text:
    Willie Edward DOZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0728.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Rehearing Denied April 18, 2012.
    Willie Edward Dozier, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bernard JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0672.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Rehearing Denied April 18, 2012.
    Bernard Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Justina Marie SHAFFER, Wife, Appellant/Cross-Appellee, v. Eric Matthew SHAFFER, Husband, Appellee/Cross-Appellant.
    No. 1D11-2576.
    District Court of Appeal of Florida, First District.
    March 2, 2012.
    Rehearing Denied April 28, 2012.
    William' Bruce Muench and Jonathan J. Luca of Muench & Luca, PLLC, Jacksonville, for Appellant/Cross-Appellee.
    Charles Furbish and Scott Ellerin of Ellerin Hutchinson, Jacksonville, for Ap-pellee/Cross Appellant.
   PER CURIAM.

The Order Denying Former Wife’s Request for Attorney’s Fees is AFFIRMED. The cross-appeal is DISMISSED for lack of jurisdiction. See Mendoza v. Mendoza, 842 So.2d 1020, 1020 (Fla. 5th DCA 2003) (noting that a. trial court’s reservation of jurisdiction to award attorney’s fees and costs at a later time does not affect the finality of the judgment itself for purposes of appeal and dismissing the former husband’s appeal because while his notice of appeal was timely as to the attorney’s fee order, it was untimely as to the underlying order, which is what he challenged).

DAVIS, CLARK, and ROWE, JJ„ concur.


author: STEVENSON, J.

text:
    The COOL GUYS, LLC d/b/a Paragon Indoor Air Quality, Appellant, v. JOMAR PROPERTIES, LLC, and Accredited Surety and Casualty Company, Inc., Appellees.
    No. 4D10-4206.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Shelly J. Stirrat of Fox, Wackeen, Dun-gey, Beard, Sobel, Bush & McCluskey, L.L.P., Stuart, for appellant.
    Raymond M. Masciarella II of Raymond M. Masciarella II, P.A., North Palm Beach, for appellees.
   STEVENSON, J.

In this construction lien ease, the trial court entered final summary judgment in favor of the property owner, Jomar Properties, LLC, and the surety on the transfer bond, Accredited Surety and Casualty Company, Inc., finding that section 713.24(4), Florida Statutes (2011), precluded the lienor, The Cool Guys, LLC, from bringing a claim on the transfer bond more than two years after the lien was transferred to bond. Cool Guys seeks reversal of the summary judgment, arguing the trial court’s construction of the statute is erroneous. We affirm.

In February of 2007, Cool Guys recorded a construction lien against property owned by Jomar, claiming it was still owed $58,296 for air conditioning work. In-March of 2007, litigation was commenced over the matter and Cool Guys filed a counterclaim for foreclosure of its lien. In December of 2007, during the pendency of the litigation, Jomar posted a transfer bond, transferring Cool Guy’s lien to a surety bond issued by Accredited Surety. Cool Guys received notice of the transfer of the lien to security. Despite such notice, Cool Guys did not attempt to bring a claim on the transfer bond until two years later. Jomar and the surety moved for summary judgment, asserting the claims on the transfer bond were time-barred given the one-year limitations period in section 713.24(4), Florida Statutes. The trial court agreed.

Section 713.24, Florida Statutes, governing the transfer of liens to security, permits a person with an interest in real property to transfer a lien imposed against the property to other security and, in so doing, remove the cloud on the property’s title. See § 713.24(1), Fla. Stat. Prior to 2005, section 713.24(4) read as follows: “If a proceeding to enforce a transferred lien is not commenced within the time prescribed in s. 713.22 [one year of recording of lien] ..., the clerk shall return said security upon request of the person depositing or filing the same, or the insurer.” § 713.24(4), Fla. Stat. (2004). The courts, however, refused to apply the one-year time limitation in section 713.24(4) to bar a claim against the surety where the lien was transferred to security during the pendency of a suit to foreclose the lien. See Am. Fire & Cas. Co. v. Davis Water & Waste Indus., Inc., 358 So.2d 225 (Fla. 4th DCA 1978), aff'd, 377 So.2d 164 (Fla.1979).

In American Fire, within one year of the recording of the lien, the lienor brought a lien foreclosure claim against the property owner. Subsequent to the filing of the lien foreclosure claim against the property owner, the lien was transferred to bond. The lienor did not attempt to join the surety until two and half years after the recording of the lien and two and one-sixth years after the transfer of the lien to bond. This court held that the one-year time limit in section 713.24(4) did not apply as the language “clearly intends that any future proceedings be commenced within the year set forth in s. 713.22 and does not seek to address itself to the situation where the suit has already been filed prior to the transfer.” 358 So.2d at 227. The court reasoned that to hold to the contrary would permit the property owner to defend the suit until the one year passed, to then transfer the lien to bond, and, in so doing, prevent any liability against himself or the surety. The supreme court affirmed this ruling.

In 2005, the legislature amended section 713.24(4), adding the following sentence:

If a proceeding to enforce a lien is commenced in a court of competent jurisdiction within the time specified in s. 713.22 and, during such proceeding, the lien is transferred pursuant to this section or s. 713.13(l)(e), an action commenced within 1 year after the transfer, unless otherwise shortened by operation of law, in the same county or circuit court to recover against the security shall be deemed to have been brought as of the date of filing the action to enforce the lien, and the court shall have jurisdiction over the action.

§' 713.24(4), Fla. Stat. (2005). It is this added sentence the trial court relied upon in finding the claims brought on the transfer bond were untimely as the lien had been transferred to security during the pendency of the lien foreclosure suit and no attempt was made to state a claim on the bond until two years after such transfer.

“‘[W]hen the words of a statute are plain and unambiguous and convey a definite meaning, courts have no occasion to resort to rules of construction — they must read the statute as written’ and the court’s inquiry should end.” Rothman-Browning v. Marshall, 83 So.3d 859 (Fla. 4th DCA 2011) (quoting Nicoll v. Baker, 668 So.2d 989, 990-91 (Fla.1996)). There is no ambiguity in the statute. It is clear from the language that if a lien foreclosure suit is pending and the lien is transferred to security during the pendency of that litigation, a claim to recover against the transferred security must be brought within one year of the transfer.

Appellant urges us to find that the rule announced in American Fire continues to be the law for cases like the instant one where the lien is transferred to security during the pendency of lien foreclosure litigation and the lienor subsequently seeks to join the surety in the pending action and that the sentence added to section 713.24(4) applies only where the lienor seeks to file an entirely separate action against the surety. We see no basis for reading the statute in this manner. It is presumed that when the legislature undertook to amend section 713.24(4), it was aware of prevailing decisions on the subject. See Miller v. State, 42 So.3d 204, 219 (Fla.2010), cert. denied, — U.S. -, 131 S.Ct. 935, 178 L.Ed.2d 776 (2011). Thus, the legislature was aware of the American Fire holding and also aware of decisions from the district courts reaching a different result where suit was brought after the lien was transferred to bond. See Canam Sys., Inc. v. Lake Buchanan Dev. Corp., 375 So.2d 582 (Fla. 5th DCA 1979) (affirming dismissal of claims against surety and principal where lien was transferred to bond prior to filing of timely lien foreclosure suit and lienor waited three years to assert claims against the bond). The language added to subsection (4) addresses the “gotcha” concern expressed in American Fire while at the same time protecting the lienor and lienee by affording the lien- or a time certain — one year from the date of the transfer of the lien — to seek to recover against the surety and bond.

Accordingly, having considered all issues raised, we affirm the judgment in favor of the property owner and the surety.

Affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.

      . The language of section 713.24(4) has remained unchanged at all times relevant to this appeal.


author: SHEPHERD, J.

text:
    Barbara C. LEIBELL, etc., Appellant, v. MIAMI-DADE COUNTY, Florida, Appellee.
    Nos. 3D09-1476, 3D09-683.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.

      Egozi & Bennett, and Bernard L. Egozi Aventura, and Spencer Tew, Miami, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Jorge Martinez-Esteve and Bridgette Thornton, Assistant County Attorneys, for appellee.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal from a non-final order denying a motion to certify a class of all persons and entities who own property on any one of the six islands that dot Biscayne Bay between the City of Miami mainland and the City of Miami Beach, known as the Venetian Islands, who since 2005 have paid a $24.00 annual administrative fee per registered vehicle for the privilege of traversing the toll plaza at the City of Miami mainland access point to the islands through an open electronically controlled toll booth lane rather than one of the five manned toll booth lanes. The annual fee approximates the administrative cost incurred by toll booth owner and operator, Miami-Dade County, in offering the service to property owners in the Venetian Islands.

