author: SALTER, J.

text:
    Phyllis FRAZIER, Appellant/Cross-Appellee, v. PHILIP MORRIS USA INC., and R.J. Reynolds Tobacco Company, Appellees/Cross-Appellants.
    No. 3D11-580.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Rehearing Denied June 8, 2012.

      Gerson & Schwartz, and Philip M. Ger-son, Miami, and Edward S. Schwartz, for appellant/cross-appellee.
    Carlton Fields, and Benjamine Reid, Miami; Shook, Hardy & Bacon, and William Geraghty and Frank Cruz-Alvarez, Miami; Jones Day, and Gregory G. Kat-sas; White & Case, and Raoul G. Cantero, Miami, for appellees/cross-appellants.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

In this Anyfe-progeny case, the jury returned a special interrogatory verdict in favor of the tobacco company defendants, appellees here, based on the affirmative defense that the plaintiffs, Ms. Frazier’s, lawsuit was barred by the four-year statute of limitations, section 95.11(3), Florida Statutes (1994). Ms. Frazier has appealed the denial of her motions for directed verdict and new trial regarding the limitations issue. Appellees Philip Morris and R.J. Reynolds have cross-appealed the circuit court’s ruling granting preclusive effect to certain findings by the Supreme Court of Florida in Engle and the trial court’s refusal to instruct the jury regarding the twelve-year statute of repose applicable to fraud claims, section 95.031(2)(a), Florida Statutes (1994).

In the direct appeal, we reverse and remand the case for a new trial for two independently sufficient reasons. First, there was no competent record evidence that “the accumulated effects of the substance [had] manifested] in a way which supplie[d to Ms. Frazier] some evidence of the causal relationship to the manufactured product” before the undisputed limitations bar date of May 5, 1990. For this reason, Ms. Frazier’s motion for a directed verdict on the statute of limitations issue should have been granted.

Second, Ms. Frazier made and preserved meritorious objections to the court’s adoption of the jury instruction and special interrogatory verdict question submitted by the appellees on the statute of limitations defense. Although this issue becomes moot on the basis of our ruling on the direction of a verdict, we conclude that Ms. Frazier’s motion for a new trial was well taken on this issue as well.

In the cross appeal, we affirm the trial court’s rulings on both issues.

I. Evidence and Rulings at Trial

A. Tobacco Use and Medical History

At the time of the trial in 2010, Ms. Frazier was 65 years old. She began smoking cigarettes at the age of 14 or 15. After numerous attempts to quit smoking, she was successful in 1992, with medical assistance and nicotine patches. Ms. Frazier’s medical records disclosed medical treatment for respiratory complaints beginning in approximately 1986. Ms. Frazier and those records described a bout with pneumonia:

Q: It was pointed out in the opening statement by [defense counsel] that in approximately 1986, before you came to Florida, that you had a bout of pneumonia. Do you remember that?
A: Yes.
Q: Did you associate the pneumonia with your cigarette smoking?
A: No.
Q: Did any doctor make a connection to you between pneumonia and cigarette smoking?
A: No.
Q: Did you stop smoking for a period of time when you had the pneumonia and pleurisy?
A: Yes.
Q: And when you got better from the pneumonia and the pleurisy, what did you do in the terms of smoking?
A: I started smoking again.
Q: Had you actually had pneumonia at one other time when you were a young woman?
A: I had had pneumonia when I believe I was 21. I’d never been hospitalized for pneumonia.
Q: And did you make any connection between the pneumonia that you had when you were 21 and your cigarette smoking?
A: No.
Q: Did anyone advise you or tell you that you should believe that cigarette smoking had anything to do with the pneumonia when you were 21?
A: No.

In March and April 1987, Ms. Frazier returned to the emergency room with continued complaints of a cough and pain in her ribs. The treating physician diagnosed right middle lobe pneumonia and advised her to return for an x-ray if the symptoms continued. On a second visit, the same doctor diagnosed “recurrent pneumonia and/or bronchitis.” During the first visit, the doctor prescribed erythro-mycin; subsequently Ms. Frazier was switched to doxycycline for the infection and Percocet for the cough. Importantly, during these visits the treating physician did not refer her to a pulmonologist or order specialized tests for investigation of a possible condition more serious than a short-term infection.

