author: GROSS, J.

text:
    The ESTATE OF Frances DERESH, by and through Lois SCHNEIDER, personal representative, Appellant, v. FS TENANT POOL III TRUST, FS Tenant Holding Company Trust, Five Star Quality Care, Inc., FGI Financing I Corporation, a/k/a CCC Financing I Corporation, Richard Markhoff, Femu Lewu a/k/a Funmilayo Ifemi Lewu (as to Forum at Deer Creek), Appellees.
    No. 4D10-749.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Rehearing Denied Sept. 7, 2012.

      Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for appellant.
    Thomas A. Valdez and Scott M. Teich of Quintamos, Prieto, Wood & Boyer, P.A., Tampa, for appellees, FS Tenant Pool III Trust, FS Tenant Holding Company Trust, Five Star Quality Care, Inc., FGI Financing I Corporation, a/k/a CCC Financing I Corporation, and Richard Markhoff.
    Christopher W. Wadsworth and Mark A. Levine of Wadsworth Huott, LLP, Miami, for appellee, Femu Lewu a/k/a Funmilayo Ifemi Lewu (as to the Forum at Deer Creek).
   GROSS, J.

The Estate of Frances Deresh timely appeals a non-final order compelling it to arbitrate its claims against the various defendants in this wrongful death action. We affirm the order compelling arbitration but remand to the circuit court with instructions to sever the punitive damages limitation from the arbitration agreement.

The estate sued various defendants involved with a nursing home facility. The estate made the following claims: (1) nonlethal negligence, in that Deresh was the victim of a sexual assault, developed skin problems (rash and ulcer), and fell in her bathroom; (2) lethal negligence, in that the non-lethal negligence ultimately caused Deresh’s death; (3) wrongful death, a claim pursued on behalf of Deresh’s surviving children; (4) breach of fiduciary duty; (5) the corporate defendants’ violations of section 415.1111, Florida Statutes (2008), exploitation of a -vulnerable adult; and (6) the individual defendants’ violations of the same statute.

Around the time Deresh was admitted to the facility, she and the facility entered into an arbitration agreement. The agreement required the arbitration of certain claims:

1. AGREEMENT TO ARBITRATE. Should a dispute arise between the Parties, they desire to avoid costly and time-consuming litigation. Resident and Five Star agree that any claims, controversies, or disputes arising between them involving a potential monetary amount in excess of $25,000 shall be resolved exclusively by binding arbitration.

The arbitration was to be conducted by either one or three arbitrators, the number to be selected by Deresh; the members “shall be chosen by the American Arbitration Association (‘AAA’) or by mutual agreement between the parties”; and the panel “shall follow the current Commercial Arbitration Rules of the AAA.”

On remedies, the agreement provided: The Panel shall have the authority to grant equitable relief that could be ordered by a court. The Panel shall have authority to award economic damages and non-economic damages (including, damages for pain and suffering and mental anguish); but shall have no authority to award punitive or exemplary damages.

Finally, the arbitration agreement contained an express severability clause.

7. SEVERABILITY. If any provision of this Agreement is declared to be unlawful, invalid or unenforceable for any reason, then notwithstanding such unlawfulness, invalidity or unenforceability, the remaining terms and provisions of this Agreement shall remain in full force and effect.

The defendants moved to compel arbitration. After a hearing, the circuit court compelled arbitration and stayed the proceedings.

The estate first argues that the circuit court erred because the defendants “made no effort whatsoever to meet its burden of establishing that” the case involved “a potential monetary amount in excess of $25,000.” The estate did not notify the court that it was seeking less than $25,000 in damages. “Potential” means “1. Possible, as opposed to actual ... 2. capable of being or becoming.” The Random House Dictionary of the English Language 1125 (1967). The nature and quantity of the estate’s causes of action involve the “potential” of damages in excess of $25,000 anywhere on this planet that recognizes similar claims. Because the claims in this case fell within the scope of disputes subject to the arbitration agreement, the trial court did not err in granting the defendants’ motion to compel arbitration.

The estate next contends that two recent decisions of the Florida Supreme Court (1) compel the conclusion that the arbitration agreement’s limitation on punitive damages is contrary to public policy and (2) require invalidation of the entire arbitration agreement. See Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2011); Gessa v. Manor Care of Fla., Inc., 86 So.3d 484 (Fla.2011). While we agree with the first part of that argument, we conclude that the punitive damages limitation is severable from the rest of the arbitration agreement.

We review a trial court’s order compelling arbitration de novo. See Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999). “[TJhere are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The effect of the punitive damages limitation involves the first element — whether the parties’ arbitration agreement is valid.

Neither Shotts nor Gessa compels the conclusion that the punitive damages limitation cannot be severed from the arbitration agreement.

In Shotts, the estate of a nursing home resident sued the home alleging negligence and breach of fiduciary duties. 86 So.3d at 460. The home moved to compel arbitration based on an agreement the resident had signed upon admission. Id. at 458. The Supreme Court described the pertinent provisions of the agreement: “The agreement contained the following ‘limitations of remedies’ provisions: (i) the arbitration will be conducted in accordance with the American Health Lawyers Association (AHLA) rules; and (ii) the arbitrators will have no authority to award punitive damages. The agreement also stated that its terms were severable.” Id. The trial court granted the motion to compel arbitration. Id. The district court affirmed, and the Supreme Court granted discretionary review. Id.

There were three issues in the Supreme Court, two of which are relevant here: “(2) whether the limitations of remedies provisions violate public policy; and (3) whether the limitations of remedies provisions are severable.” Id.

On the first of these issues, the Supreme Court held that the limitation-of-remedies provisions violated public policy. Id. at 471-75. The Court reasoned that the limitation-of-remedies provisions “directly un-derminted] specific statutory remedies created by the Legislature,” sections 400.022 and 400.023, Florida Statutes (2003), which were designed to provide nursing home residents with remedies against abuse at the hands of their nursing homes. Id. at 474. The resident’s bill of rights articulated in section 400.022 was backed up by the remedies, including punitive damages, in section 400.023. See § 400.023(1) (“The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any violation of the rights of a resident or for negligence.”).

Having determined that the two limitation-of-remedies provisions were invalid, the Supreme Court next addressed whether they were severable from the rest of the arbitration agreement. Shotts, 86 So.3d at 475-78. Without discussing the limitation on punitive damages, the Supreme Court’s analysis focused solely on the AHLA-rules provision, which provided that the arbitrator could not award “consequential, exemplary, incidental, punitive or special damages” unless the arbitrator determined that there was “clear and convincing evidence” “of conduct evincing an intentional or reckless disregard for the rights of another party, or fraud, actual or presumed.” Id. at 476-77. This provision was contrary to section 400.023(2), which called for only a preponderance of the evidence standard. Id. See also Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773, 775 (Fla. 4th DCA 2007). The Court held that even though the arbitration agreement contained a severability clause, the AHLA rules provision was not severable from the remainder of the agreement because it went “to the very essence of the agreement.” Shotts, 86 So.3d at 478. The Court adopted this “general standard for determining whether a contractual provision is severable from the whole” contract:

[A] bilateral contract is severable where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other.

Gessa, 86 So.3d at 490 (quoting Shotts, 86 So.3d at 475) (quoting Local No. 234 of United Ass’n of Journeymen v. Henley & Beckwith, Inc., 66 So.2d 818, 821-22 (Fla.1953)).

The Court explained that

[i]f the provision were to be severed, the trial court would be forced to rewrite the agreement and to add an entirely new set of procedural rules and burdens and standards, a job that the trial court is not tasked to do.
Further, if the AHLA provision were severed, the trial court would be hard pressed to conclude with reasonable certainty that, with the illegal provision gone, “there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other,” id. — particularly, when those legal promises are viewed through the eyes of the contracting parties.

Id. Part of the Court’s severability analysis is the notion that the parties would not have entered into a contract that did not contain the provision sought to be severed, a provision that went “to the very essence of the agreement.” Id. The Supreme Court did not discuss whether, if viewed alone, the prohibition on punitive damages in the arbitration was severable from the rest of the arbitration agreement.

