text:
    Derrell J. CHAMBLEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5008.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.

      Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Derrell J. Chamblee (Appellant) appeals his convictions of one count of racketeering (RICO) and numerous counts of grand theft. He also challenges the constitutionality of his concurrent sentences to 25 years’ incarceration under the Florida Criminal Punishment Code (the Code) for the first-degree felonies. § 921.002, Fla. Stat. (2003). He cites additional grounds on which the trial court allegedly erred. We affirm Issues I through IV without further discussion.

We write, however, on Issue V, which relates to the assessment of certain court costs, some of which were imposed contrary to the requirements of the applicable versions of the authorizing statutes. At sentencing, the trial court ordered Appellant to pay various charges, costs, and fees. In pertinent part, they are $225.00 as an “additional court cost” pursuant to section 938.05, Florida Statutes; $50.00 as a crime prevention court cost pursuant to section 775.083(2), ■ Florida Statutes; and $20.00 as a court cost surcharge in addition to any fine pursuant to section 938.06(1), Florida Statutes. Appellant preserved this issue by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing errors. Thomas v. State, 76 So.3d 360 (Fla. 1st DCA 2011); Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010). Because the trial court did not rule on this motion within sixty days of the filing date, it is deemed denied. Fla. R.Crim. P. 3.800(b)(2)(B); Long v. State, 886 So.2d 280, 281 (Fla. 1st DCA 2004). We have de novo review of the pure issue of law concerning the statutory requirements for imposing these amounts. T.L.S. v. State, 949 So.2d 290 (Fla. 5th DCA 2007).

By definition and nature, RICO encompasses an ongoing enterprise. §§ 895.02(1), (3)-(4) and 895.03(3), Fla. Stat. (2008); State v. Traylor, 77 So.3d 224, 227 (Fla. 5th DCA 2011). In the motion to correct, Appellant acknowledged his crimes were ongoing offenses that occurred between March 2003 and October 2008. “Felonies, except capital felonies, with continuing dates of enterprise shall be sentenced under the ... Code in effect on the beginning date of the criminal activity.” § 775.082(8)(e), Fla. Stat. (2003); see § 921.001(4)(b)3., Fla. Stat. (2003). Applying the same reasoning, Appellant contends that the governing statutes relating to the imposition of the various charges, costs, and fees are the versions that were in effect on the beginning date of his ongoing criminal enterprise, ie, in 2003. See Torres v. State, 42 So.3d 914 (Fla. 2d DCA 2010); Williamson v. State, 852 So.2d 880 (Fla. 2d DCA 2003); Cairl v. State, 833 So.2d 312 (Fla. 2d DCA 2003); Gross v. State, 820 So.2d 1043 (Fla. 4th DCA 2002) (affirming trial court’s decision, in ease involving ongoing criminal enterprise under RICO, to apply sentencing guidelines in effect at the beginning, rather than the end, of the continuing criminal activity). We agree with Appellant’s position.

In March 2003, the amount of the assessment that could be imposed for crime prevention was $200.00 for a felony. § 938.05(1)(a), Fla. Stat. (2003). -We therefore strike the assessment of $225.00 and direct the trial court to substitute a $200.00 court cost under the applicable version of the statute. Clavelle v. State, 80 So.3d 456 (Fla. 1st DCA 2012); Swift v. State, 53 So.3d 394 (Fla. 2d DCA 2011) (reducing assessment to the amount permitted under the version of section 938.05(1)(a) in effect at the time of the offenses).

The law in March 2003 allowed the imposition of a $50.00 fine for a felony conviction, so long as the court found the defendant had the ability to pay the fine and would not be prevented thereby from being rehabilitated or making restitution. § 775.083(2)(a)-(b), Fla. Stat. (2003). Because the trial court did not pronounce this fine or determine Appellant’s ability to pay, we must strike it. Love v. State, 992 So.2d 823 (Fla. 2d DCA 2008); Clark v. State, 963 So.2d 911 (Fla. 2d DCA 2007). On remand the trial court may re-impose this fine after making appropriate findings. Love, 992 So.2d at 824.

