by the arbitrator or by any court to be unenforceable or to have been waived, the remaining provisions shall be deemed to be severable there from and enforceable according to their terms.

      . First Options v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

      . Mercedes Homes, Inc. v. Rosario, 920 So.2d 1254 (Fla. 2d DCA 2006).

      . Admittedly, the application of Seifert in light of Sears Authorized Termite and Pest Control, Inc. v. Sullivan, 816 So.2d 603 (Fla.2002), is difficult. Perhaps the court in Sears was say-tag that the two cases differed because, unlike Seifert, the exterminator would have had no general duty to kill spiders in the absence of the contract.

      . Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence, 2006 Tex. L.Rev., n. 1 at 1141, n. 172, quoting Paul D. Carrington & Paul H. Haagen, Contract and Jurisdiction, 1996 Sup.Ct.Rev. 331, 401.

      . Apparently, the various provisions relating to "Rules” in this arbitration clause are more important than would appear. The seller's right to choose the rules of the arbitration and the seller’s opportunity to impact the rules is one of the most useful means available to the seller to enhance the "one sidedness” of arbitration in his favor. See W. Mark C. Weidemaier, The Arbitration Clause in Context: How Contract Terms Do (and do not) Define the Process, 40 Creighton L.Rev. 655 (2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ralph Xavier PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1315.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    Rehearing Denied Oct. 5, 2007.
    John C. Allen, Jr., Ormond Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Sanders v. State, 946 So.2d 953, 959-60 (Fla.2006) (“[A]ny finding of prejudice resulting from defense counsel’s failure to request an instruction on lesser-included offenses necessarily would be based on a faulty premise: that a reasonable probability exists that, if given the choice, a jury would violate its oath, disregard the law, and ignore the trial court’s instructions.”); Cottle v. State, 733 So.2d 963, 967 (Fla.1999) (holding claimant must allege “counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced”); Szymanowski v. State, 771 So.2d 10, 11 (Fla. 4th DCA 2000) (“Misinformation by counsel affecting a defendant’s decision to accept a plea may constitute ineffective assistance of counsel under certain circumstances. However, appellant has not indicated the basis of any misinformation or misadviee (i.e., what erroneous information he received from counsel which caused him to accept the plea offer and not proceed to trial).”).

PALMER, C.J., THOMPSON and SAWAYA, JJ„ concur.


author: SILBERMAN, Judge.

text:
    Brenda C. DeMONIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-313.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.
   SILBERMAN, Judge.

Brenda’DeMonia appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute DeMonia’s claim that her counsel’s misadvice rendered her plea involuntary, we reverse in part and remand for further proceedings. We affirm without discussion the postcon-viction court’s order denying relief as to DeMonia’s other grounds.

DeMonia entered an open, no contest plea to grand theft and multiple counts of forgery and uttering a forged instrument. The trial court sentenced her to 10 years’ imprisonment followed by 68 consecutive terms of 5 years’ probation. In her motion, DeMonia claimed that her counsel was ineffective because he misadvised her regarding the length of the sentence that she would receive. She alleged that she entered an open plea “amid a promise that 71 months [of imprisonment], the offer from the State, would be the maximum sentence she could receive.” She stated that “[t]he open plea was done solely to allow the judge the opportunity to give a sentence below 71 months” and that counsel told her, her parents, and her husband that 71 months was the “worst case scenario.” She reiterated that counsel never advised her that she could receive a sentence in excess of 71 months.

DeMonia also alleged that defense counsel told her the State would ask for a bottom-of-the-guidelines sentence of 71 months. At the sentencing hearing, the State did, in fact, request that sentence. She claimed that counsel never told her that the trial court could depart upward from the guidelines scoresheet sentencing range of 70.5 months to 117.5 months’ imprisonment.

