author: GROSS, C.J.

text:
    Steve A. McKENZIE, Brenda G. Lawson, and McKenzie Check Advance of Florida, LLC d/b/a National Cash Advance, and Unknown Entities and Individuals, Appellants, v. Wendy BETTS and Donna Reuter, individually and on behalf of others similarly situated, Appellees.
    Nos. 4D08-493, 4D08-494.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.

      See also, 825 So.2d 1070, 879 So.2d 667, 928 So.2d 1204, and 27 So.3d 661.

      Virginia B. Townes, Lawrence P. Roche-fort and Carrie Ann Wozniak of Akerman Senterfitt, West Palm Beach, Raoul Cante-ro and Jaime Bianchi of White & Case, LLP, Miami, and Claudia Callaway of Kaf-tén Muchin Rosenman LLP, Washington, D.C., for appellants.
    F. Paul Bland, Jr., and Amy Radon of Public Justice, Washington, D.C., Theodore J. Leopold and Diana L. Martin of Leopold Kuvin, P.A., Palm Beach Gardens, Christopher C. Casper of James, Hoyer, Newcomer & Smiljanieh, P.A., Tampa, E. Clayton Yates of Yates & Mancini, LLC, Fort Pierce, and Richard A. Fisher of Richard Fisher Law Office, Cleveland, TN, for appellees.
    James Kowalski, Jr. of the Law Offices of James A. Kowalski, Jr., PL, Jacksonville, and Deborah Zuckerman, Washington, D.C., for Amicus Curiae AARP.
   GROSS, C.J.

The issue in this non-final appeal is whether the class action waiver in an arbitration agreement between McKenzie Check Advance and one of its customers violated public policy. The trial court found that the waiver went against public policy and denied McKenzie’s motion to compel arbitration. McKenzie appeals. The record below supports the trial court’s conclusion that consumers would not be able to obtain competent counsel in their actions against McKenzie for allegedly usurious rates on its payday loans if the claims could not be brought in a class action. Also, the waiver in this case would ban the borrower from being a member of a class action suit, even one initiated by an “enforcing authority” contemplated by statute. This result would prevent a consumer from vindicating the rights that consumer protection statutes are designed to create and nurture. The class action waiver therefore violates public policy, and we affirm.

Facts

Plaintiffs Donna Reuter and Wendy Betts filed a class action complaint against McKenzie and its majority owners and managing officers, Steve McKenzie and Brenda Lawson, in 2001. The plaintiffs asserted claims based on the Florida’s usury and interest statutes, the Florida Consumer Finance Act, the Florida Deceptive and Unfair Trade Practices Act (FDUT-PA), and the Florida Civil Remedies for Criminal Practices Act (FCRCPA). The gravamen of the plaintiffs’ complaint was that the defendants, under the deceptive guise of a check cashing service, were in reality loaning money to Florida consumers at usurious rates. This case has been up and down the judicial ladder for reasons not relevant here.

The issue in the instant appeal arose when, in 2007, the plaintiffs amended them complaint to include an additional plaintiff. This new plaintiff was Tiffany Kelly; her contracts with McKenzie included an arbitration agreement with a class action waiver. McKenzie moved to stay the proceedings and compel arbitration. The plaintiffs objected to arbitration, claiming the class action waiver was unconscionable, violated public policy, or both. The challenge to the arbitration agreement necessitated an evidentiary hearing.

At the hearing, Kelly testified she was a 24-year-old single mother with a year of college education. Money was tight — she had been turned down for public assistance and her bank would not give her a loan. A co-worker told her about McKenzie. Though embarrassed, she needed money so desperately that she went to a McKenzie store to obtain a cash advance on her paycheck. She described this first transaction with McKenzie. McKenzie gave her documents to review and initial. While she did not read the documents thoroughly, Kelly admitted that no one discouraged her from doing so. She was, however, anxious to receive the advance, and she knew she had to sign the documents to receive it.

The contract’s arbitration agreement included the following provisions:

3. .. THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS PARENS PATRIAE, AS A PRIVATE ATTORNEY GENERAL OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.
4. All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any complaint, counter-claim, third party complaint, class action, or any other dispute which cannot be adjudicated within the jurisdiction of the small claims tribunal shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved de novo by binding arbitration.
5. You acknowledge and agree that by entering into this Agreement:
(a) YOU ARE WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST U.S. OR RELATED THIRD PARTIES;
(b) YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST U.S. OR RELATED THIRD PARTIES; and
(c) YOU ARE WAIVING YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PARENS PATRIAE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST U.S. AND/OR RELATED THIRD PARTIES....

(Emphasis in original.) The class action waiver thus applied to both arbitration and litigation. The contract gave Kelly her choice of arbitrators, required McKenzie to advance the costs of arbitration, and preserved her substantive rights. The parties stipulated that, if the class action waiver was held to be unenforceable, the arbitration agreement should be stricken.

Kelly signed the contract, gave McKenzie a $338 check in exchange for $300 cash, and left. She understood she would have to redeem the check within ten days or McKenzie could present it for payment. During the putative class period, Kelly ultimately engaged in twenty-one more payday loans with McKenzie. She paid a total of $860 in fees. When she entered into the transactions, Kelly testified she assumed they were legal: “If it was against the law, [the defendants] wouldn’t be allowed to operate. At least that’s what I would assume.”

The parties presented evidence on whether the class action waiver left McKenzie’s customers without a -viable means of seeking redress for the alleged violations of Florida law. Kelly presented the expert testimony of three Florida attorneys. The three testified that, absent the class action mechanism, Florida customers who wanted to challenge the practice of payday advance businesses would not be able to obtain competent legal representation.

The first attorney to testify was Bambi Lynn Drysdale, who had practiced consumer litigation in a legal aid office for almost twenty years. She testified it was “virtually impossible” for an individual consumer to find an attorney for a payday loan case. She did not know of any attorneys in Florida who represented individual consumers in such cases because of the resources required and the small amounts involved. These economics changed, however, when class representation was available. Drysdale had never been successful in her attempts to refer individual payday lending cases to other, private lawyers.

Steve Fahlgren testified next. Fahl-gren explained that the issues involved in payday advance lawsuits were complicated. He knew of no lawyer in Florida who would take on such a case for a contingency fee; he implied that individual plaintiffs could not afford to pay by the hour. Although FDUTPA allowed for permissive prevailing party attorney’s fees, the small amounts usually recovered affected the amount of fees awarded by judges. He suggested that costs to bring the claim could exceed $100,000. Fahlgren admitted he had represented individuals on claims much smaller than Kelly’s, but he maintained the issues in those cases were much simpler; for example, an employer wrongfully withholding an employee’s last paycheck. He had never represented someone in a payday loan case and would decline to do so.

The third attorney called by the plaintiffs was Richard Neill. He testified that a competent lawyer would not take on representation of an individual in a payday loan case. Payday loan cases implicated complex issues, such as FDUTPA, usury, and civil RICO. These issues would take a substantial amount of time. Additionally, the defendant corporations could be expected to retain excellent attorneys. A plaintiffs lawyer had to “rely on a judge adequately compensating him at the end” of the case. Like Fahlgren, Neill testified that most payday loan clients could not afford to pay their attorneys an hourly fee. He concluded: “[I]n order to put the work into the situation that needs to be done, I think it needs to be representation of a class of people so that your claim collectively justifies the effort the lawyer’s got to put out.” Neill stated his opinion applied equally to individual arbitrations because “[fit’s the same process basically, you just substitute an arbitrator for the judge and actually in some ways it’s more expensive and more cumbersome.”

Concerning arbitration, the parties stipulated that no payday loan arbitration claims had been filed against McKenzie from the beginning of its business through October 2001.

In contrast to the plaintiffs’ evidence, McKenzie presented expert testimony from other attorneys. John Koenig stated he would take a payday loan case, that other attorneys would take such cases, and that the legal issues involved in these cases were not particularly complex. Koenig thought that payday loan cases were winnable, and, because of the availability of attorney’s fees he would likely recover fees. Although Koenig had not represented any payday loan plaintiffs himself, he observed represented plaintiffs in individual payday loan cases at pretrial conferences in small claims court. He could not recall any of the specifics of these cases, including the issues. The stipulated testimony of another attorney was similar; that attorney would have represented individual payday loan eases, but had not done so before, and did not know of any other attorney who had.

Through the testimony of Lloyd Comi-ter, McKenzie presented evidence of hundreds of small claims complaints in the state courts in Palm Beach County and Orange County, and the federal Southern District Court, between 2005 and 2007. McKenzie did not specifically locate any usury claims against payday lenders. It did, however, locate cases where attorney-represented plaintiffs brought small-value individual complaints involving FDUTPA, misrepresentation, civil conspiracy, truth-in-lending, fair debt collections violations, fair credit reporting violations, and the like. Nothing in McKenzie’s evidence pinpointed either the plaintiffs’ degree of success in those cases or the adequacy of the compensation of plaintiffs’ counsel. McKenzie did not present the testimony of any lawyer who had seen a represented plaintiff prevail in a payday loan case.

Faced with this evidence, the trial court denied McKenzie’s motion to compel arbitration. In its order, the court found that the class action waiver was substantively but not procedurally unconscionable, so overall the waiver was not unconscionable. Nonetheless, the court found that the class action waiver violated public policy. The statutes the plaintiffs sued upon were remedial in nature, designed not for the sole benefit of an individual but to protect the wider public. The court weighed this remedial purpose against the effect of the class action waiver and found the waiver wanting.

Enforcement of the class action waiver, the court reasoned, “would defeat the implicated statutes’ remedial purposes and undercut their deterrent value.” While the evidence was disputed, the court found that the greater weight of the evidence proved it would be “virtually impossible” for a plaintiff to attract competent counsel absent the opportunity for a class action. The court found no other reasonable avenue for relief available. Finding that the ban thus violated public policy, the court denied McKenzie’s motion to compel arbitration, and McKenzie appeals.

