author: WALLACE, Judge. VILLANTI, Judge,

text:
    In re GUARDIANSHIP OF William ANSLEY, a/k/a Willie Ansley, an incapacitated person. Brad Sanford and Candice Fager, as former Co-Guardians of William Ansley, an incapacitated person; Stephen M. Martin; and Stephen M. Martin, P.A., Appellants, v. Fay Howard, as Guardian of William Ansley, an incapacitated person, Appellee.
    No. 2D11-3138.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2012.

      Stephen M. Martin, pro se, and for Appellants Brad Sanford, Candice Fager, and Stephen M. Martin, PA.
    No appearance for Appellee.
   WALLACE, Judge.

Brad Sanford and Candice Fager (the former Co-Guardians of William Ansley, an incapacitated person) and Stephen M. Martin and Stephen M. Martin, P.A. (the attorney and law firm representing the former Co-Guardians-collectively, Mr. Martin), challenge an order authorizing the payment of $16,520 in attorney’s fees and costs to Mr. Martin as attorney for the former Co-Guardians. The order under review reduces the amount sought by Mr. Martin in his petition for attorney’s fees and costs. Because the order is internally inconsistent and lacks sufficient findings of fact to support the award, we reverse the order and remand for the entry of a new order on the petition.

I. THE FACTUAL BACKGROUND

Mr. Martin filed a petition seeking payment for services performed and expenses incurred on behalf of the former Co-Guardians between September 3, 2010, and April 25, 2011. He attached to his petition an itemized report detailing the tasks performed, the time and rate associated with each of the tasks, and the expenses incurred. Specifically, Mr. Martin sought payment for 54.48 hours of attorney time at $350 per hour, 20.33 hours of paralegal time at $125 per hour, and expenses in the amount of $114.64, for an asserted total of $21,694.52. We note that the amount that Mr. Martin requested for approximately seven months’ work on this guardianship was substantial. However, a review of the record reveals that complications caused by various disputes and disagreements among the interested parties marked the administration of the guardianship. These complications required the performance of many services that otherwise would not have been necessary.

The circuit court held an evidentiary hearing on Mr. Martin’s petition. Mr. Martin testified that the court had previously accepted his hourly rate as reasonable. He testified further that the tasks he performed were necessary and reasonable. The attorney for the ward also testified to the reasonableness of Mr. Martin’s hourly rate. The attorney for the ward also observed that many of the services Mr. Martin had performed would not be necessary “in a normal functional guardianship.” She added that the services performed were required in this guardianship because the matter was unusually contentious.

Counsel for the successor guardian objected to the amount of the fees requested and cross-examined both Mr. Martin and the attorney for the ward. In cross-examination, counsel for the successor guardian questioned the necessity of several of the tasks for which Mr. Martin had billed and suggested that some of Mr. Martin’s services were of no benefit, and possibly detrimental, to the ward.

At the conclusion of the hearing, Mr. Martin submitted a proposed order to the circuit court. The circuit court did not rule immediately but took the matter under advisement. Later, the circuit court entered a written order granting the petition. The order entered was apparently the one submitted by Mr. Martin. The order recited, “[t]he Court finds that the amount of time set forth in the petition and the hourly rate are reasonable under the circumstances and hereby approves each.” Specifically, the order finds “54.48 attorney hours at a rate of $850.00 per hour, 20.88 paralegal hours at the rate of $125.00 per hour, and expenses in the amount of $114.64” to be reasonable. By multiplying the hours approved by the applicable hourly rates and adding the expenses, we calculate a total of $21,723.89. However, the amount the court authorized the guardian to pay Mr. Martin is only $16,520.

The amount that the circuit court authorized the guardian to pay Mr. Martin is obviously less than the sum supported by the findings in the order concerning the reasonable hourly rates, the time expended, and the expenses incurred. Undeniably, there is an internal inconsistency in the order; the amount of fees and expenses awarded does not equal the amount of fees and expenses that the circuit court found were reasonable.

