author: WALLACE, Judge.

text:
    Robert L. ARMIGER, Appellant, v. ASSOCIATED OUTDOOR CLUBS, INC., and Clean Sweep Supply Company, Appellees.
    No. 2D09-3983.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2010.
    Rehearing Denied Dec. 7, 2010.

      Laura Whitmore of Gunn Law Group, Tampa, and Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellant.
    Martin T. Buckley, Joseph S. Justice, and Laurette A. Balinsky of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for Appellee Associated Outdoor Clubs, Inc.
    No appearance for Appellee Clean Sweep Supply Company.
   WALLACE, Judge.

Robert L. Armiger appeals from a final summary judgment entered in favor of Associated Outdoor Clubs, Inc., after the circuit court denied his motion to file a second amended complaint. Mr. Armiger sued Associated and Clean Sweep Supply Company after he slipped and fell in the grandstand of a greyhound track operated by Associated. Clean Sweep had contracted with Associated to clean and maintain the areas of the facility — including the grandstand — that were open to the public during racing performances.

The circuit court concluded that Mr. Ar-miger’s first amended complaint failed to state a cause of action against Associated for a breach of its nondelegable duty to maintain its premises in a reasonably safe condition because Mr. Armiger had not specifically alleged either the breach of a nondelegable duty by Associated or a basis to impose vicarious liability on Associated for the actions of Clean Sweep. Finding no basis for a claim against Associated for “active negligence,” the circuit court ruled that Associated was entitled to a final summary judgment on Mr. Armiger’s claims against it. In a related ruling, the circuit court denied Mr. Armiger’s motion to amend his complaint to specifically allege the breach of a nondelegable duty by Associated. The circuit court reasoned that the proposed amendment would be futile because the statute of limitations on Mr. Armiger’s claims had run and the proposed amendment would not relate back to the original pleading.

We disagree with the circuit court’s legal conclusions and find error in both of its rulings. Accordingly, we reverse the final summary judgment in favor of Associated and the order denying Mr. Armiger’s motion for leave to amend his complaint.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 2004, Mr. Armiger filed an action against Associated. In his initial complaint, Mr. Armiger alleged that on November 5, 2008, he was injured after he slipped and fell in a puddle of liquid in the grandstand of the Tampa Greyhound Track. Mr. Armiger alleged that Associated owned and operated the track. The initial complaint asserted the following three counts against Associated: Count I, negligent maintenance; Count II, negligent failure to warn; and Count III, negligent mode of operation.

Count I of the initial complaint included the following allegations: (1) Associated was negligent and had breached its duty to maintain the premises in a reasonably safe condition, (2) the puddle of liquid was a dangerous condition and had been present for a sufficient amount of time for Associated to have learned of it, (3) Associated had failed to ensure that the grandstand area was free of standing water, (4) Associated had permitted a slippery surface to remain in the grandstand area, and (5) Associated had failed to timely inspect and clean the grandstand area.

In its answer to the complaint, Associated admitted that it operated the track and had a duty to maintain its business premises in a reasonably safe condition in accordance with the applicable statute. Associated generally denied the remaining allegations of the complaint and raised various affirmative defenses.

In March 2005, Mr. Armiger filed his first amended complaint, adding Clean Sweep — the cleaning contractor — as a party defendant. In the first amended complaint, Mr. Armiger alleged that Associated had “employed” Clean Sweep “for the purpose of cleaning and maintaining the premises” at the track. Otherwise, the allegations against Associated remained essentially the same as the allegations in the initial complaint. But in the first amended complaint, Mr. Armiger added three counts against Clean Sweep that contained allegations of negligence similar to the allegations of the first three counts against Associated.

In September 2006, more than two years after Mr. Armiger brought the action, Associated filed a motion for final summary judgment. In its motion, Associated claimed that there was no dispute as to any issue of material fact and that it had fully satisfied its duty of reasonable care to Mr. Armiger. Associated argued that its delegation to Clean Sweep of the duty to maintain the track constituted “reasonable efforts on the part of Associated to maintain its premises in a reasonably safe condition.” Associated contended further that by delegating the maintenance responsibilities at the track to Clean Sweep, it had fully satisfied its duties to business invitees such as Mr. Armiger.

In a fallback position, Associated argued that if it had any liability to Mr. Armiger at all, that liability could only be based on vicarious liability “for Clean Sweep’s negligence due to the non-delegable duty doctrine.” Associated concluded by requesting that if the circuit court ruled that Associated had a nondelegable duty, it should “enter a partial summary judgment finding that Associated is solely vicariously liable, if liable at all, to [Mr. Armiger] for the negligence of Clean Sweep.”

In December 2007, the circuit court held a hearing on Associated’s motion for summary judgment. During the hearing on the motion, Mr. Armiger made an oral motion to amend the complaint to specifically allege that Associated had a nondele-gable duty to maintain its premises in a reasonably safe condition. In a ruling that was not reduced to a written order, the circuit court denied Mr. Armiger’s request to amend.

After the hearing, the circuit court entered an order granting a partial summary judgment “as to any active negligence claims” against Associated but denying Associated’s motion for summary judgment without prejudice “as to all vicarious and derivative claims of liability.” On the latter issue, the circuit court “reserve[d] ruling pending further argument of the parties as to whether Associated Outdoor Clubs, Inc., can be held vicariously or derivatively liable for the alleged actions and/or omissions of Clean Sweep.” In its order, the circuit court also ruled that “[t]he only potential claims which remain against ... Associated Outdoor Clubs, Inc., are claims based on derivative or vicarious liability.”

In April 2008, after the statute of limitations on his claims had expired, Mr. Armi-ger filed a motion for leave to file a second amended complaint. Mr. Armiger’s proposed second amended complaint alleged a single count against Associated for “breach of nondelegable duties.” In the proposed second amended complaint, Mr. Armiger alleged (1) that Associated had a nondele-gable duty to maintain the premises in a reasonably safe condition; (2) that the alleged dangerous condition had been in existence for enough time such that Associated, through its agents and/or contractors, knew or should have known of it; (3) and that Associated had breached its nondele-gable duty by failing to ensure the area was dry and free of standing water, by allowing the area to exist with a slippery surface, by failing to timely inspect and clean the area, and by failing to warn of the liquid on the ground. The second count of the complaint asserted negligence against Clean Sweep for the same alleged breaches of duty.

After a hearing, the circuit court denied Mr. Armiger’s motion for leave to file a second amended complaint. Associated then renewed its motion for summary judgment, and the circuit court granted final summary judgment in Associated’s favor on all of Mr. Armiger’s claims against it. This appeal followed.

II. STANDARD OF REVIEW

A. Motion to Amend a Complaint

This court’s review of a trial court’s ruling granting or refusing a motion to amend a complaint is for abuse of discretion. See Mathis v. Coats, 24 So.3d 1284, 1289 (Fla. 2d DCA 2010). “It is an abuse of discretion to disallow amendment of a pleading unless it clearly appears the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Colandrea v. King, 661 So.2d 1250, 1251 (Fla. 2d DCA 1995). But we review de novo the question of whether a proposed amended complaint is sufficient to state a cause of action. See Vaughn v. Boerckel, 20 So.3d 443, 445 (Fla. 4th DCA 2009).

B. Summary Judgment

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

III. DISCUSSION

A. Introduction

The circuit court’s rulings denying Mr. Armiger’s motion to amend his complaint and granting a final summary judgment in favor of Associated are closely related. Indeed, the final summary judgment — like the denial of the motion to amend — is essentially a decision on the sufficiency of Mr. Armiger’s pleadings. Both rulings resulted from a particular argument made by Associated that led the circuit court into error.

Associated argued — incorrectly but persuasively — that a claim based on the breach of a nondelegable duty is a separate and distinct cause of action from a cause of action based on what it termed “active” or “direct” negligence. Based on Associated’s argument, the circuit court denied Mr. Armiger’s motion to amend on the theory that the proposed amendment alleging the breach of a nondelegable duty would add a new cause of action that would not relate back to the commencement of the action. The amendment would be “futile” because the statute of limitations on the claim had already run. The circuit court’s second ruling — the entry of a final summary judgment in favor of Associated — was based on the same argument. The first amended complaint pleaded a claim for “active” negligence only, and it was too late to amend to plead a “new” cause of action based on the “separate” theory of breach of a non-delegable duty. In short, Mr. Armiger’s routine slip and fall claim became entangled in the lawyers’ arguments about the pleadings.