Given the State’s proper concession of error, we strike the $20.00 assessed as an additional surcharge pursuant to section 938.06(1), Florida Statutes (2003). Kimball v. State, 933 So.2d 1285 (Fla. 2d DCA 2006); Lang v. State, 856 So.2d 1105, 1106 (Fla. 1st DCA 2003).

We strike these three court costs and remand with instructions to the trial court to apply the 2003 versions of the statutes. We affirm the judgment and sentence in all other respects.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Balande ESTILIEN, Petitioner, v. Steven DYDA, Respondent.
    No. 4D12-1473.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.

      Hinda Klein and Kasey L. Prato of Con-roy, Simberg, Ganon, Rrevans, Abel, Lur-vey, Morrow, & Schefer, P.A., Hollywood, for petitioner.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., and John Richardson of Steinger, Iscoe & Greene, West Palm Beach, for respondent.
   PER CURIAM.

Balande Estilien petitions for a writ of certiorari from a circuit court order permitting discovery of his attorney’s billing records. We grant the petition because the trial court departed from the essential requirements of law in allowing the discovery of these records without a sufficient showing of relevancy and need.

Respondent Steven Dyda sued Estilien for injuries suffered in an auto accident and obtained a verdict in his favor. Dyda then filed a motion to tax costs and attorney’s fees because Estilien had rejected an offer of settlement under section 768.79(6)(b), Fla. Stat. (2012). The trial court ruled that Dyda was entitled to fees under the statute.

In order to prove the amount of fees earned, Dyda sought production of “[a]ny and all billing records [for Estilien’s attorneys] ... for the instant case from November 17, 2010 through December 9, 2011.” Estilien objected, arguing that the information was irrelevant and required production of attorney-client privileged or work product protected matters. Dyda’s counsel argued that he needed the information in order to reconstruct how much time he spent on this case because he worked on a contingency fee basis and did not keep time records. The court ordered discovery of the billing records, but required that privileged information be redacted. This petition follows.

Certiorari jurisdiction lies because the order compels production of protected and private information of the attorney and client without a showing of relevancy. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003) (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002), “[c]learly, ‘the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.’ ”).

We have previously held that discovery of the billing records of the opposing party’s attorney are not discoverable if such records contain privileged material or are otherwise irrelevant. Heinrich Gordon Batchelder Hargrove Weihe & Gent v. Kapner, 605 So.2d 1319, 1319 (Fla. 4th DCA 1992). In Heinrich, we granted cer-tiorari and quashed an order that permitted irrelevant discovery of an attorney’s billing records for other clients in unrelated cases. Id. In Finol v. Finol, 869 So.2d 666, 666 (Fla. 4th DCA 2004), we dismissed a petition for writ of certiorari concluding that the order requiring production of billing records did not cause irreparable harm. Id. A claim of work product privilege was not raised in Finol. Id,. Moreover, we did not decide in either Finol or Heinrich that billing records should be discoverable as a matter of course without a sufficient showing of need and relevancy.

Some of our sister courts have held that trial courts have discretion to decide whether to permit discovery of billing records. Anderson Columbia v. Brown, 902 So.2d 838, 840 (Fla. 1st DCA 2005); Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720, 724 (Fla. 5th DCA 1999). This discretion, however, is not unfettered. The party’s need for the information and the relevancy of the information must be balanced against the privacy rights of the attorney and client.

