author: MONACO, C.J.

text:
    Michael MYERS and Jacqueline Myers, Appellant, v. HIGHWAY 46 HOLDINGS, L.L.C., et al., Appellee.
    No. 5D10-1982.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Rehearing Denied July 13, 2011.

      Darryl M. Bloodworth, and Nichole M. Mooney, of Dean, Mead, Egerton, Blood-worth, Capouano & Bozarth, P.A., Orlando, for Appellant.
    Jennifer R. Dixon and H. Gregory McNeill, of Lowndes, Drosdiek, Doster, Kantor & Reed, P.A., Orlando, for Appel-lee Highway 46 Holdings, LLC.
    Thomas P. Wert, of Roetzel & Andress, LPA, Orlando, for Appellee, Donald J. Ha-chenberger.
   MONACO, C.J.

Mr. Webster defines “prolix” as being “unduly prolonged or drawn out” or “given to verbosity and diffuseness in speaking or writing,” and “prolixity” as “the quality or state of being prolix.” Webster’s Seventh New Collegiate Dictionary 681 (1969). If one would truly seek to understand prolixity, however, one would want to review the second amended counterclaim and cross-claim filed by the appellants, Michael Myers and Jacqueline Myers, in this case. The document spans an impressive 226 pages, 36 counts, and 901 paragraphs. When the trial court considered, and ultimately granted with prejudice, the motions to dismiss this elephantine pleading, it noted with great accuracy:

The pleading is repetitive, disorganized and disjointed. It is so replete with superfluous factual allegations and rambling legal conclusions that it is barely comprehensible. Fla. R. Civ. P. 1.110 requires that a claim for relief state a cause of action and contain a short and plain statement of the ultimate facts showing the pleader is entitled to relief. The prolix nature of the Second Amended Counterclaim and Crossclaim makes it violative of this rule.

We could not agree more. Yet we find that we must, in part, reverse.

An extensive recitation of the facts of this case is not necessary for an understanding of our holding. Suffice it to say that the dispute concerns a venture originally involving the Myers and two of the appellees, Donald J. Haehenberger and Glenda Haehenberger. The Myers and the Hachenbergers decided to develop an entertainment complex that included five bars, as well as a restaurant, retail store, sound stage and separate smokehouse. The other appellees are various business entities created to implement the plan. Relations between the parties broke down and the Hachenbergers removed Michael Myers from the property and terminated his employment. One of the business entity appellees, Highway 46 Holdings, LLC, brought suit against the Myers under various of the agreements between the parties, and the Myers counterclaimed and cross-claimed against the business entities and against the Hachenbergers individually.

The Myers made five earlier attempts to raise counterclaims, cross-claims and third-party actions against Highway 46 and the Hachenbergers. On occasion often the pleadings were amended by stipulation, but prior to the dismissal of the order on appeal the trial court entered a dismissal without prejudice of an earlier attempt at a counterclaim and cross-claim. Unfortunately, each successive time the Myers attempted to plead their numerous legal positions, their counterclaim and cross-claim got longer and more confusing. When the trial court at the conclusion of the penultimate hearing granted a Ha-chenberger dismissal motion, it did so saying that it intended to take a “cautious approach,” and that it, therefore, was granting the Myers “a final opportunity to further amend their pleadings within the next 20 days.” Predictably, after the sixth attempt by the Myers, the trial court, obviously having had enough, dismissed their claims with prejudice for “repeated refusal to comply with the rules of pleading.”

The Myers argue on appeal that the trial court erred when it did not consider the factors set forth in Kozel v. Os-tendorf, 629 So.2d 817 (Fla.1998), prior to dismissing with prejudice. To aid trial courts in deciding whether dismissal with prejudice is proper when counsel fails to adhere to procedural requirements, our supreme court adopted a six-factor analysis. Id. These factors are: (1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudices the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay created significant problems of judicial administration. Id.,see also Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 915 (Fla. 1st DCA 2002) (holding that the trial court should grant leave to amend, rather than dismiss a complaint with prejudice, unless a party has abused such privilege, an amendment would prejudice the opposing party, or the complaint is clearly not amendable). The second district in a later case considering this issue explained that “dismissing a case with prejudice, albeit authorized, due to the dilatory action of the plaintiffs counsel in filing an amended complaint, unduly punishes and ‘espouses a policy that [the Florida Supreme Court] does not wish to promote.’ ” Rohlwing v. Myakka River Real Properties, Inc., 884 So.2d 402, 404 (Fla. 2d DCA 2004) (quoting Kozel, 629 So.2d at 818). A fair reading of the cases following Kozel, however, suggests that the six-part test called for in that decision is to be applied when the dismissal with prejudice is essentially a sanction. See, e.g., Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366 (Fla. 3d DCA 2011); Sanders v. Gussin, 30 So.3d 699 (Fla. 5th DCA 2010).

The appellees here argue that the dismissal was not a sanction that would require a Kozel analysis, but was rather a dismissal based on the repeated inability of the Myers to state a cause of action despite five attempts. That is to say, the appellee’s posit that the Myers have demonstrated that they are incapable of stating valid causes of action no matter how many attempts they might make.

We certainly agree with the appel-lees that although the trial judge must give a party a reasonable number of opportunities to amend to state a cause of action, there is no specific number that is binding on the trial court, and at some point an end must come. The Fourth District Court of Appeal noted cogently in this respect:

While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion. There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims.

Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000) (quoting Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3d DCA 1992)). Indeed, many of the counts set out by the Myers were dismissed simply because they could not state a cause of action after numerous attempts. The appellees contend that the point in the litigation referred to in Dimick had been reached in the present case, and the court, therefore properly dismissed the case with prejudice. We conclude in this connection that with respect to those counts where the Myers have yet to state a cause of action, the dismissal was not a sanction and, accordingly, Kozel was not implicated. Thus we affirm the dismissal with prejudice of those counts.

Several of the counts, however, were not challenged on the basis of a failure to state a cause of action, and a few were never previously dismissed by the court, and appear to have been sufficiently pled even if in an obtuse and convoluted way. See Samuels v. King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001). The continued failure to file pleadings in accordance with Florida Rule of Civil Procedure 1.110(b), may nevertheless constitute an act of disobedience that could unquestionably subject counsel to sanctions as suggested in Kozel. See Rohlwing, 884 So.2d at 407.

It appears from the record in this case that the trial judge may very well have dismissed these latter counts of the counterclaim and cross-claim with prejudice because of continued violations by counsel for the Myers of the applicable rules of pleading, particularly Florida Rule of Civil Procedure 1.110, requiring a claim to consist of a short and plain statement of ultimate fact. However, the minimum sufficiency of those counts appears to have been conceded because motions to dismiss for failure to state a cause of action were specifically not addressed to them. We conclude, therefore, that as to those counts in which a cause of action was sufficiently and facially pled, their dismissal with prejudice must have constituted a sanction based upon trial counsel’s multitude of procedural faults. Under these circumstances we further conclude that a Kozel analysis had to have been performed with respect to these counts before they could be validly dismissed with prejudice. We, accordingly, reverse and remand to allow the court to address Kozel before taking further action.

Finally, we note that the trial court found that the Hachenbergers were not properly joined as parties by the Myers under Florida Rule of Civil Procedure 1.170(h). That rule reads as follows:

(h) Additional Parties May Be Brought In. When the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim or crossclaim, they shall be named in the counterclaim or crossclaim and be served with process and shall be parties to the action thereafter if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action. Rules 1.250(b) and (c) apply to parties brought in under this subdivision.

It appears that the Hachenbergers were properly joined under this rule, however, because their presence in the case is required to grant complete relief. We note parenthetically that Count III of the amended complaint seeks specific performance under certain of the agreements between the various parties and specifically asks the trial court to declare the right of the Hachenbergers to control the management of Highway 46 Holdings, LLC. Since the appellees asked for this declaration, it is clear that the Hachenbergers’ joinder is necessary for a complete determination. See Blue Dolphin Fiberglass Pools of Florida Inc. v. Swim Indus. Corp., 597 So.2d 808 (Fla. 2d DCA 1992). Moreover, the Hachenbergers are signatories to many of the agreements and documents that form the basis of this suit and were involved to various extents in several of the causes of action made out by the pleadings. Thus we conclude that the trial court erred in dismissing the counterclaims and cross-claims based on improper joinder.

Accordingly, we reverse and remand for proceedings consistent with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . We hasten to point out that appellants’ counsel on this appeal was not the trial counsel who filed the pleading.

      . While it is certainly not easy to tell, the following counts appear to have been dismissed for failure to state a cause of action: Counts IV, VII, VIII, XVII, XVIII, XIX, XX, XXI, XXIV, XXV, XXVI and XXIX.

      . While all of the remaining counts were the subject of motions to dismiss, the motions were based primarily on affirmative defenses, not for failure to state a cause of action. For example, several of the motions sought dismissal based on the statute of frauds. Generally, however, an affirmative defense asserting the statute of frauds cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of the defense to bar the action. See Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318 (Fla. 5th DCA 2002), review denied, 846 So.2d 1147 (Fla.2003).

      . For example, Counts I, II and III of the Second Amended Counterclaims and Cross-Claims allege that the various agreements between the parties are void due to fraud. If correct, these counts would affect the rights of the Hachenbergers under the various agreements that they signed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert L. ERDMAN and Carol Erdman, Appellants, v. Jonathan BLOCH, M.D. and Melbourne Internal, Etc., Appellees.
    No. 5D10-661.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Rehearing Denied July 11, 2011.