In the discussion that follows, we will attempt to unravel these arguments. To do so, we first consider the circuit court’s ruling denying Mr. Armiger’s motion to amend. Then we examine the partial and final summary judgments entered in favor of Associated.

B. The Proposed Amendment and the Relation Back Doctrine

Florida Rule of Civil Procedure 1.190(a) provides, in pertinent part, that “[l]eave of court [to amend pleadings] shall be given freely when justice so requires.” In accordance with the rule, the Florida courts follow a liberal policy with regard to the amendment of pleadings so that claims may be determined on their merits. See Burr v. Norris, 667 So.2d 424, 426 (Fla. 2d DCA 1996) (finding that the trial court’s denial of the plaintiffs motion to amend “was an abuse of discretion in light of Florida’s liberal policy of allowing amendments to pleadings”); see also Dausman v. Hillsborough Area Reg’l Transit, 898 So.2d 213, 215 (Fla. 2d DCA 2005) (“Leave to amend should be freely given, the more so ... when the amendment is based on the same conduct, transaction[,] and occurrence upon which the original claim was brought.” (first alteration in original) (quoting Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 687 So.2d 968, 970 (Fla. 5th DCA 1994))). “A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment.” Dausman, 898 So.2d at 215 (quoting Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422 (Fla. 5th DCA 2003)).

Rule 1.190(c) addresses when an amended pleading will relate back to an earlier pleading as follows: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Under this rule, as long as the claims alleged in an amended pleading arise from the “conduct, transaction, or occurrence” alleged in an earlier pleading that was timely filed, the expiration of the statute of limitations in the interim will not bar the claims asserted in the amended pleading. See Flores v. Riscomp Indus., Inc., 35 So.3d 146, 147 (Fla. 3d DCA 2010) (“To survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations.”).

This court has stated the test of whether an amended pleading relates back to an earlier pleading as follows:

[T]he proper test of relation back of amendments is not whether the cause of action stated in the amended pleading is identical to that stated in the original (for in the strict sense almost any amendment may be said to be a change of the original cause of action), but whether the pleading as amended is based upon the same specific conduct, transaction, or occurrence between the parties upon which the plaintiff tried to enforce his original claim. If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back — even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought.

Keel v. Brown, 162 So.2d 321, 323 (Fla. 2d DCA 1964), overruled on other grounds by Broward Builders Exch., Inc. v. Goehring, 231 So.2d 513 (Fla.1970); see also Scarfone v. Marin, 442 So.2d 282, 283 (Fla. 2d DCA 1983) (citing Keel); Flores, 35 So.3d at 148 (“We have articulated the test to be whether ‘the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.’ ” (quoting Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989))). Also, “[t]he [relation back] doctrine is to be applied liberally to achieve its salutary ends.” Flores, 35 So.3d at 148 (citing C.H. v. Whitney, 987 So.2d 96, 99 (Fla. 5th DCA 2008)).

In this case, the circuit court did not explain in its written order the basis for its ruling denying Mr. Armiger’s motion for leave to file a second amended complaint. However, when the circuit judge announced her ruling at the conclusion of the hearing on the motion, she agreed with Associated’s argument that a claim based on an owner’s breach of a nondelegable duty was a separate cause of action that would not relate back to the filing of the first amended complaint:

I’ve had a chance to review the [first] amended complaint that was previously-filed in this case, and the [first] amended complaint does not state a cause of action for non-delegable duty or for vicarious liability as to Associated Out-Door Clubs.
There is a claim for negligent maintenance against ... Associated Out-Door, that’s a direct claim for negligence. There’s a count for negligent failure to warn against ... Associated Out-Door Clubs. Again it’s pled as a claim of active negligence against Associated Out-Door Clubs.
Then there’s count three, a claim for negligent mode of operation, against ... Associated Out-Door Clubs, which is also a claim of active negligence....
The remaining counts all relate to Clean Sweep Supply. It appears that no vicarious liability claim was pled in the prior complaint against Associated Ouh-Door Clubs, but only claims of direct negligence ... which I’ve already granted summary judgment on.
Because of that I do think to allow you to now come back and plead a claim for non-delegable duty, asserting [a] cause of action for vicarious liability ... when the statute of limitations has expired would be a futile act because it doesn’t relate back to the prior complaints because you have, in fact, alleged a separate cause of action ....

(Emphasis added.)

In our review of the circuit court’s ruling, we may eliminate prejudice to Associated and abuse of the privilege to amend by Mr. Armiger as grounds for the denial of the motion to amend. The circuit court did not base its ruling on either of these grounds, and there is no support for them in the record. Instead, the circuit court denied the motion based on its conclusion that the proposed amendment “would be a futile act because it doesn’t relate back.”

Initially, we note that whether a proposed amendment is futile presents a different question from whether the proposed amendment would relate back to an earlier pleading. “A proposed amendment is futile if it is insufficiently pled, [Thompson v. Bank of N.Y., 862 So.2d 768, 770 (Fla. 4th DCA 2008) ], or is ‘insufficient as a matter of law.’ ” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 888, 885 (Fla. 4th DCA 2009) (quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.1999)). Here, the legal sufficiency of Mr. Armiger’s proposed second amended complaint as a pleading matter was not in question. Instead, the circuit court based its determination that the proposed amendment would be “futile” on Associated’s argument that a claim for the breach of a nondelegable duty is a separate and distinct claim that must be pleaded as a separate cause of action from a claim based on “active” or “direct” negligence. In Associated’s view, Mr. Armiger could not be permitted to amend his complaint after the applicable statute of limitations had run because a claim based on the breach of a nondelegable duty would be a new claim that would not relate back to either of the earlier, timely filed complaints. In effect, Associated maintained that the proposed second amended complaint was insufficient as a matter of law because the “new” claim asserted against Associated in the proposed pleading was barred by the statute of limitations.

Applying the test articulated in our earlier Keel decision to the proposed second amended complaint, we note that the proposed complaint did not introduce any new parties into the litigation. Both the first amended complaint and the proposed complaint alleged that Associated had a duty to keep its business premises in a reasonably safe condition, that it had breached that duty, and that Mr. Armiger had been injured as a result. Also, both complaints alleged that the slip and fall was caused by a puddle of liquid on the grandstand floor, that there were no warning signs near the spill, and that Associated had failed to timely inspect and clean the affected area. Unquestionably, the claims alleged in the proposed second amended complaint are based upon the same specific conduct, transaction, or occurrence between the parties as the claims alleged in the first amended complaint. Thus the proposed second amended complaint satisfied the test for relation back to the earlier pleading, and the circuit court erred in ruling to the contrary.

We discern only two significant differences between the first amended complaint and the proposed second amended complaint. First, the second amended complaint consolidates the claims pleaded against Associated into one count instead of the three counts pleaded in the first amended complaint. Second, the second amended complaint explicitly alleges a breach by Associated of a nondelegable duty to keep its business premises in a reasonably safe condition. Although the first amended complaint does not plainly state the breach of such a duty, the applicability of the doctrine of nondelegable duty under the facts alleged is apparent. Moreover, even if one assumes that the addition of language explicitly alleging a breach of a nondelegable duty amounted to a new cause of action, the proposed second amended complaint would still have related back to the earlier pleading. See C.H. v. Whitney, 987 So.2d 96, 99 (Fla. 5th DCA 2008) (holding that a change of the basis of a cause of action from wrongful life to wrongful death did not alter the essential basis of a claim that was grounded ’ on allegations of medical malpractice); Turner v. Trade-Mor, Inc., 252 So.2d 383, 384 (Fla. 4th DCA 1971) (“The test of whether an amendment ... sets forth a ‘new cause of action’ is not whether the cause of action stated in the amended pleading is identical to that stated in the original. Rather, the test is whether the pleading as amended is based upon the same specific conduct, transaction^] or occurrence between the parties upon which the plaintiff tried to enforce his original claim.”).

In support of its argument against the applicability of the relation back doctrine to the proposed second amended complaint, Associated relies primarily on the following three cases: Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990); Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla.1985); and General Asphalt Co. v. Bob’s Barricades, Inc., 22 So.3d 697 (Fla. 3d DCA 2009). We find these cases to be inapposite.