In HCA Health Srvcs. of Fla., Inc. v. Hillman, 870 So.2d 104 (Fla. 2d DCA 2003), the Second District recognized that an attorney’s billing records should generally be protected as work product. See also Jacob v. Barton, 877 So.2d 935, 936 (Fla. 2d DCA 2004). In addressing the very issue now before us, the court in Hillman stated:

The fees of a prevailing party cannot be predicated upon the fees of one’s opponent. See Stowe v. Walker Builders Supply, Inc., 431 So.2d 180 (Fla. 2d DCA 1983). There are many sound reasons for this rule. For example, two competent attorneys handling opposite sides of a case will often, if not usually, spend substantially different amounts of time on the case. A deposition that may take one attorney a few minutes to prepare and attend may require hours of work on the part of the other lawyer. A production of documents by one side may require little time by that party’s attorney because the work was performed by the client’s staff. That same production may require days for the other attorney to review and analyze. Different clients have different reporting requirements and sometimes different •expectations as to the time the attorney will spend on their case. Without belaboring the point, it should be self-evident that the records of one’s opponent are, at best, only marginally relevant to the general issue of determining an appropriate amount of attorney’s fees to be awarded in a given case.
While we suggest that the opponent’s time records are marginally relevant, a more accurate statement might be that the records may, on rare occasion, be relevant to resolve a dispute about a particular billable event. For example, if a party were to challenge whether a mediation session lasted three hours or two days and information could not be obtained from the mediator, it might be appropriate to examine that party’s own billing records as they pertain to the duration of the mediation session.

870 So.2d at 106.

The court in Hillman granted relief because no special showing was required before the trial court ordered production of the billing records. Id. at 107-08.

We hold that where the billing records of opposing counsel are sought solely for the purpose of supporting a claim, for attorney’s fees, “[t]he party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source.” Id. at 107.

Dyda’s counsel’s failure to keep billing records reflecting the time spent on this case is an insufficient basis for ordering production of the records. Moreover, the time Estilien’s counsel’s spent defending the case has not been shown to be relevant to the amount of time counsel spent pursuing Dyda’s claims, nor has the need for such discovery been demonstrated. See Fla. R. Civ. P. 1.280(b)(1).

Accordingly, the trial court departed from the essential requirements of law where it ordered production of the billing records without a showing of relevancy, need, and undue hardship obtaining the information elsewhere. See Fla. R. Civ. P. 1.280(b)(3). The petition is granted, and the order on review is quashed.

Petition granted; order quashed.

MAY, C.J., DAMOORGIAN and GERBER, JJ., concur.


author: CLARK, J.

text:
    Shaketa JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1799.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

The appellant challenges convictions resulting from a jury verdict, after the trial court would not allow the appellant to peremptorily strike a potential juror. During jury selection when the appellant sought to use the peremptory strike, the state invoked the procedures outlined in Melbourne v. State, 679 So.2d 759 (Fla.1996), by asking for a race-neutral reason. The appellant offered two such reasons. During the ensuing discussion the trial court did not consider whether the explanation given was genuine. Instead, the trial court indicated that it did not know why one of the proffered reasons would be a “cause challenge.” The court subsequently found that reason to be “not sufficient,” and the other proffered reason to be “insufficient,” and then disallowed the peremptory strike “based on those grounds.”

In order to comport with the requirements of Melbourne, the trial court should have assessed the genuineness of the appellant’s proffered reasons, and if the race-neutral reasons were genuine and not pre-textual, the court then should have allowed the peremptory strike regardless of whether there was any basis to challenge the juror for cause. Hayes v. State, 94 So.3d 452, 2012 WL 1123745 (Fla. 2012); Simmons v. State, 940 So.2d 580, (Fla. 1st DCA 2006). Because this potential juror was seated on the jury for the trial and the appellant preserved the issue by objecting before the jury was sworn, the appellant’s convictions must be reversed upon the trial court’s failure to fully comply with Melbourne.

The convictions are reversed, and the case is remanded.

ROBERTS and SWANSON, JJ„ concur.


text:
    Oliver THAMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1650.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.
    Oliver Thames, pro se, Appellant.
    No appearance for Appellee.
   ORDER BARRING FUTURE PRO SE FILINGS BY INMATE

PER CURIAM.

