author: MARSTILLER, J.

text:
    WASHINGTON COUNTY, Appellant, v. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee. The Northern Trust Company, as the Sole Trustee of the James L. Knight Charitable Term Trust, Appellant, v. Northwest Florida Water Management District, and Bay County, Appellants.
    Nos. 1D11-3488, 1D11-4484.
    District Court of Appeal of Florida, First District.
    March 16, 2012.
    John R. Thomas, Law Office of John R. Thomas, P.A., St. Petersburg, for Appellant, Washington County.
    Katherine E. Giddings, Nancy M. Wallace, Jason L. Lichtstein of Akerman Sen-terfitt, Tallahassee; Edward Cole, Jacksonville, Douglas Manson, Manson Law Group, P.A., Tampa, for Appellant, The Northern Trust Company.
    Donald D. Conn, Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tampa; and Kevin X. Crowley, Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee, Northwest Florida Water Management District.
    Terrell Arline, Panama City, for Appel-lee, Bay County, Florida.
   MARSTILLER, J.

These are consolidated appeals from final orders of the Northwest Florida Water Management District (“District”) determining that Appellants cannot administratively challenge the District’s 2008 Region III Regional Water Supply Plan (“Plan”) pursuant to section 373.709(5), Florida Statutes. We reverse the orders insofar as they determine, as a general proposition, that the Plan is not subject to challenge under chapter 120, Florida Statutes. The District’s ruling directly contravenes the plain language of section 373.709(5) permitting such a challenge if the plan, in part or in whole, affects a party’s substantial interests. However, concluding that the Plan has no legal effect on Appellants’ ability to challenge a consumptive water use permit granted to Bay County, we affirm the District’s determination that Appellants lack standing to challenge the Plan.

Statutory Framework

Section 373.709, Florida Statutes, calls for the state’s water management districts to develop regional water supply plans for areas in which it is determined that “existing sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses.” § 373.709(1), Fla. Stat. (2010). Water management districts also use the plans to “sustain the water resources and related natural systems [in the region] for the planning period.” Id. Among other things, a regional water supply plan must include a “water supply development component” that includes, in turn:

A list of water supply development project options, including traditional and alternative water supply project options, from which local government, government-owned and privately owned utilities, regional water supply authorities, multijurisdictional water supply entities, self-suppliers, and others may choose for water supply development. In addition to projects listed by the district, such users may propose specific projects for inclusion in the list of alternative water supply projects.

§ 373.709(2)(a)2., Fla. Stat. (2010). Approval of a plan by a water management district governing board is “not [ ] subject to the rulemaking requirements of chapter 120. However, any portion of an approved regional water supply plan which affects the substantial interests of a party shall be subject to s. 120.569.” § 373.709(5), Fla. Stat. (2010).

Should an entity choose to undertake an identified water supply development project, it must eventually apply for a water use permit pursuant to section 373.223, Florida Statutes. The permit applicant must establish that its proposed water use “(a) [i]s a reasonable-beneficial use as defined in s. 373.019; (b) [w]ill not interfere with any presently existing legal use of water; and (c) [i]s consistent with the public interest.” § 373.223(1), Fla. Stat. (2010). If the proposed water use will cross county boundaries, the district’s governing board must consider seven additional criteria. See § 373.223(3)(a)-(g), Fla. Stat. (2010). A regional water supply plan “may not be used in the review of permits ... unless the plan or an applicable portion thereof has been adopted by rule.” § 873.709(7), Fla. Stat. (2010). However, the permitting statute provides:

In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan ... the governing board or department shall presume that the alternative water supply use is consistent with the public interest.... This subsection does not effect [sic] evaluation of the use pursuant to the provisions of paragraphs (l)(a) and (b), subsections (2) and (3), and ss. 373.2295 and 373.233.

§ 373.223(5), Fla. Stat. (2010). A substantially affected third party can challenge the intended grant of a permit pursuant to sections 120.569 and 120.57, Florida Statutes.

Factual and Procedural Background

The District’s governing board adopted the Plan at a regularly scheduled open meeting on August 28, 2008, after conducting a publicly noticed workshop and soliciting input from interested parties through the District’s website and other modes. The Plan contains three water supply development project options, the first of which is at issue in this case: (1) inland ground water source development and water supply source protection; (2) utility interconnections and infrastructure enhancements; and (3) water reuse facilities. The stated objective of the inland ground water project is to “[d]evelop inland alternative water supply source to meet future demands and abate risks of salt water intrusion and extreme drought.”

In 2010, the District gave notice of its intent to approve Bay County’s application for a consumptive use permit proposing to use its well field near the Bay County/Washington County line to extract inland ground water as an alternative water supply. Appellants requested and received a formal administrative hearing in which to present evidence challenging the District’s decision. While the permit challenge was ongoing, Appellants also petitioned the District for a formal administrative hearing seeking to challenge the portion of the Plan designating the inland ground water project as an alternative water supply source. In its petition, Appellant, Washington County, alleged that the presumption provided for in section 373.223(5) and “priority funding attention” constitute “preferential treatments” that would “promote, enable, facilitate and secure the permitting and development of’ Bay County’s proposed well field project, and that withdrawal of groundwater through the well field would affect Washington County’s substantial interests. Appellant, The Northern Trust Company, as the sole trustee of the James L. Knight Charitable Term Trust (“Trust”), stated in its .petition that the Trust manages land straddling the Bay County/Washington County border, and that Bay- County’s well field is adjacent to the Trust-managed land. The Trust asserted that its interests are substantially affected by the Plan because the public interest presumption afforded Bay County’s consumptive use permit application would enable withdrawal of groundwater that will detrimentally impact the Trust-managed land.

The District ultimately dismissed the petitions-with prejudice concluding, “the District is without jurisdiction, as a matter of law, to address the validity of a regional water supply plan through an administrative hearing under Chapter 120, Florida Statutes, and [Petitioners are] without standing.” As to lack of jurisdiction, the District reasoned that the Plan is neither a rule nor an order, and thus not subject to administrative challenge. On the matter of standing, the District observed that Appellants are “party to an ongoing Chapter 120 proceeding in which [they seek] to invalidate the consumptive use permit for the same proposed activity [they complain] of’ in their petitions challenging the Plan.

While the standing allegations are sufficient in the pending DOAH proceeding, they are insufficient in this case. [N]o injury at all derives from the approval of the Regional Water Supply Plan. The planning document does not permit or authorize anything. It gives options for local governments and utilities to consider and act upon or not. In this case, Bay County chose to seek a consumptive use permit for a water supply project. [Appellants] had the right to challenge Bay County’s proposed water supply project and [they] did so....

For this reason, the District concluded, Appellants cannot demonstrate injury in fact of sufficient immediacy to establish the first prong of the two-pronged test for standing articulated in Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). The District ruled further that Appellants cannot satisfy the second Agrico prong because “[t]he type of injury alleged is not the type of injury the statewide [sic] water and regional water supply planning processes are designed to address.” Rather, the asserted injury is properly addressed in a permit challenge proceeding.

Analysis

We conclude first that the District incorrectly determined it lacked jurisdiction over Appellants’ petitions because the Plan is not subject to administrative challenge. The plain language of section 873.709(5), Florida Statutes (2010), states, “any portion of an approved regional water supply plan which affects the substantial interests of a party shall be subject to s. 120.569.” Even if, as the District posits, the Plan is neither a rule nor an order, the Legislature nonetheless has determined that a regional water supply plan, duly adopted by a water management district governing board, constitutes agency action subject to administrative challenge. See § 120.52(2), Fla. Stat. (2011) (“Agency action” means the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order.”) (emphasis added). The District has no authority to conclude otherwise, and thus we reverse its decision on jurisdiction.

However, the District properly dismissed Appellants’ petitions for lack of standing. Again, section 373.709(5) provides an avenue for administrative challenge if any part of a regional water supply plan affects a party’s substantial interests. Section 120.569 applies “in all proceedings in which the substantial interests of a party are determined by an agency....” A party asserting entitlement to an administrative hearing pursuant to section 120.569 must demonstrate that (1) it “will suffer injury in fact which is of sufficient immediacy to entitle [itj to a section [120.569] hearing,” and that (2) its “substantial injury is of a type or nature which the proceeding is designed to protect.” Agrico, 406 So.2d at 482. See Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 797 (Fla. 1st DCA 2006); Menorah Manor, Inc. v. Agency for Health Care Admin., 908 So.2d 1100, 1104 (Fla. 1st DCA 2005).

Appellants claimed standing to challenge the Plan because it created a presumption that Bay County’s consumptive use permit application, proposing withdrawal of ground water from a well field located near the Bay County/Washington County line, is consistent with the public interest. They asserted that any withdrawal of ground water by Bay County from that well field would injure them in a variety of ways. But the Plan itself does not name, refer to, or approve Bay County’s well field project as an alternative water supply development project. Rather, the Plan refers generally to a project for “inland ground water source development and water supply source protection.” This project and others contained in the Plan are simply options certain entities may choose to undertake by proposing and developing a specific project to fulfill the Plan’s objectives. See § 37S.709(2)(a)2., Fla. Stat. (2010). Moreover, the presumption afforded Bay County at the permit application stage does not impede or otherwise have a detrimental legal effect on Appellants’ ability to challenge the District’s grant of the permit in separate administrative proceedings. For these reasons, we conclude Appellants have failed to demonstrate that the Plan affects their substantial interests.

