author: VAN NORTWICK, J.

text:
    TIERRA HOLDINGS, LTD, Appellant, v. MERCANTILE BANK, a Florida banking corporation, Appellee.
    No. 1D10-1886.
    District Court of Appeal of Florida, First District.
    May 18, 2011.

      Jeptha F. Barbour and Stella J. Lane of Marks Gray, P.A., Jacksonville, for Appellant.
    Michael G. Tanner, Thomas E. Bishop, Stuart F. Williams, and Helen A. Peacock of Tanner Bishop, Jacksonville, for Appel-lee.
   VAN NORTWICK, J.

Tierra Holdings, Ltd. (“Tierra”) appeals a trial court order which (1) awarded Tier-ra its costs and attorney’s fees incurred after December 1, 2006, the date of its valid proposal for settlement pursuant to section 768.79, Florida Statutes (2006), in the breach of contract claim filed against Tierra by Mercantile Bank (“Mercantile”), and (2) awarded Mercantile all of its costs and attorney’s fees incurred through trial in connection with its breach of contract claim against Tierra, pursuant to a prevailing party attorney’s fees provision in the contract. Tierra conceded below that Mercantile was the prevailing party under the contract, but argued that its proposal for settlement cut off Mercantile’s entitlement to fees under the contract which were incurred after the date of the proposal. The trial court rejected Tierra’s argument, ruling that section 768.79 contained no language which would expressly authorize the modification of a contractual attorney’s fees provision and that to read such a rule into the statute would contravene the parties’ economic expectations under the contract without express statutory support. Because section 768.79 must be strictly construed and the statute, as written, does not support the interpretation advanced by Tierra, we affirm.

Factual and Procedural Background

In May 2004, Mercantile and Tierra, through its sole general partner Diamond “S” Development Corporation (“Diamond”), entered into a contract under which Mercantile agreed to sell two parcels of real estate to Tierra. The contract provided that Parcel 2 would not be used for a bank or a banking related business for a period of five years. The contract also provided that the “prevailing party” in any litigation in connection with the contract would be entitled to all costs and expenses including attorney’s fees.

The sale was closed in June 2004, at which point the parties executed a special warranty deed which provided for a six-month restriction against bank-related use of Parcel 2, rather than the five-year restriction provided by the contract. In March 2005, after the expiration of the six-month restriction, Tierra sold Parcel 2 to Pilot Bank, which subsequently operated a bank on the property.

After discovering the sale of Parcel 2 to Pilot Bank, Mercantile filed a two-count complaint against Tierra and Diamond, alleging breach of contract and unjust enrichment. Tierra and Diamond served Mercantile with a proposal for settlement on December 1, 2006, pursuant to rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes. Tier-ra and Diamond offered to pay Mercantile $178,200 in resolution of all claims, including Mercantile’s claim for attorney’s fees and court costs under the contract. Mercantile did not accept the offer.

The case proceeded to trial on August 13, 2007. As the trial court found: “Tierra and Diamond continued to dispute damages for the breach of contract claim even after they admitted they breached the contract shortly before trial and after they knew that Mercantile was only going to claim $16,232.00 in damages for Count I.” The jury returned a verdict in favor of Mercantile awarding damages in the amount of $16,232 for the breach of contract claim and, after a bench trial, the court awarded an additional $725,000 in damages for the unjust enrichment claim. Tierra moved to set aside the jury verdict, arguing that the evidence of damages was speculative and that a reasonable fact-finder could not determine what, if any, damages Mercantile suffered. The trial court denied the motion and entered a final judgment on October 3, 2007, retaining jurisdiction to determine attorney’s fees and costs.

On appeal before this court, Tierra and Diamond challenged the award of damages on the unjust enrichment claim, arguing that the claim was precluded by the existence of an express contract. In Diamond ‘S” Development Corp. v. Mercantile Bank, 989 So.2d 696 (Fla. 1st DCA 2008), this court agreed with Tierra that Mercantile could not pursue both a breach of contract claim and an unjust enrichment claim. There, we held that Mercantile’s “unjust enrichment claim was precluded by the existence of an express contract between the parties concerning the same subject matter.” Id. at 697. Thus, having recovered on the breach of contract claim, Mercantile was precluded from pursuing the quasi-contract claim for unjust enrichment. The case was remanded. On remand, the trial court entered an amended final judgment retaining jurisdiction to determine the issue of attorney’s fees and costs.

On December 30, 2008, Tierra and Mercantile moved for attorney’s fees and costs. Mercantile, relying on the attorney’s fees and costs provision of the contract, sought fees and costs incurred in regard to its breach of contract claim. Tierra moved for attorney’s fees and costs pursuant to rules 1.442 and 1.525, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes. At the hearing on the parties’ motions, Mercantile conceded that Ti-erra was entitled to recover some fees and costs under section 768.79, and Tierra conceded that Mercantile was the prevailing party in regard to the breach of contract claim and thus entitled to recover some fees and costs under the contract. Tierra argued, however, that Mercantile could recover only those fees and costs incurred up to the date of Tierra’s proposal for settlement.

In its order, the trial court rejected Tierra’s argument that its proposal for settlement cut off Mercantile’s contractual right to fees as of the date of the proposal, reasoning that the language of section 768.79 does not expressly authorize the sort of modification of a contractual attorney’s fees provision that Tierra proposed. Accordingly, the trial court awarded Mercantile the full amount of costs and fees incurred with respect to its breach of contract claim in the amount of $232,381.62. Tierra does not contend on appeal that this amount was unreasonable for the services provided. Further, the trial court found that Tierra’s December 1, 2006 proposal for settlement conformed with the requirements of rule 1.442 and section 768.79, that the proposal was made in good faith, and that the verdict obtained by Mercantile combined with the $22,256.50 in fees and $684.00 in costs incurred before the date of Tierra’s proposal was at least 25% less than Tierra’s offer. Therefore, the court awarded Tierra fees and costs in the amount of $208,627.95. Accordingly, in the final judgment for attorney’s fees and costs, the trial court awarded Mercantile $23,753.67, the difference between the award of Mercantile’s fees and costs, and the award of Tierra’s fees costs and costs.

Tierra appeals, raising an issue of first impression, arguing that a valid proposal for settlement under section 768.79, Florida Statutes, cuts off a prevailing party’s claim for contractual attorney’s fees and costs incurred after the date of the proposal.

Standard of Review

A trial court’s ruling on a motion to tax attorney’s fees and costs pursuant to section 768.79 is reviewed de novo. Jacksonville Golfair, Inc. v. Grover, 988 So.2d 1225, 1226 (Fla. 1st DCA 2008). Further, where the trial court’s ruling turns on an issue of statutory interpretation, the trial court’s interpretation of the statute is also reviewed de novo because “[t]he interpretation of a statute is purely a legal matter.” Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006).

Statutory Background

The original offer of judgment rule of procedure, adopted by the Florida Supreme Court in 1972, was modeled after its federal counterpart, Federal Rule of Civil Procedure Rule 68. In re the Florida Bar, 265 So.2d 21, 40-41 (Fla.1972). This rule, rule 1.442, was a cost-shifting mechanism by which the adverse party would be required to pay the offeror its costs incurred after the offer was made if the judgment ultimately obtained was not more favorable than the offer of judgment. Costs were the only sanctions imposed under the original rule and the original rule did not authorize an award of attorney’s fees. Sarkis v. Allstate Ins. Co., 863 So.2d 210, 218 n. 5 (Fla.2003).

In 1986, the Florida Legislature enacted the original version of section 768.79, Florida Statutes, authorizing the award of attorney’s fees. 863 So.2d at 218. The Florida Supreme Court responded in 1988, requesting that the Civil Procedure Rules Committee examine the legislative enactment and rule 1.442, and the Committee petitioned for the adoption of a new rule. In its ruling on the petition, the Supreme Court recognized the confusion generated by the differences between the legislative enactment and rule 1.442 as it existed at the time. Id. at 219. See Florida Bar re Amendment to Rules of Civil Procedure, Rule 1 M2 (Offer of Judgment), 550 So.2d 442, 442-43 (Fla.1989). The Court withdrew the then existing rule 1.442 and replaced it with a new rule which reflected the major components of section 768.79 and section 45.061. Sarkis, 863 So.2d at 219-20.