Analysis

On appeal, McKenzie argues that its class action waiver does not defeat the remedial purposes of the statutes upon which the plaintiffs sued. The plaintiffs urge us to defer to the trial court’s factual findings that enforcement of the waiver would deprive consumers of competent legal representation, so they would be unable to pursue their claims that McKenzie violated Florida law. We agree with the plaintiffs that the trial court’s findings of fact support its legal conclusion that the waiver violates public policy because it defeats the statutes’ remedial purposes.

The trial court’s decision was based in part on factual findings, so it presents this court with a mixed question of law and fact. Gainesville Health Care Ctr. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003). The trial court’s factual findings will be upheld if based on competent, substantial evidence. Id. Our review of the trial court’s application of the law to its supported factual findings is de novo. Id. at 283.

First, we review the general law on the validity of arbitration agreements. Second, we discuss this court’s decision in Fonte v. AT & T Wireless Services, Inc., 903 So.2d 1019 (Fla. 4th DCA 2005), explain why Fonte is factually distinguishable from this case, and demonstrate why the waiver in this case nullifies a central assumption supporting the holding in Fonte. Third, we place Fonte and this case in context by discussing class action waiver cases from other jurisdictions. Finally, we explain why our holding pays due respect to separation of powers.

Arbitration Agreements and Contract Law

When evaluating a motion to compel arbitration, a trial court must consider three elements: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The parties’ arguments fall under the first element— whether the arbitration agreement containing the class action waiver is valid.

The general background for this case was explained by the First District in Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999):

An arbitration clause in a contract involving interstate commerce is subject to the Federal Arbitration Act. See Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)....
Although the states may not impose special limitations on the use of arbitration clauses, the validity of an arbitration clause is nevertheless an issue of state contract law. Section 2 [of the FAA] states that an arbitration clause can be invalidated on such grounds as exist “at law or in equity for the revocation of a contract.” [9 U.S.C. § 2.] Thus, an arbitration clause can be defeated by any defense existing under the state law of contracts. As the Court explained in [Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) ], “generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening [the FAA].” 517 U.S. at 687, 116 S.Ct. 1652.

Id. at 573-74 (footnote omitted) (parallel citations omitted).

One of these generally applicable Florida contract defenses is that enforcement of the contract will violate public policy. In particular, a contractual provision that defeats the remedial and deterrent provisions of a statute is contrary to public policy and is unenforceable. See Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 298-99 (Fla. 4th DCA 2005) (en banc). A remedial statute is one that is designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good. Adams v. Wright, 403 So.2d 391, 394 (Fla.1981). Consumer protection statutes such as FDUTPA are remedial in nature and are to be broadly construed to effectuate their purpose. See Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So.2d 274, 279 (Fla. 4th DCA 2004).

Having reviewed this framework, we now turn to the specific issue in this case: whether McKenzie’s class action waiver violates public policy because it defeats the remedial provisions of Florida statutes.

Fonte Does Not Mandate Reversal

We previously encountered the class action waiver issue in Fonte v. AT & T Wireless Services, Inc., 903 So.2d 1019 (Fla. 4th DCA 2005), where we held that an arbitration clause’s class action waiver did not defeat FDUTPA’s remedial purpose. In asking us to reverse the trial court’s denial of them motion, McKenzie asserts that the trial court ignored Fonte. We conclude, however, that this case is factually distinguishable from Fonte.

In Fonte, the plaintiff filed a proposed class action against AT & T alleging, among other things, a violation of FDUT-PA by unilaterally changing customer rate plans. Id. at 1021. AT & T moved to stay the proceeding and compel arbitration. Id. at 1023. The trial court held an evi-dentiary hearing, at which the plaintiff and AT & T’s salesman testified. Id. at 1021-23. They testified on the circumstances surrounding the transaction in which the plaintiff bought wireless service from AT & T. Id. The terms and conditions of the service agreement contained an arbitration clause in which customers waived any right to pursue their claims in class actions. Id. at 1022. Because no attorney testified at the hearing, there was no testimony on whether the class action waiver affected the ability of consumers to obtain competent legal representation in pursuing their claims against AT <& T. The trial court granted AT & T’s motion to compel arbitration, finding that the challenged contractual provisions were not procedurally or substantively unconscionable. Id. at 1023. The plaintiff appealed the order and argued that the arbitration clause was unenforceable. Id.

This court considered whether AT & T’s class action waiver was void as a matter of law; that is, whether it defeated the remedial purpose of FDUTPA. Id. at 1024. We held that “in this case the arbitration clause’s bar on class representation does not defeat any of the remedial purposes of FDUTPA.” Id. The court quoted Randolph v. Green Tree Financial Corp.-Alabama, 244 F.3d 814, 817 (11th Cir.2001):

[A] class action is an available, important means of remedying [certain] violations .... However, there exists a difference between the availability of the class action tool, and possessing a blanket right to that tool under any circumstance .... An intent to create such a “blanket right,” a non-waivable right, to litigate by class action [must] be gleaned from the text and the legislative history.

Fonte, 903 So.2d at 1024-25 (alterations in original). We did not find the intent in FDUTPA’s text or history to create that non-waivable right. Id. at 1025.

More importantly, we noted that “there are numerous enforcement mechanisms which can protect consumers other than class actions,” including small claims suits, arbitration, and administrative enforcement. Id. “This additional enforcement mechanism presents,” we wrote, “an added deterrent effect to violators if private enforcement actions should fail to fulfill that role,” as well as “another possible avenue of recovery for consumers.” Id. Accordingly, on the issue of whether the class action waiver violated public policy, we affirmed. Id.

McKenzie invites us to read Fonte as creating a categorical rule that class action waivers do not violate public policy. We reject this invitation. Instead, we agree with the trial court that Fonte is distinguishable on its facts. In Fonte, the plaintiffs did not present the trial court with evidence that competent counsel would not represent individual plaintiffs on these small claims. Without such evidence, we could not say in Fonte that the class action waiver there violated public policy.

Here, however, the plaintiffs presented expert testimony from three Florida attorneys. The attorneys testified that Florida customers who wanted to challenge the practice of payday loan businesses would not be able to obtain competent representation absent the class action mechanism. This was because the issues were complex and time-consuming — and there was a substantial risk that a circuit court would award inadequate compensation at the end of a successful case. In our view, this evidence established that individuals could not secure competent representation to pursue small claims actions against McKenzie. Indeed, one attorney testified that she had never been able to successfully refer a payday loan case to a private attorney.

The above conclusion likewise applies to the part of the waiver concerning arbitration. One of the attorneys testified that the conclusion that individual plaintiffs could not obtain counsel for small claims suits also applied to individual arbitration claims. The parties’ stipulation that no arbitration claims had been filed against McKenzie from the start of its business through October 2001 corroborates the attorney’s testimony.

Competent, substantial evidence supports the trial court’s finding that no other reasonable avenue for relief would be available if it enforced the class action waiver. Attorneys would not represent consumers in individual small claims suits. The inability to bring a class action suit against McKenzie would eviscerate the remedial purposes of the relied-upon statutes. Only with the availability of class representation would consumers’ rights in these payday loan transactions be vindicated. The class action waiver violates the public policy of FDUTPA and FCRCPA. Pursuant to the parties’ agreement below that the class action waiver cannot be severed, the trial court properly struck the arbitration agreement.

The facts were disputed. The trial court chose to rely on the plaintiffs’ evidence, and it was privileged to do so. We will not disturb the court’s resolution of the disputed evidence on appeal.

A second factor both supports the trial court’s conclusion that the class action waiver violated public policy and distinguishes this case from Fonte. The waiver in this case precludes a borrower from “participat[ing] as a member of a class of claimants, in any lawsuit filed against [McKenzie] and/or related third parties.” In Fonte, this court found that a class action ban was not violative of public policy in part because of the availability of the enforcing authority to bring actions for the benefit of consumers. Under FDUTPA, section 501.207(l)(c) permits the enforcing authority to bring “an action on behalf of one or more consumers ... for the actual damages caused by an act or practice in violation of this part.” The class action waiver here purports to prevent a borrower from joining this type of government initiated enforcement action, thus eviscerating a potent enforcement mechanism put in place by the Legislature to deter deceptive or unfair trade practices. Because the arbitration provision prevents a consumer from benefitting from even those cases brought by an enforcing authority, it violates public policy.

In coming to our conclusion, we have reconciled the tension between the policy generally favoring the enforcement of arbitration agreements, see Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999), and the public policies underlying the remedial statutes. Because the FAA provides that general contract law defenses can invalidate arbitration agreements, these sets of policies do not stand on equal footing. See Powertel, Inc. v. Bexley, 743 So.2d 570, 573-74 (Fla. 1st DCA 1999). In this case, the general policy in favor of arbitration must give way to the Florida public policy that prompted the legislature to enact consumer protection statutes. The public interest favors a consumer’s ability to effectively pursue statutory rights over McKenzie’s ability to craft a contract that nullifies the statutory protections.

A contrary finding is not required by our reliance in Fonte on Randolph, where the Eleventh Circuit enforced a class action waiver. Randolph and similar cases, which consider the validity of class action waivers in light of federal statutes, are distinguishable from cases evaluating class action waivers in light of state law.

The precise issue in Randolph was whether the Federal Truth in Lending Act’s text, its history, or an inherent conflict between arbitration and TILA’s policies demonstrated that Congress intended to grant to individuals a non-waivable right to class action. 244 F.3d at 817-19. This was because federal statutory claims should be arbitrated pursuant to agreements to do so absent clear congressional direction to the contrary. Id. at 816-17. The court held that, while TILA’s text and history specifically contemplated class actions, Congress had not intended to grant to individuals a non-waivable right to class action. Id. at 817-18. See also Johnson v. W. Suburban Bank, 225 F.3d 366 (3d Cir. 2000); Snowden v. Checkpoint Check Cashing, 290 F.3d 631 (4th Cir.2002); Livingston v. Assocs. Fin., Inc., 339 F.3d 553 (7th Cir.2003); Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331 (11th Cir.2000).