We decided similarly in Dillard & Associates Consulting Engineers v. Florida Department of Environmental Protection, 893 So.2d 702 (Fla. 1st DCA 2005). There the appellant, a Department of Transportation (“DOT”) contractor operating and managing certain DOT wastewater treatment facilities, asserted standing to administratively challenge a consent order entered into between DOT and the Department of Environmental Protection (“DEP”). The consent order came about after DEP found DOT’S contractor-operated wastewater facilities in violation of certain statutes and regulations, and imposed monetary penalties against DOT. Seeking an administrative hearing to challenge the violations and penalty, the contractor claimed that under its contract with DOT, it would be ultimately responsible for paying the fine. Id. at 703-04. We upheld DEP’s dismissal of the contractor’s petition for lack of standing because the consent order did not determine the contractor was liable to DOT for payment of the fines. Rather, the contractor’s liability, if any, would be determined in an indemnity proceeding brought by DOT. Id. at 704. We concluded, “Because Dillard & Associates may challenge the propriety and amount of fines paid to DEP in circuit court, we agree with DEP that Dillard & Associates lacks standing.” Id. at 704-05.

As in Dillard, the challenged agency decision here — adoption of that portion of the Plan providing for inland ground water source development — does not immediately affect, in and of itself, the interests Appellants asserted in their hearing petitions. The Plan lacks any language directly referencing or approving the Bay County well field project. It is the District’s decision to grant Bay County’s water use permit that affects Appellants’ substantial interests, and the Plan has no legal effect on Appellants’ ability to challenge the permit. Because the Plan does not operate as to injure Appellants’ asserted interests, and because Appellants can dispute Bay County’s permit in a separate administrative proceeding — indeed, they have done so — we conclude they have failed to satisfy the Agrico test for standing. Accordingly, we affirm the District’s decision to dismiss Appellants’ petitions for lack of standing. It is clear that the Legislature has envisioned circumstances in which a regional water supply plan can affect a party’s substantial interests, giving standing to initiate an administrative challenge. However, in this case, Appellants have failed to make such a showing.

AFFIRMED in part; REVERSED in part.

WOLF and PADOVANO, JJ„ concur.

      . Formerly section 373.0361. See Ch. 10-205, §§ 1, 28, Laws of Fla.

      . We review the District’s rulings on jurisdiction and standing de novo. See Dep't of Revenue ex rel. Smith v. Selles, 47 So.3d 916, 918 (Fla. 1st DCA 2010) ("Whether a lower tribunal had subject matter jurisdiction is a question of law which we review de novo."); Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot, 948 So.2d 794, 796 (Fla. 1st DCA 2006) ("Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.”).

      . We note from the record that the District provided no point of entry for a party to initiate an administrative challenge to the Plan. Inasmuch as section 373.709(5) permits such challenge, we direct the District's attention to Capeletti Brothers v. Florida Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), articulating the "clear point of entry” rule.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    ABED, INC., Petitioner, v. Chandresh SARAIYA; Vipul Kabaria; Jugal Tenaja a/k/a Jugal K. Taneja; Indira J. Lalwani; Downtown St. Pete Properties, LLC; and MB Financial Bank, N.A., as successor to Broadway Bank, an Illinois banking corporation, Respondents.
    No. 2D11-2469.
    District Court of Appeal of Florida, Second District.
    March 21, 2012.
    See also — So.3d-.
    Murray B. Silverstein and Michael P. Silver of Shutts & Bowen LLP, Tampa, for Petitioner.
    Ryan Christopher Rodems of Barker, Rodems & Cook, P.A., Tampa, for Respondent Vipul Kabaria.
    Constantine W. Papas of Law Office of Constantine W. Papas, P.A., Tampa, for Respondent Jugal K. Taneja.
    William B. Taylor, IV, and Patrick T. Lennon of Macfarlane Ferguson <& McMul-len, P.A., Tampa, for Respondent Downtown St. Pete Properties, LLC.
    Amy S. Farrior and Raymond T. Elli-gett, Jr., of Buell & Elligett, P.A., Tampa; and W. Keith Fendrick and Bradford D. Kimbro of Holland & Knight, LLP, Tampa, for Respondent MB Financial Bank.
    No appearance for Respondents Chan-dresh Saraiya and Indira J. Lalwani.
   ALTENBERND, Judge.

This certiorari proceeding involves an order that stays a junior lender’s lawsuit against certain guarantors until a senior indebtedness has been satisfied or certain priorities become moot. This matter is closely related to an appeal arising from disputes in a complex commercial transaction for which we issue an opinion on the same day that we issue this opinion. See MB Fin. Bank, N.A. v. Paragon Mortg. Holdings, LLC, — So.3d - (Fla. 2d DCA 2012). Based on the reasoning discussed in that case, we grant this petition for writ of certiorari. Subject to the limitations discussed in the MB Financial Bank opinion, Abed, Inc., should be permitted by the trial court to proceed to judgment against the guarantors who are the subject of the stay order.

As is the case in the related appeal, the appendix in this proceeding provides little information about the underlying commercial venture. It is clear, however, that Abed owned the land involved in this real estate venture and that it became a creditor as a result of selling its land to Fuel Investment and Development II, LLC (Fuel). In the following brief explanation of the loan transaction, the only apparent difference between this transaction and the one in the related case is that Abed is the junior lender in this case, whereas a lender now known as Paragon Mortgage Holdings, LLC (Paragon), was the junior lender in the related case.

The borrower, Fuel, had an existing loan of approximately $1,150,000 with Abed in 2006. Fuel had secured this loan with a mortgage on certain property that appears to include at least a portion of the property involved in the related case. Abed’s loan was also protected by personal guaranties signed by four investors in Fuel. The guarantors were Chandresh S. Saraiya, Jugal Taneja, Indira Lalwani, and Vipul Kabaria.

In 2006, this venture apparently needed a sizable influx of capital. Fuel contacted Broadway Bank to obtain a loan. Broadway Bank agreed to loan Fuel $4,800,000. This loan is apparently the same $4,800,000 loan that is described in the related appeal. In the related case, Paragon received $1,000,000 of the Broadway Bank loan, which was used to pay down Fuel’s loan obligations with Paragon, thereby reducing Paragon’s exposure in this venture. Nothing in our record suggests that Abed received a similar pay down.

In connection with the loan from Broadway Bank, the parties entered into a “Subordination and Standstill Agreement.” Broadway Bank, Abed, and Fuel all signed this agreement. All four of the guarantors signed for Fuel, but not in their capacity as guarantors. This agreement made the larger, newer Broadway Bank loan the “senior indebtedness” and the smaller, older Abed loan the “junior indebtedness.” Except for the changes necessary to make Abed the junior lender rather than Paragon, the subordination and standstill agreement in this case appears to be identical to the subordination and standstill agreement in the related case. Additionally, they were both executed on the same date.

In July 2008, the note to Broadway Bank matured and Fuel did not pay the indebtedness. Two of the guarantors, Chandresh S. Saraiya and Jugal Taneja, formed another entity, Downtown St. Pete Properties, LLC (Downtown Properties). Downtown Properties purchased the senior indebtedness from Broadway Bank. This purchase of all of the senior loan documents was funded by a $1,000,000 payment to Broadway Bank along with a new loan to Downtown Properties in the amount of $3,800,000. The new loan was secured by a security interest in the loan documents for the senior indebtedness with Broadway Bank, including the mortgage and guaranties. This security interest allowed Broadway Bank to recover its interest in the mortgage and guaranties in the event the bank felt its collateral was threatened.

Based on the record in the related appeal and the transcript in this proceeding, it appears that in 2008 Fuel owed money to both Paragon and Abed on junior, subordinated loans and that Fuel owed money to Downtown Properties related to the senior indebtedness with Broadway Bank. Downtown Properties, in turn, owed Broadway Bank $3,800,000. The four guarantors’ exposures on these investments were essentially divided into two groups. The two guarantors who created Downtown Properties indirectly owned the senior indebtedness on which all four guarantors were at risk. Thus, they also indirectly controlled the senior indebtedness to which the Abed loan was subordinated as the junior indebtedness.

Like Paragon, Abed also filed an action against the guarantors to obtain a judgment. Abed filed its action in the circuit court in Pinellas County. Broadway Bank and Downtown Properties also intervened in this action. Unlike the circuit court in Hillsborough County, the circuit court in Pinellas County conducted an evidentiary hearing, but it appears that the court determined that the agreements were unambiguous and did not need to be interpreted with the aid of parol evidence.

Unlike the court in Hillsborough County, the court in Pinellas County did not deem the Broadway Bank loan satisfied. It concluded that the subordination and standstill agreement controlled the rights of the parties and that Abed could not proceed to judgment against the guarantors until the senior indebtedness had been paid or the priority conferred by the agreement became moot. As a result, it entered an order staying Abed’s lawsuit against the guarantors until such time as the senior indebtedness had been paid or the priority conferred by the agreement became moot.