In Gessa, the Supreme Court confronted a nursing home arbitration agreement that placed a $250,000 cap on noneconomic damages and waived punitive damages altogether. 86 So.3d at 485. The arbitration agreement did not contain a severability clause. Id. at 489. The Supreme Court held that the two limitation-of-liability provisions, violated public policy and were unenforceable because they “directly undermine[d] specific statutory remedies created by the Legislature.” Id. at 490, 492-93. On severability, the Court ruled that, “when viewed jointly,” the two “limitation of liability provisions” were “not severable from the remainder of the agreement.” Id. at 490. The Court reasoned that the two provisions went to the essence of the arbitration agreement:

When viewed jointly, the above two provisions place a clear upper limit on non-economic damages and foreclose the prospect of punitive damages altogether. The extent of liability under the agreement is thus, within bounds, reasonably foreseeable. Without these provisions, on the other hand, the extent of liability would be open-ended. In this respect, the two provisions constitute the financial heart of the agreement.
As in Shotts, we conclude that if the present provisions were to be severed, “the trial court would be hard pressed to conclude with reasonable certainty that, with the illegal provisions] gone, ‘thefe still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other’ id. — particularly, when those legal promises are viewed through the eyes of the contracting parties.” Shotts, 86 So.3d at 459 (quoting Local No. 234, 66 So.2d at 821-22).

Id. at 490-91.

Shotts and Gessa compel the holding that the provision in the arbitration agreement preventing the arbitration panel from awarding punitive damages violated public policy. This case involves Chapter 415 rather than Chapter 400, which was at issue in Shotts and Gessa; however, like the statute in those cases, section 415.1111, Florida Statutes (2008) expressly authorizes punitive damages. (“The action may be brought ... to recover actual and punitive damages for any deprivation of or infringement on the rights of a vulnerable adult.”).

Neither Shotts nor Gessa precludes the severance of the clause prohibiting an arbitration award of punitive damages from the arbitration agreement. As the Supreme Court explained in Gessa, Shotts did not address the issue of the severability of the waiver of punitive damages. 86 So.3d at 489. The arbitration agreement in Gessa did not contain a severability clause, and the Court based its ruling on non-severability upon the combination of the two limitation-of-liability provisions, “when viewed jointly.” Id. at 490. Neither case stands for the proposition that an invalid punitive damages provision in an arbitration agreement, standing alone, is not severable because it goes to the heart of the agreement.

The invalid punitive damages limitation in this case did not go to the heart of the arbitration agreement. Unlike the contract in Gessa, the agreement here allows an arbitration panel to award economic and non-economic damages without limit. The primary thrust of the agreement is “to avoid costly and time-consuming litigation.” Striking the punitive damages limitation would preserve the forum and the finder of fact so central to the agreement. The severance clause declares the intent of the agreement to preserve the agreement in the event “any provision” of the agreement is declared unlawful. Because of the extreme conduct required to justify an award of punitive damages, such damages are recoverable in the rare case. Unlike the situation in Shotts, where the invalidation of an organization’s procedural rules would have required a drastic rewriting of the arbitration agreement, here there is no similar interdependence between the punitive damages prohibition and the remaining clauses of the agreement. Refusing to sever the punitive damages limitation would cut out the heart of the agreement for a peripheral illegality. Allowing severance of the punitive damages limitation preserves the principle that “[pjarties may agree to arbitrate statutory claims, provided [that] the arbitration offers an effective way for vindicating the claimant’s statutory rights.” Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 266 (Fla. 4th DCA 2006).

For these reasons, we affirm the trial court’s order compelling arbitration and remand to the circuit court to order sever-anee of the punitive damages provision from the arbitration agreement.

POLEN and LEVINE, JJ., concur.

      . In Gessa, the court stated that it did not "address” whether the waiver of punitive damages in Shotts was severable because it was unnecessary to do so in light of the Court's ruling on the non-severability of the provision calling "for the imposition of the AHLA rules.” 86 So.3d at 489-90.


source: Caselaw Access Project

author: PER CURIAM. SCHWARTZ, Senior Judge

license: Public Domain

text:
    Darryl POPE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-639.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Rehearing Denied Aug. 6, 2012.
    Andrew M. Kassier, for appellant.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, Lunar C. Alvey, Assistant Attorney General, and Patrick Colin McCardle, Certified Legal Intern, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

SCHWARTZ, Senior Judge

(specially concurring).

Pope was the alleged “wheelman” for two other co-perpetrators who personally committed an armed robbery during which the victim was pistol-whipped. He was charged with and acquitted of the two substantive charges of armed robbery and aggravated battery, but convicted of one count of conspiracy to commit armed robbery.

There is no problem in rejecting the contention that there was no evidence to support the conspiracy conviction or that it was legally inconsistent with the favorable verdicts on the substantive charges. See Corbo v. State, 347 So.2d 133, 134 (Fla. 3d DCA 1977) (proper to convict on conspiracy to commit offense of which the defendant was acquitted).

The appellant’s other point presents more difficulty. It claims a Postell error in the admission of a police officer’s testimony that he responded to conversations with the co-defendants by arresting the appellant. This scenario is virtually the same as the one involved in White v. State, 76 So.3d 335, 342-44 (Fla. 3d DCA 2011). I agree, as held in White, that a Postell violation indeed occurred. However, as this Court also held in White, I do not believe that the error requires reversal. Although this particular determination is closer than White, largely because Pope was found guilty only of conspiracy, I conclude that the evidence was, under all the circumstances, no more than harmless.

      . He also was convicted of fleeing or attempting to elude under section 316.1935(2), Florida Statutes.

      . And probably a Bruton error, as well. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).


author: GERBER, J.

text:
    William KRAMER and Sheila Kramer, individually, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, a corporation, Appellee.
    No. 4D10-3978.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 11, 2012.
    Timothy H. Crutchfield of Mintz Trupp-man, P.A., North Miami, for appellants.
    Kara Berard Rockenbach and David Noel of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   GERBER, J.

The insureds appeal the circuit court’s final summary judgment in favor of the insurer. The insureds primarily argue that their untimely pre-suit notice of the alleged loss and untimely pre-suit submission of a sworn proof of loss did not preclude them from recovery under the policy. We disagree. We conclude that the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of a sworn proof of loss created a presumption of prejudice to the insurer, which the insureds failed to rebut, thereby precluding the insureds from recovery under the policy. Thus, we affirm.

From the insurer’s amended motion for summary judgment and the insureds’ memorandum and affidavits in response, we discern the following undisputed material facts. In September, 2004, Hurricane Frances and Hurricane Jeanne allegedly damaged the insureds’ roof. The insureds’ policy provides that “[a]fter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and shall “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.” The policy further provides: “No action shall be brought unless there has been compliance with the policy provisions.” The insureds did not give immediate notice of the alleged loss to the insurer and did not submit to the insurer a sworn proof of loss within 60 days after the alleged loss. Instead, the insureds decided for themselves that the roof tiles which blew off their roof were not the type of damages which involved the policy at issue.

Four years later, in 2008, a leak occurred in the insureds’ roof. The insureds again did not give notice of the alleged loss or submit a sworn proof of loss to the insurer. Instead, the insureds decided for themselves that the amount of money to repair the leak was below their deductible and, as such, did not involve the policy at issue.

In May, 2009, the insureds were advised by a person who inspected their roof that Hurricane Frances and Hurricane Jeanne may have caused damage to their roof. Later that month, the insureds filed a claim with the insurer for the estimated cost to replace the roof.

The insurer investigated the claim. The investigation included an inspection of the roof. In July, 2009, the insurer sent the insureds a letter stating, in pertinent part:

Due to multiple policy violations including the failure to immediately report the loss, the failure to exhibit the damage prior to effecting permanent repairs, the failure to keep detailed and accurate records of repair expenditures relative to causation, date of damage, date of repairs, scope of damage, and incurred costs, our ability to independently validate your claim has been compromised.