In the Goldschmidt and General Asphalt cases, the proposed amendments were not permitted because the proceedings in those cases had progressed to a point at which the proposed amendments were inappropriate for reasons unrelated to the relation back doctrine. Goldschmidt 571 So.2d at 424; General Asphalt, 22 So.3d at 699. And in Tamiami Trail Tours, our supreme court held that the defense had been sandbagged by the plaintiffs’ attempt to have the jury instructed on vicarious liability “at the charge conference after all the evidence had been entered.” 463 So.2d at 1128. But the court added that “[n]o motion was ever made to conform the pleadings to the evidence, nor were the pleadings ever amended to include this theory.” Id. Thus the court strongly implied that if the plaintiffs had timely moved to amend their complaint to allege- this cause of action, the jury would have been allowed to consider whether the defendant was liable for its employee’s tortious acts. It follows that the cases cited by Associated do not support affirmance of the circuit court’s ruling denying Mr. Armiger’s motion for leave to file the proposed second amended complaint.

For these reasons, the proposed second amended complaint would have related back to the “conduct, transaction, or occurrence” described in the timely filed first amended complaint. Mr. Armiger had not abused the privilege to amend, and the proposed amendment would not have prejudiced Associated. It follows that the proposed amendment was neither “futile” nor otherwise inappropriate. Accordingly, the circuit court abused its discretion in denying Mr. Armiger’s motion for leave to file his second amended complaint. Having reached this conclusion, we question whether a further amendment to the first amended complaint was even necessary, an issue that we address in our discussion of the entry of the final summary judgment in favor of Associated.

C. The Entry of the Final Summary Judgment

Mr. Armiger’s motion for leave to file a second amended complaint was precipitated by the circuit court’s entry of the partial summary judgment. In the order granting the partial summary judgment, the circuit court did not make any findings or review the applicable law. Instead, the circuit court simply granted Associated’s motion for summary judgment “as to any and all claims of active negligence on the part of Associated.” The circuit court also denied the motion without prejudice “as to all vicarious and derivative claims of liability.” Finally, the circuit court reserved ruling on the issue of whether Associated could “be held vicariously or derivatively liable for the alleged actions and/or omissions of Clean Sweep.”

Because the circuit court did not explain in its order the basis for the entry of the partial summary judgment, we look to Associated’s motion to understand the rationale underlying the circuit court’s ruling. In its motion, Associated summarized the allegations of Mr. Armiger’s second amended complaint. Associated then noted — correctly—that the law imposes a nondelegable duty upon the owners of business premises to maintain their premises in a reasonably safe condition and that a business owner may not escape that duty by hiring an employee or an independent contractor to perform the nondelegable duty. Then, inexplicably, Associated asserted that “[t]he agreement with Clean Sweep constitutes a delegation of maintenance duties by Associated to Clean Sweep and, as such, constitutes reasonable efforts on the part of Associated to maintain its premises in a reasonably safe condition.” In other words, Associated claimed that it had satisfied its nondelegable duty by delegating it to Clean Sweep. Associated concluded by arguing that it was not guilty of “active” negligence and therefore could only be held vicariously liable, if at all, for the negligence of Clean Sweep.

Associated’s arguments in its motion led not only to the entry of the partial summary judgment but also to the question of whether the first amended complaint properly alleged a claim based on the breach of a nondelegable duty or for the breach of vicarious liability. As we have seen, Associated persuaded the circuit court that the first amended complaint did not plead such claims and that further amendment would be “futile” because the proposed amendment would not relate back. The denial of Mr. Armiger’s motion for leave to file the proposed second amended complaint — together with the partial summary judgment — apparently left Mr. Armiger with no viable claims against anyone other than Clean Sweep. At that point, the entry of the final summary judgment in favor of Associated became inevitable.

Once again, Associated’s oft-repeated notion that a cause of action for the breach of a nondelegable duty is a separate and distinct cause of action from an action based on “active” or “direct” negligence led the circuit court into error. Thus we begin our discussion of why the circuit court erred in entering the final summary judgment in favor of Associated by discussing the basis for a cause of action for the breach of a nondelegable duty.

The concepts of nondelegable duty and vicarious liability are frequently confused and conflated. Although the two concepts are related, a cause of action for the breach of a nondelegable duty and a cause of action for vicarious liability have different legal rationales. Unlike liability based on the breach of a nondelegable duty, vicarious liability is an indirect liability. For example, an employer is burdened with the liability resulting from the negligence of its employees; i.e., the employee’s liability is imputed to the employer. See Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 467 (Fla.2005) (citing Restatement (Third) of Torts: Apportionment of Liability § 13 (2000)). “The vicariously liable party has not breached any duty to the plaintiff; its liability is based solely on the legal imputation of responsibility for another party’s tortious acts.” Id. at 468. But liability for the breach of a nondelegable duty arises from direct — instead of imputed — liability. See Goldin v. Lipkind, 49 So.2d 539, 541 (Fla.1950) (“The duty of maintaining safe premises ... cannot be delegated to another.”); U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So.2d 268, 270 (Fla. 3d DCA 1995) (holding that a business owner’s duty to provide its business invitees with reasonably safe premises “is a non-delegable duty which it cannot contract out of by hiring an independent contractor”).

The idea of liability for the breach of a nondelegable duty as a direct liability — as distinct from indirect, vicarious liability— has been explained as follows:

[T]he establishment of liability under a nondelegable duty does not give rise to vicarious liability. Under vicarious liability, one person, although entirely innocent of any wrongdoing and without regard to duty, is nonetheless held responsible for harm caused by the wrongful act of another.... We reject any coupling of the concept of vicarious liability and nondelegable duty.
The liability for a nondelegable duty that we impose directly upon the employer of an independent contractor is grounded in a special public policy to protect third persons in an area of inherent danger and to encourage conscientious adherence to standards of safety where injury likely will result in the absence of precautions. The test of liability is the presence or absence of reasonable precautions; and direct liability is not dependent upon any apportionment to an employer of his or her concurrent negligence in failure to ensure that an independent contractor takes necessary precautions.

Saiz v. Belen Sch. Dist., 113 N.M. 387, 827 P.2d 102, 114-15 (1992); see also Kirkland v. City of Gainesville, 122 Fla. 765, 166 So. 460, 464 (1936) (stating that under the applicable statute, “[t]he legal duty of the city was to exercise care to maintain the poles of its system in a reasonably safe condition for all who had duties to perform on the poles; and this duty could not be so delegated as to relieve the city of liability for negligence in maintaining the pole in the service for which it was used”).

Therefore, when a business owner is subject to a nondelegable duty, the potential responsibility of an independent contractor is not relevant to the analysis of the business owner’s liability. Of course, this is not to say that an owner of a business that invites members of the pub-lie onto its business premises may not hire an independent contractor to perform tasks that the owner has a nondelegable duty to third parties to perform. But the owner may not contract away his or her legal responsibility for the proper performance of the nondelegable duty. U.S. Sec. Servs. Corp., 665 So.2d at 270; Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980) (“ ‘Nondelegable’ applies to the liabilities arising from the delegated duties if breached.”). Stated differently, a system of vicarious liability assigns legal liability to a party who is blameless in fact based on the tortious acts of another. But under a system where a party is subject to a nondelegable duty, the party subject to the nondelegable duty is directly liable for the breach of that duty, and the assignment of liability based on the tortious acts of another is not a consideration.

We recognize that liability for the breach of a nondelegable duty is often discussed and classified as a form of vicarious liability. See, e.g., M.S. v. Nova Se. Univ. Inc., 881 So.2d 614, 620 (Fla. 4th DCA 2004) (“Where there is a non-delega-ble duty, the employer hiring an independent contractor to perform services encompassed within that duty is vicariously liable when those services are performed negligently.”); McCall v. Ala. Bruno’s, Inc., 647 So.2d 175, 178 (Fla. 1st DCA 1994) (“The Restatement[] states that the rules imposing vicarious liability on employers for the acts of independent contractors arise ‘in situations where, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor’.... ”). As noted in McCall, the Restatement itself treats liability for the breach of a nondele-gable duty as a subset of vicarious liability, id., and respected treatises on tort law discuss nondelegable duties within a chapter on vicarious liability. See 2 Dan B. Dobbs, The Law of Torts § 337, at 920 (2001); W. Page Keeton et al., Prosser and Keeton on the Law of Toris § 71, at 511— 12 (5th ed. 1984). Nevertheless, the occasional imprecision in analysis and joint classification for the purpose of convenience in discussion does not alter the fundamental differences between direct liability for the breach of a nondelegable duty and vicarious liability for the tortious acts of another.