Barbara Leibell, the named plaintiff in this case, is the owner of a home on Rivo Alto Island in the Venetian Islands chain. She claims the fee violates an eighty-five-year-old deed restriction which affords all owners of property on the islands “the right and privilege to use Venetian Way [now the Venetian Causeway] free from toll charges.” We, of course, take no position in this opinion concerning the validity of her claim. We do, however, hold she has not carried her burden of proving her claim can be prosecuted as a class action. A brief summary of the facts of this ease is necessary to explain our decision.

FACTS

The Venetian Islands are the product of one of South Florida’s earliest dredge and fill operations. Stretching between the City of Miami mainland and the barrier island on which the City of Miami Beach is located, the islands are connected by a road and series of bridges, commonly known as the Venetian Causeway, running from the City of Miami mainland to the west, and the City of Miami Beach to the east. The Venetian Causeway, including its bridges, is owned today by Miami-Dade County.

For a period prior to 2005, one of the bridges, the historic Venetian Islands Bridge, which affords island residents direct access to the mainland, was closed for repairs. During that period, two modest-sized voluntary homeowners’ associations on the islands, whose members felt a toll booth plaza at this access point to the islands would enable greater safety and security for island residents and create a pool of money for the beautification and upkeep of the Venetian Causeway, proposed to the County a toll booth plaza be erected at that location. The County Commission met and approved the proposal, a toll booth plaza was erected, and the challenged administrative fee for a service program was established.

Although participation in the program is voluntary, nearly all of the 1400 property owners on the six islands avail themselves of the service. The program permits property owners unlimited trips through the toll plaza at the mainland City of Miami access point. All non-property owners who choose to enter or exit from the islands at the mainland City of Miami access point must pass through one of the other five toll booths at the plaza and pay a $1.50 toll or, if a frequent user of the Venetian Causeway, avail himself of the annual pass purchase program at a cost of $90.00 per year.

Barbara Leibell has participated in the owners’ program since it commenced in 2005. However, she has made each payment under protest. She argues that the annual charge is an exaction in violation of a deed restriction in a 1927 warranty deed, conveying title to what is now the Venetian Causeway from Bay Biscayne Improvement Company to the Bay Biscayne Bridge Company, through which the County holds its title to the Causeway, which provides “That the Bay Biscayne Bridge Company, its successors and assigns, shall not at any time exact or attempt to exact of any owner of property on [the Venetian Islands] any toll charge for the use by such owner of the Venetian Way.” There is no record evidence of any other property owner paying the annual fee under protest. Nor is there any evidence that a property owner who elected not to participate in the program has been refused ingress or egress to the Venetian Islands at the toll booth plaza for failure to pay a toll to the County. In fact, the County admits the covenant prevents it from charging a toll to Venetian Islands property owners for the right of ingress or egress to the islands through the Venetian Causeway toll booth plaza.

These facts are not in serious dispute. We find the court acted well within its authority in denying class certification.

DISCUSSION

Parties seeking class certification have the burden of pleading and proving each element of Florida Rule of Civil Procedure 1.220(a) and one of the three requirements of Florida Rule of Civil Procedure 1.220(b). Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002). The trial court found that Ms. Leibell failed to satisfy the elements necessary to establish class treatment of her claims under subsection (a) of the rule. We agree. The trial court also found that Ms. Leibell’s claims failed to satisfy the class certification requirements under subsection (b) of the rule. We find it unnecessary to consider that analysis.

FLORIDA RULE OF CIVIL PROCEDURE 1.220(a)

There are four prerequisites to establishing a class action under Florida Rule of Civil Procedure 1.220(a):

(1) the members of the class are so numerous that separate joinder of each member is impracticable [numerosity],
(2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class [commonality],
(3) the claim or defense of the representative party is typical of the claim or defense of each member of the class [typicality], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class [adequacy].

Fla. R. Civ. P. 1.220(a). The first two of these requirements — numerosity and commonality — focus on the absent or “represented” class. The latter two requirements — typicality and adequacy — address the qualifications of the class representative. The trial court found the proposed class action in this case failed to pass muster on either side of this divide. We find the trial court did not abuse its discretion in so ruling.

I. ELEMENTS PERTAINING TO THE ABSENT OR “REPRESENTED” CLASS

There are two elements pertinent to this focus — numerosity and commonality. We treat each of these elements in turn.

A. NUMEROSITY

To satisfy this requirement, a plaintiff must demonstrate that the class is so numerous that separate joinder of each member is impracticable. See Fla. R. Civ. P. 1.220(a)(1). Satisfaction of this prerequisite is not just a test of numbers. Robidoux v. Celani, 987 F.2d 931, 935 (2d. Cir.1993). Rather, as the provision itself suggests, it is a practicability requirement of which class size is but one inherent part. Thus, a proposed class, even a moderately large one, as proposed here, which appears to the naked eye to be “adequately defined and clearly ascertainable,” see, e.g., DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970), still will fail if it is overbroad. See Rink v. Cheminova, Inc., 203 F.R.D. 648, 659 (M.D.Fla.2001).

The proposed class in this case is overbroad. Out of 1400 persons who had participated in the Venetian Islands owners’ program by the time of the hearing on the motion for certification, there existed evidence that only one of them, Ms. Lei-bell, had paid the program fee under protest. The evidence was that many more, represented by two homeowners’ associations, do not wish to seek the remedies sought by Ms. Leibell in this lawsuit. It is as likely as not — indeed, probably more likely than not, based upon the record before us — that Ms. Leibell’s neighbors do not object either to the toll booth or the service offered them through the owners’ program. We do not operate in a vacuum. See Demarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968) (“[A] determination of practicability should depend upon all the circumstances surrounding a case.”); see also Gen. Tel. Co. of the NW., Inc. v. Equal Emp’t Opportunity Comm’n, 446 U.S. 318, 329-330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (discussing the undesirability of forcing EEOC actions into Federal Rule of Civil Procedure 23). Thus far, Ms. Leibell has proven a class of one. Neither the law nor common sense compels certification in this case based upon numerosity or impracticability of joinder. See Jamerson v. Bd. of Trs. of Univ. of Ala., 662 F.2d 320 (5th Cir.1981) (denying class certification where plaintiff alleging discriminatory refusal of tenure could not name any other persons who had been discriminated against during the time of the suit). The trial court did not abuse its discretion in so ruling.

B. COMMONALITY

The primary concern on this element is “whether the representative’s claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory.” Sosa v. Safeway Premium, Fin. Co., 73 So.3d 91, 107 (Fla.2011) (citing Morgan v. Coats, 33 So.3d 59, 64 (Fla. 2d DCA 2010)); see also Olen Props. Corp. v. Moss, 981 So.2d 515, 520 (Fla. 4th DCA 2008); Terry L. Braun, P.A., 827 So.2d at 267; Powell v. River Ranch Prop. Owners Ass’n, 522 So.2d 69, 70 (Fla. 2d DCA 1988). As has often been said, the threshold of the commonality requirement is not high. Safeway Premium, 73 So.3d at 107; Tire Kingdom, Inc. v. Dishkin, 81 So.3d 437, 447 (Fla. 3d DCA 2011); Miami Auto. Retail v. Baldwin, - So.3d -, -, 2011 WL 2496609 (Fla. 3d DCA 2011). On this element, this case appears to have much in common with Safeway Premium. As explained by our high court, the gravamen of the complaint in Safeway Premium — insufficiently appreciated by this court — was that the origin of the offending practice was the inclusion of an additional $20.00 service charge on the premium financing application forms supplied by Safeway to its agents, knowing full well that such a charge could be extracted from a customer only once in every twelve months. As the Court described it:

The signed application and premium finance agreement reflected the full amount that Safeway charged the insured under a premium finance agreement, including the additional service charge of $20. Each premium finance agreement routinely contained an additional service charge of $20 even if the applicant had already paid the additional service charge in a prior six-month premium finance agreement. The agent then forwarded the application to Safeway.

Safeway Premium, 73 So.3d at 100. It was this common course of conduct, uniformly executed by Safeway as the drafter of the agreement that, according to the High Court, “presented] a question of common or general interest” sufficient to satisfy the relatively low threshold of Florida Rule of Civil Procedure 1.220(a)(2). Safeway Premium, 73 So.3d at 107. Although the payments in the case before us were voluntarily made, we conclude on the facts of this case the threshold of commonality as defined and circumscribed by the Florida Supreme Court has been satisfied. Id. at 110 (“[T]he focus of a court in reviewing a finding of the commonality requirement is on whether the class members predicated their claims on the same course of conduct by the defendant and the same legal theory.”).

II. ELEMENTS PERTAINING TO THE CLASS REPRESENTATIVE

There are two elements pertinent to this focus — typicality and adequacy. We treat each of these elements in turn.