The letter then referred the insureds to the policy provisions stating, among other things, that “[a]fter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.” Later that month, the insureds submitted a sworn proof of loss to the insurer.

The following month, that is, August, 2009, the insurer sent the insureds a letter stating, in pertinent part: “[U]pon review of the previously submitted information and our inspection ... we remain unable to extend coverage for this loss based upon our completed investigation with regard to the policy provisions listed below.” The letter again referred the insureds to the policy provisions stating, among other things, that “[a]fter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.” Later that month, the insureds sued the insurer for breaching the policy by failing to pay the claim.

The insurer’s amended motion for summary judgment argued that the insureds materially breached their duties under the policy by, among other things, not giving immediate notice of the alleged loss and not submitting a sworn proof of loss within 60 days after the loss. According to the insurer, the insureds’ material breach of their duties under the policy relieved the insurer of its duties under the policy.

The insureds’ response to the amended motion argued that they complied with the policy by giving immediate notice of the loss as soon as they became aware in May, 2009, that there was damage which involved the policy at issue. The insureds further argued that their failure to give notice of the loss within the time provided by the policy did not prejudice the insurer and therefore was not a ground for denying coverage. In support of the latter argument, the insureds attached the affidavit of a structural engineer. In the affidavit, the engineer stated that he had worked on many cases where the insurer in this case “has relied on engineers to determine the cause of damage to property years after a storm.” According to the engineer, “damage as a result of hurricanes is noticeably different from other causes of loss such as wear and tear, deterioration, and the like.”

At the hearing on the motion, the insurer primarily argued that it was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of the sworn proof of loss. In support of that argument, the insurer cited Bankers Insurance Co. v. Macias, 475 So.2d 1216 (Fla.1985), for the proposition that “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed.” Id. at 1218 (citations omitted). The insurer conceded that under Bankers, the presumed prejudice “may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Id. (citations omitted). The insurer argued, however, that the insureds failed to make any such showing in the record.

The circuit court, citing Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995), inquired whether it first needed to determine whether the notice provisions at issue were conditions precedent rather than cooperation clauses. See id. at 303-04 (“[A]n insurer need not show prejudice when the insured breaches a condition precedent to suit.... On the other hand, if the provision is a cooperation clause, the burden would be on the insurer to demonstrate substantial prejudice before a breach would preclude recovery under the policy.”) (citations and footnote omitted). The insurer agreed that the court needed to make such a determination. The insurer then requested the court to determine that the notice provisions at issue were conditions precedent.

The insureds responded that the court need not determine whether the notice provisions at issue were conditions precedent rather than cooperation clauses. The insureds reasoned that they were not required to give notice of the loss until they knew that the loss was above their deductible. The insureds further argued that even if prejudice to the insurer was presumed, their structural engineer’s affidavit, commenting upon the insurer’s ability to determine the cause of damage years after a storm, rebutted the presumption.

In reply, the insurer argued that the engineer’s affidavit did not rebut the presumption. The insurer referred to the engineer’s report referenced in the affidavit. In the report, the engineer stated: “Foot traffic over the prior 11 years may have contributed to the breakage, though wind damage, in our opinion, was equally likely.” (emphasis added). The engineer also stated: “Since resetting of tiles occurred prior to this inspection, it was not possible to discern the full extent of the damages that existed immediately after [the hurricanes].” (emphasis added). According to the insurer: “If the [insureds’] own expert can’t determine the cause, how can [the insurer]?”

After the hearing, the circuit court entered an order granting the insurer’s amended motion for summary judgment. In the order, the court stated its findings:

The Court ... finds that no genuine issue of material fact exists as to [the insureds’] indisputable violation of policy conditions which are precedent to coverage and the resulting and presumptive prejudice to [the insurer] in attempting to ascertain the cause of the alleged loss. This Court finds that [the insureds] presented no evidence to overcome [the insurer’s] undisputed prejudice caused by [the insureds’] violations of their contractual obligations to comply with policy conditions.

The court then entered a final judgment in favor of the insurer.

This appeal followed. Our review is de novo. See Chandler v. Geico Indem. Co., 78 So.3d 1293, 1296 (Fla.2011) (when the issue on appeal stems from the trial court’s ruling on summary judgment based upon the interpretation of an insurance contract, the appellate court’s standard of review is de novo) (citations omitted).

We agree with the circuit court that the policy provisions requiring the insureds to give immediate notice of the loss and submit a sworn proof of loss within 60 days of the loss were conditions precedent to suit, and not cooperation clauses. An insurance contract “must be construed in accordance with the plain language.” Id. at 1300 (citation and internal quotations omitted). Here, the policy’s plain language states that “[a]fter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and shall “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.” The policy further provides: “No action shall be brought unless there has been compliance with the policy provisions.” Such language causes the giving of immediate notice of the loss and the submission of a sworn proof of loss within 60 days of the loss to become conditions precedent to suit. See Bankers, 475 So.2d at 1218 (“A notice of accident in most insurance policies is a condition precedent to a claim. It was so designated in the policy in this case.... A failure to cooperate clause, on the other hand ... is a condition subsequent....”); Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513-14 (Fla. 5th DCA 2007) (the insured’s obligation under an insurance policy to provide the insurer with a sworn proof of loss within 60 days after loss constituted a condition precedent to suit where the policy stated: “No suit or action may be brought against us unless there has been full compliance with all policy terms.”).

Despite the fact that a notice of loss and a sworn proof of loss are conditions precedent to suit, however, our supreme court long has held that “[s]uch a condition can be avoided by a party alleging and showing that the insurance carrier was not prejudiced by noncompliance with the condition.” Bankers, 475 So.2d at 1218. In other words, “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Id. (citations omitted).

Applying that principle to this case, the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of the sworn proof of loss is presumed to have prejudiced the insurer. Thus, the burden shifted to the insureds to show that the insurer was not prejudiced by their untimely pre-suit notice of the alleged loss and the untimely pre-suit submission of the sworn proof of loss. This burden shifting is consistent with the burden shifting which occurs on a motion for summary judgment when the movant has met the initial burden of demonstrating the nonexistence of any genuine issue of material fact. See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (“A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue.”).

Here, the insureds failed to come forward with counterevidence sufficient to reveal a genuine issue of material fact as to whether the insurer was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of the sworn proof of loss. The insureds’ evidence consisted of their structural engineer’s affidavit. In the affidavit, the engineer stated in general terms that he had worked on many cases where the insurer in this case “has relied on engineers to determine the cause of damage to property years after a storm.” According to the engineer, “As described in the attached report, damage as a result of hurricanes is noticeably different from other causes of loss such as wear and tear, deterioration, and the like.”

However, as the insurer argued, the engineer’s report, when discussing the damage specific to the insureds’ roof here, stated: “Foot traffic over the prior 11 years may have contributed to the breakage, though wind damage, in our opinion, was equally likely.” (emphasis added). The engineer’s report also stated: “Since resetting of tiles occurred prior to this inspection, it was not possible to discern the full extent of the damages that existed immediately after [the hurricanes].” (emphasis added). We agree with the insurer that the engineer’s affidavit and report did not create a genuine issue of material fact as to whether the insured had rebutted the presumption of prejudice to the insurer. In fact, the engineer’s statement bolstered the insurer’s argument that it had been prejudiced. As the insurer argued: “If the [insureds’] own expert can’t determine the cause, how can [the insurer]?” Therefore, the insureds properly suffered an adverse final judgment. Compare Bankers, 475 So.2d at 1218 (“[The insured] should have shown that [the insurer] suffered no prejudice from this unreasonable delay. [The insured] failed to present any evidence on this issue and properly suffered an adverse final judgment.”), with Stark v. State Farm Fla. Ins. Co., 95 So.3d 285, 2012 WL 2327789 (Fla. 4th DCA 2012) (reversing summary judgment for the insurer where, among other things, the insured presented evidence that the insurer’s investigator allegedly told the insureds’ public adjuster “that there appeared to be storm damage to the [insureds’] roof.”).