In January 2012, Appellant filed a petition for writ of coram nobis challenging his convictions in several 1980 cases that are allegedly being used to extend his parole date in another case in which he is serving a 90-year sentence. The trial court properly treated the petition as a rule 3.850 motion and, then, dismissed it as untimely. The trial court alternatively found Appellant’s claim to be without merit and attached to its order the records conclusively refuting the claim. Appellant timely appealed to this court.

We per curiam affirmed the trial court’s order on June 21, 2012. On that same date, we issued an order stating:

This court’s records reflect that, in addition to this case, Appellant has filed at least 16 petitions and appeals in this court related to his 1980 criminal cases (Escambia County Case Nos. 80-3901, 80-3957, 80-4039, and 80-4056): AY-188, 1D92-4120, 1D93-2491, 1D95-581, 1D95-2272, 1D98-3690, 1D99-1171, 1D99-3230, 1D00-3647, 1D00-4115, 1D00-4151, 1D01-2512, 1D02-2053, 1D03^545, 1D06-6624, and 1D08-853. Appellant has not obtained any relief in these cases, and his current appeal is frivolous.
Accordingly, pursuant to rule 9.410(a) and State v. Spencer, 751 So.2d 47 (Fla.1999), Appellant shall show cause within 21 days of the date of this order why sanctions should not be imposed on him, including a prohibition on further pro se filings in this court related to his 1980 cases and a referral of this matter to the Department of Corrections for disciplinary action under section 944.279, Florida Statutes.
Appellant is advised that the failure to comply with the terms of this order within the time allowed may result in the imposition of sanctions without further opportunity to be heard. See Fla. R.App. P. 9.410.

Appellant filed a response to the order. Other than pointing out that this court reversed the summary denial of his post-conviction motions and remanded for further proceedings in two of the cases listed in the order (the most recent of which was 12 years ago), the response fails to show cause why Appellant should not be sanctioned. Having carefully considered the response, we conclude that sanctions against Appellant are warranted based on his continued abuse of the appellate process through his repetitive and frivolous pro se filings related to his 30-year-old convictions. Accordingly, we direct the Clerk of this court not to accept any future filings from Appellant, Oliver Thames (Inmate No. 203377), related to Escambia County Case Nos. 80-3901, 80-3957, 80-4039, and 80-4056, unless signed by a member in good standing of The Florida Bar. We also direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for potential disciplinary action under section 944.279, Florida Statutes.

IT IS SO ORDERED.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.

        Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000) (Case No. 1D99-1171), disapproved by Wright v. State, 911 So.2d 81 (Fla.2005); Thames v. State, 454 So.2d 1061 (Fla. 1st DCA 1984) (Case No. AY-188).


text:
    PARTNERSHIP FOR COMMUNITY HEALTH, INC., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Broward Behavioral Health Coalition, Inc., Appellees.
    No. 1D12-1866.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.

      Daniel H. Thompson of Berger Singer-man LLP, Tallahassee, for Appellant.
    Marion Drew Parker, General Counsel, and Gregory D. Venz, Assistant General Counsel, Department of Children and Families, Tallahassee, for Appellee Department of Children and Families.
    Robert H. Hosay and James A. McKee of Foley & Lardner LLP, Tallahassee, for Appellee Broward Behavioral Health Coalition, Inc.
   PER CURIAM.