In 1990, the Legislature amended section 768.79, Florida Statutes, adopting its current language. Ch. 90-119, § 48, at 400, Laws of Fla. Subsection (1) of section 768.79 provides:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

Because the Supreme Court subsequently found that section 768.79 also contained procedural aspects which were the subject of the Court’s rule-making authority, the Court withdrew rule 1.442 again and adopted the procedural portions of section 768.79. Timmons v. Combs, 608 So.2d 1, 3 (Fla.1992). In Timmons, the Court noted “that the circumstances under which a party is entitled to costs and attorney’s fees is substantive” and thus governed by statute and that rule 1.442 “can only control procedural matters.” Id. at 2-3.

In 1996, the Court adopted the current version of rule 1.442. In re Amendments to Florida Rules of Civil Procedure, 682 So.2d 105 (Fla.1996). The rule now provides for service of a proposal for settlement, the form and content of that proposal, service and filing, withdrawal, acceptance and rejection, a method for requesting sanctions, a method for the determination of costs and fees, the admissibility of a proposal and the effect of mediation. The Court accepted amendments recommended by the Committee that covered procedural matters, but rejected those that infringed upon substantive issues. The Court explained that it could not accept amendments affecting entitlement to attorney’s fees because it concluded that it was the “legislative prerogative to enact substantive law.” Id. at 106.

Analysis

The Florida Supreme Court has held that the language of section 768.79, as well as rule 1.442 which implements it, “must be strictly construed because [they] are in derogation of the common law rule that each party pay its own fees.” Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). See also Major League Baseball v. Morsani, 790 So.2d 1071, 1077-78 (Fla.2001); Gershuny v. Martin McFall Messenger Anesthesia Professional Ass’n, 539 So.2d 1131, 1132 (Fla.1989). Further, because an award under the offer of judgment statute serves as a penalty, the strict-construction rule must be applied “in favor of the one against whom the penalty is imposed,” and the statute must never be “extended by construction.” Sarkis, 863 So.2d at 223.

The contract between Tierra and Mercantile contains a broad attorney’s fees provision. The purpose of such a provision is “to ‘protect and indemnify’ the interests of the parties, not to enrich the prevailing party.” Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla.2005). Contractual awards of fees are intended to make the prevailing party whole through reimbursement of the expense of litigation. Cheek v. McGowan Elec. Supply Co., 511 So.2d 977, 979 (Fla.1987). A trial court does not have discretion to decline to enforce such a provision once it is determined that a party prevailed in its claim under the contract. Lashkajani, 911 So.2d at 1158.

In the case before us, nothing in the language of the contract limited a prevailing party’s entitlement to an award of fees based upon the opposing party’s offer to settle. Further, nothing in the language of section 768.79 authorizes the modification of a contractual right to attorney’s fees. Reading an implicit cut-off into the offer of judgment statute, as advocated by Tierra, would deny Mercantile complete reimbursement for its litigation expenses and, thus, the contractual indemnification for which the parties bargained. Such a reading would also be contrary to the rules of construction set forth by the Florida Supreme Court. See Wills Shaw Express, Inc., 849 So.2d at 278; Sarkis, 863 So.2d at 223.

Tierra argues that applying the cut-off rule in the context of this case is merely an extension of prior case law holding that the prior rule 1.442 cut-off a party’s entitlement to post-offer contractual fees and costs. See Giglio v. Werner, 503 So.2d 1380 (Fla. 2d DCA 1987); see also Fixel Enterprises Inc. v. Theis, 507 So.2d 697 (Fla. 1st DCA 1987). Tierra also cites to several cases which interpret section 768.79 and recognize that a valid proposal for settlement, under the offer-of-judgment statute, cuts-off a party’s entitlement to post-offer costs under section 57.041, see Goode v. Udhwani, 648 So.2d 247 (Fla. 4th DCA 1994), as well as a party’s entitlement to post-offer fees under section 627.428. See Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994).

We find these cases distinguishable and unpersuasive.

In Giglio, the plaintiff sought to enforce a promissory note that contained a provision requiring the payment of attorney’s fees incurred in enforcing payment of the note. 503 So.2d at 1381. Although the plaintiff prevailed in her claim, she was denied attorney’s fees incurred after the date of the defendant’s first offer of judgment since the plaintiff did not obtain a judgment more favorable than the offer. The Second DCA affirmed, concluding “that where ... a judgment includes attorney’s fees awarded pursuant to a contract, the trial court is proper in excluding that part of the entitlement to attorney’s fees which represents fees for services performed after the rejection of a bona fide offer made pursuant to rule 1.442.” Id. at 1382. The basis for this ruling was the promotion of “the purpose and policy behind the rule [to] encourage[] settlement and discourage! ] unnecessary litigation.” Id. We believe that this extension of then rule 1.442, a cost-shifting rule, is questionable in light of the Florida Supreme Court’s subsequent pronouncement that the rule did not authorize attorney fees as a sanction. Sarkis, 863 So.2d at 218 n. 5. As the Court made clear in Timmons, the determination of entitlement to fees and costs is a substantive issue and the rules enacted by the court can only control procedural matters. 608 So.2d at 2-3. In view of these pronouncements by the Florida Supreme Court, we cannot agree with Tierra that the Giglio case offers any support for the proposition being advanced.

In Fixel Enterprises, Inc. v. Theis, Fixel Enterprises, a building contractor, had entered into a construction contract with Theis in which it agreed to build a home. 507 So.2d at 698. A dispute arose and Theis sued Fixel for breach of contract and negligent construction, seeking $18,000 in damages at the time of trial. A week before trial, Fixel offered to pay Theis $2,500 in full settlement of the claim, but this offer was refused. On the day of trial, Fixel made another offer to settle for $1,500, but this offer was also refused. The jury returned a verdict awarding Theis $1,000. When Theis sought attorney’s fees and costs pursuant to a provision of the construction contract, Fixel argued that Theis was not the prevailing party under the contract because Theis failed to recover an amount greater than offered by Fixel to settle the case. In making this argument, Fixel relied substantially on C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177 (Fla.1985), which interpreted the mechanics lien law statute, section 731.29, to require a litigant seeking “prevailing party” attorney’s fees pursuant to that statute to have recovered an amount exceeding that which was earlier offered in settlement of the claim. This court rejected Fixel’s argument and declined to extend the definition of “prevailing party” in the context of section 713.29 to the term as it was used in the parties’ contract. Fixel, 507 So.2d at 699. However, this court noted that the case did not involve Florida Rule of Civil Procedure rule 1.442, and had Fixel availed itself of the protection of that rule, “liability for costs” would have been different. Id. This court certified a question to the Florida Supreme Court.

The Florida Supreme Court answered this question in the negative and approved this court’s decision. Fixel Enterprises, Inc. v. Theis, 524 So.2d 1015, 1016 (Fla.1988). The court agreed with this court that had “Fixel ... made its offer of settlement pursuant to rule 1.442 it would have not been liable for costs incurred after making of the offer.” Id. at 1017 n. 1 (emphasis added). In its opinion, the court distinguished the case before it from C.U. Associates, noting that “[t]he definition of ‘prevailing party’ adopted in C. U. Associates was based on the underlying policy of section 713.29 to ‘encourage settlement of disputes before resorting to litigation.’ ” Id. at 1017 (quoting C. U. Associates, 472 So.2d at 1178). The court also noted that the result in C.U. Associates was required because to hold otherwise would have defeated the goal section 713.29 was intended to achieve. The court contrasted this to the case before it where “[n]one of these policy considerations are implicated.” Id. This conclusion is important because the case before the court pertained to a contractual fees and costs provision while C.U. Associates pertained to a statutory fees claim. We read the Fixel majority opinion to stand for the proposition that a contractual attorney’s fee provision does not implicate the same policy concerns as a statutory fee provision.

