author: LABARGA, J. POLSTON, J.,

text:
    James Earl RIPPY, Petitioner, v. James SHEPARD, Respondent.
    No. SC09-1677.
    Supreme Court of Florida.
    Jan. 19, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Sarah C. Pellenbarg of Bran-nock and Humphries, Tampa, FL, for Petitioner.
    Jennifer Cates Lester and Andrew A. Morey of Dell Graham, P.A., Gainesville, FL, for Respondent.
    Sharon C. Degnan and Caryn L. Bellus of Kubicki Draper, P.A., Miami, FL, on behalf of Florida Defense Lawyers Association, as Amicus Curiae.
   LABARGA, J.

James Earl Rippy seeks review of the decision of the First District Court of Appeal in Rippy v. Shepard, 15 So.3d 921 (Fla. 1st DCA 2009), which held that a farm tractor is not a dangerous instrumentality as a matter of law. In so holding, the district court rejected Rippy’s contentions that, because a farm tractor is a motor vehicle and because it is of such size and character as to be peculiarly dangerous in its operation, a farm tractor is a dangerous instrumentality. The First District’s opinion conflicts with our precedent set forth in Meister v. Fisher, 462 So.2d 1071, 1072 (Fla.1984), where we held that the dangerous instrumentality doctrine can apply to motor vehicles other than automobiles that have the ability to cause serious injury, and Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 636 (1920), where we concluded that the weight, speed, and mechanism of an automobile or motor vehicle make it peculiarly dangerous when in operation. We have jurisdiction based on the misapplication of these decisions. See art. V, § 3(b)(3), Fla. Const.; see also Wallace v. Dean, 3 So.3d 1035, 1040 (Fla.2009) (identifying misapplication of decisions as a basis for express and direct conflict jurisdiction under article V, section 3(b)(3)). As we will explain more fully below, we conclude that a farm tractor is a dangerous instrumentality. Accordingly, we quash the decision of the First District in Rippy. We begin our discussion with an overview of the facts and procedural history of this case.

FACTS AND PROCEDURAL HISTORY

Petitioner James Earl Rippy sued Respondent James Shepard under the dangerous instrumentality doctrine after sustaining injuries caused by Shepard’s farm tractor on December 16, 2004. Shepard subsequently moved to dismiss Rippy’s amended complaint. The trial court granted Shepard’s motion and dismissed the amended complaint with prejudice, finding that a farm tractor is not a dangerous instrumentality under Florida law and that the complaint thus failed to state a cause of action against Shepard.

On appeal, the First District also held that a farm tractor is not a dangerous instrumentality. Rippy, 15 So.3d at 923. In so holding, the First District rejected Rippy’s contention that, because the Legislature defines a farm tractor as a “motor vehicle” and regulates its use, a farm tractor is a dangerous instrumentality. Id. at 922. The district court also rejected Rip-py’s assertion that, because “it is of such size and character as to be peculiarly dangerous in its operation,” a farm tractor is a dangerous instrumentality. Id. at 923. Rippy now challenges the district court’s ruling.

ANALYSIS

The parties in this case dispute whether a farm tractor is a dangerous instrumentality. The issue presents a pure question of law and is thus subject to this Court’s de novo review. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that pure questions of law are reviewed de novo).

Generally speaking, Florida’s dangerous instrumentality doctrine imposes “vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000) (citing S. Cotton Oil Co., 86 So. at 637). The doctrine applies to any “instrumentality of known qualities [that] is so peculiarly dangerous in its operation” as to justify application of this common law principle. S. Cotton Oil Co., 86 So. at 638 (on petition for rehearing).

The dangerous instrumentality doctrine is an old and well-settled rule that can be traced back to English common law. Early in its development, the doctrine applied to objects that “common knowledge and common experience proved to be ... potent sources of danger.” Id. at 631. We first applied the doctrine to automobiles in Southern Cotton Oil Co., where we noted:

[Ojne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.

Id. at 638 (on petition for rehearing). “The liability grows out of the obligation of the owner to have the vehicle, that is not inherently dangerous per se but peculiarly dangerous in its use, properly operated when it is by his authority on the public highway.” Id. at 632 (quoting Anderson v. S. Cotton Oil Co., 73 Fla. 432, 74 So. 975, 978 (1917)).

We have previously explained the purpose and premise of the dangerous instrumentality doctrine as follows:

The dangerous instrumentality doctrine seeks to provide greater financial responsibility to pay for the carnage on our roads. It is premised upon the theory that the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.

Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990). The doctrine is based on “the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.” Meister, 462 So.2d at 1072 (emphasis omitted) (quoting Jordan v. Kelson, 299 So.2d 109, 111 (Fla. 4th DCA 1974)).

When we first applied the dangerous instrumentality doctrine to an automobile in Southern Cotton Oil Co., we examined at length the dangerous character of the automobile as operated on the public highways. S. Cotton Oil Co., 86 So. at 631-33. In his concurring opinion, which the majority adopted, Justice Whitfield observed:

The automobile or motor vehicle is an instrumentality of service, whose weight, speed, and mechanism make it peculiarly dangerous when in operation on public highways.
Among the principles of the common law, that are designed to conserve the public safety, are those that require the exercise of due care in the use on the public highways of instrumentalities that are peculiarly dangerous in their operation, and impose upon the owner of such an instrumentality liability to persons for injuries to them proximately caused by the negligent use of the instrumentality upon the public highways by any one who has the authority or permission of the owner to use or operate it. These principles are applicable to the use of any instrumentality that may be produced by human skill, which materially increases the hazards of travel upon the public highways....

S. Cotton Oil Co., 86 So. at 636 (Whitfield, J., concurring). Importantly, we have since held that the dangerous instrumentality doctrine is not limited to motor vehicles being operated on a public highway and may apply to a motor vehicle operated on private property. See Meister, 462 So.2d at 1073.

Subsequent to our decision in Southern Cotton Oil Co., Florida courts have extended the doctrine to golf carts, trucks, buses, airplanes, tow-motors, and other motorized vehicles. See, e.g., Meister, 462 So.2d at 1071 (golf carts); see also id. at 1072 (recognizing trucks and buses as dangerous instrumentalities); Orefice v. Albert, 237 So.2d 142, 145 (Fla.1970) (airplanes); Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551, 552 (Fla. 3d DCA 1962) (tow-motors). We are now asked to consider whether the dangerous instrumentality doctrine applies to farm tractors. For the reasons that follow, we hold that it does.

A primary factor in determining whether an object is a dangerous instrumentality is whether the object at issue is a motor vehicle. See, e.g., Meister, 462 So.2d at 1072. Clearly, a farm tractor is a motor vehicle as it has been defined as such by the Legislature. For instance, section 316.003(12), Florida Statutes (2004), defines a farm tractor as “[a]ny motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines, and other implements of husbandry.” The Legislature also refers to a farm tractor as a motor vehicle in section 322.01(19), Florida Statutes (2004). Additionally, the Legislature has enacted regulations to ensure the safe operation of farm tractors. For instance, the Legislature requires farm tractors manufactured or assembled after January 1, 1972, to be equipped with “vehicular hazard-warning lights visible from a distance of not less than 1,000 feet to the front and rear in normal sunlight” whenever operated on a highway. § 316.2295(1), Fla. Stat. (2004). Such farm tractors are generally required to be equipped with slow-moving vehicle emblems, as well as lamps and reflectors that meet certain specifications. § 316.2295(2), (5), Fla. Stat. (2004).

The dissent expresses concern that our decision expands the dangerous instrumentality doctrine beyond its original intent, which was to address harm to the public arising from the negligent use of an instrumentality that is peculiarly dangerous in its operation during its primary, rather than occasional, use. Dissenting op. at 309-10. The dissent is correct that no one test is determinative of whether an instrumentality is dangerous. However, the contention in the dissent that this Court’s ruling in Meister — that a golf cart is a dangerous instrumentality — “sets the bar” low, see dissenting op. at 312, and the resulting implication that this has become the one touchstone by which all other in-strumentalities are measured, is incorrect. Further, one point of significance in our decision in Meister is that we clearly held that the fact “[t]hat the vehicle is being operated on the public highways of this state is likewise not required before the dangerous instrumentality doctrine can come into play.” Meister, 462 So.2d at 1073. We quoted with approval in Meister from the decision of the Fourth District Court of Appeal in Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125 (Fla. 4th DCA 1974), where that court stated:

We see neither reason nor logic in the view that a motor vehicle in operation, which is a dangerous instrumentality while being operated upon the public highway, somehow ceases to be a dangerous instrumentality the instant the driver causes it to turn off the public street or highway and onto a private drive or other private property. Although it is most probable that a motor vehicle being operated on private property would be moving at a slower speed than one being operated upon the public street or highway, common sense tells us that in all other respects such vehicle while in motion is equally dangerous to persons and, property no matter where it is operated, and to make the owner’s liability for his permittee’s negligence in the operation of such vehicle depend upon whether the vehicle is on or off the public highway simply leads to absurd results.

Meister, 462 So.2d at 1073 (quoting Reid, 295 So.2d at 129) (emphasis added).