A. TYPICALITY

Rule 1.220(a)(3) requires the claims of the representative party be typical of the claims of the class. This element focuses on the sufficiency of the named plaintiffs, see Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1136 n. 3 (Fla. 3d DCA 2008), and the relationship between their claims and the class’s claims, see State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So.2d 516, 517 (Fla. 3d DCA 2002).

On this element, it is not sufficient for the plaintiff to have “some claim.” Our adversary system works well only when “[the] system is confident that the ... litigant who does his best for himself also inescapably benefits his fellow class members.” Tire Kingdom, 81 So.3d 437, 450 (citing Degnan, Ronan E., Foreward, Adequacy of Representation in Class Actions, 60 Calif. L. Rev. 705, 716 (1972)). It requires little imagination in this case to envision how success in the eyes of Ms. Leibell might well be seen as defeat of the interests of her island neighbors. If Ms. Leibell were to prevail on a class wide basis in this case, the County would have every right in such a circumstance to provide Ms. Leibell and her neighbors their free access to the City of Miami mainland through one of the arguably less desirable manned toll booths.

B. ADEQUACY

Rule 1.220(a)(4) requires the class representative to demonstrate she “can fairly and adequately protect and represent the interests of each member of the class.” Tire Kingdom, 81 So.3d 437, 451. The difference between this element and the typicality requirement is not crystal clear. Massengill v. Bd. of Educ., Antioch Cmty. High Sck, 88 F.R.D. 181, 184 (N.D.Ill., E.D.1980). However, typicality does not guarantee adequate representation. Two grounds frequently employed to determine adequacy of representation are the skill of the attorney to prosecute the case and the lack of conflict between the interests of the representatives and those of the class they seek to represent. See Tire Kingdom, 81 So.3d 437, 451. In addition, inherent in this rule is “an expectation of a ‘minimal level of interest in the action.’ ” Massengill, 88 F.R.D. at 186 (quoting Sullivan v. Chase Inv. Servs., 79 F.R.D. 246, 258 (N.D.Cal.1978)).

On this element, one would have to be willfully ignorant to not perceive the potential conflict between Ms. Leibell’s interest in this case and that of the purported class. Ms. Leibell failed to carry her burden on this element of the rule.

CONCLUSION

Aggregation of cases requires aggregation of interests. At the class action hearing, Ms. Leibell was unable to offer the name and address of a single neighbor who shared her interest. See Wechsler v. Ethanol Partners Accredited, 1 Fed. R. Serv.3d 620 (S.D.N.Y.1985) (denying class certification of 80-100 persons where the plaintiff had made no effort to contact any of the persons to see if they wanted to join the action). The trial court did not abuse its discretion in denying Ms. Leibell’s motion for class certification in this case.

Affirmed.

      . The islands bear the names Biscayne Island, San Marco Island, San Marino Island, Di Lido Island, Rivo Alto Island, and Belle Isle. Biscayne Island and San Marco Island lie within the City of Miami. The remaining four islands lie within the City of Miami Beach.

      . An electronic instrument known as a transponder is required in order to use the electronically controlled toll booth lane. The cost to the County of each transponder is $26.87. Property owners are required to renew the service annually. The County estimates the annual cost to administer the program (including staff costs) to be $23.00 per issued transponder. A property owner may, of course, obtain more than one transponder.

      . Ms. Leibell also calls our attention to a second warranty deed recorded December 10, 1936, between the Miami Bridge Company and Biscayne Island Corporation, conveying certain lots on one of the Venetian Islands to Biscayne Island Corporation, providing "all persons acquiring and owning any lot in said subdivision, and to their successors in ownership, to use the street known as Venetian Way, and all persons actually owning lots in said subdivision shall have the right to use all bridge connections along Venetian Way and situated between Miami Beach and the City of Miami, and also such right of approach to said causeway as may be provided by the company without rental or other charge.” This deed does not impose any greater burden on the County as the owner of the Venetian Causeway and the toll booth plaza than does the 1927 warranty deed.

      . Ms. Leibell attaches a copy of a letter from Joseph Pardo, dated April 11, 2005, protesting the County’s plan to implement the owners’ program, to her reply brief in this case. The letter was not part of the record before the trial court, and therefore cannot be considered by us on this appeal. Thornber v. City of Ft. Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988) ("An appellate court will not consider evidence that was not presented to the lower tribunal because the function of an appellate court is to determine whether the lower tribunal committed error based on the issues and evidence before it.”). There also is no testimony concerning whether Mr. Pardo, like Ms. Leibell, participated in and protested the program after it commenced.

      . Florida’s class action rule is patterned upon Federal Rule of Civil Procedure 23. We look to federal law for interpretive guidance. See Fla. Dep’t of Agric. v. Citrus Canker Litig., 941 So.2d 461, 464 (Fla. 3d DCA 2006).

      . As Newberg puts it:
      Courts and commentators have found it easy to slip into the pattern of referring to Rule 23(a)(1) simply as a test of numerosity, because large classes are common, and the Rule 23(a)(1) prerequisite is satisfied in such cases solely on the basis of the number of class members. However, number is only one of several considerations. Apart from class size, factors relevant to the join-der impracticability issue include judicial economy arising from avoidance of a multiplicity of actions, geographic dispersement of class members, size of individual claims, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunc-tive relief which would involve future class members.
      1 Herbert B. Newberg, Newberg on Class Actions, § 3:6, at 250-52 (4th ed. 2002).

      . We pause to note the trial court did not have the benefit of Safeway Premium at the time it denied Ms. Leibell's motion for class certification.

      . The County asserts the fact that all payments were voluntarily made constitutes a complete defense to the certification of a class in this case. See City of Miami v. Keton, 115 So.2d 547, 551 (Fla.1959) (holding that class of persons who voluntarily paid traffic fines levied by municipal court whose jurisdiction to levy such fines had been repealed were not entitled to recover the amounts paid even where the fines were levied under a mistake of law); Hassen v. Mediaone of Greater Fla., Inc., 751 So.2d 1289 (Fla. 1st DCA 2000) (finding recovery of voluntary payment of late charges by cable subscribers barred even if "the payment may have been made upon a mistaken belief as to the enforceability of the demand, or liability under the law, as long as payment is made with knowledge of the factual circumstances”). To the extent this defense exists, it would be more appropriately considered in a subsection (b) analysis, had one been necessary in this case.


text:
    SIMON ROOFING AND SHEET METAL CORP., Appellant/Cross-Appellee, v. FLORIDA DIVERSIFIED FILMS, INC., Appellee/Cross-Appellant.
    Nos. 3D10-2379, 3D10-2455.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Rehearing Denied April 25, 2012.
    Rumberger, Kirk & Caldwell, and M. Stephen Smith and Eric L. McAliley and David B. Shelton, and Candy L. Messers-mith, for appellant/cross-appellee.
    Katz Barron Squitero Faust, and John R. Squitero, and H. Eugene Lindsey, III, and Mathai Jacob, for appellee/cross-ap-pellant.
    Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

We affirm the trial court’s Final Judgment. The appellant/cross-appellee Simon Roofing and Sheet Metal Corp. concedes on cross-appeal that the trial court erred in denying appellee/cross-appellant Florida Diversified Films, Ine.’s request for prejudgment interest. See Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla.2010). Accordingly, we reverse the trial court’s order denying prejudgment interest and remand the cause to the trial court with instructions to award appellee/cross-appel-lant prejudgment interest in the amount of $530,646.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.


author: PALMER, J.

text:
    Dianna Douglas-SEIBERT, f/k/a Dianna Douglas, Appellant/Cross-Appellee, v. Louis RICCUCCI and Tarmac America, LLC, Appellees/Cross-Appellants.
    No. 5D10-3562.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Rehearing Denied April 19, 2012.

      Robert M. Moletteire of Moletteire & Torpy, P.A., Melbourne, for Appel-lanVCross-Appellee.
    Robert B. Guild and Frank W. Hession of Hession & Ferrante, Jacksonville, for Appellees/Cross-Appellants.
   PALMER, J.

In this rear-end auto collision case, Dianna Douglas-Seibert appeals the trial court’s judgment entered after a jury returned a verdict in favor of rear-vehicle defendants Louis Riccucci and Tarmac America, LLC. The trial court erred in denying Douglas-Seibert’s motion for a directed verdict and, therefore, we reverse the judgment.

Douglas-Seibert alleged negligence on the part of Riccucci and Tarmac, the driver and owner of a cement truck that rear-ended her vehicle. At trial, after the close of evidence, Douglas-Seibert moved for a directed verdict on the issue of Riccucci’s negligence, relying on the rebuttable presumption of negligence by the rear driver in a rear-end collision. She also sought a directed verdict on her own lack of comparative negligence.