We have considered the insureds’ other arguments and conclude without further discussion that those arguments lack merit. Because we affirm as to the insureds’ appeal, the insurer’s cross-appeal is moot.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

      . In reaching this decision, we clarify our opinion in Kroener v. Florida Insurance Guar

        anty Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011). There, in affirming a summary judgment for the insurer, we held: "[W]e agree with the trial court's ruling that, as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.” Id. at 916 (citation omitted). That holding was based upon a record similar to this case, where the insurer argued that it was prejudiced by the insureds' untimely pre-suit notice of the alleged loss, and the insureds did not come forward with counterevidence sufficient to reveal a genuine issue as to whether the insurer was prejudiced. Kroener should not be interpreted as having deviated from the prejudice analysis described in Bankers.


author: CONNER, J. POLEN, J.,

text:
    CIRRUS DESIGN CORPORATION, a Wisconsin Corporation, Appellant, v. Lauraence A. SASSO, as Guardian of Cecile Sasso Lutman, Edward A. Sasso, Statesville Flying Service, Inc., a North Carolina Corporation, The City of Statesville, a North Carolina Municipal Corporation, and Palm Beach Avionics, Inc., a Florida Corporation, Appellees.
    No. 4D10-2535.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 14, 2012.

      Edward M. Mullins and Douglas J. Giu-liano of Astigarraga, Davis, Mullins, and Grossman, P.A., Miami and Patrick E. Bradley of Reed and Smith, LLP, Princeton, NJ, for appellant.
    Spencer T. Kuvin and Diana L. Martin of Leopold — Kuvin, P.A., Palm Beach Gardens, for appellee Laurence A. Sasso, as Guardian of Cecile Sasso Lutman.
   CONNER, J.

Cirrus Design Corporation (“Cirrus”) appeals an order denying its motion to enforce a settlement agreement. Cirrus contends the settlement agreement substituted contract remedies for tort remedies. The appellees contend Cirrus did not timely perform on the settlement agreement; therefore, they were entitled to pursue their tort remedies. Because the matter to be decided on appeal is the interpretation of a contract, our review is de novo. Klinow v. Island Court at Boca W. Prop. Owners' Ass’n, 64 So.3d 177, 180 (Fla. 4th DCA 2011). Having reviewed the language of the settlement agreement and the undisputed facts concerning the actions taken by the parties after the acceptance of the proposed settlement agreement, we determine the trial court erred in denying the motion to enforce the settlement agreement.

Factual Background and Trial Court Proceedings

As a result of two passengers dying and a third being injured in a private aircraft crash, Cirrus was sued in two separate wrongful death actions and one personal injury action. All three plaintiffs had the same attorney. The three cases were consolidated for discovery purposes only. During the litigation, Cirrus served each plaintiff with separate offers of judgment for $50,000 each, pursuant to section 768.69, Florida Statutes (2008). All three offers of judgment were worded the same. Pertinent to this appeal, the offers stated:

2. To accept this offer of judgment, [plaintiff] must deliver a written acceptance within thirty (30) days of service of this offer of judgment. For the avoidance of doubt, it is a condition of this offer of judgment that [plaintiff] accepts the terms herein.
4. The total amount to be paid under the terms of this offer of judgment/proposal for settlement is Fifty Thousand Dollars ($50,000.00) (“Settlement Funds”).
5. The Settlement Funds shall be paid to the trust account of Leopold-Kuvin, P.A. within twenty (20) days of delivery to Cirrus of a duly executed acceptance of this offer of judgment.
6. If accepted, this offer of judgment constitutes satisfaction of all claims that [plaintiff] has asserted or that [plaintiff] could assert against Cirrus and its respective agents, officers, directors, shareholders, partners, joint venturers, employees, former employees, representatives, parents, predecessors, successors, affiliates, subsidiaries, assigns, and designees arising in, out of, in connection with, or related to the above-captioned suit, including, but not limited to, all claims for compensatory, statutory, and punitive damages, equitable relief, interest, and attorneys’ fees, whether or not [plaintiff] has asserted such claims against Cirrus or a related party in the above-captioned suit.
7. Within ten (10) days of receipt of the Settlement Funds, [plaintiff] shall take all actions necessary to cause its claims against Cirrus to be dismissed with prejudice.

Within thirty days after service of the offers of judgment, each plaintiff filed and served a written notice of acceptance. The last of the three offers was accepted on September 11, 2009.

Settlement payment was not made within twenty days. On October 9, 2009, Cirrus asked plaintiffs’ counsel for information on how to make out the check and the law firm’s tax identification number. After a month of discussion, plaintiffs’ counsel provided the information. Cirrus then asked the plaintiffs to sign releases and notices of dismissal. The parties negotiated the wording of the releases. Eventually, the plaintiffs objected to signing any further releases, contending the terms of the offer of judgment were sufficient to release any further claims. Cirrus ultimately tendered payment on March 2, 2010. The plaintiffs refused the checks on grounds that payment was not made within twenty days of acceptance. Cirrus moved to enforce the settlements. The trial court denied the motion, holding that the offers of judgment must be strictly construed under case law and the failure to make payment within twenty days precluded enforcement of the settlement agreements.

Legal Analysis

We first address two preliminary matters. The plaintiffs argue that the order denying the motion to enforce the settlement agreement is a nonappealable, non-final order. In a footnote on page 2 of the answer brief, counsel asserts that the only order on appeal is the trial court’s denial of the motion to enforce settlement filed in lower trial case number 502008CA008737MBAB; thus, if we have jurisdiction, it is over only one plaintiff. We disagree with both contentions without discussion.,

The overriding issue on appeal is whether the acceptance, not the performance, of the offers of judgment constituted an accord and satisfaction of tort claims. Cirrus asserts that after the offers were accepted in writing the only remedies available to the plaintiffs for failure to timely pay the settlement were remedies available under contract law.

“An accord and satisfaction results when: (1) the parties mutually intend to effect a settlement of an existing dispute by entering into a superseding agreement; and (2) there is actual performance in accordance with the new agreement. Compliance with the new agreement discharges the prior obligations.” Martinez v. S. Bayshore Tower; L.L.L.P., 979 So.2d 1023, 1024 (Fla. 3d DCA 2008).

As argued by Cirrus, the “superseding agreement” can either “take the form of either an executory accord which requires actual performance before the original obligation of the parties is satisfied or a substituted agreement which results in immediate discharge of the original claim.” Rudick v. Rudick, 403 So.2d 1091, 1094 (Fla. 3d DCA 1981); see also Restatement (Second) of Contracts §§ 279, 281. In other words, the superseding agreement can either require future performance to constitute a satisfaction or can be taken itself as a satisfaction.

Cirrus advances two arguments to support its position that acceptance of the offer of judgment constituted both an accord and an immediate satisfaction: (1) the offer itself stated acceptance constituted satisfaction and (2) a presumption exists that settlement of an unliquidated claim constitutes an immediate satisfaction. We agree with Cirrus’s arguments. As to the first argument, paragraph 6 of each offer unambiguously states that acceptance constitutes a satisfaction:

6. If accepted, this offer of judgment constitutes satisfaction of all claims that the [Estate or Guardian] has asserted, or that the [Estate or Guardian] could assert, against Cirrus and its respective agents, ... arising in, out of, in connection with, or related to the above captioned suit ....

(emphasis added). The written acceptance of each offer did not impose a counteroffer that stated timely payment was of the essence or that satisfaction would occur after the settlement money was tendered. We also note that the offer of judgment makes payment of the settlement amount a condition precedent only to the plaintiffs dismissing the lawsuits, not to the plaintiffs releasing their claims.

Turning to the second argument, there can be no dispute that the offers of judgment were intended to settle an unliqui-dated claim for a liquidated amount. Therefore, the presumption of an immediate satisfaction of the tort claim applies. “If the claim is disputed or unliquidated, the presumption should be that there is a substituted agreement rather than an ex-ecutory contract of accord; if the obligations are liquidated, it will generally be presumed that the creditor did not intend to surrender his prior rights unless and until the new agreement is actually performed.” Rudick, 403 So.2d at 1094 (citing J. Calamari and J. Perillo, Contracts, § 21-6 (1977)).