II. THE LEGAL BACKGROUND

Section 744.108(1), Florida Statutes (2010), provides that “an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.” However, an attorney’s entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward or the ward’s estate. King v. Fergeson, Skipper, Shaw, Keyser, Baron, & Tirabassi, P.A., 862 So.2d 873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially); Butler v. Guardianship of Peacock, 898 So.2d 1139, 1141 (Fla. 5th DCA 2005).

Section 744.108(2) lists a number of factors that the circuit court must consider in determining a reasonable fee, and section 744.108(5) requires that “[a]ll petitions for ... attorney’s fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered.” See Anderson v. Sun Trust Bank/North, 679 So.2d 307, 308-09 (Fla. 5th DCA 1996) (reversing an order for guardian’s fees based upon a petition that did not include an itemized description of the services performed for the fees and expenses sought to be recovered). Significantly, “[i]n order to provide for meaningful appellate review[,] the order awarding fees and expenses in all such cases ... should specifically set out the record basis for the award and otherwise comply with the intent of Rowe, [] Platt [,] and the statute.” Jones v. Dunning, 661 So.2d 941, 942 (Fla. 5th DCA 1995). Generally, we review an award of fees for an attorney’s services in a guardianship for abuse of discretion. Butler, 898 So.2d at 1141; Gamse v. Touby, 382 So.2d 115, 116 (Fla. 3d DCA 1980). We defer to the circuit court’s findings of fact when they are based on competent, substantial evidence. State, Fla. Highway Patrol v. Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980.00) in U.S. Currency, 802 So.2d 1171, 1172 (Fla. 3d DCA 2001).

III. THE ARGUMENTS ON APPEAL

On appeal, Mr. Martin argues that the circuit court abused its discretion in entering the order under review. He points out that the evidence he submitted supported an award of the amount that he requested. Mr. Martin also points to the absence of any expert opinion testimony in the record upon which the circuit court could have relied in reducing the amount that he sought in his petition. Neither the attorney for the ward nor the successor guardian has filed a brief in support of the circuit court’s order.

IV. DISCUSSION

We note that Mr. Martin bore the burden of proving that the services he had performed benefitted the ward or the ward’s estate. See Butler, 898 So.2d at 1141. After the presentation of the evidence, the circuit court had discretion to determine the amount of fees to which Mr. Martin was reasonably entitled as long as the amount of the award was based on competent, substantial evidence. See id.; Gamse, 382 So.2d at 116. As noted above, the cross-examination of Mr. Martin and the attorney for the ward by the attorney for the successor guardian suggested that some of the services performed by Mr. Martin might not have benefitted the ward or the ward’s estate.

A comparison of the amount of the actual award in the order under review and the amount requested by Mr. Martin indicates that the circuit court intended to award less than the full amount sought in the petition. However, we do not know what led to the circuit court’s ruling. The above-noted internal inconsistency in the order results in the lack of any meaningful findings concerning the reasonable hourly rates and the number of hours compensated. The order also omits any statement of other factors that the circuit court considered in reducing the amount requested. These deficiencies make it impossible for this court to engage in meaningful appellate review of the order on appeal. See Jones, 661 So.2d at 941-42 (noting that an internal conflict in the circuit court’s order between its finding of the amount of reasonable fees for services rendered and the amount the court authorized to be paid for the guardian’s services prevented meaningful appellate review and required the entry of a new order).

V. CONCLUSION

In short, we are unable to determine the basis for the circuit court’s award. It follows that we also cannot determine whether there is competent, substantial evidence in the record to support the award. Accordingly, we reverse the order under review. See id.; see also Schneider v. Schneider, 32 So.3d 151, 155 (Fla. 4th DCA 2010) (“Absent ... factual findings [about the number of hours spent and a reasonable hourly rate], reversal is required even where evidence is contained in the record from which the Rowe factors ... can be determined.”). We remand for the circuit court to enter a new order that sets forth the basis for the award, including the hours determined to be compensable, the hourly rate, and the other factors considered in arriving at the award. See Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698 So.2d 938, 939 (Fla. 4th DCA 1997). The order must also itemize the costs allowed. Jones, 661 So.2d at 942.

Reversed and remanded with directions.