We will not repeat the discussion of the subordination and standstill agreement from our other opinion. See MB Fin. Bank, — So.3d -. We conclude, however, that the order staying this action is incorrect for the reasons explained in the related opinion. The stay could easily cause irreparable injury if it allowed Paragon or some other unknown party to obtain a judgment with priority over the rights of Abed. Accordingly, we grant this petition for writ of certiorari to the extent that Abed can proceed to judgment against the guarantors, assuming it can prove the elements of its claims against the guarantors. Once it receives a judgment, payment of that judgment will be subordinated to the primary indebtedness. Thus, if any guarantor attempted to satisfy Abed’s judgment, the money delivered to Abed could not be used to pay down its judgment until the senior indebtedness is paid in full. Until that time, Abed would be required to give any “payment” to the holder of the senior indebtedness.

Petition for writ of certiorari granted.

VILLANTI and MORRIS, JJ., Concur.

      . The amounts we provide are not intended to be binding as factual determinations, but merely approximations to provide the context of these transactions.

      . As explained in MB Financial Bank, the structure is somewhat more complex than described in this opinion.

      .MB Financial Bank is the successor to Broadway Bank, and this opinion will describe the lender as Broadway Bank.

      . Paragon did not sign the Abed agreement, and Abed did not sign the Paragon agreement. We do not know if one of these loans has priority over the other.

      . Whether this order, which stays this action possibly forever, is a nonfinal order to be reviewed by certiorari or an order that could be reviewed by direct appeal, either as a nonfinal order in the nature of an injunction or as a final order, is a very debatable issue. We conclude that the relief we provide in this opinion could be provided by any of these methods. Accordingly, we decline to resolve this jurisdictional issue, which the parties have not raised.


author: PER CURIAM.

text:
    Jorge CORTES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3589.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Rehearing Denied May 16, 2012.

      Jorge Cortes, Jr., Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

In his motion for postconviction relief and amended motion for postconviction relief, appellant raises over seventy claims for relief. These claims were denied by the trial court, which also denied appellant’s request in his motion for rehearing to amend his claims under Spera v. State, 971 So.2d 754 (Fla.2007). We affirm, concluding that no prejudice has been shown and write to address the right to amend under Spera.

Appellant was convicted of first degree murder of one victim and attempted first degree murder of another. We need not go at length into the facts of the case. We note only that trial counsel mounted a vigorous defense, and appellant’s defense was hampered by his constantly changing story regarding the incident, as well as physical evidence which contradicted his stories.

After his conviction and unsuccessful direct appeal, appellant filed a lengthy motion for postconviction relief, raising more than seventy claims of trial court error or attorney ineffectiveness. As the state said in response:

It is inconceivable that the number of claims of ineffective assistance that defendant has alleged in this pleading could be even remotely accurate.... How the number of issues/problems that defendant now alleges took place could have occurred and escaped both circuit court and appellate court defies logic. What is a more realistic view is that defendant has simply thrown together allegations, scrutinized every word, and proceeded to create an exhaustive laundry list of allegedly objectionable claims equating each item on the list as worthy of consideration as the basis for a new trial. Such analysis is contrary to the spirit of Strickland [.]

We agree with the state’s sentiments. In such circumstances, a trial court has discretion to strike a postconviction motion which raises an abusive number of claims or which presents claims in an unintelligible manner. See, e.g., Gidney v. State, 925 So.2d 1076, 1077 (Fla. 4th DCA 2006). A legitimate ineffective assistance of counsel claim is rare. No postconviction movant has seventy-plus legitimate claims that can be argued in good faith. Many of the claims in the present motion are wholly without merit and/or frivolous. The motion was abusive and could have been stricken. Nevertheless, the state refuted the claims and provided record support for those requiring refutation in the record. The trial court denied the motion on the merits.

An ineffective assistance of counsel claim is reserved for serious errors that impact the fundamental fairness of a criminal trial. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To constitute ineffective assistance of counsel, such that the Sixth Amendment right to counsel is violated, an attorney must perform substantially below an objective standard of reasonableness. Counsel’s performance is strongly presumed to have been competent, and the defendant must show that counsel performed well below the level expected of a reasonably competent attorney under prevailing professional norms. The attorney’s performance, which must be considered from counsel’s perspective at the time, must be so deficient that the defendant was not provided the minimum level of assistance required by the Constitution so that the trial is fundamentally unfair and the result unreliable. An ineffective assistance of counsel claim is not meant to grade counsel’s performance and is not an opportunity for a defendant to catalogue every conceivable thing that counsel could have done differently.

The evidence against appellant was strong. His defense, which was based on his claim of innocence—that two unknown men committed the shooting—is implausible and weak. The surviving victim, to whom appellant owed a large sum of money, testified that appellant shot both him and the decedent in the head at close range. Appellant then shot himself in the arm and drove to the hospital where he reported that they had been robbed and that the robbers had shot the victims with appellant’s own gun. Appellant’s gun, however, was found on the floorboard of the driver’s side of the car where appellant was sitting. Appellant’s allegation that the victims set him up, and that two strangers robbed him, took his gun and shot him in the right arm but shot the two victims in the head is wholly unbelievable. The physical evidence does not support Appellant’s account of the events, which he has changed repeatedly. No reasonable probability exists that the jury’s verdict would differ even if counsel had taken any, or all, of the laundry list of actions presented in the abusive motion. Confidence in the correctness of the outcome is not undermined.

A court need not consider the deficiency prong if the movant cannot show prejudice. Strickland provides:

[T]here is no reason for a court deciding an ineffective assistance claim ... even to address both components of the inquiry if the defendant makes an insufficient showing on one.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

466 U.S. at 697, 104 S.Ct. 2052. Prejudice is not established in this case, and our analysis need go no further. Although the prejudice prong has not been met in this case, we have reviewed the individual claims of ineffectiveness to ascertain whether any of them, if legally sufficient (which most were not), would have altered our assessment of the prejudice. Suffice it to say, they would not.

In his motion for rehearing, appellant sought to amend his claims based upon Spera, acknowledging that his motion and amended motion were “convoluted,” a point with which we agree. However, we do not find that he is entitled to another chance to amend.

Appellant misconstrues Spera and confuses the type of “insufficiency” to which it applies. Spera applies to the insufficiency of a motion or claim which fails to contain required allegations, a pleading deficiency. 971 So.2d at 761 (holding that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion”). Spera applies only where a motion lacks required allegations so that it fails to state a sufficient claim. Id. at 762 (“We also stress that our decision is limited to motions deemed facially insufficient to support relief—that is, claims that fail to contain required allegations.”). Spera does not require courts to give movants multiple opportunities to establish Strickland prejudice or to expand upon their allegations.

Under Spera, a court is not required to provide an opportunity to amend a claim that simply fails to establish a basis for relief. Otherwise, nearly every meritless claim would be subject to an opportunity to amend. As explained in Oquendo v. State, 2 So.3d 1001 (Fla. 4th DCA 2008), the Florida Supreme Court has not applied Spera in this way in death penalty postconviction proceedings. Id. at 1004 (citing, inter alia, Morgan v. State, 991 So.2d 835, 841 (Fla.2008), and Doorbal v. State, 983 So.2d 464, 482-84 (Fla.2008)). See also Geralds v. State, 37 Fla. L. Weekly S71, S77 (Fla. Feb. 2, 2012); Taylor v. State, 62 So.3d 1101, 1117-18 (Fla.2011). This court has held that Spera does not require an opportunity to amend concluso-ry claims. Mancino v. State, 10 So.3d 1203, 1204 (Fla. 4th DCA 2009). “The defendant bears the burden of establishing a prima facie case based upon a legally valid claim.” Atwater v. State, 788 So.2d 223, 229 (Fla.2001). Spera does not require courts to give movants multiple opportunities to meet this burden.

None of appellant’s claims were denied because of a pleading deficiency. Appellant is not entitled to another opportunity to further expand upon his claims where he has never explained how he could cure the insufficiencies — that is, how he could show prejudice.

Further, Spera requires an opportunity to amend only where the motion can be amended in good faith to state a sufficient claim. 971 So.2d at 762. Where a movant files an initial brief, and fails to establish that the claim can be amended in good faith, this court will not remand the matter. Hammond v. State, 34 So.3d 58, 61 (Fla. 4th DCA 2010). While appellant cites Hammond and conclusorily argues in his brief that he can amend his claims in good faith, he provides no explanation how, under the facts of this case, any of his claims could be amended to sufficiently establish Strickland prejudice. Instead, he relies on his motion for rehearing which he argues completely addressed each issue raised. The rehearing motion asked for an opportunity to amend without explaining how any of the claims could possibly be made sufficient. All of his pleadings are woefully insufficient to warrant any further opportunity to use more judicial resources on non-meritorious claims.

Affirmed.

WARNER, HAZOURI and DAMOORGIAN, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: ROTHENBERG, J.

text:
    UNITED STATES BLOOD BANK, INC., Appellant, v. AGENCY FOR WORKFORCE INNOVATION c/o Department of Revenue, Appellee.
    No. 3D11-1705.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.