If an offer makes clear that acceptance constitutes full satisfaction of a tort dispute, then the contract becomes an accord and immediate satisfaction. McGehee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976). In McGehee, the parties entered into a settlement agreement in which the defendant agreed to pay a specific lump sum in exchange for the plaintiffs agreement to perform three tasks to complete the agreement. The defendant tendered payment; the plaintiff cashed the check and performed two of the tasks, but refused to perform the third task. The Third District held, “If an offeror clearly attaches to his offer the condition that the offer, if taken at all[,] must be received in satisfaction of the claim in dispute, and the other party received it, he takes that offer subject to the conditions attached to it, and the offer operates as an accord and satisfaction.” Id. at 249.

If a party accepts an offer for a superseding agreement, which clearly intends an accord and immediate satisfaction, he or she is bound to each of the attached conditions of the new agreement and abandons the rights previously held. Martinez v. S. Bayshore Tower, L.L.L.P., 979 So.2d 1023, 1024 (Fla. 3d DCA 2008). When a superseding agreement constitutes a satisfaction, a breach of the new agreement must be enforced by an action on that agreement based upon contract law. George Vining & Sons, Inc. v. Jones, 498 So.2d 695 (Fla. 5th DCA 1986). “Settlement agreements are governed by the same legal principles applied to other contracts.” Woodfield Plaza v. Stiles Constr. Co., 687 So.2d 856, 857 (Fla. 4th DCA 1997). In this case, the trial court did not apply the law of contracts in denying the motion to enforce. Instead, it applied the principle requiring strict compliance with the offer of judgment statute. However, the offer of judgment statute and rule apply only when there has been a rejection of the offer. Baratta v. Bradford Elec., Inc., 9 So.3d 694, 696 (Fla. 4th DCA 2009).

Because we determined the trial court erred in not applying the law of contracts, we do not address the remaining issues raised by Cirrus on appeal. See USAA Cas. Ins. Co. v. Allen, 17 So.3d 1270, 1272 (Fla. 4th DCA 2009).

Reversed and remanded.

GILLESPIE, KENNETH L., Associate Judge, concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent. While I agree with the majority that whether or not there was an enforceable settlement is governed by the law of contracts, not offers of judgments, I believe that is precisely what the trial court did. The majority cites Martinez v. S. Bayshore Tower, L.L.L.P., 979 So.2d 1023 (Fla. 3d DCA 2008), for the proposition that in settling a dispute “he or she is bound to each of the attached conditions of the new agreement .... ” (emphasis supplied). Yet, it seems to ignore condition 5:

5. The Settlement Funds shall be paid to the trust account of Leopold-Kuvin, P.A. within twenty (20) days of delivery to Cirrus of a duly executed acceptance of this offer of judgment.

Clearly, the appellees (and appellant) intended to settle wrongful death/personal injury claims for one thing: the payment of money. The agreement further provided the payment would be made within twenty days of the acceptance, NOT 152 days later! Under the majority’s analysis, once the plaintiffs accepted, Cirrus could have taken 1,520 days, or perhaps 15,200 days to pay. I think the trial court was correct to deny enforcement. I would affirm.

      . The acceptance was unconditional and did not contain any counteroffers.

      . Because a written settlement agreement was entered into in each case, this case is governed by Croteau v. Operator Service Company of South Florida, 721 So.2d 386 (Fla. 4th DCA 1998), rather than Delmas v. Harris, 806 So.2d 578 (Fla. 4th DCA 2002).

      .Appellate counsel filed a notice of appearance in this Court on behalf of all three plaintiffs; thus, we have jurisdiction over all three plaintiffs. See Deno v. Smith, 101 Fla. 902, 132 So. 462, 464 (1931) (although two defendants who were necessary parties were omitted from the appeal, the court had personal jurisdiction over the omitted parties when they voluntarily appeared and submitted themselves to the jurisdiction of the court).

      . Although Cirrus does not make the argument, the logical extension of Cirrus's position is that rescission of the settlement contract is a possible remedy the plaintiffs may pursue.


author: PER CURIAM.

text:
    Keith SIROTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1318.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 7, 2012.

      Paetra T. Brownlee, Cameron Eubanks and Robert L. Sirianni, Jr., of Brownstone, P.A., Winter Park, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Keith Sirota appeals the denial of his Rule 3.850 motion for posteonvietion relief. On appeal, Sirota presents argument as to only three issues. The unargued issues are waived. Hammond v. State, 34 So.3d 58 (Fla. 4th DCA 2010); Hedrick v. State, 6 So.3d 688, 692 (Fla. 4th DCA 2009) (citing Doorbal v. State, 983 So.2d 464, 482-83 (Fla.2008)).

We affirm without discussion thé denial of all claims except appellant’s claim that ineffective assistance of counsel regarding the maximum penalty caused him to reject a favorable plea offer. As to this claim, we are bound by Morgan v. State, 991 So.2d 835 (Fla.2008), to reverse and remand for further proceedings. We certify to the Florida Supreme Court a question of great public importance regarding the scope and proper application of Morgan following two recent decisions of the Supreme Court of the United States which prescribe the minimum requirements of the Sixth Amendment as to these types of claims. Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).

Factual Background

In an internet chatroom called “I Love Older Men,” Sirota contacted a police officer who was posing as a thirteen-year-old girl and over a period of months repeatedly discussed in graphic detail his desire to have sex with her. He sent her photographs of his erect penis and was arrested when he went to meet the girl at a church. He confessed to police.

Sirota’s defense at trial was that he believed he was roleplaying with an adult. He testified about his depression and how it led him to engage in sexual fantasies regarding older women because he had always fantasized about sex with his mother. He alleged that he went into the “I Love Older Men” chatroom after he could not get into the “I Love Older Women” chatroom which he frequented but which was full on that particular day. He alleged that he went into the “I Love Older Men” chatroom because he “wondered if women role-play and act out these fantasies that men do.”

In 2007, a jury convicted Sirota of soliciting a child under sixteen years of age via the internet and three counts of transmission of material harmful to a minor. The court sentenced him to a composite sentence of five years in prison followed by ten years of sexual offender probation. This court affirmed the conviction but remanded for correction of a scrivener’s error. Sirota v. State, 977 So.2d 700 (Fla. 4th DCA 2008).

In the postconviction claim at issue, Si-rota argued that trial counsel misadvised him causing him to proceed to trial with a prohibited “diminished capacity” defense. In support of his defense, Sirota was permitted to testify at trial about events in his life that had caused him to suffer from depression and that his depression had led to destructive behavior such as participating in roleplaying fantasies involving older women in internet chat rooms. The trial court ultimately ruled, however, that Siro-ta could not present testimony from his therapist regarding Sirota’s depression having led to his sexual fantasies and role-playing. Counsel argued that the therapist’s testimony was relevant to Sirota’s state of mind and whether his depression caused him to slip further into his sexual fantasies. The court determined that the testimony was inadmissible evidence of diminished capacity and that Sirota had failed to show how the testimony was otherwise relevant to an issue in the case.

The trial court’s refusal to allow this testimony was argued on direct appeal and affirmed. Sirota alleges that counsel led him to believe the therapist’s testimony would be admissible and that any refusal to admit the testimony would lead to automatic reversal on appeal. He also claims that counsel told him that the maximum sentence he could receive after trial was 3.5 years in prison and that he relied on these statements in rejecting a plea offer for five years of probation. He claimed generally that counsel misled him to believe that “he had a viable defense, viable evidence, viable witnesses, strong issues on appeal, and the risk of only having to face and serve 3.5 years in state prison should he lose.” He claimed that he would have accepted the alleged offer for five years of probation if properly advised.