In Goode, the appellee had failed to obtain a judgment greater than 75% of the offer made by appellant pursuant to section 768.79, yet the trial court denied the appellant’s motion for fees and costs and awarded costs to appellee pursuant to section 57.041, Florida Statutes (1991). After concluding that appellant should have been awarded fees and costs under section 768.79, unless the offer was not made in good faith, the Fourth District reversed the trial court’s award of costs incurred after the appellant’s offer was filed, concluding that section 768.79 controlled over section 57.041. 648 So.2d at 248. The court rejected the appellee’s argument that the statutes should be read together to allow both appellee’s recovery of costs through trial and appellant’s recovery of costs from the date of the offer forward. The court reasoned that this “would negate at least part of the penalty which the legislature intended to impose.” Id.

Goode involved an apparent tension between two statutory provisions, and the Goode court resolved this tension in favor of a result that it concluded made “the best sense out of [the] legislative entanglements.” Id. (quoting Moore v. State, 343 So.2d 601, 604 (Fla.1977)). In the case before us, however, there is tension between a statute and a contractual provision. Because the purpose underlying section 768.79 fees and costs is different than the purpose of a contractual fee and cost provision, this court cannot resort to the canon of statutory construction utilized in Goode and is constrained by the admonition of the Florida Supreme Court that it may not extend section 768.79 by construction. Sarkis, 863 So.2d at 223.

In Danis, the Florida Supreme Court addressed a certified question regarding whether the “prevailing party” test of Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), applied to an award of attorney’s fees pursuant to sections 627.428 and 627.756, Florida Statutes (1989). 645 So.2d at 421. Section 627.428(1), made applicable to performance bonds written by a surety insurer by section 627.756, provided a one-way-street whereby an insured or beneficiary of an insurance policy could recover attorney’s fees upon obtaining a judgment against an insurer. The public policy behind the fees provision in the statute was “to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue to enforce their policies.” Id. The statute offered no similar prospect to an insurer and did not require a court to consider whether the insured prevailed on all issues raised. Consistent with the purpose of the statute to discourage insurers from contesting valid claims, the Danis court explained “that an insurer or surety relieves itself from further exposure to the insured or beneficiary’s attorney fees at the point in time that the insurer or surety offers in settlement the full amount which the insured or beneficiary would be entitled to recover from the insurer or surety at the time the offer is made”; and “an insured or beneficiary cannot continue to incur attorney fees and costs or accrue interest and have those awarded against the insurer or surety after the insurer or surety has offered the full amount for which it has liability on the date it offers to make the payment.” Id. at 422. Tierra relies upon this dicta and contends that the same rule applies here because, at the point the offer was made, it included contractual damages and litigation expenses.

We agree with the trial court that Danis is distinguishable because it did not involve competing claims for attorney’s fees based upon two separate and distinct grounds. We adopt the following reasoning of the trial court:

While the approach in Danis to deny the ability to recover post-offer attorney’s fees and costs was in harmony with the statutory purposes behind § 627.428, Fla. Stat., that same rationale does not strike the proper balance between the purpose behind contractual provisions that provide for prevailing party attorney’s fees and the purpose behind § 768.79, Fla. Stat. As explained above, the prevailing party continues to have incentive to avoid further litigation in the face of a reasonable offer because any attorney’s fees awarded to the opposing party will diminish the overall recovery for the prevailing party at the conclusion of litigation or, quite possibly, even result in a final judgment against the prevailing party. The sanction under § 768.79, Fla. Stat., still has teeth regardless of whether a prevailing party can recover their post-offer fees and costs. On the other hand, to “cut-off’ all attorney’s fees and costs under the contract provision after a proposal for settlement would severely undermine the prevailing party’s ability to obtain complete indemnification as contemplated by the terms of the contract.

Finally, turning to Tierra’s reliance on White v. Steak and, Ale of Florida, Inc., 816 So.2d 546 (Fla.2002), we find White distinguishable as it was concerned with the definition of “judgment obtained” in section 768.79. White concluded that “judgment obtained” includes “the net judgment for damages and any attorneys’ fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer,” explaining that “[i]t is this judgment to which the offer must be compared in determining whether to award fees and costs.” Id. at 551. The White court did reference Danis in a footnote stating that “[ajlthough Danis ... involved an award of fees under 627.428, we see no reason why this rationale should not apply equally to offers or demands made under section 768.79(6).” Id. at 551 n. 5. Again, we agree with the following rationale employed by the trial court in rejecting Tier-ra’s contention that the language of this footnote supports the “cut-off’ argument being made here:

[T]he court in White relied on Danis only for the proposition that any offer should include attorney’s fees and costs up to the point and time the offer was made. The portion of the Danis decision stating that an insurer or surety can relieve itself from any further obligation to pay attorney’s fees and costs by offering the full amount of settlement did not, in any way, factor into the White decision. The statement in White approving of the reasoning in Danis does not extend to every aspect of the Danis opinion, nor does it mean that Danis should control in every situation that calls for an interpretation of § 768.79.

AFFIRMED.

BENTON, C.J., and WEBSTER, J., concur.

      . The contract specifically provided as follows:

        Attorney’s Fees. In the event of litigation in connection with this Contract, die prevailing party shall be entitled to reimbursement from the other for all costs and expenses incurred in connection therewith, including reasonable attorney’s fees at trial, including without limitation any appeal, and in connection with any bankruptcy.

      . Of the $178,200, Tierra would pay $178,100, and Diamond would pay $100.

      . See Price v. Tyler, 890 So.2d 246, 252 (Fla.2004) (" ‘costs’ are not generally understood as including attorneys fees.").

      . Section 45.061, a similar offer-of-judgment statute, was repealed with respect to actions accruing after October 1, 1990. Ch. 90-119, § 22 at 381, Laws of Fla.

      . In concurrence, Justice Grimes noted "that at least some of the policy considerations behind C.U. Associates [were] also applicable” in the case before the court, but he supported the majority decision because he was "somewhat apprehensive over the wisdom of the rule adopted in C.U. Associates, and [he did] not wish to see it extended to cases involving contractual provisions for attorneys’ fees.” Fixel, 524 So.2d at 1017 (Grimes, J., concurring). By contrast, Justice Overton explained in dissent "that most all of the policy considerations which [supported the court’s] decision in [C.U. Associates were] fully applicable to the circumstances in the” case before the court. Fixel, 524 So.2d at 1017 (Overton, J., dissenting). Thus, in the dissent’s view, there was "no justifiable reason to distinguish between a provision enacted by statute and a provision incorporated in a contract.” Id.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    BOCA CONCEPTS, INC., Appellant, v. METAL SHIELD CORP., Appellee.
    No. 4D09-3038.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.

      William J. Cornwell of Weiss, Handler, Angelos & Cornwell, P.A., Boca Raton, for appellant.
    Kenneth E. White and Bradley M. Sel-din of Law Offices of Steven M. Ziegler, P.A., Hollywood, for appellee.
   POLEN, J.

Appellant, Boca Concepts, Inc., appeals the trial court’s final judgment in favor of Appellee, Metal Shield Corp., as to the claims raised in Boca Concepts’ complaint (breach of contract and specific performance) after Metal Shield allegedly breached the terms of the operating agreement which created Metal Shield, LLC (“Joint Company”).

During the bench trial, the following evidence was adduced. Scott Levine owned 100% of Boca Concepts, Inc., and Haim Michaeli owned 100% of Metal Shield Corp. In January 2000, Levine and Michaeli formed the Joint Company. Boca Concepts and Metal Shield each held a 50% interest in the Joint Company. Upon forming the Joint Company, the parties executed an Operating Agreement which provided for the procedure for withdrawal of one of the partners from the partnership in Article XIV, entitled “WITHDRAWAL/PUT CALL.” That Article provided, in part:

ARTICLE XIV
WITHDRAWAL/PUT CALL
A. Notice of Withdrawal. As a means of resolving any future deadlock or disagreement among the Members from and after January 1, 2001, or in the event any Member shall desire to withdraw from the Company, after such date, then such Member (the “Offeror”) shall have the right to tender to the other Member (the “Offeree”) an offer (the “Offer”) to sell the Company Interest owned by the Offeror under the procedures set forth below. If the Offer is not accepted by the Offeree within the time limit set forth below, such Offeree shall be obligated to purchase, and the Offeror shall be obligated to sell to the Offeree all the Company Interest owned by the Offeror, upon the same price on the same terms as the offer made under this paragraph.
B. Notice. The Offer hereunder shall be made by written notice to the Offeree which shall state that it wishes to sell all the Company Interest held by the Offer- or. Such notices shall specify the price and terms of the proposed sale and shall include the address of the Offeror....
C. Duration of Offer. The Offer made under subparagraph A shall be irrevocable for a period of thirty (30) days from and after the receipt of such offer by the Offeree. Notice of acceptance shall be sufficient if delivered within thirty (30) days given or in writing to the Offeror. In the event the offer shall be accepted by the Offeree, the parties shall close such transaction within thirty (30) days of acceptance and upon closing, the Offeror shall cease to be a Member of the Company.
D. Failure to Accept. If the Offeree rejects or fails to accept the offer within the time provided, the Offeror shall be obligated to purchase and the Offeree shall be obligated to sell all the Company Interest held by the Offeree within thirty (30) days after the expiration of the thirty (30) day acceptance period, at a price and on the terms provided in the Offer made under subparagraph A above. Upon closing of such sale, the selling Member shall cease to be a Member in the Company.