      Teri Guttman Valdes, Coral Gables, for appellant.
    Peter Penrod, Assistant General Counsel, for Agency for Workforce Innovation.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

United States Blood Bank, Inc., a Delaware corporation (“predecessor USBB”), merged into USBB Acquisition Corp. and ultimately changed its name to United States Blood Bank, Inc., a Florida corporation (“successor USBB”). The issue below was whether, at the time of the transfer of predecessor USBB’s employees to successor USBB, there was any common ownership, management, or control between the two employers. And, if so, whether the transfer was with the knowledge or reckless disregard of the requirements of section 443.131(S)(g)l.a., Florida Statutes (2008). The Florida Department of Revenue (“Department”) concluded that at the time of the transfer there was a common ownership, management, or control between the two employers, and accordingly, increased successor USBB’s tax rate pursuant to section 443.131(3). The Agency for Workforce Innovation (“Agency”) ultimately affirmed the increase of successor USBB’s unemployment compensation rate by the Department. Because the Agency’s factual determinations are supported by competent, substantial evidence, we affirm.

The record reflects that after the Department notified successor USBB that its unemployment compensation tax rate was being increased, successor USBB filed a timely request for redetermination, and a hearing was conducted by a Special Deputy. The Special Deputy found and/or concluded in part as follows:

At the time of the transfer, Enrique Sotolongo was the director of both corporations. Thus, there was a common ownership, management, or control at the time of the transfer.... The determination issued by [the Department] increased the tax rate to the maximum rate allowed by law because it was determined that a substantial purpose of the transfer was to obtain a reduced liability for contributions. [Successor USBB] has failed to establish by a preponderance of the evidence that the determination of [the Department] is in error.

In addition to relying on section 443.131, the Special Deputy cited to Rule 60BB-2.031(3) of the Florida Administrative Code, which provides, in relevant part:

(3) Mandatory Transfer of Employment Records. Each employer must notify [the Department] in writing of any total or partial transfer of trade or business within 90 days after the date of transfer if there was any common ownership, management, or control of the two employers at the time of the transfer. For the purpose of implementing Section 443.131(g), F.S.:
(c) A person in “management” includes any officer or director of a corporation, ... or person with the ability to direct the activities of an employing unit, either individually or in concert with others.
(d) “Common management” exists when a person concurrently occupies management positions in two or more businesses.

Successor USBB filed exceptions to the Special Deputy’s recommended order. Thereafter, the Agency entered an order rejecting successor USBB’s exceptions; adopting the Special Deputy’s findings of fact after determining they were supported by competent, substantial evidence in the record; adopting the Special Deputy’s conclusions of law after finding they reflect a reasonable application of the law to the facts; and ordering the affirmance of the Department’s determination dated July 24, 2010. Successor USBB appeals the Agency’s final order.

In an appeal from final administrative action, this Court reviews the agency’s findings of fact to determine whether they are supported by competent, substantial evidence in the record. See § 120.68(7)(b), Fla. Stat. (2011); I.B., ex rel. R.B. v. State, Agency for Health Care Admin., 87 So.3d 6, 9, 2012 WL 637911 (Fla. 3d DCA 2012) (“An administrative agency’s findings of fact are subject to a competent, substantial evidence review; while findings that are interpretations of relevant law are subject to a de novo review.”); Salinas v. E. Aero Marine, 908 So.2d 1169, 1171 (Fla. 3d DCA 2005); Maynard v. Fla. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992). Further, we review the agency’s conclusions of law de novo, see § 120.68(7)(d), Fla. Stat. (2011); I.B., ex rel. R.B., 87 So.3d at 9; Dorcely v. State Dep’t of Bus. & Profl Regulation, 22 So.3d 834 (Fla. 4th DCA 2009), and we will defer to the agency’s conclusions of law unless they are clearly erroneous or contrary to law. See Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1283 (Fla. 2000) (“Florida courts generally will defer to an agency’s interpretation of statutes and rules the agency is charged with implementing and enforcing.”); I.B., ex rel. R.B., 87 So.3d at 9 (“Although courts typically uphold agency decisions that are supported by competent, substantial evidence, no deference is due an error of law.”).

The record reflects that the Agency’s factual findings are supported by competent, substantial evidence. First, the record reflects that predecessor USBB transferred its sixty-six employees to USBB. In addition to the testimony of the accountant for both employers and the Department’s tax auditor, annual reports filed by predecessor and successor USBB were introduced at the hearing conducted by the Special Deputy. Importantly, predecessor USBB’s corporate records list Enrique So-tolongo as its secretary, treasurer, and director, and successor USBB’s corporate records list Sotolongo as its director. Although the accountant attempted to downplay Sotolongo’s involvement in predecessor USBB by testifying that Sotolongo did not act as predecessor USBB’s secretary, treasurer, and secretary, but instead, was merely a “consultant,” he acknowledged he was not involved in the decision to transfer the employees from predecessor USBB to successor USBB, and, therefore, he had no personal knowledge of the reason for the transfer.

The Special Deputy, as the trier of fact, was charged with the responsibility of weighing the evidence, and as such, was free to accept or reject all or any portion of any witness’s testimony and to resolve conflicts in the evidence. See His Kids Daycare v. Fla. Unemployment Appeals Comm’n, 904 So.2d 477, 480 (Fla. 1st DCA 2005). “The fact that other evidence exists, which would lead to a different conclusion, is of no import.” Id. The Special Deputy was therefore free to reject the accountant’s testimony and rely on the corporate records and filings in determining there was a common ownership, management, or control between the two employers.

Whether Sotolongo actually exercised control or actively managed either corporation is not dispositive. Florida Administrative Code Rule 60BB-2.031 implements section 448.131, Florida Statutes. Rule 60BB-2.031(3)(c) defines “management” as “any officer or director of a corporation, owner of a sole proprietorship, partner in a partnership, manager of an LLC, or person with the ability to direct the activities of an employing unit, either individually or in concert with others.” (emphasis added). “Common management” occurs when a “person concurrently occupies management positions in two or more businesses.” Fla. Admin. Code. R. 60BB-2.031(3)(d) (emphasis added).

Because the corporate records clearly reflect that Sotolongo was a director in both predecessor and successor USBB, and a director of a corporation is specifically defined as a person in management, there was common management between the two employers. Thus, the Agency’s determination was supported by competent, substantial evidence, and it comports with the essential requirements of the law.

Affirmed.

      . The Department's notification cited to pertinent provisions of section 443.131(3), Florida Statutes, which provide, in part:
      (3) VARIATION OF CONTRIBUTION RATES BASED ON BENEFIT EXPERIENCE.—

      (g) Transfer of unemployment experience upon transfer or acquisition of a business.— Notwithstanding any other provision of law, upon transfer or acquisition of a business, the following conditions apply to the assignment of rates and to transfers of unemployment experience:
      l.a. If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is any common ownership, management, or control of the two employers, the unemployment experience attributable to the transferred trade or business shall be transferred to the employer to whom the business is so transferred....
      b. If, following a transfer of experience under sub-subparagraph a., the Agency for Workforce Innovation or the tax collection service provider determines that a substantial purpose of the transfer of trade or business was to obtain a reduced liability for contributions, the experience rating account of the employers involved shall be combined into a single account and a single rate assigned to the account.

      3. If a person knowingly violates or attempts to violate subparagraph 1. or sub-paragraph 2. or any other provision of this chapter related to determining the assignment of a contribution rate, or if a person knowingly advises another person to violate the law, the person shall be subject to the following penalties:
      a. If the person is an employer, the employer shall be assigned the highest rate assignable under this chapter for the rate year during which such violation or attempted violation occurred and for the 3 rate years immediately following this rate year. However, if the person's business is already at the highest rate for any year, or if the amount of increase in the person’s rate would be less than 2 percent for such year, then a penalty rate of contribution of 2 percent of taxable wages shall be imposed for such year and the following 3 rate years.

      7. For purposes of this paragraph:

      b. "Trade or business” shall include the employer’s workforce.


author: PER CURIAM. THOMAS, J.,

text:
    Susan GENA, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, as successor in interest to Atlantic Preferred Insurance Company, Inc., Appellee.
    No. 1D11-1783.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    Rehearing Denied May 2, 2012.

      Roy W. Jordan, Jr., of Roy W. Jordan, Jr., P.A., West Palm Beach, for Appellant.
    Robert C. Crabtree of Andrews, Crab-tree, Knox & Andrews, LLC, Tallahassee, and Dorothy V. DiFiore of Haas, Lewis, DiFiore, P.A., Tampa, for Appellee.
   PER CURIAM.

Appellant, Susan Gena, challenges an order confirming an appraisal award and denying her motion for attorney’s fees. She argues that Appellee, the Florida Insurance Guaranty Association (“FIGA”), is responsible for her attorney’s fees under section 627.428, Florida Statutes, because its refusal to adjust her claim before the statute of limitations expired constituted a denial of her claim by affirmative action pursuant to section 631.70, Florida Statutes. We reject Appellant’s argument and affirm.

Appellant’s property was damaged in 2005 as a result of Hurricane Wilma. When she was notified that her insurance carrier, Atlantic Preferred Insurance Company, became insolvent, she submitted a claim to FIGA, a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain insurance policies issued by insurers that have become insolvent. By letter dated May 16, 2008, FIGA informed Appellant that the deadline by which her claim had to be settled or by which she had to file a lawsuit expired on June 2, 2008. It further set forth, “Unfortunately, it appears there is insufficient time for [FIGA] to investigate, evaluate and settle your claim prior to the expiration of the approaching deadline. Therefore, if you wish to pursue your claim further, [FIGA] recommends you seek legal advice immediately.” One day before the applicable statute of limitations expired, appellant’s newly-hired counsel filed a breach of contract action against FIGA. Thereafter, the parties agreed to abate the action and proceed through the appraisal process. The court later awarded appellant $131,440.18 as a result of the hurricane damage but denied Appellant’s motion for fees, reasoning that FIGA did not “by affirmative action other than delay” deny Appellant’s claim. This appeal followed.