In its response to this court’s order to show cause, the State contends that the claim was not sufficiently pleaded because Sirota did not allege specifics regarding the alleged plea offer, such as the precise terms of the offer, when the offer was allegedly made, or whether the offer had an expiration date. The State argues that, even if the claim was sufficiently pleaded, the record refutes the allegation that counsel asserted a prohibited diminished capacity defense at trial. The defense at trial was that Sirota lacked the specific intent to communicate with a minor because he believed he was roleplaying with an adult pretending to be a minor. The State’s response does not address appellant’s allegation that his attorney misadvised him about the maximum sentence he could receive if convicted after trial.

Analysis

Florida courts have recognized claims of ineffective assistance of counsel where an attorney’s specifically-described deficient performance results in the loss of a favorable plea offer which the defendant would have accepted. To state a sufficient claim, the defendant must establish: “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed.” Morgan v. State, 991 So.2d 835, 839-40 (Fla.2008). Pursuant to Cottle v. State, 733 So.2d 963, 969 (Fla.1999), to establish prejudice, a defendant was not required to show that the trial court would have accepted the plea arrangement.

In two recent decisions, the Supreme Court of the United States recognized that the Sixth Amendment right to counsel encompasses a right to effective assistance of counsel during plea bargaining. In Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), an attorney’s bad advice about the merits of a defense caused the defendant to reject a favorable plea offer, and the defendant received a harsher sentence following a conviction after jury trial. The defendant in Cooper had corresponded with the trial court and expressed a willingness to admit guilt and accept the prosecutor’s plea offer, but rejected the offer in open court apparently because counsel had convinced the defendant to do so. Id. at 1383. The parties in Cooper stipulated that counsel had performed deficiently in advising defendant about the plea offer, and the Court decided only whether prejudice to state a sufficient claim could be established. Id. at 1384. The Court did not explore whether counsel’s conduct truly amounted to constitutionally deficient performance in that case. Id.

The Court recognized the sufficiency of the ineffective assistance claim in this situation, but held that the proper remedy was not necessarily to compel the prosecutor to re-extend the plea offer. The Court explained that, where the only difference between the lost plea offer, and the result after trial, is in the severity of the sentence, the court may conduct an evidentia-ry hearing to determine whether the defendant would have accepted the offer; and if so, the court then has discretion to impose the offered sentence, the sentence imposed after trial, or anything in between. Id. at 1389. Where resentencing is not alone sufficient to remedy the “constitutional injury,” such as where the lost offer involved lesser offenses, the proper remedy “may be” to require the State to re-extend the offer. Id. The trial court then has discretion to accept the plea arrangement or allow the conviction to remain undisturbed.

In a companion case, Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), the attorney failed to convey a plea offer which then expired, and the defendant later entered an open plea and received a harsher sentence. The Court recognized the sufficiency of the ineffective assistance of counsel claim in this posture, but clarified what a defendant must prove to establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition to showing a reasonable probability that the defendant would have accepted the offer, the defendant must demonstrate “a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.” Frye, 132 S.Ct. at 1409. In Frye, the Court recognized that it was up to the states to determine whether to permit a prosecutor to withdraw a plea offer once it has been accepted by a defendant or to permit a court to reject a plea deal struck by the state and the defendant. Id. at 1410-11.

Frye involved a written plea offer with a deadline for acceptance. Frye, 132 S.Ct. at 1404. Cooper involved a formal plea offer conveyed to the defendant on the record in open court at a pretrial conference. Cooper v. Lafler, No. 06-11068, 2009 WL 817712, at *3 (E.D.Mich. Mar. 26, 2009). The Court in Frye limited its holding to the specific facts of that case. The court held that generally “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date.” 132 S.Ct. at 1408 (emphasis added).

The Court in Frye noted that Missouri, like other states, permits a prosecutor to cancel a plea offer to which the defendant has agreed. Id. at 1410. Thus, the defendant must show, under the circumstances, an objectively reasonable probability that the prosecutor would not have canceled the plea agreement and that the trial court would have accepted it. Id. The Court remanded Mr. Frye’s case to the Missouri appellate court to determine whether Frye showed a reasonable probability that the prosecutor would have adhered to the agreement and that the trial court would have accepted it. Id. at 1411. The Court indicated there was strong reason to doubt that the prosecutor, and the trial court, would have adhered to the agreement where Mr. Frye had been arrested for another driving while license suspended charge while the offer remained open. Id.

The Court in Frye recognized the potential for late, frivolous, or fabricated post-conviction claims about lost plea offers. The Court explained that prosecutors and courts could adopt measures to guard against such claims:

First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N.J. Ct. Rule 8:9-1 (b) (2012) (“Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant’s attorney.”). Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.

Id. at 1409 (emphasis added). The above-emphasized language indicates that courts may limit postconviction claims of this type to “formal plea offers” which means “that [the offer’s] terms and its processing can be documented.” Id. The Court explained that, through its decision, it has “established the minimum requirements of the Sixth Amendment as interpreted in Strickland, and States have the discretion to add procedural protections under state law if they choose.” Id. at 1411.

In Florida, no plea offer or negotiation is binding until formally accepted by the trial court. Fla. R.Crim. P. 8.172(g); Hurt v. State, 82 So.3d 1090 (Fla. 4th DCA 2012). The State can rescind an offer at any time up until formal acceptance by the court — even if the defendant has conveyed his acceptance. Nothing in Florida law presently requires plea offers to be in writing, nor do the rales require a pre-trial conference where plea offers must be made on the record.

Sirota’s Case

We first address appellant’s claim that counsel performed deficiently in advising him to proceed to trial with a diminished capacity defense. We agree with the State that the record conclusively shows that counsel did not assert directly a diminished capacity defense at trial. Evidence of diminished mental capacity, not amounting to legal insanity, is inadmissible. Chestnut v. State, 538 So.2d 820 (Fla.1989).

Sirota’s claim is really that he involuntarily proceeded to trial because counsel misled him to believe that his therapist would be permitted to testify in support of his lack-of-intent defense and that he would win on appeal if the court did not allow the expert testimony. The trial court prohibited the testimony, concluding that it amounted to inadmissible evidence of diminished capacity. This court found no reversible error on direct appeal.

Sirota does not establish the deficiency prong of a Strickland claim. In Morgan, the Florida Supreme Court held that mere allegations that an attorney advised the movant to reject a plea offer are insufficient to warrant an evidentiary hearing; “[s]ome specific deficiency on the part of counsel must be alleged.” 991 So.2d at 841. Morgan had not alleged any deficient performance by counsel. Counsel merely provided an opinion to Morgan regarding whether he should accept the plea and the chance of success at trial: “[t]he mere fact that Morgan did not prevail at trial does not translate into misadvice.” Id.

Similarly, in this case, Sirota alleges merely that counsel opined that the court would admit testimony from his therapist regarding Sirota’s depression leading to sexual fantasies and roleplaying — which would support his defense that he believed he was roleplaying with an adult — and that failure to allow such testimony would be reversible error. Sirota has not identified any clear law on the issue with which counsel should have been aware. Counsel’s opinion was not obviously wrong. The fact that the trial court disagreed with counsel’s argument does not translate into deficient performance.

An attorney is strongly presumed to have provided effective assistance, and when considering counsel’s performance, a reviewing court must make every effort to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 688-90, 104 S.Ct. 2052. Judicial scrutiny of counsel’s performance must be highly deferential. Id. The object is not to grade counsel’s performance.

The Constitution does not guarantee perfect, error-free counsel. The question is whether counsel’s performance was so unreasonable that it falls below the minimum standard of competence required by the Sixth Amendment. The burden is on the movant to establish that counsel made such serious errors that counsel’s representation fell “outside the wide range of professionally competent assistance” and that the defendant therefore lacked the assistance of counsel contemplated by the Constitution. Id. at 690.

Sirota has not overcome the strong presumption to the contrary and has not established that counsel’s opinion regarding the admissibility of the therapist’s testimony fell outside the wide range of reasonably competent assistance. At best, he can show that counsel’s opinion proved mistaken, not that he was unconstitutionally denied the assistance of counsel.