NORTHCUTT, J., Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

Although I concur in the analysis and conclusions of the majority, Mr. Martin would be wise to recognize that the trial court apparently made an intentional decision to reduce his requested fees based upon the evidence presented. Since the order on fees is not being reversed for the entry of an order granting the fees requested but only for further findings of fact to support the reduction, additional litigation concerning these fees will do nothing but add to the contentiousness of these proceedings. The trial court took the fee request under advisement, made a thoughtful review of the time sheets and tasks performed, and then used its discretion to award fees in an amount it believed to be reasonable. While Mr. Martin is entitled to ask the court to specify exactly why it chose the amount it did, what is really to be gained in so asking? In my view, a request for an order that identifies how Mr. Martin overcharged the ward’s estate in the hopes that the trial court will suddenly agree that it abused its discretion in not awarding the full amount requested in the first instance is simply fodder for further litigation and a second appeal.

      . The amounts sought for attorney's fees, paralegal fees, and expenses actually total $21,723.89. This figure is $29.37 more than the total that Mr. Martin requested.

      .The provision of the order authorizing the guardian to pay an amount to Stephen M. Martin, P.A. reflects the typewritten amount of $21,694.52 (which is different than the total we calculated by multiplying the amount of hours claimed by the claimed hourly rates). But the circuit court crossed out the typewritten total requested by Mr. Martin and printed the amount of $16,520 above it.

      . Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

      . In re Estate of Platt, 586 So.2d 328 (Fla.1991).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    JOHN KNOX VILLAGE OF TAMPA BAY, INC.; Bay Care Health System, Inc.; Gary Leigh West; Christina Johnson; Carl David Boyer; and Michele D. Miller Hall (as to John Knox Village Medical Center Tampa), Appellants, v. Charles L. PERRY, as Personal Representative of the Estate of Winifred N. Mefford, Deceased, Appellee.
    No. 2D11-3871.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2012.

      Carl A. Goldman and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

Charles Perry, the personal representative of the estate of his mother, Winifred Mefford, sued John Knox Village of Tampa Bay, Inc., and the other named appellants (collectively referred to as John Knox), seeking damages stemming from allegedly improper care his mother received while living at John Knox Village Medical Center. John Knox sought to dismiss the complaint on the ground that Ms. Mefford had waived her right to litigate issues in court by signing an arbitration agreement when she was admitted to the facility. The circuit court denied the motion, whereupon John Knox filed this nonfinal appeal challenging that decision. See Fla. R.App. P. 9.130(a)(8)(C)(iv). We reverse and remand for further proceedings.

The question posed at the hearing on John Knox’s motion was whether there was a valid agreement to arbitrate. See ManorCare Health Servs., Inc. v. Stiehl, 22 So.3d 96, 99 (Fla. 2d DCA 2009) (stating that when determining whether to permit arbitration, the court must decide the gateway issue of whether a valid agreement to arbitrate exists), review dismissed, No. SC09-1625, 2012 WL 1995006 (Fla. May 30, 2012). The circuit court found that there was no valid arbitration agreement because Ms. Mefford was not competent when she signed the documents that included the arbitration clause. It also held that the agreement was procedurally unconscionable because John Knox did not take extra steps to insure that Ms. Mefford understood the agreement when it knew or should have known that she did not. Both rulings were undermined by a dearth of proof that Ms. Mefford was incompetent when she signed the agreement.

The validity of an arbitration clause is an issue of state contract law, and a clause can be invalidated on the same grounds as any contract. Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla. 2011). One tenet of contract law that is particularly applicable here holds that a person is presumed to be competent when she enters into a contract. The burden of overcoming this presumption rests on the party who challenges the validity of the contract. Travis v. Travis, 81 Fla. 309, 87 So. 762, 765 (1921). Incompetence is not shown by evidence of simple feebleness or mental weakness. The challenging party must prove that the mental or physical weakness amounted to an inability to comprehend the effect and nature of the transaction. Dukes v. Dukes, 346 So.2d 544, 546 (Fla. 1st DCA 1976) (Boyer, C.J., concurring specially).