      James L. Torres, Indialantic, for Appellant.
    Michael R. D’Lugo, of Wicker, Smith, et al., Orlando, for Appellee.
   PER CURIAM.

Appellants, Robert Erdman and Carol Erdman [“Erdman”], appeal a final order dismissing their complaint with prejudice because of their failure to comply with a court order compelling disclosure of their expert witness. We reverse.

Erdman brought suit against Appellees, Jonathan Bloch, M.D. and Melbourne Internal Medicine Associates, P.A. [“collectively Appellees”], alleging medical malpractice. Appellees filed separate answers and affirmative defenses. The parties engaged in discovery for approximately one year. At that point, Erdman filed their notice for jury trial on August 4, 2008. The trial court accordingly issued an order setting various pre-trial deadlines, including disclosure of expert witnesses by March 2, 2009. Erdman disclosed their expert witness on March 9, 2009.

Appellees had difficulty in securing discovery from Erdman’s retained expert and filed a motion to strike the expert. They also filed a motion to compel responses to expert discovery. Thereafter, Erdman moved to remove the case from the trial docket on the ground that they had been unable to locate their expert witness and additional time was required for Erdman to retain a new expert. The trial date was moved and a new order establishing disclosure deadlines was entered that included a new expert witness disclosure deadline of September 14, 2009. On September 18, 2009, Appellees filed a renewed motion to compel response to expert discovery and filed a motion to compel the depositions of Erdman’s experts.

A hearing on Appellees’ various motions was conducted on November 4, 2009. At the hearing, counsel for Erdman informed the court that their retained expert had “just disappeared off the face of the earth ... literally cannot be found anywhere.” Erdman requested a sixty-day extension of time in order to find a new expert witness and to respond to Appellees’ discovery requests. Specifically, Erdman’s counsel requested:

[A]nd what I ask is the court’s indulgence to say — essentially to give me 60 days to get something to Ms. Flanagan. And if I can produce an expert and some expert discovery for her, that obviates most of the points that are in her discovery requests that we would be here about today. And if I can’t produce another expert within that time period, I don’t think I’m ever going to get one.

The trial court then went on to confirm exactly what it was that counsel for Erd-man was requesting, with the following exchange taking place between the court and Erdman’s counsel:

The Court: So you want a drop dead date of 60 days for your expert?
Mr. Torres: That’s maybe a bad term but, yes, Sir. And at that time — at that juncture, if we have it—
The Court: What’s the nature of the expertise?
Mr. Torres: It’s a general surgeon.

Again, during the hearing, Erdman’s counsel restated the agreement as follows:

[B]ut then at 60 days, Judge, if I can’t find an expert at that point, I’m sure Ms. Flanagan will have a motion, and we’ll have to deal with the fact that I don’t have an expert and I can’t go forward. And we’ll have to deal with the case at that point. It gives me a little time, recognizing my own personal situation that I don’t want to burden the court with but that’s just what I’m facing right now. And so we’re looking at, you know, middle of January, January 15th, or let’s say that’s a little more than 60 days to give a final answer and respond to expert discovery. If I can’t do it at that time, I don’t think I’m ever going to be able to do it.

Lastly, Erdman’s counsel and the trial court engaged in the following discussion:

Mr. Torres: At that point, you would then be in a position to say, here’s when we’re going to try this case or Ms. Flanagan is going to have a motion for summary judgment, which is going to dissolve [sic] the case or my client is going to take a voluntary dismissal at that juncture. And we would be in that position at that time to put up or shut up and move forward or not.
The Court: So be it.
Ms. Flanagan: Judge, if Mr. Torres doesn’t have an expert in 60 days, I would ask that it be self-executing and the Court enter an order dismissing—
The Court: I don’t want it to be self-executing but it’s going to happen. In other words, if he doesn’t have an expert within 60 days, it’s a drop dead date.
Ms. Flanagan: Can I just — without having to come over here and move for a summary judgment and get an affidavit and all that, can I just — can we just have a motion for entry of involuntary dismissal and submit an order without a hearing?
The Court: I think you need a hearing ... .but if the facts and circumstances are the same today as they are going— in 60 days the same today, then case gone. But I need a hearing.

After the hearing, the trial court continued the trial and entered an order that provided in relevant part as follows:

1. Plaintiff’s Motion to Continue Trial is GRANTED. The case has been removed from the January 4, 2010 trial docket.
2. Defendants’ Motion to Compel Depositions of Experts is GRANTED. If the Plaintiffs have not disclosed a standard of care expert on or before January 15, 2010, the Court will involuntarily dismiss this case.

Erdman did not identify an expert by the January 15, 2010, deadline. As a result, Appellees filed a motion for an involuntary dismissal of the lawsuit. It appears a hearing was conducted, although there is no transcript of any hearing in the record. The trial court entered the final order of dismissal with prejudice on January 20, 2010, and this appeal followed.

Dismissal of a complaint for noncompliance with a court order is subject to an abuse of discretion standard of review. Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004). Since 1994, however, the Florida Supreme Court has made a distinction between non-compliance attributable to the litigant and neglect or misconduct attributable to counsel in considering the propriety of dismissal as a sanction. In Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), the supreme court said that a dismissal “based solely on the attorney’s neglect” in a manner that unduly punishes the litigant “espouses a policy that this Court does not wish to promote.” Id. at 818. The Kozel court articulated' a six-factor test for determining whether a dismissal with prejudice is warranted where the failure was attributable to the attorney. These factors include:

1. Whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
2. Whether the attorney has previously been sanctioned;
3. Whether the client is personally involved in the act of disobedience;
4. Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
5. Whether the attorney offered reasonable justification for noncompliance; and
6. Whether the delay created significant problems of judicial administration.

Id. If consideration of these factors suggests the attorney was at fault and if a sanction less severe than dismissal appears to be a viable alternative, the trial court should employ such an alternative. Id. In Kozel, the court observed that where the attorney alone is responsible for the noncompliance with a court order, “a fine, public reprimand, or contempt order may often be the appropriate sanction.” Id.

The dismissal of an action based on the violation of a discovery order requires express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard. Ham v. Dun-mire, 891 So.2d 492, 495-96 (Fla.2004). Express findings are required to ensure that the trial judge has determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation. Id. at 496. While no “magic words” are required, the trial court must make a “finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Id.

This Court, along with the other district courts, has also interpreted Kozel to require written findings addressing the Kozel factors in an order of dismissal. Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366, 367 (Fla. 3d DCA 2011); Sanders v. Gussin, 30 So.3d 699, 703 (Fla. 5th DCA 2010); Smith v. City of Panama, 951 So.2d 959, 962 (Fla. 1st DCA 2007); Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006); Rohlwing v. Myakka River Real Props., Inc., 884 So.2d 402, 407 (Fla. 2d DCA 2004); Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002).

Here, the trial court’s order failed to make the required findings. Appellees, however, contend that since the dismissal was based in part upon the acquiescence of Erdman’s counsel during the November 4, 2009, hearing, as recounted above, the trial court did not have to consider or make findings on the Kozel factors prior to dismissal. We do not find that counsel’s statements amounted to an agreement to disregard Kozel.

Because of the absence of a hearing transcript, it is not clear from the record whether the trial court considered the Ko-zel factors at the hearing prior to dismissal of the case. If the court had made the findings in the order, the absence of a transcript would have prevented review; but in the absence of such findings, we are bound to reverse and remand for the required findings or, if needed, a Kozel hearing.

REVERSED and REMANDED.

MONACO, C.J., GRIFFIN and JACOBUS, JJ., concur.


text:
    Kevin Leon NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1082.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Rehearing Denied July 18, 2011.

      Kevin Leon Neal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tal- • lahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges judgment and sentence in Es-cambia County case number 1995-2618-CFC3-01. Previously, petitioner Neal appealed six orders denying postconviction relief with no relief granted by this court. In Neal v. State, 11 So.3d 359 (Fla. 1st DCA 2009), this court affirmed an order of the circuit court which prohibited petitioner from filing future pro se pleadings unless signed by a member of The Florida Bar. This court directed petitioner to show cause why sanctions should not be imposed against him. Petitioner’s response to the show cause order does not provide a legal basis to refrain from imposition of sanctions. Accordingly, Kevin Leon Neal is hereby prohibited from filing future pro se pleadings with this court unless signed by a member in good standing of The Florida Bar. See State v. Spencer, 751 So.2d 47 (Fla.1999). Further, pursuant to section 944.279, Florida Statutes, we direct the clerk of this court to forward a certified copy of this opinion to the appropriate facility in the Department of Corrections for possible disciplinary action against petitioner.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PETITION DISMISSED; SANCTIONS IMPOSED.

THOMAS, WETHERELL, and ROWE, JJ., concur.


author: DAMOORGIAN, J. POLEN, J.,

text:
    CERTAIN INTERESTED UNDERWRITERS AT LLOYD’S, London Subscribing to Policy Number M12226, Appellant, v. CHABAD LUBAVITCH OF GREATER FT. LAUDERDALE, INC., Appellee.
    No. 4D10-762.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Rehearing Denied Aug. 3, 2011.

      Kevin M. O’Brien and Michael B. Ger-main of Phelps Dunbar, LLP, Tampa, for appellant.
    Matthew D. Bavaro of Bavaro Legal, P.A., Plantation, for appellee.
   DAMOORGIAN, J.