The evidence, viewed in the light most favorable to Riccucci and Tarmac as the non-movants on the motion for directed verdict, reveals the following. In late afternoon on a clear day, Douglas-Seibert was driving southbound on U.S. 1. In front of her was a sport utility vehicle (SUV). Behind her was the cement truck Riccucci was driving. The vehicles stopped at a traffic light. When the light turned green, the vehicles continued south, in the leftmost lane. Douglas-Seibert and Riccucci were driving about 40 to 45 miles per hour. Douglas-Seibert was one or two car lengths behind the SUV. Suddenly, a Ford Mustang pulled out of a right-hand side street, crossed the three southbound lanes of U.S. 1, cut in front of the SUV, and then turned northbound. The SUV braked and avoided colliding with the Mustang. Douglas-Seibert braked and avoided colliding with the SUV. As soon as the Mustang cleared the left lane, the SUV began to move forward, but Douglas-Seibert was still stopped when Riccucci rear-ended her car.

The trial court denied the motion for a directed verdict as to Riccucci’s negligence but granted it as to Douglas-Seibert’s lack of negligence. The jury ultimately found Riccucci and Tarmac not liable, and the court entered judgment on the verdict.

Douglas-Seibert argues that Riccucci failed to present evidence sufficient to rebut the presumption of negligence by the rear driver in a rear-end collision, and thus the trial court erred in denying her motion for a directed verdict on his negligence. We agree.

We review de novo a trial court’s ruling on a motion for directed verdict. Andrews v. Direct Mail Express, Inc., 1 So.3d 1192, 1193 (Fla. 5th DCA 2009).

In a rear-end collision, a presumption exists that the rear driver was negligent. Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla.2001). The rear driver can rebut this presumption by presenting evidence supporting a reasonable explanation of why he was not negligent. See id. at 573. Four types of explanations have been recognized: (1) a mechanical failure in the rear driver’s vehicle, (2) the lead driver’s sudden stop, (3) the lead driver’s sudden lane change, and (4) the lead driver’s illegal or improper stop. See Dep’t of Highway Safety & Motor Vehicles v. Saleme, 963 So.2d 969, 972 (Fla. 3d DCA 2007); Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 649-50 (Fla. 5th DCA 2006); Tozier v. Jarvis, 469 So.2d 884, 886-87 (Fla. 4th DCA 1985). Here, Riccucci and Tarmac argue that the trial court’s denial of the motion for a directed verdict was proper because the evidence supported exceptions (2) and (4), sudden stop and illegal/improper stop.

Regarding the sudden-stop exception, evidence of a “sudden stop, without more, is insufficient.” Clampitt, 786 So.2d at 575. A rear driver must anticipate sudden stops by lead drivers. As the supreme court explained in Clampitt:

Unfortunately, accidents on the roadway ahead are a routine hazard faced by the driving public. Such accidents are encountered far too frequently and are to be reasonably expected. Each driver is charged under the law with remaining alert and following the vehicle in front of him or her at a safe distance.
In effect the law requires all drivers to push ahead of themselves an imaginary clear stopping distance or assured stopping space or adequate zone within which the driven vehicle can come to a stop....
Lynch v. Tennyson, 443 So.2d 1017, 1020-21 (Fla. 5th DCA 1983) (Cowart, J., dissenting). Each driver must be prepared to stop suddenly.... It is logical to charge the rear driver with this responsibility because he or she is the person who is in control of the following distance.

Id. at 575-76 (footnote omitted). Cf. Pierce v. Progressive Am. Ins. Co., 582 So.2d 712, 714 (Fla. 5th DCA 1991) (en banc) (“[I]t is not a substantial and reasonable explanation by Pierce to merely say that the vehicles ahead of him ... stopped abruptly. Such stops had to be reasonably anticipated at the time and place where they occurred.... ”). Thus, for the sudden-stop exception to apply, the lead driver’s stop must occur “at a time and place where it could not reasonably be expected by the following driver.” Id.

The facts in this case are not sufficient to support a finding that Douglas-Seibert’s stop was not reasonably antici-patable at the time and place where it occurred. In Tacher v. Asmus, 743 So.2d 157 (Fla. 3d DCA 1999), the Third District noted:

[A] sudden stop by a preceding driver or drivers approaching or going through a busy intersection should be reasonably expected so as to impose a duty on the drivers which follow them to operate their vehicles at a safe distance. It is not at all unusual for vehicles [proceeding] through busy intersections, for example, to have to suddenly brake for ... other drivers running a red traffic light from a cross-street.

Id. at 158. Here, the situation is analogous because the Mustang darted out from a stop sign into the path of oncoming cross-traffic.

Alternatively, Riccucci and Tarmac argue that Douglas-Seibert was illegally or improperly stopped when she was hit. They reason that, although the SUV in front of Douglas-Seibert braked for the Mustang, the SUV continued on as soon as the Mustang cleared the lane and Douglas-Seibert should have immediately followed. Riccucci and Tarmac assert that Douglas-Seibert’s failure to move forward was an illegal or improper stop. We disagree.

Under these facts, Douglas-Seibert was not illegally or improperly stopped. She reasonably stopped to avoid rear-ending the SUV. The fact that the SUV’s driver realized that he or she could safely continue on does not mean that Douglas-Seibert had a duty to follow within the time interval involved.

Because the evidence presented by Ric-cucci and Tarmac was insufficient to rebut the presumption of negligence by the rear driver in a rear-end collision, the trial court erred in denying Douglas-Seibert’s motion for directed verdict. Accordingly, we reverse and remand for entry of a directed verdict on the issue of Riccucci’s negligence and for a new trial on all remaining issues.

REVERSED and REMANDED.

SAWAYA, J., and WALLIS, F.R., Associate Judge, concur.

      . See Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003).

      . Other analogous cases have also held the lead driver's stop reasonably anticipatable. See Clampitt, 786 So.2d 570 (holding lead driver's stop on two-lane, 55-mph highway reasonably anticipatable where lead driver rear-ended a trailer that was being pulled off highway into driveway, and highway contained several nearby entrances/exits); Hunter v. Ward, 812 So.2d 601 (Fla. 1st DCA 2002) (holding lead driver’s stop reasonably antici-patable where, from inside lane of four-lane divided highway, first driver attempted to turn left at median break, first driver’s truck hitch continued to protrude into inside lane, and lead driver braked to avoid hitch); Pierce, 582 So.2d 712 (holding lead drivers’ stops reasonably anticipatable where, in crowded lane of traffic approaching busy intersection controlled by traffic light that was in view of rear driver, four vehicles were driving in a line, and first driver stopped for red light and was rear-ended by second driver, who was rear-ended by third driver, who was rear-ended by rear driver).


author: ROTHENBERG, J.

text:
    APARTMENT INVESTMENT AND MANAGEMENT COMPANY, et al., Appellants, v. FLAMINGO/SOUTH BEACH 1 CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D11-2646.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.

      Greenberg Traurig, P.A., and Jeffrey Allan Hirsch, Fort Lauderdale, Julissa Rodriguez, and Stephanie L. Varela, Miami, for appellants.
    Piedra and Associates, P.A., and Jorge L. Piedra, Miami, and Jeremy A. Koss, Sunrise, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Apartment Investment and Management Company, et al. (collectively, “AIMCO”) appeal from a non-final order denying their motion to compel arbitration. We affirm.

On June 7, 2011, Flamingo/South Beach 1 Condominium Association, Inc. (“the Association”) sued AIMCO alleging that it ■violated provisions of the Reciprocal Maintenance, Use and Easement Agreement (“the Agreement”). The Agreement subjects three parcels (the North, Center, and South Towers) to various easements, restrictions, and covenants that run with the land. Under the Agreement, the South Tower was allocated thirty-two percent of the parking spaces for the use of its residents and “permittees” — which were later divided into reserved and unreserved spaces. In addition, the Association is permitted to charge and retain fees for the use of its allocated spaces.

In its complaint, the Association alleged that AIMCO was improperly charging the Association’s condominium residents and their “permittees” for parking. The Association claimed this violated the Agreement and deprived them of the full enjoyment of their property, depreciated the value of the individual properties, and otherwise injured their personal and property rights. According to the Association, when a resident or “permittee” (usually a guest) obtains a parking pass from AIM-CO, AIMCO does not determine whether South Tower’s allocated spaces are available, but instead charges the resident or guest and retains the fee. The Association further alleged that after it began to dispute these charges, AIMCO retaliated by selectively enforcing the policies governing issuance of parking permits, and began aggressively exercising its right to tow unauthorized vehicles owned by South Tower residents and their permittees.