Partnership for Community Health, Inc., appeals a final order of the Florida Department of Children and Families (DCF), appellee, closing an administrative challenge by appellant to the award of a contract to Broward Behavioral Health Coalition, Inc., appellee, to manage certain substance abuse and mental health services in Broward County. Appellant argues that DCF erred in dismissing appellant’s protest on the ground that appellant failed to post a bond as required by section 287.042(2)(c), Florida Statutes (2010), and that the statutory requirement of a protest bond is unconstitutional under the due process clause, article I, section 9, and access to justice provision, article I, section 21, of the Florida Constitution. Because the bond requirement is clearly and unambiguously set forth in section 287.042(2)(c) and the record is undisputed that appellant was aware of the bond requirement but chose not to comply with it, we reject appellant’s first argument. As to the due process argument, appellant has no constitutionally protected property interest in a contract which was not awarded to it. See University of South Florida College of Nursing v. Department of Health, 812 So.2d 572 (Fla. 2d DCA 2002); Lakeland Regional Medical Center, Inc. v. Agency for Healthcare Administration, 917 So.2d 1024 (Fla. 1st DCA 2006). As for the argument that the bond requirement runs afoul of the access to justice provision, this constitutional provision only protects rights which existed at common law or by statute prior to the enactment of the Declaration of Rights of the Florida Constitution. McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998). The right to administratively challenge an award of a contract by a state agency did not exist until the adoption of the Administrative Procedures Act in 1974, after the adoption of the Florida Constitution’s Declaration of Rights. Thus, appellant has not demonstrated the bond requirement violates article I, section 21 of the Florida Constitution. Accordingly, we affirm.

AFFIRMED.

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


text:
    Victoria ROMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1034.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Michael D. Gelety, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

In the order denying Roman’s motion for post-conviction relief, the trial court fully adopted the state’s written response to Roman’s motion. However, in the state’s written response, the state conceded that Roman was entitled to ninety-seven days’ jail credit. The trial court did not grant the jail credit or explain why the state’s concession of error was incorrect. Therefore, we reverse the trial court’s order and remand for further proceedings. We affirm all other aspects of the order.

Reversed in part and affirmed in part.

HAZOURI, DAMOORGIAN and CIKLIN, JJ., concur.


author: SUAREZ, J.

text:
    Marcelo A. GAMARRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-427.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2012.
    Alberto A. Cayetano Hollywood, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, Assistant Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

On Confession of Error

On the State’s confession of error, we reverse the trial court’s order denying the defendant’s motion for post-conviction relief and remand for an evidentiary hearing on the issue of ineffective assistance of counsel to determine the sufficiency of defense counsel’s immigration deportation advice in light of Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012). At the hearing, the defendant shall present evidence for the record of any relevant facts regarding his knowledge and understanding of his immigration status and the consequences of his plea which may affect the prejudice prong of Padilla.

Reversed and remanded.


author: TAYLOR, J.

text:
    Dale BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4113.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Dale Brown, appeals the summary denial of his petition for writ of mandamus. We reverse.

Appellant filed a petition for writ of mandamus below, requesting that the trial court order his former public defender and former appointed special public defender to provide him with copies of various documents from his underlying criminal case. The requested documents included, among others, charging documents, police reports, transcripts, sentencing paperwork, and appellant’s attorneys’ files. Appellant alleged that he is incarcerated, that he has been declared indigent, and that he needs the documents to prepare legal motions. The trial court summarily denied the petition, prompting this appeal.

An appellate court applies an abuse of discretion standard of review to a trial court’s decision on a petition for writ of mandamus. Ilkhani v. Lamberti, 50 So.3d 1180,1181 (Fla. 4th DCA 2010).

Mandamus is a remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law. Poole v. City of Port Orange, 33 So.3d 739, 741 (Fla. 5th DCA 2010). If a petition for writ of mandamus shows a prima facie case for relief, the court shall issue an alternative writ in mandamus to which the defendant in the mandamus proceeding shall respond as provided in Florida Rule of Civil Procedure 1.140. Parish v. State, 59 So.3d 1229, 1230 (Fla. 4th DCA 2011); Fla. R. Civ. P. 1.630(d)(3).

Transcripts or record documents that were prepared at public expense on behalf of an indigent defendant must be provided to the defendant without charge for copying. Rosado v. State, 1 So.3d 1147, 1148 (Fla. 4th DCA 2009). Because a public defender or court-appointed lawyer is an “official,” mandamus is an appropriate remedy to compel such an official to provide a defendant with copies of legal documents prepared at public expense. Pearce v. Sheffey, 647 So.2d 333, 333 (Fla. 2d DCA 1994). By contrast, “[fjiles prepared and maintained by an attorney for the purpose of representing a client are the attorney’s personal property.” Potts v. State, 869 So.2d 1223,1225 (Fla. 2d DCA 2004). Apart from transcripts or record documents prepared on the defendant’s behalf at public expense, the defendant’s attorney cannot be required to provide other documents that are in the case file without adequate compensation. Id.