With these differences in mind, we may consider the statute that imposed a nondelegable duty of care on Associated in this case. Section 768.0710, Florida Statutes (2003), prescribes Associated’s duty as the operator of the track and the burden of proof imposed on a claimant asserting a breach of that duty:

(1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:
(a) The person or entity in possession or control of the business premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and
(c)The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

The statute imposes a duty of reasonable care on persons in possession or control of business premises to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises. This statutory duty of care is nondelega-ble. See Food Lion, LLC v. Monument/Julington Assoc. Ltd. P’ship, 939 So.2d 1106, 1107-08 (Fla. 1st DCA 2006). It follows that Associated could not avoid liability for the breach of its statutory duty by contracting the maintenance and cleaning function at the track to others.

In light of the nondelegable duty of care imposed on Associated by section 768.0710(1), Mr. Armiger’s first amended complaint pleaded a claim against Associated for direct — not vicarious — liability. Associated’s liability, if any, for the alleged breach of its nondelegable duty of care was not dependent on the acts or omissions of Clean Sweep. In fact, Mr. Armi-ger’s first amended complaint alleged all of the elements necessary to plead a cause of action for breach of Associated’s nondele-gable duty of care, and further amendment to the complaint may have been helpful but was not necessary. Thus the circuit court erred in granting the partial summary judgment in favor of Associated on Mr. Armiger’s claims for “active negligence.” The entry of the final summary judgment resulted directly from the prior errors in analysis that revolved around pleading issues. No one has suggested that the facts developed in the circuit court would preclude a finding of the breach by Associated of its statutory, nondelegable duty. The issues regarding Associated’s alleged negligence and the other facts pertinent to Mr. Armiger’s slip and fall claim remain for resolution by a jury. See Monument/Julington, 939 So.2d at 1108; Sinfort v. Food Lion, LLC, 908 So.2d 521, 528 (Fla. 5th DCA 2005); Gerard v. Eckerd Corp., 895 So.2d 436, 437-38 (Fla. 4th DCA 2005).

IV. CONCLUSION

For the foregoing reasons, the circuit court erred in denying Mr. Armiger’s motion to amend his complaint and in entering the partial summary judgment and the final summary judgment in favor of Associated. We reverse the order denying Mr. Armiger’s motion to file his proposed second amended complaint and both summary judgments. On remand, the circuit court shall enter an order granting Mr. Armiger leave to file his proposed second amended complaint. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      . The applicable statute, which is set forth and discussed later in this opinion, is section 768.0710, Florida Statutes (2003).

      . The circuit court incorrectly titled its order as a "final summary judgment.” We refer to the order as a "partial summary judgment” because it determined that Mr. Armiger was not entitled to recover under a particular legal theory, i.e., that Associated had committed "active negligence.” See Fla. R. Civ. P. 1.510(d).

      . The statute of limitations applicable to Mr. Armiger’s action for negligence is four years. See § 95.1 l(3)(a), Fla. Stat. (2003).

      . The proposed amendment would not have prejudiced Associated. The initial complaint put Associated on notice that it was being sued for alleged injuries to Mr. Armiger occurring as a result of a slip and fall accident that occurred on its business premises. Associated itself had raised the likely application of the nondelegable duty doctrine to its potential liability to Mr. Armiger in its motion for summary judgment. Also, Mr. Armiger had not abused the privilege to amend. He had amended his complaint only once before the proposed amendment. And although the action had been pending for over three years when Mr. Armiger filed his motion to amend, the matter was still not set for trial.

      . Undeniably, die initial complaint and the first amended complaint were inartfully drawn. We note that Mr. Armiger's current counsel did not represent him when these pleadings were prepared and filed.

      . There is no transcript of the hearing that led to the entry of the partial summary judgment.

      . Vicarious liability arises in contexts other than the employer-employee relationship. A discussion of the various forms of vicarious liability is beyond the scope of this opinion. For a discussion of vicarious liability, see generally 2 Dan B. Dobbs, The Law of Torts §§ 333-41 (2001).

      . However, such considerations might be relevant in an action for indemnification by the business owner against the independent contractor.

      . Restatement (Second) of Torts ch. 15, topic 2, intro, note (1965).


source: Caselaw Access Project

license: Public Domain

text:
    Randy V. HEYSEK, Appellant/Cross-Appellee, v. Mary L. HEYSEK, Appellee/Cross-Appellant.
    No. 2D09-342.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2010.
    Rehearing Denied Dec. 9, 2010.

      Stanford R. Solomon of The Solomon Law Group, P.A., Tampa, for Appellant/Cross-Appellee.
    Ingrid Anderson, Clearwater, for Appel-lee/Cross-Appellant.
   WALLACE, Judge.

Randy V. Heysek (the Husband) appeals the final judgment that dissolved his marriage to Mary L. Heysek (the Wife). The Husband raises seven issues. He challenges the valuation of one of his business interests, the equitable distribution scheme, the award of permanent periodic alimony, the calculation of the child support award, the exclusion of the testimony of two expert witnesses at trial, the selection of the starting date for the accrual of interest on the equitable distribution award, and a life insurance requirement. On her cross-appeal, the Wife challenges the inclusion of a bank account in the equitable distribution scheme. We find merit in the Husband’s arguments concerning the inclusion of an inherited asset in the equitable distribution scheme, the failure to account for marital funds paid to the Wife either as support or in equitable distribution, and the calculation of the child support award. In addition, we find merit in the Wife’s argument on cross-appeal as discussed under section II below. In all other respects, we affirm the final judgment.

I. THE INHERITED IRA ACCOUNT

The Husband owned a Baird IRA account that he had inherited from his mother. At the time of the final hearing, the value of the account was $52,351. There was no evidence that the Husband had transferred an interest in this account to the Wife or that the account had been commingled with marital funds. In the equitable distribution scheme, the trial court treated this account as a marital asset and awarded it to the Wife.

We agree with the Husband that the Baird IRA account that he inherited from his mother was a nonmarital asset. The trial court erred in treating this asset as a marital asset and in awarding it to the Wife. Nonmarital assets include “[ajssets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.” § 61.075(5)(b)(2), Fla. Stat. (2004); see Grieco v. Grieco, 917 So.2d 1052, 1053-54 (Fla. 2d DCA 2006) (noting same); Pinder v. Pinder, 750 So.2d 651, 653 (Fla. 2d DCA 1999) (noting same); Martin v. Martin, 923 So.2d 1236, 1238 (Fla. 1st DCA 2006) (noting same). On remand, the trial court must assign the inherited Baird IRA account to the Husband as his nonmarital property and make appropriate adjustments to the equitable distribution scheme.

II. THE THONOTOSASSA PROPERTY AND THE PLATINUM BANK ACCOUNT

Before the final hearing, the parties entered into a stipulation to sell a commercial, marital property located on Thonotosassa Road in Plant City, Florida. The trial court memorialized the terms of their agreement in an order approving the stipulation. Under the agreement, the Wife received $250,000 and the Husband received $111,290.86 from the sale proceeds. An additional $15,000 from the sale proceeds was held in escrow “for the purpose of paying capital gains, if any, on said property.” The agreement required the Wife to open a separate account to deposit the $250,000 that she received and to use those funds as temporary support for herself and her children. The parties further agreed as follows:

4. The disbursement of the proceeds from the sale of the commercial property ... as outlined herein does not waive or prejudice any rights of either party to argue their rights to temporary support and to an equitable distribution of marital assets.... [The] Wife retains the right to assert her right to temporary support from the date of the disbursement until the August 10, 2006, temporary hearing, as well as for temporary support retroactive to the date of filing, and for future temporary support from August 10, 2006, until final judgment. [The] Husband may also argue at the August 10, 2006, hearing that the disbursements are a partial distribution.
5. This agreement settles only the need of [the] Wife to pay bills and living expenses until the temporary support hearing on August 10, 2006, without prejudicing either parity’s] legal rights to these disbursements.