This same logic leads to the inescapable conclusion that even though a tractor is most commonly operated on farm property, it is not solely operated in that context. Tractors are also operated in road right-of-way maintenance, commercial landscaping, and in construction settings. It is an instrumentality often seen on public highways and rights-of-way, performing these varied services. Moreover, it is common knowledge that tractors vary in size but are often powerful vehicles of such size and speed that wherever they are operated, they can be dangerous to those persons who come into contact with them. Just as we said in Meister that “a golf cart when negligently operated on a golf course, has the same ability to cause serious injury as does any motor vehicle operated on a public highway,” Meister, 462 So.2d at 1073, it can be said that a tractor when negligently operated on private property has the same ability to cause serious injury as does any motor vehicle operated on a public highway. Our decision today is in accord with these criteria and is not based, as the dissent suggests, simply on “a comparison between the device at issue and a golf cart.” Dissenting op. at 312.

Based on “common knowledge and common experience,” there is no doubt that a farm tractor is peculiarly dangerous in its operation so as to justify the imposition of vicarious liability. See S. Cotton Oil Co., 86 So. at 631, 638. The weight, speed, and mechanism of farm tractors render their negligent use peculiarly dangerous to others. Furthermore, farm tractors frequently operate along state roads and other public areas, thereby subjecting the public to danger of injury. Cf. Harding v. Allen-Laux, Inc., 559 So.2d 107, 108 (Fla. 2d DCA 1990) (holding that a forklift that was often operated along the edge of a state road was a dangerous instrumentality under the facts of the case). Accordingly, given their “potent source of danger,” there can be no question that a farm tractor is an instrumentality that materially increases the hazards of travel. Id. at 631, 636. We therefore hold that a farm tractor is a dangerous instrumentality as a matter of law.

Based on the foregoing, we quash the decision of the First District Court of Appeal in Rippy v. Shepard, 15 So.3d 921 (Fla. 1st DCA 2009), and remand the case to the First District for proceedings consistent herewith.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.

POLSTON, J.,

dissenting.

I respectfully dissent. The majority expands the dangerous instrumentality doctrine, a common law doctrine unique to Florida that was initially created to address the harm to the public arising from the negligent use of an instrumentality that is peculiarly dangerous in its operation. See S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920) (on petition for rehearing). But the cases decided by this Court and the district courts of appeal have failed to adhere to this legal standard in a way that may be predictably applied, and the doctrine has become arbitrary.

The application of the doctrine has generally been based on the danger to the public caused by the primary use of the instrumentality rather than by where it may occasionally be operated. For instance, this Court has held that golf carts are dangerous instrumentalities because of their use on public golf courses, which thereby threaten the safety of the public on those courses. See Meister v. Fisher, 462 So.2d 1071 (Fla.1984). Further, an automobile has been held to be a dangerous instrumentality because of its use on roadways and potential harm to the public there. See S. Cotton, 86 So. 629.

In this case, based upon the doctrine’s focus on the primary use of the instrumentality and the resulting danger to the public, the First District properly observed that farm tractors “are neither used as a mode of transportation nor routinely operated in public places as to pose a sufficient danger to the public.” Rippy v. Shepard, 15 So.3d 921, 928 (Fla. 1st DCA 2009). In contrast, the majority erroneously finds the doctrine applicable even though farm tractors are primarily used on private property, not around the public, and the farm tractor in this case was being used on private property.

I.

In 1920, this Court set forth the Florida’s dangerous instrumentality doctrine as follows:

[O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.

S. Cotton, 86 So. at 638. The doctrine “seeks to provide greater financial responsibility to pay for the carnage on our roads” and is “premised upon the theory that the one who originates the danger by entrusting the [instrumentality] to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.” Kraemer v. Gen. Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990). Further, once a device is deemed a dangerous instrumentality, it retains that legal characterization no matter where it is operated. See Meister, 462 So.2d at 1073; Reid v. Associated Eng’g of Osceola, Inc., 295 So.2d 125, 129 (Fla. 4th DCA 1974).

It is important to note that a dangerous instrumentality is not synonymous with a dangerous per se item. This Court explained the difference as follows:

Wild animals and high explosives are dangerous per se; that is, they may inflict injury without the immediate application of human aid or instrumentality. Neither a locomotive, a trolley car, nor an automobile is dangerous per se— by or through itself — in that neither can inflict injury to a person, except by its use or operation. A locomotive in the roundhouse, a trolley car in the barn, an automobile in a garage, are almost as harmless as canary birds; but in operation they are dangerous instrumentalities ....

S. Cotton, 86 So. at 632.

While dangerous instrumentalities are not dangerous per se, the dangerous instrumentality doctrine borrows the concept of strict liability from the common law dangerous per se doctrine. See S. Cotton, 86 So. at 630-32. Under the dangerous instrumentality doctrine, “[l]iability of the owner is said to be ‘strict’ because a plaintiff need not prove that an owner negligently entrusted the vehicle to its operator for liability to attach.” Burch v. Sun State Ford, Inc., 864 So.2d 466, 470 (Fla. 5th DCA 2004) (relying on S. Cotton, 86 So. at 630-32). But, unlike the common law dangerous per se doctrine, the plaintiff in a dangerous instrumentality action “must prove some fault, albeit on the part of the operator, which is then imputed to the owner under vicarious liability principles.” Id.

This concept of vicarious liability is borrowed from master-servant common law. See S. Cotton, 86 So. at 632 (“The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and if that care and attention be about the management and custody of dangerous appliances, the master cannot shift the responsibility connected with the custody of such instruments to the servant to whom they have been entrusted, and escape liability therefor.”) (quoting Barmore v. Vicksburg, S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 214 (1904)). However, contrary to master-servant law, the dangerous instrumentality doctrine “imputes liability to an owner even when the operator disobeys restrictions on the use of the [instrumentality], unless the disobedience rises to the level of theft or conversion.” Burch, 864 So.2d at 470 (citing Hertz Corp. v. Jackson, 617 So.2d 1051, 1054 (Fla.1993); Susco Car Rental Sys. of Fla. v. Leonard, 112 So.2d 832, 836 (Fla.1959)).

The dangerous instrumentality doctrine is unique to the State of Florida. See Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000) (noting that the doctrine is unique to Florida). “Only the courts of Florida have gone the length of saying that an automobile is a ‘dangerous instrumentality,’ for which the owner remains responsible when it is negligently driven by another.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 73, at 524 (5th ed. 1984).

Significantly, the doctrine lacks any precise legal standards that courts may apply when determining whether an instrumentality is a dangerous instrumentality. See Canull v. Hodges, 584 So.2d 1095, 1097 (Fla. 1st DCA 1991) (“The criteria used by the court in the two opinions in the Southern Cotton Oil cases have been selectively abandoned or utilized to expand the list of instruments deemed to be dangerous .... ”). Courts often consider whether the device falls within the statutory definitions of a motor vehicle. See, e.g., Meister, 462 So.2d at 1072; Rippy, 15 So.3d at 922-23; Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551, 552 (Fla. 3d DCA 1962). However, whether the item is a motor vehicle is not controlling. See Edwards v. ABC Transp. Co., 616 So.2d 142 (Fla. 5th DCA 1993) (holding that a trailer is not a dangerous instrumentality even though it meets the statutory definition of a motor vehicle); Harding v. Allen-Laux, Inc. 559 So.2d 107 (Fla. 2d DCA 1990) (holding that a forklift is a dangerous instrumentality even though it is not statutorily a motor vehicle). Further, courts often, but not always, consider the extent to which the Legislature has regulated the item. Compare Meister, 462 So.2d at 1072; S. Cotton, 86 So. at 634; Rippy, 15 So.3d at 922-23; with Harding, 559 So.2d at 108.

In particular, courts vary tremendously in how they assess the danger the instrumentality at issue poses to the public, which is a key question in determining the applicability of the doctrine. Courts sometimes consider the number and seriousness of accidents caused by the device. See S. Cotton, 86 So. at 633 (listing figures for the number of deaths caused by automobiles); Meister, 462 So.2d at 1073 (quoting expert witness’ statement that “the types of accidents caused by the operation of the carts are due to the particular design features of the carts and are identical to those involving other motor vehicle accidents ”); Festival Fun Parks, LLC v. Gooch, 904 So.2d 542, 543 (Fla. 4th DCA 2005) (noting testimony that “less than 3% of all [concession go-kart] riders have ‘incidents’ and that less than 1% are injured seriously enough to require emergency room treatment”). And in a nod to the dangerous per se common law roots of the doctrine, some courts analyze the particular characteristics of the device, such as its speed, size, and lifting ability. See Festival Fun Parks, 904 So.2d at 543 (noting that the top speeds of concession go-karts range from 14 to 20 miles per hour); Canull, 584 So.2d at 1097-98 (noting that road graders cannot lift items or people high off the ground); Harding, 559 So.2d at 108 (noting that a forklift is a large vehicle with “protruding steel tusks”).

Additionally, in assessing the instrumentality’s danger to the public, some courts consider whether the instrumentality is routinely operated in close proximity to the public. See Meister, 462 So.2d at 1073 (“Florida’s tremendous tourist and retirement communities make golf carts and golf courses extremely prevalent in this state.”); Rippy, 15 So.3d at 923 (explaining that farm tractors are not routinely operated in public places). Other courts consider the location of the instrumentality when the injury involved in the case occurred. See Harding, 559 So.2d at 108 (considering the fact that the forklift was operating on a public highway at the time); Eagle Stevedores, 145 So.2d at 552 (noting that the tow-motor caused the injury on a public street).