In reviewing the record, the postconviction court noted that when DeMonia entered her plea, her counsel argued that mitigating circumstances would support a reduced sentence. The court also noted that the victim had asked for the maximum sentence. The court stated that the victim’s request “must have been some indication that the maximum sentence was a possibility.” The postconviction court'further noted that DeMonia had told the trial court no promises had been made regarding her sentence, that the trial court had advised her of the statutory maximum penalties for the crimes, and that the trial court had asked if DeMonia understood the recommended guidelines sentence.

The postconviction court then commented regarding a May 2000 hearing on DeMonia’s petition for belated appeal. At that hearing, the judge asked counsel if he had advised DeMonia “that [71 months] was the maximum that she could receive”; counsel responded, “No, your Honor, but that’s not to say she didn’t interpret it that way.” The judge asked if counsel told DeMonia that the trial court could have sentenced her to something in excess of what the State was offering. Counsel stated, “I believe so,” but expressed some uncertainty. He commented that he makes it clear on the record “what exactly the deal is and what the situation is. But that’s, again, not to say that she misunderstood or saw it a different way.”

Based on its review of the record, the postconviction court entered an order summarily denying relief. The court found that the record conclusively refuted DeMo-nia’s claim and that it was “clear from the context of the sentencing hearing that all parties understood that any sentence was possible.”

Pursuant to rule 3.850(d), a motion for postconviction relief may be summarily denied “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.” Here, the documents relied on by the postconviction court do not conclusively refute DeMonia’s claim. In fact, some documents arguably lend support to her claim. For example, while the transcript of the belated appeal hearing reflects that certain of counsel’s statements were ambiguous, counsel specifically acknowledged that DeMonia may not have understood that the trial court could impose a sentence in excess of 71 months.

Counsel also suggested that the plea transcript would likely show that he and the judge would have made the sentencing situation clear to DeMonia. However, while the plea transcript shows that the trial court disclosed to DeMonia the statutory máximums for the crimes, she was not told that the .trial court could impose a sentence that exceeded the recommended sentencing guidelines range or 'a sentence in excess of what the State recommended. The postconviction court correctly observed that DeMonia had acknowledged at the plea hearing that no one made any promises about her sentence. However, DeMonia alleged in her motion that her acknowledgment was accurate because she understood, based on counsel’s advice, that an open plea allowed the trial court to consider a sentence of less than the guidelines minimum and less than 'what the State had offered and would be recommending at sentencing. No promise had been made as to her exact sentence, but she understood from counsel that her worst case scenario was 71 months because the court could, but was not required to, go lower.

Thus, the documents attached* to the postconviction court’s order do not conclusively refute the claim as to counsel’s mis-advice and do not establish that DeMonia knew that the trial court could impose any sentence up to the statutory maximum. Further, the documents do not reflect that DeMonia understood or was told at the plea hearing or at any other time that the trial court might enter a sentence that exceeded the State’s recommendation and exceeded the recommended sentencing guidelines range.

Because DeMonia’s claim is not conclusively refuted by the transcripts and other documents contained in the record, and in light of defense counsel’s ambiguous statements, we conclude that a factual dispute exists that must be resolved by evidentiary hearing. See State v. Leroux, 689 So.2d 235 (Fla.1996). Accordingly, we reverse and remand for the postconviction court to conduct an evidentiary hearing on the issue of whether counsel misadvised DeMonia, rendering her plea involuntary. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

WHATLEY and VILLANTI, JJ., Concur.


author:
SALCINES, Judge.
      ALTENBERND, Judge,

text:
    Robin L. TUCKER, Appellant, v. James T. TUCKER, Appellee.
    No. 2D06-857.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    James T. Tucker, pro se.
   SALCINES, Judge.