In the final judgment, the trial court noted that the Wife claimed the Husband had “dissipated” $876,291 in marital assets as a result of the sale of the Thonotosassa property because she was required to use $250,000 of the proceeds for support during the pendency of the proceedings. In contrast, the Husband had included $857,225 from the sale of that property as part of the total support that he had paid the Wife during the pendency of the proceedings.

The trial court determined that the Tho-notosassa proceeds “should not be included as ‘pure’ temporary spousal support to the Wife,” and it “decline[d] to credit the Husband with paying spousal support from the sale of a marital asset when the Court [found] that the Husband had the ability to pay temporary spousal support from his own income.” Thus, when calculating the Husband’s retroactive support obligation for the period of the dissolution proceedings, the trial court specifically excluded the $250,000 that had been paid to the Wife “as an offset for potentially back-owed support” because those funds were derived from “mar[it]al assets/liabilities and therefore more appropriately considered ‘distribution’ advances to the Wife rather than ‘support.’ ”

But when the trial court allocated the parties’ marital assets in equitable distribution, it did not allocate to the Wife the $250,000 that she had received from the sale of the Thonotosassa property, indicating that those funds were for “[s]upport not [an] asset.” Somewhat inconsistently, the trial court distributed the $111,291 that the Husband had received from the sale to him.

The Husband argues on appeal that the trial court erred in declining to treat the $250,000 given to the Wife from the Tho-notosassa sale as either previously paid support or as a distributed asset. The Wife states that “[i]nstead of adding to [the] Husband’s retroactive support ar-rearage, the [trial] court simply did not include the proceeds used for support as an asset to [the] Wife in the equitable distribution.” And she argues “that depleted assets used for support without misconduct should not be considered in the equitable distribution” and that she “performed no acts of misconduct [to justify a] credit[ ] against her.”

We agree with the Husband that in failing to treat the $250,000 paid to the Wife from the Thonotosassa property sale either as previously paid support or as a prior distribution of a marital asset, the trial court erred. The Wife argues that the trial court intended to penalize the Husband for his waste of a marital asset to pay support when he had sufficient income to pay support. But she cites no authority for the proposition that the trial court could both decline to treat the funds as previously paid support and refuse to allocate the funds to the Wife in its equitable distribution scheme. In essence, the Husband is being required to pay the Wife twice, first upon the original distribution of $250,000 to the Wife and again through a retroactive support award. See Bryaiir-Lilly v. Lilly, 880 So.2d 757, 758 (Fla. 2d DCA 2004) (holding that the trial court engaged in improper double-dipping when it treated the wife as owner of $17,265 in funds that she had taken from an account for the purpose of determining that she should pay the husband $5000 in temporary attorney’s fees and then later determined that the funds were the husband’s premarital property and directed the wife to return the funds without credit for the fees paid). On remand, the trial court must either treat the $250,000 paid to the Wife as previously paid support and credit the Husband for that payment or treat the funds as a prior distribution of a marital asset and make appropriate adjustments to the distribution scheme.

The matter is further complicated by the trial court’s distribution of a Platinum Bank checking account to the Wife with a stated value of $49,986 as of April 30, 2008. The Wife challenges this ruling in her cross-appeal. The Husband represents, and the Wife does not dispute, that the Wife opened this account postpetition with funds derived solely from the Thonotosas-sa proceeds that were paid to her from the sale of that property. Because the funds in this account will be included as part of a credit against the Husband’s support obligation or as part of the equitable distribution of the Wife’s share of the proceeds of the Thonotosassa property, it would be improper to again distribute the funds from the Thonotosassa property to the Wife by allocating the balance of the Platinum Bank checking account to her in equitable distribution. See id.; see also Noone v. Noone, 727 So.2d 972, 975 (Fla. 5th DCA 1998) (holding that the husband could not be charged in equitable distribution both with the use of marital funds to purchase a car and with the value of the car). Accordingly, on remand the trial court must address the issue of the treatment of the Platinum Bank checking account.

III. THE CALCULATION OF THE CHILD SUPPORT AWARD

The Husband argues that the amount of the child support award was incorrectly calculated because the trial court failed to deduct the amount of the periodic alimony award payable to the Wife in determining the amount of his net income. The Husband is correct. Section 61.30 provides, in pertinent part:

(3) Allowable deductions from gross income shall include:
(g) Spousal support paid pursuant to a. court order from a previous marriage or the marriage before the court.
(4) Net income for the obligor and net income for the obligee shall be computed by subtracting allowable deductions from gross income.

See Zarate v. Zarate, 28 So.3d 935, 935 (Fla. 3d DCA 2010) (holding that the trial court miscalculated the husband’s child support obligation by failing to deduct the amount of permanent periodic alimony payments that he made to the wife from his monthly income); Finney v. Finney, 995 So.2d 579, 581 (Fla. 1st DCA 2008) (noting same); Silver v. Silver, 898 So.2d 145, 146 (Fla. 4th DCA 2005) (noting same); Calderon v. Calderon, 730 So.2d 400, 402 (Fla. 5th DCA 1999) (noting same). On remand, the trial court must recalculate the child support award and adjust the amended income deduction order to reflect the correct amount of child support payable by the Husband.

IV. CONCLUSION

We reverse the final judgment to the extent that it includes the Husband’s inherited Baird IRA account as a marital asset in the equitable distribution scheme and fails to treat the Thonotosassa property proceeds paid to the Wife as either support or a distributed marital asset. We also reverse the final judgment to the extent that it incorrectly calculates the amount of the child support payable by the Husband. On remand, to correct these deficiencies the trial court must make appropriate amendments to the final judgment and to the amended income deduction order. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CRENSHAW, JJ„ Concur.

      . We note that the trial court properly included the permanent periodic alimony awarded to the Wife in determining her income for the purpose of calculating the child support award. See § 61.30(2)(a)(9).


author: PER CURIAM.

text:
    Geoffrey L. OLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4116.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2010.
    Rehearing Denied Nov. 29, 2010.
    Geoffrey L. Olin, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks habeas corpus review of his judgments and sentences in Columbia County Circuit Court case number 02-39-CF. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postcon-viction motions).

Additionally, because of petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his convictions and sentences, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his conviction and sentence.”). Petitioner’s response to the order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because it is apparent that petitioner’s continued and repeated attacks on his convictions and sentences have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Columbia County Circuit Court case number 02-39-CF. The Clerk of this Court is directed not to accept any future pro se filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. Fla. R.App. P. 9.410.

LEWIS, ROWE, and MARSTILLER, JJ., concur.


text:
    Ricardo VELAZQUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4923.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2010.
    Rehearing Denied Nov. 30, 2010.
    Ricardo Velazquez, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


text:
    Scottie JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4809.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2010.
    Rehearing Denied Nov. 29, 2010.
    Scottie Jenkins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Kevin WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2332.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2010.
    Rehearing Denied Nov. 29, 2010.
    William Mallory Kent of the Law Office of William Kent, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kevin Watkins appeals his convictions and sentences for two counts of sexual battery by a person with familial authority when the victim was between 12 and 18 years old, under section 794.011(8)(b), Florida Statutes. We reject appellant’s first two arguments and affirm the conviction and sentence for Count I, but we reverse the conviction and sentence for Count II, because the state failed to prove anal penetration.

The victim testified that she had to pull the back of defendant’s pants down and “lick his butt cheeks, crack and anus.” The prosecutor asked, “When you licked his anus was your tongue actually on his anus, in his anus?”, and she replied, “On it, yes.” She also said that defendant would position himself so that she had to lick his genitals as well as his anus. There was no evidence that the victim put her tongue in defendant’s anus, even slightly. See, e.g., Furlow v. State, 529 So.2d 804 (Fla. 1st DCA 1988) (reversing conviction and sentence because the record failed to establish that the defendant’s finger actually penetrated the victim’s vagina, required under the definition of sexual battery).