Here, appellant is incarcerated and was represented in his underlying criminal case by a public defender and an appointed special public defender. His petition for mandamus set forth a prima facie case for relief on the ground that he has a clearly established legal right to compel his trial attorneys to provide him with transcripts and other record documents obtained on his behalf at public expense.

Accordingly, we reverse the trial court’s denial of appellant’s petition for mandamus and remand for the trial court to issue an alternative writ in mandamus. Specifically, the trial court should order a response from appellant’s attorneys “to determine what, if anything, must be provided to [appellant] and likewise to determine what is available if [appellant] wishes to purchase a copy.” Raymond v. State, 31 So.3d 946, 948 (Fla. 2d DCA 2010). Unless appellant’s attorneys show cause as to why relief should not be granted, the trial court shall grant the petition to the extent that the petition requests transcripts or other record documents obtained on appellant’s behalf at public expense. Rosado, 1 So.3d at 1148. The trial court, however, shall deny the petition to the extent that it requests free copies of other documents contained in appellant’s attorneys’ files that were not obtained at the public’s expense, and shall also deny the petition to the extent that it requests documents that are not contained in his attorneys’ files.

Reversed and Remanded.

MAY, C.J., and CIKLIN, J., concur.

      . While appellant is not entitled to free copies of documents contained in his attorneys' files which were not obtained at public expense, see id. at 1148, appellant may obtain these materials if he arranges to reimburse his former attorneys for the cost of these documents. Raymond, 31 So.3d at 947. Although he may not have the financial wherewithal to purchase such documents, "there is no way for him to obtain these records unless the court-appointed attorney responds to the correspondence, informing him of the documents available and the cost of reproducing them.” Id. at 948.


author: LaROSE, Judge.

text:
    SCG HARBOURWOOD, LLC, d/b/a Harbourwood Health & Rehab Center, Appellant, v. Eleanor HANYAN, Appellee.
    No. 2D11-6163.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2012.

      Mark D. Tinker and Charles W. Hall of Banker, Lopez, Gassier, P.A., St. Peters-burg, for Appellant.
    Brandon S. Vesely of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg; and Wesley T. Straw of Emerson & Straw, PL, St. Petersburg, for Appellee.
   LaROSE, Judge.

SCG Harbourwood LLC, d/b/a Harbour-wood Health & Rehab Center, appeals the trial court’s denial of its motion to compel arbitration. Harbourwood argues that its contract with Eleanor Hanyan provided for arbitration of disputes. Harbourwood contends that an arbitration opt-out provision in the contract was not agreed to by the parties at the time the contract was signed and could not later be invoked by Ms. Hanyan. We have jurisdiction, see Fla. R.App. P. 9.130(a)(3)(C)(iv), and reverse.

The contract contained the following provision that is central to our decision:

OPTIONAL ARBITRATION CLAUSE:

If the parties to this agreement do not wish to include the following arbitration provision, please indicate so by marking a[n] “X” through this clause. Both parties shall also initial the “X” to signify their agreement to refuse arbitration. Any controversy or claim arising out of or relating to the Agreement, o[r] the breach thereof, shall be settled by arbitration in accordance with the provisions of the State Arbitration Code in which the facility is located, and judg[]ment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Ms. Hanyan’s daughter, as attorney in fact, signed the contract on January 19, 2011. She initialed each page of the contract including the page containing the arbitration provision. Neither party opted out of arbitration at that time.

Ms. Hanyan stayed at Harbourwood for nursing care and rehabilitation. In late July 2011, she sued Harbourwood for negligent care. Harbourwood moved to compel arbitration. Apparently on the advice of counsel, Ms. Hanyan took a photocopied version of the contract, marked an “X” through the arbitration clause, and advised Harbourwood that she was opting out of arbitration.