Furthermore, because the Court’s prior ruling that a golf cart is a dangerous instrumentality “sets the bar” so low, the decision of whether a device is a dangerous instrumentality can even come down to a comparison between the device at issue and a golf cart. For example, the Second District in Harding, 559 So.2d at 108, conducted the following analysis:

If an owner of a golf cart is liable under Florida’s dangerous instrumentality doctrine for the golf cart’s operation on a golf course by a lessee, Meister v. Fisher, 462 So.2d 1071 (Fla.1984), surely the owner of this larger, four-wheel vehicle with protruding steel tusks is liable under this doctrine for its operation on a public highway by a lessee.

In other words, does the instrumentality at issue appear to be more dangerous than a golf cart?

Contrary to the majority’s discussion of my dissent, I do not believe a golf cart “has become the one touchstone by which all other instrumentalities are measured.” Majority op. at 308. Instead, I believe the dangerous instrumentality doctrine currently lacks any precise legal standards, which makes its application arbitrary and which creates odd comparisons in some instances to golf carts. As a result, the doctrine has lost its original meaning and purpose.

Given the lack of a uniform set of factors courts consider when deciding whether to apply the dangerous instrumentality doctrine, I disagree with the majority’s con-elusion that the First District misapplied the doctrine in Rippy. See majority op. at 306. In fact, contrary to the majority’s analysis, the First District actually considered the underlying question of the doctrine, namely whether the instrumentality is so peculiarly dangerous in its operation that it poses a significant danger to the public. See S. Cotton, 86 So. at 638. The First District properly considered this question when it explained that farm tractors are not routinely operated in public areas. Rippy, 15 So.3d at 923. In other words, how can an instrumentality be deemed a sufficient danger to the public to justify the application of the dangerous instrumentality doctrine when the instrumentality is not generally operated near the public so as to pose a danger to the public? While I agree with the majority that farm tractors operated on roadways present a danger to the public, that is not the primary use for farm tractors, as noted by the First District, and location of occasional use is not a determining factor. See Meister, 462 So.2d at 1073; Reid, 295 So.2d at 129.

The majority’s decision in this case exemplifies the problems associated with a limitless doctrine that lacks legal standards. For instance, the majority admits that farm tractors are “most commonly operated on farm property” away from the public. Majority op. at 309. However, the majority emphasizes that farm tractors can occasionally be operated in closer proximity to the public when conducting road maintenance, landscaping, and construction activities. Id. Because the majority now rules that the device at issue can be used around the public sometimes but not primarily, there are no limits on what can fall under the dangerous instrumentality doctrine in the future.

II.

In conclusion, if this Court had jurisdiction, I would approve the First District’s application of the dangerous instrumentality doctrine in Rippy because the First District properly analyzed the ultimate question of whether a farm tractor is peculiarly dangerous in its operation as to pose a significant danger to the public. With the majority’s expansive application of the doctrine to farm tractors that are not primarily used around the public, and was not being used around the public in this case, the doctrine seems to have lost its original meaning. What instrumentality would not seem more dangerous than a golf cart?

Accordingly, the Florida Legislature may wish to address this common law doctrine that is unique to Florida and adopt a more predictable legal standard for imposing vicarious liability for the negligent operation of instrumentalities. I respectfully dissent.

CANADY, C.J., concurs.

      . Additionally, because there is no conflict between the First District's decision in Rippy and the decisions cited by the petitioner (or those cited by the majority), this Court does not have jurisdiction in this case. See art. V, § 3(b)(3), Fla. Const. The decisions applied the dangerous instrumentality doctrine in the context of completely different pieces of machinery. See Meister v. Fisher, 462 So.2d 1071 (Fla.1984) (holding that a golf cart is a dangerous instrumentality); S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920) (holding that an automobile is a dangerous instrumentality); Rippy v. Shepard, 15 So.3d 921 (Fla. 1st DCA 2009) (holding that a farm tractor is not a dangerous instrumentality); Harding v. Allen-Laux, Inc., 559 So.2d 107 (Fla. 2d DCA 1990) (holding that a forklift is a dangerous instrumentality). The varying conclusions regarding the particular pieces of machinery involved in these decisions, however, contradict a common sense understanding of what is dangerous and demonstrate the arbitrary nature of the doctrine.


source: Caselaw Access Project

author: POLSTON, J.

license: Public Domain

text:
    Diane PETTY, et al., Petitioners, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Respondent.
    No. SC10-2097.
    Supreme Court of Florida.
    Jan. 19, 2012.

      Bryan S. Gowdy and Jessie L. Harrell of Creed and Gowdy, P.A., Jacksonville, FL; and Bob G. Freemon and Ron A. Hobgood of Freemon and Miller, P.A., Tampa, FL, for Petitioners.
    G. William Bissett, Jr. of Kubicki Draper, P.A., Miami, FL, and Courtney A. Um-berger of Kubicki Draper, P.A., Tampa, FL; and Dorothy Venable Difiore of Haas, Lewis, Difiore and Amos, Tampa, FL, for Respondent.
    Jeffrey M. Liggio, West Palm Beach, FL, and Perry Tanksley, Sarasota, FL, on behalf of Florida Justice Association; Alan S. Wachs, Chris T. Harris, and Michael M. Giel of Volpe, Bajalia, Wickes, Rogerson and Wachs, P.A., Jacksonville, FL, on behalf of William and Annette Sturdivant; Eric S. Scott, Tallahassee, FL, on behalf of Florida Department of Financial Services, Division of Rehabilitation and Liquidation; Maria Elena Abate, Fred E. Karlinsky, and Adam S. Rubenfield of Colodny, Fass, Talenfeld, Karlinsky and Abate, P.A., Fort Lauderdale, FL, on behalf of Florida Property and Casualty Association (FPCA), and N. Hope Keating of Green-berg Traurig, P.A., Tallahassee, FL and James A. Friedman of Godfrey and Kahn, S.C., Madison, Wisconsin, on behalf of The National Conference of Insurance Guaranty Funds, as Amici Curiae.
   POLSTON, J.

We review the decision of the Second District Court of Appeal in Florida Insurance Guaranty Ass’n v. Petty, 44 So.3d 1191 (Fla. 2d DCA 2010), which certified conflict with the decision of the Third District Court of Appeal in Florida Insurance Guaranty Ass’n v. Soto, 979 So.2d 964 (Fla. 3d DCA 2008). Because Petty’s attorney’s fee award pursuant to section 627.428(1), Florida Statutes (2008), is not within the coverage of her insurance policy, it is not a covered claim under section 631.54(3), Florida Statutes (2008), that the Florida Insurance Guaranty Association (FIGA) must pay. Therefore, we approve the decision of the Second District.

I. Background

The Second District explained the background of this case as follows:

At the time [Hurricane Charley] damage[d] Petty’s home in August 2004, Florida Preferred Property Insurance Company (Florida Preferred) insured the home. After Petty received partial payment for some of the damages sustained, she demanded an appraisal to resolve the dispute concerning the value of the covered loss. Florida Preferred refused to submit to the appraisal process, and Petty filed suit to compel an appraisal. An appraisal was eventually completed, and the award filed with the court indicated that Florida Preferred owed Petty more money under the policy terms. Petty filed a motion to confirm the award, a motion for entry of a final judgment, and a motion for an award of attorney’s fees under section 627.428. Florida Preferred paid more insurance benefits but shortly thereafter became insolvent, and an automatic stay was entered in the lawsuit.
On May 30, 2008, Petty filed a motion to lift the stay, reopen the case, and substitute [the Florida Insurance Guaranty Association (FIGA) ] as the defendant. FIGA was served with the complaint and, ultimately, the parties stipulated that the only issue that remained unresolved was whether FIGA could be required to pay Petty’s attorney’s fees and costs incurred in the litigation with Florida Preferred....
The trial court determined that Florida Preferred’s payment of the appraisal award to Petty constituted a confession of judgment by the insurer and thus invoked the mandatory attorney’s fee provisions of section 627.428. The court recognized that under section 631.57(1), FIGA was “obligated to the extent of the covered claims” that existed before the adjudication of insolvency. Relying in part upon Soto, the trial court determined that the right to fees under section 627.428 was a covered claim [that FIGA must pay] in this case.

Petty, 44 So.3d at 1192-93.

On appeal, the Second District reversed. Id. at 1195. Because Petty’s section 627.428(1) fee award was not based upon a coverage provision of Petty’s underlying insurance policy, the Second District held that the fee award was not within the coverage of Petty’s policy and was not a covered claim that FIGA must pay under section 631.54(3), Florida Statutes. Id. The Second District certified conflict with the Third District’s decision in Soto, 979 So.2d at 966, which held that a section 627.428(1) fee was a covered claim under section 631.54(3) because the insurance policy at issue, as a matter of law, was subject to the obligations of section 627.428(1).

II. Analysis

We agree with the Second District that Petty’s section 627.428(1) fee award, which is not within the coverage of her underlying insurance policy, is not a covered claim that FIGA must pay.

Section 627.428(1) states:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

This statute provides that an insured will be entitled to an attorney’s fee award when coverage is disputed and the insured prevails. See Pepper’s Steel & Alloys, Inc. v. United States, 850 So.2d 462, 465 (Fla.2003). And, as we have previously stated, the purpose of this statute is “to discourage insurance companies from contesting valid claims, and to reimburse insureds for them attorney’s fees incurred when they must enforce in court their contract with the insurance company.” Id. (quoting Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 411 n. 10 (Fla.1999)).

Section 631.57(l)(a), Florida Statutes (2008) (emphasis added), provides that FIGA shall “[b]e obligated to the extent of the covered claims existing” prior to an insurer’s adjudication of insolvency. Section 631.54(3) defines a covered claim as:

an unpaid claim, including one of unearned premiums, which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer and the claimant or insured is a resident of this state at the time of the insured event or the property from which the claim arises is permanently located in this state.