Section 627.428(1), Florida Statutes (2007), provides that an insured is entitled to attorney’s fees upon the rendition of a judgment against an insurer. Section 631.70, Florida Statutes (2007), provides that “[t]he provisions of s. 627.428 providing for an attorney’s fee shall not be applicable to any claim presented to [FIGA] under the provisions of this part, except when ... [FIGA] denies by affirmative action, other than delay, a covered claim or a portion thereof.” Appellant’s argument on appeal that she was entitled to fees under section 627.428 is reviewable de novo. Fla. Ins. Guar. Ass’n v. Smothers, 65 So.3d 541, 542 (Fla. 4th DCA 2011).

We agree with the trial court that Appellant is not entitled to attorney’s fees under section 627.428 as FIGA never denied Appellant’s claim. Instead, it informed Appellant that it would not be able to investigate and settle her claim before the statute of limitations expired and advised her to seek legal counsel. Even if we were to say that the May 2008 letter constituted a denial of Appellant’s claim, Appellant would still not be entitled to fees because any denial resulted from delay. By including the “other than delay” language in section 631.70, the Legislature was obviously aware that FIGA might be unable to timely handle all of the claims filed with it following an insolvency and sought to shield the entity from liability for fees in those instances where insureds filed suit because of the untimely processing of claims. The situation in this case is similar to that in Florida Insurance Guaranty Association v. Ehrlich, 82 So.3d 849 (Fla. 4th DCA 2011), where the insureds filed a claim with FIGA and then filed suit a few weeks later before FIGA investigated the claim in order to avoid the expiration of the statute of limitations. In concluding that the insureds were not entitled to fees under section 627.428, the Fourth District in Ehrlich reasoned that FIGA essentially delayed paying the claim until it had sufficient time to investigate and at no time explicitly denied the insureds’ claim. Id. The same reasoning is applicable in this case. As such, the trial court did not err in denying’s Appellant’s motion for fees.

Accordingly, we AFFIRM.

DAVIS and RAY, JJ., concur; THOMAS, J., Dissents with Opinion.

THOMAS, J.,

Dissenting.

I respectfully dissent. Because the Florida Insurance Guaranty Association (“FIGA”) constructively denied Appellant’s claims defacto, it is required to pay Appellant’s attorney’s fees under sections 627.428(1) and 631.70, Florida Statutes. As Appellant asserts, Florida Statutes do not require that she prevail on the issue of coverage, but only on the payment of a covered claim, which she obtained; thus, she is entitled to payment of the fees she incurred in obtaining that payment. See generally Florida Ins. Guar. Ass’n v. Giordano, 485 So.2d 453 (Fla. 3d DCA 1986). Although FIGA couched its denial of Appellant’s property claim in terms of “insufficient time” to review the claim, its refusal to pay the covered claim within a reasonable time constituted a denial of Appellant’s claim as a matter of law.

Under section 631.70, Florida Statutes, attorney’s fees are payable to an insured that prevails in litigation, but such fees “shall not be applicable to any claim presented to [FIGA] .... except when [it] denies by affirmative action, other than delay, a covered claim or a portion thereof.” As Appellant persuasively argues, the only logical interpretation of section 631.70 is to relieve FIGA of any responsibility of delays caused by the insolvent company’s prior actions, not to give FIGA the authority to refuse action on a covered claim by simply labeling its refusal as a “delay.” Although FIGA claimed it had insufficient time to resolve Appellant’s request for coverage, it is the courts, not FIGA, that determine whether it “affirmatively” denied the claim. Bush v. Schiavo, 885 So.2d 321, 330 (Fla.2004) (“the power of the judiciary is ‘not merely to rule on eases, but to decide them ....’”) (emphasis in original; citation omitted). Were we to merely accept FIGA’s self-serving description of its actions, it could continue to deny claims with impunity by simply alleging there was “insufficient time” to resolve the claim, thus forcing policyholders to wait months for emergency and necessary payments and repairs and, as here, endure the cost of litigation to obtain their rightful insurance proceeds.

Appellant notified her insurance carrier in 2005 regarding the hurricane damage to her home. The carrier “eventually” notified Appellant of its insolvency, and Appellant “finally called FIGA” in 2008. Appellant received a service request status for her claim, but after a month’s delay, FIGA notified her that she needed a “hurricane service request number” but there was not time to process the service request before the deadline. By letter dated May 16, 2008, FIGA notified Appellant that there was insufficient time to consider her claim. Appellant presented an affidavit from an insurance adjuster with 40 years’ experience in claim adjustments stating that FIGA could have investigated the claim in a week, much less two months or longer. This evidence was not refuted below.

Thus, after FIGA stepped into the shoes of Appellant’s insolvent insurer, it did not take action on Appellant’s claim for at least two months, it did not schedule any action on the claim or waive its statute of limitations defense to commit to settlement of the claim, and it explicitly instructed Appellant to seek legal representation, as the statute of limitations would soon expire. By its actions, FIGA declined to address the merits of Appellant’s claim, thus forcing Appellant to file suit. Although FIGA blamed its inaction on “delay,” as Appellant asserts, FIGA could have recognized its lack of resources to timely process the claim and waived its statute of limitations defense. By doing so, it could have put Appellant’s claim on a schedule, and thus not “affirmatively” denied the claim.

After Appellant filed suit, the parties quickly pursued resolution through the appraisal process, but further argument ensued regarding the appointment of an umpire and the scope of Appellant’s damages. A review of the hearing transcript regarding Appellant’s motion for confirmation of the appraisal award and for a grant of attorney’s fees leads to the conclusion that FIGA, while never answering Appellant’s complaint and agreeing to the appraisal process, did in fact contest coverage of certain costs and deny Appellant’s claim. After a lengthy process, Appellant ultimately prevailed and, as provided in section 627.428, Florida Statutes, was entitled to an award of attorney’s fees. Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla.2000) (“[Wjhere an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured, thereby entitling the insured to attorney’s fees.”).

The instant case stands somewhat between the facts of Florida Insurance Guaranty Association, Inc. v. Ehrlich, 82 So.3d 849 (Fla. 4th DCA 2011), relied on by the majority, and Rahabi v. Florida Insurance Guaranty Association, Inc., 71 So.Sd 241 (Fla. 4th DCA 2011). In Ehrlich, a decision which remains under review, the insured filed a claim with FIGA, and a mere “few weeks later, before [FIGA] investigated the claim and ostensibly to avoid the expiration of the statute of limitation,” the insured filed suit. Ehrlich, 82 So.3d at 850 (emphasis added). The Fourth District pronounced that “[h]aving insufficient time to investigate the claim,” FIGA sought extensions of time to respond to the suit, and only answered the complaint when compelled by the trial court. Id. It found that FIGA’s action in answering a complaint under court order did not constitute an affirmative denial of a claim, because “[essentially, appellant ‘delayed’ paying the claim until it had sufficient time to investigate.” Id.

In Rahabi, the Fourth District found that FIGA voluntarily denied a claim where it filed affirmative defenses and alleged that the insured’s damages were not caused by a covered loss, even though FIGA had previously attempted to delay the litigation so it could determine an “appropriate response.” 71 So.3d at 242.

Here, FIGA took no action for at least two months, told Appellant that it would not act on the claim, advised Appellant to file suit to protect her interest, and then actively disputed certain claim issues during the litigation. While it is correct that FIGA did not file an answer, but promptly proceeded to the appraisal process, under no reasonable interpretation of the facts can it be said that FIGA voluntarily paid Appellant’s claims. Rather, it neglected to fulfill its statutory duty as the successor insurer within a reasonable time, forced Appellant to litigate her claim, and then disputed the claim coverage amounts. In fact, FIGA required the appointment of an umpire to resolve certain disputed amounts. Although FIGA ultimately paid under the policy, it was the insured that compelled this result by litigation, expense and effort, which ultimately resulted in a successful order confirming the appraisal award.

Reading sections 627.428(1) and 631.70, in pari materia, as we must, FIGA, acting in place of the insolvent insurer, pays the attorney’s fees to an insured who successfully litigates a claim, or a portion of a claim, unless its denial of the claim is based solely on delay. Because that is not the case here, we should reverse the trial court’s order denying the award of attorney’s fees to Appellant, as she successfully litigated her right to payment of a covered claim. As Appellant notes in her Reply Brief, “every policyholder [in Florida] pays a portion of their premiums to pay for the coverage provided by [FIGA].” Like other insurers who receive premium payments, when FIGA refuses to pay a covered claim, it is liable to the insured for their attorney’s fees. While the legislature has limited this liability to affirmative denials of claims rather than mere delay, here, FIGA refused to perform its statutory duty in a reasonable time and, by its actions, constructively denied Appellant’s claims.