Certain Interested Underwriters at Lloyd’s, London, appeals the trial court’s denial of its motion for summary judgment and granting of Chabad Lubavitch’s motion for summary judgment. We reverse.

The following is a recitation of the undisputed material facts. A building owned by Chabad was damaged when a crane landed on it during Tropical Storm Barry. At the time, Chabad had two policies on the damaged building. The first, which is the subject of this appeal, was an “all risk” policy issued by Lloyd’s. It contained the following “Windstorm or Hail Exclusion” (“windstorm exclusion”) provision:

We will not pay for loss or damage:

1. Caused directly or indirectly by Windstorm or Hail, regardless of any other cause or event that contributes concurrently or in any sequence to the loss or damage; or
2. Caused by rain, snow, sand or dust, whether driven by wind or not, if that loss or damage would not have occurred but for the Windstorm or Hail.
But if Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss. For example, if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.

The other policy was a policy covering wind damage (“the wind policy”). Prior to making a claim under the all risk policy, Chabad had made a claim under the wind policy for the storm damage. Chabad received the policy limits under the wind policy.

Chabad then made a claim under the all risk policy for the same storm damage. Lloyd’s responded by filing a complaint for declaratory judgment seeking a determination that the all risk policy’s windstorm exclusion provision excluded from coverage the damage caused by the wind generated during the storm. Chabad counterclaimed for breach of contract because of Lloyd’s failure to pay the claim filed under the subject policy. Both parties moved for summary judgment. Lloyd’s’ argument before the trial court was based on the theory that Chabad’s submission of the claim under the wind policy constituted an admission that the loss was caused by wind. Therefore, the damage to the building would not be covered under the windstorm exclusion in the all risk policy.

Chabad countered that the crane striking the building was the cause of damage, not wind. Chabad’s argument focused on the exception within the windstorm exclusion provision (referred to by Lloyd’s as an “Ensuing Loss” provision), which stated that “if the Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss.” The crane striking the building was “a cause of loss other than rain, snow, sand or dust,” resulting from ■wind.

The trial court concluded that the windstorm exclusion was ambiguous and therefore should be construed strictly against Lloyd’s to cover the damage to Chabad’s building. This appeal follows.

Our standard of review of the entry of a summary judgment is de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

The issue before us is whether the trial court erred in its determination that the windstorm exclusion in the parties’ contract of insurance was ambiguous and, therefore, should be construed against Lloyd’s. We conclude that the windstorm exclusion is unambiguous and that the trial court erred by concluding otherwise.

Interpreting insurance contracts requires the application of the following rules of interpretation: (1) construction of an insurance contract provision must be based on the policy’s plain language; (2) if the provision is ambiguous, it must be construed in favor of the insured; and (3) if more than one meaning can be assigned to a provision, one which favors coverage and another which does not, the provision is ambiguous. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). Additionally, when working through the interpretive process, “ ‘courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.’ ” Id. at 166 (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)).

At the heart of the dispute in this case is the meaning of the “Ensuing Loss” provision which is an exception to the windstorm exclusion. The windstorm exclusion unambiguously provides that if a loss or damage is caused by a windstorm, the loss is not covered, regardless of any other cause or event that contributes to the loss. Contained within the exclusion is the “Ensuing Loss” provision which provides that if a windstorm “results in a cause of loss other than rain, snow sand or dust, and that resulting cause of loss is a Covered Cause of Loss,” the loss will be covered. Lloyd’s argues, and we agree, that the plain language of the “Ensuing Loss” provision means that if a windstorm sets in motion another cause, which is not excluded by the policy, and that intervening cause results in a covered loss, the windstorm exception does not apply and the loss would be covered by the policy. See Swire Pac., 845 So.2d at 165.

We find support for this interpretation in the factual scenario appearing at the end of the “Ensuing Loss” provision, to wit: “if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.” In the example, a windstorm damages the heating system. The damage to the heating system would not be a covered loss under the exclusion. However, if the damage to the heating system causes a fire to erupt which results in damage attributable to the fire, the damage caused by the fire would be covered under the policy. In the example, the “cause of loss” is not the windstorm, but the intervening fire. Watkins v. Am. Sec. Ins. Co., 129 Ga.App. 566, 200 S.E.2d 304, 305 (1973) (“[WJhere it appears that a peril ... has set in motion other forces which, directly and without intervention of any other causative factor, works the damage, such force is responsible for the loss.”) Our reading gives each provision its full meaning and operative effect, and the exclusion can be clearly determined and understood as required by Florida law. Swire Pac., 845 So.2d at 166.

However, our determination does not fully resolve this matter because Lloyd’s also assigns error to the trial court’s apparent factual determination that the wind was not a direct cause of the damage. The record reflects that the parties did not stipulate to the cause of the crane falling. This factual determination is essential because the exclusion would only apply if the crane fell from its perch because of the force of the wind, aided only by gravity and not some other intervening cause. See Watkins, 200 S.E.2d at 305. For this reason, we are compelled to remand the case for resolution of this factual issue.

Reversed and Remanded.

GROSS, C.J., concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent. I would hold that the trial court correctly found an ambiguity in the insurance policy. That ambiguity arises from the language:

But if Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Covered Cause of Loss, we will pay for the loss or damage caused by such Covered Cause of Loss. For example, if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.

A crane falling on Chabad’s building is “a cause of loss other than rain, snow, sand or dust.” I would affirm summary judgment for appellee.

      . Chabad argues that Lloyd's appeal is untimely. We conclude that we have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A); see also Gulf Power Co. v. Harper, 940 So.2d 535 (Fla. 1st DCA 2006).


author: CASANUEVA, Chief Judge.

text:
    Katy BACHMAN, Appellant, v. Michael McLINN, Appellee.
    No. 2D10-2325.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      William McGrew of Law Firm of Sam R. Assini, LLC, Cape Coral, for Appellant.
    Renee Binns of Binns Family Law Associates, P.A., Fort Myers, for Appellee.
   CASANUEVA, Chief Judge.

Katy Bachman (the Mother) appeals the supplemental final judgment that granted Michael McLinn’s (the Father’s) supplemental petition for modification of the pri- or final judgment of dissolution of their marriage and denied her supplemental counterpetition for modification. The modifications related primarily to child custody and child support. The Mother raises five issues on appeal. We reverse.

FACTS

After twenty-five years, the parties’ marriage was dissolved by a final judgment entered on December 80, 2005. The final judgment incorporated a mediated marital settlement agreement (MSA) that designated the Mother as the primary residential parent of the parties’ eight-year-old only child. The MSA provided a routine visitation schedule for the Father. The MSA also included a stipulated amount for the Father’s income despite the fact that his income was in flux at that time.

When certain bills remained unpaid, the Mother moved for contempt asserting that the Father had failed to pay his share of the child’s uncovered medical expenses as the MSA required. A subsequent magistrate’s report concluded that the Father paid the overdue expenses only after the Mother had initiated enforcement proceedings and recommended that the Father reimburse the Mother her filing fees. Shortly thereafter, in early 2007, the Father filed a supplemental petition seeking to modify the terms of the dissolution judgment and its incorporated MSA.

Generally, the Father sought “relief consistent with this Supplemental Petition and such other and further relief as to this court shall seem proper.” One of his pleaded primary claims was that a substantial, material, and unanticipated change in circumstances had occurred since the original custody determination. Thus, he sought a change in the designation of the primary residential parent, claiming that it was in the best interest of the child that the child reside primarily with him or, in the alternative, a downward modification of his child support obligation. His supplemental petition, in seeking to demonstrate the substantial, material, and unanticipated change in circumstances, listed several occasions detailing when the Mother had declined to accede to some of the Father’s demands.

Trial began in January 2010. At trial, however, the Father’s claims differed from what he had pleaded in his supplemental petition. At trial he sought to modify the child support amounts to reflect what he had paid during previous years. He also testified to wanting more time with his child and to be part of shared parenting.

At the close of the Father’s case, the Mother unsuccessfully moved for a directed verdict contending that the Father’s evidence failed to establish that a substantial, material, and unanticipated change in circumstances had taken place to warrant a change from her to him as the primary residential parent. Over the Mother’s objection, the trial court also granted the Father’s motion to amend the pleadings to conform to the evidence.

PRIMARY RESIDENTIAL PARENT VERSUS TIME SHARING

The legislature of our state amended section 61.13, Florida Statutes (2008), effective October 1, 2008. Lombard v. Lombard, 997 So.2d 1188, 1190 n. 1 (Fla. 2d DCA 2008). Among the various amendments were those removing statutory references to “custody,” “primary residence,” “primary residential parent,” and “visitation”; substituted were terms such as “parenting plan,” which includes “time sharing.” Cobo v. Sierralta, 13 So.3d 493, 501 n. 4 (Fla. 3d DCA 2009). Thus, section 61.13(2)(c)(l) now directs that “[tjhere is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.”

The supplemental final judgment is couched in language of “time sharing,” i.e., the language of section 61.13 as amended in 2008. The Father concedes that the trial court was erroneously asked to and did apply the newly amended statute in reaching its ultimate conclusions. This was error because the parties’ case must be decided under the prior version of the statute.