As originally filed, the Association’s complaint raised eight counts: (I) Injunc-tive Relief for Violation of Restrictive Covenant; (II) Violation of Restrictive Covenant Imposition of Constructive Trust; (III) Injunctive Relief for Selective Enforcement of Parking Policies; (IV) In-junctive Relief to Abate Maintenance of a Nuisance; (V) Equitable Accounting; (VI) Equitable Lien; (VII) Constructive Trust; and (VHI) Declaratory Judgment. The Association has since voluntarily dismissed Count VHI, without prejudice.

Based on the broad arbitration provision in section 18.1 of the Agreement, AIMCO moved to compel arbitration and stay the trial court proceedings. The Association opposed the motion arguing that its claims fall under section 18.2(b), which provides an exception to arbitration for equitable relief. Following a hearing, the trial court entered an order denying AIMCO’s motion to compel arbitration and stay the proceedings. This appeal followed.

We review an order denying a motion to compel arbitration de novo. Idearc Media Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So.2d 1159, 1161 (Fla. 3d DCA 2008). In Florida, a trial court must consider three elements before ruling on a motion to compel arbitration: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Gen. Impact Glass & Windows Corp. v. Rollac Shutter of Tex., Inc., 8 So.3d 1165, 1167 (Fla. 3d DCA 2009) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Only the second inquiry is implicated in this appeal.

“In ruling on a motion to compel arbitration, Florida courts should resolve all doubts in favor of arbitration rather than against it.” Medanic v. Citicorp Inv. Servs., 954 So.2d 1210, 1211 (Fla. 3d DCA 2007). However, “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.” Seifert, 750 So.2d at 636.

Arbitration agreements are governed by general contract law, and courts must “discern the intent of the parties from the language used in their agreement.” Citigroup, Inc. v. Amodio, 894 So.2d 296, 298 (Fla. 4th DCA 2005). “[W]here parties bargain for and/or contemplate exceptions to arbitration in their contracts, their intentions should control.” Rath v. Network Mktg., L.C., 790 So.2d 461, 465 (Fla. 4th DCA 2001). Therefore, to determine whether the trial court properly denied the motion to compel arbitration, we must examine the language of the Agreement.

Section 18.1 of the Agreement sets forth a broad arbitration provision, which states, in pertinent part: “Any controversy, dispute, or claim of any nature arising out of, in connection with, or in relation to the interpretation, performance, enforcement or breach of this Agreement, including any claim based on contract, tort, or statute, shall be resolved at the written request of any Owner by binding arbitration.” Section 18.2(b), however, provides an exception to section 18.1’s arbitration provision:

Equitable Relief and Exempt Claims. Notwithstanding anything in this Section 18 to the contrary, this Section 18 shall not prevent ... an Owner[] from seeking and obtaining equitable relief on a temporary or permanent basis, including, without limitation, a temporary restraining order, a preliminary or permanent injunction or similar equitable relief, from a court of competent jurisdiction ... in order to protect or enforce the rights of such owner under this Agreement or to prevent irreparable harm and injury. The court’s jurisdiction over any such equitable matter, however, shall be expressly limited only to the temporary, preliminary, or permanent equitable relief sought. All other claims initiated under this Agreement shall be determined in accordance with Section 18.1.

Section 18.2(b) demonstrates that the parties intended to allow “a court of competent jurisdiction” — here, the circuit court of Miami-Dade County — to provide preliminary or permanent equitable relief. Counts I, III, and IV of the complaint, which seek permanent injunctive relief, are clearly governed by the plain language of the Agreement’s arbitration exception. In addition, equitable accounting (Count V) is a remedy falling under the Agreement’s exception to arbitration. See Greenberg v. Sellers, 2 So.3d 381, 383 (Fla. 4th DCA 2008) (holding that equitable accounting was a non-arbitrable issue where the agreement provided that “[njotwithstand-ing this [arbitration] provision, the aggrieved party shall be entitled to injunctive and/or equitable relief in a court of competent jurisdiction”) (emphasis in original). Similarly, the remaining counts request equitable relief — constructive trusts (Counts II and VII) and an equitable lien (Count VI) — and thus, are also exempted under the Agreement.

Because the parties intended to exempt equitable claims from arbitration, and the complaint only seeks equitable relief, all of the claims may be resolved by the trial court without requiring resolution by arbitration. Cf. Swan Landing Dev., LLC v. Fla. Capital Bank, N.A., 19 So.3d 1068 (Fla. 2d DCA 2009) (requiring breach of contract counts to proceed by arbitration where the agreement provided that only equitable actions were exempted from the mandatory arbitration provision). Accordingly, we conclude that the trial court properly denied AIMCO’s motion to compel arbitration.

Affirmed.

      . Prior to the denial of AIMCO’s motion to compel arbitration, the trial court granted temporary injunctive relief.

      . Under the terms of the Agreement, the Association is the “Owner” of the South Tower.

      . A constructive trust is an equitable remedy invoked to avoid an unjust enrichment. Saporta v. Saporta, 766 So.2d 379, 381 (Fla. 3d DCA 2000); see also Collinson v. Miller, 903 So.2d 221, 228 (Fla. 2d DCA 2005); Bauman v. Rayburn, 878 So.2d 1273, 1275 n. 1 (Fla. 5th DCA 2004).

      . "[A]n equitable lien ‘is a right granted by a court of equity, arising by reason of the conduct of the parties affected which would entitle one party as a matter of equity to proceed against’ certain property.” Epstein v. Epstein, 915 So.2d 1272, 1274-75 (Fla. 4th DCA 2005) (quoting Gables Racing Ass’n v. Persky, 148 Fla. 627, 6 So.2d 257, 263 (1942)).


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    Hilary KATES, Susan Zeitlin and Nancy Wolin, Appellants, v. Bayla LIFTER, Aaron Lifter, and Howard Lucas, Trustee of the Bennett M. Lifter Amended and Restated Revocable Trust, Appellees.
    No. 3D11-1911.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Rehearing Denied May 4, 2012.
    Shutts & Bowen and William Jay Palmer and Stephen T. Maher, Miami, for appellants.
    Broad and Cassel and Mark F. Raymond and Gary Lehman, Miami; and Beverly A. Pohl and Linda Spaulding White, Fort Lauderdale, for appellees.

      Before CORTIÑAS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

SCHWARTZ, Senior Judge

(specially concurring).

The trial court ruled that Howard Lucas, the trustee of the Bennett M. Lifter Amended and Restated Revocable Trust and the president and sole director of Bennett M. Lifter, Inc., may not proceed on behalf of either entity in either capacity from making “sweetheart” three percent loans of up to a million dollars each to the uncreditworthy appellants who are both beneficiaries of the trust and shareholders in the corporation. The merits of this conclusion, which are virtually self-evident, were not seriously challenged before us. Relying on Gettinger v. Gettinger, 165 So.2d 757 (Fla.1964), and like cases, the appellants argue, however, that the “probate court” had no authority over the corporation, and that a new and different proceeding in a “non-probate court” must be initiated and prosecuted to achieve the same result. Since I agree that adopting this position would represent judicial wheel-spinning at its finest, I concur in its rejection.

The basis for my vote is that the judge of the circuit court who made the decision on review had complete jurisdiction over both aspects of the existing litigation and that it does not matter in which division of the court he happened to find himself. As this Court has stated:

[Ejvery judge of the circuit court possesses the full jurisdiction of that court in his of her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits’ judicial business.

Maugeri v. Plourde, 396 So.2d 1215, 1217 (Fla. 3d DCA 1981); see Baudanza v. Baudanza, 78 So.3d 656 (Fla. 4th DCA 2012). In other words, there is no such thing as “a” or “the” Florida Probate Court with the limited jurisdiction the appellants argue is fatal to the order on review. The decisions which represent this position are based on Gettinger. But that case was decided in 1964, when there was a “probate court” in Florida, the County Judges’ Court. While it is understandable in view of the well-known judicial tendency to cling resolutely to the past, Parker v. Shullman, 906 So.2d 1236 (Fla. 4th DCA 2005), review denied, 915 So.2d 1196 (Fla.2005), for example, overlooked that, as recently as 1973, the County Judges’ Court was abolished and its jurisdiction transferred to the circuit court. See Art. V, § 20(c)(3), Fla. Const. (Rev. 1972). I believe that this fact renders Gettinger obsolete and more modern authority which follows it incorrect.


author: PER CURIAM. BENTON, C.J.,

text:
    S.W., Mother of F.W., Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-4985.
    District Court of Appeal of Florida, First District.
    March 20, 2012.

      Crystal McBee Frusciante, Office of Criminal Conflict and Civil Regional Counsel, Region One, Jupiter; Melissa Walker, Assistant Regional Conflict Counsel, Milton; Susan Barber, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Ward L. Metzger, Department of Children and Families, Jacksonville, for Appel-lee.
    Kelley Schaeffer, Guardian ad Litem Program, Tavares.
   PER CURIAM.