Robin L. Tucker, the Former Wife, appeals the second amended final judgment of dissolution of marriage (“the final judgment”). We reverse the equitable distribution of marital assets as discussed below but otherwise affirm the final judgment without further discussion. -

The entire equitable distribution plan must be reversed due to the manner in which two assets of substantial value were treated. The first asset that dramatically impacted the equitable distribution plan is a townhouse located in Treasure Island, Florida. In the division of assets in the final judgment, the townhouse was distributed to the Former Wife. At the dissolution trial, James T. Tucker, the Former Husband, unsuccessfully attempted to introduce evidence of the value of the townhouse through the testimony of a realtor. The trial court sustained the Former Wife’s objection to the realtor’s testimony because he did not qualify as an expert and he was not permitted to testify. The only testimony about the value of the townhouse presented by the Former Husband was when he was asked if he valued the townhouse at $912,000 in his financial affidavit. He responded, ‘Tes.” No other testimony was given by the Former Husband concerning the valuation. He did not state how he calculated this figure, whether this sum represented the net equity value of the property, or whether the outstanding $295,000 mortgage on the property was included in this amount. The Former Wife presented no testimony about the current value of the townhouse. Her financial affidavit opined that the value of the townhouse was $595,000. When it set forth the division of marital assets in the final judgment, the trial court assigned a value of $912,000 to the townhouse.

The trial court’s valuation of marital assets must be supported by competent, substantial evidence. § 61.075(3), Fla. Stat. (2005). An owner of property is generally qualified to testify about the value of his own property. See Beaty v. Gribble, 652 So.2d 1156, 1158 (Fla. 2d DCA 1995). However, based on the unique facts in the present case, the record does not contain competent, substantial evidence to support the value the trial court assigned to the townhouse as discussed above. The trial court’s finding regarding the value of this real property is reversed. On remand the trial court shall conduct an evidentiary hearing, and the parties shall be given the opportunity to present testimony and evidence concerning the value of the townhouse on the date of valuation established by the trial court.

When determining the value of marital assets, the trial court has discretion to establish the date of valuation. In the present case, the parties did not enter into a separation agreement; therefore, the date of the filing of the petition for dissolution of marriage (April 11, 2001) would generally be used. However, the trial court in its discretion may usé the “date or dates as the judge determines is just and equitable under the circumstances.” § 61.075(6). The final judgment states that the assets and liabilities were valued as of the date of the final hearing, December 15, 2005. The trial court indicated that this date was selected because the parties had attempted reconciliation and the Former Husband had purchased the townhouse and a 2004 BMW subsequent to the filing of the petition. There is no evidence that the trial court abused its discretion when it selected this date for the valuation of the townhouse.

The second asset that skews the equitable distribution plan is the previously referenced 2004 BMW. Use of the selected valuation date in relation to the vehicle, identified in the final judgment as an asset of the Former Wife, resulted in an abuse of discretion by the trial court. The Former Wife correctly asserts that including the vehicle valued at $23,500 in the equitable distribution scheme was improper because on December 15, 2005, the vehicle was no longer in her possession. The Former Wife testified that she was forced to sell the vehicle approximately two weeks prior to trial for $23,500 because the Former Husband had not been making child support or alimony payments and she had no other source of income.

The Former Wife cites to Plichta v. Plichta, 899 So.2d 1283 (Fla. 2d DCA 2005), in support of her argument that marital assets depleted during dissolution proceedings may not be included in the equitable distribution scheme of a final judgment unless marital waste is proven. In Plichta, this court reversed the trial court’s award of two IRA accounts to the husband because he had liquidated these accounts during the pendency of the dissolution proceedings. This court concluded that these depleted marital assets should not have been included in the equitable distribution scheme because the husband had used these marital assets to pay for his support, living expenses, some litigation costs, and no misconduct was asserted. Plichta, 899 So.2d at 1286.

In the present case the Former Wife testified that she had no way to pay her bills, and “they started cutting off the credit cards [she had] been living on.” She used the money to pay bills, to rent a car, and “the rest” was placed in a bank account. The parties stipulated at trial that as of December 15, 2005, the Former Husband owed $39,117.46 in child support and alimony arrearages. There was no evidence that the Former Wife wrongfully depleted marital assets when she sold the vehicle. The trial court abused its discretion when it included the value of this depleted asset in those assets awarded to the Former Wife. See Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998); Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2d DCA 1994).