An instructive example may be found in Gilmore v. Life Care Centers of America, No. 2:10-cv-99-FtM-29DNF, 2010 WL 3944653 (M.D.Fla. Oct. 7, 2010) (unpublished decision), aff'd, 448 Fed.Appx. 909 (11th Cir.2011) (unpublished decision), where a relative’s testimony about a nursing home patient’s condition was sufficient to rebut the presumption of competency. Ms. Gilmore had been diagnosed with Alzheimer’s type dementia and delusions, and she was on antipsychotic medication for atypical psychosis. Her son had been given her power of attorney when his mother’s physician determined that she was unable to make her own health care decisions. At the hearing on the validity of an arbitration agreement Ms. Gilmore had signed when she was admitted to the nursing facility, Mr. Gilmore testified that his mother vacillated in and out of lucidity, had no ability to understand complex issues, and was hallucinating. 2010 WL 3944653 at *l-*2.

The federal district court applied Florida law and, based on the son’s testimony and the medical records filed, determined that Ms. Gilmore lacked the mental capacity to enter into a contract because she was unable to comprehend the effect and nature of the transaction. The court relied on her age, physical ailments, history of dementia, confusion and disorientation, and her consistent use of antipsychotic medication. Id. at *3-*4.

In contrast, in this case the Estate did not present any live testimony, lay or expert, from a relative or from a medical professional. The Estate offered no proof that Ms. Mefford had been declared incapacitated by a physician. No one suggested that she had been diagnosed with dementia or psychosis. The Estate’s only evidence that possibly bore on Ms. Mef-ford’s capacity at the time she signed the admission documents was a packet of her medical records. Some of the records seemed to indicate that she was confused on some occasions but not on others. However, many of the records were impossible to read and contained shorthand notations made sometime prior to Ms. Mef-ford’s admission to John Knox Village. The Estate produced no witnesses, expert or otherwise, who might have deciphered the records or explained what they showed with regard to Ms. Mefford’s competency to enter into a contract at the time she was admitted to the facility. Moreover, sometime prior to her admission, Ms. Mefford had executed a power of attorney that would become effective only upon a determination that she was incapacitated. The Estate conceded in discovery that at the time Ms. Mefford entered John Knox Village she was making her own health care decisions.

In support of its motion to dismiss, John Knox submitted the deposition testimony of the employee who handled Ms. Mef-ford’s admission to the facility. The employee did not have an independent recollection of her meeting with Ms. Mefford, but she described her standard practice when completing admissions paperwork, including arbitration agreements. Her practice was to fully explain the entire agreement, including the arbitration agreement and the resident’s right to rescind it within thirty days. If she became concerned that a new resident could not understand the terms of the admissions agreement, she would seek out a doctor, nurse, or family member to assist the resident. If a new resident seemed confused, she would take steps to determine if someone held a power of attorney for the resident. Under her standard practice, the employee would not allow a resident to sign the admissions paperwork if she thought the resident seemed unable to understand it. In discovery, the Estate admitted that a signature on an executed admissions agreement appeared to be Ms. Mefford’s.

The upshot is that the Estate fell far short of its burden to overcome the presumption that Ms. Mefford was competent to enter into the arbitration agreement. Even if, as some of the medical records suggested, Ms. Mefford was sometimes confused, the Estate presented no evidence that she was confused at the time she signed the admissions paperwork that included the arbitration agreement.

From the record before us it does not appear that either the Estate or John Knox specifically asked to present testimony on the competency issue. Still we have held that where “the facts relating to the elements the trial court is required to consider in determining a motion to compel arbitration are disputed, the trial court is required to hold an evidentiary hearing in order to resolve the matter.” FL-Carrollwood Care Ctr., LLC v. Estate of Gordon ex rel. Gordon, 34 So.3d 804, 806 (Fla. 2d DCA 2010) (quoting Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 533 (Fla. 2d DCA 2005)). Although these facts are somewhat different from those set out in Estate of Gordon, we find that an actual evidentiary hearing should have been held on the issue of Ms. Mefford’s competency. We reverse the circuit court’s finding that Ms. Mefford did not have the mental capacity to enter into a valid arbitration agreement, and we remand to permit the court to conduct an evidentiary hearing on this issue.