Section 794.011(l)(h) provides: “ ‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object [.]” (Emphasis added.) The supreme court has cautioned that the legislature intended that the terms “union” and “penetration” be applied with precision when determining whether conduct constitutes sexual battery. “Union permits a conviction based on contact with the relevant portion of anatomy, whereas penetration requires some entry into the relevant part, however slight.’” Seagrave v. State, 802 So.2d 281, 287 n. 7 (Fla.2001) (quoting Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999)). The Second District in Richards “translated” the language of section 794.011(l)(h), finding four offenses encompassed therein. With regard to the language that applies in our case, the court translated it as providing: “It is illegal for a man or woman to place any object inside the anus or vagina of the victim.” Richards, 738 So.2d at 418.

“The statute is not violated by proof of union with an object in the absence of penetration.” Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991). See Johnson v. State, 632 So.2d 1062 (Fla. 5th DCA 1994) (reversing conviction for digital penetration of the victim’s anus, because the court erroneously instructed the jury that union, or coming into contact, with the victim’s anus was sufficient to prove sexual battery, which was fundamental error); Gill, 586 So.2d 471 (reversing conviction for sexual battery because it was disputed whether there had been digital penetration of the anus of the young victim, and the trial court had erroneously instructed the jury that they could convict if they found union, or coming into contact, which was fundamental error).

It is well-established that evidence of “even the slightest penetration” will sustain a conviction for sexual battery. See, e.g., Marles v. State, 937 So.2d 720 (Fla. 5th DCA 2006) (determining that the five-year-old victim’s testimony that the defendant “ ‘put his finger in my private’ ” was sufficient to prove sexual battery). No one could argue that defendant’s conduct was anything less than reprehensible. Nevertheless, although the victim was given the opportunity to testify that she had to put her tongue in defendant’s anus, she said instead that she had put her tongue on it, which does not constitute even slight penetration. Case law has made it clear that evidence of union (“on”) cannot suffice to prove penetration (“in”). We must leave it to the legislature to address whether to amend the statute to encompass the kind of act described herein.

Affirmed in part, Reversed in part, and Remanded for further proceedings.

PADOVANO and CLARK, JJ., concur. THOMAS, J., dissents with opinion.

THOMAS, J.,

concurring in part and dissenting in part.

I concur in the majority’s opinion affirming Appellant’s conviction on count 1, but dissent from the majority’s opinion reversing Appellant’s conviction under section 794.011(8)(b), Florida Statutes, for sexual battery by a person with familial authority on a victim between 12 and 18 years of age.

The majority’s opinion violates the well established rule of law that requires this court to review evidence in a sufficiency challenge in a light most favorable to the State. Where direct evidence of guilt is admitted, as here, we must draw all reasonable inferences in favor of the State. Jackson v. State, 18 So.3d 1016, 1025 (Fla.2009). A court may not grant a judgment of acquittal “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974); see also Donton v. State, 1 So.3d 1092, 1100 (Fla. 1st DCA 2009) (“[Vjiewed appropriately in a light most favorable to the State,” testimony supports conviction based on penetration where eyewitness described act of anal intercourse and defendant failed to preserve argument that witness could not have seen alleged penetration from vantage point). Here, it is plain the jury could reasonably infer that Victim was reluctant to graphically describe in any more detail the criminal conduct committed against her, and that her tongue did in fact penetrate his anus.

Properly viewed in a light most favorable to the State, this court should affirm the jury’s verdict. It was within the jury’s province, which saw Victim’s demeanor and heard the entire context of the testimony, to conclude that the evidence established Appellant’s guilt. In Lynch, the supreme court stated that a trial court should submit a criminal case to a jury where “there is room for a difference of opinion between reasonable [persons] as to the proof of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts.” 293 So.2d at 45 (emphasis added); Marles v. State, 937 So.2d 720, 721 (Fla. 5th DCA 2006) (holding that although evidence of penetration was “far from crystal clear,” it was sufficient to satisfy State’s burden of proof).

The majority’s reliance on Gill v. State, 586 So.2d 471 (Fla. 4th DCA 1991), and Johnson v. State, 632 So.2d 1062 (Fla. 5th DCA 1994), is misplaced. In both of these decisions, the jury was incorrectly instructed. Here, the jury was correctly instructed, and it was within its authority to conclude that Appellant committed sexual battery based on Victim’s testimony.

I would affirm both convictions; therefore, I dissent in part.

      . Defendant received concurrent sentences of 15 years in prison followed by 10 years of sexual-offender probation for each count.


text:
    Randy RIESEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3177.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Rehearing Denied Nov. 30, 2010.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Randy Riesel appeals his conviction for second-degree murder and his sentence to life in prison. He was convicted as charged, after the trial court instructed the jury on the lesser included offense of manslaughter by act as follows: “To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: Number one, Charles David May, Jr., is dead. Number two, Randy Scott Riesel intentionally caused the death of Charles David May, Jr.” Later on the instruction also stated: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had premeditated intent to cause death, only an intent to commit and (sic) act which caused death.” The jury was not instructed on manslaughter by culpable negligence. Cf. Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010); Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010).

The manslaughter instruction in the present case is not materially different from the instruction held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010), because it, too, erroneously stated that intent to kill was an element of manslaughter. Montgomery, 39 So.3d at 256, 259 (manslaughter by act instruction which provided that the state must prove the defendant “intentionally caused the death of’ the victim resulted in fundamental error because the “instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill” the victim). See also Hardee v. State, — So.3d —, 2009 WL 3047359, 34 Fla. L. Weekly D1946 (Fla. 1st DCA Sept. 25, 2009); Ward v. State, 12 So.3d 920 (Fla. 1st DCA 2009); Stinson v. State, — So.3d —, —, 2009 WL 633133, 34 Fla. L. Weekly D570, D571 (Fla. 1st DCA Mar. 13, 2009). See generally Reddick v. State, 394 So.2d 417, 418 (Fla.1981) (“The failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.”). We reverse the conviction for second-degree murder and remand for a new trial.

Reversed and remanded.

BENTON, THOMAS, and ROWE, JJ., concur.

      . The last phrase represented an addition to the standard jury instruction on manslaughter in December of 2008. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 404-05 (Fla.2008). Mr. Riesel's trial was conducted in April of 2009.

      . The supreme court's interim (December 11, 2008 through April 8, 2010 or June 28, 2010) manslaughter instruction failed to eliminate the requirement that the jury find intent, the defect identified in State v. Montgomery, 39 So.3d 252 (Fla.2010). But see Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010). In 2010, the supreme court further modified the standard instruction for manslaughter, in order to remedy the problem identified in Montgomery. See In re Amendments to Standard Jury Instructions in Criminal Cases—Instruction 7.7, 41 So.3d 853, (Fla.2010) (reh. den. June 28, 2010).

      . In the circumstances, we need not reach any of the remaining issues raised on appeal.


text:
    Michael A. DONALDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3698.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Michael A. Donaldson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


text:
    Richard WILLIAMS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4669.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Richard Williams, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(B).

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


text:
    Shernerd RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5048.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.

      Shernerd Richardson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1286 (Fla.2004).

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


text:
    Rocio LOPEZ, Appellant, v. ALLIED AEROFOAM/SPECIALTY RISK SERVICES, Appellees.
    No. 1D10-1444.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2010.
    Rehearing Denied Nov. 30, 2010.
    Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, L.L.P., Sarasota, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant, Rocio Lopez, appeals an order of the Judge of Compensation Claims (JCC) denying a request for a statutory advance payment of compensation not in excess of $2,000.00. Claimant argues the JCC erred in determining advances of $2,000.00 or less are not awardable in contested cases. Under existing law, reversal is required.

Section 440.20(12)(c), Florida Statutes (2009), permits a JCC to award an advance payment of compensation not in excess of $2,000.00, after giving due consideration to the “interests of the person entitled thereto,” where a claimant demonstrates one of the following: (1) failure to return to employment at no substantial wage reduction; (2) a substantial loss of earning capacity; or (B) an actual or apparent physical impairment. The statute does not require proof that the injured worker will actually receive any benefits in the future from which the employer can recover the sum advanced, and the statute does not limit advances to cases in which compensability is established. See Workers of Fla. v. Williams, 743 So.2d 609, 610 (Fla. 1st DCA 1999).

In Williams, the employer argued the JCC erred in ordering a $2,000.00 advance because no evidence indicated the claimant would be eligible to receive any benefits in the future from which the E/C could recover the sum advanced. This court disagreed: “Although the contingency of non-reimbursement from [the] employee ... may, in fact, be realized, the legislature has not seen fit to codify the possibility of employer prejudice as to advances not exceeding $2,000, as here.” Id. The court reiterated, “The only conditions pertinent to the inquiry of the appropriateness of such advances are those stated in section 440.20(12)(e), and they do not mention the potential of employer prejudice.” Id.