As to his allegation that counsel led him-to believe that refusal to admit the therapist’s testimony would be reversible error, to establish Strickland prejudice, a movant must show a reasonable probability that the outcome of the proceeding would differ. The focus of the prejudice inquiry is on the outcome of the trial, not on the possibility for reversal on appeal. See Carratelli v. State, 961 So.2d 312, 322 (Fla.2007). Here, we find no reasonable probability that the outcome of the trial would have differed even if the trial court had admitted the therapist’s testimony. Sirota’s alleged reliance on the possibility of receiving a new trial on appeal is too speculative. He is not entitled to an evi-dentiary hearing on this aspect of his claim.

This court has refused to extend the holding of Morgan which recognizes the sufficiency of specifically-pleaded claims that counsel performed deficiently in (1) advising a defendant to reject a plea offer, (2) misadvising the defendant about the maximum penalty faced, or (3) failing to convey a plea offer. Hurt, 82 So.3d at 1092-93. Sirota’s allegation regarding counsel’s advice about the admissibility of testimony from his therapist does not allege one of the types of claims recognized in Morgan. Sirota does not allege that his attorney advised him to reject the offer. Unlike the situation in Cooper, nothing in this record suggests that Sirota was willing to accept the plea offer, but was convinced not to do so by bad advice from counsel.

The motion, however, also alleged that counsel misadvised him that the maximum penalty he faced after trial was only 3.5 years. Sirota was actually facing a far greater penalty and received five years in prison followed by ten years of probation once he was convicted after trial. The State did not identify anything in the record to refute this allegation. Accepting this sworn factual representation as true, as we must in this posture, this aspect of the claim appears sufficient under Morgan. We are bound to remand for further proceedings.

However, the recent decisions in Cooper and Frye have changed the Sixth Amendment analysis that applies on remand. We perceive the Florida Supreme Court’s decisions in Morgan and Cottle to be based solely on an interpretation of the requirements of the Sixth Amendment to the Constitution of the United States. The Supreme Court of the United States has now clarified that to establish Strickland prejudice as to this type of claim, the movant must prove that the prosecutor would not have withdrawn the offer and that the agreement would have been accepted by the court. Frye, — U.S. -, 132 S.Ct. at 1410. We believe that Cottle ’s holding to the contrary has been overruled. Although we are bound to follow Morgan, the recent United States Supreme Court decisions have called its holding into question.

In Strickland, the Court cautioned against allowing criminal cases to routinely be followed by a “second trial” of counsel’s performance. 466 U.S. at 690, 104 S.Ct. 2052. We do not believe that evidentiary hearings should be held regarding every allegation that an attorney gave bad advice regarding an alleged plea offer. The circumstances surrounding the timing and substance of offers, and the reasons for counsel’s advice and for a prosecutor extending the offer, will likely be present in infinite variety. Criminal defense attorneys, and prosecutors, should not be routinely haled into court for postconviction hearings to reconstruct the circumstances under which a plea offer was made and the reasons why the alleged advice was given.

The burden remains on the mov-ant to allege circumstances to establish a sufficient claim, and the bar for asserting a claim sufficient to require an evidentiary hearing has been set high. We agree with federal courts that, to establish a prima facie ease for an evidentiary hearing as to these types of claims, the defendant’s statement that he or she would have accepted the offer is not alone enough. The movant has the burden of establishing a prima facie case for an evidentiary hearing.

Prima facie evidence may include a petitioner’s own statement, as was offered here; however, in order for the statement to be sufficiently credible to justify a full hearing, it must be accompanied by some “objective evidence,” such as a significant sentencing disparity, that supports an inference that the petitioner would have accepted the proposed plea offer if properly advised.

Raysor v. U.S., 647 F.3d 491, 495 (2d Cir.2011) (citing Puglisi v. U.S., 586 F.3d 209, 215-16 (2d Cir.2009)).

Both Cooper and Frye involved “formal plea offers” which could be independently verified from the record. Courts could guard against frivolous or fabricated claims regarding allegedly lost plea offers by limiting evidentiary hearings to situations involving “formal plea offers,” that is, where the offer was made in writing or on the record in open court.

We make one final observation regarding proceedings on these types of claims. Hindsight, as they say, is 20-20. We suspect that many postconviction motions seeking to accept lost plea offers will be motivated, at least in part, by the benefit of hindsight. Having gambled on the possibility of acquittal at trial or that a better offer might be forthcoming, and now knowing the outcome and that the sentence turned out to be more harsh, the defendant will have great incentive to seek to resurrect and accept a lost offer and little disincentive from attempting to do so. Just as an attorney’s performance should not be distorted by the lens of hindsight, a court considering allegations that a defendant would have accepted a lost plea offer should make every effort to consider the totality of the circumstances as they existed to the defendant at the time of the offer.

We certify the following question of great public importance to the Florida Supreme Court:

DO THE DECISIONS IN LAFLER V. COOPER, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), AND MISSOURI V. FRYE, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), WHICH ESTABLISH THE MINIMUM REQUIREMENTS OF THE SIXTH AMENDMENT, SUPERSEDE THE DECISIONS IN MORGAN V. STATE, 991 So.2d 835 (Fla.2008), AND COTTLE V. STATE, 733 So.2d 963, 969 (Fla.1999), AS TO THE PLEADING REQUIREMENTS AND REMEDY FOR AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM REGARDING A LOST PLEA OFFER? IF SO, ARE EVIDENTIARY HEARINGS ON SUCH CLAIMS LIMITED TO CIRCUMSTANCES INVOLVING “FORMAL PLEA OFFERS,” THAT IS, VERIFIABLE OFFERS THAT ARE EITHER IN WRITING OR MADE ON THE RECORD IN OPEN COURT?

Affirmed in part, reversed in part and remanded for further proceedings. Question certified.

MAY, C.J., STEVENSON and TAYLOR, JJ., concur.

      . Appellant in his reply brief asks that this court grant him leave to amend his motion to add support to one of his claims with alleged newly-discovered evidence. Appellant's claim of newly-discovered evidence was not raised in the court below and is not properly before this court on appeal. Appellant is not precluded by this decision from filing a postcon-viction motion asserting that the alleged newly-discovered evidence provides an exception to the time limitation. Fla. R.Crim. P. 3.850(b)(1). We express no opinion as to the merits of such a claim.


text:
    Julio HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1217.
    District Court of Appeal of Florida, Third District.
    July 18, 2012.
    Rehearing Denied Sept. 6, 2012.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    Thomas E. SHARP, Appellant, v. Luis E. BARRETO, Appellee.
    No. 3D11-1382.
    District Court of Appeal of Florida, Third District.
    July 18, 2012.
    Rehearing Denied Aug. 28, 2012.

      Shutts & Bowen and William Jay Palmer, for appellant.
    Billbrough & Marks and G. Bart Billb-rough, for appellee.
    Before SHEPHERD and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See In re Estate of Paris, 699 So.2d 301 (Fla. 2d DCA 1997) (Stockman requirement is inapplicable to attorney’s fee claims in probate proceeding); Levine v. Keaster, 862 So.2d 876 (Fla. 4th DCA 2003) (appellant must identify the particular allegedly erroneous items of challenged attorney’s fees award).


text:
    Franciousha RIGELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2509.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 7, 2012.
    Franciousha Rigell, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence. He claims that the trial court did not pronounce habitual offender status for him when it corrected a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) during the pendency of his original appeal of his conviction and sentence. He cites to State v. Collins, 985 So.2d 985 (Fla.2008), as support, but that case deals with resentencing after a reversal of the defendant’s sentencing. In this case the court was merely correcting the sentence by deleting appellant’s prison re-leasee reoffender sentence on the authority of Adams v. State, 750 So.2d 659 (Fla. 4th DCA 1999), vacated, State v. Adams, 786 So.2d 1168 (Fla.2001). Because this was a ministerial act, and not a complete resentencing, he was not entitled to reconsideration of his entire sentence.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Lorrence S. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2919.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 7, 2012.

      Lorrence S. Butler, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Dunbar v. State, 89 So.3d 901 (Fla.2012).