A plain reading of section 631.54(3) indicates that a covered claim must meet two distinct requirements: (1) it must arise, or originate, from an insurance policy and (2) it must be within the coverage of, or be included within the risks taken on and losses protected against in, an insurance policy.

The parties do not contest that Petty’s section 627.428(1) fee award arose from her underlying insurance policy. In order to recover from FIGA, however, Petty’s claim for fees must also be within the coverage of her underlying insurance policy. See § 631.54(3), Fla. Stat. Her underlying insurance policy does not expressly provide coverage for her section 627.428(1) fee award.

Petty argues that her fee award is impliedly covered by her underlying policy because Florida law subjects every Florida insurance policy to section 627.428(1). See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993) (“[T]he terms of section 627.428 are an implicit part of every insurance policy issued in Florida.”). But, as the Second District stated below, “the fact that section 627.428 is an implicit part of an insurance policy does not mean that the insured’s claim against the insurer for fees and costs is part of the policy’s ‘coverage.’ ” Petty, 44 So.3d at 1194. There is a clear difference between an obligation to pay fees that is imposed by operation of law upon a party due to its behavior under the insurance contract and an obligation imposed upon a party by an express provision for which the party contracted. Section 627.428(1) imposes the obligation to pay a fee award upon an insurer that has wrongfully contested an insured’s valid claim. It does not alter the coverage provisions of the insurance contract itself.

III. Conclusion

Because Petty’s underlying insurance policy does not expressly provide coverage for a section 627.428(1) fee award, it is not a covered claim under section 631.54(3) that FIGA must pay. Accordingly, we approve the Second District’s decision in Petty, and disapprove the Third District’s decision in Soto.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . As a general rule, statutory construction begins with the plain meaning of the statute. See Fla. Birth-Related. Neurological Injury Comp. Ass’n v. Dep't of Admin. Hearings, 29 So.3d 992, 997-98 (Fla.2010). Where a statute’s language is plain and unambiguous, its plain meaning will control and further statutory construction is not necessary. Id.

      . Petty argues that a claim for unearned premiums would not be covered unless a policy expressly included a coverage provision guaranteeing that the insured could recover any unearned premiums. However, section 631.54(3) expressly includes claims for unearned premiums in the definition of a covered claim. No similar provision is made for attorney’s fees.

      . In contrast, Florida’s Workers' Compensation Law requires every workers’ compensation insurance policy to include coverage for attorney's fees entered against the insured employer under section 440.34, Florida Statutes (2008). Specifically, section 440.42(1), Florida Statutes (2008), provides that ”[e]very policy or contract of insurance issued under authority of this chapter shall contain ... [a] provision to carry out the provisions of s. 440.41.” Section 440.41, Florida Statutes (2008), entitled "Substitution of carrier for employer,” explains that the insurance carrier is liable for the obligations and duties that chapter 440, Florida Statutes (2008), imposes upon the employer. One such obligation and duty that, therefore, must be included in the insurance policy is attorney's fees under section 440.34. See Fla. Ins. Guar. Ass’n v. Gustinger, 390 So.2d 420, 421 (Fla. 3d DCA 1980) (stating that a section 440.34 attorney’s fee award was a covered claim ”[s]ince the workmen’s compensation policy issued by [the carrier] to [the employer] obviously insured against the employer’s responsibility to pay the claimant’s attorney’s fees”); Dilme v. SBP Service, Inc., 649 So.2d 934, 935 (Fla. 1st DCA 1995) (holding a section 440.34 fee award to be within the coverage of the employer’s workers' compensation insurance policy); What An Idea, Inc. v. Sitko, 505 So.2d 497, 504-05 (Fla. 1st DCA 1987) (same).


author: PER CURIAM.

text:
    In re IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS-AMENDMENTS TO the FLORIDA RULES OF CIVIL PROCEDURE; The FLORIDA RULES OF JUDICIAL ADMINISTRATION; The FLORIDA RULES OF CRIMINAL PROCEDURE; The FLORIDA PROBATE RULES; The FLORIDA SMALL CLAIMS RULES; The FLORIDA RULES OF APPELLATE PROCEDURE; and The FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC08-2443.
    Supreme Court of Florida.
    Jan. 19, 2012.
    Judith L. Kreeger, Chair, the Florida Courts Technology Commission, Senior Judge, Eleventh Judicial Circuit, Miami, FL, Paul Regensdorf, Chair, Subcommittee on Access to Court Records, and Judge Melanie G. May, Fourth District Court of Appeal, West Palm Beach, FL; Ashley McCorvey Myers, Chair, McCorvey and Myers, and Steven Patrick Combs, Past Chair, Family Law Rules Committee, Jacksonville, FL, for Petitioners.
    Frank T. Pilotte, Past Chair, Florida Probate Rules Committee, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Russell Robert Winer, St. Petersburg, FL; Robyn L. Vines, Past Chair, Family Law Rules Committee, Fort Lauderdale, FL, Carol Jean LoCicero and Deanna K. Shullman of Thomas, LoCicero and Bralow, PL, Tampa, FL; John S. Mills, Past Chair, Appellate Court Rules Committee, Jacksonville, FL; Judge Robert W. Lee, Past Chair, Small Claims Rules Committee, Seventeenth Judicial Circuit, Fort Lauderdale, FL; Mark Romance, Past Chair, Civil Procedure Rules Committee, Miami, FL; Jack A. Moring, Past Chair, Family Law Rules Committee, Crystal River, FL; John G. Crabtree, Past Chair, Appellate Court Rules Committee, Key Biscayne, FL; Fleur J. Lobree, Past Chair, Criminal Procedure Rules Committee; Dale R. Sanders of Lyons and Sanders, Judge Renee Gold-enberg, Seventeenth Judicial Circuit, Fort Lauderdale, FL, Responding with comments.
    Robert T. Strain, Past Chair, Criminal Procedure Rules Committee, Tampa, FL; Keith H. Park, on behalf of the Rules of Judicial Administration Committee, West Palm Beach, FL, Donald E. Christopher, Chair, Civil Procedure Rules Committee, Orlando, FL, and Jeffrey S. Goethe, Chair, Florida Probate Rules Committee, Bra-denton, FL, Also attended oral arguments.
   PER CURIAM.

In this case, the Court previously adopted rule and form amendments intended to minimize the amount of unnecessary personal information included in documents filed with the courts. See In re Implementation of Comm. on Privacy & Court Records Recommendations, 78 So.3d 1045 (Fla.2011). Because the amendments to the Florida Supreme Court Approved Family Law Forms were not published for comment prior to their adoption, interested persons were given sixty days from the date of the opinion to “file comments with the Court addressing only the amendments to the approved forms.” In re Implementation of Comm. on Privacy & Court Records Recommendations, - So.3d -, -, 2011 WL 2566360 (Fla.2011), revised, 78 So.3d 1045, 2011 WL 5829543 (Fla.2011). Two comments were filed. One comment addresses an approved form that was amended. The other addresses rule amendments and an approved form that was not amended. We address "only the comment on the amended form, which was filed by Judge Renee Goldenberg of the Seventeenth Judicial Circuit. Judge Goldenberg urges that the instructions for Form 12.932 (Certificate of Compliance with Mandatory Disclosure) be amended to provide better notice to self-represented litigants of the limitations on filing personal information unless it is absolutely essential. We agree.

After considering the comments, we further amend Florida Supreme Court Approved Family Law Form 12.932 (Certificate of Compliance with Mandatory Disclosure) and the instructions for that form. We add the following caveats to Form 12.932 and the instructions for that form, respectively:

ONLY THE ORIGINAL OF THIS COMPLETED FORM IS FILED WITH THE COURT. EXCEPT FOR THE FINANCIAL AFFIDAVIT AND CHILD SUPPORT GUIDELINES WORKSHEET, NO DOCUMENTS SHALL BE FILED IN THE COURT FILE WITHOUT A PRIOR COURT ORDER. THE DOCUMENTS LISTED BELOW ARE TO BE GIVEN TO THE OTHER PARTY.
ONLY THE ORIGINAL OF THE COMPLETED FORM IS FILED WITH THE COURT. EXCEPT FOR THE FINANCIAL AFFIDAVIT AND CHILD SUPPORT GUIDELINES WORKSHEET, NO DOCUMENTS SHALL BE FILED IN THE COURT FILE WITHOUT A PRIOR COURT ORDER. THE DOCUMENTS LISTED ON THE FORM ARE TO BE GIVEN TO THE OTHER PARTY.

Including these caveats is consistent with the inclusion of similar caveats in other family law forms and instructions. See, e.g., Fla. Fam. L.R.P. Form 12.930(b) (Standard Family Law Interrogatories for Original or Enforcement Proceedings); Fla. Fam. L.R.P. Form 12.930(c) (Standard Family Law Interrogatories for Modification Proceedings); Fla. Fam. L.R.P. Form 12.930(d) (Notice of Service of Answers to Standard Family Law Interrogatories).