The Williams case was decided in 1999, and the Legislature has substantially amended the Workers’ Compensation Law since that time. See, e.g., Ch. 2001-91, Laws of Fla.; Ch. 2003-412, Laws of Fla. With presumptive knowledge of this court’s holding in Williams, the Legislature elected not to amend section 440.20(12)(c)2. See City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000) (holding Legislature is presumed to know judicial constructions of law when enacting new version of that law). A court must therefore presume that the Legislature has adopted the statutory construction announced by the court in Williams. See id. at 1202 (holding Legislature is presumed to have adopted prior judicial constructions of law unless a contrary intention is expressed in new version).

Section 440.20(12)(c)2. requires the JCC to consider the “interests of the person entitled [to the advance].... ” The statute does not, however, mention a showing of ultimate compensability. We may not read such a requirement into the statute. See Special Disability Trust Fund v. Motor Compressor Co., 446 So.2d 224 (Fla. 1st DCA 1984) (holding that where statute enumerates one thing, it is ordinarily construed as excluding from its operation all those not expressly mentioned). Here, the JCC found Claimant suffered an apparent physical impairment, as required by the statute. See § 440.20(12)(c), Fla. Stat. (2009). Nevertheless, the JCC denied the requested advance based solely on her conclusion that such an advance could not be awarded in a contested case. Accordingly, we REVERSE the order denying an advance.

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.


author: LAGOA, J.

text:
    K.R. EXCHANGE SERVICES, INC., a foreign corporation, Appellant, v. FUERST, HUMPHREY, ITTLEMAN, PL, et al., Appellees.
    No. 3D09-1733.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing Denied Dec. 16, 2010.

      Louis C. Arslanian, Hollywood, for appellant.
    Cole Scott & Kissane and Scott A. Cole and Alejandro Perez, Miami, for appellees Fuerst, Humphrey, Ittleman, PL, and Andrew Ittleman.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

K.R. Exchange Services, Inc. (“K.R.-Israel”) appeals a final judgment dismissing with prejudice its legal malpractice claim against the law firm Fuerst, Humphrey, Ittleman [“FHI”] and attorney Andrew It-tleman. We affirm the trial court’s dismissal of the complaint, however, we reverse the order to the extent it dismisses the complaint with prejudice.

I. FACTUAL AND PROCEDURAL HISTORY

K.R.-Israel, an Israeli corporation, and K.R. Services USA, LLC (“K.R.-USA”), a Florida corporation, were engaged in a money services business relationship. K.R.-USA is a consultant for K.R.-Israel. In order to cash its checks, K.R-Israel deposited the checks in KR.-USA’s account at Regions Bank. For this service, KR.-Israel paid a commission to K.R.USA.

This business relationship was interrupted when Regions Bank informed K.R.USA that it would no longer accept checks from K.R.-Israel. As a result, K.R.-Israel was required to outsource this service; K.R.-USA no longer received commissions, and K.R.-Israel paid significantly higher fees to third parties in order to process the checks.

In an effort to resolve this problem for both companies, Michael Elmaleh, K.R.USA’s president, individually, and on behalf of K.R.-USA, retained FHI. The engagement letter/retainer agreement stated that the nature of the legal service is for “a written opinion concerning whether your business — KR Services USA — is required to register in the state of Florida as a money transmitting business, check cashing service, or other similarly regulated entity. We will also advise you on how to most effectively restructure and reorganize your various entities so as to create stronger relationships with banking institutions and regulatory authorities worldwide.” Ittleman provided the legal services for FHI under the agreement.

When the legal representation proved unsatisfactory, K.R.-Israel and K.R.-USA attempted to file a single legal malpractice action against FHI and Ittleman. In addition to the above-noted allegations, the complaint alleges that K.R.-Israel was an intended third-party beneficiary of FHI’s and Ittleman’s legal services to K.R.-USA, that FHI and Ittleman breached their duties to K.R.-Israel in their efforts to solve the business difficulties that ensued when Regions Bank would no longer accept deposits from K.R.-Israel, and that as a result, plaintiffs suffered monetary damages. The engagement letter/retainer agreement was attached to the complaint as an exhibit.

FHI and Ittleman sought dismissal of the claim, arguing that K.R.-Israel and K.R.-USA failed to state a cause of action for legal malpractice and that K.R.-Israel lacked standing because it was not an intended third-party beneficiary to the retainer agreement. Following a hearing, the trial court granted FHI’s and Ittle-man’s motion and dismissed KR.-Israel’s complaint with prejudice. The order of dismissal does not indicate the ground upon which the trial court based its ruling. This appeal ensued.

II. ANALYSIS

To assert a legal malpractice action, a plaintiff must allege the following three elements: “1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client.” Law Office of David J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So.2d 962, 966 (Fla.2007) (quoting Sec. Nat’l Servicing Corp., v. Law Office of David J. Stern, P.A., 916 So.2d 934, 936 (Fla. 4th DCA 2006)); Sure Snap Corp. v. Baena, 705 So.2d 46, 48-49 (Fla. 3d DCA 1997); Maillard v. Dowdell, 528 So.2d 512, 514 (Fla. 3d DCA 1988). To withstand dismissal, however, a plaintiff must allege more than the “naked legal conclusion” that the law firm and attorneys have negligently rendered legal services. Rios v. McDermott, Will & Emery, 613 So.2d 544 (Fla. 3d DCA 1993) (quoting Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 527 So.2d 211, 212 (Fla. 3d DCA 1987), disapproved on other grounds, 537 So.2d 561 (Fla.1988)); see also Bankers Trust Realty, Inc. v. Kluger, 672 So.2d 897, 898 (Fla. 3d DCA 1996). “Florida’s pleading rule [1.110(b)(2) ] forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.” Horowitz v. Laske, 855 So.2d 169, 172-73 (Fla. 5th DCA 2003); see also Arky, Freed, 537 So.2d at 563 (concluding that “litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared”). Applying these principles, we agree with the trial court and hold that the complaint does not properly state a cause of action for legal malpractice against FHI and Ittleman.

A. Failure to Comply With Minimum Pleading Requirement

At the outset, we note that K.R.Israel has failed to comply with Florida Rule of Civil Procedure 1.110. A party should plead each distinct claim in a separate count, rather than plead the various claims against all of the defendants together. See Fla. R. Civ. P. 1.110(f); Pratus v. City of Naples, 807 So.2d 795, 797 (Fla. 2d DCA 2002); see also Aspsoft, Inc. v. Web-Clay, 983 So.2d 761, 768 (Fla. 5th DCA 2008) (holding that plaintiffs complaint set forth defective claims by “impermissibly comingling separate and distinct claims” in a single count); Dubus v. McArthur, 682 So.2d 1246, 1247 (Fla. 1st DCA 1996) (stating that the “task of the trial court was made more difficult because the appellants’ amended complaint improperly attempts to state in a single count separate causes of action”). In so doing, the plaintiff also must comply with Florida Rule of Civil Procedure 1.110(b)(2), which requires that the complaint contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See also Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990); Horowitz, 855 So.2d at 172.

In this case, the complaint, which purports to allege legal malpractice claims against FHI and Ittleman, fails to comply with the basic rules of pleading. The complaint consists of forty-seven numbered paragraphs containing factual allegations and legal conclusions concerning the malpractice claims against FHI and Ittleman, as well as the claims against CRA and Guido, concerning the implementation of the compliance program. The claims against the various defendants are not divided into separate counts, titled “legal malpractice” or otherwise. Instead, the complaint randomly intersperses the factual allegations and legal conclusions against FHI and Ittleman among the' allegations against the other defendants without denoting the separate claims. In addition, numerous paragraphs contain allegations and legal conclusions that improperly refer to FHI and Ittleman (as well as CRA and Guido) collectively as “defendants” and do not differentiate among the various defendants’ actions and statements. Furthermore, in violation of Rule 1.110(b), the complaint improperly contains rambling allegations stating in general terms K.R.Israel’s dissatisfaction and frustration with FHI and Ittleman’s legal performance. “To say merely that this complaint is not well pleaded is an understatement. It lacks minimal organization and coherence.” Pratus, 807 So.2d at 796. Accordingly, we find that the complaint does not comply with Rule 1.110, and dismissal is warranted on this ground.

