author: SHEPHERD, J. WELLS, Judge.

text:
    Cecilia REID, Appellant, v. In re ESTATE OF Edgar SONDER, Appellee.
    No. 3D09-3216.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Rehearing and Rehearing En Banc Denied June 2, 2011.

      Shutts & Bowen and William Jay Palmer, Miami, for appellant.
    Arnaldo Velez, Coral Gables; Bloom & Minsker and Kenneth Marc Bloom, Miami, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

Cecilia Reid, as trustee of the Edgar Sonder Trust, appeals an order denying her Amended Petition for Reformation of the Trust after a trial on the merits, and granting appellate attorney fees on a prior appeal to Hebrew Union College pursuant to sections 733.016 and 737.2035, Florida Statutes (2007). We affirm the trial court’s denial of reformation and dismiss the appeal of the order on application for appellate attorney fees for lack of jurisdiction.

This case has been before us on two prior occasions. Most recently, in Reid v. Temple Judea, 994 So.2d 1146 (Fla. 3d DCA 2008) (Reid II), we reversed a trial court ruling that Ms. Reid lacked standing, as trustee of the Edgar Sonder Trust, to bring this reformation action. We summarized the relevant facts as follows:

On May 17, 2000, Edgar Sonder executed a trust naming himself as trustee. By subsequent amendment, Cecilia Reid was named as sole successor trustee. This trust, funded by assets “pouring over” from Sonder’s estate, provided for a number of gifts following Sonder’s death. Specifically, Article II, paragraph 1 of the trust as amended, titled “Pecuniary Gifts,” provided for gifts totaling $31,000 to ten charities. Article II, paragraph 2 as amended, titled “Endowment Gift,” provided that “[ajfter the gift listed in paragraph 1. directly above,” $125,000 was to be paid to the Hebrew Union College Jewish Institute of Religion. Article II, paragraph 3 as amended, titled “Pecuniary Gifts to Individuals,” provided that “[ajfter giving effect to the gifts in paragraphs 1. and 2. above,” a number of specific gifts were to be made to enumerated individuals including a gift of $25,000 and the apartment in which Sonder then resided to Cecilia Reid:
After giving effect to the gifts in paragraphs 1. and 2. above, I hereby give and devise as follows:
a. Cecil[i]a Reid. I give to my nurse, CECIL[I]A REID, if she survives me, the sum of $25,000 and my apartment in which I currently reside, all the contents therein.
On May 12, 2005, Sonder died. His will with codicils was admitted to probate, and Reid was appointed personal representative. Finding trust funds insufficient to pay all of the gifts provided for in trust Article II, paragraphs 1, 2, and 3, Reid moved to abate the enumerated pecuniary gifts proportionately. Reid also claimed that the apartment was a devise, not subject to abatement. The motion to abate was denied and affirmed by this Court in Reid v. Hebrew Union College-Jewish Institute of Religion, 947 So.2d 1178 (Fla. 3d DCA 2007).
Thereafter, Reid, as sole trustee, petitioned to reform the trust claiming that the trust instrument did not evidence the settlor’s intent which was to give his apartment to Reid not subject to abatement.

Id. at 1146-47 (footnotes omitted). On remand, the probate court conducted the trial authorized by us in Reid II. We now review the decision from that trial.

As we recognized in Reid II: “[A] trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake so long as the reformation is not contrary to the interest of the settlor.” Id. at 1148 (quoting In re Estate of Robinson, 720 So.2d 540, 548 (Fla. 4th DCA 1998)). However, as we also have recognized, the party seeking reformation at all times has the burden to prove, by clear and convincing evidence, that the trust, as written, does not reflect the settlor’s intent. § 736.0415, Fla. Stat. (2007); see also Robinson, 720 So.2d at 540; Schroeder v. Gebhart, 825 So.2d 442, 445 (Fla. 5th DCA 2002); In re Estate of Huls, 732 So.2d 1206, 1207 (Fla. 2d DCA 1999). This standard is an intermediate standard of proof between the “preponderance of the evidence” standard used in most civil cases, and the “beyond a reasonable doubt standard” of criminal cases, requiring the evidence “[to] be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Dieguez v. Dep’t of Law Enforcement, Crim. Justice Standards & Training Comm’n, 947 So.2d 591, 595 (Fla. 3d DCA 2007).

In denying the petition for reformation, the probate court necessarily determined Reid did not meet her burden of proving the allegations of the petition by clear and convincing evidence. In civil cases prosecuted under this standard, “an appellate court may not overturn a trial court’s finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing.” McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998). Thus, in this case, it is not our function to conduct a de novo review of the evidence, but simply to determine whether there exists in the record competent substantial evidence to support the judgment of the trial court. In re Adoption of E.A.W., 658 So.2d 961, 967 (Fla.1995); McKesson, 706 So.2d at 354. Based upon our review of the record, we conclude a reasonable trier of fact could have been left without a firm belief or conviction that the trust terms were contrary to Sonder’s intent.

At the trial, William Palmer, the scrivener of the Edgar Sonder Trust, testified that Sonder never instructed him to create a priority between the gifts, and that the inclusion of the terms “after giving effect to” in paragraphs 2. and 3. was his own doing. However, he conceded Sonder read the trust and approved the language. It also is undisputed that Son-der made two subsequent amendments to the trust, and both times expressly ratified the language, making the gift of the apartment subordinate to the gifts provided in paragraphs 1. and 2.

Even assuming the probate court found Palmer’s testimony credible, there is no evidence Sonder would not have been capable of understanding the trust as written. In fact, nothing in the record explains why Sonder, an articulate and precise businessman, would have approved the plain and simple trust terms if they did not reflect his intent. Further, although it is clear Sonder intended for Reid to have the apartment, it is equally apparent Sonder intended for Hebrew Union College to have $125,000 as part of an endowment fund in honor of his deceased wife. These two gifts together constitute the bulk of the trust assets. The testimony does not establish Sonder would have preferred the gift to Reid over the endowment gift in the event both could not be satisfied. Therefore, we affirm the probate court’s order on the petition to reform.

Finally, we write to address Reid’s appeal from the probate court’s order determining entitlement to appellate attorney fees. It is well established that an order granting entitlement to fees is a non-final, non-appealable order until the amount of the fee is set. See Easley, McCaleb & Stallings, Ltd. v. Gibbons, 667 So.2d 988, 988 (Fla. 4th DCA 1996); Demaio v. Coco Wood Lakes Ass’n, 637 So.2d 369, 369 (Fla. 4th DCA 1994). At oral argument, the parties seemed to agree on the amount supposedly owing, and suggested it was standard practice for the probate court to “grant” the motion for fees without making any specific findings on reasonableness and without ever entering an amount or reserving jurisdiction to do so. While we appreciate the parties’ willingness to be bound by a fee amount known only to them, the record is devoid of any evidence that an amount ever actually was fixed. On this basis, we dismiss this portion of the appeal for lack of jurisdiction.

Affirmed in part, dismissed in part.

SUAREZ, J., concurs.

WELLS, Judge.

While I agree with the majority’s resolution of the attorney’s fee issue, for the following reasons I dissent from that part of the opinion affirming denial of reformation of Edgar Sonder’s trust.

Cecilia Reid appeals from an order denying her petition to reform a trust, the order stating only that “[t]he above Amended Petition for Reformation is hereby denied.” In Reid v. Temple Judea, 994 So.2d 1146, 1148 (Fla. 3d DCA 2008), the precursor standing case, this court concluded that “equity will reform an agreement so as to conform to the intent of the parties, when an agreement, which due to a mistake of the drafter, violates or fails to carry out the intention of the parties .... ” (Citations omitted, emphasis added); see also In re Estate of Robinson, 720 So.2d 540, 542, 543 (Fla. 4th DCA 1998) (holding that “a trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake so long as the reformation is not contrary to the interest of the settlor”) (citing Reinberg v. Heiby, 404 Ill. 247, 88 N.E.2d 848 (1949), Berman v. Sandler, 379 Mass. 506, 399 N.E.2d 17 (1980), and Roos v. Roos, 42 Del.Ch. 40, 203 A.2d 140 (1964), and noting that all of these cases reformed trusts after the death of the settlor where clear and convincing proof of a drafting error existed).

Indeed, section 736.0415 of the Florida Statutes, the provision governing reformation actions such as this, expressly provides that unambiguous provisions of a trust may be reformed where clear and convincing evidence shows that the language of the trust does not reflect the settlor’s intent, even where the evidence regarding the settlor’s intent is contrary to the trust itself:

Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the set-tlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

§ 736.0415, Fla. Stat. (2010) (emphasis added).

The evidentiary standard imposed by this provision is met when a credible witness distinctly recalls the facts and details them:

The evidentiary standard of clear and convincing evidence in the context of reformation contemplates testimony from a credible witness who testifies to facts that are:
distinctly remembered and the details thereof narrated exactly and in due order and that the testimony be clear, direct and weighty and convincing, so as to enable you to come to a clear conviction without hesitancy of the truth of the precise facts and issue.
Aetna Insurance Company v. Paddock, 301 F.2d 807, 811 (5th Cir.1962). See also [ ] Golden Door Jewelry Creations v. Lloyds Underwriters, 8 F.3d 760 (11th Cir.1993), reversed in part on other grounds, 117 F.3d 1328 (11th Cir.1997).