AFFIRMED.

THOMAS and SWANSON, JJ., concur.

BENTON, C.J., dissents with opinion.

BENTON, C.J.,

dissenting.

I would dismiss the appeal in this dependency case as moot inasmuch as the only child declared dependent below died on September 21, 2011.


author: NORTHCUTT, Judge.

text:
    Ed GOLLOBITH, Appellant, v. Stephanie FERRELL, Appellee.
    No. 2D11-233.
    District Court of Appeal of Florida, Second District.
    March 21, 2012.
    R. Gale Porter, Jr., and Elizabeth A. Petterson of Petitt Wolfe Craine Worrell Porter LLC, Tampa, for Appellant.
    Marie Tomassi and Robert H. Buesing of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Stephanie Ferrell moved to enforce an alleged settlement agreement under which Ed Gollobith’s action against her was to be dismissed. The circuit court granted the motion and dismissed Gollobith’s suit. We reverse because the court ruled without first hearing evidence to resolve disputed issues regarding the existence and terms of the agreement.

The litigation arose from Gollobith’s contract with Ferrell, an architect, for the design of a house. Gollobith entered into a separate contract with a general contractor for the construction. He later sued Ferrell, the contractor, and others involved in the project. Gollobith settled with the contractor after several days of arbitration. Ferrell was not a party to the arbitration, but she assisted Gollobith during the arbitration hearing. After the arbitration, Gollobith’s attorney advised Ferrell that Gollobith had agreed to drop the claim against her. When Gollobith later moved to set this claim for trial, Ferrell filed a motion to enforce the alleged settlement.

In her verified motion, Ferrell recounted that she assisted Gollobith with the arbitration, at no cost, and that Gollobith’s attorney had encouraged her to fully cooperate “as consideration for the dismissal, which the attorney would recommend.” Ferrell said that after the arbitration, Gol-lobith’s attorney told her by telephone and by e-mail that Gollobith had agreed to drop the suit.

At a brief nonevidentiary hearing on Ferrell’s motion to enforce settlement, Gollobith’s attorney acknowledged that he telephoned Ferrell when the arbitration was over and that he told Ferrell his client had “agreed to dismiss you; but what happened is in the coming weeks and even months maybe, [Gollobith] changed his mind.” In opposition to the motion to enforce settlement, Gollobith’s attorney argued in part that there was no consideration for the promise to dismiss Ferrell and that her assistance with the arbitration was not part of a quid pro quo. He asked the court for an evidentiary hearing. But the court found that Ferrell’s assistance with the arbitration was the consideration. Based on this finding, it granted the motion and dismissed with prejudice Gollobith’s claim against Ferrell.

We agree with Gollobith’s argument on appeal that the circuit court should have granted his request for an evidentiary hearing because the facts concerning the consideration necessary to support the purported settlement were in dispute. Whereas Ferrell claimed that she furnished assistance in exchange for a promise to dismiss the case against her, Gollobith maintained that no promise was made until after Ferrell provided assistance and that, therefore, her assistance did not constitute legal consideration necessary for a binding contract.

It has been held that “[w]here the consideration in a contract is past, no valid and binding contract comes into existence.” Barnes v. Beaumont, 70 So.2d 560, 563 (Fla.1954) (quoting Pink v. Meyer, 159 Misc. 542, 288 N.Y.S. 16, 17 (N.Y.Sup.Ct.1936)); see also City of Miami Beach v. Fryd Constr. Corp., 264 So.2d 13, 14 (Fla. 3d DCA 1972) (reciting party’s reliance on familiar rule that “past consideration is not legal consideration”). “Providing past services rendered without the expectation of compensation is not adequate consideration to support a contract.” Smith v. Locklear, 906 So.2d 1273, 1274 (Fla. 5th DCA 2005) (affirming trial court’s determination that purported agreement was unenforceable because it lacked consideration). Without consideration, a “promisor may change his mind at will.” Id. (quoting Brown v. Brown, 501 So.2d 24, 27 (Fla. 5th DCA 1986)).

In this case, the circuit court could not properly conclude that the alleged settlement agreement was supported by legal consideration without taking evidence and resolving fact disputes. See Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 933 So.2d 732 (Fla. 2d DCA 2006) (requiring evidentiary hearing to decide disputed issue of fact regarding purported settlement agreement). Accordingly, we reverse and remand for an evidentiary hearing.

Reversed.

CASANUEVA and KHOUZAM, JJ„ Concur.


author: LEVINE, J.

text:
    COMMAND SECURITY CORPORATION, a New York corporation, Appellant, v. John A. MOFFA, Assignee for the Estate of Eagle International Group, LLC, Appellee.
    No. 4D10-4831.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Rehearing Denied April 26, 2012.

      L. Joseph Shaheen and Chaila D. Re-stall of Akerman Senterfitt, Tampa, and Douglass B. Maynard, Ashley F. Waters of Akin Gump Strauss Hauer & Feld, LLP, New York, New York, for appellant.
    Mark Bonacquisti and John A. Moffa of Moffa & Bonacquisti, P.A., Plantation, for appellee.
   LEVINE, J.

The issue presented in this case is whether the deadline for seeking a post-closing purchase price adjustment was material to the contract. We find that the deadline was not material to the contract, as time was not of the essence. We, therefore, reverse the ruling of the trial court.

Appellee was appointed assignee and charged with liquidating the assets of Eagle International Group, an insolvent corporation. The parties entered into an asset purchase agreement and escrow agreement. Appellant paid $800,000 upfront, less certain expenses, for Eagle’s assets. Appellant placed an additional $400,000 in an escrow account. From the escrowed monies, appellant could seek an adjustment in the purchase price if the purchased assets “underperformed.”

Section 2.07 of the purchase agreement outlined how appellant could seek an adjustment in the purchase price:

Within 45 days after the end of the Measurement Period (the last day of the Measurement Period is referred to herein as the “Measurement Date ”), the Purchaser shall deliver to the Assignee a proposed statement (the “Proposed, Statement ”) that sets forth the Purchaser’s determination of the Measurement Period Actual Revenues.... The As-signee shall have the right, exercisable within 15 days following its receipt of the Proposed Statement, to deliver to the Purchaser a detailed statement (a “Proposed Statement Challenge ”) describing all of its objections (if any) thereto including a reasonably detailed explanation of such objections. If the Purchaser has not received a Proposed Statement Challenge within 15 days following the receipt by the Assignee of the Proposed Statement, the Assignee shall be deemed for all intents and purposes to have accepted and agreed in full to the Proposed Statement. If, however, the Purchaser shall have received a Proposed Statement, there shall be no Purchase Price Adjustment in respect of the Measurement Period until resolution of the disagreement between the Assign-ee and the Purchaser in accordance with Section 2.08 hereof, and the Escrow Agent shall make no disbursement of the Escrow Fund until such dispute has been resolved.... [I]f the Purchaser shall fail to deliver to the Assignee, the Seller or the Assignee the Proposed Statement within 45 days after the Measurement Date, then the Assignee shall have the right in its sole discretion to declare that the Measurement Period Actual Revenues have exceeded the Measurement Period Target Revenues, which declaration shall be final and binding upon the Purchaser and the Escrow Agent.

“Measurement Period” was defined as “the last full calendar month immediately preceding the first anniversary of the Closing Date. For example, if the Closing Date is September 15, 2008 then the Measurement Period shall be the entire calendar month of August 2009.”

The closing date for the purchase of assets was September 12, 2008, with the measurement period being the calendar month of August 2009. Forty-five days after the end of the measurement period was October 15, 2009. By this date, appellant was to deliver to appellee the “proposed statement” which would set forth the actual revenues for the measurement period. Appellant did not send a letter claiming that revenues were less than target revenues until November 6, 2009. Appellant claimed entitlement to all of the $400,000 funds in escrow, since revenues were less than projected, and the difference between the actual revenues and target revenues exceeded the amount held in escrow.

In response, appellee sent appellant a letter dated November 12, 2009, seeking to exercise its “sole discretion” under section 2.07 to “declare that the Measurement Period Actual Revenues have exceeded the Measurement Period Target Revenues” due to the fact that appellant failed to “deliver ... the Proposed Statement within 45 days after the Measurement Date.”

Thereafter, appellee filed a complaint against appellant seeking a declaratory judgment as to who was entitled to the funds held in escrow. Appellant filed an answer and a counterclaim, also seeking a declaratory judgment that appellant was entitled to the disputed funds held in escrow. The trial court found appellee rightfully entitled to the $400,000 held in escrow. This appeal ensues.

“The interpretation of a written contract is a question of law” and the appellate court construes the contract “under a de novo standard of review.” Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So.2d 294, 296 (Fla. 4th DCA 2000).