B. Failure to State a Cause of Action for Legal Malpractice

Addressing the substance of the allegations themselves, we hold that the complaint does not state a cause of action for legal malpractice against FHI and It-tleman. First, K.R.-Israel has failed to properly allege that it has standing to bring this action. Conceding that it is not in privity with FHI, K.R.-Israel contends that the complaint alleges that K.R.-Israel fits within a narrow exception to this requirement — it is an intended third-party beneficiary of FHI’s legal representation of K.R.-USA. See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1379 (Fla.1993); Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So.2d 192, 194 (Fla.1987). This contention is without merit as the retainer agreement attached to the complaint is inconsistent with those allegations. It is well settled that the court must consider an exhibit attached to the complaint together with the complaint’s allegations, and that the exhibit controls when its language is inconsistent with the complaint’s allegations. See Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157 (Fla. 3d DCA 2008); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736, 736 (Fla. 3d DCA 1971).

Here, the retainer agreement does not mention K.R.-Israel and is directed to El-maleh, individually and on behalf of K.R.USA. It states that FHI will provide legal services by offering a written opinion whether “your business KR Services USA” is required to register in Florida and to advise “you” how to restructure “your various entities.” (Emphasis added). There is no basis to conclude that KR.-Israel falls within the purview of the phrase “your various entities.” The complaint merely alleges that K.R.-USA is a consultant for K.R.-Israel and that the two entities are engaged in a money services business relationship. The agreement refers only to K.R.-USA, does not show an intent to directly and primarily benefit KR.-Israel, and is inconsistent with the complaint’s allegation regarding KR.-Israel as an intended third-party beneficiary. Because the agreement’s language is inconsistent with the complaint allegations, KR.-Israel has not alleged that it has standing to bring this action. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000).

Second, KR.-Israel did not sufficiently allege ultimate facts relating to FHI and Ittleman’s duties, which duties were breached, or how FHI and Ittleman breached the standard of care. Instead, KR.-Israel simply alleged legal conclusions (e.g., that FHI and Ittleman had a duty to perform the legal services with the diligence and level of care expected of similarly-situated attorneys in South Florida; that FHI and Ittleman breached their duty by taking on a task that they were not capable of properly performing, failing to perform the task diligently or with the required skill and providing improper and incorrect legal advice.) At most, KR.Israel alleges that: Elmaleh was “advised” that the IRS application prepared by FHI and Ittleman was non-compliant and prepared unprofessionally; FHI and Ittleman did not advise Elmaleh that a state license was unnecessary until six months after the retainer agreement was executed, and, notwithstanding that FHI and Ittleman held themselves out as being able to perform the necessary services, they represented that CRA’s services were needed. Such legal conclusions without more are insufficient to state a claim for legal malpractice. See Horowitz, 855 So.2d at 173 (allegations that attorney “was negligent in responding to the inquiries of state regulators, in analyzing securities laws, and in advising [client] ... are bare legal conclusions”); Kluger, 672 So.2d at 898 (allegation that attorney “negligently, carelessly, unskillfully and tardily conducted the ... action and delayed obtaining a judgment therein” is an insufficient legal conclusion); Rios, 613 So.2d at 545 (holding that legal malpractice claim was properly dismissed because complaint did not state what attorneys did wrong in their efforts to remove the lis pendens and that the allegation that the attorneys “failed to timely act is an insufficient legal conclusion”). The complaint fails to “illuminate any of the specifics of the alleged malpractice” committed by FHI and Ittleman. Rios, 613 So.2d at 545; see also Kluger, 672 So.2d at 898. Therefore, the trial court properly dismissed the complaint for failure to state a cause of action for legal malpractice.

C. Dismissal Should Have Been Without Prejudice

Despite the defects discussed above, the dismissal of KR.-Israel’s complaint should have been without prejudice. “In most circumstances, the trial court’s dismissal of a complaint for failure to state a cause of action should be without prejudice to the plaintiffs amendment to the complaint to cure the deficiencies.” Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007); see also Dieudonne v. Publix Super Mkts., Inc., 994 So.2d 505 (Fla. 3d DCA 2008); Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So.2d 1157, 1160-61 (Fla. 3d DCA 2008).

This was K.R.-Israel’s initial complaint, and FHI and Ittleman had not served a responsive pleading. Moreover, absent at least one more opportunity for K.R.-Israel to attempt to assert a claim against the defendants, we cannot yet conclude that amendment would be futile or would prejudice FHI and Ittleman. See, e.g., Dieudonne, 994 So.2d at 506-07; Charles, 988 So.2d at 1160-61. Therefore, although the trial court properly dismissed KR.-Israel’s complaint against FHI and Ittleman, the trial court erred in dismissing the complaint with prejudice without affording K.R.-Israel the opportunity to amend its initial complaint to attempt to allege a legal malpractice claim against FHI and Ittleman.

The final judgment is reversed and the cause remanded for the trial court to enter a dismissal without prejudice.

Affirmed in part; reversed in part and remanded.

      . We recite the facts as alleged in the initial complaint.

      .In the same complaint, K.R.-Israel also filed claims against defendants Compliance Resource Advisors, Inc. ("CRA”), and CRA's president and CEO, Anthony M. Guido. K.R.Israel alleges that it retained CRA to implement a compliance program for K.R.-USA because FHI and Ittleman represented that CRA’s services were needed. The engagement letter states that “[t]he objective of this engagement is to provide the Client with the regulatory compliance requirements as stated in CFR 31 Section 352 of the USA Patriot Act, which defines the requirements of an Anti-Money Laundering, Bank Secrecy Act program relating to a Money Services Business.” Those claims remain pending below.

      . The trial court also dismissed K.R.-USA’s complaint without prejudice. K.R.-USA filed an amended complaint and its action is proceeding in the trial court.

      . We review de novo a trial court’s order dismissing a complaint with prejudice for failure to state a cause of action. See Wallace v. Dean. 3 So.3d 1035, 1045 (Fla.2009).

      . The Authors’ Comment — 1967 to Rule 1.110 aptly states:
      The contents of a pleading should not just meet the minimum requirements for that type of pleading. They should clearly and adequately inform the judge, the opposing party and the jury (in cases where the pleadings may be read to the jury) of the position of the pleader. The arrangement should be designed to make an orderly and effective presentation. To guide the pleader along these lines the rules require presentation in separately numbered paragraphs and in counts (1.110(f)).

      . The allegations provide:
      16. At the time that the retainer agreement was executed, FHI knew of the entire situation as set forth above in Paragraphs 8-13 and knew that the services that were the subject of the agreement would: a) allow both KR-USA and KR-Israel to comply with all legal requirements; b) allow KR-USA to, again, receive commissions by having a banking institution available in the same fashion that Regions was working with KR-USA; and c) allow KR-Israel to avoid having to pay significant fees to third parties to outsource the service previously provided by KR-USA.

      42. At all times, Plaintiff KR-Israel was an intended third-party beneficiary of the services of the Defendants even though the agreement was executed by KR-USA where: a) Defendants were advised that KR-Israel was having to outsource the services previously provided by KR-USA through Regions at a great expense to KR-Israel, in addition to the loss of commissions by KR-USA; b) Defendants knew at all times that their services were for the benefit of KR-Israel, because a resolution by Defendants was specifically designed and intended to eliminate the expenses incurred by KR-Israel in having to outsource the services previously provided by KR-USA; and c) Defendants knew that KR-Israel was paying the bills of Defendants and rendering the important decisions that needed to be made in the process.

      . FHI and Ittleman correctly argue that the complaint’s allegations as to the time of performance (approximately thirty days) conflict with the retainer agreement, which does not provide that they were obligated to render services within a specific time period.

      . The complaint also alleges that the proposals submitted by “the defendants" did not resolve the plaintiffs' check-cashing problem. Assuming that this allegation includes FHI and Ittleman, it does not explicate what they did wrong in submitting the unsuccessful proposals. See generally Dillard Smith Constr. Co. v. Greene, 337 So.2d 841, 843 (Fla. 1st DCA 1976). ("A lawyer does not guarantee the efficacy of his advice.”).