Universal Underwriters Ins. Co. v. Abe’s Wrecker Serv., Inc., 564 F.Supp.2d 1350, 1356-1357 (M.D.Fla.2008).

In this case, the unrefuted testimony of the drafting lawyer was that by virtue of a drafting error, the settlor’s intention of giving his long-time nurse, Cecilia Reid, the apartment in which the settlor lived (a non-monetary gift) was thwarted by the trust instrument which combined both monetary and non-monetary gifts to Reid and made both gifts inferior in priority to a number of other monetary gifts. As the drafting attorney’s signed affidavit, Exhibit C to the Amended Petition to Reform Trust, attests, the settlor (in amending an existing trust agreement) never intended any monetary gifts to take priority over the non-monetary gift of his apartment and its contents to Reid:

5. Edgar Sonder reviewed Exhibit A [a list of gifts handwritten by Sonder] with me, and Edgar Sonder clearly intended to have as two separate gifts to Cecilia Reid, the apartment and its contents and a cash gift $25,000. He did consider these as two separate gifts, and he did not intend the apartment and its contents to be combined with the gift of $25,000, nor did he intend to have the apartment utilized to pay any cash gifts.
6. Edgar Sonder did not intend to have the payment of any cash gift pro vided in his will or trust made in priority to the gift of the apartment and its contents to Cecilia Reid. Edgar Sonder intended to provide for the gift of his residence and its contents as a separate gift to Cecilia Reid.

(Emphasis added).

This sworn statement is fully supported by Exhibit A, a list written in the settlor’s hand, which states the settlor’s intention to endow a scholarship in the amount of $125,000; to give his apartment and its contents to Reid; to allow his executor to dispose of his car; and to give his godson $25,000, Reid $25,000, and Louis Garcia $10,000, with “any remaining monies ... to be distributed evenly to [two] charities.” The statement evidences no intention to make the gift of the apartment and its contents to Reid subject to any of the other monetary gifts.

More significantly, the drafting attorney’s affidavit further attests that it was solely by virtue of his drafting error that the settlor’s intent to make a specific gift of the apartment and its contents (a gift not tied to or subject to any other monetary gift) was not evidenced by the trust that he drafted:

7. Subsequently, I drafted the Edgar Sonder Amended and Restated Trust, and I combined the $25,000 gift to Cecilia Reid and the gift of the apartment and contents and placed them in subparagraph a. of Paragraph 3 of Article II of the Edgar Sonder Amended and Restated Trust Agreement, believing that the specific gift of the apartment and its contents would not be altered or converted to a general gift by combining it with the pecuniary gift to Cecilia and by including it in a paragraph providing for other cash gifts. If the combination of the gift of the apartment and its contents with the gift of $25,000 to Cecilia Reid and placement in Paragraph 3 of Article II of the Amended and Restated Trust Agreement converts the specific gift of the residence and its contents to a general gift and subjects the gift of the apartment and its contents to the priority system established in the trust agreement, such result was a drafting error on my part, and it did not reflect the intent of Edgar Sonder.

(Emphasis added).

These statements are wholly unrebutted and were, in fact, fully supported by the testimony at the reformation hearing. Testifying first at the reformation action was Dr. Gerald Pinnas, a family physician and friend of the settlor, Mr. Sonder, who confirmed the drafting attorney’s position:

Q. Mr. Pinnas, Doctor, did he [Mr. Sonder] ever communicate to you how or have conversations with you regarding his apartment?
A. As we had our lunch together and got to know each other better on a more personal basis, eventually he started explaining to me that Cecilia [Reid], who had been with his wife, Hertha, and him, had been so kind to him and took such good care of them, he wanted to do something special for her. And he told me that he was going to leave her his apartment and all of its contents.

The drafting attorney, the second and only other witness to testify, likewise reaffirmed the statements that he made in his earlier affidavit that he, the drafting attorney, had made a drafting mistake, resulting in a document that did not reflect Mr. Sonder’s intentions. Specifically, the drafting attorney testified that approximately six months after the settlor executed a pour over will and revocable trust, the settlor contacted the attorney to revise the trust to provide for the settlor’s long-time nurse, Cecilia Reid. The attorney then visited the settlor at his home at which time the settlor gave him a list detailing a number of gifts that he wanted to include in his trust — the handwritten list which was Exhibit A to the attorney’s affidavit which became Exhibit 6 at the reformation hearing. During that meeting, the settlor expressly told the attorney that he wanted the apartment and its contents to go to Reid in addition to his cash gift to her. While the settlor identified the apartment as a distinct gift, separate and apart from the money he was leaving Reid, the drafting lawyer revised the $20,000 cash gift to Reid detailed in the existing trust agreement to reflect the settlor’s desire to increase that sum to $25,000 and then placed the separate gift of the apartment and its contents in the same paragraph, incorrectly believing that this placement would have no effect on what the settlor clearly intended to be a specific devise of the apartment and its contents.

In fact, the attorney testified, again without contradiction, that when questioned by the settlor, the attorney advised him that placing the two gifts in the same paragraph, in categories created by the attorney, would have no effect on the gift of the apartment and its contents. The attorney also testified that it was not until after the court below construed the trust to make the gift of the apartment and its contents subject to satisfaction of the other cash gifts that the attorney became aware that the trust did not reflect the settlor’s intent:

Q. Based on your understanding of the court’s construction of that specific provision, is it your understanding that that court’s construction comports with the intent of Edgar Sonder on how to dispose of his apartment and its contents?
A. The court construed the provision of 3 A on page three of the Amended and Restated Trust Agreement to provide that the devise of the apartment and the contents to Cecilia Reid was subject to the priority put in the Trust Agreement, so that the apartment and its contents was to be used to pay all the gifts provided to the Charities, including Hebrew Union College.
That was not the intent expressed to me by Edgar Sonder. Edgar Sonder clearly wanted his apartment and its contents to be given to Cecilia Reid, not subject to any priority or to any payment of any other gifts provided in his Amended and Restated Trust Agreement.
It certainly wasn’t to be combined with the $25,000 gift to Cecilia Reid because as shown on his directions [Exhibit A to the affidavit and Exhibit 6 at the reformation hearing], the apartment and contents will stand along [sic]. There is no priority. And it was not combined with the gift of $25,000 to Cecilia.
That was my drafting. It was not his intent. His intent was for her to get the apartment and the contents, and that’s why he had — the remainder of his Trust was the remaining cash. I wrote in here the rest and the remainder. He was talking about the remaining cash would go to the charities, not — because he had no other assets other than the contents and the apartment that weren’t cash that he specifically gave to Cecilia Reid.
I am basing all of my testimony on Mr. Sonder’s expression to me, not only in writing, but also verbally and throughout the period, he was always— throughout his life from 2001 he was always convinced that Cecilia Reid would get the apartment and its contents.
It was only after the court construed the devise that I realized I — if that is correct, then I have a scrivener’s error because it was never my intent or Edyar Sonder’s intent to have the apartment and the contents that were devised put in with the priority system for pecuniary yifts.

(Emphasis added).

Absent a determination that all or some of this testimony was not credible, the uncontradicted evidence that by virtue of a drafting error the trust at issue did not reflect the settlor’s intent could not be ignored by the lower court. See Brannen v. State, 94 Fla. 656, 114 So. 429, 430-31 (1927) (“Uncontroverted and undiscredited evidence is not necessarily always binding upon a court or jury, as, for instance, when it is essentially illegal, contrary to natural!] laws, inherently improbable or unreasonable, opposed to common knowledge, inconsistent with other circumstances established in evidence, or contradictory within itself. Ordinarily, however, and subject to certain well-defined exceptions (see 23 C.J. 47), such evidence, when material, properly admitted, and when it consists of facts (not opinions), cannot be wholly disregarded or arbitrarily rejected even though the witness giving it is an interested party.”); see also Pepper v. Pepper, 66 So.2d 280, 285 (Fla.1953) (same); Republic Nat’l Bank of Miami, N.A. v. Roca, 534 So.2d 736, 738 (Fla. 3d DCA 1988) (“A trial court cannot arbitrarily reject unrebutted testimony. In re Estate of Hannon, 447 So.2d 1027 (Fla. 4th DCA 1984); see also Ackerly Comm., Inc. v. City of W. Palm Beach, 427 So.2d 245 (Fla. 4th DCA 1983). Where the testimony adduced is not ‘essentially illegal, contrary to natural laws, inherently improbable or unreasonable, opposed to common knowledge, or inconsistent with other circumstances in evidence,’ Laragione v. Hagan, 195 So.2d 246 (Fla. 2d DCA), rev’d on other grounds, 205 So.2d 289 (Fla.1967), it should not be disregarded but accepted as proof of the issue. Florida East Coast Ry. v. Michini, 139 So.2d 452 (Fla. 2d DCA 1962), cert. discharged, 152 So.2d 171 (Fla.1963).”); Bergh v. Bergh, 160 So.2d 145, 146 (Fla. 1st DCA 1964) (“[W]hen uncon-tradicted testimony consists of facts, as distinguished from opinions, and is not illegal, improbable, unreasonable or contradictory within itself, it should not be wholly disregarded, but should be accepted as proof of the issue.”); Kinney v. Mosher, 100 So.2d 644, 646 n. 1 (Fla. 1st DCA 1958) (same).