Cases like Randolph, “which address whether a federal statute impliedly limits arbitration, are obviously not binding on this court when it decides whether class [action] waivers are unconscionable [or otherwise invalid] under state law principles.” Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100, 1114 n. 6 (2005). In any case, holding that a class action waiver does not apply to this case’s claims against a payday lender does not create a blanket right to class action in the relevant statutes.

Further, McKenzie argues that invalidating its class action waiver will turn the procedural vehicle of the class action into a substantive right. To the contrary, in holding this class action waiver void as against public policy, we allow these plaintiffs the use of the procedural vehicle of a class action to pursue their claims against McKenzie. To do otherwise, given the facts of this case, would mean the plaintiffs would be deprived of the substantive rights the legislature has given them in the remedial statutes. See id. at 1109 (“[C]lass actions and arbitrations are, particularly in the consumer context, often inextricably linked to the vindication of substantive rights. Affixing the ‘procedural’ label on such devices understates their importance and is not helpful in resolving the unconscionability issue.” (footnote omitted)); Kristian v. Comcast Corp., 446 F.3d 25, 54 (1st Cir.2006) (“[T]he class action (and class arbitration) [is] a procedure for redressing claims— and not a substantive or statutory right in and of itself — [but] we cannot ignore the substantive implications of this procedural mechanism.”).

Other Cases on Class Action Waivers

McKenzie asserts that Fonte dictates a reversal of the trial court’s order. But, in reaching our holding, we are mindful that neither Fonte nor this case exists in a legal vacuum. Courts around the country have struggled to resolve whether class action waivers are invalid under state law. See generally William M. Howard, Annotation, Validity of Arbitration Clause Precluding Class Actions, 13 A.L.R.6th 145 (2006) (Westlaw version updated weekly). We have discerned three categories of such cases. Our review of the cases supports our holding.

The first category involves statutes that provide for fees; no evidence is presented indicating that awards will be inadequate or unlikely. Here, courts will assume that an individual plaintiff can obtain competent representation. Our decision in Fonte is an example of one of these cases. Another is Jenkins v. First American Cash Advance of Georgia, LLC, 400 F.3d 868 (11th Cir.2005), upon which McKenzie relies. Fonte is consistent with Jenkins.

In Jenkins, the district court denied a pay day lender’s motion to compel arbitration based on arbitration clauses containing class action waivers. Id. at 871-73. The district court found the clauses unenforceable as unconscionable. Id. at 877. The district court had “speculated that a borrower who attempts to pursue her claim individually based on one loan transaction would ‘probably’ be unable to obtain a lawyer.” Id. (quoting Jenkins v. First Am. Cash Advance of Ga., LLC, 313 F.Supp.2d 1370, 1375 (S.D.Ga.2003)).

Relying on its previous decisions enforcing class action waivers, the Eleventh Circuit reversed. Id. at 877-78. “In addition,” the court wrote, “the district court’s contention that consumers would likely be unable to obtain legal representation without the class action vehicle is unfounded.” Id. at 878. Because Georgia’s RICO statutes provided for prevailing party attorney’s fees, the court concluded that the consumer “can presumably recover attorneys’ fees and costs if she prevails.” Id. Similarly, “arbitration agreements prohibiting class action relief do not necessarily choke off the supply of lawyers willing to pursue claims on behalf of debtors.” Id. (quotation omitted). There was no evidence presented in the district court that the consumers would be unable to find competent attorneys to handle them cases. Nonetheless, the Eleventh Circuit speculated that, “when the opportunity to recover attorneys’ fees is available, lawyers will be willing to represent such debtors in arbitration.” Id.

Ultimately, the Eleventh Circuit held that “precluding class action relief will not have the practical effect of immunizing” the defendant pay-day lender. Id. Because the arbitration clauses allowed consumers to vindicate their substantive rights in arbitration, the class action waiver did not make the clauses substantively unconscionable. Id. Like Fonte, this case is different from Jenkins because neither the trial court nor this court needs to speculate or presume — the plaintiffs presented expert testimony on their ability to secure counsel which the trial court found to be credible.

In the second category of cases are statutes that do not provide for awards of attorney’s fees, and statutes that provide for them but limit the probability they will be awarded or limit their amount. In such cases, a court may examine the statutes themselves to determine that an individual plaintiff cannot obtain competent representation. McKenzie cites to Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir.2007), which falls into this category.

In Dale, the Eleventh Circuit reversed an order granting Comcast’s motion to compel arbitration, finding the class action waiver unconscionable. Id. at 1218-19. The circuit court’s decision turned on the statutes on which the plaintiffs sued. The Georgia statute did not allow attorney’s fees unless the plaintiff pleaded and the jury found that the defendant corporations acted in bad faith. Id. at 1222-23. The federal statute, 47 U.S.C. § 542, did not provide for attorney’s fees. Id. at 1217, 1222.

The Eleventh Circuit declined to read a previous case, Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir.2005), as “requir[ing] us to conclude the class action waiver is enforceable.” Id,, at 1221. The statutes in Caley mandated reasonable attorney’s fees. See id. at 1221 n. 8. Thus, “[i]n Caley, we determined only that under the specific facts of that case, the [dispute resolution policy] prohibiting class actions was enforceable, not that every class action waiver is enforceable under Georgia law.” Id. at 1221 (footnote omitted). Following from this observation, the Eleventh Circuit adopted a “totality of the circumstances” test under which class action waivers would be considered on a case-by-case basis. Id. at 1224.

The federal circuit court concluded that, “[without the benefit of a class action mechanism, the subscribers would effectively be precluded from suing Comcast.” Id. at 1223-24. This was because it would “be difficult for a single subscriber to obtain representation” when the federal statute did not provide for attorney’s fees and the Georgia statute provided for them only when the defendant corporation acted in bad faith. Id. at 1224. In particular, “the potential recovery of attorneys’ fees and litigation costs under [the Georgia statute] does not provide the same incentive for an attorney to represent an individual plaintiff as the automatic, or likely, award of fees and costs available to a prevailing plaintiff for the claims asserted” in Jenkins, Caley, and Randolph. Id. at 1223. Thus, “based on the totality of circumstances,” the court concluded that “the Comcast class action waiver is unconscionable.” Id. at 1224.

We recognize that the instant case differs from Dale, because, unlike in that case, the statutes here at issue allow for attorney’s fees, FCRCPA entitles the prevailing party to reasonable fees, and FDUTPA allows for awards of reasonable fees and costs. That these statutes provide for fees is not, however, dispositive.

Like the first category, the third category of cases addressing class action waivers also involves statutes that provide for fees. But, in these cases, the plaintiff presents evidence that adequate fee awards are unlikely. Confronted with such evidence, courts need not assume that the plaintiff can obtain competent counsel for an individual claim. It is in this category that we find the class action waiver case closest to the instant one: Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir.2006).

In Kristian, the First Circuit invalidated a class arbitration waiver because it prevented the plaintiffs from vindicating their statutory rights. The court essentially applied state contract law, because section 2 of the FAA operated to import state contract law doctrines into federal law, creating a “federal substantive law of arbitrability.” Id. at 63-64. The plaintiffs had sued Comcast for violations of state and federal antitrust statutes, and Comcast invoked the arbitration agreements. Id. at 29. The district court held that the arbitration agreements did not apply to the plaintiffs. Id.

The First Circuit disagreed, making it necessary to address the class arbitration waiver. Id. The court began by writing that “the legitimacy of the arbitral forum rests on the presumption that arbitration provides a fair and adequate mechanism for enforcing statutory rights.” Id. at 54 (quotation omitted). It found the “[t]he bar on class arbitration threatens the premise.” Id.

Both the state and federal statutes permitted the recovery of reasonable attorney’s fees. See id. at 30-31 (citing Mass. Gen. L. ch. 93, § 12; 15 U.S.C. § 16(a)). The circuit court relied on the plaintiffs’ unopposed expert affidavits, “which describe the great expense and labor required by such a case.” Id. at 58. The experts agreed “that to prosecute their antitrust claims successfully, Plaintiffs will have to undertake an elaborate factual inquiry” leading to significant fees and costs — all for an individual recovery that “will range from a few hundred dollars to a few thousand dollars at most.” Id. This complexity cast doubt on the assertion “that the availability of attorney’s fees provides the necessary incentive” for individual actions. Id. Attorneys would have to invest a large outlay for only a portion of an individual plaintiffs small recovery, and recovery itself was not certain. Id. at 58-59. Given the likelihood that an attorney would not be paid at all, “the appeal for an attorney to take on an individual plaintiffs antitrust claim shrinks even further.” Id. at 59.

Accordingly, the class arbitration waiver undermined the presumption that arbitration provided a fair and adequate mechanism for enforcing statutory rights. Id. at 58. The affidavits showed that, “without some form of class mechanism — be it class action or class arbitration — a consumer antitrust plaintiff will not sue at all.” Id. This result would undercut the remedial and deterrent effects of antitrust laws, and essentially immunize Comcast. Id. at 61. Because the plaintiffs “will be unable to vindicate their statutory rights,” the court held the class arbitration waiver unenforceable. Id. at 61-63.

Both Kristian and this case involve statutes that permit the recovery of attorney’s fees; this case also involves a statute that mandates fees. The evidence in this case established that, even if an individual plaintiff prevailed, he may be able to recover only an inadequate amount in fees. Given the expert testimony relied upon by the trial court, an inadequate award is likely even when fees are mandatory. This result prevents individual plaintiffs from obtaining competent representation to pursue their claims against payday lenders. Like the class arbitration waiver in Kristian, the class action waiver in this case, which prohibits both class arbitration and litigation, prevents individual plaintiffs from vindicating their statutory rights.