A factually similar case is Hahn v. Hahn, 42 So.3d 945 (Fla. 4th DCA 2010). There, in 2005, the trial court entered a final judgment dissolving the parties’ marriage that incorporated an MSA. In 2007, each parent filed a supplemental petition seeking modification of visitation and time sharing. Applying the 2008 amendments to section 61.13, the trial court removed Mrs. Hahn’s designation as the primary residential parent, ordered a fifty-fifty time sharing plan for the parties with their children, and reduced Mr. Hahn’s child support obligation.

On appeal, Mrs. Hahn contended that the retroactive application of section 61.13 as amended in 2008 was improper. The Fourth District agreed, saying: “A statute is not operative as law until the date at which it takes effect [,] and it operates prospectively unless the intent that it operate retrospectively is clearly expressed.” Id. at 947 (quoting Imperial Point Colonnades Condo., Inc. v. Freedom Props. Int'l Inc., 349 So.2d 1194, 1195 (Fla. 4th DCA 1977)). This is particularly true because there are instances where retrospective operation of the law would act to impair or destroy existing rights. Id. (citing Horn v. Fla. Dep’t of Revenue ex rel. Abel, 752 So.2d 687, 688 (Fla. 3d DCA 2000)). The Fourth District concluded that the application of the statute “clearly impaired the former wife’s existing rights over her children.” Id.

We reach the same conclusion. Here, the Mother’s rights were set forth in a contract that utilized then-existing statutory law. The retrospective application of the new statute would impair those rights. We agree, too, with the Fourth District’s conclusion that the legislature did not intend the retroactive application to child custody judgments which became final before the effective date of the legislation.

We observe that the trial court did not have the benefit of Hahn because it issued after the instant proceedings had concluded. The primary residential custody of the parties’ child as outlined in the MSA shall be returned to the Mother immediately.

CHILD SUPPORT

A prerequisite to bringing an action seeking a modification of court-ordered child support payments is a showing of a substantial change in circumstances.

The burden of establishing that a reduction is necessary is on the party seeking modification. Moreover, when, as in the instant case, the child support was based on an agreement by the parties that was subsequently incorporated into an order, a heavier burden rests on the party seeking a reduction than would otherwise be required.

Overbey v. Overbey, 698 So.2d 811, 813-14 (Fla.1997) (citations omitted); see also Catalano v. Catalano, 787 So.2d 243, 245 (Fla. 2d DCA2001).

Prior to the parties moving to Florida and before each entered into the MSA, the Father earned $80,000 per year as a tax software developer. Upon relocating to Florida, he opened a business preparing tax returns. Business for the start-up enterprise was slow. But, when the parties divorced in 2005, they agreed and stipulated that the Father would have $36,000 per year of income imputed to him.

At the hearing, the evidence showed the Father, in addition to operating his tax return preparation business, did seasonal tax preparation for an accounting firm earning a salary of $14 per hour plus a thirty-percent commission on the revenues he generated. Additionally, he worked as a substitute teacher. He also testified that his income had returned to the $36,000-per-year rate, the amount imputed to him during the dissolution. But he now wished to retrospectively reduce the amount of child support that accrued during the three years it took for the case to be tried, years when he earned substantially less than $36,000.

The Mother presented evidence through a vocational expert witness that the Father was voluntarily underemployed during the intervening years and should not have this underemployment ratified by reducing his child support payments. The Father did not present rebutting evidence except his own testimony. In light of the stipulated amount of income in the MSA, the Father has not produced sufficient, competent evidence to show a substantial, material, and unanticipated change in circumstances to merit a downward modification of his child support obligation.

AMENDING THE PLEADINGS

Furthermore, it was error to allow the Father to amend his pleadings to conform to the evidence over the Mother’s objection. This deprived the Mother of the opportunity to prepare for the case that he actually presented rather than for the one he pleaded, which was what she was expecting to defend. See Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, 1252 (Fla.2008) (referencing “Fla. R. Civ. P. 1.190, ed. cmt. (‘Amendments under paragraph (b) of this rule [“Amendments to Conform with the Evidence”] can be made at any time but they must not prejudice the opposing party.’ ”) (emphasis supplied by supreme court); Blanton v. Baltuskouis, 20 So.3d 881 (Fla. 4th DCA 2009) (holding it error and reversing where the trial court granted a motion to amend the pleadings to conform to the evidence when the plaintiff had sued for specific performance but tried a case for damages for breach of contract).

REMAINING ISSUES

The Mother raised other issues but given the disposition of this appeal, we deem it unnecessary to address them.

CONCLUSION

The record in this case fails to establish that the Father met his heavy burden to modify the final judgment of dissolution. It was also error to apply the new statute to these parties’ situation. For these reasons, the supplemental final judgment must be reversed.

Reversed and remanded with instructions to enter judgment in favor of the Mother.

LaROSE and BLACK, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Matthew David ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4661.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    Rehearing Denied July 15, 2011.

      Matthew David Robinson, pro se.
   ALTENBERND, Judge.

Matthew David Robinson appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Mr. Robinson claims that the State committed a Giglio violation that resulted in the denial of his dis-positive motion to suppress. The trial court denied the motion on the basis that this issue was proeedurally barred and was not cognizable under rule 3.850 because it could be, and in fact was, raised on direct appeal. Although the trial court’s reasoning was incorrect or perhaps poorly explained, on full review of the motion we conclude that the motion does not allege a Giglio violation. Because the trial court had already given Mr. Robinson an opportunity to amend this motion, the trial court properly denied it.

To establish a Giglio violation, a defendant must show that: (1) a witness presented false testimony; (2) the prosecutor knew the testimony was false; and (3) the statement was material. See Robinson v. State, 707 So.2d 688, 693 (Fla.1998) (citing Craig v. State, 685 So.2d 1224, 1226 (Fla.1996)). Although such a claim is occasionally made on direct appeal, a Giglio violation is typically raised in a postconviction motion because these violations are usually discovered after the trial is over. Thus, the trial court’s suggestion that such a claim is not cognizable in a postconviction motion is incorrect. Moreover, we have taken notice of our own records concerning Mr. Robinson’s direct appeal. Mr. Robinson did not raise any Giglio issue in that appeal.

The case arises from an incident that occurred when a police officer went to Mr. Robinson’s apartment building to handle a complaint about excessive noise. When the officer was at the door of the noisy apartment, Mr. Robinson came down the hallway carrying a shoebox. During a consensual encounter with Mr. Robinson, the officer claimed that he shined his flashlight through a small hole in the box and saw plastic baggies containing a white powder. Based on these findings of fact, the trial court denied a motion to suppress, concluding that the officer obtained evidence of the drugs under the “plain view” doctrine. This court affirmed without opinion because the dispositive motion to suppress was properly denied in light of the trial court’s determination of the facts.

Although Mr. Robinson describes his claim as a Giglio violation and uses all of the language necessary to describe such a claim, his factual allegations are not actually allegations of such a violation. Instead, Mr. Robinson believes the officer could not shine his flashlight at the shoebox if he was curious or suspicious about its content. He maintains that the officer could only rely on this evidence if he inadvertently discovered it. He is claiming that the prosecutor had a duty to tell the judge that the evidence was not in plain view and that the judge could not consider the evidence if the officer intentionally shined his light at the hole in the box to determine its contents. In fairness to the trial court, this claim is quite similar to the claim raised on direct appeal.

This claim is simply not a Giglio claim. Moreover, Mr. Robinson’s legal theory is incorrect. Contraband can be discovered in “plain view” during a consensual encounter even if an officer believes that contraband might be located in an area where the officer is entitled to be and the officer is on heightened vigilance to see the contraband. See, e.g., Roberts v. State, 566 So.2d 848, 850 (Fla. 5th DCA 1990) (noting that during a consensual encounter, “the use of a flashlight to illuminate the interior of a vehicle does not violate Fourth Amendment rights, even though an officer may specifically be looking at an area of suspicious activity”). Law enforcement officers often augment plain view with a flashlight. See, e.g., State v. Goodwin, 36 So.3d 925, 927 (Fla. 4th DCA 2010); State v. Elbertson, 340 So.2d 1250, 1251 (Fla. 3d DCA 1976).

Accordingly, because Mr. Robinson’s theory was not a viable legal theory on which he could obtain postconviction relief and the trial court had already given him an opportunity to amend the motion, the trial court did not err in denying the motion without further leave to amend.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . See, e.g., Mackey v. State, 55 So.3d 606 (Fla. 4th DCA 2011) (remanding on direct appeal for consideration of a motion for new trial raising a Giglio issue).

        .See, e.g., Rodriguez v. State, 39 So.3d 275 (Fla.2010); Davis v. State, 31 So.3d 277 (Fla. 2d DCA 2010).


text:
    Tyrell MARRIA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2786.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Rehearing Denied July 18, 2011.
    Tyrell Marria, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    William G. SANDERS, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-0134.
    District Court of Appeal of Florida, First District.
    June 13, 2011.
    William G. Sanders, pro se, Petitioner.

      Jennifer Parker, General Counsel, Florida Department of Corrections, and Sheron Wells, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

William G. Sanders seeks mandamus relief to compel the circuit court to rule on an extraordinary writ petition by which he seeks an award of additional gain time. While we recognize that much of the delay in ruling on petitioner’s claim was attributable to extensions of time granted to respondent, respondent’s response below was filed approximately six months ago, and petitioner is entitled to a reasonably prompt disposition of his claim. Accordingly, the petition for writ of mandamus is granted. Within 30 days of the date of issuance of mandate herein, the circuit court shall enter an order disposing of the petition below.