The majority concludes, however, that this competent, substantial, credible, and uncontradicted evidence may be ignored because “there is no evidence [the settlor] would not have been capable of understanding the trust as written [and][i]n fact, nothing in the record explains why Sonder, an articulate and precise businessman, would have approved the plain and simple trust terms if they did not reflect his intent.” This conclusion not only renders superfluous section 736.0415 but ignores the record as well.

The express purpose of section 736.0415 is to permit reformation of an otherwise clear, unambiguous written trust signed by a settlor where evidence exists that the “plain meaning of the trust instrument” does not evidence the settlor’s intent. Thus the fact that this articulate, ninety-three-year-old former businessman signed a document that did not on its face encompass what he wanted is non-determinative. The record is that this settlor knew what he wanted, questioned his attorney as to whether the document he signed encompassed that desire, and was repeatedly but incorrectly assured that it did.

Of course, a client is entitled to rely on the skill of his attorney to draft an agreement that encompasses his intent. In this case, the record confirms that this astute but elderly businessman, who was not a lawyer, retained a probate and estate lawyer not only to draft a new will after his wife died, but also to create a trust and then to have that same lawyer revise it at least four times. The record also confirms that between 1998 when the relationship began and 2005 when he died, this settlor frequently wrote to, spoke to, and met with his attorney, both at his home and at his attorney’s offices. Most importantly, the record — without contradiction — is that this settlor told his attorney what he wanted, questioned his lawyer as to whether he was getting it, and was repeatedly assured by that lawyer — who himself had no idea that he had not accomplished his client’s goals — that the settlor was getting what he wanted. Therefore, the fact that this settlor was intelligent and precise, and the trust clear and unambiguous, does not support the instant denial of reformation under section 736.0415 of the Florida Statutes.

The majority’s conclusion that reformation was properly denied because “[t]he testimony does not establish [that the set-tlor] would have preferred the gift [of the apartment and its contents] to Reid over the [$125,000] endowment gift [to Hebrew Union College] in the event both could not be satisfied,” finds no support in the record. To the contrary, the uncontradicted testimony was that while the settlor made a number of cash gifts including a $125,000 gift to fund an endowment to Hebrew Union College and a $25,000 cash gift to Reid, he always intended the non-cash gift of the apartment and its contents to go to Reid as a specific devise not subject to any priority or payment of any pecuniary or cash gift:

A.... Edgar Sonder clearly wanted his apartment and its contents to be given to Cecilia Reid, not subject to any priority or to any payment of any other gifts provided in his Amended and Restated Trust Agreement.

(Emphasis added).

The unrebutted testimony also was that the non-pecuniary gift of the apartment and its contents to Reid was placed at the end of a provision providing for an existing pecuniary gift to Reid because the drafting attorney mistakenly believed that this placement would have no effect on this non-pecuniary gift, that is, that this placement would not make the apartment and contents subject to payment of any pecuniary gift, including the pecuniary gift to the Hebrew Union College endowment:

A.... I’m trying to say that ... the court determined] that apartment and contents created a pecuniary gift, pecuniary is an amount and sum of money.... [T]he apartment is not part of the pecuniary gifts, which I never thought it was, by adding it to the $25,000 [pecuniary gift to Reid]. So it is set aside separately as a specific gift of specific property thereby not subject to the priority system for pecuniary gifts, which is not a pecuniary gift anyway.
Q. Let me ask you this, draft it for the court right now how is the reformation to take place?
A. I devise my apartment and contents to Cecila [sic] Reid separate and distinct from all the pecuniary gifts.
Q. Where would that be placed?
A. Anywhere you want it, just so it is before the remainder gifts. It is a specific gift. It does not abate until all the other gifts do.
Q. This only arose after the petition for abatement?
A. It was only after the court construed the devise that I realized I — if that is correct, then I have a scrivener’s error because it was never my intent or Edgar Sonder’s intent to have the apartment and the contents that were devised put in with the priority system for pecuniary gifts.

Thus, contrary to the majority’s conclusion, the uncontroverted testimony was that the settlor did prefer the non-pecuniary gift of the apartment and its contents over all other gifts including the cash gift to the endowment. Reformation could not, therefore, be denied for this reason. Moreover because the evidence was that the drafting attorney mistakenly believed that placing this non-pecuniary specific gift at the end of a pecuniary devise to the same beneficiary would have no effect on the nature of the non-pecuniary gift and did not realize the error until the trial court ruled that the non-pecuniary gift of the apártment was pecuniary and therefore subject to the priorities that applied to the other pecuniary gifts, reformation should have been granted.

Because it was proved by clear and convincing evidence that'both the accomplishment of the settlor’s intent and the terms of the trust were affected by a drafting mistake, the evidentiary standard imposed by section 736.0415 was satisfied, and the reformation sought should have been granted. Accordingly, I would reverse.

      . See N.L. v. Dep't of Children & Family Servs., 843 So.2d 996 (Fla. 1st DCA 2003); R.S. v. Dep’t of Children & Family Servs., 831 So.2d 1275 (Fla. 4th DCA 2002); Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993); see also 24 Fla. Jur.2d Evidence and Witnesses § 507 (2010).

      . The trust, as we explained in our earlier decision, provided:
      Specifically, Article II, paragraph 1 of the trust as amended, titled "Pecuniary Gifts," provided for gifts totaling $31,000 to ten charities. Article II, paragraph 2 as amended, titled “Endowment Gift," provided that "[a]fter the gift listed in paragraph 1. directly above," $125,000 was to be paid to the Hebrew Union College Jewish Institute of Religion. Article II, paragraph 3 as amended, titled "Pecuniary Gifts to Individuals," provided that "[a]fter giving effect to the gifts in paragraphs 1. and 2. above,” a number of specific gifts were to be made to enumerated individuals including a gift of $25,000 and the apartment in which Son-der then resided to Cecilia Reid:
      After giving effect to the gifts in paragraphs 1. and 2. above, I hereby give and devise as follows:

        a. Cecilfija Reíd. I give to my nurse, CECIL[I]A REID, if she survives me, the sum of $25,000 and my apartment in which I currently reside, all the contents therein.

        Reid, 994 So.2d at 1147 (footnotes omitted).

      . This exhibit became Exhibit 6 at the reformation trial.

      . The drafting attorney's testimony confirmed that over time the settlor had repeatedly expressed his intention that Reid be the recipient of the apartment: "he [the settler] had told me that he was going to leave her [Reid] the apartment and its contents ... [a]t least a half dozen times.”

      . As the Restatement (Third) of Property: Wills & Other Donative Transfers § 12.1 (2003), confirms, execution of a document, following review by a settler, should, for a number of reasons, carry no conclusive effect:

        l. Donor's signature after having read document does not bar remedy. Proof that the donor read the document or had the opportunity to read the document before signing it does not preclude an order of reformation or the imposition of a constructive trust. The English Law Reform Committee, in recommending the adoption of a reformation doctrine for wills, stated well the rationale for this position:
      We have also considered whether any special significance ought to be given to cases in which the will has been read over to the testator, perhaps with explanation, and expressly approved by him before execution. In our view it should not. Some testators are inattentive, some find it difficult to understand what their solicitors say and do not like to confess it, and some make little or no attempt to understand. As long as they are assured that the words used carry out their instructions, they are content. Others may follow every word with meticulous attention. It is impossible to generalise, and our view is that reading over is one of the many factors to which the court should pay attention, but that it should have no conclusive effect.
      Law Reform Committee, Nineteenth Report: Interpretation of Wills, Cmnd. No. 5301, at 12 (1973).

      . The question and the testifying attorney's response confirmed the settlor’s reliance on his counsel:
      Q. This precise, articulate, strong-willed man could read and write English, and as you sit here today you have no reason to say that he didn’t understand what you were doing?
      A. That's not true. Sir, as I have testified over and over, Mr. Sonder told me what he wanted and he depended on me to put it in the correct document and phrase it correctly.

      . Also worth noting, the record confirms Reid’s continued and expanded role in Mr. Sonder’s life from 1998 until the time of his death in 2005, at the age of ninety-three or ninety-four. This is reflected both in the testimony of the witnesses and in the controlling document. First, she was given a pecuniary bequest, then that bequest expanded and the apartment and its contents were devised to her. Then she was made the recipient of the “rest, residue and remainder” of the trust, appointed a successor trustee, and finally given a durable power of attorney.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    SUFFOLK CONSTRUCTION COMPANY, INC., Appellant, v. FIRST SEALORD SURETY, INC., et al., Appellees.
    Nos. 3D09-2009, 3D10-788.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Rehearing Denied June 3, 2011.
    Vezina, Lawrence & Piscitelli and Joseph W. Lawrence, II, Fort Lauderdale; Elizabeth Russo, Miami, for appellant.
    Yoss and John J. Shahady and Thomas R. Shahady, Fort Lauderdale, for appel-lees.

      Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

Suffolk Construction Company, Inc. (“Suffolk”), appeals final judgments entitling First Sealord Surety, Inc. (“Sea-lord”), to attorney’s fees. Because we do not find that a manifest injustice has been demonstrated sufficient to overcome the doctrine of law of the case, we affirm.