      . Although Appellant implies that FIGA should be presumed to have had notice of her claim far earlier, when it assumed the insolvent carrier’s obligations, I analyze this case in the light most favorable to FIGA, as the prevailing party below. I note, however, that FIGA should consider its own actions here and be wary of criticizing Appellant’s "delay” in prosecuting her claim.


author: THOMAS, J.

text:
    Susan LAMOLINARA, Appellant, v. David LAMOLINARA, Appellee.
    No. 1D11-4396.
    District Court of Appeal of Florida, First District.
    March 26, 2012.
    Rehearing Denied May 1, 2012.

      Jonathan A. Zahler of the Law Offices of Jonathan A. Zahler, P.A., Jacksonville; Beth M. Terry of the Law Office of Beth M. Terry, P.A., Jacksonville, for Appellant.
    Charles E. Willmott of Charles E. Will-mott, P.A., Jacksonville; Michael J. Korn and Jordan R. Biehl of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   THOMAS, J.

Former Wife appeals the trial court’s order denying her Motion for Relief from Judgment, alleging that Former Husband’s 2005 financial affidavits were fraudulent. We affirm, as we find the appeal without merit, but not frivolous. We write only to address Former Wife’s motion for attorney’s fees filed under section 61.16, Florida Statutes, and rule 9.400, Florida Rules of Appellate Procedure, because we find that Former Wife’s attorney’s fee motion must be remanded to the trial court. We reject Former Husband’s motion for attorney’s fees, as it is not supported by applicable law.

Section 61.16(1), Florida Statutes, states in pertinent part: “In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.” (emphasis added). The purpose of this section is to ensure that both parties have a similar ability to obtain competent legal counsel. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Here, Former Husband vigorously opposes Former Wife’s motion for attorney’s fees, arguing that Former Wife has filed a meritless appeal. Former Husband asserts that under Rosen v. Rosen, 696 So.2d 697 (Fla.1997), Former Wife should not be entitled to a grant of attorney’s fees, because she has simply sought to have this court substitute its views of the facts below for the trial court’s views. Former Husband further asserts that it is irrelevant “[wjhether or not [he] has a superior financial ability to pay” such fees. Although we affirm the trial court’s order, our decision does not mean the factual findings below were immune to appellate judicial review. Although Former Wife has not prevailed on appeal, her lack of success in this court is not sufficient reason alone to deny her an award of appellate attorney’s fees, unless her appeal is frivolous. See Johnson v. Johnson, 403 So.2d 1388 (Fla. 2d DCA 1981). In Johnson, the Second District correctly noted that “[ujnlike most statutes authorizing attorney’s fees, [under] section 61.16, Florida Statutes ... where the relative financial circumstances of the contestants justify it, even the losing party may be awarded a fee.” Id. at 1391.

The Florida Supreme Court stated in Rosen that “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.” 696 So.2d at 700. It held that the parties’ financial resources are the primary factor to be considered. Id. Other relevant factors include: 1) the scope and history of the litigation; 2) the duration of litigation; 3) the merits of the respective positions; 4) whether the litigation is brought or maintained primarily to harass; and 5) prior or pending litigation. Id. The supreme court indicated that where a court finds that an action is frivolous or brought to harass the adverse party, the trial court has the discretion to deny a request for attorney’s fees. Id. at 701.

Here, Former Wife sought relief below based on Former Husband’s failure to disclose more than $150,000 in earned income, including an $80,000 bonus received within days after the final hearing and before the final order was entered in 2005. In 2010, both parties filed a post-dissolution action. Former Wife eventually brought out this information regarding the undisclosed income during discovery, asserting that it was fraudulently concealed by Former Husband. Had we reversed the trial court’s order denying relief, it could have resulted in a significant increase in Former Wife’s alimony award.

This case highlights the merits of the practice now utilized by the Second District in domestic relations appeals regarding attorney’s fees. See Rados v. Rados, 791 So.2d 1130 (Fla. 2d DCA 2001). In Rados, the Second District noted that it “frequently ‘granted’ motions for attorney’s fees in domestic relations appeals with a citation to the First District’s decision in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).” Id. at 1131. The court indicated that although the Dresser orders were intended to give the trial court latitude in determining fees, they had created some confusion, especially in light of the supreme court’s pronouncement in Rosen. Id. The Second District created the following five “standard” orders to help resolve and give guidance regarding attorney’s fee motions in the domestic relations context:

1. “The motion for appellate attorney’s fees is denied.”
This order will be issued when this court can determine based upon the appellate record that the movant is not entitled to attorney’s fees....
2. “The motion for appellate attorney’s fees is granted. The movant is entitled to an award of all reasonable appellate attorney’s fees.”
This order will be issued when the appellate record supports a holding, as a matter of law, that the movant is entitled to have all of his or her reasonable attorney’s fees paid....
3. “The motion for appellate attorney’s fees is remanded to the trial court. If the movant establishes his or her entitlement pursuant to section 61.16, Florida Statutes, and Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the trial court is authorized to award the movant all or a portion of the reasonable appellate attorney’s fees.”
This order is essentially ... a ‘Dresser ’ order, or a ‘provisional grant’ ... [gives] the motion to the trial court to resolve the fee issue including the relative financial circumstances of the parties and the merits of [their] respective positions.... [T]his order expresses no opinion of the appellate court on what weight those factors should be given.
4. “The motion for appellate attorney’s fees is remanded to the trial court. If the movant establishes his or her entitlement pursuant to section 61.16, Florida Statutes, and Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the trial court is authorized to award the movant all or a portion of the reasonable appellate attorney’s fees. This court concludes that the appeal by the [husband ] [wife ] lacked merit, and therefore the trial court should give great weight to the factors set forth in Rosen.”
... This order reflects that this court has concluded that the appeal lacked merit.... [T]he trial court must accept this ruling and apply that factor accordingly. ...
5. “The motion for appellate attorney’s fees is remanded to the trial court. If the movant establishes his or her entitlement pursuant to section 61.16, Florida Statutes, the trial court is authorized to award the movant all or a portion of the reasonable appellate attorney’s fees. The merit of the respective positions of the parties in this appeal is not a factor that the trial court need consider.”
... [This order] will be issued when the appellate record reflects a good faith basis for the appeal, and thus the issue of entitlement should be determined solely based upon the relative financial needs of the parties.

Rados, 791 So.2d at 1133-1134 (footnote omitted).

Here, we choose to follow the fourth approach provided in Rados, because we find that Former Husband is most likely in the financially superior position, and we find that Former Wife’s appeal was without merit but not frivolous. We remand to the trial court to consider the factors established in Rosen and determine whether Former Wife should be awarded appellate attorney’s fees.

AFFIRMED and REMANDED with instructions consistent with this opinion.

RAY, J., concurs.

DAVIS, J., concurs in result only.


text:
    Otis D. BLAXTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6308.
    District Court of Appeal of Florida, First District.
    March 26, 2012.
    Rehearing Denied May 3, 3012.
    Otis D. Blaxton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because the trial court properly treated Appellant’s “Petition for Writ of Mandamus: Contesting Judge Michael G. Allen’s Prejudice” as a motion for disqualification, we treat Appellant’s appeal as a writ of prohibition. See Fla. R.App. P. 9.040(c); see also Sutton v. State, 975 So.2d 1073, 1076 (Fla.2008) (“[Pjrohibition is ... clearly recognized as the proper avenue for immediate review of whether a motion to disqualify a trial judge has been correctly denied.”).

The petition for writ of prohibition is denied on the merits.

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    Sherman L. HINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0959.
    District Court of Appeal of Florida, First District.
    March 27, 2012.
    Rehearing Denied May 7, 2012.
    Sherman L. Hinson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(A).

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


text:
    Melissa READ, Appellant, v. MFP, INC., d/b/a Financial Credit Services, Appellee.
    No. 2D11-1703.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      Mark T. Tisehhauser and Richard K. Peck of The Tisehhauser Law Group, Tampa, for Appellant.
    Ernest H. Kohlmyer, III, of South Mil-hausen, P.A., Orlando, for Appellee.
   PER CURIAM.

Melissa Read seeks review of the judgment on the pleadings entered in favor of MFP, Inc., d/b/a Financial Credit Services, in this action seeking damages under the Florida Consumer Collections Practices Act, §§ 559.55-.785, Fla. Stat. (2010) (FCCPA). Because Read has not stated and cannot state a valid claim under the FCCPA, we affirm.

In her complaint against MFP, Read alleged that MFP left two messages on her answering machine. The first message stated:

Message is for Melissa Read. Please contact Pam. 727-462-9711 extension 515. This is regarding a very important matter and our office will be open til six.

The second message stated:

This message is for Melissa Read. Please contact Corey at 727-449-0505, extension is 510, for a very important personal business matter, not a sales call, and our office is open today til six. Thank you.

Neither of these messages identified the caller as MFP nor did either indicate that the calls were part of an attempt to collect a debt by a consumer debt collector.

Read’s complaint alleged that MFP violated the FCCPA when it left these messages because it failed to provide meaningful disclosure of the caller’s identity. She asserted that this constituted a violation of section 559.72(7), which prohibits a consumer debt collector from engaging in “conduct which can reasonably be expected to abuse or harass the debtor.” Alternatively, Read alleged that MFP’s messages violated section 559.72(9), which prohibits a consumer debt collector from attempting to collect a debt when the debt is not legitimate or from “asserting] the existence of some other legal right when such person knows that the right does not exist.”