In the event of breach of Article XIV, the Operating Agreement provided for the remedy of specific performance.

Levine testified that, on March 20, 2008, he received a written offer from Michaeli, pursuant to Article XIV, to purchase Mi-chaeli’s interest in the Joint Company. The reference line of the letter referred to “notice of withdrawal/put call,” and the letter stated, in part:

Based on our recent conversations, I would like to put forth a notice of withdrawal and establish terms and conditions for closing. As I stated to you, I am offering you to purchase all the company interest that I own (Metal Shield Corp.) under the procedures set forth below:
1.“Company interest” shall include all of the following: All of the tangible and intangible assets of Metal Shield Corp., inventory, orders and contracts, supplies, equipment, and all related assets used in the business operation.
2. All work in progress, receivables and liabilities shall be allocated accordingly at closing.
3. I offer to sell all of the interest I hold in Metal Shield Corp. for the total price of $400,000 which shall be paid in cash at the closing. Within five business days of acceptance of this offer, you shall deposit $100,000 into a trust account of an attorney of my choosing to be disbursed upon closing.
4. Acceptance of this offer shall be within thirty days from the date of this letter.
Should you decline the above offer to purchase my interests, I offer to proceed with purchasing your interest in the business (Boca Concepts, Inc.) under the same terms above.

Though the offer referenced Metal Shield Corp. and Boca Concepts, Inc., Levine knew that those corporations existed solely to hold Michaeli’s and Levine’s interest in the Joint Company. Neither corporation held an interest in any other entity.

Levine never told Michaeli whether he intended to accept his offer and purchase Michaeli’s interest in the Joint Company. Instead, Levine remained entirely silent on the point for thirty days, knowing that the Operating Agreement required Michaeli to purchase Levine’s interest in the Joint Company on the same terms if Levine did not accept the offer to purchase Michaeli’s interest. After thirty days passed, Levine told Michaeli that, because Levine had not accepted the offer, Michaeli had to buy Levine out.

On April 29, 2008, Metal Shield’s attorney sent Levine a letter in reference to “Letter of Intent to Purchase Boca Concepts, Inc.’s Interest in Metal Shield L.L.C.” The letter stated that in accordance with Article XIV of the Operating Agreement of Metal Shield, L.L.C., Metal Shield Corp. was obligated to purchase all of Levine’s interest in Metal Shield, L.L.C. “upon the same price on the same terms as the original offer (dated March 20, 2008).” The letter went on to state that the parties were obligated to proceed in accordance with the terms of the Operating Agreement and the March 20, 2008 offer and that all terms not yet specified would be set forth in a purchase agreement and one or more definitive agreements to be mutually agreed upon by the parties.

On May 28, 2008, Michaeli sent Levine a letter referencing “Revocation of Metal Shield Corp. March 20, 2008 Letter,” which revoked any offers of Metal Shield Corp. and/or Haim Michaeli and advised that the March 20 letter did not invoke Article XIV of the Operating Agreement. Specifically, the letter stated, in part:

Metal Shield Corp.’s March 20, 2008 letter only referred to the sale of the assets of Metal Shield Corp. It was not an offer to sell only Metal Shield Corp.’s membership interest in Metal Shield LLC. Therefore, this March 20, 2008 letter was not within the specific terms of Article XIV of the Operating Agreement. Neither you nor Boca Concepts Inc. has accepted an offer to purchase such corporate assets of Metal Shield Corp. Since this letter revokes any offer of Metal Shield Corp. to sell its assets, prior to any acceptance, the March 20, 2008 letter is a nullity.

However, on cross-examination, Michaeli confirmed that his company, Metal Shield Corp. had no assets other than its interest in the Joint Company. Further, Michaeli testified that when he wrote the March 20 letter offering to sell his share of the Joint Company to Levine, he intended the letter to be in accordance with Article XIV.

The trial court, however, found that the March 20 letter was an offer according to its own terms, and was neither an offer nor written notice as contemplated by Article XIV because the letter made no mention of either the Joint Company or Article XIV. The court further determined that even if Levine could show that an offer was made under Article XIV, he may not be entitled to relief because the last sentence in Paragraph A of that Article actually provides that if Levine did not accept Michaeli’s offer for Levine to purchase Michaeli’s interest in the company within thirty days, Levine would be obligated to purchase Michaeli’s interest in the company. Thus, the court stated, “[i]f invoked, subparagraph A of Article XIV would impose the obligation to purchase on Plaintiff not upon Defendant.” Based on the foregoing, the trial court entered judgment in favor of Metal Shield Corp. on all counts. Boca Concepts now timely appeals.

Boca Concepts argues the trial court erred in determining that Article XIV was never invoked and in entering judgment in favor of Metal Shield Corp. because the March 20 letter clearly satisfied the requirements of Article XIV and constituted an offer, and once Levine failed to accept the offer within thirty days, Metal Shield Corp. was obligated to purchase Boca Concepts’ interest in the Joint Company on the same terms.

A trial court’s interpretation of a contract is subject to de novo review. Rose v. Steigleman, 32 So.3d 644, 645 (Fla. 1st DCA 2010). The court’s findings of fact are reviewed using a substantial and competent evidence standard. Thomas v. Vision I Homeowners Ass’n, 981 So.2d 1, 2 (Fla. 4th DCA 2007). This court must determine: (A) whether the March 20 letter constituted an offer which triggered Article XIV; and if so, (B) whether a contract was created.

A. Whether the March 20 letter constituted an offer within the meaning of Article XIV.

The trial court’s dispositive determination was that the March 20 letter was neither an offer nor written notice as contemplated by Article XIV. The trial court based its determination on the fact that the letter did not reference Article XIV and did not mention the Joint Company. Instead, the court found that letter was written by Michaeli as President of Metal Shield Corp. and offered to sell Levine, as President of Boca Concepts, Inc., all of Michaeli’s assets in Metal Shield Corp.

Article XIV, Subparagraph B establishes the elements of an offer:

B. Notice. The Offer hereunder shall be made by written notice to the Offeree which shall state that it wishes to sell all the Company Interest held by the Offer- or. Such notice shall specify the price and terms of the proposed sale and shall include the address of the Offeror.

Subparagraph B does not require that the Joint Company be mentioned in the letter or that the offer specifically reference Article XIV.

Contrary to the trial court’s findings, it is clear that Michaeli’s March 20 letter contained all of the elements required by Subparagraph B. Moreover, the “Re:” line referenced “Notice of Withdrawal/Put Call” which was the title of Article XIV. The letter also tracked the procedure established by Subparagraph A of Article XIV insofar as it provided thirty days within which Levine could accept the offer, stated that closing would occur within thirty days of acceptance, and reiterated that if Levine did not purchase Michaeli’s interest, Michaeli would purchase Levine’s interest on the same terms stated in the letter.

Although the letter referred to Boca Concepts, Inc. and Metal Shield Corp., and did not refer to the Joint Company, it was clear from the testimony at the hearing that Boca Concepts, Inc. existed for the sole purpose of holding Levine’s interest in the Joint Company and Metal Shield Corp. existed for the sole purpose of holding Michaeli’s interest in the Joint Company. Therefore, to conclude, as the trial court did, that the offer did not involve the Joint Company and only involved Michaeli’s interest in Metal Shield Corp. is to draw a distinction where there is no practical difference.