In this case, the main point of contention lies within the fact that appellant failed to meet the October 15 deadline, and instead sent the notification letter, asserting that the revenue figures failed to meet the established targets, twenty-two days later on November 6.

Thus, this case revolves on whether time was of the essence and what result best supports the intent of the parties, as determined by the language of the contract. If time is not of the essence then the parties would have a “reasonable time in which to tender performance after the specified date.” ADC Orange, Inc. v. Coyote Acres, Inc., 7 N.Y.3d 484, 824 N.Y.S.2d 192, 857 N.E.2d 513, 516 (2006).

The law is clear that generally time is considered to be of the essence where an agreement specifies, or where such may be determined from the nature of the subject matter of the contract, or where treating time as nonessential would produce a hardship, or where notice has been given to the defaulting party requiring that the contract be performed within a stated time, which must be a reasonable time according to the circumstances.

Sublime, Inc. v. Boardman’s Inc., 849 So.2d 470, 471 (Fla. 4th DCA 2003). Where one claims that time is an essential provision, the party is “bound, before he can support such a claim, to serve a clear, distinct and unequivocal notice fixing a reasonable time within which the thing must be done.” Ballen v. Potter, 251 N.Y. 224, 167 N.E. 424, 425 (1929). Placing in the contract “the mere designation of a particular date upon which a thing is to be done does not result in making that date the essence of the contract.” Id. See also Nippon Life Ins. Co. of Am. v. One Source Mgmt., Ltd., 2011 WL 1782089 (Ohio Ct. App. May 6, 2011) (finding that time was not of the essence, even though agreement set forth specific date for performance, absent a showing that a reasonable delay would have constituted a material breach or that appellant suffered a significant injury due to delay in performance); Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir.2005) (stating that failure to make a payment on time does not constitute per se a material breach of contract; rather, to constitute a material breach, late payment must occur where time is of the essence); ADC, 824 N.Y.S.2d 192, 857 N.E.2d at 516 (finding that an interim payment made two weeks late did not constitute a breach of contract because the contract did not state that time was of the essence).

In the present case, the contract does not specify that time is of the essence. There was no evidence of hardship in the record due to the delay of twenty-two days in appellant notifying appellee by letter pursuant to section 2.07. Nor was there evidence of any notice given to the alleged defaulting party to perform pursuant to the contractual section within a “reasonable time.” Finally, there is no evidence in the record that the nature of the subject matter would inform the parties that time is of the essence. In this case, the assets had already been purchased, the money was already placed in escrow, and appellee was not prejudiced by appellant’s delay of twenty-two days. The contract contained only a date for performance, which, standing alone, is insufficient to make time of the essence.

In Atlanta Jet v. Liberty Aircraft Services, LLC, 866 So.2d 148, 150 (Fla. 4th DCA 2004), this court found that the failure to close on a sale by the contractually set closing date of April 15 did not entitle a party to terminate the contract since the “nonperformance” did not “go to the essence of the contract.” This court found that, even though the contract provided for a closing date of April 15,

the Contract did not specify that time was of the essence. Moreover, there were no penalties for delay nor is it apparent that the Purchaser suffered any undue hardship due to the delay. Finally, the Purchaser never gave express notice requesting the contract to be performed within a stated reasonable time. Therefore, we hold that time was not of the essence.

Id. at 150-51.

We also find Beeler v. Katz Enterprises (Minnesota), Inc., 2001 WL 410342 (Minn. Ct.App. Apr. 24, 2001), to be very instructive. In Beeler, appellant agreed to pay $42 million for outstanding stock pursuant to a purchase and sale agreement. The price was also subject to post-closing adjustments. Appellant had the right to seek reduction of the purchase price if annual expenses were greater than a set figure. The contract provided that appellant was to supply the calculations within forty-five days of closing, but appellant supplied the calculations thirty-five days late. The trial court found that appellant had waived the right to any reduction in price by “allowing the 45 day deadline to pass.” Id. at *1. The appellate court concluded that the forty-five day time limit to render calculations was not material to the contract and thus reversed the trial court. “Even if a contract contains a specified date for performance, when the contract does not specify that time is of the essence, a delay will not necessarily invalidate the provision.” Id. The contract had no provision stating that time was of the essence, nor did the contract list any consequences for failure to abide by the listed date for submitting calculations. Thus, the appellate court reversed to allow the party to submit the calculations which would essentially reduce the purchase price. Similarly, in the present case with similar facts, appellant should be allowed to submit the calculations demonstrating that the revenues during the measurement period were less than the target numbers, and as such, would result in appellant retaining the monies held in escrow.

Finally, where the terms of a contract are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document, and in such a situation, the language itself is the best evidence of the parties’ intent, and its plain meaning controls. Crawford v. Barker, 64 So.3d 1246, 1255 (Fla.2011). The contract language demonstrates that the intent of the parties was to allow for an adjustment in the purchase price based on the performance of the assets in order to achieve a more equitable sale price. The contract detailed a process to adjust the purchase price of the assets depending on whether the calculations during the measurement period met the target calculations. If they did not meet the target numbers, appellant would have the right to the monies in escrow. This process would clearly adjust the purchase price of the assets from $1.2 million to the $800,000 already tendered to appellee.

In conclusion, we find that since time was not of the essence in this contract, appellant’s twenty-two day delay in tendering the calculations was not material, and we should give effect to the intent of the parties by considering the calculations as stated in appellant’s letter. We, therefore, reverse and remand for the trial court to enter summary judgment in favor of appellant.

Reversed and remanded.

GROSS and CIKLIN, JJ„ concur.

      . We note that the contract does not expressly address the scenario that occurred in this case. The contract anticipated that either appellant would timely serve its proposed statements or appellee would exercise his rights under the contract to declare that actual revenues exceeded target revenues. The contract does not anticipate a situation where, as here, appellant belatedly served its proposed statements and appellee then attempted to exercise his rights.


author: WELLS, Chief Judge.

text:
    Nancy Loftus QUINONES, Appellant, v. John M. QUINONES, Appellee.
    Nos. 3D09-3220, 3D10-432.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Rehearing Denied May 1, 2012.

      Nancy A. Hass, Hallandale Beach, for appellant.
    Perez-Abreu & Martin-LaVielle, Andy W. Acosta and Javier Perez-Abreu, Coral Gables, for appellee.
    Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
   WELLS, Chief Judge.

In these consolidated appeals, Nancy Loftus Quinones appeals from a final judgment of dissolution of marriage, arguing that the trial court erred in its alimony and equitable distribution determinations (Case 3D09-8220), and that it erred in its fee awards (Case 3D10-432). We agree that the court below erred in determining the amount of alimony to be paid and reverse that award. Based on this determination, we also conclude that the fee award must be reconsidered. However, we find no error in the equitable distribution and affirm that part of the award.

The parties were married in April 1988 and are the parents of two children, a son, who had achieved majority by the time of the divorce, and a teenaged daughter, who at the time of the final judgment had not yet attained majority. The former wife, a high school graduate, was fifty-three years old when the divorce decree was entered. While employed as a flight attendant when the parties were married, the former wife had been unemployed during the parties’ eighteen-year marriage. The former husband was fifty-six years old at the time of the divorce and was employed as a major network news correspondent earning over a million dollars a year.

In August 2009, a final judgment dissolving the parties’ marriage was entered. The following January, a fee and cost award was entered. The former wife appeals from the equitable distribution, alimony, and fee awards. We find no error in the equitable distribution devised by the court below. We do, however, agree that the trial court erred in considering the former husband’s voluntary support payments for the parties’ adult son in devising its alimony award and in its order awarding the former wife only a portion of her fees and costs.

The Alimony Award

The former wife argues that she was shortchanged by the trial court’s after tax award of $14,135 a month in permanent periodic alimony. We agree. The testimony was, and the final judgment acknowledges, that at the time of the divorce, the former husband was netting a little over $58,000 a month in income from his employment as a news correspondent. The former wife, on the other hand, was unemployed and had been so for over eighteen years. Yet, after recognizing that “[t]he parties [had] lived a fairly luxurious lifestyle during the marriage,” sending their children to private schools, traveling extensively, staying in luxury hotels and dining at expensive restaurants, the court below went on to cut down the expenses listed on the former wife’s financial affidavit to award her $14,135 a month, leaving the former husband with $44,000 to fund his stated $13,000 a month personal expenses. This was due to two things. First, it was due to the trial court’s express consideration of the former husband’s agreement to pay the expenses for the parties’ adult son:

In weighing the needs of the Wife and the ability of the Husband to pay, the court has considered the fact that the Husband has agreed to assume full responsibility for the private college tuition of [the parties’ adult son] (Approximately $52,000.00 plus expenses for the next four years.) The Husband is also paying for [the adult son’s] car and car insurance.