Accordingly, we reverse the portion of the final judgment distributing the marital assets of the parties. On remand the trial court shall reconsider the equitable distribution plan and shall conduct an evidentia-ry hearing to determine the value of the Treasure Island townhouse. If the trial court again concludes that December 15, 2005, is the proper date of valuation for the 2004 BMW, it shall not include the vehicle in the assets of the Former Wife. Further, upon completion of the new distribution plan, if the trial court determines that the redistribution of assets results in an inequity to either party, it may revisit the alimony issue. In all other respects, the second amended final judgment is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

THREADGILL, EDWARD F„ Senior Judge, Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur with the majority’s decision to reverse the equitable distribution in this case and to remand for further proceedings. I would emphasize, however, that this case should not be interpreted to hold that an owner does not generally have the ability to provide competent, substantial evidence about the value of real property, or that some expert valuation is always required when two co-owners disagree on the value of real property. There are several factors that make this case unique. Further, if the value of the townhouse, which is undoubtedly the most valuable asset of this marriage, is significantly inflated, an equal distribution will prove an undue hardship for the wife and the couple’s child. For these reasons, I agree that further proceedings are required regarding the equitable distribution of marital assets.

The parties were married in 1980 and had three children. Two of the children are now adults, but the youngest is now twelve years old and has some significant health issues. The wife was a homemaker throughout the marriage and provided the primary care for the children. The husband was self-employed as an air conditioning contractor. Based upon the evidence presented at the final hearing, the court concluded that his annual income was $150,000. During the pendency of these proceedings, the husband engaged in conduct that suggested he might be disposing of or hiding income or assets.

The wife filed the petition for dissolution of marriage in 2001. At that time, the only real property the parties owned was the marital home. In 2003, however, the parties purchased the townhouse in Treasure Island and at some point, the wife and minor child moved into this townhouse. The purchase price for the townhouse was $495,000. Both parties agreed that the townhouse had increased in value by the time of the final hearing in December 2005, but the parties’ respective values were drastically different. The wife filed a financial affidavit indicating the value of the townhouse was $595,000, while the husband’s financial affidavit listed the value at $912,000. Both parties agreed that the husband should be awarded the marital home and that the wife should be awarded the townhouse. At some point during the trial, the wife indicated that she was no longer residing in the townhouse and wanted to sell it, but she ultimately objected to the court requiring a sale because neither party had sought a partition of the property. The valuation of the townhouse became a central dispute.

This was not a case, however, in which each party filed a financial affidavit listing their opinion of the value of the real property and provided no further evidence, leaving the trial judge to choose between two equally unsubstantiated values. If it were, we might be compelled to affirm the trial court’s choice of one co-owner’s unsupported opinion of value over the other co-owner’s equally unsupported opinion.

In this case, the value of the townhouse listed on the husband’s financial affidavit was not based upon his own opinion of value, but was in fact based upon an opinion provided to him by a realtor who had performed a simple and cursory market analysis of the property, sight unseen. At trial, the husband sought to introduce the testimony of the realtor and the realtor’s opinion that the value of the townhouse was $912,000. The wife objected to the realtor’s testimony and performed a voir dire of the realtor’s qualifications and basis of knowledge. Thereafter, the trial court ruled that the realtor was not qualified to provide an opinion on the fair market value of the townhouse.

Faced with this scenario, the husband’s trial counsel suggested that although the husband’s financial affidavit listed the value of the home at $912,000, the husband would be willing to permit the wife to sell the townhouse and to accept as the value the actual sale price thus obtained. The wife, however, objected to the court ordering a sale in the absence of a request for partition.

At the conclusion of the trial, the judge took the matter under advisement. Approximately two weeks later, the court issued the final judgment of dissolution of marriage. The judgment awarded the wife the primary residential responsibility for the minor child and required the husband to pay the wife $884 per month in child support and $4667 per month in permanent periodic alimony. The judgment found the husband was in arrears of temporary support obligations in the amount of $39,117.