Separation of Powers

Finally, we emphasize that our decision respects the separation of powers. Public policy is best determined by the legislature and not the courts. The legislature made its policy choice clear, however, when it enacted the statutes at issue; these statutes introduce regulations conducive to the public good, facilitate both pub-lie and private enforcement of the statutes, and provide for the redress of violations.

Instead of overturning the legislature’s choices, the trial court’s factual determinations reflect the principle underlying the decisions invalidating class action waivers: In some circumstances, the class action procedure ensures that a remedial statute’s provisions for private enforcement achieve their legislatively intended effect when they otherwise would not.

Indeed, nothing in the remedial statutes implicated in this case prohibits or disapproves of class actions. Cf. Honig v. Comcast of Ga. I, LLC, 537 F.Supp.2d 1277, 1289 (N.D.Ga.2008) (finding a class action waiver not unconscionable because “[i]t is inconceivable that precluding class-wide relief is against public policy when the Georgia legislature expressly excluded this avenue of relief’ under the statute the plaintiff relied on). Rather, the circuit court’s decision gives life to those remedial purposes of the statute which prompted the legislature to take action in the first place.

⅞? ⅜ ⅜ :[{ ⅜ ⅜

In sum, we affirm the trial court’s order denying McKenzie’s motion to compel arbitration. Because payday loan cases are complex, time-consuming, involve small amounts, and do not guarantee adequate awards of attorney’s fees, individual plaintiffs cannot obtain competent counsel without the procedural vehicle of a class action. The class action waiver prevents consumers from vindicating their statutory rights, and thus violates public policy.

As these class action waivers frequently involve transactions amenable to suit under remedial statutes like FDUTPA, and such waivers are used more and more, we certify the following question to our supreme court as one of great public importance:

WHEN ASSERTED IN A CLAIM INVOLVING A VIOLATION OF FDUT-PA OR ANOTHER REMEDIAL STATUTE, DOES A CLASS ACTION WAIVER IN AN ARBITRATION AGREEMENT VIOLATE PUBLIC POLICY WHEN THE TRIAL COURT IS PERSUADED BY EVIDENCE THAT SUCH A WAIVER PREVENTS CONSUMERS FROM OBTAINING COMPETENT COUNSEL?

Affirmed.

WARNER, J., and FISHMAN, JANE D., Associate Judge, concur.

      . See Ch. 687, Fla. Stat. (2001) (prohibiting usurious contracts).

      . Ch. 516, Fla. Stat. (2001). This statute is not at issue here.

      . Ch. 501, pt. II, Fla. Stat. (2001) (prohibiting deceptive and unfair trade practices). See also § 501.2105(1) (providing that, “[i]n any civil litigation resulting from an act or practice involving a violation of this part, ... the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney's fees and costs from the nonprevailing party”); § 501.2105(3) (“The trial judge may award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for die hours actually spent on the case....").

      . Ch. 772, Fla. Stat. (2001) (providing for civil actions for certain criminal practices). See also § 772.104 (authorizing treble actual damages and entitling the prevailing party to reasonable attorney’s fees).

      . See Reuter v. McKenzie Check Advance of Fla., LLC, 825 So.2d 1070 (Fla. 4th DCA 2002); Betts v. McKenzie Check Advance of Fla., LLC, 879 So.2d 667 (Fla. 4th DCA 2004), aff'd, 928 So.2d 1204 (Fla.2006); McKenzie Check Advance of Fla., LLC v. Betts, 27 So.3d 661 (Fla.2010).

      . In another part of the opinion, we held that "the arbitration clause’s bar on an award of attorney's fees defeated] a remedial purpose of FDUTPA,” which was to facilitate private enforcement of the act’s provisions, and severed that part from the clause. Id. at 1024.

      . Some of these cases involve unconscionability, an issue distinct from public policy. See Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 299 (Fla. 4th DCA 2005) (en banc). But because unconscionability always includes the element of vindication of statutory rights, we find the cases instructive. See Kristian v. Comcast Corp., 446 F.3d 25, 60 n. 22 (1st Cir.2006); Muhammad v. County Bank of Rehoboth Beach Delaware, 189 N.J. 1, 912 A.2d 88, 98-100 (2006).

      . Other cases in this category include: Cicle v. Chase Bank USA, 583 F.3d 549, 555-56 (8th Cir.2009) (applying Missouri law and holding that a class action waiver did not violate public policy because, among other reasons, Missouri’s FDUTPA equivalent permitted an award of attorney's fees); Zekri v. Macy’s Retail Holdings, Inc., No. 1:10-CV-1740-MHS, 2010 WL 4660013 (N.D.Ga. Nov. 4, 2010) (applying Georgia law and holding in a federal Fair Labor Standards Act action that a class action waiver was not unconscionable because "[t]here is no evidence that the amount of individual claimants’ recoveries would be negligible, and the arbitration agreement provides for the recovery of attorney’s fees and costs”); Strand v. U.S. Bank Nat’l Assn ND, 693 N.W.2d 918, 926 (N.D.2005) (applying North Dakota law and holding that a class action waiver was not unconscionable where the statute provided for attorney’s fees to the prevailing party and the plaintiff ”point[ed] to no empirical evidence that all attorneys would be unwilling to litigate these claims”); and Delta Funding Corp. v. Harris, 189 N.J. 28, 912 A.2d 104, 115 (2006) (applying New Jersey law and holding that a class arbitration waiver was not unconscionable where the statutes the plaintiff sued on mandated attorney's fees to the prevailing plaintiff).

      . Other cases in this category include: S.D.S. Autos, Inc. v. Chrzanowski, 976 So.2d 600 (Fla. 1st DCA 2007) (applying Florida law and holding that a class action waiver violated public policy when the part of FDUTPA that applied to car dealers provided for attorney’s fees “as are reasonable in light of the amount of the individual’s actual damages”), and Gordon v. Branch Banking & Trust Co., 666 F.Supp.2d 1347 (N.D.Ga.2009) (following Dale to hold that a class action waiver was unconscionable under Georgia law because an award of attorney’s fees was not likely under the statutes the individual plaintiff sued on, one of which was the same Georgia statute at issue in Dale). Cf. Caban v. J.P. Morgan Chase & Co., 606 F.Supp.2d 1361 (S.D.Fla.2009) (applying Delaware law and holding that a class action waiver was unconscionable because the attorney's fees provision in FDUTPA, under which the individual plaintiff sued, did not apply to the federally regulated Chase, and no attorney would represent the plaintiff on a contingent basis).

      . Other cases in this category include: Scott v. Cingular Wireless, 160 Wash.2d 843, 161 P.3d 1000, 1003-04 (2007) (applying Washington state law and holding that a class action waiver was unconscionable and violated public policy where the plaintiffs presented the expert affidavit of a consumer law attorney who explained that individual claims "are too small and too complex factually and legally” and "it is very unlikely that any other private practice attorney would be willing to [take on an individual claim]”); and Woods v. QC Financial Services, Inc., 280 S.W.3d 90, 97-98 (Mo.Ct.App.E.D.2008) (applying Missouri law and holding that a class action waiver was unconscionable where the evidence, including testimony by attorneys, demonstrated that individual plaintiffs could not obtain representation in payday loan cases). Cf. Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100, 1109-10 (2005) (applying California law and holding that a class action waiver was unconscionable, but without any evidence on the availability of attorney’s fees; the court was not "persuaded by the rationale stated by some courts that the potential availability of attorney fees to the prevailing party in arbitration or litigation ameliorates the problem posed by such class action waivers,” especially since the rationale was based on "unsupported assertions”); Cooper v. QC Fin. Servs., Inc., 503 F.Supp.2d 1266 (D.Ariz.2007) (same, but applying Arizona law).

      . For example, the Eleventh Circuit recently certified questions to our supreme court involving the enforceability of class action waivers in arbitration agreements. See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119 (11th Cir.2010). The Eleventh Circuit noted that Florida law on whether a class action waiver violates public policy is unsettled. Id. at 1142-43. Accordingly, the certified questions asked the supreme court whether the waivers were unconscionable under Florida law or "void under Florida law for any other reason.” Id. 1143-44.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Bradford G. MEINKEN, Respondent.
    No. 5D10-467.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Rehearing Denied March 11, 2011.

      Robin F. Lotane, General Counsel, Michael J. Alderman, Acting General Counsel, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Petitioner.
    Stuart I. Hyman, of Stuart I. Hyman, P.A., Orlando, for Respondent.
   GRIFFIN, J.

The Department of Highway Safety & Motor Vehicles petitions for a writ of cer-tiorari to review a decision of an appellate panel of the Ninth Judicial Circuit. The circuit court had issued its Order Granting Respondent, Bradford Meinken’s, Petition for Writ of Certiorari, quashing the hearing officer’s administrative decision upholding the suspension of his license for driving under the influence of alcohol. The panel held that Respondent had rebutted the presumption that the Intoxilyzer 8000 on which he performed his breath test was properly approved for use in Florida. We grant the writ and quash the decision of the circuit court on the authority of Dep’t of Highway Safety and Motor Vehicles v. Berne, 49 So.3d 779 (Fla. 5th DCA 2010).

Petition for Writ of Certiorari GRANTED; and decision QUASHED.

MONACO, C.J., and SAWAYA, J., concur.


author: PER CURIAM.

text:
    L & H CONSTRUCTION COMPANY, INC., Appellant, v. CIRCLE REDMONT, INC., Appellee.
    No. 5D09-3450.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Rehearing Denied March 11, 2011.

      Melinda S. Gentile of Peckar & Abram-son, Miami, and Charles F. Kenny, River Edge, Pro Hac Vice, for Appellant.
    Allan P. Whitehead of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee.
   PER CURIAM.