As mentioned, the circuit court also found that the arbitration agreement was procedurally unconscionable because Ms. Mefford was confused and the John Knox facility did not insure that she was able to understand the agreement she was signing. Procedural unconscionability relates to the way a contract is made, and it addresses such issues as the bargaining power of the parties and their ability to understand the terms of the contract. Bland ex rel. Coker v. Health Care & Retirement Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006), abrogated on other grounds by Shotts, 86 So.3d 456. Thus, if the Estate had proved that Ms. Mef-ford’s mental state was such that she could not understand the arbitration agreement, that fact could support a finding of procedural unconscionability. But, as we have held above, the Estate’s evidence was insufficient.

Moreover, under the law of this district an arbitration agreement may be avoided for unconscionability only when it is both procedurally and substantively unconscionable. Tampa HCP, LLC v. Bachor, 72 So.3d 323, 326 (Fla. 2d DCA 2011). A contract is substantively unconscionable only if its terms are so outrageously unfair that they shock the judicial conscience. Bland, 927 So.2d at 256. Here, the circuit court did not find that the agreement was substantively unconscionable. Thus, the circuit court’s holding that the arbitration agreement was unconscionable was unsupported by either the evidence or the law.

For the reasons described, we reverse the order under review and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and MORRIS, J., Concur.

      . John Knox raised other grounds in its motion to dismiss, but the court did not rule on those grounds; it only considered the arbitration issue.


author: CASANUEVA, Judge.

text:
    Michael W. McCORD, Appellant, v. Anne M. McCORD, Appellee.
    No. 2D11-5341.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2012.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Kevin D. Brennan of Meros, Smith, Laz-zara & Olney, P.A., St. Petersburg, for Appellee.
   CASANUEVA, Judge.

In this postdissolution of marriage proceeding, Michael W. McCord contends that the trial court erred in construing a provision of the marital settlement agreement regarding the terms that allowed Anne M. McCord to occasionally use his experimental airplane. We conclude that his contention is meritorious and reverse.

Mr. and Ms. McCord were divorced in December 2010. We look to several written instruments that contain provisions relevant to our determination. The parties’ marital settlement agreement incorporates, in part, their mediation agreement. Section four of the mediation agreement identifies the manner in which the parties equitably distributed their marital assets. The asset in question is a turbo-prop experimental airplane belonging to Mr. McCord that is capable of seating six persons, including a pilot and co-pilot. The parties agreed on the following language regarding Ms. McCord’s use of this asset:

F. Use of airplane — The Wife shall be entitled to use the Husband’s airplane for up to four hours per month for 24 consecutive months and he shall cooperate fully, and she shall be responsible for showing her appreciation to the Pilot thereof; any time not used in any month by the Wife shall be waived. The Husband will pay the fuel, pilots’ fee, and expenses.

The parties successfully adhered to the contractual use provision for the first month after their marriage was dissolved, January 2011. But for February and March, Ms. McCord was unable to use the airplane for lack of a pilot. The Federal Aviation Administration had decreed that due to the experimental nature of the airplane, only Mr. McCord was allowed to pilot it, and he refused to do so for her use. Consequently, she filed a motion to enforce the final judgment and mediation agreement seeking to enforce her contractual right to use Mr. McCord’s airplane. Paragraph three of her motion requested the following relief:

It is requested that the Court enter an order of enforcement retroactive to the date of the agreement and enter a Judgment against the former Husband for the past due months that have not been used as a result of the former Husband’s failure to cooperate and order specifically requiring the former Husband to cooperate going forward or that the former Wife can make her own arrangements at his expense.

At the hearing on Ms. McCord’s enforcement motion, the essence of the parties’ dispute centered on the phrase “fully cooperate.” Ms. McCord advanced the proposition that the agreement did not bar Mr. McCord from personally piloting the airplane and that he must do so to provide the full cooperation required by the contractual provision. She would thus receive the benefit for which she contracted. Mr. McCord’s position can be distilled to the simple proposition that he did not contract to be his former wife’s pilot and that it is improper to read the parties’ contract in that manner.