Accordingly, we amend Florida Supreme Court Approved Family Law Form 12.932 and its instructions, as set forth in the appendix to this opinion, fully engrossed for immediate use. Also included in the appendix, fully engrossed for immediate use, is a corrected version of the Child Support Guidelines Chart contained in the Instructions for Florida Family Law Rules of Procedure Form 12.902(e) (Child Support Guidelines Worksheet). The forms also can be accessed and downloaded from this Court’s website at www.flcourts.org/ gen_public/family/forms_rules/index.shtml. By amending the forms, we express no opinion as to their correctness or applicability. The amendments shall be effective immediately upon the release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.902(e), CHILD SUPPORT GUIDELINES WORKSHEET (01/12)

When should this form be used?

You should complete this worksheet if child support is being requested in your case. If you know the income of the other party, this worksheet should accompany your financial affidavit. If you do not know the other party’s income, this form must be completed after the other party flies his or her financial affidavit, and serves a copy on you.

This form should be typed or printed in black ink. You should file the original with the clerk of the circuit court in the county where your case is filed and keep a copy for your records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party in your case, if it is not served on him or her with your initial papers.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see section 61.30, Florida Statutes.

Special notes ...

If you want to keep your address confidential because you are the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence, do not enter the address, telephone, and fax information at the bottom of this form. Instead, file a Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(h).

The chart below contains the guideline amounts that you should use when calculating child support. This amount is based on the number of children and the combined income of the parents, and it is divided between the parents in direct proportion to their income or earning capacity. From time to time, some of the amounts in the child support guidelines chart will change. Be sure you have the most recent version of the chart before using it.

Because the guidelines are based on monthly amounts, it may be necessary to convert some income and expense figures from other frequencies to monthly. You should do this as follows:

If payment is twice per month Payment amount x 2 Monthly amount
If payment is every two weeks Payment amount x 26 = Yearly amount due
Yearly amount + 12 = Monthly amount
Yearly amount due If payment is weekly Weekly amount I! 03 tO X
Monthly amount Yearly amount II 03 T-l -I-

If you or the other parent request that the court award an amount that is different than the guideline amount, you must also complete and attach a Motion to Deviate from Child Support Guidelines, Florida Supreme Court Approved Family Law Form 12.943.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you nil out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

CHILD SUPPORT GUIDELINES CHART

NOTICE OF FILING CHILD SUPPORT GUIDELINES WORKSHEET

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.932, CERTIFICATE OF COMPLIANCE WITH MANDATORY DISCLOSURE (01/12)

When should this form be used?

Mandatory disclosure requires each party in a dissolution of marriage case to provide the other party with certain financial information and documents. These documents must be provided by mail or hand delivery to the other party within 45 days of service of the petition for dissolution of marriage or supplemental petition for modification on the respondent. The mandatory disclosure rule applies to all original and supplemental dissolution of marriage cases, except simplified dissolution of marriage cases and cases where the respondent is served by constructive service and does not answer. You should use this form to notify the court and the other party that you have complied with the mandatory disclosure rule.

Each party must provide the other party with the documents listed in section 2 of this form if the relief being sought is permanent regardless of whether it is an initial or supplemental proceeding. ONLY THE ORIGINAL OF THE COMPLETED FORM IS FILED WITH THE COURT. EXCEPT FOR THE FINANCIAL AFFIDAVIT AND CHILD SUPPORT GUIDELINES WORKSHEET, NO DOCUMENTS SHALL BE FILED IN THE COURT FILE WITHOUT A PRIOR COURT ORDER. THE DOCUMENTS LISTED ON THE FORM ARE TO BE GIVEN TO THE OTHER PARTY. If your individual gross annual income is under $50,000, you should complete the Family Law Financial Affidavit (Short Form), Florida Family Law Rules of Procedure Form 12.902(b). If your individual gross annual income is $50,000 or more, you should complete the Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(c).

In addition, there are separate mandatory disclosure requirements that apply to temporary financial hearings, which are listed in section 1 of this form. The party seeking temporary financial relief must serve these documents on the other party with the notice of temporary financial hearing. The responding party must either deliver the required documents to the party seeking temporary relief on or before 5:00 p.m., 2 business days before the hearing on temporary relief, or mail (postmark) them to the other party seeking temporary relief 7 days before the hearing on temporary financial relief. Any documents that have already been served under the requirements for temporary or initial proceedings, do not need to be reserved again in the same proceeding. If a supplemental petition is filed, seeking modification, then the mandatory disclosure requirements begin again.

This form should be typed or printed in black ink. After completing this form, you should file the original with the clerk of the circuit court in the county where your case is filed and keep a copy for your records. A copy of this form must be mailed or hand delivered to any other party in your case.

What should I do next?

After you have provided the other party all of the financial information and documents and have filed this form certifying that you have complied with this rule, you are under a continuing duty to promptly give the other party any information or documents that change your financial status or that make the information already provided inaccurate. You should not file with the clerk any of the documents listed in the certificate of compliance other than the financial affidavit and child support guidelines worksheet. Refer to the instructions regarding the petition in your case to determine how you should proceed after filing this form.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For further information, see rule 12.285, Florida Family Law Rules of Procedure.

Special notes ...

You may provide copies of required documents; however, the originals must be produced for inspection if the other party requests to see them.

Although the financial affidavits are based on individual gross income, either party may ask the other party to complete the Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(c), by serving the appropriate interrogatory form. (See Standard Family Law Interrogatories, Florida Family Law Rules of Procedure Form 12.930(b) (original proceedings) or (c) (modification proceedings)).

Any portion of the mandatory disclosure rule may be modified by order of the judge or agreement of the parties. Therefore, you and your spouse may agree that you will not require each other to produce the documents required under the mandatory disclosure rule. This exception does not apply to the Financial Affidavit, Family Law Rules of Procedure Form 12.902(b) or (c), which is required in all cases and cannot be waived.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

a. _finanoal Affidavit

( ) Florida Family Law Rules of Procedure Form 32.902(b) (short farm)

( ) Florida Family Law Rules of Procedure Form 12.902(c) (long form)

b _( ) All personal (1M0) federal and stale Income tax returns, gift tax returns, and intangible personal property tax returns for the preceding 3 years;

( ) IRS forms W-2, 1099, and K 1 for the past year because the income tax return for the past year has not been prepared

c. _Pay stubs or other evidence of earned income for the 3 months before the service of the fmanrlal affidavit.

d. _A statement Identifying the source and amount of all income for the 3 months before the service of the financial affidavit, if not reflected on the pay stubs produced

e _All loan applications and financial statements prepared for any purpose or used for any purpose within the 12 months preceding the service of the financial affidavit

f. _All deeds to real estatr In which I presently own or owned an interest within the past J years. All promissory notes In which I presently own or owned an interest within the last 12 months. All present leases in which l own an interest.

g _All periodic statements for the last 3 months for ail checking accounts and for the last year for all savings accounts, money market funds, certificates of deposit, etc.

h__ AJI brokerage account statements for the last 12 months.

i. _Most recent statement for any pension, profit sharing, deferred compensation, or retirement plan (for example, IRA. 401(k), 403(b), SEP, KEOGH, etc.) and summary plan description for any such plan in which I am a participant or alternate payee

|. _The declaration page, the last periodic statement, and the certificate for any group insurance for all life insurance policies Insuring my life or the life of me or my spouse.

k. _All health and dental insurance cards covering either me or my spouse and/or our dependent child(ren).

l. _ Corporate, partnership, and trust tax returns for the last 3 tax years, in which I have an ownershio or interest greater than or equal to 3094.

rn. _ All credit card and charge account statements and other records showing my (our) indebtedness as of the date of the filing of this action and for the prior 3 months. A/I promissory notes on which I presently owe or owned within the past year All lease agreements I presently owe.

n. _All premarital and marital agreements between the parties to this case.

o._It a modification proceeding, all wrtten agreements entered into between the parties at any time since the order to be modified was entered.

p._All documents and tangible evidence relating to claims for an unequal distribution of marital property, enhancement or appreciation in nonmarital property, or nonmarital status of an asset or debt.

q _Any court order directing that l pay or receive spousal support (alimony) or child support.

I certify that a copy of this document was |Check one only) ( ) mailed ( ) faxed and mailed ( ) hand delivered to the person(s) listed below on {date)_.

Florida Fdmily Law Rules of Procedure Form 12.932. Certificate of Compliance with Mandatory Disclosure (01/12)

I understand that I am swearing or affirming under oath to the accuracy of my compliance with the mandatory disclosure requirements of Fla. Fam. L R. P. 12.285 and that, unless otherwise Indicated with specificity, this disclosure Is complete. I further understand that the punishment for knowingly making a false statement or Incomplete disclosure includes Tines and/or imprisonment.

Florida Family Law Rules of Procedure Form 12 ')32, Certificate ot Compliance with Mandatory Disclosure (01/12)

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.


author: SALTER, J. PER CURIAM. SHEPHERD, J.,

text:
    Sonia GONZALEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D09-2259.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Order Denying Rehearing En Banc June 29, 2011.
    Sonia Gonzalez in proper person.
    M. Elaine Howard, for appellees.
    Before WELLS, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

ON MOTION FOR REHEARING

On consideration of the appellee’s motion for rehearing and motion for rehearing en banc, the Court grants the motion for rehearing, withdraws its opinion issued February 17, 2010, and substitutes the following opinion.

Sonia Gonzalez, a non-lawyer representing herself in this matter, appeals an order of the Florida Unemployment Appeals Commission (FUAC) dismissing as untimely her appeal of an adverse decision by an appeals referee with the Agency for Workforce Innovation. Because certain written notices issued by the Agency’s Office of Appeals during the period in which a request to re-open her hearing or a notice of appeal would have been timely indicated that evidentiary hearings were still underway, we find that Ms. Gonzalez’s confusion as to the deadline was “occasioned by actions of the Commission” and warrants reversal and remand. Assam v. Fla. Unemployment Appeals Comm’n, 871 So.2d 978, 980 (Fla. 3d DCA 2004).