Petition for writ of mandamus GRANTED.

BENTON, C.J., HAWKES and CLARK, JJ., concur.


author: ROTHENBERG, J.

text:
    Carmen I. DIAZ, Diaz Group Home # 1, and Diaz Group Home # 2, Appellants, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, and Agency for Persons with Disabilities, Appellees.
    Nos. 3D09-2363, 3D09-2364.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.

      Shutts & Bowen and Stephen T. Maher, Miami, for appellants.
    Dwight O. Slater, for appellee Agency for Health Care Administration; Michael A. Palecki, General Counsel, and Jonathan Grabb, Senior Attorney and Karl David Acuff, Tallahassee, for appellee Agency for Persons with Disabilities.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

The appellants, Carmen I. Diaz (“Diaz”), Diaz Group Home # 1 (“Home # 1”), and Diaz Group Home # 2 (“Home # 2”) (collectively, “the Diaz appellants”), appeal from: (1) a final order issued by the Agency for Health Care Administration (“the AHCA”) dismissing with prejudice their Amended Petition for Formal Administrative Hearing; and (2) a final order issued by the Agency for Persons with Disabilities (“the APD”) denying their Amended Petition for Formal Administrative Hearing. Because the agencies properly determined that the instant dispute over the termination of a Medicaid Waiver Services Agreement (“Provider Agreement”) involves a voluntary contract, does not implicate any substantial interests, and should be resolved before the circuit court, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

The AHCA is the Medicaid agent for Florida provided by federal law. However, the AHCA has delegated the duty to perform daily operations to the APD. In essence, the APD ensures that waiver program providers comply with applicable rules and regulations, while the AHCA pays qualified providers for services rendered to program recipients. A qualified provider must possess a facilities license and enter into a Provider Agreement with the APD. Qualified providers receive a Medicaid number enabling the receipt of payment from the AHCA.

Before the commencement of this case, Diaz was a qualified provider in possession of separate facilities licenses for Home # 1 and Home # 2. Diaz also had in effect a Provider Agreement which was not scheduled to expire until July 2011, and a Florida Medicaid number. Home # 1 and Home #2 provided services to Medicaid program recipients with severe developmental disorders. Beginning in late 2008, and continuing into 2009, a number of disputes arose between Diaz and certain APD inspectors conducting checks of Home # 1 and Home # 2.

On June 10, 2009, the APD -wrote a letter to Diaz stating that “we are exercising our option to terminate this [Provider Agreement] without cause,” effective July 10, 2009. Six days later, the AHCA informed Diaz by letter that because the APD terminated the Provider Agreement, Diaz’s Medicaid provider number was also being terminated. On July 20, 2009, Diaz, Home # 1, and Home # 2 filed a petition for formal administrative hearing based upon the termination of the Provider Agreement and subsequent revocation of Diaz’s Medicaid provider number.

Neither agency referred the matter to Florida’s Division of Administrative Hearings (“DOAH”). The AHCA dismissed the petition with prejudice by final order, stating that “the courts, and not administrative tribunals, must generally hear disputes involving voluntary contracts.” The APD denied the petition by final order, stating that there was no “legal entitlement to the continuation of the [Provider Agreement] since [Diaz] had agreed that the agency could terminate it any time without cause.” These consolidated appeals followed.

ANALYSIS

A. Standard of Review

As the material facts are not in dispute, our review of the agencies’ final orders is de novo. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005) (“This question involves a pure question of law and thus is subject to de novo review.”); C.F. v. Dep’t of Children & Families, 934 So.2d 1, 5 (Fla. 3d DCA 2005) (“[W]e review this case de novo because an agency’s final order based on a conclusion of law is subject to de no[vo] review.”).

B. Provider Agreements are Statutorily Authorized Voluntary Contracts

The statutory framework applicable to Florida’s Medicaid program conditions the receipt of funds from the AHCA on the existence of a Provider Agreement. § 409.907, Fla. Stat. (2009) (“The agency may make payments for ... services rendered to Medicaid recipients only to an individual or entity who has a provider agreement in effect with the agency.”). A Provider Agreement is described as follows:

Each provider agreement shall be a voluntary contract between the agency and the provider, in which the provider agrees to comply with all laws and rules pertaining to the Medicaid program when furnishing a service or goods to a Medicaid recipient and the agency agrees to pay a sum ... for the service provided to the Medicaid recipient. Each provider agreement shall be effective for a stipulated period of time, shall be terminable by either party after reasonable notice, and shall be renewable by mutual agreement.

§ 409.907(2), Fla. Stat. (2009) (emphasis added). The specifically relevant termination clause in the Provider Agreement signed by Diaz provides:

This Agreement may be terminated by either party without cause, upon no less than 30 calendar days notice in writing to the other party unless a lesser time is mutually agreed upon in writing by both parties. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery.

(Emphasis added). There is no question that the APD terminated the instant Provider Agreement in accordance with its express terms. It is clear, therefore, that the Provider Agreement involved in this case was authorized by statute, freely entered into by both parties, and contained a termination without cause provision that was equally available to both parties.

C. No Contractual Provision or Legal Authority Calls for Resolution of this Dispute Outside of the Circuit Court

When an independent party enters into a voluntary contract with an agency of this state, contractual disputes among the parties are typically resolved in the civil courts. Vincent J. Fasano, Inc. v. Sch. Bd. of Palm Beach Cnty., 486 So.2d 201, 202-03 (Fla. 4th DCA 1983) (“[B]reach of contract is ordinarily a matter for judicial rather than administrative or quasi-judicial consideration.”); State Rd. Dep’t v. Cone Bros. Contracting Co., 207 So.2d 489, 491 (Fla. 1st DCA 1968) (“Disputes such as these are traditionally settled in the courts of this state by adversary proceedings in which the agency as a contracting party is treated as any other citizen.”). The traditional rule, however, does not always require the in-court litigation of disputes between agencies and contracting parties. For example, contracting parties remain free to negotiate and enforce contractual provisions requiring an alternative form of dispute resolution. See Dep’t of Health & Rehab. Servs. v. E.D.S. Fed. Corp., 631 So.2d 353, 357 (Fla. 1st DCA 1994) (enforcing dispute resolution clause requiring the contracting parties to submit to administrative procedure); Paid Prescriptions, Inc. v. Dep’t of Health & Rehab. Servs., 350 So.2d 100, 102 (Fla. 1st DCA 1977) (holding that “the power to contract implies the power to agree to settlement of disputes under the contract by arbitration”). In addition, the operation of law will sometimes effect a circumvention of the traditional rule. See Medicaid, Program Integrity, Dep’t of Health & Rehab. Servs., v. Conval-Care, Inc., 636 So.2d 117, 118 (Fla. 1st DCA 1994) (holding that in a Medicaid overpayment dispute, the statute requiring an administrative hearing supersedes the traditional rule providing that the agency lacks jurisdiction).

The instant Provider Agreement contains no dispute resolution clause, and the parties did not otherwise agree to settle their dispute in a specific forum. Nor is there a legal requirement that a dispute over the termination without cause of a Provider Agreement be heard in an alternative forum. The Diaz appellants argue that because the Legislature has authorized a series of administrative sanctions applicable to providers who commit specific fraudulent or abusive acts, see generally § 409.913, Fla. Stat. (2009) (detailing numerous sanctions applicable to certain behaviors, and providing for chapter 120 administrative hearings in the context of Medicaid overpayment disputes), a dispute over the termination of a Provider Agreement without cause must, in the name of fundamental fairness, be settled administratively. We disagree.

By its own wording, section 409.913 exists “to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate.” Id. To further this objective, the Legislature has simply required that the agencies respond administratively when a provider engages in fraudulent or abusive practices. Outside of fraud or abuse, there is no such requirement. Thus, it is not, as the Diaz appellants contend, fundamentally unfair to refer a dispute over the termination of a Provider Agreement without cause — where no issue of fraud or abuse is implicated — to the circuit court.

D. Provider Agreement Termination Without Cause Does Not Implicate Substantial Interests

Having failed to demonstrate a contractual or legal reason for a departure from Florida’s rule that ordinarily, contractual disputes between agencies and private entities must be determined in court, the Diaz appellants argue that they have a substantial interest in continued operation under the Provider Agreement. Again, we disagree. Section 120.57(1) provides for a full evidentiary hearing before an administrative law judge when an agency’s determinations affect a party’s substantial interests. A party’s substantial interests are involved “where ‘(1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect.’ ” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1231 (Fla. 2009) (quoting Fairbanks, Inc. v. State, Dep’t of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994)).

In this case, the APD terminated the Provider Agreement pursuant to section 409.907, which specifically provides that the Provider Agreement was “terminable by either party after reasonable notice.” § 409.907(2). In addition, subsection (12) states that “[l]icensed, certified, or otherwise qualified providers are not entitled to enrollment in a Medicaid provider network.” § 409.907(12) (emphasis added). Because the statute pursuant to which the agencies have acted provides that the agencies may terminate Provider Agreements upon proper notice, and that would-be Medicaid providers are not entitled to continued program participation, the Diaz appellants have failed to establish the second prong of the Fairbanks test. Accordingly, no valid entitlement or substantial interest could be protected or saved by allowing a section 120.57(1) administrative hearing. See also Herold v. Univ. of S. Fla., 806 So.2d 638, 640 (Fla. 2d DCA 2002) (“[C]ase law makes it clear that a substantial interest is one based on a legal entitlement, and not on a mere unilateral expectation.”); Metsch v. Univ. of Fla., 550 So.2d 1149, 1150 (Fla. 3d DCA 1989) (holding that a hope or unilateral expectation does not rise to the level of a substantial interest).