As for the equitable distribution of marital assets, the judgment found the value of the townhouse was $912,000, even though that value was based upon the opinion of the realtor who had been held unqualified to testify to that opinion. Given that the parties agreed that the townhouse would be awarded to the wife and the marital home would be awarded to the husband, and given that the value placed on the townhouse was almost twice that of the marital home, the court then awarded the remaining marital assets, to the husband, with the exception of the wife’s car, jewelry, and the furnishings in the townhouse. This resulted in the wife obtaining marital assets (including the townhouse) with a net value of $663,000 and the husband obtaining marital assets with a net value of $443,984. Finding that an equal distribution was appropriate, the trial court ordered the wife to make an equalizing payment to the husband. This payment of $109,508 was reduced by the $39,117 the husband owed in temporary support obligations. The wife was ordered to pay the husband $70,391 within ninety days of the entry of the final judgment or upon the sale of the townhouse, whichever first occurred.

As the majority acknowledges, an owner of real property is ordinarily qualified to testify to the value of his or her own property. See, e.g., Beaty v. Gribble, 652 So.2d 1156, 1158 (Fla. 2d DCA 1995) (citing Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961)). Indeed, many dissolution of marriage actions resolve disputes regarding the value of marital assets solely. based upon the testimony of the parties, without the assistance of expert opinions on the fair market value of assets. When the parties fail to present evidence other than their personal opinions as to value, a trial judge ordinarily must choose between those values.

In this case, however, the husband did not simply offer his opinion of the value of the property as an owner. He explicitly relied upon a valuation provided by a realtor who was held incompetent to testify as to value. In fact, the husband thereafter recognized that the value was unsupported and sought to agree to a value based upon a future sale. Unfortunately, the wife, although purportedly intending to sell the property, would not agree to this resolution. Under these unique circumstances, the trial court did not have competent, substantial evidence to support a finding that the townhouse had a fair market value of $912,000. I therefore agree in reversing the equitable distribution in this regard.

Further, I agree that an evidentiary hearing on the value of the townhouse is required on remand. The exclusion of the husband’s expert during trial unexpectedly left the husband without competent evidence as to value. The wife presented no expert valuation, but relied only on a value from a line item in her financial affidavit. Both parties should be permitted on remand to fully address a proper valuation.

In addition, I would note that once the trial court determines the appropriate value of the townhouse and the wife’s vehicle, the court should reconsider the method of achieving an equitable distribution. I recognize that the parties agreed the townhouse was to be awarded to the wife. If the value of the townhouse is as high as suggested by the husband, an equal distribution may very well require a significant equalizing payment by the wife. However, requiring the unemployed wife to pay a lump sum of $70,000 within ninety days of a judgment that awards her child support and alimony to meet the daily needs of the wife and child certainly gives me pause.

      . By way of example, there was evidence that the husband had transferred over $200,000 in cash from a box buried in his backyard to a friend for safekeeping. Thereafter, the money disappeared and the friend signed a promissory note in favor of the husband in the amount of $150,000. Further, during these proceedings the husband was held in civil contempt and incarcerated for quite some time until he finally paid an $8000 purge.

      . The lack of additional evidence on the value of the townhouse might have been the result of events occurring immediately prior to the final hearing. The transcript reveals that the parties thought they had reached a partial agreement regarding certain issues, but the anticipated agreement fell apart as the attorneys sought to explain its terms to the court. This may explain why the wife was unprepared to offer additional testimony on the value of the townhouse.


author: DAVIS, Judge.

text:
    Kathryn MARELIA, Appellant/Cross-Appellee, v. YANCHUCK, BERMAN, WADLEY & ZERYOS, P.A.; Joel Peter Yanchuck, individually; Robin Lane, P.A.; Robin Richards Lane, individually; and Anthony W. Cunningham, Appellees/Cross-Appellants.
    No. 2D06-2257.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      Robert C. Widman of Morris & Widman, P.A., Venice, for AppellanVCross-Appel-lee.
    Scott W. Dutton of Haas, Dutton, Blackburn, Lewis, Guerra & Wainoris, Tampa, for Appellees/Cross-Appellants Yanchuck, Berman, Wadley & Zervos, P.A., and Joel Peter Yanchuck, individually.
    Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellees/Cross-Appel-lants Robin Lane, P.A., and Robin Richards Lane, individually.
    Hala Sandridge, Frank H. .Gassier, and Bonita Rneeland Brown of Fowler White Boggs Banker PA, Tampa, for Appel-lee/Cross-Appellant Cunningham.
   DAVIS, Judge.