Furthermore, the Operating Agreement states at the outset that it is between Metal Shield Corp. and Boca Concepts, Inc. and that each such corporation will sometimes be referred to as “Member” and collectively as “Members.” Subpara-graph A. under Article XIV provides that “in the event any Member shall desire to withdraw from the Company” then such Member shall have the right to tender to the other Member to sell the Company interest owned by that Member to the other Member. Therefore, the Operating Agreement provided for Metal Shield Corp., as a Member of the Joint Company, to offer to sell its interest in the Joint Company, to Boca Concepts, Inc. The fact that the March 20 letter referred to the respective Members and their interests in their corporate capacity does not prevent the March 20 letter from constituting a Notice of Withdrawal under Article XIV. Instead, references to the separate corporations that made up the Members of the Joint Company were appropriate. The only way the March 20 letter could have been made clearer would have been to specifically reference the Member corporations’ respective interests in the Joint Company. Instead, the letter referenced the interest held by each of the Member companies.

Finally, if there were any doubt as to the intent of Michaeli in the March 20 letter, Michaeli’s attorney clearly stated in the April 29 letter that Michaeli had made an offer in the March 20 letter and that pursuant to Article XIV, Metal Shield Corp. was obligated to purchase all of Levine’s interest in the Joint Company for the same price and on the same terms as those stated in the original offer dated March 20, 2008. Though the trial court concluded that the attorney’s statements had no effect, the statements prove that the March 20 letter was an offer pursuant to Article XIV.

Because we find that the March 20 letter triggered Article XIV, we must determine whether Boca Concepts’ action or inaction created a contract between the parties.

B. Whether a contract was created.

After determining that the March 20 letter was not an offer under Article XIV, and was instead an offer according to its own terms, the trial court concluded that the parties never assented to all the same essential terms because they were still negotiating at the time of Michaeli’s revocation of his March 20 letter. However, because we have found that the March 20 letter was an offer under Article XIV, we must also determine whether that offer was ever accepted.

Subparagraph D of Article XIV, entitled “Failure to Accept” provides:

D. Failure to Accept. If the Offeree rejects or fails to accept the offer within the time provided, the Offeror shall be obligated to purchase and the Offeree shall be obligated to sell all the Company Interest held by the Offeree within thirty (30) days after the expiration of the thirty (30) day acceptance period, at a price and on the terms provided in the Offer made under subparagraph A above. Upon closing of such sale, the selling Member shall cease to be a Member in the Company.

The provision clearly states that, if the Offeree rejects or fails to accept the offer, the Offeror is then obligated to purchase the Offeree’s share of the company on the same terms as those provided in the offer. Here, not only did Levine fail to affirmatively accept the offer, but Michaeli testified that Levine rejected the offer orally. According to Michaeli’s testimony, shortly after he sent Levine the March 20 offer letter, Levine approached him and said “I am not going to buy you.” Therefore, Metal Shield Corp. was obligated to purchase Boca Concepts’ interest in the Joint Company on the same terms as provided in the initial offer of March 20.

Finally, the trial court did point out that Paragraph A may not provide for the relief sought because it actually required Boca Concepts to purchase Metal Shield Corp.’s interest if Boca Concepts failed to accept the offer within thirty days. The court reached this conclusion after replacing the terms “Offeror” and “Offeree” with “Defendant” and “Plaintiff’ throughout the paragraph. Paragraph A is confusing in this regard, and it seems obvious that this was a typographical error. Paragraph D, the “Failure to Accept” provision, seems to accurately state the parties’ intent, and it provides that if the Offeree fails to accept within thirty days, the Offeror becomes obligated to purchase the Offeree’s share of the Joint Company. It is clear from the proceedings below that both parties ascribed the same meaning to Article XIV. Moreover, as Boca Concepts points out, no party raised this issue below or argued regarding any ambiguity in the contract. Therefore, the trial court was not permitted to base its decision on this ground. Collins v. Bannon, 774 So.2d 66, 67 (Fla. 2d DCA 2000) (“A judgment may not be based on an issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties.”).

We hold that the trial court erred in concluding that the March 20 letter was not an offer pursuant to Article XIV and that the parties never reached an agreement.

Reversed and Remanded.

HAZOURI and CIKLIN, JJ., concur.

      . Although the sentence following in paragraph 4 is not clear in the record, it is to the effect that closing shall occur within thirty days of the date of acceptance of the offer.


author: PER CURIAM.

text:
    Rebecca Zellner GRUNZKE, Appellant, v. Burgess Burr MASON, III, Appellee.
    No. 1D10-5206.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Rehearing Denied Feb. 6, 2012.
    Sharon H. Proctor, Lake St. Louis, MO; Stephanie N. Mack of Law Offices of Stephen K. Miller, P.A., Gainesville, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Rebecca Zellner Grunzke appeals (1) an amended supplemental final judgment entered August 25, 2010, which incorporated a modification of the final judgment entered December 28, 2009, nunc pro tunc December 17, 2009; (2) an order dated December 28, 2009, approving the parenting plan; (3) an order dated February 24, 2010, appointing a parenting coordinator; (4) an order dated January 13, 2009, nunc pro tunc December 11, 2008, disposing of various pending motions; and (5) an order dated February 1, 2010, denying rehearing. Based on our review of the extensive record in this matter and the brief submitted by appellant, we find no reversible error committed below. Accordingly, we affirm all judgments and orders for which appellant seeks review.

AFFIRMED.

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


author: SCHWARTZ, Senior Judge.

text:
    Edward J. LoCASCIO, Appellant, v. The ESTATE OF Silvia M. LoCASCIO, Appellee.
    Nos. 3D10-2576, 3D10-3449.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Austin Carr, Coral Gables, for appellant.
    Golden & Cowan and William J. Glasko, for appellee.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Edward J. LoCascio appeals from an order removing him as successor personal representative of his deceased mother’s estate. See LoCascio v. Sharpe, 23 So.3d 1209 (Fla. 3d DCA 2009); see also Golden & Cowan, P.A. v. In re Estate of Locasdo, 41 So.3d 1113 (Fla. 3d DCA 2010). Because the “hearing” which preceded the ruling did not meet even the most rudimentary requirements of due process, including without limitation the presentation of evidence, it is reversed and the cause remanded with directions to reinstate the appellant as personal representative and for the prompt final resolution of this already over-protracted proceeding.

      . We consider that this ruling obviates any reason for a curator or any other extraneous entity to administer the estate.


author: TAYLOR, J. GERBER, J., PER CURIAM.

text:
    Jarod THEOPHILE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5328.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.
    Opinion on Clarification and/or Rehearing Nov. 23, 2011.

      Philip J. Massa, Regional Counsel and Randall Berman, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant Jarod W. Theophile appeals his conviction and sentence for robbery with a firearm. We reverse and remand for discharge because the evidence was legally insufficient to convict the defendant as a principal on the robbery charge.

Dwight Carter, the fifty-three-year-old victim, testified that on May 17, 2009, just before 8:00 p.m., he was riding his bicycle on Australian Avenue in West Palm Beach. He had just left his girlfriend’s apartment and was on his way to the Majestic gas station store. He rode past a bus stop, where he noticed three young men on bicycles. He paid little attention to them until he saw that they were riding in his direction and were behind him. As Carter got closer to the store, they sped up. The young men reached Carter at the same time and surrounded him — one went to his left, one went directly behind him, and one went the other way and continued riding ahead. The man who stopped behind Carter had a gun and told him to pull between two buildings and keep riding or else he would shoot. Carter stopped and jumped off his bike. He described the gun as a two-shot silver Derringer.

Carter held his hands up. One of the two men pointed the gun at him while the other man searched his pockets. The man who was searching Carter told the man with the gun, “you ought to shoot him anyway.” Carter protested “no, man, you got everything you want, just let me go.” The men took $40, threw Carter’s wallet and watch on the ground, and then rode back to the sidewalk and off to a nearby bridge.