Background

Ms. Gonzalez worked for over 10 years for the employer, a day care center. In January 2009, Ms. Gonzalez and the employer vigorously disagree whether she was told by a representative of the employer that she was terminated (without further explanation) or was confronted about an alleged (though unspecified) cash discrepancy and then voluntarily walked out.

Her claim for unemployment benefits was allowed by the Agency, but the employer appealed. The Office of Appeals set a telephonic hearing regarding the claim, docket number “2009-15311U,” for March 25, 2009, but Ms. Gonzalez subsequently signed a sworn statement that she never received the notice. A review of the recorded hearing of March 25th indicates that the referee attempted unsuccessfully to call Ms. Gonzalez and then proceeded with the hearing. Based solely on the testimony provided by the employer’s des-ignees, the referee issued a decision the following day in favor of the employer and discontinuing benefits. On March 26, 2009, that decision was mailed to the parties. However, because that document contained a typographical error regarding the date upon which Ms. Gonzalez was determined to be disqualified to receive benefits, a corrected decision was certified to have been mailed by a deputy clerk of the Office of Appeals on April 7, 2009. Under applicable law and rule, a written request for reopening, or a notice of further appeal to FUAC, by Ms. Gonzalez ordinarily would be required to be filed on or before April 27, 2009.

Meanwhile, however, the Office of Appeals had been issuing additional notices, each on a form nearly identical to the notices issued in docket number “2009-15311U,” and each addressed to Ms. Gonzalez and the employer and bearing Ms. Gonzalez’s Social Security number. These were issued under docket number “2009-14775E.” A notice issued on March 18, 2009 (12 days after the notice of hearing Ms. Gonzalez said she never received in the companion case) advised Ms. Gonzalez that a telephonic hearing would be conducted on April 2, 2009, before a different appeals referee than the one who conducted the employer-only telephonic hearing on March 25th. The March 18 notice included Ms. Gonzalez’s correct telephone number and instructed her that “you are responsible for removing any telephone service that could block the hearing officer’s telephone call.” The same notice also stated a few paragraphs below that:

Claimant: This hearing pertains only to the employer’s tax account and will not affect your qualification for unemployment compensation benefits.
Claimant: This hearing will not affect your qualification for benefits. Your participation is not required.

On April 2, 2009, Ms. Gonzalez was sent a “Notice of Continuance” advising her that “[t]he hearing for this case, which was to be held on April 2, 2009, has been postponed. When the hearing is rescheduled, a Notice of Hearing will be mailed to all parties.” This notice was issued under docket number 2009-14775E, but it also bore Ms. Gonzalez’s name and address as “claimant/appellee,” her Social Security number, and the name and address of the “employer/appellant.” Significantly, this notice carried no legend indicating that it had nothing to do with Ms. Gonzalez’s pending opposition to her employer’s appeal to revoke her benefits.

On April 20, 2009, the Office of Appeals sent yet another “Notice of Unemployment Compensation Telephone Hearing” to Ms. Gonzalez for April 30th. The notice, again carrying docket number 2009-14775E, also carried her name and address as “claimant/appellee,” her Social Security number, the name and address of her employer as “employer/appellant,” and directives to Ms. Gonzalez:

FAILURE TO KEEP A TELEPHONE LINE OPEN MAY RESULT IN AN UNFAVORABLE DECISION.
Claimant telephone number: [Ms. Gonzalez’s correct telephone number]. You are responsible for removing any telephone service that could block the hearing officer’s telephone call.

Several paragraphs below this directive on the April 20 notice there appeared the two notices to the claimant that had appeared on the March 18 notice and quoted earlier, to the effect that the hearing would only pertain to the employer’s tax account, would not affect Ms. Gonzalez’s qualification for benefits, and did not require her participation. Strangely, however, the very next line stated, in English, Spanish, and Creole, that “A translator has been scheduled for the claimant only.”

On May 5, 2009, Ms. Gonzalez went to the South Florida office of the Agency. From that office she faxed a handwritten summary of what she believed had occurred and asking that her case be reopened so that she could present her evidence to the deputy clerk of the Office of Appeals. On May 12, 2009, she delivered a further handwritten request for her case to be re-opened to the same deputy clerk. The Office of Appeals and FUAC rejected these submissions as untimely, but furnished her with the form for an “Affidavit of Filing of Appeal” with the instruction to “explain circumstances surrounding the late appeal” in “(CASE 2009/15311).” Ms. Gonzalez, representing herself, filled the one and one-half inch space provided on the FUAC form to state under oath:

I, Sonia Gonzalez, with [Social Security number], hereby request to REOPEN MY CASE and allow me a hearing since the State has disqualified me to receive unemployment benefits for not being present at a hearing on the 25 day of March 2009. I NEVER received a notice for that date and that is the reason why I didn’t appear.

In a sworn statement attached to the affidavit, she also proffered evidence to explain that she had not voluntarily left the job (rather, she asserted she had been fired by an employee who did not testify on behalf of the employer during the March 25 hearing in docket 2009-15311 or during the later hearing in docket 2009-14775E).

FUAC considered these submissions and entered an order determining that Ms. Gonzalez’s appeal from the referee’s decision was not filed within 20 days, found that it lacked jurisdiction to consider her attempts to appeal, and dismissed the case. Ms. Gonzalez then appealed to this Court.

Analysis

Although we have routinely upheld the: iron-clad principle that untimely appeals to the Unemployment Compensation Commission are generally barred. Having said that, we sympathize here with the appellant’s position that had the Commission not mailed out two separate letters creating two different twenty day periods, there would not have been confusion as to the appeal deadline. Florida courts under similar circumstances have excused untimeliness when occasioned by the actions of the Commission.

Assam, 871 So.2d at 980.

Indeed, there are numerous cases upholding benefits claimants’ rights of fundamental due process, and FUAC has correctly acknowledged that the rationale is similar to the doctrine of equitable tolling, citing Machules v. Department of Administration, 523 So.2d 1132 (Fla.1988). In that case, an employee was terminated by the Florida Department of Insurance for abandonment (missing three consecutive workdays). The employee had the right to appeal to the Department of Administration within twenty days. The employee took the notice to his union, which filed a grievance under the applicable labor agreement. The employer then set a hearing date for the grievance. Following the hearing, the grievance was denied on the basis that the employee’s claim could not be asserted under the collective bargaining agreement, but instead only by appeal to the Department of Administration within the twenty days allowed by the Florida Administrative Code. The union then filed an appeal on behalf of the employee, but by that time the appeal period had expired. Our Supreme Court applied the equitable tolling doctrine, observing that the employer had “countenanced and acquiesced in the [employee’s] error by participating in the grievance process until after the appeal period had run.” Id. at 1134. The Court also noted the significance of the fact that the claimant was a lay person acting without counsel.

In this case, a reasonable person would think that the continuing notices of telephonic hearings meant that her case was pending and that she was being afforded additional opportunities to provide her testimony (and that of the other employee she maintains is the witness with actual knowledge of what occurred). In docket number 2009-15311U, the first decision was replaced by a second. The second was followed by notices in docket number 2009-14775E, indicating that additional evidentiary hearings would be forthcoming through and after the reopening/appeal period. Not until Ms. Gonzalez’s visit to the Agency’s office on May 5th did she apparently sort out the need to file a notice seeking re-opening or review. On that very date she faxed her request to re-open the hearing to the Office of Appeals. Here, as in Machules, the employer benefiting from the time limitation was not prejudiced by the employee’s delay (in Ms. Gonzalez’s case, eight days) in asking that the case be reopened. Id. at 1137.

On this particular record, Ms. Gonzalez has not had an opportunity to present her evidence and has not been afforded fundamental due process. Additionally, the notices and explanations sent to her created doubt that the decision in docket number 2009-15311U of April 7, 2009, would be the final word from the Office of Appeals and would trigger her twenty-day period within which to seek to re-open or appeal the referee’s decision. As late as April 30, 2009, she could reasonably have believed that her appeal was still under consideration. By May 5, 2009, only five days later, she faxed a request to re-open the employer’s appeal to the Office of Appeals. FUAC’s notices and instructional materials did not explain why Ms. Gonzalez would be sent a notice of another telephonic hearing (with the separate docket number but same caption in all other respects) involving the same employer and termination issues, and why any testimony she might give pursuant to that notice would have no effect in the first appeal.

Our legislature has expressly directed that the unemployment benefits statutes “shall be liberally construed in favor of a claimant of unemployment benefits who is unemployed through no fault of his or her own.” Section 443.031, Fla. Stat. (2009). The Agency for Workforce Innovation and FUAC employ dedicated public servants who can find clear, simple language to explain the difference between the two types of notices when issuing a notice of hearing that only pertains to only one of the two related matters. The Agency and FUAC, no less than this Court, should strive for determinations on the merits when no prejudice has occurred and procedural due process has not been afforded.

Conclusion

For these reasons, we reverse FUAC’s order of dismissal and we remand this matter with instructions that the relevant appeal, docket number 2009-15311, be reopened for a further evidentiary hearing at which Ms. Gonzalez may present her own testimony and any other evidence she may wish to offer. We express no opinion on the merits of either party’s claims regarding the unemployment benefits in question.

Reversed and remanded.