In this legal malpractice action, Kathryn MarElia challenges the final judgment entered on the order granting the motion for summary judgment filed by the defendants below, Yanchuck, Berman, Wadley & Zervos, P.A.; Joel Peter Yanchuck, individually; Robin Lane, P.A.; Robin Richards Lane, individually; and Anthony W. Cunningham (collectively “Appellees”). We reverse.

These proceedings began when MarElia and her husband retained attorney Joel Peter Yanchuck to represent them in medical malpractice action seeking damages for the serious, permanent physical and mental disabilities suffered by their newborn son due to the allegedly negligent medical attention he received at birth. The couple subsequently retained attorneys Anthony W. Cunningham and Robin Lane to provide additional representation; Cunningham served as the lead attorney. Ultimately, on the advice of counsel, MarElia settled the malpractice action for $6.75 million, and the trial court approved the settlement.

In her complaint in the instant case, MarElia alleged that Cunningham had advised her that the settlement could be structured so that $2 million could be used to purchase two annuities that would provide a monthly payment for the benefit of the child in addition to a lump sum payment of $100,000 every three years. MarElia further alleged that she understood that these triennial payments were to be distributed to her and that they were not limited to the provision of care for the child.

In reliance on this advice, MarElia accepted the settlement agreement and the release, and Appellees prepared the necessary pleadings to obtain the trial court’s authorization to settle the claim. After the guardian ad litem approved the settlement, the trial court entered an order approving it as well. Subsequently, in an attempt to clarify the intent of the settlement agreement, Appellees submitted, and the trial court adopted, an amended order further describing the distribution of the proceeds.

MarElia and the child then moved to Gainesville, and the supervision of the guardianship of the child was transferred to Alachua County, where MarElia received the first triennial payment from the annuities. In accord with her understanding of the settlement agreement, she treated the payment as her individual property. However, the attorney ad litem for the ward took the position that the payments were intended solely for the benefit of the child and filed a declaratory action in Ala-chua County asking the court to clarify to whom the settlement agreement directed the triennial payments be made.

While the declaratory action was pending in Alachua County, MarElia sold half of her expectancy in the next triennial payment. As a result, the Alachua County circuit court entered an order directing the annuity companies not to pay the next triennial payment pending resolution of the declaratory action. When the purchaser of the expectancy failed to receive timely payment, he filed a debt collection action in Pennsylvania and obtained a consent judgment against MarElia for the $50,000 that the annuity company refused to pay plus court costs, attorney’s fees, and interest.

After further litigation in the declaratory action, the Alachua County circuit court entered an order (1) declaring that the amended order clarifying the intent of the settlement distribution was void as it was entered after the ten-day period allowed for filing a motion for rehearing, (2) finding that the settlement documents did not reveal an intent that the triennial payments were to be paid to MarElia individually, and (3) determining that the payments were, in fact, intended for the benefit of the child. This order was affirmed on appeal. Marelia v. Guardianship of Marelia, 767 So.2d 1208 (Fla. 1st DCA 2000) (table decision).

MarElia then filed the instant malpractice action against Appellees, alleging that if the attorneys had properly prepared the settlement documents to reflect the settlement distribution as they had described it to her and if the amended order reflecting same had been timely and properly obtained, she would have been entitled to receive the remaining triennial payments from the annuities individually, not on behalf of the child.