Suffolk was the plaintiff below and the general contractor on a construction project. Suffolk sued the plumbing contractor for breach of contract and sued the surety, First Sealord, under its- performance bond. A final judgment was entered on behalf of Suffolk against First Sealord. First Sealord appealed the final judgment. This Court reversed, see First Sealord Sur., Inc. v. Suffolk Constr. Co., 995 So.2d 609 (Fla. 3d DCA 2008), and granted First Sealord’s motion for entitlement to appellate attorney’s fees, directing the trial court to determine the amount. This Court denied Suffolk’s motion for rehearing. This Court’s mandate issued. The Florida Supreme Court denied Suffolk’s request for review and granted appellate attorney’s fees to First Sealord. See Suffolk Constr. Co. v. First Sealord Sur., Inc., 14 So.3d 243 (Fla.2009). On remand, the trial court determined the amount of appellate attorney’s fees in this Court and in the Supreme Court and awarded attorney’s fees totaling $277,195.69 to First Sealord. Suffolk now appeals the attorney’s fees final judgments questioning not the amount of the fees, but questioning, once again, the issue of entitlement.

When an appellate court has decided a question of law, the decision of the court becomes law of the case. This doctrine prevents reconsideration of all issues necessarily decided in the former appeal. See Goodman v. Olsen, 365 So.2d 393 (Fla. 3d DCA 1978). Absent manifest injustice, this Court is barred under the doctrine of law of the case by its prior ruling granting entitlement to attorney’s fees. See Brunner Enters. v. Dep’t of Revenue, 452 So.2d 550 (Fla.1984). This Court previously ruled on the issue of First Sealord’s entitlement to attorney’s fees. Suffolk filed a motion for rehearing of our order, which we denied. Suffolk now raises the same entitlement issues in this appeal. These issues have previously been addressed by this Court and have become law of the case. As such, these issues cannot again be addressed by this Court. The narrow exception to this rule is where there is a showing of manifest injustice, which occurs only where the merits have not been considered or where there has been an intervening decision by a higher court. See Brunner; Feder v. Feder, 41 So.3d 234 (Fla. 3d DCA 2009). The record does not contain any evidence of such manifest injustice.

As this Court cannot rehear the issue of entitlement to attorney’s fees contrary to its own mandate in the prior appeal, see Brunner, we affirm the judgments of the trial court on attorney’s fees.


author: PER CURIAM.

text:
    Ricardo ECKEMBRECHER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2620.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing Denied June 15, 2011.

      Ricardo Eckembrecher, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   PER CURIAM.

Affirmed. See § 921.001(5), Fla. Stat. (2003).


author: CASANUEVA, Chief Judge.

text:
    Fidensio GALLEGOS, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D09-4699, 2D09-4704.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.
    Rehearing Denied June 15, 2011.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Chief Judge.

We affirm Mr. Gallegos’ judgments and sentences without comment. However, we write to direct the trial court on remand to strike the postsentence order that it entered without jurisdiction.

On August 5, 2010, while this appeal was pending, Mr. Gallegos filed in the trial court a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court must rule on such a motion within sixty days of filing or it is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B). However, it did not issue an order on the motion until January 20, 2011, long after the sixty days had passed. That order found that Mr. Gallegos’ claims had merit and gave the State twenty days to choose between two alternative types of relief.

“When a trial court enters an order on a rule 3.800(b)(2) motion outside of the time permitted for ruling on such a motion, the order is deemed a nullity and must be stricken.” Miran v. State, 46 So.3d 186, 188 (Fla. 2d DCA 2010); see also Mapp v. State, 18 So.3d 33, 37 (Fla. 2d DCA 2009) (striking an out-of-time order granting a rule 3.800(b) motion); Jackson v. State, 950 So.2d 1267, 1267 (Fla. 2d DCA 2007) (holding that an order rendered more than sixty days after the filing of a rule 3.800(b)(2) motion was a nullity). Therefore, while we affirm the judgments and sentences, we must remand to the trial court to strike the January 20, 2011, order and any subsequent orders entered on the rule 3.800(b)(2) motion.

Judgments and sentences affirmed; remanded with instructions.

VILLANTI and LaROSE, JJ., Concur.


text:
    Christopher B. PHILLIPS, Petitioner, v. CITIBANK, N.A., Respondent.
    No. 2D11-39.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.
    Rehearing Denied June 29, 2011.
    Matthew D. Weidner, P.A., St. Peters-burg, for Petitioner.
    B. Elaine New, Court Counsel, Sixth Judicial Circuit, for Respondent J. Thomas McGrady, Chief Judge, Sixth Judicial Circuit.
    No appearance for Respondent Citibank, N.A.
   CASANUEVA, Chief Judge.

Christopher B. Phillips, the defendant in a foreclosure lawsuit filed by Citibank, N.A., petitions for a writ of prohibition to prevent a judge of the Sixth Judicial Circuit from conducting further proceedings. Mr. Phillips maintains that the trial court is acting in excess of its jurisdiction because the lawsuit against him has been dismissed pursuant to a “master order of dismissal” prepared by the circuit court clerk and issued by the trial court on August 27, 2009, for failure of the plaintiff bank to effect service of process on some of Mr. Phillips’ codefendants. We issued an order to show cause, which stayed the circuit court proceedings. The Chief Judge of the Sixth Judicial Circuit thereupon filed a response in accordance with Florida Rule of Appellate Procedure 9.100(e). The rule provides that the judge or the lower tribunal is a formal party to the proceeding and may exercise discretion to file a separate response if desired. Upon examination of the parties’ filings and appendices, we hold that the master order of dismissal not only did not but could not dismiss Mr. Phillips from the lawsuit and accordingly deny the petition.

Citibank filed the foreclosure lawsuit against Christopher Phillips, Diane Phillips, Jane Doe, John Doe, and any and all unknown parties. Christopher Phillips and Diane Phillips were served with process in a timely manner, and an attorney filed an answer on their behalf. However, the case languished because Citibank failed to serve Jane Doe, John Doe, and the unknown parties. This prompted the circuit court clerk to enter standard notices of intent to dismiss each of the un-served parties — but not Christopher Phillips or Diane Phillips — on August 17, 2009. The notices cited Florida Rule of Civil Procedure 1.070(i) and ordered the plaintiff to show cause by August 12, 2009, why service was not obtained. The plaintiff failed to respond to the order to show cause, and the judge presiding over the lawsuit entered a “master order dismissal calendar no. 070609-020,” which dismissed cases “as indicated on the attached listing” without prejudice pursuant to rule 1.070[j]. The “attached listing” consisted of the names of numerous defendants in many cases and included John Doe, Jane Doe, and any and all unknown parties in case number 09-003595-CI-020. The attached listing did not include Christopher Phillips or Diane Phillips, nor did the dismissal. The master order of dismissal was filed with the clerk and subsequently recorded.

Some weeks later, Citibank filed a motion for summary judgment. Christopher and Diane Phillips responded in turn by filing a “motion to effectuate dismissal.” After the Phillipses’ motion was denied, Christopher Phillips filed this petition for writ of prohibition, asserting that the circuit court has acted in excess of jurisdiction by continuing to exert jurisdiction over a case that had been dismissed.

It is true that a judge has no jurisdiction to proceed over a case that has been dismissed with finality. See 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994). And the appropriate means to challenge the trial court’s apparent usurpation of judicial power is a petition for writ of prohibition. See Harr v. Harr, 974 So.2d 1094 (Fla. 2d DCA 2007); E. Cnty. Water Control Dist. v. Lee Cnty., 884 So.2d 93 (Fla. 2d DCA 2004). However, we agree with the analysis of the respondent Chief Judge of the Sixth Judicial Circuit and determine as a matter of law that the lawsuit was never dismissed with prejudice as to Christopher Phillips and Diane Phillips.

The notice of intent to dismiss clearly referred only to parties who had not been served with process. Indeed, parties can be dismissed by operation of rule 1.070 only if they have not been served with process. The plain language of rule 1.070(j) supports this determination:

If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party....

(Emphasis supplied.) Clearly, the circuit court lacked authority under this rule to dismiss the action as to any defendant who had been properly and timely served. As a corollary, the language of rule 1.070(j) requiring dismissal of the entire action can refer only to cases in which service has not been effected on any defendant. As observed in Meadows of Citrus County, Inc. v. Jones, 704 So.2d 202, 203 (Fla. 5th DCA 1998), “where properly raised, the defense of failure to timely serve a defendant under Rule 1.070© warrants dismissal of the cause as to that defendant but not as to co-defendants who have been timely served.” To reinforce its reasoning, the court in Meadows examined the language of the federal rule upon which the Florida rule is modeled. Id. at 203-04. The current version of Federal Rule of Civil Procedure 4(m) provides as follows: “If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff— must dismiss the action without prejudice against that defendant....” (Emphasis supplied.) The federal rule is noticeably and fittingly silent on the potential for dismissal of the action in its entirety.

We can only presume that the circuit judge, charged with following the rules of procedure, was aware of the clear prohibition against dismissal of a party who has been served; consequently, we can only conclude that the circuit court never intended to dismiss Mr. Phillips from this lawsuit. Nevertheless, Mr. Phillips argues that the master order of dismissal effectively did so by operation of its language. The order recites that the plaintiff had been “noticed that the cause of action would be dismissed on August 17, 2009,” and that the “cases, as indicated on the attached listing, are hereby dismissed without prejudice.” Unfortunately, both the notice and the dismissal order imprecisely refer to dismissal of causes of action and cases, but it is obvious that the dismissal is actually limited to the parties “indicated on the attached listing.” Nowhere on that listing does the name Christopher Phillips appear. Therefore, not only was there no intent to dismiss the cause of action as to Christopher Phillips, the form order that dismissed the other, unserved defendants from the case did not do so. The circuit court thus retains jurisdiction over Citibank’s action against Christopher Phillips and Diane Phillips.