We are mindful that as longtime providers under Florida’s Medicaid program, the Diaz appellants expected continued participation, and the termination without cause of the Provider Agreement may effectively put them out of business. Although this result may appear harsh, based on the statutory authority and case law discussed above, the agencies’ decision was entirely appropriate. See 701 Pharmacy Corp. v. Perales, 930 F.2d 163, 169 (2d Cir.1991) (“Although it is unfortunate that a provider relying on its Medicaid participation may effectively be put out of. business if terminated, the department’s rationale for refusing a written appeal is legitimate”).

CONCLUSION

The Diaz appellants seek to argue that the APD’s “without cause” termination of the instant Provider Agreement should be construed as an illegal, unpromulgated rulemaking in excess of its authority under federal and state law. We need not, and do not comment on the merits of that position. Similarly, this decision should not be construed as an opinion on “for cause” terminations under a different section of Medicaid Waiver Services Agreements.

Instead, we hold that: (1) the Provider Agreement was a statutorily authorized, bi-lateral, and voluntary contract; (2) the APD terminated the Provider Agreement without cause in accordance with the Provider Agreement’s express terms; (3) no contractual provision or legal authority dictates that disputes over the without cause termination of the Provider Agreement be heard in any alternative forum; and (4) the Diaz appellants’ substantial interests were not implicated by the termination of the Provider Agreement. Accordingly, the AHCA and the APD properly determined that the Diaz appellants were not entitled to a section 120.57(1) administrative hearing. The instant contract termination dispute should have been brought before the circuit court.

Affirmed.

      . On June 30, 2009, the APD notified Diaz that for cause, it was not renewing the facilities licenses of Home # 1 and Home # 2. Those actions were challenged by a separate set of petitions (not involved in this appeal), and there is no dispute that resolution of those petitions occurs administratively.

      . Provider Agreements also provide for terminations "for cause" which are not applicable to this appeal.


text:
    Kimberly CANNON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0678.
    District Court of Appeal of Florida, First District.
    June 20, 2011.
    Kimberly Cannon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Kimberly Cannon is hereby granted belated appeal from judgments and sentences in Escam-bia County case numbers 2002-CF-000404B and 2004-CF-000707A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

Counsel shall be appointed by the trial court to represent Cannon in the direct appeal if she qualifies for such an appointment.

PETITION GRANTED.

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Michael WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0847.
    District Court of Appeal of Florida, First District.
    June 20, 2011.
    Michael Walker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Michael Tyrone Walker is hereby afforded belated appeal from judgment and sentence in case number 2010 CF 002S74A in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent Walker in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Darrell Lavon JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1634.
    District Court of Appeal of Florida, First District.
    June 21, 2011.
    Darrell Lavon Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of an order denying a request for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant entered into a plea agreement on December 15, 2009, that called for 421 days of jail credit. However, the appellant was not sentenced until October 22, 2010, at which time he was awarded 502 days of jail credit. In the instant motion, the appellant requests credit for an additional 314 days, representing time between entering into the plea agreement and sentencing.

We affirm because the appellant’s allegations are insufficient to demonstrate entitlement to relief. To make a facially sufficient claim for jail credit, an appellant must: (1) provide the dates for which he is seeking credit, (2) provide the date of his sentence, and (3) allege where in the record it can be shown that he is entitled to relief. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The sentencing transcript in the instant case indicates that the appellant was released on bond after which he committed new offenses. The appellant’s motion does not specify the dates that he was actually incarcerated on the charges in the present case, or allege when he was arrested, when he bonded out, or when his bond was revoked. In the absence of these allegations and the jail certificates that would establish his entitlement to relief, the appellant’s claim was properly denied. See Decoste v. State, 898 So.2d 1201 (Fla. 5th DCA2005).

AFFIRMED.

DAVIS, ROBERTS, and ROWE, JJ., concur.


author: GERBER, J.

text:
    Michael E. LUSTGARTEN, Appellant, v. Patricia LUSTGARTEN, Appellee.
    No. 4D09-4404.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Rehearing Denied Aug. 5, 2011.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Karen O’Brien Steger of Steger & Steger, P.A., Stuart, and for appellant.
    Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellee.
   GERBER, J.

The former husband appeals the circuit court’s final order holding him in contempt for willfully failing to pay the cost of the former wife’s liver transplant. The husband argues that the transplant was not “reasonable and necessary” and that his actions were not willful. We reject the first argument but agree with the second. Thus, we reverse.

The husband and wife entered into a settlement which the court incorporated into a final judgment of dissolution. The judgment provides:

[S]o long as [the husband’s] alimony obligation exists, [he] shall also pay the wife’s medical insurance coverage and pay all reasonable and necessary medical, hospital, prescription drugs, and dental expenses not covered by insurance ....

After the wife became eligible for Medicare, the parties requested the court to amend the original judgment. The amended judgment provides:

3. The Husband shall pay the premium for the ... Wife’s Medicare insurance. He shall also be responsible to pay the following:
a) All uncovered expenses incurred under the care of a medical professional accepting Medicare assignment.

The wife later filed a motion for contempt. In the motion, the wife alleged that she had been diagnosed with bile duct cancer and decided to have a liver transplant which her Mayo Clinic physicians recommended. She further alleged that Medicare would not cover the expense of the transplant and she would have to pay $300,000 for the transplant. She also alleged that she requested the husband to pay that expense pursuant to paragraph 3(a) of the amended judgment, but the husband failed to do so. She therefore requested the court to find the husband in contempt and order him to pay the $300,000 and her attorney’s fees.

In a response, the husband alleged that the wife’s first physicians at the University of Miami recommended a liver resection. He further alleged that a resection was a reasonable and necessary treatment which Medicare covered and that the uncovered cost would be under $1,000. He further alleged that the wife instead opted to have an experimental liver transplant which Medicare did not deem to be reasonable and necessary and did not cover. He therefore alleged that under the original judgment and the amended judgment, he was not required to pay for the transplant. He requested the court to deny the motion for contempt.

The wife later amended the motion for contempt. She alleged that she had the transplant at the Mayo Clinic and had to pay the clinic $183,030.99. She further alleged that the husband failed to pay that amount. She therefore requested the court to find the husband in contempt and order him to pay the $183,030.99 and her attorney’s fees.

The court held a two-day evidentiary hearing on the amended motion for contempt. The wife testified consistent with the amended motion. The wife then presented the testimony of her long-time gas-troenterologist. He was the first to recommend that the wife receive a liver transplant. He did not think that her liver was resectable based on his review of her x-rays and other studies. He referred the wife to two University of Miami surgeons. Those surgeons recommended that they first should attempt to perform a resection, and if that was not possible, then they would perform a transplant. The gastroenterologist disagreed with that recommendation and thus referred the wife to the Mayo Clinic. The physicians there recommended that the wife receive a transplant. The wife received the transplant there and has done very well since. According to the gastroenterologist, the survival rate after a resection is twenty to thirty percent, whereas the survival rate after a transplant is eighty percent. He testified that transplants are no longer experimental. He opined that the Medicare guidelines regarding transplants were ten years behind the times and obsolete.

The wife also presented the testimony of the Mayo Clinic surgeon who performed the transplant. He testified that liver transplants with chemotherapy and radiation have been performed since the early 1990s, have better outcomes than other therapies, and gave the wife the best hope of treatment. When he performed the transplant, he confirmed that the wife’s liver was not resectable.

The wife also presented the testimony of the Mayo Clinic liver specialist who treated her after the transplant. He disagreed with the University of Miami physicians who recommended resection. He testified that if the wife had undergone resection and then asked for a transplant, she would have been rejected because the resection would have resulted in the release of tumor cells and increased the likelihood of a tumor coming back later. He concluded that the transplant was the wife’s most reasonable choice and was necessary for her long-term survival.

The wife also presented the testimony of the Mayo Clinic records custodian for her hospital charges. The records custodian testified that the wife paid the Mayo Clinic $800,000, but then the clinic paid four separate refunds to her, resulting in a final charge of $169,746.82.

The husband then testified. He stated that he has been a physician for thirty years. When he learned that the wife had bile duct cancer, he researched several places which could treat the wife, including the University of Miami, which recommended a resection. He also introduced into evidence the Medicare guidelines, which provide that “the evidence is not adequate to conclude that liver transplantation ... is clinically effective. Therefore, the item or service is considered experimental and thus is not reasonable and necessary for the treatment or diagnosis of the illness.” After performing this research, he did not believe that a transplant was the reasonable course for the wife’s condition.

During closing arguments, the wife contended that the court should hold the husband in contempt for not paying for the transplant because the evidence showed that the transplant was reasonable and necessary. The wife further contended that even if the Medicare guidelines were the arbiter of what was reasonable and necessary, then the court still should hold the husband in contempt because paragraph 8(a) of the amended judgment required him to pay for “[a]ll uncovered expenses incurred under the care of a medical professional accepting Medicare assignment.”

In response, the husband contended that even if the amended judgment required payment for “uncovered medical expenses,” case law still required those expenses to be “reasonable and necessary” to justify payment, and according to the husband’s evidence, the transplant was not reasonable and necessary. The husband therefore requested the court to deny the motion for contempt.