POLEN, STEVENSON and LEVINE, JJ., concur.


text:
    Oliver BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1633.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 7, 2012.
    Oliver Brown, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant is cautioned against the filing of future motions, petitions or appeals in this court which raise the same sentencing challenges as presented here, in that some of the claims were raised and rejected in previous motions and appeals. Such future attempts will result in referral to the appropriate institution for consideration of disciplinary sanctions which may include forfeiture of gain time, see § 944.279(1), Fla. Stat. (2011), and issuance of an order to show cause why further sanctions barring pro se filings should not also be instituted under State v. Spencer, 751 So.2d 47, 48-19 (Fla.1999).

POLEN, CIKLIN and LEVINE, JJ., concur.


text:
    Jamie William GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-876.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 7, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jamie Gordon appeals his conviction for armed robbery of the First Peoples Bank in Vero Beach. He asserts that the trial court erred by not suppressing the confession he made to law enforcement officials arguing that he confessed because of a promise to prosecute him in federal court only. We find no error in the trial court’s conclusion that no such promise was made and that even if one were made, Gordon’s confession was not involuntary based on the totality of the circumstances. We write specifically to commend the trial court’s analysis contained in its thirteen-page order denying Gordon’s motion to suppress.

Affirmed.

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

      . We also find Gordon's second argument regarding the legality of his violent career criminal designation to be without merit.


author: MAY, C.J.

text:
    STATE of Florida, Appellant, v. Marvin ARRINGTON, Appellee.
    No. 4D11-2876.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Scott D. Makar, Solicitor General, Ronald A. Lathan, Deputy Solicitor General and John J. Bajger, Assistant Attorney General, Tallahassee, for appellant.
    Jason T. Forman of Law Office of Jason T. Forman, P.A., Fort Lauderdale, for ap-pellee.
   MAY, C.J.

When is running a red light not the same as running a red light? The answer: when the violation is captured by a red light camera instead of a law enforcement officer. This distinction is one with a difference. Section 316.075, Florida Statutes (2010) is constitutional and does .not violate the Equal Protection Clause of either the United States or Florida Constitutions. We reverse the trial court order finding the statute unconstitutional.

When law enforcement observed the driver proceed through a red light, the officer issued a citation for a violation of section 316.075. The citation resulted in a $158 fine and four points added to the driver’s license. The defendant challenged the constitutionality of section 316.075 by filing a motion to dismiss. The defendant argued that section 316.075 “creates inequitable classes because it only applies to those individuals who are alleged to have violated the statute, and the violation was observed by a law enforcement officer.”

The trial court held that the statute violates both the federal and Florida Equal Protection Clauses and offered the following rationale:

Although [section] 316.0083[, Florida Statutes (2010) ] prohibits the exact conduct as [section] 316.075, a driver who is observed by an officer committing the violation (in the traditional manner) is subjected to more severe penalties and ramifications than a driver who is fortunate enough to have committed the infraction at a “red light camera” intersection.

The trial court concluded that continued enforcement of section 316.0083 renders section 316.075 unconstitutional by treating citizens differently, depending upon whether the red light violation is caught by law enforcement or a red light camera.

The State has timely appealed the order.

The State argues that the trial court erred in declaring section 316.075 unconstitutional because sections 316.075 and 316.0083 do not apply to similarly-situated people. Therefore, -the differing penalties do not violate equal protection principles. The defendant continues to argue that the two statutes apply to similarly-situated people, and enforcement of section 316.0083 renders section 316.075 unconstitutional.

We have de novo review. Crist v. Fla. Ass’n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 139 (Fla.2008).

“[S]tatutes come clothed with a presumption of constitutionality.” Id. “ ‘To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law.’ ” Id. (quoting Franklin v. State, 887 So.2d 1063, 1073 (Fla.2004)).

“An equal protection analysis is appropriate only if similarly situated individuals are treated differently.” Fredman v. Fredman, 960 So.2d 52, 59 (Fla. 2d DCA 2007). “Equal protection is not violated merely because some persons are treated differently than other persons.” Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000). The test to determine if a statute satisfies the Equal Protection Clause is “whether it rests on some difference bearing a reasonable relation to the object of the legislation.” Soverino v. State, 356 So.2d 269, 271 (Fla.1978).

In a similar context, the United States District Court for the District of Columbia upheld the constitutionality of a speeding law in Dixon v. District of Columbia, 753 F.Supp.2d 6 (D.D.C.2010). There, two individuals challenged the District’s “practice of arresting motorists caught driving at speeds in excess of 30 mph over the speed limit by a [Metropolitan Police Department] officer, while merely issuing a civil fine to those caught driving at such speeds by the [Automated Traffic Enforcement] system.” Dixon, 753 F.Supp.2d at 8.

The challengers alleged that the District’s two different means of penalizing those who drive over the speed limit violated the Equal Protection Clause of the Fifth Amendment. Id. The District argued that the complaint failed to state an equal protection claim because the two individuals were not similarly situated. Id. at 9. The District Court agreed and dismissed the complaint. Id.

The District Court explained:

Like other drivers who are seen by a [police] officer driving at speeds more than 30 mph over the speed limit, plaintiffs can be arrested within the bounds of the Fourth Amendment, as the arresting officer has probable cause to believe that the driver committed a crime. By contrast, when a vehicle is photographed for traveling 30 mph over the speed limit, there is no probable cause to believe that the owner of that vehicle was driving and therefore committed a crime, because there is no additional evidence that the owner was in fact the driver.

Id. (citation omitted).

Section 316.075 provides that “[vehicular traffic facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until a green indication is shown ....” § 316.075(1)(e)1, Fla. Stat. (2010). “A violation of [section 316.075] is a noncriminal traffic infraction....” § 316.075(4), Fla. Stat. (2010).

Section 316.0083 also imposes a penalty for failure to stop at a red light. Subsection (1)(b)1.a provides:

[w]ithin 30 days after a violation, notification must be sent to the registered owner of the motor vehicle involved in the violation ... and ... the violator must pay the penalty of $158 to the department, county, or municipality, or furnish an affidavit ... within 30 days following the date of the notification in order to avoid court fees, costs, and the issuance of a traffic citation.

§ 316.0083(1)(b)1.a, Fla. Stat. (2010) (emphasis added). Subsection (1)(b)1.b establishes a rebuttable presumption that the person operating the vehicle is its owner. § 316.0083(1)(b)1.b, Fla. Stat. (2010). That presumption may be overcome through any of the means enumerated in subsections (d)1.a.-d. §§ 316.0083(1)(d)1.a.-d. (2010). A vehicle-owner does not receive any points on his license for a violation of section 316.0083.

Under Dixon, individuals cited for red light violations under section 316.075 are not similarly situated to those who are cited for red light violations under section 316.0083. Even if the individuals were similarly situated, section 316.075 is not unconstitutional because there is a rational basis for not issuing points on the licenses of those in violation of section 316.0083.

Pursuant to section 316.075, a law enforcement officer has to observe the violation, who then tickets the “driver” of the car. However, under section 316.0083, because no one observes the driver, the “owner” of the car is sent a notice. The statute then provides a rebuttable presumption that the “owner” was driving, and allows the “owner” to rebut that presumption. For this reason, no points are assessed against the “owner” because someone else may have been driving the car.

As the State argues,

Points are personal — they apply to the licenses of people [who] violate traffic laws; they are not assessed against the vehicles involved in the violations. Due to section 316.0083’s focus on a vehicle’s “owner,” rather than the actual “driver,” it was rational for the legislature to exclude the imposition of additional points on the owner’s license.

Because points are “personal,” it would not be reasonable for the legislature to impose them based on a red light violation captured by a camera as there is no law enforcement officer present to determine who actually operated the vehicle. There is therefore a rational basis for the differing penalties between the two statutory provisions.

Section 316.075 is not unconstitutional because of the enforceability of section 316.0083. The order is reversed and the case is remanded for the court to vacate the order and proceed in accordance with this opinion.

Reversed and Remanded.

TAYLOR and CIKLIN, JJ., concur.