We deny the petition for writ of prohibition and lift the stay of the circuit court proceedings. Our denial, however, is with the caveat that the respondent chief judge would be well advised to revise the notice of intent to dismiss as well as the master order of dismissal to reflect more clearly the limitations on the court’s power under rule 1.070© to dismiss any parties other than those who have not been served in accordance with the rule.

Petition denied.

SILBERMAN and KELLY, JJ., Concur.

      . Although both the notice of intent to dismiss and the master order of dismissal recite that they are entered pursuant to rule 1.070(i), this is an obvious clerical error. The appropriate ruléis 1.070(j).

        . Although Christopher Phillips and Diane Phillips were similarly situated below, this petition was filed only in the name of Christopher B. Phillips.


author: SALTER, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Roy FREEMAN, Respondent.
    No. 3D11-107.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing Denied July 1, 2011.

      Stephen D. Hurm, General Counsel, and Jason Helfant, Assistant General Counsel, Lake Worth, for petitioner.
    Nelson T. Peña, Miami Lakes, for respondent.
    Before GERSTEN, WELLS, and SALTER, JJ.
   SALTER, J.

The Department of Highway Safety and Motor Vehicles (Department) petitions for a writ of certiorari regarding a circuit court decision vacating the administrative suspension of the respondent’s driver’s license following his refusal to consent to a breath test incident to his arrest for driving under the influence (DUD- We grant the writ, finding that the circuit court’s reliance on an earlier circuit court decision regarding Florida’s implied consent law, Trauth v. Department of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. C871a (Fla. 11th Cir.Ct. July 3, 2008) (“Trauth I ”), has been overtaken by more persuasive district court precedent — specifically, Department of Highway Safety & Motor Vehicles v. Nader, 4 So.3d 705 (Fla. 2d DCA 2009), review granted, 36 So.3d 84 (Fla.2009).

Background

At about 2:40 a.m. on a Saturday morning in May 2009, a Hialeah police sergeant observed the respondent driving his vehicle in an erratic fashion, drifting and jerking from one side of the lane to the other. A traffic stop followed. The police officer’s report and later testimony included observations that the respondent had an odor of alcoholic beverages on his breath, a flushed face, slurred speech, and poor responses to the field sobriety test.

The police officer then asked the respondent to take a breath test, and the respondent refused to do so. The officer gave implied consent warnings, but the respondent continued to refuse to take the test. After submission of DUI arrest paperwork, including the officer’s sworn affidavit regarding the respondent’s refusal to submit to a breath test, the Department suspended the respondent’s driver’s license. The respondent requested and was afforded an administrative hearing regarding the suspension. The respondent testified that the implied consent warning was not properly administered and that it left him with the impression that he was being asked to consent to all three tests (breath, urine, and blood). The respondent said he refused the tests because “I don’t do needles at all.”

The police officer had initially marked one of the implied consent forms to indicate that the respondent agreed to take a breath test, but the respondent refused to sign that form. The officer’s affidavit and testimony at the administrative hearing established that ultimately the respondent refused a breath test. The respondent also moved to invalidate the suspension based on circuit court interpretations of the implied consent law as in Trauth I. The Department’s field hearing officer sustained the suspension of the respondent’s license under the implied consent statute.

The respondent then sought review by the circuit court appellate division. The circuit court followed Trauth I, noted our opinion in “Trauth II to the effect that the propriety of warnings under the implied consent law “involves a close question of law,” and quashed the administrative order suspending the respondent’s license. The Department’s petition to this court followed.

Analysis

Conflicting circuit court decisions within our district were further complicated because of conflicting district court decisions among the Second, Fourth, and Fifth Districts. As noted, the conflict in decisions is presently pending before the Supreme Court of Florida. In the interim, DUI arrests will continue and the circuit court is entitled to know which of the conflicting analyses should be followed.

The threshold question, however, is whether this case is appropriate for “second-tier” certiorari under the standards articulated by the Supreme Court of Florida in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010):

This Court has continually applied certain fundamental principles for the use of certiorari to review decisions rendered by the circuit court acting in its appellate capacity from the time common-law certiorari jurisdiction was first recognized in 1855. See, e.g., Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983); Halliday v. Jacksonville & Alligator Plank Rd. Co., 6 Fla. 304 (1855). We have consistently observed that “[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.” Haines, 658 So.2d at 530. Therefore, when a district court considers a petition for second-tier certiorari review, the “inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,” or, as otherwise stated, departed from the essential requirements of law. Id.; see also Kaklama-nos, 843 So.2d at 889-90. The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error. See Kaklamanos, 843 So.2d at 889 (citing Ivey, 774 So.2d at 682). Rather, a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice. See id. (citing Ivey, 774 So.2d at 682; Heggs, 658 So.2d at 528). In Haines City Community Development v. Heggs, this Court clarified and narrowed the scope of common law certiorari jurisdiction by clearly stating that
[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.
658 So.2d at 525 (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 526-27 (1882)).
Furthermore, the district courts should consider the nature of the error and grant a petition for writ of certiorari “only when there has been a violation of a clearly established principle of law resulting in a .miscarriage of justice.” Combs, 436 So.2d at 96 (emphasis supplied). Thus, the district court’s exercise of its discretionary certiorari jurisdiction should
depend on the court’s assessment of the gravity of the error and the adequacy of other relief. A judicious assessment by the appellate court will not usurp the authority of the trial judge or the role of any other appellate remedy, but will preserve the function of this great writ of review as a “backstop” to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.
Heggs, 658 So.2d at 531 n. 14 (emphasis supplied) (quoting William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L.Rev. 207, 228 (1977)). In other words, this Court has definitively expressed that certiorari cannot be used to grant a second appeal to correct the existence of mere legal error. See, e.g., Ivey, 774 So.2d at 682-83. This is necessary because, unlike an appeal, common-law certiorari is entirely discretionary exercise of jurisdiction by the court and is not taken as a matter of right. See G-W Dev. Corp. v. Village of N. Palm Bch. Zoning Bd. of Adjustment, 317 So.2d 828, 830 (Fla. 4th DCA 1975). A reviewing court on appeal may correct any and all errors below, whether jurisdictional, procedural, or substantive, and may modify, reverse, or remand a judgment. See Haines, 658 So.2d at 526 n. 3. In contrast, a district court cannot correct just any error that may have occurred below through a second-tier certiorari proceeding. This proceeding is considered original in the sense that the subject-matter of the action or proceeding before the court is not to be reinvestigated, tried, and determined upon the merits generally as upon appeal at law or writ of error. See id. at 525-26 (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 527 (1882)). Hence, a circuit court appellate decision made according to the forms of law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to facts, is not a departure from the essential requirements of law remediable by certiorari. See Ivey, 774 So.2d at 682 (quoting Haines City, 658 So.2d at 525).
The policy behind prohibiting certiora-ri to function as a second appeal is that the circuit court possesses final appellate jurisdiction in cases originating in the county court. See art. V, § 5, Fla. Const. As this Court articulated in Haines, if the role of certiorari were expanded to review the correctness of the circuit court’s decision, it would amount to a second appeal that usurps the final appellate jurisdiction of the circuit court in contravention of the Florida Constitution. See id. at 526 n. 4. This would deprive litigants of final judgments obtained in the circuit court and ignore “societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals.” Id. A more expansive review would also afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in cases originating in a trial court of general jurisdiction. See id. (citing Flash Bonded Storage Co. v. Ades, 152 Fla. 482, 12 So.2d 164, 165 (Fla.1943)).
In Ivey, this Court expressed that before a district court may exercise certio-rari jurisdiction to review a decision of a circuit court acting in its appellate capacity, the district court must analyze and develop “why the [relevant] circuit court’s decision constituted a denial of procedural due process, application of incorrect law, or a miscarriage of justice.” Ivey, 774 So.2d at 688; see also Kaklamanos, 843 So.2d at 889-90 (reaffirming Ivey).

62 So.3d at 1092-93 (footnotes omitted).

We conclude that the error in this case (which is the same error rectified in Department of Highway Safety and Motor Vehicles v. Nader, 4 So.3d at 710) involves “clearly established law” and an interpretation which “disobeyed the plain language of the statute,” authorizing our issuance of the writ in this case. We find the Second District’s analysis in Nader to be persuasive for purposes of section 322.2615 when a driver is warned that driving privileges will be suspended if he or she refuses to submit to a “breath, blood, or urine test” under circumstances in which a request for a blood test is not authorized. We decline to apply or endorse the Fourth District’s invalidation of such a warning in Department of Highway Safety & Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007). We recognize, of course, that the Supreme Court of Florida may reach a different conclusion in the conflict case presently pending in Nader. In the interim, however, the circuit courts within this district should follow Nader rather than Trauth I when only a breath test is authorized but it is refused after a disjunctive warning of the kind involved here.

Petition granted; opinion of October 19, 2010, and order denying rehearing of December 17, 2010, quashed.