Following a nonjury trial, L & H Construction Company, Inc. (“L & H”) appeals a final judgment in favor of Circle Red-mont, Inc. (“Redmont”). We reverse.

The construction contract at issue involved the renovation of the Thomas Edison historic site in West Orange, New Jersey, on behalf of the National Park Service (“NPS”). L & H was the general contractor and contracted with Redmont to manufacture a cast-iron staircase and a plank glass flooring system. The negotiations between L & H and Redmont transpired over several months. The primary contact with Redmont was Mary Louise Pace, the daughter of Redmont’s president. Ms. Pace initially issued two separate proposals to manufacture the cast-iron staircase and the glass flooring system; both provided that Redmont would “engineer, fabricate and install” the staircase and flooring system. Attached to the proposals as Exhibit A was the progress payment milestone schedule. One of the milestones, triggering a progress payment, was “Completion of Installation.” In response to L & H’s request for a lower price, Ms. Pace revised the initial proposals, deleting the stair stringers and the installation costs. Both proposals now provided that Redmont would “engineer and fabricate” the staircase and flooring system, but omitted any reference to installation. The revised progress payment milestone exhibit reflected this change by requiring a payment upon “Supervision of Installation,” instead of “Completion of Installation.”

L & H requested Redmont to combine the proposals into a single document, and to include the stair stringers and installation costs. Ms. Pace complied, and the agreement now reflected that Redmont would “engineer, fabricate and install” the staircase and flooring system. However, the progress payment milestone attachment continued to reflect a payment due upon supervision, rather than completion, of installation. Redmont subsequently issued a final revised proposal, which did not alter any of the terms of the prior proposal, but merely scheduled the payments to the end of the project so that L & H could fund the payments with monies received from NPS. According to the final proposal, the total contract price was $268,200 and was payable pursuant to the terms of Schedule “A” as follows:

Due with Signing of Contract $ 5,000
Due upon Completion of Shop Drawings $ 15,000
Due upon Metal Frameworks/Molds $ 15,000
Due upon Glazing $ 80,000
Due upon Delivery $113,200
Due upon Supervision of Installation (Hand delivered to Installation Supervisor) $ 40,000
Total $268,200

In response, L & H sent Redmont its standard subcontract. In the subcontract, L & H incorporated the scope of work and progress payment milestones from the final proposal, dated February 26, 2004. The L & H subcontract called for Red-mont to engineer, fabricate and install the staircase and flooring system, and the final payment milestone was “Due upon Completion.” It further provided for “the provision and installation of all stair stringers, stairtreads, risers and landing complete as per plans, specifications and all governing addenda.” At first, Redmont advised L & H that it was not its practice to sign its customers’ contracts or purchase orders. Notwithstanding this “policy,” Ms. Pace signed and returned the subcontract to L & H with a handwritten notation stating: “Conditionally accepted in accordance with terms and conditions of Circle Redmont, Inc.’s proposal/order ... all terms and conditions contrary thereto or not included therein are expressly rejected.” This handwritten notation was penned by Red-mont’s Chief Financial Officer/Office Manager, the wife of Redmont’s president.

Without referencing the handwritten notation, L & H informed Redmont that it was in receipt of the subcontract and enclosed a $5,000 check so that Redmont could begin performance. Despite the slow and arduous progress of the shop drawing approval, which was primarily due to issues with NPS’s architects and structural engineers, L & H met the payment schedule as the work progressed, until the issue of installation came to the forefront. Redmont took the position that although the final February 26, 2004, proposal stated it would “engineer, fabricate and install” the staircase and flooring system, the inclusion of installation was in error. Relying on the language in the progress payment schedule, “Due Upon Supervision of Installation,” and the price reduction reflected in the final proposal, Redmont claimed Ms. Pace had made a mistake in preparing the final proposal, but acknowledged that it never informed L & H of this mistake. Not surprisingly, L & H believed installation was included based on the phrase “engineer, fabricate and install” stated twice in the final proposal that Red-mont had prepared and the language found in the signed subcontract that it had prepared. At this point, a stalemate ensued.

Redmont would not ship the product, but claimed that it did not refuse to ship, permit inspection, or supervise the installation of the staircase and flooring system. Rather, Redmont scheduled an inspection, and asked L & H to bring the outstanding payment. However, the record is silent as to the specific amount demanded. L & H contended that Redmont refused to ship the materials or honor its contractual obligations unless L & H made full payment under the contract. At trial, L & H was prevented from explaining how the specific demands that Redmont made exceeded the contract terms. The testimony from Red-mont on this critical issue was vague, but it acknowledged that it might have demanded more than just the milestone payment. As a result, L & H did not attend the inspection and refused to make the remaining payments. L & H maintained, however, that it was willing to go forward, notwithstanding the dispute, but needed to inspect the product before it made payment and took delivery. It is undisputed that Redmont never invoiced for glazing, one of the milestone events under the payment schedule, or for any further payments, which were required in order to pass the costs to NPS for reimbursement. Thereafter, the matter was turned over to the parties’ attorneys to resolve.

While the litigation was pending, NPS terminated its contract with L & H. Red-mont began working directly with NPS and ultimately sold it the staircase and flooring system for $281,400, from which $200,500 was subtracted as the balance due from L & H. The $80,900 difference consisted of extras not included in the L & H subcontract. This left a difference of $32,700 from the amount of the original contract. The process of negotiating directly with NPS began almost immediately with the termination of L & H, but the procedure was protracted, in part, because NPS was not ready for the installation of the staircase and flooring system.

At the conclusion of the nonjury trial, the trial court made a series of findings. It determined that the final Red-mont proposal of February 26, 2004, constituted the governing agreement. We find no error in that determination. The existence of a valid contract is a threshold question of law for the trial court. See Acumen Constr., Inc. v. Neher, 616 So.2d 98, 99 (Fla. 2d DCA 1993); Altman Cooling Corp. v. Fla. Heat & Power, Inc., 305 So.2d 225, 226 (Fla. 4th DCA 1974). A valid contract arises when the parties’ assent is manifested through written or spoken words, or “inferred in whole or in part from the parties’ conduct.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997). While L & H did not sign the February 26, 2004, final proposal, it clearly accepted the final proposal by its actions, i.e., paying the initial $5,000 deposit and the two subsequently invoiced $15,000 payments.

The trial judge also found that the word “install” in the phrase “engineer, fabricate and install,” was the result of a mutual mistake or scrivener’s error and that the parties intended the final contract provide for supervision, rather than hands-on installation of the system. L & H argues that this finding fails as a matter of law because there was no ambiguity in the document and no basis to resort to parol or extrinsic evidence to vary the terms of the contract. It further asserts that it is clear that the mistake, if any, was unilateral.

First, while courts are without power to make or rewrite contracts for the parties, they do have the power to interpret them. Haenal v. U.S. Fidelity & Guar. Co., 88 So.2d 888, 890 (Fla.1956). It is well-established that the parties’ intent governs contract construction and interpretation. Whitley v. Royal Trails Prop. Owners’ Ass’n, 910 So.2d 381, 383 (Fla. 5th DCA 2005); Royal Oak Landing Homeowner’s Ass’n, Inc. v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). To ascertain the intent of the parties to a contract, the trial court must examine the whole instrument, not isolated parts. Blackshear Mfg. Co. v. Fralick, 88 Fla. 589, 102 So. 753, 754 (1925); Maines v. Davis, 491 So.2d 1233, 1234 (Fla. 1st DCA 1986); Macaw v. Gross, 452 So.2d 1126, 1127 (Fla. 3d DCA 1984). In the event an agreement is ambiguous, the court should follow a construction that best comports with logic, reason, and the purposes underlying the parties’ agreement. See Blackshear Mfg. Co., 102 So. at 754; Paneson v. Paneson, 723 So.2d 385, 386 (Fla. 2d DCA 1999); Biltmore Sys., Inc. v. Mai Kai, Inc., 413 So.2d 458, 459 (Fla. 4th DCA 1982); Gold Coast Media, Inc. v. Meltzer, 751 So.2d 645, 646 (Fla. 3d DCA 1999). The parties’ conduct through their course of dealings is also considered in determining the meaning of the written agreement. Blackhawk Heating & Plumbing Co., v. Data Lease Fin. Corp., 302 So.2d 404, 407 (Fla.1974).

“A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1372 (Fla.1987). Parol evidence is admissible to show that the true intent of the parties was something other than that expressed in the written instrument. Id. at 1371. However, due to the strong presumption that a written agreement accurately expresses the parties’ intent, the party seeking reformation based on a mutual mistake must prove its case by clear and convincing evidence. BrandsMart U.S.A. of West Palm Beach, Inc. v. DR Lakes, Inc., 901 So.2d 1004, 1006 (Fla. 4th DCA 2005).

Clearly, the final contract between L & H and Redmont was ambiguous. While the final February 26, 2004, proposal stated that Redmont was to “engineer, fabricate and install” the staircase and flooring system, Exhibit A to the proposal states that the final $40,000 progress payment was “Due upon Supervision of Installation.” The trial court allowed the parties to present some parol evidence to establish the parties’ true intent and subsequently found the contract contained a mutual mistake as to whether Redmont was to install, or merely supervise, the installation of the product. This was an issue that could have been decided for or against either party and we cannot say the trial court’s findings of fact were unsupported by competent, substantial evidence. Although the face of the contract clearly reflected a duty to install, Redmont’s witnesses’ testimony supported the trial court’s finding that it was the express understanding between Redmont and L & H that Redmont would only supervise, and not provide complete installation of the staircase and flooring system.