In the trial court, Harbourwood argued that a plain reading of the provision “clearly reflects that the parties agreed to arbitration of all claims arising out of or relating to the admission to the facility unless the clause was crossed out. The clause was left unmarked by [Ms. Hanyan], who did initial the page and sign the agreement.” The trial court rejected this argument:

For the record, [t]he [c]ourt is making a finding that this arbitration clause as written would permit [Ms. Hanyan] to X through it at any point in time and opt out of arbitration. That’s [t]he [c]ourt’s finding for the record.
Sustained. And I think I need to clarify a little bit. I think — and this is for the record.
I think the problem here is you’re talking about the agreement being changed because of my interpretation; that is, that she could X this out after whenever she wants later on. You see, therein lies one of the problems. And I thought I made this clear, I don’t think that is a change in the contract.
I think the contract, at its inception, permitted them to make the decision as to whether they want to go to arbitration, or into judicial proceedings after the cause of action arose.
And I don’t think that is a change in the contract. I think that’s the way the contract was at the time that it was signed. And if I didn’t make that clear, I apologize.
But I think the point that you’re making, and I think the record needs to be clear on this, and I don’t think [Ms. Hanyan] contests this, and that is that the services that were called for, with the exception of what’s been pled in the complaint, that services were provided pursuant to this contract before she X’d out the arbitration clause.
Thank you. The [c]ourt is going to deny the [m]otion to [c]ompel. The grounds ... [are] as I’ve already stated on the record ... this provision ... provided by [SCG Harbourwood or its agent] ... allowed — at the time that this agreement was signed, allowed for them to opt out of the arbitration clause at a time after the contract was entered into.
I think that’s consistent with the plain language of this contract. If there’s any ambiguity, the ambiguity is to be construed against the drafter of the contract.
I don’t think it is ambiguous. I think that’s the way it’s written. They may not have wanted it to be that way, but that’s the way, in my view, it is written.
In this case, as I’ve already found, an authorized person X’d through ... the clause ... opting out of the arbitration provision subsequent to entering into the contract. It allowed them to do that.
I don’t think that was a change in the contract. I think that’s the clear language of the contract, and that right existed at the time it was signed.
Accordingly, I’m going to deny the [m]otion to [c]ompel.
It’s a very interesting question that I’ve not seen before, and I’ll look forward to some guidance on this.

(Emphasis added).

Whether a particular dispute is subject to arbitration is a matter of contract interpretation that we review de novo. State Bd. of Admin, v. Burns, 70 So.3d 678, 680 (Fla. 1st DCA 2011) (citing O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006)). Florida public policy favors arbitration and all doubts as to the scope of an arbitration agreement should be resolved in favor of arbitration.

[Construction of an arbitration clause remains subject to the contract law requirement that the court discern the intent of the parties from the language used in their agreement. Arbitration is mandatory only where the subject matter of the controversy falls within what the parties have agreed will be submitted to arbitration. It is the language of the agreement that defines the scope of an arbitration agreement.

Burns, 70 So.3d at 680-81 (quoting Citigroup, Inc. v. Boles, 914 So.2d 23, 25 (Fla. 4th DCA 2005)); see also O’Keefe, 944 So.2d at 185 (“Arbitration clauses are creatures of contract. As a result, courts look to the intent of the parties as manifested in the contract to determine whether an arbitration clause compels arbitration of a particular dispute.”).

We may consider de novo whether contract terms are unambiguous. See Dows v. Nike, Inc., 846 So.2d 595, 601 (Fla. 4th DCA 2003). We conclude that the arbitration provision unambiguously required both parties to opt out of arbitration at the time of the contract signing. A plain reading of the optional arbitration clause shows that both parties could opt out of arbitration by placing an “X” through the clause. Neither party exercised its authority at the time of signing and nothing in the provision suggests that it could be exercised unilaterally at a later time. The intent of the parties is discerned from the total writing and not particular provisions or disjointed parts. See Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315 (Fla. 2d DCA 1963).