      . § 322.2615, Fla. Stat. (2009).

      . The Supreme Court of Florida accepted jurisdiction and, on May 7, 2010, ordered that the case would be submitted without oral argument. Nader v. Fla. Dep't of Highway Safety and Motor Vehicles, 36 So.3d 84 (Fla.2010).

      . State Dep't of Highway Safety & Motor Vehicles v. Trauth, 41 So.3d 916 (Fla. 3d DCA 2010).


author: EMAS, J.

text:
    HARCO NATIONAL INSURANCE COMPANY, Appellant, v. Adrienne D. HAMMOND, individually, and Ian J.N. Hammond and Alan R. Hammond, as Personal Representatives of the Estate of Robert F. Hammond, deceased, Appellees.
    No. 3D10-2594.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing Denied June 22, 2011.

      McFarlane Dolan & Barnett, and William J. McFarlane, and L. Kenneth Barnett, Coral Springs; Schindel, Farman, Lipsius, Gardner, Rabinovich, and Ira S. Lipsius, New York, for appellant.
    Babbit, Johnson, Osborne & LeClainche, and Joseph R. Johnson, and Joseph Osborne, West Palm Beach; Burlington and Rockenbaek, and Bard D. Rockenback, for appellees.
    Before WELLS, SALTER, and EMAS, JJ.
   EMAS, J.

Harco National Insurance Company (“Harco”) appeals an order granting partial summary judgment and declaratory relief in favor of Appellees (“the Ham-monds”), and denying Harco’s cross-motion for summary judgment, finding that the umbrella insurance policy at issue provides coverage for the Hammonds’ claims. For the reasons which follow, we reverse.

The plaintiffs below were involved in a motor vehicle accident in 2008 when they collided with a freightliner truck driven by Humberto Brito (“Brito”). At the time of the accident, Brito was engaged in normal business activities for his employer, Tiles and Stones, Inc. (“Tiles and Stones”), who leased the freightliner truck from Blue Water Holdings-Doral, Inc. (“Gator”). Gator had two insurance policies with Har-co that were in effect on the date of the accident-a primary policy with a limit of $1 million, and an umbrella policy "with a limit of $20 million. Harco paid out to the Hammonds the $1 million limit of Gator’s primary policy, acknowledging that Tiles and Stones was covered under that policy. Harco contested the Hammonds’ claim that the umbrella policy provided coverage to Tiles and Stones and Brito, maintaining that the umbrella policy was written only for the protection of its insured, Gator.

The relevant Harco policy language provides:

Section II — Who is an Insured
(6) Each of the following is also an “insured”:
1.As respects the “covered auto”:
a. Anyone using an “auto” you own, hire or borrow including any person or organization legally responsible for such use provided it is with your permission and;
b. Any of your executive officers, directors, partners, employees or stockholders, operating an “auto” you do not own, hire or borrow while it is being used in your business.

None of the following is an “insured” under a. or b. above:

1. Any person employed by or engaged in the duties of an auto sales agency, repair shop service station, storage garage or public parking place that you do not operate.
2. The owner or lessee of any “auto” hired by or for you or loaned to you and any agent or employee of such lessee.
3. Any person or entity to whom an automobile has been leased or rented; and
4.Any person or entity other than the Named Insured who is operating, maintaining, using loading or unloading an automobile which has been leased or rented from “you”.

The policy also contained this exclusion language relevant to the coverage issue:

B. Exclusions
This insurance does not apply to:
17. Leased Autos

Any “covered auto” while leased or rented to others. But this exclusion does not apply to:

a. A “covered auto” you rent to one of your customers while them “covered auto” is left with you for service or repair;
b. “Bodily injury” or “property damage” arising out of the work you performed or defective products; or
c. “Bodily injury” or “property damage” caused by an “occurrence” resulting from the ownership of a “covered auto.”

The trial court found that, under the terms of the umbrella policy, Tiles and Stones was an “insured,” that the freight-liner driven by Brito was a “covered auto” under the policy, and that there were no applicable policy exclusions. Our review of the policy language, however, leads us to conclude that only Gator was covered by the umbrella policy. The policy unambiguously provides that any person to whom Gator has leased or rented one of its automobiles is not an insured. The Ham-monds argued below that because the term “automobile” was not defined in the policy, that provision does not exclude coverage for the negligence of Tiles and Stones. They assert that “automobile” refers solely to passenger vehicles. Gator is in the business of leasing and renting commercial vehicles. The term “auto” is defined in the policy to include commercial vehicles, and the terms “auto” and “automobile” are used interchangeably throughout. We decline to change the plain meaning of the policy terms to provide coverage where clearly none was provided or intended. State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242 (Fla. 3d DCA 2002).

Finally, even if we were to find that Tiles and Stones was an insured due to some ambiguity in the use of the word “automobile,” the policy specifically excludes coverage for “any ‘covered auto’ while leased or rented to others.” An exception to this exclusion is made for “bodily injury” or “property damage” when “caused by an ‘occurrence’ resulting from the ownership of a ‘covered auto’.” We find that this exception restores coverage only to Gator for any liability it might incur as the owner of the commercial vehicle, and does not provide coverage to the lessee, Tiles and Stones. Accordingly, we reverse and remand for the trial court for entry of judgment in favor of Harco on count VII of the declaratory action.

      . Mrs. Hammond suffered serious injuries in the accident and her husband died from his injuries.

      . The primary policy is not at issue in this appeal.

      . The Harco umbrella policy defines “Auto” as follows:
      D. "Auto” means a land motor vehicle, trailer or semi-trailer.

      .The term "automobile” is not defined in the Harco umbrella policy.


text:
    Marie C. LABADY, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for the Certificate Holders of Soundview Home Loan Trust 2006-OPT5, Asset-Backed Certificates, Series 2006-OPT5, Appellee.
    No. 3D10-2083.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied June 21, 2011.
    511 Law, P.A., and Garry W. Johnson, Fort Lauderdale, and Bruce K. Herman, Fort Lauderdale, for appellant.
    Florida Default Law Group, P.L., and Jeffrey M. Gano, Tampa, for appellees.
    Before WELLS and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Fla. R. Civ. P. 1.540(b); DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984); Lefler v. Lefler, 776 So.2d 319 (Fla. 4th DCA 2001).


text:
    The HENRIQUES GROUP, P.A., Appellant, v. Manuel L. CRESPO, Esq., and Manuel L. Crespo, P.A., Appellees.
    No. 3D10-1490.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied July 5, 2011.
    The Henriques Group and Genevive Henriques, for appellant.
    Rivero Mestre and Erimar von der Os-ten and Victor J. Pelaez and Charlie Whorton, Miami, for appellees.
    Before GERSTEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Boca Investors Group, Inc. v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002); Burton v. Salzberg, 725 So.2d 450 (Fla. 3d DCA 1999); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994); Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992); Ange v. State, 98 Fla. 538, 123 So. 916 (Fla.1929).


author: CORTIÑAS, J.

text:
    AUSTIN BUILDING COMPANY, Appellant, v. RAGO, LTD. and Federal Insurance Company, Appellees.
    Nos. 3D09-2430, 3D09-2481, 3D09-3238, 3D09-3244.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.

      Peckar & Abramson and Neal I. Sklar, Seth I. Rubinson and Warren E. Friedman, Miami; White & Case and Raoul G. Cantero, Cristina A. Lumpkin and Kerri L. McNulty, Miami, for appellant.
    Etcheverry Harrison and Guy W. Harrison and Edward Etcheverry, Ft. Lauder-dale; Shumaker, Loop & Kendrick and Steven G. Schember and Duane A. Daiker, Tampa; Pogach & Trachtenberg and Adam D. Pogach, Texas; Ruden McClosky and John H. Pelzer, Fort Lauderdale, for appellees.
    Before GERSTEN, CORTIÑAS, and LAGOA, JJ.
   CORTIÑAS, J.

I. Factual Background

Austin Commercial, L.P. (“ACLP”) and Merrick Trust, LLC (the “Owner”) entered into a contract (the “Prime Contract”) for the construction of a mixed-use commercial and luxury residential condominium in Coral Gables, Florida (the “Project”). At the time the Prime Contract was executed on March 29, 2005, ACLP was qualified under section 489.119(2), Florida Statutes, to perform construction. The Prime Contract specifically provided that once ACLP’s affiliate, Austin Building Company (“ABC”), obtained state licensing, the Prime Contract and all related documents would be assigned from ACLP to ABC.

After the execution of the Prime Contract, ACLP engaged Rago, Ltd. (“Rago”) to construct the structural concrete components. Rago mobilized to the Project site on March 31, 2005 and commenced work on or about April 4, 2005. ACLP did not learn that Rago was unlicensed until approximately sixteen days after work had commenced. Upon discovering Rago’s unlicensed status, a representative of ACLP confronted Rago and was reassured that Rago would obtain licensure. Approximately four months after the work on the Project commenced, ABC obtained state licensing and formally executed a contract with Rago (the “Subcontract”). Although executed in July 2005, on its face, the Subcontract showed April 1, 2005 as the date of execution. Eventually, ABC terminated Rago after apparent dissatisfaction with delays and defects in its performance. In February 2007, Rago sued ABC, ACLP, and their surety, Federal Insurance Company (“Federal”) for amounts purportedly owed under the Subcontract. ABC, in turn, countersued Rago for damages arising from Rago’s purportedly defective work on the Project and filed a third party complaint against Federal, which was also serving as Rago’s surety. Rago and ABC filed opposing motions for summary judgment, each asserting that the other was an unlicensed contractor under section 489.128, Florida Statutes, and therefore, could not enforce the Subcontract. The trial court granted the motions for summary judgment and entered final judgments as to Federal. This appeal followed.