Redmont’s witnesses testified that L & H knew that installation was being deleted as a means of saving money for L & H. Redmont’s installation supervisor testified that the final February 26, 2004, proposal was specifically worked up to schedule the progress payments toward the end of the job pursuant to L & H’s president’s request, and that L & H had decided that it wanted only installation supervision, and the contract price reflected installation supervision, not complete installation. Red-mont’s CFO/office manager further testified that L & H was aware that Redmont was not going to install the product “[b]e-cause [L & H’s president] had asked us to take the installation out to save money.” Moreover, Redmont’s president testified that he spoke directly with L & H’s president regarding Redmont’s supervision of installation and it was decided that Red-mont would only provide installation supervision. He testified that after Redmont had initially

priced it with installation and then [L & H’s president] wanted to save money and what we did, we backed out installation, and you can see from the documents that the price consideration was given, and so we didn’t install it. And I had discussions with him that he had people on site anyway, iron workers that certainly could install it.

Redmont’s president also reiterated that he had direct conversations with [L & H’s president] where he said, “Fred, how can we save me some money here and what can we do[.]” The weight to be given to the testimony turned on the witnesses’ credibility, a matter exclusively within the trial court’s province. BrandsMart, 901 So.2d at 1006.

That said, the judgment entered by the trial court is internally inconsistent. In the final judgment, the trial court found the payment for glazing was not invoiced and that L & H did not fail to pay any amounts invoiced prior to May 2006. However, it then found, without explanation, that L & H breached the contract in May 2006. Neither the trial court’s findings nor a review of the record reflect any conduct by L & H that constituted a breach at that point. We are hampered in reviewing the record because the trial court sustained Redmont’s objections and did not allow any evidence with regard to what transpired following the impasse on the installation issue, finding that this evidence constituted settlement negotiations, represented attorney-client communications, or was irrelevant.

The record does not establish the basis of a breach of contract. Demands were made for payment of monies never invoiced and Redmont’s president was unable to articulate the precise amount due and owing and whether other conditions, such as a release, were required before inspection and/or shipping would occur. Despite this, at trial, Redmont argued the date of default was established by contract provisions, which state:

If seller is prevented from proceeding with fabrication or delivery due to delays in performance by the customer or conditions of the building, all additional payments, including payments which would be due on delivery, shall be paid no later than one year from submittal of the original shop drawings.

The trial court made no findings, and the record does not reflect, that any delay was occasioned by L & H’s conduct. Rather, it is clear that a bona fide dispute arose over installation. The trial court, accepting Redmont’s position at trial, disallowed evidence of what transpired after the dispute arose, resulting in insufficient evidence to support the trial court’s final judgment. Therefore, we reverse the final judgment finding L & H to be in breach of contract.

REVERSED.

EVANDER and COHEN, JJ., and FLEMING, J., Associate Judge, concur.

      . Redmont is a family-operated company.

      . Interestingly, Ms. Pace was not called to testify and L & H's attempts to serve her for trial were frustrated by her absence from the state.

      . In its answer to Redmont’s counterclaim, L & H admitted that a "true and accurate copy of the L & H — Circle Redmont contract, (Red-mont’s proposal) is attached to L & H’s Complaint as Exhibit 'A'." Additionally, L & H pled that pursuant to the contract, the parties had agreed venue was proper in Brevard County. That venue provision was contained in Redmont’s final proposal, contrary to the New Jersey venue provision found in L & H's proposed subcontract.


author: JACOBUS, J.

text:
    Nathan SIMMONS, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 5D09-2609.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.

      Jamie Billotte Moses and Reinald Wer-renrath, III, of Fisher, Rushmer, Werren-rath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Betsy E. Gallagher and Amy L. Miles of Law Office of Kubicki Draper, Tampa, for Appellee.
   JACOBUS, J.

Nathan Simmons timely appeals a final summary judgment entered in favor of State Farm Florida Insurance Company. Simmons was severely injured in a car accident. At that time, he was insured under a State Farm umbrella policy issued to his father, which provided $5,000,000 of liability coverage and $1,000,000 of uninsured motorist coverage. The tortfeasor had lower coverage limits than Simmons’ father. Simmons therefore made a claim against State Farm for declaratory relief. He contended that the umbrella policy provided stacked coverage of $1,000,000 per vehicle and, because there were four vehicles covered at the time the policy was issued, State Farm owed him $4,000,000. The trial court ruled in State Farm’s favor, finding the umbrella policy did not stack and Simmons was only entitled to $1,000,000 UM coverage. We agree and affirm.

The exposure section of Simmons’ father’s policy indicates that it covers four automobiles and three operators. The policy does not, however, identify the make or model of the covered cars. Likewise, the year and the VIN number of the covered cars are not listed in the policy. The policy sets forth an annual premium, which is separated into two components. The first component is for liability coverage and the second component is for UM coverage.

This case is very similar to United Services Automobile Ass’n v. Roth, 744 So.2d 1227 (Fla. 4th DCA 1999). There, one of the insureds on Roth’s policy was seriously injured in a car accident. A claim was made under the USAA umbrella policy for UM benefits. UM coverage under the policy was $1,000,000 and the Roths owned five cars. Roth claimed the insurance stacked and he was entitled to $4,000,000 in available coverage. The trial court agreed. On appeal, the fourth district reversed, concluding the USAA policy did not stack because an individual premium was not paid for each automobile. Id. at 1230. In reaching this decision, the Roth court emphasized the fact that USAA charged the same premium to each person regardless of the number of vehicles he owned. It further stated that stacking of coverage “is a judicial creation, based on the common sense notion that an insured should be entitled to get what is paid for.” Id. at 1229. That is, if an insured “pays separate premiums for uninsured motorist protection on separate vehicles, the insured should get the benefit of coverage for each individual premium paid.” Id.; see also Tucker v. Gov’t Emps. Ins. Co., 288 So.2d 238, 242 (Fla.1973) (“An insured under uninsured motorist coverage is entitled by the statute to the full bodily injury protection that he purchases and for which he pays premiums.”).

Here, the amount of the premium depended on the number of ratable exposures listed in the policy. The ratable exposures were determined by the lesser of the number of vehicles or drivers. Simmons’ father’s policy listed four vehicles and three drivers in the exposures section. Therefore, there were three ratable exposures. The underwriting manager who testified for State Farm stated that, although a component of the premium is based on the number of vehicles owned by the insured, there is no separate premium paid for each automobile. The policy issued by State Farm in this case is essentially the same as the policy issued by USAA in Roth. That is, there is a single premium paid for the coverage, one component for liability coverage and one component for UM coverage. Accordingly, the State Farm policy issued to Simmons is a non-stacking policy by law.

Simmons also argues State Farm was required to obtain a rejection of UM stacking coverage pursuant to section 627.727(9), Florida Statutes (1984). There is no question that section 627.727(9) would apply to this policy if it was a stacking-type policy. Since we have ruled this is not a stacking policy, section 627.727(9) is not applicable here. See Roth, 744 So.2d at 1230.

AFFIRMED.

EVANDER and COHEN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Robert Reed RELINGER, as Personal Representative of the Estate of Robert B. Fox, Petitioner, v. Beverly A. FOX; Russell A. Fox; and Citigroup Global Markets, Inc. d/b/a Citi Smith Barney, Respondents.
    No. 2D10-1139.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.

      Randee S. Schatz of Randee S. Schatz, P.A., Palm Beach, and Kenni F. Judd of Kenni Judd, P.A., Palm Beach Gardens, for Petitioner.
    James V. Lobozzo, Jr., of McClure & Lobozzo, Sebring, for Respondents Beverly A. Fox and Russell A. Fox.
    No appearance for Respondent Citigroup Global Markets, Inc. d/b/a Citi Smith Barney.
   NORTHCUTT, Judge.

Robert Relinger seeks a writ of certiora-ri to quash an order that abated his suit against Beverly and Russell Fox. We grant the petition.

Relinger is the personal representative of the estate of Robert Fox, and he is administering a 1984 will by Fox, who died on January 23, 2009. Beverly and Russell Fox are the decedent’s siblings, and they have produced a 2007 trust document and pour-over will. They filed a petition for revocation of the 1984 will, and Beverly Fox filed a petition for administration of the 2007 will. Relinger has challenged the later will, claiming that it was improperly executed and was the product of undue influence.

Relinger also filed a separate civil action attacking the validity of the trust. In addition to the Foxes, he sued Citigroup Global Markets, Inc., d/b/a Citi Smith Barney, which allegedly holds trust funds. In that action, Relinger seeks a declaration that the trust is invalid based on allegations that it contains testamentary provisions but was not executed with the required formalities, that the decedent lacked capacity at the time of execution, and that the trust was procured by undue influence. In addition, Relinger seeks supplemental and injunctive relief to gather, account for, and preserve the decedent’s trust property, which would belong in the estate if the trust was invalidated. The circuit court granted the Foxes’ motion to abate this action due to the pending proceedings in probate.

The Foxes have moved to dismiss Relinger’s petition to review the abatement on the ground that he cannot demonstrate the irreparable harm that is a jurisdictional prerequisite for certiorari review. See Dees v. Kidney Group, LLC, 16 So.3d 277, 279 (Fla. 2d DCA 2009). But it has been held that an abatement order is properly reviewable by certiorari because an appeal from an eventual final judgment would not be an adequate remedy for the delay caused by abatement. Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So.2d 138, 139 (Fla. 4th DCA 1994); see also Int’l Surplus Lines Ins. Co. v. Markham, 580 So.2d 251 (Fla. 2d DCA 1991) (reviewing order of abatement by petition for certiorari). Accordingly, we deny the motion to dismiss.

Having dealt with the question of our jurisdiction, we also conclude that the abatement of Relinger’s action was a departure from the essential requirements of law. Abatement requires a strict identity of parties between the two suits, and it can be ordered only when the plaintiffs and the defendants in the actions are the same. Bruns v. Archer, 352 So.2d 121, 122 (Fla. 2d DCA 1977).