Before RAMIREZ, C.J. and GERSTEN, WELLS, SHEPHERD, SUAREZ, CORTIÑAS, ROTHENBERG, LAGOA, SALTER and EMAS, JJ.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The Court grants the Unemployment Appeals Commission’s motion to withdraw the motion for rehearing en banc. In addition, a member of this Court’s motion to rehear the case en banc pursuant to Florida Rule of Appellate Procedure 9.331(d)(1) is denied.

RAMIREZ, C.J., and WELLS, SUAREZ, CORTIÑAS, ROTHENBERG, LAGOA and SALTER, JJ., concur.

SHEPHERD, J.,

dissenting.

After granting the Florida Unemployment Appeals Commission’s motion for rehearing en banc in this case, a majority of this court today has receded from that decision. The only thing that occurred in the meantime is the Florida Unemployment Appeals Commission requested this court to withdraw the motion. Declining thereby to proceed, this court misunderstands its obligation.

This case arises out of a claim by Sonia Gonzalez for unemployment compensation. Ms. Gonzalez filed her claim for benefits on January 4, 2009. On January 30, 2009, the responsible agency, the Agency for Workforce Innovation (AWI), issued its Notice of Determination, granting unemployment compensation to Ms. Gonzalez. This determination was made solely on the strength of a determination that Ms. Gonzalez was monetarily eligible for benefits.

Unbeknownst to Ms. Gonzalez, the AWI, on February 2, 2009, issued a separate Notice of Determination to the employer, advising that the benefits being paid would be charged to the employer for unemployment tax accounting purposes. See § 443.131(3)(a), Fla. Stat. (2010); Fla. Admin. Code Ann. R. 60BB-2.026, 3.018. On February 10, 2009, the Employer appealed to the AWI Office of Appeals the AWI’s January 30, 2009, determination that Ms. Gonzalez was entitled to benefits. See § 443.151(4)(b)l, Fla. Stat. (2010). According to the employer, Ms. Gonzalez was discharged because she had pilfered tuition money from her employer, the Lincoln Marti Schools. See F.R. Aleman & Assocs., Inc. v. Cisneros, 35 So.3d 158 (Fla. 3d DCA 2010) (discussing disqualification from benefits connected with misconduct). This case was assigned Case Number 2009-15311U. On March 6, 2009, the Office of Appeals mailed a hearing notice to Ms. Gonzalez at the address provided on her claim, scheduling a hearing in Case Number 2008-15311U for March 25, 2009. Ms Gonzalez states she did not receive this notice.

On March 18, 2009, Ms. Gonzalez received a notice, bearing Case Number 2009-14775E, from the AWI Office of Appeals, setting a telephonic hearing for April 2, 2009, on an appeal taken by the employer from the February 2, 2009, determination advising that the benefits paid to Ms. Gonzalez would be charged to the employer. This notice constituted the first indication to Ms. Gonzalez that the employer had appealed that determination (in addition to the appeal filed in Case Number 2009-15311U).

Meanwhile, the March 25, 2009, hearing in Case Number 2009-15311U, proceeded as scheduled. The only party to appear was the employer. The next day, the Office of Appeals issued a decision finding Ms. Gonzalez ineligible to receive benefits based upon employee misconduct. See § 443.036(29), Fla. Stat. (2010). The decision advised her that it “will become final unless a written request for review or reopening is filed within 20 calendar days after the mailing date shown.” See § 443.151(4)(b)l, Fla. Stat. (2010). It also advised, “A party who did not attend the hearing for good cause may request reopening ... by writing to [the Office of Appeals].” Finally, this decision stated:

[T]he time to request review of this decision is as shown above and is not stopped, delayed or extended by any other determination, decision or order.

(emphasis added).

On April 7, 2009, Ms. Gonzalez received a “Corrected Decision” from the AWI Office of Appeals in this same case, Case Number 2009-15S11U, which was identical to the March 26, 2009, decision in all respects except for correcting an error in the commencement date for calculating wage payments toward a future unemployment claim. The Corrected Decision again warned:

[T]he time to request review of this decision is as shown above [20 days from the mailing date on the notice] and it’s not stopped, delayed or extended by any other determination, decision or order.

(emphasis added). Ms. Gonzalez has never asserted she did not receive these communications.

On April 2, 2009, Ms. Gonzalez attended, by telephone, the hearing from the appeal taken by the employer from the February 2, 2009, determination, Case Number 2009-14775E. The hearing did not conclude on that date, and was scheduled for completion on April 30, 2009. Ms. Gonzalez states she did not “talk at all” during the April 2, 2009, hearing and did not receive an anticipated telephone call from the Office of Appeals to participate in the April 30, 2009, hearing.

Then, on May 5, 2009, Ms. Gonzalez faxed a letter, handwritten by her in Spanish, to the regional office of the AWI Office of Appeals in Fort Lauderdale, requesting that “Case 2009/15311” be reopened. Her sole reason to support her plea was, “I did not receive the appointment,” referring to the notice for the March 25, 2009, hearing. By her own account, the only source available to her for the case number referenced in her May 5, 2009, letter was the “March 26, 2009, decision,” or the April 7, 2009, “Corrected Decision,” both of which expressly warned her that “the time to request review of this decision is as shown above and is not stopped, delayed or extended by any other determination, decision or order.”

On May 29, 2009, she filed a similar letter with the Florida Unemployment Appeals Commission, again handwritten in Spanish, requesting her case be re-opened. In response to the Commission’s order to show cause why her appeal to the Commission should not be dismissed as untimely, Ms. Gonzalez replied by sworn affidavit as follows:

CASE 2009/15311

I, Sonia Gonzalez, with SS # [ ] hereby request to REOPEN MY CASE and allow me a hearing since the State has disqualified me to receive unemployment benefits for not being present at a hearing on the 25 day of March/2009. I NEVER received a notice for that date and that is the reason why I did not appear.
/s/Sonia Gonzalez Date: 7/11/09

On appeal, a panel of this court found that despite being twice advised she had twenty days to seek review of the decision rendered against her in Case Number 2009-15311U, she was “confused” by the receipt of two hearing notices in Case Number 2009-14775E during the appeal period in Case Number 2009-15311U and, on that basis, ordered her case re-opened on the merits.

ANALYSIS

A cursory review of the record reveals the majority opinion in this case springs fully formed from the brow of the panel without any legal parentage. There is no evidence of “confusion” on Ms. Gonzalez’s part “as to the deadline” by which she was required to file her appeal from the AWI Office of Appeals decision in Case Number 2009-15311U, much less that her failure to timely file was caused by “actions of the Commission,” see Majority Op. p. 336. In the end, the majority nimbly withdraws from this view, admitting its decision is based, not on fact, but rather upon what it believes a “reasonable person” in Ms. Gonzalez’s circumstance “would think,” see Majority Op. p. 338, or “could reasonably have believed,” see Majority Op. p. 339. Based upon this speculation, the panel reverses the Florida Unemployment Appeals Commission order finding her appeal to be jurisdictionally barred.

If the panel opinion in this case simply was marked by some of the more benign forms of judicial mischief that occasionally afflict appellate decision-making — that appellate courts are not fact finders or that appellate courts should not do business based upon speculation, both of which are applicable here — I might not protest. After all, appellate court judges should not use dissents from en banc denials to make themselves a fourth member of a panel. However, when an appellate panel mortally errs — in this case, by failing to acknowledge and address this court’s own precedent — the rule yields.

The panel opinion in this case ignores decades of precedent from this court. See, e.g., McGlond v. Fla. Unemployment Appeals Comm’n, 43 So.3d 141 (Fla. 3d DCA 2010) (relying on Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002), which holds that because Espinosa did not claim the referee’s decision was not mailed to him or mailed to him untimely, no due process ground was alleged entitling Espi-nosa to an evidentiary hearing on the issue of timeliness); accord Madueno v. Home Enter. Design, 18 So.3d 1257 (Fla. 3d DCA 2009) (Cope, Suarez, and Salter, JJ.); accord Ambrister v. Fla. Unemployment Appeals Comm’n, 968 So.2d 623 (Fla. 3d DCA 2007) (Gersten, C.J., Cope, and Salter, JJ.); accord Banos-Hill v. Fla. Unemployment Appeals Comm’n, 967 So.2d 359 (Fla. 3d DCA 2007); Molina v. Home Depot USA, Inc., 941 So.2d 460 (Fla. 3d DCA 2006) (affirming dismissal of appeal where Molina did not dispute his appeal was untimely or that he timely received the referee’s decision); Malary v. Brinker Int’l Payroll, 898 So.2d 1184 (Fla. 3d DCA 2005) (affirming decision of Unemployment Appeals Commission where Malary did not claim he did not receive the appeals referee’s decision or that he received it too late to file a timely reply and upholding dismissal of appeal on the basis it was not filed within twenty days of the date the referee’s decision was mailed to Malary); accord Calderon v. Publix Super Mkts., Inc., 906 So.2d 1138 (Fla. 3d DCA 2005); accord Lopez v. Am. Airlines, 876 So.2d 1217 (Fla. 3d DCA 2004); Horvath v. Fla. Unemployment Appeals Comm’n, 886 So.2d 260 (Fla. 3d DCA 2004) (affirming on the basis of Espinosa); accord Butler v. Fla. Unemployment Appeals Comm’n, 880 So.2d 1291 (Fla. 3d DCA 2004); Delgado v. Concentrated Chem. Co., 644 So.2d 173, 174 (Fla. 3d DCA 1994) (acknowledging that, on occasion, appellate courts will “carve out exceptions” to the twenty-day rule in eases where there is a due process violation, such as where the employee alleged he never received the decision he sought to appeal or he received the decision after the appeal time expired). It strains credulity to think the panel’s failure to provide an answer to the glaringly obvious problems posed to it by these cases is inadvertent. The only plausible answer is that it does not have one.