II. ABC’s Appeal

ABC appeals a final summary judgment in its action against Rago. Our review of the record demonstrates the existence of genuine issues of material fact precluding summary judgment. Accordingly, we reverse.

When the record demonstrates the existence of disputed, material issues of fact, summary judgment is erroneous. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Rakusin Law Firm v. Estate of Dennis, 27 So.3d 166 (Fla. 3d DCA 2010); Copeland v. Fla. New Invs. Corp., 905 So.2d 979, 980 (Fla. 3d DCA 2005). “[0]n review of an order granting summary judgment, we are required to review the record de novo and construe all facts in a fashion most favorable to the non-movant.” Ortega v. Eng’g Sys. Tech., Inc., 30 So.3d 525, 527, 530 (Fla. 3d DCA 2010); Interested Underwriters v. SeaFreight Line, Ltd., 971 So.2d 892, 894 (Fla. 3d DCA 2007). In this case, the facts surrounding the assignment of the Prime Contract to ABC, the identity of the actual contractor when work commenced on the Project and when work was performed by Rago, and the parties’ knowledge of each other’s lack of licensure, were disputed, and when viewed in the light most favorable to ABC, present genuine issues of material fact sufficient to preclude summary judgment.

Section 489.128, Florida Statutes (2005) provides:

(1) As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.
(c) For purposes of this section, a contractor shall be considered unlicensed only if the contractor was unlicensed on the effective date of the original contract for the work, if stated therein, or, if not stated, the date the last party to the contract executed it, if stated therein. If the contract does not establish such a date, the contractor shall be considered unlicensed only if the contractor was unlicensed on the first date upon which the contractor provided labor, services, or materials under the contract.

§ 489.128(l)(c), Fla. Stat. (2005) (emphasis added). Under the statute, the critical dates for determining whether a contractor was unlicensed are 1) the effective date of the original contract, 2) the date the last party to the contract executed it, or 3) the first date upon which the contractor provided services, labor, or materials under the contract. Here, ABC presented evidence that, when viewed in the light most favorable to it, demonstrates that when Rago first began working on the Project, ACLP was the contractor and was properly licensed.

Moreover, while the Subcontract specifically lists ABC as the “Contractor,” Paragraph 1 of the Subcontract provides as follows:

1. The “Prime Contract” is the Contract between the Owner and the Contractor. The construction called for in the Prime Contract is called the “Work.” The term “Prime Contract” includes the Plans, Specifications, General and Special Condition, Addenda, and all other contract documents that are incorporated into this [Subcontract] by its terms. Each Party to this [Subcontract] acknowledges that it is familiar with the terms of the Prime Contract, and agrees that the Prime Contract (including the contract documents incorporated herein) is incorporated herein in its entirety for all purposes as if copied at length and attached hereto.... In the event of a discrepancy between the Prime Contract and this [Subcontract], this [Subcontract] will govern.

(Emphasis added). Although ABC is listed as the contractor, it is undisputed that the Prime Contract was between the Owner and ACLP, as contractor, and was fully incorporated into the Subcontract. It is also undisputed that ACLP was licensed at the time it entered into the Prime Contract. Furthermore, there is record evidence that, in early April 2005, Rago corresponded directly with ACLP, as the apparent contractor, providing an update on its delivery of materials to the jobsite and test reports for approval to begin construction. Under the terms of the Prime Contract, ABC could not have acted as contractor on the Project until such time as it was licensed. Taken in the light most favorable to ABC, Rago’s correspondence with ACLP as well as the language of the Prime Contract and the Subcontract, create a genuine issue of fact as to who was the “contractor” on the Project as of April 1, 2005.

Because the evidence in the record, when viewed in the light most favorable to ABC, shows the existence of genuine issues of material fact, we reverse the entry of summary judgment as to ABC. Accordingly, we also reverse the final judgment in favor of Federal as Rago’s surety.

III. Rago’s Cross-Appeal

On cross-appeal, Rago seeks review of the entry of a final summary judgment in its action against ABC. The trial court granted final summary judgment on the issue of licensure against Rago. Rago argues on cross-appeal that it was not an unlicensed contractor under section 489.128, Florida Statutes (2009). We agree and reverse the summary judgment as to Rago.

As amended in 2009, section 489.128(l)(a), Florida Statutes, provides:

(1) As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.
(a) For purposes of this section, an individual is unlicensed if the individual does not have a license required by this part concerning the scope of the work to be performed under the contract. A business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of work to be performed under the contract. For purposes of this section, if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed.

§ 489.128(l)(a), Fla. Stat. (2009) (emphasis added). The trial court, in granting final summary judgment, applied a prior version of the statute and determined Rago to be unlicensed and unable to enforce its contract against ABC and its surety, Federal. We note that “[effective [June 16, 2009], the amendments made ... to ss. 489.128(l)(a) and 489.532(l)(a), Florida Statutes, shall apply retroactively to contracts entered into on or after October 1, 2000, and shall apply retroactively to all actions pending when this act becomes law.” Ch. 2009-195, § 66, at 1972, Laws of Fla.; MGM Constr. Servs. Corp. v. Travelers Cas. & Surety Co. of Am., 57 So.3d 884 (Fla. 3d DCA 2011). Under the facts of this case, the 2009 version of the statute applies retroactively to the contract between Austin and Rago.

Austin and Federal argue that even under section 489.128, as amended in 2009, Rago would still be considered unlicensed because the last sentence in section 489.128(l)(a) is applicable only to an “individual” and not a “business organization.” We disagree. In a recent case, the Fourth District reversed a summary judgment against a business organization on the identical issue of licensure. A-1 Quality Corp. v. Oak Park Terrace, Inc., 32 So.3d 166 (Fla. 4th DCA 2010). In A-l, the trial court had granted summary judgment after determining that, under section 489.128, Florida Statutes (2007), the business organization could not enforce its contract because it was an unlicensed contractor. A-l Quality Corp., 32 So.3d at 166. On appeal, the Fourth District found that the contract was ambiguous as to whether the business organization would perform services requiring a contractor’s license, and citing section 489.128(l)(a), Florida Statutes (2007), reversed the summary judgment. A-l Quality Corp., 32 So.3d at 167.

Similarly, applying a nearly identical statute, the Fourth District reversed a judgment against a business organization that sold and installed audio systems. MMII, Inc. v. Silvester, 42 So.3d 876 (Fla. 4th DCA 2010). The business organization had contracted to design and install an entertainment system for- some buyers. Id. at 877. When the buyers refused to pay, the business organization filed suit. Id. The buyers argued that the business organization could not enforce its contract either at law or in equity because it was an unlicensed electrical contractor. Id. In reversing, the Fourth District held that the business organization did not meet the statutory definition of an electrical contractor mandating licensure, and therefore, absent the requirement of a state license, could not be deemed unlicensed under section 489.532(l)(a), Florida Statutes (2009). MMII, Inc., 42 So.3d at 878. We note that although MMII, Inc. involved the application of a different a section of Chapter 489 to a business organization, the language in section 489.532(l)(a), Florida Statutes (2009), is identical to the pertinent language in section 489.128(l)(a), Florida Statutes (2009).

We agree with the Fourth District in its application of section 489.128(l)(a), and the similar provision of 489.532(l)(a), to the issue of licensure as it relates to business organizations.

Moreover, the statutory scheme of Chapter 489 demonstrates that a business organization’s ability to engage in contracting is inextricably reliant upon the licen-sure of the qualifying agent, who in turn, must be an individual person. A business organization cannot in itself be authorized to engage in contracting absent a qualifying agent. See § 489.119, Fla. Stat. (2009). As such, the phrase “the individual performing that work” in section 489.128(l)(a) would have little consequence if it could not also apply to an individual serving as a qualifying agent for a business organization.

Chapter 489 sets forth the relationship between the licensed contractor and his/ her business organization. The Chapter explains that, for purposes of determining contracting licensure under section 489.128(l)(a), “[a] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent .... ” § 489.128(l)(a), Fla. Stat. (2009). Section 489.105, Florida Statutes, defines qualifying agents as follows:

(4) “Primary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.
(5) “Secondary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained a permit, and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

§ 489.105(4)-(5), Fla. Stat. (2009) (emphasis added).

Section 489.119 further expounds on the relationship between a business organization and its qualifying agent.

(1) If an individual proposes to engage in contracting in the individual’s own name, or a fictitious name where the individual is doing business as a sole proprietorship, registration or certification may be issued only to that individual.
(2) If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant’s legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the applicant must apply for registration or certification as the qualifying agent of the business organization.

§ 489.119(l)-(2), Fla. Stat. (2009) (emphasis added). In the event a qualifying agent ceases his involvement with a business organization, the business organization “shall have 60 days from the termination of the qualifying agent’s affiliation with the business organization in which to employ another qualifying agent.” § 489.119(3)(a), Fla. Stat. (2009). Most importantly, section 489.119 clearly states that in such a situation, “the business organization may not engage in contracting until a qualifying agent is employed ....” Id. (emphasis added).