The trial court concluded that MFP was not required to affirmatively disclose its identity under any provision of the FCCPA and that neither of MFP’s messages asserted the existence of any legal right that did not exist. Based on these conclusions, it entered judgment on the pleadings in favor of MFP. Read now seeks review of that ruling.

In Florida, consumer debt collection practices are regulated by both the FCCPA and the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (FDCPA). Both acts generally apply to the same types of conduct, and Florida courts must give “great weight” to federal interpretations of the FDCPA when interpreting and applying the FCCPA. § 559.77(5). However, the FDCPA and the FCCPA are not identical, and a violation of one act does not automatically constitute a violation of the other. See Beeders v. Gulf Coast Collection Bureau, Inc., No. 8:09-cv-00458-EAK-AEP, 2010 WL 2696404, at *6 (M.D.Fla. July 6, 2010) (holding that “[t]here are intentional differences between the FDCPA and FCCPA, and a violation of the federal statute does not automatically constitute a violation of the state statute in situations where the FCCPA is distinguishable”), ajfd, 432 Fed.Appx. 918 (11th Cir.2011). Because the provisions of the two acts are not fungible, a consumer seeking to recover damages under either the FDCPA or the FCCPA must allege and prove a violation of the provisions of the act actually sued upon.

In this case, Read contends that MFP violated the FCCPA by failing to provide meaningful disclosure of its identity in both of the messages. However, Read points to no provision of the FCCPA that requires such disclosure. Under section 559.72(15), a consumer debt collector may not “[rjefuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents if requested to do so by a debt- or from whom she or he is collecting or attempting to collect a consumer debt.” (Emphasis added.) But Read did not allege — nor could she allege — that MFP refused any request to provide identifying information. Thus, Read did not — and cannot — allege a violation of section 559.72(15).

In her complaint, Read cited to two provisions of the FDCPA that she contended supported her allegations against MFP: 15 U.S.C. § 1692d(6), which prohibits consumer debt collectors from placing “telephone calls without meaningful disclosure of the caller’s identity,” and 15 U.S.C. § 1692e(ll), which requires a consumer debt collector to disclose in both the initial and all subsequent communications with the debtor that he or she is attempting to collect a debt. However, Read specifically alleged in her complaint that she was not asserting a claim under the FDCPA. Thus, while Read may arguably have alleged a violation of the FDCPA, she failed to allege a violation of the FCCPA — the act under which she actually sued. This failure was fatal to Read’s complaint.

Apparently recognizing this dilemma, Read alleged in her complaint that MFP’s failure to provide identifying information in its messages violated either section 559.72(7) or section 559.72(9). Through a series of convoluted steps, Read argued that these two statutes, which clearly do not deal with what information a debt collector must impart when leaving an answering machine message for a debtor, nevertheless require consumer debt collectors to disclose information over and above what is set forth in section 559.72(15). We cannot agree with Read’s argument because it violates long-standing principles of statutory construction.

“ ‘[I]t is a well settled rule of statutory construction ... that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.’ ” McDonald v. State, 957 So.2d 605, 610 (Fla.2007) (quoting Adams v. Culver, 111 So.2d 665, 667 (Fla.1959)); see also Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla.2009) (noting that “specific statutes covering a particular subject area will control over a statute covering the same subject in general terms”). Here, section 559.72(15) specifically defines the circumstances under which a consumer debt collector must provide identifying information to a consumer in Florida when collection phone calls are made. Even assuming that Read could show that sections 559.72(7) and 559.72(9) cover this same subject, the specific provisions of section 559.72(15) would control.

In addition, courts will not interpret a statute in such a way as to render portions of it meaningless. See, e.g., Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla.2005). If section 559.72(7) and/or section 559.72(9) were interpreted to require a consumer debt collector to affirmatively disclose identifying information to a Florida consumer without a request from the consumer, this would render section 559.72(15), which requires the disclosure of this information only upon request, meaningless. We will not support such an interpretation. When, as here, the FCCPA contains a specific provision addressing the conduct at issue, a trial court may not ignore the FCCPA’s plain language. And while we recognize that a Florida consumer is entitled to the benefit of whichever statute has the more protective provisions — be it federal or Florida, see Clayton v. Bryan, 753 So.2d 682, 634 (Fla. 5th DCA 2000) — the plaintiff must nevertheless bring his or her claim pursuant to the applicable statute.

Moreover, Read’s alternative assertion that MFP’s messages violated section 559.72(9) is without merit. To show a violation of section 559.72(9), “it must be shown that a legal right that did not exist was asserted and that the person had actual knowledge that the right did not exist.” Pollock v. Bay Area Credit Serv., LLC, No. 08-61101-Civ, 2009 WL 2475167, at *9 (S.D.Fla. Aug.13, 2009) (emphasis added). Thus, for example, a plaintiff may establish a violation of section 559.72(9) by showing that the debt collector garnished wages in violation of the statutory requirements for garnishment, see Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1124 (11th Cir.2004), or actively attempted to collect a debt when the debt collector knew that the consumer had filed for bankruptcy protection, cf. Bacelli v. MFP, Inc., 729 F.Supp.2d 1328, 1337 (M.D.Fla.2010), or attempted to collect postjudgment interest in an amount greater than the statutory rate, cf. N. Star Capital Acquisitions, LLC v. Krig, 611 F.Supp.2d 1324, 1336-37 (M.D.Fla.2009), or attempted to collect a debt that had already been satisfied, see Williams v. Streeps Music Co., 333 So.2d 65, 67 (Fla. 4th DCA 1976). In each of those cases, the debt collector asserted specific legal rights concerning the collection of the debt at issue when it did not legally possess those rights.

Here, Read did not and cannot point to any legal right that MFP asserted when it left the messages on her answering machine. A recorded message that does nothing more than request a return call simply does not constitute the assertion of any right, legal or not. Further, if, as Read asserts, MFP’s failure to comply with the provisions of the FDCPA somehow constituted the “assertion of a legal right,” then any and all violations of any provision of the FDCPA would constitute a violation of section 559.72(9) as a matter of law, which is clearly not the case. See Beeders, 2010 WL 2696404, at *6 (holding that “a violation of the federal statute does not automatically constitute a violation of the state statute”). To show a violation of section 559.72(9), Read was required to point to some independent legal right that MFP improperly asserted when it left the messages on her answering machine. Because Read did not and cannot point to any such assertion of any such right, the trial court properly granted judgment on the pleadings in favor of MFP as to this subsection.

In sum, to successfully assert a claim under the FCCPA, a plaintiff must allege a violation of a specific provision of the FCCPA — not a violation of the FDCPA. On the facts presented here, Read did not and cannot state a claim for a violation of the FCCPA based on MFP’s conduct. Therefore, the trial court properly granted judgment on the pleadings in favor of MFP.

Affirmed.

ALTENBERND, VILLANO!, and BLACK, JJ„ Concur.

      . We also note that both the FDCPA and the FCCPA prohibit a consumer debt collector from disclosing any information about the consumer's alleged debt, or the attempts at collection thereof, to any third party without the consumer’s prior consent. See 15 U.S.C. §§ 1692c(b), 1692b(2); § 559.72(5), Fla. Stat. Any requirement that a debt collector identify itself as such in an answering machine message could result in a violation of these provisions if the answering machine is used by persons in addition to the alleged consumer debtor. While there are federal cases that hold that a consumer debt collector may not intentionally violate 15 U.S.C. § 1692d(6) in an effort to avoid violating 15 U.S.C. § 1692c(b), see, e.g., Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1353-54 (11th Cir.2009), we decline to address this issue since Read did not bring her claim under the FDCPA.


author: COHEN, J.

text:
    Ann Louise HIGGINS and Anthony P. Higgins, Appellants, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellee.
    No. 5D10-3747.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.

      Shannon McLin Carlyle, B.C.S., and Christopher V. Carlyle, B.C.S., of The Carlyle Appellate Law Firm, The Villages, for Appellants.
    John W. Weihmuller and James Michael Shaw, Jr., and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.
   COHEN, J.

Appellants, Ann Louise Higgins and Anthony P. Higgins (the “Higginses”), appeal the trial court’s final order entering summary judgment in favor of Appellee, West Bend Mutual Insurance Company (“West Bend”), in their first-party bad faith action. This case, asking which contract choice of law rule applies to first-party bad faith actions, presents a question of first impression. Determining that lex loci contractus applies to such actions, we affirm.

In 1999, while vacationing in Orlando, the Higginses were injured in an automobile accident caused by the other party. The Higginses, Minnesota residents, had an automobile insurance policy they obtained in Minnesota from West Bend, a Wisconsin corporation. The policy provided for uninsured/underinsured motorist (“UM”) coverage up to $100,000 per person and $300,000 per accident. The Hig-ginses sued in Florida the at-fault driver, who was underinsured, and West Bend. The at-fault driver settled for $100,000, the extent of the driver’s insurance policy limits, but West Bend refused to settle for the UM policy limits, disagreeing with the value of the UM claim. Following a jury trial, the Higginses were awarded $260,000. After setoff of the driver’s settlement, West Bend was ordered to pay, and subsequently paid, the UM coverage limits — $100,000.