The court entered a written order granting the motion for contempt. The court found that the wife did not have to prove, and it did not have to determine, that the transplant was reasonable and necessary. The court reasoned that amended judgment’s deletion of the phrase “reasonable and necessary” from the original judgment “is a waiver by [the husband] of the right to require all uncovered expenses to be reasonable and necessary.” The court then found that the husband willfully violated the amended judgment by failing to pay for the transplant and was in contempt. The court ordered the husband to reimburse the wife $169,746.82. The court further ordered that if the husband failed to reimburse the wife, then the court would set an evidentiary hearing on the failure to pay. The court also found that the wife was entitled to recover her attorney’s fees from the husband based on her need and his ability to pay. The court did not provide any detail to support that finding.

The husband then filed this appeal. He argues that: (1) the wife had to prove that the transplant was reasonable and necessary and he did not waive that requirement; (2) he did not willfully violate the amended judgment; and (3) the wife was not entitled to recover her attorney’s fees. We review these issues for an abuse of discretion. See Neiman v. Naseer, 31 So.3d 231, 233 (Fla. 4th DCA 2010) (“ ‘A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.’”) (citation omitted); Campbell v. Campbell, 46 So.3d 1221, 1222 (Fla. 4th DCA 2010) (a trial judge’s award of attorney’s fees is reviewed under an abuse of discretion standard).

We agree with the husband that the wife had to prove that the transplant was reasonable and necessary. It is implicit within a final judgment of dissolution that medical expenses for which payment is sought must be reasonable and necessary. See, e.g., McBride v. McBride, 687 So.2d 938, 940-41 (Fla. 2d DCA 1994) (“[W]e find that the medical payment provision of the marital settlement agreement, as adopted in the final judgment of dissolution, is nonmodifiable. However, as with any such provision, it is implicit that those expenses must be reasonable and necessary.”) (internal citation omitted).

We also agree with the husband that he did not waive the requirement that medical expenses for which payment is sought must be reasonable and necessary. “Waiver is the intentional or voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right.’ ” Citizens Prop. Ins. Corp. v. Mich. Condo. Ass’n, 46 So.3d 177, 178 (Fla. 4th DCA 2010) (citation omitted). Here, no competent, substantial evidence exists to suggest that the husband intentionally or voluntarily relinquished the right to require the medical expenses for which the wife sought payment to be reasonable and necessary. We also disagree with the circuit court’s conclusion that the amended judgment’s omission of the phrase “reasonable and necessary” warrants an inference that the husband waived that right. If that were so, then the husband would be required to pay for the wife’s un reasonable and un necessary medical expenses, which would be unjust.

The court’s error, however, is harmless because the wife presented a wealth of competent, substantial evidence to show that the transplant was reasonable and necessary. Her gastroenterologist testified that her liver was not resectable based on his review of her x-rays and other studies. Her Mayo Clinic surgeon testified that when he performed the transplant, he confirmed that the wife’s liver was not resectable. Further, her Mayo Clinic liver specialist testified that if she had undergone resection and then asked for a transplant, she would have been rejected because the resection would have resulted in the release of tumor cells and increased the likelihood of a tumor coming back later.

Nevertheless, we agree with the husband that he did not willfully violate the amended judgment by questioning whether the medical expenses for which the wife sought payment were reasonable and necessary. “The term ‘reasonable and necessary* and the retention of jurisdiction by the trial court provides an adequate limitation of those [medical] expenses and a forum for relief for either of the parties should the circumstances require.” Brandenburg v. Brandenburg, 550 So.2d 565, 566 (Fla. 4th DCA 1989). Here, the circumstances required that the court exercise its jurisdiction to resolve whether the medical expenses for which the wife sought payment were reasonable and necessary. After the wife requested the husband to pay $300,000 for a transplant at the Mayo Clinic, the husband learned that the wife’s first physicians at the University of Miami recommended a liver resection; that Medicare covered a resection; and that the uncovered cost would be under $1,000.

Given this information, the husband had a good faith basis to question whether the wife’s $300,000 request was reasonable and necessary. Even after the wife advised the husband that she had the transplant and was reducing her request to the $183,030.99 amount which she paid the Mayo Clinic, the husband still had the same good faith basis to question the wife’s reduced request. Only after the wife presented evidence at the hearing could it be ultimately determined that the $169,746.82 final charge was reasonable and necessary.

Because the husband had a good faith basis to question whether the medical expenses for which the wife sought payment were reasonable and necessary, we conclude that the circuit court should not have held him in contempt. See Sulman v. Sulman, 510 So.2d 908, 909 (Fla. 4th DCA 1987) (“We do not disapprove of the trial court’s decision not to hold the former husband in contempt, since his challenge to the request to pay appears to have been in good faith and his behavior does not appear to constitute willful disobedience of a court order.”) (citation omitted). We remand for the circuit court to vacate the order of contempt and to enter an order requiring the husband to pay the wife the final charge of $169,746.82 within thirty days of the court’s order. If the husband fails to comply with that order, then the wife may file a new motion for contempt.

We also remand for the circuit court to vacate the award of attorney’s fees to the wife. The wife testified at the evidentiary hearing that she paid her attorney $25,000 in full satisfaction of the amount owed, and her affidavit shows that she had over one million dollars in assets at the time of the hearing. Thus, she failed to present evidence that she needed the husband to pay her attorney’s fees so that she could pursue the motion for contempt. See Von Baillou v. Von Baillou, 959 So.2d 821, 823 (Fla. 4th DCA 2007) (“If one party has no financial need for fees, the other party cannot be compelled to pay them solely because his or her sizeable assets minimize the financial strain of such a payment.”) (citation omitted); Satter v. Satter, 709 So.2d 617, 618-19 (Fla. 4th DCA 1998) (reversing judgment awarding $24,000 in attorney’s fees to the wife where the wife, whose net worth was $1.1 million, demonstrated no need for such fees).

Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.

      . A “resection is "the surgical removal of part of an organ or structure.” See www. merriam-webster.com/medlineplus/resection (last visited May 16, 2011).


text:
    Anne S. BRIGHT, Appellant, v. Francis D. BALTZELL, Appellee.
    Nos. 4D10-878, 4D10-1729.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Rehearing Denied Aug. 5, 2011.

      Charles Wender, Boca Raton, for appellant.

      Margaret L. Cooper of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The issue in this consolidated appeal is whether the trial court erred in awarding appellee attorney’s fees and costs following appellant’s voluntary dismissal of her lawsuit without prejudice. We reverse the fee award, as the voluntary dismissal was not a second voluntary dismissal that would entitle appellee to fees under section 768.79, Florida Statutes. The fees were also not authorized under the Florida Trust Code, as the underlying action involved a claim for breach of contract, not a trust code claim. We affirm the cost award and find that, given the unique facts and circumstances of this case, the trial court did not abuse its discretion in awarding costs that included appellee’s travel expenses.

The decedent passed away in 1988, survived by his son, appellee Francis (“Frank”) Baltzell, and his stepdaughter, appellant Anne Bright. Litigation ensued in which Frank sought to revoke probate of the decedent’s will and to set aside a trust. In 1990, the court approved a settlement agreement dividing the trust assets, among other things.

In 1996, the probate court dismissed the probate case after issuing an order to show cause why it should not be dismissed, as no affirmative action had been taken to discharge and close the file. In 1998, Frank petitioned to re-open the estate to inspect the inventory. While the case was reopened, Anne filed a motion to compel compliance with the settlement agreement, alleging that Frank refused to cooperate and execute the documents necessary to complete the transfer of the trust assets. The trial court denied the motion.

In 2007, Anne brought an action for breach of contract and specific performance, again claiming that Frank refused to execute documents necessary for distributing the trust assets. The trial court set the case for trial but had to reschedule on three occasions, each time due to Anne’s actions shortly before trial was set to commence. First, Anne advised the court that the case had been verbally settled when it had not been. Second, the court granted Anne’s motion for continuance due to alleged medical issues. Third, Anne unsuccessfully sought to disqualify the trial judge after the court denied her motion for continuance.

The day of trial, an attorney appearing on behalf of Anne requested to continue trial. When the court denied the request, counsel announced that Anne was voluntarily dismissing the case. Following the dismissal, Frank filed a motion to tax attorney’s fees under the offer of judgment statute and sections 7S6.1004-.1005 of the Florida Trust Code. The trial court found that Frank was entitled to fees under both statutes and awarded $151,820.35 in attorney’s fees. The court also awarded him $18,940.83 in costs, which included Frank’s travel expenses. From these orders, Anne appeals.

Anne contends that the trial court erred in granting fees under the offer of judgment statute because the notice of voluntary dismissal was without prejudice. Frank maintains the trial court correctly awarded fees because this was a second dismissal, which transformed the case into an adjudication on the merits. He contends that Anne previously sought to enforce the settlement agreement in the voluntarily dismissed probate proceeding.

“[W]hen entitlement to attorney’s fees is based on the interpretation of ... a statute, as a pure matter of law, the appellate court undertakes a de novo review.” Bauer v. DILIB, Inc., 16 So.3d 318, 320 (Fla. 4th DCA 2009) (quoting Hirschenson v. Hirschenson, 996 So.2d 905, 907 (Fla. 4th DCA 2008)).