Second, it was due to the trial court’s failure to “provide for the needs and necessities of life as they were established during the marriage.” See § 61.08(8), Fla. Stat. (2010).

1. Consideration of Voluntary Payments

As observed in McLean v. McLean, 652 So.2d 1178, 1181 (Fla. 2d DCA 1995), absent a contractual agreement between the parties, courts are not authorized to consider “voluntary payments” to adult children in calculating amounts available to pay support in dissolution proceedings:

[T]he trial court considered evidence from the husband’s accountant on the extensive cost of sending the ... children to college and graduate school.... Although [the father] may well feel a moral obligation to pay these expenses, he is not legally required to pay them. See Grapin v. Grapin, 450 So.2d 853 (Fla.1984). Given the parties’ strong commitment to education, they may wish to stipulate concerning these future expenses and the effect they will have on this divorce proceeding, see Madson v. Madson, 636 So.2d 759 (Fla. 2d DCA 1994), but neither this court nor the trial court is authorized to add this factor into the divorce equation in the absence of some contractual agreement between the parties. See, e.g., Kilbride v. Kilbride, 172 Mich.App. 421, 432 N.W.2d 324 (1988), receded from on other grounds sub nom. Heike v. Heike, 198 Mich.App. 289, 497 N.W.2d 220, 221 (1993) (in setting wife’s amount of alimony, trial court did not err in failing to consider husband’s voluntary assumption of obligation to pay for adult child’s college expenses where parties did not independently agree to share such expenses). Cf. Swigers v. Swigers, 176 Ill.App.3d 795, 126 Ill.Dec. 231, 531 N.E.2d 858 (1988) (where statute authorized trial court to provide for educational expenses of child who has reached majority, it was not error for court to consider husband’s voluntary contributions to child’s education in determining amount of wife’s maintenance award). See generally Edward L. Raymond, Jr., Annotation, Divorce: Voluntary Contributions to Child’s Education Expenses as Factor Justifying Modification of Spousal Support Award, 63 A.L.R.4th 436 (1988).

(Emphasis added) (footnote omitted); see also Grapin v. Grapin, 450 So.2d 853, 854 (Fla.1984) (agreeing “that a trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay”); Rey v. Rey, 598 So.2d 141, 145 (Fla. 5th DCA 1992) (“There is no legal obligation to support the non-dependent adult children of the parties.”).

There is no contractual agreement in this case and it is apparent from the face of the final judgment that in determining the husband’s alimony obligation, the trial court considered that the former husband had assumed full responsibility for the son’s private college tuition, his car and car insurance. In addition to expressly acknowledging the former husband’s agreement to make these payments, as well as the annual cost of these payments, over $52,000 a year, the court below specifically listed this adult child’s expenses as part of the former husband’s monthly expenses in the final judgment thereby reducing the amount available to pay alimony to the former wife. This was improper and requires reversal of the alimony award.

2. Failure to Consider Standard of Living During the Marriage

In Canakaris v. Canakaris, 382 So.2d 1197, 1201-02 (Fla.1980), the Florida Supreme Court confirmed that in determining need for the purpose of awarding permanent periodic alimony, the standard of living enjoyed by the parties during the marriage must be taken into consideration:

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.

(Emphasis added). Consideration of standard of living is to ensure that one spouse is not “shortchanged.” Id. at 1204.

The obligation to consider standard of living when making an alimony award was codified in section 61.08(2)(a), Florida Statutes (2009) (requiring the court below to consider “[t]he standard of living established during the marriage” when making an alimony award). While acknowledging in the final judgment that' the parties “lived a fairly luxurious lifestyle during the marriage” with “residences in Miami and Utah,” that the parties were able to send their children to expensive private schools, and that they traveled extensively staying at “luxury hotels” and dining “at expensive restaurants,” the court below substantially reduced the former wife’s living expenses so as to leave her substantially shortchanged.

Specifically, the former wife maintained she needed $28,000 a month to support the lifestyle she enjoyed during the marriage. On the former husband’s conceded $58,000 a month net income, payment of this amount would leave him with over $30,000 a month for his own support. While the court below was not obligated to accept the former wife’s representation of her needs, it was not free to disregard the parties’ standard of living to reduce her expenses to approximate what the trial court believed — untethered to the parties’ living standard — would be reasonable. In this case, the former wife’s financial affidavit showed that she was then paying $4,000 a month for a rented condominium. At trial, the former wife testified that she intended to purchase a home, after the parties’ Utah home sold, and anticipated a monthly mortgage, taxes and insurance payment of around $6,700. Based on the parties’ standard of living, this was not unreasonable, yet the court below considered decreasing the amount the former wife was then paying for rent in calculating the support award. Similarly, the court below decreased a number of other items detailed on the former wife’s financial affidavit for things such as vacations, grooming, entertainment, household expenses, and meals at home. These cuts eliminated the former wife’s stated ability to engage in activities with her children and their friends as she had in the past. In light of the uncontradicted evidence that the former husband had the ability to pay the amounts requested to maintain the former wife’s standard of living, those amounts that the trial court concluded to be valid reflections of the former wife’s pre-dissolution expenses should not have been adjusted.

In sum, the court below determined the former wife’s need without consideration of the standard of living enjoyed by both parties during the marriage. The amount of permanent alimony awarded is, therefore, reversed. On remand, the court below shall consider the amount of alimony to be awarded without consideration of payments made to support the parties’ adult son and upon consideration of the standard of living enjoyed by the parties during the marriage.

The Fee Awards

Section 61.16(1) of the Florida Statutes requires consideration of the financial resources of both parties in determining whether and how much to order one party to pay to the other for fees and costs incurred in a Chapter 61 proceeding. § 61.16(1), Fla. Stat. (2010) (“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter....”).

The final order on fees and costs entered below, although twice expressly finding that the former husband has the ability to pay the former wife’s attorneys’ fees and costs, substantially reduced those awards concluding “that the Former Wife took unreasonable positions in the case, particularly as to the amount of alimony she thought she was entitled to and her intransigence as to selling the home in Utah.” In light of our determination herein that the court below erred in its alimony award, and because the record does not demonstrate the type of meritless or vexatious litigation that would affect a fee award, we reverse the fee and costs awards in their entirety for reconsideration in light of this opinion. See Ramos v. Lopez, 997 So.2d 1119, 1120 (Fla. 3d DCA 2008) (stating that where a “trial court specifically finds [that a spouse] had engaged in vexatious, excessive, or unnecessary litigation,” it may consider such behavior in awarding attorneys’ fees).

Conclusion

That portion of the final judgment setting the amount of alimony to be paid by the former husband is reversed as is the final order on attorneys’ fees and costs. The remainder of the final judgment is affirmed.

Reversed in part, affirmed in part.

      . The trial court additionally imputed income to the former wife upon the younger child finishing high school, in effect lowering the $14,135 net alimony award by an additional $2200 monthly. The analysis outlined herein makes it unnecessary for us to address this point other than to observe that however the trial court fashions its alimony award on remand, because the former husband has the ability to pay, the alimony awarded should allow the former wife to live the lifestyle established prior to the dissolution of marriage.

      . The former wife at one point had obtained a real estate license and sold two houses using referrals from the husband.

      . Currently, in addition to section 61.08(2)(a), section 61.08(8), Florida Statutes (2011) provides, “[pjermanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties[.]”

      . Although the final fees award did not mention the former husband's voluntary payments for the benefit of the parties' adult son, the final judgment did evidence that consideration:
      After the court's equitable distribution scheme and alimony awards, and in consideration of the Husband’s voluntary payment of the older child’s private college tuition and private schooling for the minor child, it appears the parties are on fairly equal financial footing and that each party should be responsible for his or her own attorney’s fees and costs. It also appears that the difficulty the Wife had in preparing an accurate Financial Affidavit and her intransigence in failing to agree to sell the Utah property have not only caused the unnecessary expenditure of attorney’s fees and costs but has caused the Husband to pay carrying costs for the Utah home for at least 20 extra months. It is highly unlikely the court would be inclined to grant the Wife’s request for attorney's fees and costs. Nonetheless, the court reserves jurisdiction to conduct a hearing to determine whether the Wife is entitled to fees based upon need and ability to pay as well as the other Rosen or Diaz/Smallwood factors. The Wife is forewarned that if she requests a hearing and if the court finds her request was unreasonable, the court will impose attorney’s fees and costs against her for wasting the court’s and the Husband’s time for such a hearing.
      (Emphasis added). As stated above, voluntary payments on behalf of an adult child should not be considered in a dissolution proceeding. See McLean, 652 So.2d at 1181.