In 2007, to recover the nearly $60,000 in excess of the UM policy limits, the Hig-ginses filed a bad faith action against West Bend, pursuant to sections 624.155 and 627.727(10), Florida Statutes (2006), arguing, inter alia, the insurer had failed to settle the claim in good faith. West Bend moved for partial summary judgment, or alternatively, a case management order to determine which state law applied to the Higginses’ claim under the policy, which was without a choice of law provision. The insurer argued Minnesota law, not Florida law, governed the insurance contract and the insureds’ bad faith claim. After a hearing, the trial court ruled the law of the place where the contract was executed, or lex loci contractus, was “the proper choice-of-law rule applicable to [the Higginses’] claims.” Applying that principle, the trial court held the bad faith action was governed by Minnesota law. West Bend subsequently moved for final summary judgment or judgment on the pleadings, contending Minnesota law did not provide for first-party bad faith claims. After a hearing, the trial court agreed and entered summary judgment in West Bend’s favor.

On appeal, the Higginses argue the trial court erred in determining Minnesota law applied to the action because the correct Florida conflict of law principle to apply was the law of the place of performance, not the law of the place where the contract was executed. The standard of review for choice-of-law questions is de novo. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102 (Fla.2011); see Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1516 (11th Cir.1985).

Contract choice-of-law principles apply to bad faith actions. Gov’t Emps. Ins. Co. v. Grounds, 332 So.2d 13, 14 (Fla. 1976). Questions bearing on the interpretation, validity, and obligation of contracts are substantive and governed by the rule of lex loci contractus. Goodman v. Olsen, 305 So.2d 753, 755 (Fla.1974); see Sturiano v. Brooks, 523 So.2d 1126, 1129-30 (Fla.1988) (holding automobile insurance policy coverage issues are governed by law of the place of contracting); see also Lum-bermens Mut. Cos. Co. v. August, 530 So.2d 293, 295 (Fla.1988) (determining uninsured motorist benefit issues are governed by the law of the place of contracting). The rule provides that the laws of the jurisdiction where the contract was executed govern. Lumbermens, 530 So.2d at 295.

Conversely, questions related to the manner or method of performance under a contract are determined by the law of the place of performance. Grounds, 332 So.2d at 14-15 (citing Scudder v. Union Nat’l Bank of Chicago, 91 U.S. 406, 411, 23 L.Ed. 245 (1875) (quoting Wheaton on Conflict of Laws, § 401 p., “[obligations ... are subject ... in respect to their interpretation, to the lex loci contractus; in respect to the mode of their performance, to the law of the place of their performance.”)); see also Walling v. Christian & Craft Grocery Co., 41 Fla. 479, 27 So. 46, 49 (1899); Pan-Am. Life Ins. Co. v. Recio, 154 So.2d 197 (Fla. 3d DCA 1963) (citing Restatement (First) Conflict of Laws § 358 (1934)).

The parties in this case disagree as to whether the place of contracting or place of performance should apply to bad faith actions. The Higginses contend the actions or omissions taken by West Bend in settling the UM claim raise a performance question under the contract. Therefore, they argue the law of the place of performance, which they contend is Florida, should govern the action. West Bend asserts that the question of whether it acted in bad faith is a substantive one — concerning whether it had a duty to pay — which must be determined by the law of the place of contracting, i.e., Minnesota. Alternatively, assuming the place of performance applies, West Bend argues Minnesota law nevertheless applies.

The seminal and only Florida case that discusses the applicable choice of law principle in bad faith actions is Grounds, 332 So.2d 13. In Grounds, the supreme court determined that the breached contractual obligation — to provide the insured a good faith defense to the action — went to the insurer’s performance under the contract. The supreme court ruled:

[T]he obligation of the contract breached by petitioner was the obligation to provide respondent a good faith defense to the action. Such goes to petitioner’s performance under the contract (or lack thereof), and matters concerning performance are determined by the law of the place of performance under traditional conflict of laws principles ... In the instant case, the place of performance was Florida, where the cause of action against respondent was maintained and was defended by petitioner.

332 So.2d at 14-15 (citations omitted).

The Higginses rely on Grounds, and federal cases applying it, to argue the place of performance rule applies to all bad faith actions. They argue the place of performance in this case was Florida because that is where West Bend defended, maintained, and mediated the Higginses’ original action.

There is an important distinction, however, between Grounds and this case that hinges on the fundamental difference between first- and third-party bad faith actions. A bad faith insurance action is based on the insurer’s breach of its duty to its insured to properly or promptly defend a claim, which may include the duty to make a good faith offer of settlement within the policy limits. Kelly v. Williams, 411 So.2d 902, 904 (Fla. 5th DCA 1982). A first-party bad faith claim is generally, if not exclusively, brought by the injured insured; while a third-party claim may be filed by the insured tortfeasor or the injured third party. Progressive Express Ins. Co. v. Scoma, 975 So.2d 461, 466 (Fla. 2d DCA 2007); see generally State Farm Auto. Ins. Co., v. Laforet, 658 So.2d 55, 58-59 (Fla.1995) (discussing distinction between first- and third-party bad faith actions).

Grounds involved a third-party bad faith claim brought by the insured tortfea-sor against the insurer for failing to defend in Florida the insured in good faith. See Gov’t Emps. Ins. Co. v. Grounds, 311 So.2d 164, 165 (Fla. 1st DCA 1975). Ultimately, the insurer’s conduct or performance left the insured exposed to excess liability. Significantly, however, the present case involves a first-party claim brought by the injured insureds to obtain UM benefits due to them under their policy. In settling the UM claim, West Bend operated under the terms of its contract with the Higginses, irrespective of location, and any breach stemming from their conduct presents an issue more akin to coverage. Because West Bend’s refusal to tender UM benefits limits presents a substantive question, rather than a performance-based one, the law to be applied was the law of Minnesota, where the contract was executed.

Even if the law of the place of performance applies because the refusal to settle concerns a performance question, the insurer’s performance (or lack thereof) was due in Minnesota, not Florida. The Hig-ginses argue the insurer’s performance of its obligations to settle under the contract in good faith was due in Florida, where the original action was brought, defended, negotiated, mediated, and tried. They point out that West Bend employed local counsel in Florida, the settlement negotiations failed in Florida, and the UM policy limits were eventually delivered to the Higginses’ counsel in Florida. However, as previously noted, the conduct that gave rise to the bad faith action was West Bend’s failure to pay the desired UM benefits to the Hig-ginses, who were Minnesota residents. Payment was due to them in Minnesota, not Florida.

Additionally, this Court is required to consider the “interest” factors set forth in the Restatement (Second) of Conflict of Laws, section. 6 (1971), to determine which state’s interest is most significant. Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 587 So.2d 483, 486 (Fla. 4th DCA 1991); see also Bishop v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 n. 1 (Fla.1980) (stating the section 6 factors are important choice-of-law considerations “in all areas of law”). Florida has no interest in a bad faith action between a foreign driver and foreign corporation. To the contrary, Florida has an interest in the stability of contractual arrangements. See Sturiano, 523 So.2d at 1129-30 (“[p]arties have a right to know what the agreement they have executed provides. To allow one party to modify the contract simply by moving to another state would substantially restrict the power to enter into valid, binding, and stable contracts.”).

Accordingly, the decision of the trial court is affirmed. West Bend’s motion for attorney’s fees under section 768.79, Florida Statutes (2007), is denied. Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 77 (Fla.2012).

AFFIRMED.

ORFINGER, C.J. and EVANDER, J., concur.

      . On certiorari review, this Court rendered a decision from an order relating to discovery in the bad faith action. See West Bend Mut. Ins. Co. v. Higgins, 9 So.3d 655 (Fla. 5th DCA 2009).

      . The performance rule in Grounds has been characterized as "the exception rather than the rule,” and criticized as "wayward.” See Michael S. Finch, Choice-of-Law Problems in Florida Courts: A Retrospective on the Restatement (Second), 24 Stetson L.Rev. 653, 714 (1995); Harold P. Southerland, Conflict of Laws in Florida: The Desirability of Extending

        the Second Restatement Approach to Cases in Contract, 21 Nova L.Rev. 777, 860 (1997). Nevertheless, it remains Florida's choice-of-law rule for questions concerning performance of a contract.

      . The conclusion that the refusal to settle relates to the substance of an insurer’s duty under a contract, rather than the performance of it, was also reached in at least one other jurisdiction applying conflict of laws similar to Florida to a first-party bad faith action. See Moses v. Halstead, 581 F.3d 1248 (10th Cir.2009) (applying Kansas contract conflict of laws to first-party bad faith action).

      . [I]f no place of performance is specified, an insurer must make payment in the state where the insured is located.
      ... [T]he fact that an automobile insurance policy contemplated operation of the car in any state does not make the place where the accident occurred the place of performance so as to render it subject to the law of that place; at least, where the insurer’s only obligation is to indemnify the insured, rather than to come into court and defend the insured.

      Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 24:13 (2011) (footnotes omitted) (emphasis added).

      . The choice-of-law interest factors to be considered are:
      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.

        Bishop, 389 So.2d at 1001 n. 1 (citing Restatement (Second) of Conflict of Laws, § 6 (1971)).