[T]he general rule [is] that a plea of a prior action pending applies only where plaintiff in both suits is the same person, and both are commenced by himself, and not to cases in which there are cross-suits by a plaintiff in one suit who is defendant in the other; in other words, that, where the party defendant in the prior suit is plaintiff in the subsequent suit, the first suit cannot be pleaded in abatement of the second.

Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909, 912 (1930). Abatement may be ordered only where the identities of parties in the actions are exact “because the court is'necessarily projecting the effect of a case which has not been tried and a judgment which has not yet been rendered.” Burns v. Grubbs Constr., Inc., 174 So.2d 476, 478 (Fla. 3d DCA 1965). Here, Relinger is the plaintiff in the later civil action challenging the validity of the trust, but he is the defending party in the Foxes’ probate action seeking to establish the validity of the concomitant will. This critical difference rendered abatement inappropriate in this case.

The courts do not favor abatement, and “the party asserting it must clearly show that he is within the reason for its enforcement.” Moresca v. Allstate Ins. Co., 231 So.2d 283, 285 (Fla. 4th DCA 1970) (footnote omitted); see also Horter, 126 So. at 912 (“Pleas in abatement are not favored by the courts, and the greatest strictness is applied to them....”).

It may be that the circuit court was concerned because the two actions raise similar, if not identical, questions about the decedent’s capacity, whether he was unduly influenced, and whether the necessary formalities were met. But other procedures are available to address any problems caused by the pendency of two similar actions, such as a consolidation of the actions or a limited stay of one of them. Moresca, 231 So.2d at 286 n. 5; see also Martin v. Martin, 687 So.2d 903, 907 (Fla. 4th DCA 1997) (“We know of no reason why a will contest pending in the probate division of the circuit court and an action involving the validity of a trust pending in the civil division of the circuit court cannot be consolidated under appropriate circumstances, such as where ... the factual issues are the same.”). The Foxes argue that we should view the circuit court’s action “in essence” as a consolidation; we cannot. The circuit court granted their motion to abate, and in doing so, it departed from the essential requirements of law causing irreparable harm. We must therefore quash the order of abatement.

In conjunction with his civil action, Re-linger filed a motion to compel discovery from Beverly Fox. She objected and moved for a protective order. In addition to abating the suit, the circuit court denied the motion to compel and granted the motion for protective order. These discovery orders stem from the circuit court’s decision to grant abatement, and we are confident that the court will reconsider the motions to compel and for protective order in light of our decision. See Grektorp v. City Towers of Fla., Inc., 644 So.2d 613, 614 (Fla. 2d DCA 1994) (reversing denial of motion to compel arbitration and directing reconsideration of motion to abate, which arose out of same nonfinal order).

Petition granted; orders quashed.

WALLACE and MORRIS, JJ., Concur.


text:
    Arnetha GATLIN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D10-1584.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Rehearing Denied March 16, 2011.
    Arnetha Gatlin, in proper person.
    Javier A. Ley-Soto, for appellee.
    Before GERSTEN, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 414.41(1), Fla. Stat. (2009); Pinelli v. Dep’t of Children & Families, 878 So.2d 491 (Fla. 1st DCA 2004).


author: CRENSHAW, Judge.

text:
    Jose JARAMILLO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5714.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Jose Jaramillo appeals the denial of his motion for postconviction relief wherein he raised thirteen grounds of ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850. Because the record fails to conclusively refute ground eight and portions of grounds one and seven of the motion, we reverse and remand for further proceedings. We affirm the denial of the remaining grounds of Jaramillo’s motion without discussion.

In ground one of his motion, Jar-amillo alleged that his trial counsel was ineffective for failing to challenge three jurors, Juror Lo, Juror Rodriguez, and Juror Collins, for cause. The postconviction court summarily denied this claim and attached portions of the voir dire transcript that conclusively refuted Jaramillo’s arguments as to Juror Lo and Juror Collins. However, the attached voir dire transcript does not support the postconviction court’s determination as to Juror Rodriguez.

In ground seven of his motion, Jar-amillo alleged that his counsel was ineffective for presenting an opening statement and a closing argument that conflicted with his entrapment defense. When the postconviction court summarily denied this claim, it cited to, and attached portions of, the closing argument, finding Jaramillo was not entitled to relief because his counsel clearly explained to the jury how he was entrapped. However, the postconviction court did not address or attach any records refuting Jaramillo’s claim as to the opening statement.

In ground eight of his motion, Jar-amillo contended that his counsel was ineffective for improperly introducing evidence of his prior arrests and convictions during the opening statement and throughout the trial. The postconviction court determined that Jaramillo was referring to “his time in Monroe County jail” and his counsel’s line of questioning during the cross-examination of a detective concerning similar drug-related offenses allegedly committed by Jaramillo. Yet when the postconviction court summarily denied his claim, it did not consider Jaramillo’s argument as to the opening statement.

We find the postconviction court’s determination on each of these claims is not conclusively refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999). Accordingly, we remand for further proceedings on portions of grounds one and seven and ground eight of Jaram-illo’s motion. On remand, the postconviction court shall either attach portions of the record conclusively refuting each of these claims or conduct an evidentiary hearing.

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

CASANUEVA, C.J., and VILLANTI, J., Concur.

      . In 2004, a jury found Jaramillo guilty of trafficking in more than 400 grams but less than 150 kilograms of cocaine, and the trial court sentenced him to fifteen years in prison with a fifteen-year mandatory minimum. This court affirmed Jaramillo’s judgment and sentence on appeal. Jaramillo v. State, 923 So.2d 501 (Fla. 2d DCA 2006) (table decision).


author: ORFINGER, J.

text:
    Wilford McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2216.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    Rehearing Denied March 10, 2011.

      James Russo, Public Defender, and R. Blaise Trettis, Assistant Public Defender, Viera, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

After pleading guilty to two counts of felony petit theft, Wilford McCloud was sentenced to two years in prison, followed by two years of community control. He now appeals, contending that pursuant to section 775.082(10), Florida Statutes (2009), he should have received a non-state prison sanction. We disagree and affirm.

The Florida Legislature enacted section 775.082(10), Florida Statutes, which provides:

(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

Ch. 2009-63, § 1, Laws of Fla., eff. July 1, 2009. Relying on this statute, McCloud argued at sentencing that because he had no history of violence, he did not pose “a danger to the public,” a predicate required by the statute if a state prison sentence is to be imposed. McCloud contends that only a violent, or potentially violent, offender can present a danger to the public. We believe that construction of the statute is too narrow.

McCloud is an habitual thief, albeit one with a history of no violence. He has served two separate eighteen-month prison terms, and has accumulated twenty misdemeanor and five felony convictions, not including the two felonies now before us. Despite this impressive criminal record, McCloud only scored 14.2 sentence points. In addition to his prior record, at sentencing, the State offered the testimony of two Titusville police officers, who informed the court that McCloud’s larcenous behavior was so well-known and frequent that when he was seen in a neighborhood, additional police resources were deployed to his location.

While McCloud may not be a physically violent offender, he is apparently willing to steal anything and everything. We believe that “danger may, at least in some cases, encompass pecuniary or economic harm.” United States v. Reynolds, 956 F.2d 192, 192-93 (9th Cir.1992); see United States v. Provenzano, 605 F.2d 85, 95 (3rd Cir.1979) (explaining that danger is not limited to physical harm; concept includes opportunity to exercise substantial and corrupting influence within labor union); United States v. Parr, 399. F.Supp. 883, 888 (W.D.Tex.1975) (“The ‘danger to ... the community’ provision [in the Bail Reform Act] permits consideration of the defendant’s propensity to commit crime generally, even where only pecuniary and not physical, harm might result to the community at large.”); see also United States v. Moss, 522 F.Supp. 1033, 1035 (E.D.Pa.1981) (“It is generally agreed, of course, that a [c]ourt may refuse bail on the ground that a defendant poses a threat to the community even though the threat is pecuniary rather than physical.”), aff'd 688 F.2d 826 (3rd Cir.1982); United States v. Miranda, 442 F.Supp. 786, 792 (S.D.Fla.1977) (“First, it is beyond dispute that the criterion of ‘danger to the community,’ which is an explicit component of the Bail Reform Act, is not limited to the potential for doing physical harm.”).

The record supports the trial court’s implicit finding that McCloud is an habitual thief and presents a threat to property. The fact that police resources are diverted to his location also potentially endangers the public, as it diminishes police protection in other parts of the community. Thus, we conclude that the trial court did not err in sentencing McCloud to a prison sanction based on its determination that McCloud “could present a danger to the public.” There is nothing in the language of section 775.082(10) that suggests that the Legislature intended to limit the meaning of “danger to the public” only to persons threatening physical violence or injury.

AFFIRMED.

GRIFFIN and LAWSON, JJ„ concur.

      . We address only this issue, as it was the only issue argued below.

      . See § 921.0024, Fla. Stat. (2009).


text:
    Edwin S. ZARR, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4240.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    Rehearing Denied March 17, 2011.
    Edwin S. Zarr, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Edwin Zarr challenges the postconviction court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the court’s decision in all respects except one: the denial of Zarr’s ground two, in which he claimed his counsel was ineffective for failing to object to an allegedly improper and nonstandard jury instruction. Relying on State v. Bouchard, 922 So.2d 424 (Fla. 2d DCA 2006), the court denied the claim because Zarr failed to show the prejudicial effect of the instruction on the outcome at trial; the motion claimed prejudice based only on counsel’s failure to preserve the issue for appellate review. Zarr contends he should have been permitted to amend his claim and we agree. See Spera v. State, 971 So.2d 754 (Fla.2007). We therefore reverse the denial of ground two of Zarr’s motion and remand with directions that he be given an opportunity to amend this claim.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANTI, JJ., Concur.


author: PER CURIAM. WEBSTER, J.,

text:
    William Glen McKIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-128.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, William Glen McKiver, appeals a judgment and sentence for burglary of a dwelling, arguing that the trial court reversibly erred by not instructing the jury on the permissive lesser-included offense of trespass. For the reasons set forth below, we agree and reverse.