In response, Appellees moved for summary judgment, arguing that as a matter of law, MarElia could not demonstrate that she had suffered a loss. The trial court granted the motion, finding that the settlement documents and the order approving the settlement demonstrated that the parties intended the triennial payments to provide for the future needs of the child and his caretaker, not for MarElia individually. The trial court concluded that since this was the intent reflected by the documents, the order entered by the Alachua County circuit court finding that the amended order was void did not damage MarElia as she had no expectancy in the payments. Accordingly, the court concluded that MarElia “suffered no harm” as a result of the Alachua County circuit court’s order. The court also found that MarE-lia’s legal malpractice aetion was barred by the statute of limitations. We disagree with both conclusions.

Summary judgment is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Goeree v. Mirtsou, 923 So.2d 610 (Fla. 2d DCA 2006). Our review reveals genuine issues of fact as to Appellees’ legal representation of MarElia, precluding judgment as a matter of law.

The trial court here determined that there was no issue of fact as to whether the settlement documents and the order approving the settlement intended that the triennial payments be made for the benefit of the child. However, this conclusion misses -the mark. MarElia did not dispute that the settlement documents and resulting order reflected an intent to distribute the payments on behalf of the child; she claimed that they did reflect such an intent, albeit improperly, and that they did so as a result of her attorneys’ malpractice. Specifically, MarElia alleged that attorney Cunningham advised her that the triennial payments were to be hers, an allegation supported by Cunningham’s sworn testimony in the Alachua County proceeding where Cunningham indicated that he had worked with many parents of injured children and had’ found that such circumstances disturb and disrupt the parents’ life to such an extent that “they feel like after they’ve done it for a year or two or three or four that they feel nobody is aware of their lack of things in life.” He went on to add that in many cases, he had fashioned settlements that provide some recognition of what the parents give up in their lives to care for the injured child. Most important was the following exchange:

Q: Is the hundred thousand dollar annuity payment that is being made to Kathryn Marelia [sic], is that contingent on her taking care of Alexander? Is that payment to.her for working in the guardianship?
A: No, that was not intended to be that at all. It was intended [to] recognize just what I’ve just said.

Additionally, while the declaratory action was pending in Alachua County, apparently in response to the question of the intention of the parties in the settlement distribution, attorney Cunningham submitted an amended order to the trial judge in the medical malpractice case providing that the triennial payments were to be “paid to Kathryn Marelia [sic] to the exclusion of, and totally unconnected to her’s [sic] or any other persons [sic] payment for services performed as guardian of ALEXANDER CHARLES MARELIA....” The trial judge entered this order four years after the entry of the initial order approving the settlement.

Cunningham’s testimony and the language of the amended order clearly create issues of fact as to what Appellees advised MarElia regarding what the settlement would provide her, whether she accepted the settlement based on those representations, and whether, as a result of Appel-lees’ negligence in drafting the pleadings and documents and in failing to obtain an order approving the distribution as represented to her, she was denied the triennial payments they had led her to believe she would receive. The trial court’s conclusion that the settlement documents and order approving the settlement do not reflect this intent is the very heart of the alleged negligence in the legal malpractice action. If the documents and the order of approval fail to demonstrate the intent and that failure contradicts advice and assurance Appellees provided to MarElia at the time she accepted the offer, MarElia suffered a loss. Accordingly, a question of fact remains as to what representations Appellees provided MarElia regarding the settlement distribution and whether she reasonably relied upon those representations in accepting the settlement offer. If, in fact, the documents drafted by Ap-pellees in the settlement process fail to accurately reflect those representations, representations which MarElia asserts she reasonably relied upon in making her decision regarding the settlement offer, then MarElia’s loss of the triennial payments was the result of that failure. Since genuine issues of material fact remain, the trial court erred in granting summary judgment.

Cunningham argues on appeal that even if the attorneys had advised MarElia that she would receive the payments individually, even if the documents were not properly drafted, and even if the amended order had been timely submitted, MarElia still would not have been entitled to the triennial payments. Cunningham maintains that if the guardian ad litem had received a settlement distribution proposal requiring the payments be made to MarElia individually, he would have objected to the settlement proposal and the trial court would not have entered the order approving the settlement. Accordingly, Cunningham argues, MarElia cannot show that she was damaged by the acts of Appellees.