The defendant, the third bicyclist who had continued riding ahead when the two men stopped Carter, had gone around the corner nearly a block away to a small bridge. Carter said he saw the defendant on his bicycle looking back and watching while he was being robbed. The defendant just looked and did nothing to help Carter or stop the robbery. Carter said he never heard the defendant say or do anything during the robbery, but he could see him standing at the bridge looking back. After the two men robbed him, they rode to the bridge where the defendant was watching on his bicycle. The three men then rode their bicycles down the railroad tracks.

Carter picked up his things and ran to a phone to call 911. The police responded and took Carter to a park a few miles away near the railroad tracks. There, Carter identified three people as the ones who robbed him. He identified co-defendant Avery Hubbard as the person who searched him and Jaron Miller as the man with the gun. He identified the defendant as the person who rode by and watched from the bridge while he was robbed. Carter was positive that the defendant was not one of the two men who took him between the buildings and searched him at gunpoint. Carter also identified the bicycles. Only fifteen minutes elapsed between the robbery and his identification of the three suspects.

On cross-examination, Carter agreed that when the two co-defendants were searching him at gunpoint, the defendant had already bicycled away to the bridge and traveled about a block away. He conceded that, although he thought the defendant was a lookout, he never heard the defendant say or do anything. He testified as follows:

Defense counsel: Okay. Now, you referred to him as a lookout. Do you — did he do or say any hand gestures or anything that made it look like he knew exactly what was going on?
Carter: Only thing I know, the guy was coming not he bicycle. They all came at the same time, and he was there when I got robbed, and he watched me with my hands up in the air, you know. And when they left, they left — all three left all together the same time they left.

Carter said the defendant was about a block away but he was close enough to see that he was getting robbed. At one point, Carter testified that the defendant “was still riding to the bridge where, you know, he making motions where everybody get surrounded and meet one another at the same time and him keep me from going— being at a safe distance where I couldn’t get away from nobody.” But Carter also admitted that the defendant “never hollered or said anything to anybody, he was just there looking in the crowd.” When asked specifically what the defendant did, Carter replied, “He did nothing. He didn’t say nothing. I don’t know who he was. All I know is he was with the same people that was — when I was getting robbed.” He acknowledged that the defendant left the area where he was robbed and went up the bridge and just looked.

Officer John Rebholz testified that he was on routine patrol when the armed robbery call went out. After receiving the BOLO, he began looking for the suspects. He found three young men in dark clothing riding bikes near 21st Street (Coleman Park) and stopped them. Rebholz spoke with Hubbard. He was present when Carter identified the three co-defendants as the robbers.

Officer William Nealy responded to the area near Coleman Park. He saw that the other officers had three people detained, including the defendant. Nealy began walking from the park back to the robbery location and found six twenty-dollar bills spread out on the ground.

Officer Mickey Allen responded to the armed robbery call near Coleman Park and took custody of the defendant. When he patted down the defendant, Allen found a small caliber handgun in his front right pocket.

Crime Scene Investigator Amy Milstead testified that she photographed and collected six twenty-dollar bills that were all spread out along the railroad tracks. She also took possession of the gun at the station; it was fully loaded.

Detective Craig Bryan took three taped statements from the defendant. In the first interview, the defendant maintained he did not rob anyone. He said he first met with Miller and Hubbard when they came by his cousin’s house and picked him up. They were going to the basketball court. The defendant told Detective Bryan that Miller and Hubbard broke off from him when they got near Carter, and that he kept riding. The defendant denied Detective Bryan’s accusations that he was not telling the truth. When Bryan told the defendant that Carter identified him as the one with the gun, the defendant adamantly denied that. Bryan admitted this was not true. Then the officer suggested to the defendant that as a lookout, and being only eighteen years old, he would stand a good chance of being set free because the State Attorney’s Office did not view the lookout as a person actually committing a robbery. The defendant persisted that he was not a lookout and that he just kept riding away from the others. Throughout the interview, the defendant maintained that he was far away from the area where Carter was robbed and that he was not involved.

In the second taped statement, the officer told the defendant that he was in more trouble because he had the gun in his pocket and one of the co-defendants said he was there. Defendant responded that he rode ahead and when he looked back he saw the victim picking something off the ground. He heard the victim say that they had robbed him of ten dollars. Defendant said that the gun was given to him later by the co-defendant, who asked him to hold it when they stopped and got candy from the Candy Lady at a house near the park.

In the third statement, the detective asked the defendant again what he did during the robbery. Defendant said, “[S]ir, I didn’t do anything.” He said he could see something going on between the buildings, and when the two co-defendants came up to him on their bikes, he followed behind them. The defendant denied knowing what was going on or having any role in the robbery. Eventually, after the detective kept insisting that he was a lookout and involved in the robbery, the defendant told the detective he could consider him a lookout if that was what he wanted to call it. At trial, however, the detective conceded that the defendant did not confess to being a lookout and that he maintained his innocence throughout the three statements.

After the state rested, the defense moved for a judgment of acquittal. In denying the motion, the trial court re-fei’red to the victim’s testimony that he believed the defendant was acting as a lookout because he was standing on the bridge about a block away, well within a distance to be able to see what occurred, and that he felt that all three people were involved.

The defendant took the stand and testified. He said that on the date of the incident, he was at his cousin’s house and met up with Miller and Hubbard. They were going to play basketball at Coleman Park. All three of them were riding bikes. The defendant said he kept riding to the gas station, but Miller and Hubbard just turned off with no explanation. He saw Carter going toward the buildings. The defendant said he was about a car-length in front of his friends. He did not hear them say anything. He rode past Carter, looked back, and saw no one was behind him. He saw the others when he got over the bridge. Then he saw Miller and Hubbard riding towards him, and Carter picking something up. It was not until he saw Carter picking something up that he saw Carter; he did not see Carter with his hands raised. The defendant heard Carter say, “you all just going to take my ten dollars like that?” According to the defendant, the bridge where he stood was about a block away from the buildings.

After the co-defendants joined him, they rode over to the Candy Lady, who sold candy out of her house. He said the “jit,” “[t]he little kid,” meaning Miller, was going through his pockets pulling out money to pay the Candy Lady, and he told the defendant to hold the gun so he could eat his stuff. The defendant did not know what happened, but thought it was suspicious. He said he had known Miller for only two days, and he took the gun because he “wasn’t thinking at the point in time.” They went to Coleman Park, where the police arrested them. They searched the defendant and found the gun in his pocket. Neither Miller nor Hubbard said anything to him beforehand about doing anything illegal. He did not hear either of them tell Carter to pull over or he would be shot.

The defendant acknowledged that he waived his rights at the police department and admitted to the officer that he had a concealed weapon on him. However, he consistently denied being involved in the robbery, and only after the detective kept saying he was the lookout did he, in exasperation, tell the officer he could consider him a lookout “if that’s what you want to call it.”

The defendant rested and renewed his motion for judgment of acquittal. He argued that there was no evidence that he had the conscious intent that a criminal act be committed or that he did something to incite, encourage, assist, or advise in the crime. The court denied the motion.

The jury found the defendant guilty of robbery with a firearm. It answered “No” to the special interrogatory whether he actually possessed a firearm. The jury also found the defendant guilty of carrying a concealed firearm. He was sentenced to ten years on the robbery count and five years on the concealed firearm charge.

“In ruling on a motion for judgment of acquittal, it ‘is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state.’ ” Hill v. State, 958 So.2d 549, 551 (Fla. 4th DCA 2007) (citations omitted). An appellate court reviews the denial of a motion for judgment of acquittal de novo, because the issue is purely a question of law, and it is in an equal position with a trial court to determine from the record the legal sufficiency of the evidence. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Smith v. State, 949 So.2d 253, 254-55 (Fla. 4th DCA 2007).

The defendant argues that the trial court erroneously denied his motion for judgment of acquittal because the evidence was legally insufficient to show that he was a principal to the robbery. “ ‘In order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.’ ” Hill, 958 So.2d at 551 (quoting Staten v. State, 519 So.2d 622, 624 (Fla.1988)). Mere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation. Id.