The trial court found Ms. McCord’s theory persuasive and concluded that Mr. McCord breached the contractual provision.

Discussion

“A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract.” Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 2011). On appeal, review of a trial court’s interpretation of a contract is de novo. Chandler v. Geico Indem. Co., 78 So.3d 1293, 1296 (Fla.2011).

The parties’ marital settlement agreement acknowledged their “desire to define their respective obligations to each other and to record their understanding as to property rights.” In a similar vein, each acknowledged in the marital settlement agreement that “this agreement constitutes the entire contract of the parties” and that its terms were understood. The provision at issue, section 4F, outlines Ms. McCord’s rights to use Mr. McCord’s airplane, which are on a limited basis: no more than four hours per month for a limited term of twenty-four consecutive months. It is to this obligation that Mr. McCord must “cooperate fully” and not obstruct. He is to cooperate fully to make the airplane available for Ms. McCord’s use. This will, in usual circumstances, include insuring the airplane’s availability, flight worthiness, and compliance with necessary and appropriate regulations.

Section 4F further assigns the financial responsibilities that accrue from the use of the airplane. Ms. McCord will be responsible for showing appreciation to the pilot, generally understood to be a tip, and Mr. McCord will pay the fuel, pilots’ fee, and expenses.

We find no language in section 4F that suggests or could be construed to create a personal services obligation on the part of Mr. McCord to be Ms. McCord’s personal pilot. The agreement refers twice to the airplane’s operator and in both instances it does so generically. It requires Ms. McCord to bear the responsibility for demonstrating “her appreciation to the Pilot,” and that Mr. McCord will pay the “pilots’ fee.”

The parties had an opportunity to negotiate for and to require Mr. McCord to be either the primary or default pilot, but the contractual language establishes that this was not done. Interestingly, Mr. McCord’s obligation to pay for the operator of the airplane when Ms. McCord is using it is established in the plural — he will pay the “pilots’ ” fee. This is consistent with the airplane’s ability to seat both a pilot and a co-pilot and to ensure that Ms. McCord was not obligated to pay either.

In summary, an examination of the language utilized by the parties indicates that the use of airplane provision contemplates that a third party to the contract will be hired or contracted to fly the airplane for Ms. McCord. The provision contains no express language requiring Mr. McCord to fly the airplane at any time, much less on those occasions when Ms. McCord invokes her contractual right of use.

To read the equitable distribution provision in the manner suggested by Ms. McCord and adopted by the trial court is to rewrite the parties’ original contract and create a duty of performance for which Mr. McCord neither bargained nor agreed. In this instance, the proper focus is what the contract said and not what it did not say.

Because we remand for further proceedings consistent with this opinion, we observe that Ms. McCord’s pleadings only placed at issue past, not future, performance of the contractual provision. Unless the pleadings are amended or the issue is tried by consent, future performance or breach is not at issue.

Reversed and remanded.

WHATLEY and BLACK, JJ., Concur.

      . It appears that the airplane is Mr. McCord's nonmarital asset because it was not part of the equitable distribution scheme that the parties fashioned in their mediated agreement.


author: VILLANTI, Judge.

text:
    Ted Kalim MARESCOT, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-470.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2012.
   VILLANTI, Judge.

Ted Kalim Marescot appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. The postcon-viction court ruled that the motion was untimely, and we agree. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As we did in Barrios-Cruz, we hold that Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in post-conviction proceedings, and we certify the following question of great public importance:

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

ALTENBERND and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Marcus CHEVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4971.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


text:
    Russell Albert WAITERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5313.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Kyndal Denton WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5777.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J.,' LEWIS, and ROWE, JJ.,' concur.