Stare decisis mandates one panel of a district court of appeal may not overrule the decision of another. In re R. 9.331, Determination of Causes by a Dist. Ct. of App. En Banc, Fla. R. of App. P., 416 So.2d 1127, 1128 (Fla.1982) (“[T]he suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.”). The doctrine “is a first principle in the administration of justice — ... one of the most sacred in the law.” Tyson v. Mattair, 8 Fla. 107, 124 (1858). A court which dishonors this principle is one destined to lose the confidence of the people it was created to serve. Having once recognized its obligation, this court fails in its duty by abandoning that obligation in this case.

I would order rehearing en banc and affirm the July 20, 2009, decision of the Florida Unemployment Appeals Commission, which affirmed the referee’s decision and dismissed Ms. Gonzalez’s appeal as untimely.

GERSTEN and EMAS, JJ., concur.

APPENDIX

      . As the Agency’s “Appeals Information” brochure, AWI Form Bulletin 6E (Rev. 08/07), describes, a claimant who has missed a hearing for non-notice or other compelling reason "may request re-opening within twenty calendar days after the decision was mailed." That request is sent to the Office of Appeals, not FUAC. During the same period, the claimant can appeal the referee's findings and decision; but that notice is to be sent to FUAC.

      . The date for this scheduled hearing was three days after FUAC maintains Ms. Gonzalez's time to re-open or appeal had expired in docket number 2009-15311U.

      . The FUAC order does not specify whether it counted 20 days from the original decision of March 26 or from the corrected decision of April 7, 2009, but Ms. Gonzalez's appeal and request to re-open was faxed May 5, 2009 and would be late if either date controlled. Her appeal and request to re-open was timely, however, if the April 20, 2009 notice of hearing created confusion regarding the continued pendency of her claim for benefits and request to testify.

      . See Frederick v. Fla. Unemployment Appeals Comm'n, 834 So.2d 957, 958 (Fla. 3d DCA 2003), and the cases cited there.

      . An alternative motion by a member of this court requesting it rehear this matter "on its own motion” also was denied by a majority of this court. See Fla. R.App. P. 9.331(d).

      . Under Florida law, a determination whether a claimant is entitled to unemployment compensation is dual-pronged. First, a claimant must be shown to be monetarily eligible to receive benefits. See § 443.036(30), Fla. Stat. (2010). To be monetarily eligible, a claimant must have been paid at least $3400 in wages during the first four of the last five completed calendar quarters prior to the effective date of the claim. See §§ 443.091 (1 )(g); 443.11 l(2)(b), Fla. Stat. (2010). The second prong is a non-monetary determination. A non-monetary determination encompasses all other considerations which bear on claimant eligibility, notably whether the claimed misfortune is attributable to disqualifying misconduct. See § 443.036(29), (31), Fla. Stat. (2010). For reasons of expediency, compensation routinely flows based solely upon first prong monetary eligibility determined from AWI accessible wage records. Should it later be determined that a claimant was not entitled to benefits, the claimant is required to repay the sums received. See § 443.151 (6)(b), Fla. Stat. (2010).

      . As a claimant, Ms. Gonzalez is an interested party entitled to notice of the proceedings in Case Number 2009-14775 E. See Fla. Admin. Code Ann. R. 60BB-6.005 (providing that "[a]ll interested parties shall be notified in writing of the pendency of review by the Commission”).

      . Hearings conducted by the AWI Office of Appeals are routinely conducted by telephone call initiated by the appeals referee. Fla. Admin. Code Ann. R. 60BB-5.014. The AWI Form UCA Bulletin sent to all participants directs them to contact the deputy clerk at a phone number provided in the “Notice of Unemployment Compensation Telephone Hearing,” in the event of a communications problem. There is no evidence Ms. Gonzalez availed herself of this option on April 30, 2009.

      . The panel opinion states the Florida Unemployment Appeals Commission considered Ms. Gonzalez’s May 5, 2009, letter in reaching its decision to dismiss her appeal to the Commission as untimely. See Majority Op. p. 337. This is incorrect. This letter was not a part of the record before the Commission. Rather, it is an attachment to Ms. Gonzalez's Notice of Appeal to this court. It is, of course, improper for it to be considered in support of the panel reversal. See Rojas v. Medley Hardwoods, Inc., 23 So.3d 188, 190 (Fla. 1st DCA 2009) (citing Altchiler v. State, 442 So.2d 349, 350 (Fla. 1st DCA 1983) (“It is fundamental that an appellate court reviews determinations of lower tribunals based on the records established in the lower tribunals.”)).

      . For the convenience of the reader, a chronological history of the relevant events appears in the appendix to this opinion.


author: ROTHENBERG, J.

text:
    Teasa WOLFF a/k/a Teasa Wolfe, Appellant, v. STAR REALTY TRUST NO. 12549, CORP., Appellee.
    No. 3D10-1508.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Teasa Wolff a/k/a Teasa Wolfe, in proper person.
    Adam I. Skolnik, Coral Springs, for ap-pellee.
    Before WELLS, C.J., and ROTHENBERG and FERNANDEZ, JJ.
   ROTHENBERG, J.

The defendant, Teasa Wolff a/k/a Teasa Wolfe (“Ms. Wolfe”), appeals from the denial of her Emergency Verified Motion to Vacate Final Judgment of Foreclosure and Sale (“Motion to Vacate”), filed pursuant to Florida Rule of Civil Procedure 1.540(b)(3). We reverse and remand for an evidentiary hearing.

The plaintiff, Star Realty Trust No. 12549, Corp. (“Star Realty”), filed an action against Ms. Wolfe seeking to foreclose its $95,000 mortgage. Thereafter, Ms. Wolfe filed a pro se answer asserting, in part, that Jack Moussa of Florida Housing Council approached her with “an offer to save [her] house.” This “offer” led to the imposition of the $95,000 mortgage on her property even though she did not receive any proceeds from the loan and none of the existing mortgages were satisfied.

Star Realty then filed a motion for final summary judgment without addressing the alleged “offer.” The trial court entered a Summary Final Judgment of Foreclosure in favor of Star Realty (“Summary Final Judgment”), and thereafter, Star Realty purchased the property at a foreclosure sale for $100.00.

Within a one year of entry of the Final Summary Judgment, Ms. Wolfe filed the Motion to Vacate, outlining a “foreclosure rescue scheme[ ]” perpetrated, in part, by several entities and individuals, including Florida Housing Council; Star Enterprises, LLC; Jack Moussa, the owner and agent of Florida Housing Council; and Rose Moussa, the manager and owner of Star Enterprises. As set forth by Ms. Wolfe, this “scheme” began when Jack Moussa visited Ms. Wolfe at her home, informing her that, for a $30,000 fee, Florida Housing Council could stop the foreclosure action filed by the holder of her first mortgage, Wells Fargo Bank; fix her credit; and satisfy the three existing mortgages on her home. Thereafter, as part of this “scheme,” a trust was created; the property was transferred from Ms. Wolfe to Florida Housing Council as Trustee of the SW 211th Street Trust No. 12549; the property was transferred back to Ms. Wolfe; and the $95,000 mortgage, which is the subject of this foreclosure action, was recorded on her property although the existing mortgages on her home were not satisfied and she did not receive any proceeds from the loan. Ms. Wolfe also informed the trial court that the Office of the Attorney General filed a civil action against Florida Housing Council, Star Enterprises, Jack Moussa, and Rose Moussa for their participation in “foreclosure rescue schemes,” and that this action is still pending under Broward County Circuit Case No. 08-13169. Without conducting an evidentiary hearing, the trial court denied the Motion to Vacate.

Ms. Wolfe contends that the trial court abused its discretion by denying her Motion to Vacate without conducting an evi-dentiary hearing. We agree.

To entitle a movant to an evidentia-ry hearing on a motion for relief from judgment filed pursuant to rule 1.540(b)(3), the motion must specify the fraud with particularity, and explain why the fraud, if it exists, would entitle the movant to have the final judgment set aside. Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994); see also Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952, 955 (Fla. 4th DCA 2009) (“A trial court has broad discretion in evaluating a Rule 1.540(b) motion seeking relief from final judgment. Such motion should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege a colorable entitlement to relief.”) (citations omitted).

In the instant case, based on our review of Ms. Wolfe’s Motion to Vacate, we conclude that because the allegations did “raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.” S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986). Accordingly, we reverse the order denying the Motion to Vacate and remand for an evidentiary hearing consistent with this opinion.

Reversed and remanded.

      . The Office of the Attorney General alleged a violation of the Florida Deceptive and Unfair Trade Practice Act, seeking damages, civil penalties, injunctive relief, and other equitable relief. The civil complaint can be viewed at http://myfloridalegal.com/webfiles.nsf/WF/ JFAO-7D4LNF/$file/FHCComplaint.pdf. Further, the Office of the Attorney General is to be notified of the instant foreclosure action.

      . As to the Motion to Vacate, Ms. Wolfe was represented by Legal Services of Greater Miami, Inc. On remand, Legal Services of Greater Miami is to be notified of all further proceedings.