Here, the defendant’s intent to participate in the robbery before or during its commission was not sufficiently established. His actions consisted of riding his bicycle away from his two companions, who committed the robbery, looking back and waiting for them about a block away on a bridge, and later taking possession of the firearm that was used in the robbery. The fact that the defendant was in a position to look back and see the victim being robbed is insufficient to prove his intent to participate. No evidence was presented that he was aware his companions were planning to commit the robbery or that he did or said anything to encourage, aid, or assist them in committing the robbery. Further, the facts did not disprove or rebut the defendant’s explanation that he first came into possession of the gun when he unwittingly took it from one of the co-defendants when asked to do so. No competent substantial evidence refuted his denials of participation in the robbery and the reasonable possibility that he was merely a bystander who did nothing to assist, encourage, or aid in commission of the robbery. See State v. Law, 559 So.2d 187, 189 (Fla.1989).

The state argues that a jury could infer that the defendant was a principal based upon the testimony of the victim that he believed the defendant was a lookout for the two men who robbed him. However, the victim testified that the defendant did not actually do or say anything to indicate that he was a participant. He believed the defendant was involved because he rode his bicycle with the co-defendants before and after the robbery and he could .observe the robbery from the bridge a block away.

Relying on Hill, the state urges us to affirm the defendant’s robbery conviction. That case, however, is factually distinguishable. In Hill, the victim was robbed while on a bicycle. 958 So.2d at 550. He identified Hill’s cousin as the man who stole his money at gunpoint and Hill as the driver of the getaway car. Id. Shortly after the robbery, Hill, while driving the car, fled from the police in a high speed chase. Eventually the car was forced to stop at a dead end and a fence. The defendant exited the vehicle with his hands raised but then took off running through a gap in the fence. Id. Hill admitted that he was the driver of the car on the night of the robbery and that he watched his cousin rob the victim. Id. He claimed that he did not know what his cousin was going to do and did nothing to participate in the robbery. Id. at 550-51. We affirmed Hill’s robbery conviction, concluding that there was substantial evidence inconsistent with innocence and indicative of guilt. Id. at 552. In addition to Hill’s actions in watching his cousin rob the victim, waiting for him to get back in his car, and driving him away with the fruits of the crime and the gun, Hill fled from the police in a high-speed chase. Id. at 551-52. We stated that whether Hill’s flight was evidence of his intent to participate in the crime was a proper question for the jury. Id. at 552. Unlike Hill, in this case the defendant was not a getaway driver, nor did he flee from the police.

We find J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), to be more closely on point than Hill. In J.H., the victim was sitting on a bus bench when she was approached by two males. The perpetrator sat next to the victim, while the defendant stood behind the bench. The perpetrator grabbed the victim’s purse. The defendant took no part in the actual robbery and did not talk to the perpetrator. After the perpetrator took the purse, the defendant ran away with him. When apprehended, the defendant denied that he had done anything wrong. On those facts, the Third District held that the evidence that the defendant was present at the scene of the crime and fled it after it had been committed was “manifestly insufficient to exclude a reasonable hypothesis of innocence.” Id. at 1220. The court explained that the evidence “does not exclude the reasonable inference that the defendant had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission.” Id.

Like in J.H., we find the evidence to be manifestly insufficient to exclude the reasonable inference that the defendant had no knowledge of the crime until it actually occurred, and did not intend to assist in its commission. The defendant in the present case rode his bicycle past the victim while the other two men stopped the victim, forced him behind a building and robbed him. The defendant did not stop with the other two men, but instead rode a block away to a bridge, where, according to the victim, he stood and looked back. Merely observing or looking on as a crime is committed, without more, does not equate to acting as a lookout. Moreover, the victim’s subjective belief that the defendant was acting as a lookout was based on nothing more than the defendant’s mere presence at the scene.

Relying upon the victim’s virtually incomprehensible statement about the defendant “making motions where everybody get surrounded,” the dissent attempts to distinguish J.H. on the basis that in J.H. there was no evidence of the defendant attempting to curtail the victim’s ability to escape. We disagree, however, with the dissent’s suggestion that there was an adequate evidentiary basis to conclude that the defendant curtailed the victim’s ability to escape in this case. The victim ultimately admitted that the defendant did not actually say anything or do anything other than watch the robbery from the bridge. There was no evidence of anyone surrounding the victim other than the co-defendants, whom the defendant did not communicate with during the robbery, according to the victim’s own testimony.

Nor does the defendant’s conduct in continuing to ride his bike with the co-defendants to the park after the robbery and later taking possession of the firearm prove intent to commit the robbery either before or during its commission. Notably, there was no evidence that the defendant ever took possession of any of the money obtained in the robbery. We conclude that the defendant’s motion for judgment of acquittal should have been granted because the evidence was legally insufficient to establish that the defendant aided and abetted the co-defendants in the robbery and was a principal to robbery.

The defendant also argues that the trial court erred in overruling his objection to the detective’s testimony that he determined, after talking to non-testifying co-defendants during his investigation, that defendant was a lookout. We agree with defendant that this was prejudicial error which would require a new trial on the robbery charge. However, because we are reversing and remanding to discharge the defendant on the robbery conviction, we see no need to fully address this point on appeal.

Reversed and Remanded with directions to discharge the defendant’s robbery with a firearm conviction.

PEGG, ROBERT L., Associate Judge, concurs.

GERBER, J., concurs in part and dissents in part with opinion.

GERBER, J.,

concurring in part and dissenting in part.

I concur with the majority that the trial court erred in admitting the detective’s testimony, and that the admission of such testimony was not harmless. However, I respectfully dissent from the majority’s opinion that the trial court should have granted the defendant’s motion for judgment of acquittal. I would remand for a new trial.

The victim’s testimony, viewed in the light most favorable to the state, supports affirming the trial court’s denial of the motion for judgment of acquittal. See Jackson v. State, 18 So.3d 1016, 1025 (Fla.2009) (“[T]he trial court’s determination [denying a motion for judgment of acquittal] will be affirmed if the record, viewed in the light most favorable to the State, contains competent, substantial evidence supporting each element of the offenses.”) (citations omitted). The victim testified that the defendant was “watching what was going on the whole while ... looking at me while I was getting robbed.” According to the victim, the defendant “watched me with my hands up in the air ... he could see me in plain sight while I was getting robbed.” In the victim’s words, the defendant was “making motions where everybody get surrounded and meet one another at the same time and him keep me from going — being at a safe distance where I couldn’t get away from nobody.” After completing the robbery, the co-defendants then met up with the defendant and the three rode off together on their bikes. Fifteen minutes later, the defendant possessed the gun used in the robbery.

Based on the victim’s testimony, the jury could infer that the defendant intended to participate as a lookout for the robbery and therefore could be convicted as a principal. See § 777.011, Fla. Stat. (2009) (“Whoever commits any criminal offense ... or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”); State v. Larzelere, 979 So.2d 195, 215 (Fla.2008) (“To be convicted as a principal for a crime physically committed by another, the defendant must intend that the crime be committed and must do some act to assist the other person in actually committing the crime.”) (citations omitted).

The case upon which the majority relies, J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), is distinguishable. There, the victim was sitting on a bus bench when she was approached by two males. The perpetrator sat next to the victim, while the defendant stood behind the bench. The perpetrator grabbed the victim’s purse. The defendant took no part in the actual robbery and did not talk to the perpetrator. After the perpetrator took the purse, the defendant ran away with him. When apprehended, the defendant denied that he had done anything wrong. On those facts, the third district held that the evidence was “manifestly insufficient to exclude a reasonable hypothesis of innocence.” Id. at 1220. The court explained that the evidence “does not exclude the reasonable inference that the defendant had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission.” Id. Significantly, though, the court does not mention anything about the defendant curtailing the victim’s ability to escape.

Here, however, the victim testified that the defendant, among other things, was “making motions where everybody get surrounded and meet one another at the same time and him keep me from going — being at a safe distance where I couldn’t get away from nobody.” In my view, that additional testimony of curtailing the victim’s ability to escape is sufficient to preclude a reasonable inference that the defendant had no knowledge of the crime until it actually occurred and did not assist in its commission.