Section 768.79, Florida’s offer of judgment statute, provides in pertinent part as follows:

(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:
(a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney’s fees ... incurred from the date the offer was served....

The supreme court interpreted this statutory language in MX Investments, Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997), as follows:

We construe the terms “voluntary dismissal” and “involuntary dismissal” in section 768.79(6), Florida Statutes (1991), to mean a dismissal with prejudice so that the dismissal is the basis for a judgment of no liability as contemplated in section 768.79(1), Florida Statutes (1991). Thus, only when a plaintiffs voluntarily [sic] dismissal is with prejudice or is a second voluntary dismissal is the defendant entitled to attorney fees in accord with section 768.79, Florida Statutes (1991).

The record reveals that the 1988 probate case was not voluntarily dismissed but rather was administratively closed. Further, Florida Rule of Civil Procedure 1.420(a)(1) provides that “a notice of dismissal operates as an adjudicátion on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.” (emphasis added). Anne was not a plaintiff in the probate proceeding. Rather, it appears she simply opened the probate case as the personal representative. Moreover, it was the court that dismissed the probate action, not Anne. Thus, the dismissal was not a second dismissal as contemplated by the offer of judgment statute, and fees were not authorized under the statute.

The trial court also relied on sections 736.1004-.1005 of the Florida Trust Code as a basis for awarding fees. Frank acknowledges that he did not plead entitlement to fees under the Florida Trust Code in his answer to the complaint. However, we need not address whether a Stockman v. Downs, 573 So.2d 835 (Fla.1991), exception applies, as the fee award was not authorized under the trust code. The underlying proceedings were brought to enforce a contract, not a trust, and did not involve the trust code. Thus, the trust code cannot serve as a basis to support the fee award.

As an additional basis for upholding the trial court’s fee award, Frank argues that the statute of limitations had run, thereby operating as an adjudication on the merits. However, this court has previously considered and rejected this argument. See Tucker v. Ohren, 739 So.2d 684 (Fla. 4th DCA 1999).

Finally, as to the issue of costs, Anne contends that the trial court abused its discretion by including Frank’s travel-related expenses in the cost award. The Uniform Guidelines for Taxation of Costs provide that that they “are advisory only” and that the taxation of costs “is within the broad discretion of the trial court.” In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 614 (Fla. 2005). “[T]he trial court may deviate from [the] guidelines depending on the facts of the case as justice may require.” Madison v. Midland Nat'l Life Ins. Co., 648 So.2d 1226, 1228 (Fla. 4th DCA 1995). A trial court may award “enhanced” costs “[w]hen the trial court expressly finds that the party seeking the voluntary dismissal has acted in bad faith by dismissing the suit.” Coastal Petroleum Co. v. Mobil Oil Corp., 583 So.2d 1022, 1026 (Fla.1991). Such an award may include “the total sum of actual costs incurred by the opposing party in futile preparation for the specific trial, whether or not these costs would have been recoverable as ‘costs’ following an actual trial.” Id. (footnote omitted). “[A]n enhanced award of this type should be sparingly used only in egregious cases, so as to discourage abuse of the voluntary dismissal process.” Id.; see also Miller v. Hayman, 766 So.2d 1116, 1119 (Fla. 4th DCA 2000) (recognizing that travel expenses of a party to attend trial may be taxable in “rare[ ] situation[s]”).

The trial court made specific findings as to the “unique and extraordinary circumstances involved in this case, including that this was the third time that Plaintiff sought a delay on the eve of trial citing either illness or other last-minute tactics.” The court noted that on each occasion, Frank was required to travel to Florida. The trial court found that Anne “should have and could have filed a request for continuance in a more timely fashion so as to avoid the unnecessary [travel] expenses.” Given this record, we are unable to find that the trial court abused its discretion.

Affirmed in pari, reversed in part, and remanded.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    SAND DOLLAR DISTRIBUTORS, INC., a Florida corporation, Appellant, v. EASTGROUP PROPERTIES, LP, a Delaware limited partnership, through its agent EASTGROUP PROPERTY SERVICES OF FLORIDA, LLC, a Florida limited liability company, Appellee.
    No. 4D10-1797.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Peter Ticktin, Ejola Cook, and Megan Carraher of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    Howard N. Kahn of Kahn, Chenkin & Resnik, P.L., Dania, for appellee.
   GERBER, J.

The tenant appeals a final judgment in favor of the landlord after a non-jury trial. In the final judgment, the trial court found that, based on the evidence presented, the tenant breached the lease by vacating the premises without paying the accelerated rent for the remaining lease term. The trial court rejected the tenant’s defense that the landlord orally modified the lease to allow the tenant to terminate the lease early. The trial court found that the tenant’s witnesses in support of its defense were “less than credible.”

We affirm the trial court’s rejection of the tenant’s defense. Competent, substantial evidence supports the trial court’s factual finding that no oral modification occurred. See Hamilton v. Fla. Power & Light Co., 48 So.3d 170, 172 (Fla. 4th DCA 2010) (“When there is a nonjury finding on disputed evidence, it is reviewed on appeal for competent, substantial evidence because the lower court is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.”) (citations and internal quotations omitted).

Based on the trial court’s credibility finding, we deem as harmless the trial court’s incorrect legal conclusion that the tenant also was precluded from pursuing an oral modification defense as a matter of law. See DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So.3d 313, 321 (Fla. 4th DCA 2010) (“[E]ven where a written contract prohibits subsequent, unwritten amendments, [a] written contract may be modified by an oral agreement if the parties have [1] accepted and [2] acted upon the oral agreement in a manner that would work a fraud on either party to refuse to enforce it.”) (brackets in original; citations and internal quotations omitted), rev. granted, 47 So.3d 1288 (Fla.2010); Husky Rose, Inc. v. Allstate Ins. Co., 19 So.3d 1085, 1088 (Fla. 4th DCA 2009) (“[U]nder certain circumstances, written contracts can be modified by a subsequent oral agreement of the parties even though the written contract purports to prohibit such modification.”) (citations and internal quotations omitted).

We also deem as harmless the trial court’s exclusion, on hearsay grounds, of certain proffered testimony from one of the tenant’s witnesses. Such testimony was merely cumulative to the other testimony which the trial court found to be “less than credible.” See White v. State, 993 So.2d 611, 613 (Fla. 1st DCA 2008) (trial court’s error in excluding, as hearsay, proffered testimony was harmless where proffered testimony was cumulative to admitted testimony which the jury apparently chose to disbelieve).

We reverse only as to the trial court’s inclusion in the final judgment of prejudgment interest on alleged past due rent from January 1 through December 81, 2008, totaling $14,986.10. The record indicates that the tenant timely paid the rent for that period. Prejudgment interest should have accrued only on the unpaid accelerated rent commencing on January 1, 2009. We remand for the trial court to amend the final judgment to exclude the $14,986.10 amount.

Affirmed in part, reversed in part, and remanded.

GROSS, C.J., and STEVENSON, J., concur.


text:
    Osiris CHAVIANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1322.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Rehearing Denied July 13, 2011.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Dominic Chiquita MELTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-399.
    District Court of Appeal of Florida, First District.
    June 23, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Dixie Daimwood and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Dominic Melton, appeals the revocation of her probation based on violations of condition (1) for failure to report and condition (5) for possession of drugs. We affirm the trial court’s finding that Melton violated her probation for failure to report, but we conclude that the evidence presented to the trial court was insufficient to support a violation for possession of drugs, and we remand for the trial court to strike its finding regarding that violation and enter a corrected order.

The state has the burden of proving by the greater weight of the evidence that a probationer’s actions amounted to a willful and substantial violation of a condition of probation. See Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). While hearsay is admissible at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence, and where the state seeks to revoke probation based on a violation of standard condition (5) by the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense. See, e.g., Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007).

In this case, the state presented sufficient evidence to support the court’s finding that Melton willfully violated a condition of probation by failing to report; however, the state’s evidence was not sufficient to support revocation for a violation of condition (5) for possession of drugs which was based entirely on hearsay. The female probation officer who administered the drug test did not testify at the hearing, Melton denied smoking marijuana while on probation, and the probation officer who did appear at the hearing testified that he had no personal knowledge of the result of the drug test. Further, the state properly conceded at the revocation hearing that the hearsay evidence was insufficient to revoke Melton’s probation on that basis. Because violation of condition (5) was supported only by hearsay, the trial court abused its discretion by revoking probation on that basis.

We affirm the revocation of Melton’s probation based on violation of condition (1) for failure to report. Because it is unclear from the record, however, whether the trial court would have imposed the same sentence based solely on failure to report, we reverse and remand for the trial court to enter a corrected order striking the reference to violation of condition (5) for possession of drugs, and to resen-tence Melton only for violation of condition (1) for failure to report. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009); Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997).

AFFIRMED in part, REVERSED in part, and REMANDED for a corrected order consistent with this opinion.

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


text:
    Alex N. RODAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0047.
    District Court of Appeal of Florida, First District.
    June 23, 2011.
    Alex N. Rodas, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant claims that he was not awarded proper prior prison credit following resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). The state has conceded that the matter should be reversed and remanded. We therefore reverse and remand for the trial court to either attach documents conclusively refuting the appellant’s prison credit claim, or for the court to award the appellant the credit he seeks. See Davidson v. State, 780 So.2d 984 (Fla. 1st DCA 2001) (stating that upon resentencing a defendant is entitled to prison credit for time already served).

REVERSED AND REMANDED.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.