If a contract provision is clear and unambiguous, a court may not consider extrinsic or parol evidence to change the plain meaning set forth in the contract. Jenkins v. Eckerd Corp., 913 So.2d 43, 52 (Fla. 1st DCA 2005). The operation of the parol evidence rule encourages parties to embody their complete agreement in a written contract and fosters reliance upon the written contract. Id. at 53. “The parol evidence rule serves as a shield to protect a valid, complete and unambiguous written instrument from any verbal assault that would contradict, add to, or subtract from it, or affect its construction.” Id. (quoting Sears v. James Talcott, Inc., 174 So.2d 776, 778 (Fla. 2d DCA 1965)). The trial court found the optional arbitration contractual provision to be unambiguous and to allow exercise of the option at any future time, a decision that must be reversed. To the extent, if any, that the trial court relied on testimony by Ms. Han-yan’s daughter that she was told or thought that she could opt out of the arbitration provision at any time, the testimony should not have been considered and would constitute a clear abuse of discretion. See Jenkins, 913 So.2d at 49.

A contract is made under Florida law when three elements are present: offer, acceptance, and consideration. Pezold Air Charters v. Phoenix Corp., 192 F.R.D. 721, 725 (M.D.Fla.2000). Furthermore, the unilateral modification of a contract is unenforceable. Dows, 846 So.2d at 603. “Any subsequent modification requires consent and a meeting of the minds of the parties to the contract whose rights or responsibilities are sought to be affected by the modification.” Id.; see also Newkirk Constr. Corp. v. Gulf Cnty., 366 So.2d 813, 815 (Fla. 1st DCA 1979) (“Modifications of contracts must be supported by new consideration as well as the consent of both parties. Moreover, a party who alleges a contract has been modified has the burden of proving it.”).

Reversed.

SILBERMAN, C.J., and WHATLEY, J., Concur.

      . We note that the optional arbitration clause is like or similar to optional arbitration clauses mentioned in a number of Florida cases. We found no case where the issue(s) litigated were like the one raised here. See, e.g., Jaylene, Inc. v. Moots, 995 So.2d 566 (Fla. 2d DCA 2008) (holding that attorney in fact had authority to bind principal to arbitration agreement contained in nursing home care contract); Estate of Orlanis v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811 (Fla. 3d DCA 2007) (holding that the nursing homes waived right to arbitration when they availed themselves of discovery before seeking arbitration); Consol. Res. Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500 (Fla. 4th DCA 2003) (holding that optional arbitration clause was not procedurally or substantively unconscionable and was fair, optional, and could be refused; a party is normally bound by a contract that he or she signs unless prevented from reading it or induced by the other party not to read it).


text:
    Eric NOVESHEN, Petitioner, v. LAW OFFICES OF BARRY FRANKLIN & ASSOCIATES, and Christine Noveshen, n/k/a Christina Carter, Respondents.
    No. 4D12-892.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Erie L. Noveshen, Fort Lauderdale, pro se.
    Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura, for respondent The Law Firm of Barry S. Franklin & Associates, P.A.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the trial court’s order granting the respondent’s motion to compel compliance with outstanding discovery in aid of execution directed to him, which was entered ex parte despite petitioner having filed an objection to the discovery. The court entered the order pursuant to Local Rule 10A of the Seventeenth Judicial Circuit which permits the entry of an ex parte order compelling discovery where there has been a complete failure to respond or object to discovery.

The ex parte order is quashed, as the petitioner had filed objections and a motion for protective order prior to the motion to compel being filed. As we held in Waters v. American General Corp., 770 So.2d 1275 (Fla. 4th DCA 2000), the local rule can apply only where the conditions in the order are met, namely the failure to respond at all to discovery requests. That condition was not met in this case. The rules of civil procedure apply and require proper notice of the motion and hearing.

WARNER, GROSS and GERBER, JJ., concur.