Based upon the foregoing, we find that the trial court erred in granting final summary judgment as to Rago on the issue of licensure and accordingly, we reverse the entry of summary judgment against Rago. Consequently, we also reverse the final judgment in favor of Federal as surety for ABC.

Reversed and remanded.

      . Because Federal was the surety for both Rago and ABC, it joined in each of their respective motions for summary judgment.

      . We also note that viewing the evidence in the light most favorable to the non-movant, there are genuine issues of material fact as to the extent of ACLP’s and ABC's knowledge of Rago's unlicensed status at the time Rago was engaged to perform the work and at the time the Subcontract was executed, thereby precluding entry of summary judgment on the basis of the parties being in pari dilecto. Castro v. Sangles, 637 So.2d 989, 991 (Fla. 3d DCA 1994); Restatement (Second) of Contracts § 178 (1981); see Black's Law Dictionary 806 (8th ed. 2004) (under the in pari dilecto doctrine, a "plaintiff who participated in a wrongdoing may not recover damages resulting from the wrongdoing”).

      . "For purposes of this section, if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed.” § 489.128(l)(a), Fla. Stat. (2007). While the 2009 amendment of section 489.128(l)(a) changed this language to "[f]or purposes of this section, if a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed,” the analysis and application of the statute to a business organization remain analogous.

      . "[I]f a state license is not required for the scope of work to be performed under the contract, the individual performing that work is not considered unlicensed.”

      . We are cognizant that diere are three very limited exceptions under which a business organization may act as a contractor without applying for or obtaining authorization under section 489.119. See § 489.119(7)(a)l-3, Fla. Stat. (2009). These exceptions, however, are inapplicable here.

      . While not applicable here, under certain circumstances, a "temporary nonrenewable certificate or registration” may be issued to a business organization following the departure of a qualifying agent. See § 489.119(3)(a), Fla. Stat. (2009).

      . The legislative history of section 489.128 also supports our conclusion. As set forth in a staff analysis of House Bill 1351, which amended section 489.128 in 2006 to include substantially the same provision we now examine in the 2009 version of the statute, "[w]ith certain statutorily specified exceptions, individuals who practice contracting in Florida must be certified (i.e., licensed by the state to contract statewide) by or registered (i.e., licensed by a local jurisdiction and registered by the state to contract work within the geographic confines of the local jurisdiction only) with the CILB or ECLB, as appropriate.” Fla. H.R., Staff Analysis HB 1351 (2006) at 1 (March 28, 2006).


text:
    JUMBO CARGO, INC., Appellant, v. LAN CHILE, S.A., Appellee.
    No. 3D09-3046.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Quintairos, Prieto, Wood & Boyer and James J. McNally, for appellant.
    Kondla & Associates and M. Emelina Mejer-Kondla, for appellee.
    Before GERSTEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

Jumbo Cargo, Inc. (“Jumbo”) is a shipper and freight forwarder. Lan Chile, S.A., (“Lan”) pursuant to an Air Waybill, agreed to ship computer parts and cell phones belonging to Jumbo from Miami, Florida to Guarani International Airport in Paraguay (“Guaraní”). The Air Waybill provided that the shipment was to go from Miami to Guarani. There is no dispute that Jumbo delivered the shipment in good condition to Lan’s Miami warehouse. When delivered to Lan, the shipment was in loose cartons. The cartons were then sorted by Lan and arranged by destination. At some point, a Lan employee mistakenly labeled a portion of the shipment with Brazil as its final destination (the “Misdelivered Goods”). Although the rest of Jumbo’s shipment was transported to Guarani, the Misdelivered Goods were eventually delivered to Brazil with no documentation, and were seized by Brazilian Customs. The Misdelivered Goods remain in Brazil and, as conceded by Jumbo, are “lost.”

Jumbo filed suit against Lan seeking actual damages for the Misdelivered Goods in the amount of $105,297.00, plus the airfreight cost in a three-count complaint alleging breach of contract (Count I), negligence (Count II), and conversion (Count III). After hearing motions for summary judgment filed by both parties, the trial court found that Lan’s liability was limited to 17 Special Drawing Rights per kilogram as set forth in the Air Waybill’s limitation of liability provision (the “Limitation Provision”). Accordingly, the trial court granted Jumbo partial summary judgment on Count I as to liability against Lan, and summary judgment against Jumbo as to Counts II and III. Applying the Limitation Provision, the trial court found that Jumbo was “entitled to a Final Judgment for 688.5 kilograms calculated at 17 Special Drawing Rights per kilogram.” The trial court then entered final judgment awarding Jumbo “the sum of $18,479.34 with costs in the sum of $256.00.” This appeal followed.

We review the trial court’s granting of summary judgment de novo. Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008); Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998).

Federal law governs an air carrier’s ability to limit its liability for loss of goods during shipment. See Nippon Fire & Marine Ins. Co. v. Skyway Freight Sys., Inc., 235 F.3d 53, 59 (2d Cir.2000); T.B.I. Indus. Corp. v. Emery Worldwide, 900 F.Supp. 687, 693 (S.D.N.Y.1995). It is well established that “[i]n construing a contract, the court must give effect to the intent of the parties at the time they contracted.” Blaw-Knox Constr. Equip. Co. v. ALIA: Royal Jordanian Airline, No. 87 C 7866, 1988 WL 53190 at *1 (N.D.Ill. May 13, 1988) (citation omitted). The Air Waybill specified Miami International Airport as the “Airport of Departure” and Guarani as the “Airport of Destination.” The Air Waybill also provided, in part:

It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF. ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS ARE GIVEN HEREON BY [JUMBO], AND [JUMBO] AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTEREDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE. [JUMBO’S] ATTENTION IS DRAWN TO THE NOTICE CONCERNING [LAN’S] LIMITATION OF LIABILITY. Jumbo may increase such limitation of liability by declaring a higher value for carriage and paying a supplemental charge,

(emphasis added). The reverse side of the Air Waybill contains the following Limitation Provision:

4. CARRIER’S LIABILITY FOR LOSS, DAMAGE, OR DELAY.
Except as otherwise provided in [Lan’s] conditions of carriage and applicable tariffs, for carriage which neither the Warsaw Convention nor the Montreal Convention does not apply [sic] [Lan’s] liability shall not exceed 17 Special Drawing Rights per kilogram of the per kilogram monetary limit set out in [Lan’s] tariffs or conditions of carriage for cargo lost, damaged or destroyed, unless a higher value is declared by the shipper and a supplementary charge is paid.

(emphasis added).

Provisions limiting an air carrier’s liability for lost cargo are valid and enforceable if they provide the shipping party a reasonable notice of limited liability and a fair opportunity to purchase higher liability. See Kesel v. United Parcel Servs., Inc., 339 F.3d 849 (9th Cir.2003); Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1198 (9th Cir.1999) (“Limited liability provisions are pri-ma facie valid if the face of the ... waybill ... recites the liability limitation and ‘the means to avoid it.’ The burden then shifts to the shipper to prove that it did not have a ‘fair opportunity’ to purchase greater liability coverage.”) (citations omitted); Deiro v. Am. Airlines, Inc., 816 F.2d 1360 (9th Cir.1987). Accordingly, Lan asserts that because Jumbo had reasonable notice of the limitation of liability and had the opportunity of paying a supplementary charge, it is bound by the terms of the Limitation Provision. We agree. The Limitation Provision “applies in the present situation. The provisions refer to cargo that is ‘lost, [or] damaged..,’ and the circumstances here fall within this language.” Hill Constr. Corp. v. Am. Airlines, Inc., 996 F.2d 1315, 1318 (1st Cir.1993). Moreover,

[a] remedial contract clause, such as this one, is designed to take effect precisely where, as here, the carrier has broken the basic carriage contract. As Judge Kaufman pointed out more than [sixty] years ago,
Only in a case of misdelivery, negligent injury, loss or similar misfortune does a valuation clause come into use. Hence the Federal courts have rightly held that the limitation of liability clause is designed for and does survive a breach of the contract of carriage.

Id. (quoting Lichten v. E. Air Lines, Inc., 87 F.Supp. 691, 697 (S.D.N.Y.1949)). Here, Jumbo has admitted that the Misde-livered Goods are considered “lost.” The Limitation Provision, on its face, applies to damages for goods which are “lost, damaged, or destroyed.” There is nothing in the record to indicate that Jumbo challenged the validity of the Limitation Provision with respect to not having proper notice or the opportunity to procure higher liability at an additional cost. Furthermore, for purposes of finding an exception to the Limitation Provision, we do not find, nor do the parties cite, any cases distinguishing goods which are mislabeled and misdelivered in the course of transport, such as the ones here, from cargo that is simply “lost” in the course of air carriage. Accordingly, we affirm the final judgment and affirm on all other points on appeal.

Affirmed.

      . There is no dispute that the actual damages incurred by Jumbo for the loss of the Misde-livered Goods is $105,297.00.

      . Jumbo argued before the trial court that the Warsaw and Montreal Conventions were inapplicable to the present case. The trial court specifically found that Lan “is not entitled to limit its liability under Warsaw or the Montreal Convention.” Neither party appealed this finding. As such, we do not address the applicability of these conventions here on appeal.