We reject that argument. What the guardian ad litem would have done had he received such documents is, at best, speculation. In his deposition testimony, when asked what he would have done if he had known the triennial payments were to be made to MarElia individually, the guardian ad litem responded:

I would, have made some inquiry on why it was going to be paid to the mother as opposed to the minor child to determine whether there was indeed a reasonable basis, you know, to do that.
Because I do recall that the mother was driving the minor child to — for medical care. I probably would have insisted that I interview the mother before I made a recommendation with respect to that.

Moreover, Cunningham himself testified that he had obtained such settlements in the past for other clients. Impliedly, these settlements received the approval of a guardian ad litem. Finally, the trial court actually signed an amended order approving such a distribution. It would be error to conclude that there is no genuine issue of fact as to whether the trial court would reject any proposed order authorizing payment to MarElia individually. Because it cannot be determined by summary judgment what the guardian ad litem might have done or what the trial court might have decided had the settlement pleadings, documents, and the order approving the settlement been drafted and submitted in accord with what MarElia alleged the attorneys represented to her, the argument must be rejected.

The only basis that would support the trial court’s conclusion that MarElia has not incurred a loss as a matter of law would be a conclusion that the law would not allow an individual parent, like MarE-lia, to receive payment from such a settlement for her individual use. However, Appellees did not argue this either at trial or on appeal. Since the only rationale given for the summary judgment was that MarElia suffered no loss because the documents and order did not reveal what MarElia claimed the intent to be, we conclude that the trial court erred, in entering final judgment on this basis.

The trial court also concluded that MarElia’s action was barred by the statute of limitations because the debt collection judgment in the Pennsylvania court put MarElia on notice of her potential cause of action for legal malpractice, which she was required to file within two years after the date of that judgment. Since her complaint was filed beyond the two-year period, the trial court concluded that the suit was barred. We disagree. The judgment entered by the Pennsylvania court did not determine whether MarElia was entitled to the triennial payments. This was not determined until the issuance of the decision by the Alachua County circuit court. It was that decision that placed MarElia on notice of her potential malpractice action.

Appellees suggest that even if the Ala-chua County circuit court had ruled in MarElia’s favor, the Pennsylvania judgment still put MarElia on notice that she had incurred a loss for the amount of the judgment that was in excess of the amount of the portion of the triennial payment that MarElia had assigned. This excess represented fees, costs, and interest. Appellees suggest that this loss to MarElia caused the statute of limitations to begin to run.

We disagree. If MarElia was placed on notice that she was to incur a loss even if she prevailed in the Alachua County circuit court, that loss would not have been attributable to Appellees. Accordingly, the. statute of limitations limiting the time in which MarElia must file her legal malpractice action against Appellees would not have begun to run until entry of the Alachua County circuit court’s order determining that the amended order approving the settlement was null and void and that the settlement documents failed to disclose the parties’ intent that the triennial payments were to be paid to MarElia individually. The trial court erred in granting summary judgment based on the expiration of the statute of limitations.

Finally, given our determination that the statute of limitations did not bar MarElia’s action, we decline to address the issue on cross-appeal, in which Appellees/Cross-Appellants argue that the statute of limitations had run on MarElia’s entire claim.

Reversed and remanded.

SILBERMAN, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Because MarElia and her husband divorced prior to the commencement of this lawsuit, he is not a party to this action.

      . Specifically, the plan called for the purchase of two annuity agreements at the cost of $1 million each. The monthly payments from the two annuities together would total $5000, and each triennial payment would be $100,000. These payments would continue for the life of the minor child and would be guaranteed for forty years.

      . The court also noted that the amended order was entered without Mar Elia’s attorney providing notice of the same to the guardian ad litem and without providing the guardian ad litem the opportunity to respond to the proposed amendment.

      . All parties agree that the last amended order entered some four years after the initial order and without a hearing or notice to the guardian for the child was void. However, the fact that the trial judge approved the concept of the funds going to the mother raises a factual issue as to what would have happened if the settlement documents and approval had been properly handled initially.