Mr. McKiver was charged and convicted of burglary of a dwelling. Specifically, count I of the Second Amended Information alleged that on January 2, 2009, Mr. McKiver

did unlawfully enter or remain in a structure, to wit: a dwelling, the property of Rhonda Carmichael, with the intent to commit an offense therein, contrary to Section 810.02(3)(b), Florida Statutes.

At trial, Rhonda Carmichael testified that on January 2, 2009, her house was broken into. A red high school letterman jacket and some coins from a change bucket were among the items she reported missing. Ms. Carmichael’s neighbor, Mrs. Jordan, testified that she witnessed a gold car pull up outside Ms. Carmichael’s house, and she observed Mr. McKiver and Le’Troy Doles exit the vehicle and approach the house. She testified that Mr. McKiver entered the picket fence surrounding the house, but she lost sight of him after he entered the fence, and while Mr. Doles initially remained outside the fence, he eventually entered. Mrs. Jordan’s husband testified that he used a pair of binoculars to read the license plate number of the gold car. Mrs. Jordan relayed her observations as well as the license plate number to a 911 operator. Mrs. Jordan testified that she saw the two men leave the fenced area and return to the car: Mr. Doles was carrying a piece of red material that was bunched up, but she could not see whether Mr. McKiver was carrying something.

The gold car in which Mr. McKiver and Mr. Doles left the victim’s house was pulled over by the Nassau County Sheriffs Office within a matter of minutes after leaving. Mr. McKiver’s fingerprints were found on the front screen door of the victim’s house. Ms. Carmichael testified that she did not know either Mr. McKiver or Mr. Doles, nor had she ever invited either of them into her home.

Mr. Doles testified that Mr. McKiver was driving the gold car on the day of the robbery, and Mr. McKiver told him he was stopping the car to use the restroom, but instead he entered Ms. Carmichael’s fence and kicked in her front door. After Mr. McKiver kicked in the door, he told Mr. Doles: “It’s already happened, you might as well take something.” Mr. Doles remembered Mr. McKiver taking a red and white letterman’s jacket.

During the charge conference, defense counsel requested an instruction on trespass, asserting that it was a category two, lesser-included offense. The prosecution objected because it was not a mandatory instruction. The prosecution also argued that the evidence “showed that he did intend to take something and did, in fact, take property from the victim’s house that day,” and that the “witness’ testimony does not sustain a criminal mischief or a trespass charge.” The court denied the requested instruction on trespass. In addition, after the jury retired to begin deliberations, defense counsel sought to obtain an instruction on simple burglary, a necessary lesser-included offense. The trial court also denied this request, noting that defense counsel had approved the jury instructions at the charge conference.

Accordingly, the jury was given a verdict form containing no lesser-included offenses. On the verdict form the jury had only two options — either find Mr. McKiver guilty of burglary of a dwelling as charged, or find him not guilty. The jury found Mr. McKiver guilty of burglary of a dwelling as charged.

Because the information alleged the elements of trespass, and there was some evidence adduced at trial to satisfy those elements, the trial court erred by not instructing the jury on trespass. Further, considering the evidence produced at trial and because the jury was not instructed on any lesser-included offense, we cannot conclude that this error was harmless.

In 1981, the supreme court established a two-category framework for trial courts to apply when determining whether a jury instruction on a lesser-included offense should be given. In the Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). “The first category, which incorporated some lesser degrees of offenses, contains offenses necessarily included in the offenses charged. The second category, which now incorporates all attempts and the remaining lesser degrees of offenses, encompasses offenses which may or may not be included in the offense charged, depending on the accusatory pleadings and evidence.” State v. Wimberly, 498 So.2d 929, 930 (Fla.1986). Necessary lesser-included offenses are designated as category one offenses, whereas permissive lesser-included offenses are designated as category two offenses. Wright v. State, 983 So.2d 6, 8 (Fla. 1st DCA 2007).

The trial court must instruct the jury on category one (necessary lesser-included) offenses. State v. Montgomery, 39 So.3d 252, 259 (Fla.2010); see also Wimberly, 498 So.2d 929, 932 (Fla.1986). In contrast, a trial court may or may not be required to give jury instructions on permissive (category two) offenses. See Wimberly, 498 So.2d at 930-31. “Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following two conditions are met: ‘(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.’ ” Khianthalat v. State, 974 So.2d 359, 361 (Fla.2008) (quoting Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996)); see also Williams v. State, 957 So.2d 595, 599 (Fla.2007); Clark v. State, 43 So.3d 814, 815 (Fla. 1st DCA 2010).

The requested instruction at issue here, trespass, is a category two, permissive lesser-included offense of burglary of a dwelling. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-11, 986 So.2d 563 (Fla.2008); see also Bordes v. State, 34 So.3d 215, 217 (Fla. 4th DCA 2010); Piccioni v. State, 833 So.2d 247, 248 (Fla. 4th DCA 2002). Therefore, the trial court was required to instruct the jury on trespass if the information alleged all of the statutory elements of trespass, and there was some evidence adduced at trial to establish those elements. See Clark v. State, 43 So.3d 814, 815 (Fla. 1st DCA 2010).

Both conditions are satisfied here. The elements of trespass are (1) the willful entry or remaining, (2) in a structure or conveyance of another, (3) without being authorized, licensed or invited to enter. § 810.08, Fla. Stat. (2008); see also Wright v. State, 983 So.2d 6, 9 (Fla. 1st DCA 2007). The information in this case alleged Mr. McKiver committed the offense of burglary of a dwelling by “unlawfully entering] or remaining] in a structure, to wit: a dwelling, the property of Rhonda Carmichael, with the intent to commit an offense therein.” Thus, the elements of trespass were adequately established in the information. See Henig v. State, 820 So.2d 1037, 1038-39 (Fla. 4th DCA 2002); Hannah v. State, 42 So.3d 951, 953 (Fla. 4th DCA 2010). Further, the evidence adduced at trial established the elements of the trespass offense. Mr. Doles testified that Mr. McKiver entered Ms. Carmichael’s house, and Ms. Carmichael testified that she did not know Mr. McKiver nor had she given him permission to enter her home. Because trespass is a permissive lesser-included offense, and the information alleged the elements of trespass and there was some evidence supporting those elements, the court erred in denying the requested instruction. It makes no difference that the evidence at trial also established the charged offense of burglary of a dwelling. See Clark, 43 So.3d at 817.

Having concluded that it was error for the trial court to not give the instruction on trespass, we now must determine whether the error is per se reversible or rather subject to harmless error analysis. State v. Abreau, 363 So.2d 1063 (Fla.1978), and its progeny establish a bright-line test for a reviewing court to apply when considering errors in omitted jury instructions. Where the jury instruction relates to the next immediate lesser-included offense (one step removed), the trial court’s failure to provide the instruction is per se reversible. Sanders v. State, 946 So.2d 953, 957 (Fla.2006); Boland v. State, 893 So.2d 683, 686 (Fla. 2d DCA 2005). However, “[w]here the omitted instruction relates to an offense two or more steps removed ... reviewing courts may properly find such error to be harmless.” Abreau, 363 So.2d at 1064 (emphasis added); accord, Pena v. State, 901 So.2d 781, 787 (Fla.2005).

With respect to the offense of burglary of a dwelling, simple burglary is a necessary lesser-included offense and is one step removed, while the offense of trespass is a permissive lesser-included offense and is two steps removed. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-11, 986 So.2d 563 (Fla.2008); Bethea v. State, 767 So.2d 630, 630-31 (Fla. 5th DCA 2000) (noting that burglary of a structure is a necessary lesser-included offense of burglary of a dwelling); Prater v. State, 608 So.2d 559, 559 (Fla. 2d DCA 1992) (noting that simple burglary is “only ‘one step’ removed from the primary offense of burglary of a dwelling”). Accordingly, failure to instruct the jury on trespass is not per se reversible under Abreau and its progeny. See Sanders v. State, 946 So.2d 953, 957 (Fla.2006). Rather, the error is subject to the harmless error analysis.

When engaging in a harmless error analysis, ‘“[i]f the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.’ ” Ventura v. State, 29 So.3d 1086, 1090 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d at 1136, 1139 (Fla.1986)). The appellate court should not substitute itself for the jury and weigh the evidence; the harmless error test is not an “ ‘overwhelming evidence test.’ ” Id. at 1089 (emphasis omitted) (quoting DiGuilio, 491 So.2d at 1139). Instead, “ ‘[t]he focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.’ ” Id. at 1089 (emphasis omitted) (quoting DiGuilio, 491 So.2d at 1139).

Applying the harmless error test to this case, we cannot conclude that the error was harmless. Under the facts of this case, which include the evidence presented at trial to prove the elements of the offense of which Mr. McKiver was convicted and the fact that the jury was not instructed on the necessary lesser-included offense of simple burglary, we cannot say beyond a reasonable doubt that the error in not instructing the jury on trespass did not affect the verdict. Accordingly, we reverse Mr. McKiver’s judgment and sentence, and remand for a new trial.

ROWE and MARSTILLER, JJ., concur.

WEBSTER, J., Concurs in result with Opinion.

WEBSTER, J.,

concurring in the result.

By refusing appellant’s request for an instruction on the lesser-included offense of trespass, the trial court completely deprived the jury of the opportunity to consider “exercising] its inherent ‘pardon’ power.” State v. Bruns, 429 So.2d 307, 310 (Fla.1983). This was error. Id. On the facts of this case, I am unable to conclude to the exclusion of all reasonable doubt that “th[is] error did not affect the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Accordingly, I agree that we must reverse and remand for a new trial.