This case is closer our court’s precedent of Hill v. State, 958 So.2d 549 (Fla. 4th DCA 2007). There, the victim identified the defendant’s cousin as the man who stole his money at gunpoint and identified the defendant as the driver of the getaway car. Shortly after the robbery, the police spotted the car. The defendant fled until reaching a dead end. After the police arrested the defendant, he said that he stopped the car at his cousin’s request, did not get out of the car, was unable to hear the conversation between his cousin and the victim, and did not know what his cousin was going to do. However, the defendant described watching his cousin pull out a gun while robbing the victim. The defendant said that his cousin got back into the car and directed him to “mash the gas” and take off. Questioned about his elusive maneuvers fleeing from the police, the defendant said that he thought there must have been an arrest warrant out for him because of an unpaid bill with a bondsman for a misdemeanor charge, and he was trying to avoid arrest.

The defendant moved for a judgment of acquittal, claiming that the state failed to provide evidence inconsistent with his hypothesis of innocence that he was surprised by his cousin’s actions and had done nothing to encourage, incite, or participate in the robbery. The trial court denied the motion. We affirmed, reasoning:

Although it could well be argued that this is not a circumstantial evidence case, we conclude that, in any event, there is substantial evidence inconsistent with innocence and indicative of guilt....
... Here, [the defendant] watched as his cousin pulled out the gun and robbed the victim, waited for the gunman to get back in the car, and took off with his cousin, the fruits of the crime, and the gun.
The state is not required to conclusively rebut every possible variation of events which could conceivably be inferred from the evidence. We deem [the defendant’s] conduct, on its face, to be inconsistent with a claim of innocence. Whether [the defendant’s] flight was evidence of his intent to participate in the crime, or was simply out of fear of arrest on a possible warrant for not paying a bondsman on a misdemeanor charge, was a proper question for the jury.

Id. at 551-52.

As in Hill, we should conclude here that there is substantial evidence inconsistent with innocence and indicative of guilt. Here, the defendant watched as the co-defendants pulled out a gun and robbed the victim, waited for the co-defendants to ride up to him on their bikes, and took off with them, the fruits of the crime, and the gun. This competent, substantial evidence supports a factual finding that the defendant intended to participate, and in fact participated, in the robbery. Therefore, we should affirm the trial court’s denial of the motion for judgment of acquittal.

ON MOTION FOR CLARIFICATION AND/OR REHEARING

PER CURIAM.

We grant appellant’s Motion for Clarification of the opinion issued on September 21, 2011. We write to clarify that the relief on remand should include recalculation of the scoresheet on appellant’s remaining conviction for possession of a concealed firearm. See Vroom v. State, 48 So.3d 82, 84 (Fla. 2d DCA 2010); Gorham v. State, 968 So.2d 717, 718 (Fla. 4th DCA 2007). Accordingly, we add the following sentence to the end of the majority opinion: “We reverse and remand with directions to vacate the defendant’s conviction for robbery with a firearm, recalculate the scoresheet to reflect the absence of this primary offense, and resentence the defendant on the remaining charge of possession of a concealed firearm using a corrected scoresheet.”

TAYLOR and GERBER, JJ., and PEGG, ROBERT L., Associate Judge, concur.

      . Because it was uncontested that the defendant did not commit the actual robbery, he was charged based on the principal theory under section 777.011, Florida Statutes (2009). See § 777.011, Fla. Stat. (2009) ("Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”).


author: RAMIREZ, J. SCHWARTZ, Senior Judge,

text:
    INTREPID INSURANCE COMPANY, Appellant, v. PRESTIGE IMPORTS, INC., Appellee.
    No. 3D10-3440.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Buckley, Zinober & Curtis, Eric W. Neilsen, St. Petersburg, and Gary Gorday, Miami Lakes, for appellant.
    Higer Lichter & Givner, Aventura, Esther S. Meisels, Valorie S. Chavin, and Michael Higer, Aventura, for appellee.
    Before WELLS, C.J., RAMIREZ, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Intrepid Insurance Company appeals from a partial summary judgment entered in favor of Prestige Imports, Inc. on a breach of insurance contract claim. We reverse because there is a disputed issue of material fact as to whether the property was damaged by flood waters or storm drainage water backup.

Intrepid contracted to insure Prestige’s auto dealership, including its vehicle inventory, from August 5, 2009, until August 5, 2010. The policy included the following provision:

SECTION C EXCLUSIONS
1. Unless a specific sublimit is indicated in the Declarations we -will not pay for loss or damage caused directly or indirectly by the following, and such loss or damage is excluded regardless of any other cause or event covered hereunder which contributes concurrently or in any sequence to the loss or damage:
c. Flood — waves, tides, surface water, overflow of any body of water, or their spray, all whether driven by wind or not, including any earth movement or mudslide caused by or resulting from the accumulation of water on or under the surface of the ground.

On December 17, 2009, heavy rainfall caused storm water drainage systems adjacent to Prestige’s dealership to overflow. Water flowed onto Prestige’s property and approximately thirty-one vehicles were immersed in water to some degree. Prestige made a claim under its insurance policy, and Intrepid denied the claim based on the policy’s exclusion for flood damage. Prestige disagreed and sued Intrepid.

In the trial court, Prestige moved for partial summary judgment on the coverage issue. Prestige argued that the damage was a result of storm drain back-up, which the policy neither excluded nor included in its definition of “flood.” The trial court granted partial summary judgment in favor of Prestige, and we now review the trial court’s interpretation of the insurance contract de novo. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005) (stating that whether damage claimed under an insurance policy falls within an exclusion is a question of law subject to de novo review).

In our review, we are bound by the policy’s plain meaning. When the terms of a contract are unambiguous, courts give the contract language its plain and ordinary meaning. State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566 (Fla.2011). An undefined term does not necessarily create an ambiguity because the common definition of the term is applied. State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1032 (Fla. 2d DCA 2009); see also State Farm Fire & Cas. Co. v. Metro. Dade Cnty., 639 So.2d 63, 66 (Fla. 3d DCA 1994).

According to the insurer, falling rain pooled in areas adjacent to Prestige’s property and then flowed into Prestige’s property. If that is the case, the damage was caused by surface water, which is excluded under the Intrepid policy. See Fla. Residential Prop. & Cas. Joint Underwriting Ass’n v. Kron, 721 So.2d 825 (Fla. 3d DCA 1998). On the other hand, if the water flowed from the storm drainage system, then arguably that is not excluded by the policy. This is a disputed issue of fact that prevents summary judgment. See Virtual Computacion y Communicaciones, S.R.L. v. Fischzang, 776 So.2d 327, 328 (Fla. 3d DCA 2001).

Accordingly, we reverse the partial summary judgment in favor of Prestige, and remand for further proceedings consistent with this opinion.

Reversed.

WELLS, C.J., concurs.

SCHWARTZ, Senior Judge,

dissenting in part.

Although I agree with reversal, I do not agree that determination of the coverage issue requires the resolution of any issue of fact. In my opinion, it is clear that the flood which damaged the appellee’s property was caused by the inability of the drainage-storm sewer system to cope with the unprecedented downpour in the area. This conclusion requires a finding of no coverage as a matter of law. See Fla. Residential Prop. & Cas. Joint Underwriting Ass’n v. Kron, 721 So.2d 825 (Fla. 3d DCA 1998) (finding that rainwater which pooled and then went into property causing damage therein is surface water and excluded under insurance policy); see also T.H.E. Ins. Co. v. Charles Boyer Children’s Trust, 455 F.Supp.2d 284, 297 (M.D.Pa.2006) (“Thus, the dispute as to the source of the surface water that inundated the bowling alley is immaterial. What is indisputable is that water which had accumulated outside the bowling alley was derived from torrential rains that hit the Pottsville area ... and this ‘surface water’ ultimately flooded the interior of the bowling alley.”); Pakmark Corp. v. Liberty Mut. Ins. Co., 943 S.W.2d 256, 259-61 (Mo.Ct.App.1997); Reynolds v. Standard Fire Ins. Co., 221 A.D.2d 616, 617, 634 N.Y.S.2d 163 (N.Y.App.Div.1995); Kish v. Ins. Co. of N. Am., 125 Wash.2d 164, 883 P.2d 308, 309-12 (1994).

      . In response to the dissent, counsel for the appellant was specifically asked at oral argument if Intrepid Insurance had also moved for summary judgment and he responded that it had not. Although Judge Schwartz’s point is logically attractive, it would in effect have us grant a motion that was never filed at the trial level.