text:
    Rodrickas Leadrean ENGLISH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5781.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2012.
    Nancy A. Daniels, Public Defender, and Devin Collier, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Frederico Dewayne SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4943.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Tony J. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4607.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2012.
    Nancy A. Daniels, Public Defender; Steven L. Seliger and Michael M. Corin, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Richard H. CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3892.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2012.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Garman Clarence MARTIN, Jr., Petitioner/Former Husband, Appellant, v. Sherri Anne MARTIN, n/k/a Sherri Anne Schmidth, Respondent/Former Wife, Appellee.
    No. 1D11-5516.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Bradley G. Johnson of Johnson & Green, P. A., Milton, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In this appeal from a final order on the former husband’s motion for contempt, the former husband claims the trial court committed reversible error when it concluded that his delay in filing the motion for contempt precluded the court from directing the former wife to comply with a prior order by executing a release of her claim to the federal income tax dependency exemption for 2006, 2007, and 2008. He argues the mere delay in asserting a right, without any showing of prejudice, is insufficient to establish the affirmative defense of laches. We conclude this claim is not preserved for appeal because the former husband never raised it at the contempt hearing or in a motion for rehearing. See Hentze v. Denys, 88 So.3d 307 (Fla. 1st DCA 2012).

AFFIRMED.

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    C.C. BORDEN CONSTRUCTION, INC. and Fidelity and Deposit Company of MARYLAND, Appellants, v. WALDING COMPANY, a Florida corporation, Appellee.
    No. 1D12-1744.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Reese J. Henderson, Jr. of GrayRobin-son, P.A., Jacksonville, for Appellants.
    Robert Aguilar of Aguilar, Sieron & Yeomans, Orange Park, for Appellee.
   PER CURIAM.

Appellants, C.C. Borden Construction Inc. (Borden) and Fidelity and Deposit Company of Maryland (Fidelity), seek reversal of a non-final order that denied their motion to compel arbitration pursuant to Rule 9.130(a)(3)(C)(iv), Fla. R.App. P. We agree with the trial court that the arbitration provisions of the subject contract are ambiguously worded, but resolve any doubt concerning the scope of the provisions in favor of arbitration and to give harmonious effect to all the terms. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000); Auchter Co. v. Zagloul, 949 So.2d 1189, 1191 (Fla. 1st DCA 2007). If all portions of the claims and dispute resolution paragraph of the subject contract are read in harmony, the necessary conclusion is that the instant dispute is subject to the arbitration provision.

We, therefore, affirm the non-final order to the extent the trial court found the arbitration provisions ambiguous, reverse in part to the extent the trial court construed the contract against the drafter rather than to give harmonious effect to all the terms, and remand for entry of an order granting appellants’ motion to compel arbitration.

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    Mark C. BURKE, Appellant, v. NORTHEAST FLORIDA STATE HOSPITAL, Appellee.
    No. 1D12-2243.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.

      Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    J. Melton Bessinger, Northeast Florida State Hospital, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Pullen v. State, 818 So.2d 601 (Fla. 1st DCA 2002).

PADOVANO, THOMAS and CLARK, JJ., concur.


text:
    Aaron M. BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2543.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    James MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5047.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, and Charlie Mccoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    John Thomas CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6312.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

AFFIRMED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Meshach EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6604.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Heather UNDERWOOD, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and John L. Myers, P.A., Appellees.
    No. 1D12-1765.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Heather Underwood, pro se, Appellant.
    A. Robert Whaley, General Counsel, Tallahassee, for Appellee, Reemployment Assistance Appeals Commission.
   PER CURIAM.

DISMISSED. Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    Kenneth James PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4970.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Joseph F. BOOKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3015.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Gerald Joseph RHODES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6613.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Gary Quince MARKHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6615.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Robert Lee MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5602.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Brenda Kay MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5740.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Phillip Joel SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5305.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Eric Lee ALSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5478.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Kent Jarred McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5123.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

AFFIRMED.

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    James A. PRIMOUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5122.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    John Henry AMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5072.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Robert Edward CURRAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5747.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.

      Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence without prejudice to the filing of a motion for postconviction relief as to the issue of whether trial counsel rendered ineffective assistance for stipulating to the admission of certain hearsay.

VAN NORTWICK, CLARK, and RAY, JJ., concur.


text:
    Russell DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5489.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee. ■
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    David L. LaPLAUNT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5575.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Clayton Lamar WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5941.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Charles Andrews HENDRIX, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5733.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.