Thereafter, Ms. Frazier moved from Massachusetts to Florida. In October 1987, she visited a walk-in clinic because she had a “bad cold” and a “temperature.” In her trial testimony, she described the iricident:

Q: Up to that point in your life, had you ever thought to yourself that anything that you were experiencing was or even could be asthma?
A: Never. No. No.
Q: But at the walk-in clinic, they told you you’d had an asthma attack?
A: Right, he told me I had asthma.
Q: Did you agree with that?
A: No.
Q: What did you think?
A: I thought I had bronchitis. I thought I had a bad cold. I had a temperature. You know, I had all — I’d had bronchitis before. I mean as far as I was concerned — not even as far as I was concerned. I had bronchitis.
They didn’t do any testing of any sort that I had done at the hospital in 1991 when I had the asthma attack. They didn’t do a chest x-ray. They didn’t do what’s called an arterial blood gas where they check the oxygen in your blood.
They didn’t give me a nebulizer treatment which is what they did when I had the asthma attack.
They didn’t do anything that would have made me think that I had anything but bronchitis. They gave me an antibiotic.
They didn’t give me inhalers. I mean they didn’t do anything that would — so I didn’t — I didn’t think it was anything different.
Q: But it sounds like you’ve got a pretty good understanding now of blood gases and inhalers and some of these other medical terms that you’ve just referenced in answer to my last question. When did you learn those things?
A: Unfortunately I learned them after I had an asthma attack in 1991 and then had my lung problems, my emphysema and the lung transplant and everything, years.
Q: Just so that there’s no misunderstanding about this, the knowledge base that you have now about respiratory illness, diagnosis, and treatment is something that you’ve learned since it’s been confirmed that you were sick?
A: Right. Exactly. Yes.
Q: Did you know any of that back in 1987, 1986, or any of those time frames? A: No, I didn’t know any. I didn’t know any of that.

Ms. Frazier’s next relevant medical incident occurred in February 1991 — a time well after the statute of limitations bar date. She had developed an upper respiratory infection (she had a sore throat, nasal congestion, and a fever of 102 degrees). She went to an urgent care center and was then admitted to a hospital. The radiologist’s report on a chest x-ray taken at that time indicated “changes of COPD,” and Ms. Frazier was told that she had asthma. For the first time, she was referred to a pulmonologist on February 21, 1991. The pulmonologist concluded that Ms. Frazier had an asthmatic bronchitis, but his report expressed a concern for “the possibility of some underlying lung disease on a more chronic basis in view of [her] significant smoking history.” The pulmonologist’s consultation report also states that “[s]he denies any history of emphysema or chronic bronchitis,” a statement that is not contradicted by the record in any respect.

In a follow-up in April 1991, the pulmo-nologist reported that the bronchitis had resolved. In a further follow-up in August 1991, the pulmonologist’s records noted tobacco addiction and (for the first time, following the tests ordered in February) “underlying COPD,” and this was noted again during a visit in February 1992. After a follow-up in July 1992, Ms. Frazier’s pulmonologist reported that she was a patient “with underlying COPD secondary to her long term tobacco use for the last 30 years.” Over the course of several years, the damage to Ms. Frazier’s lungs was classified as “severe COPD” and as emphysema, and by 2001 she was under evaluation for bilateral lung transplants (which she later received).

B. Dr. Schroeder’s Testimony

Before trial, Ms. Frazier sought an order “to preclude speculative testimony of Defendant’s expert pulmonologist, Eric Schroeder, M.D., concerning the time frame during which [Ms. Frazier] developed COPD.” In her motion, Ms. Frazier argued that “Dr. Schroeder in this case purports to use the results from a pulmonary function test (PFT) performed on the plaintiff in 1991 to speculate as to what her lung function would have been four to six years earlier, even though no such tests were performed on the plaintiff before 1991 and no physician, even physicians treating her for other respiratory ailments, diagnosed her as having COPD before 1991.” The trial court granted the motion in part, precluding direct testimony regarding Ms. Frazier’s state of mind, or her actual or constructive knowledge of her condition.

At trial, however, Dr. Schroeder was permitted to render opinions (over objection), purportedly because of his expertise in pulmonary medicine, that Ms. Frazier’s 1986 and 1987 emergency room visits for pneumonia and bronchitis were actually manifestations of COPD and emphysema through “signs and symptoms that would have been apparent to the patient herself.” He also testified, based on Ms. Frazier’s 1991 chest x-rays (ordered and evaluated well after the applicable statute of limitations bar date) and her first PFT report from 1993, that it was possible to deduce from them that she must have had COPD in the 1980s. He admitted, however, that this opinion was based on his own experience rather than any scientific research or medical literature.

Dr. Schroeder’s testimony regarding Ms. Frazier’s emergency room visit for bronchitis in 1987 — based on a licensed physician’s report with no mention of any possibility of COPD or emphysema, or even a referral for a PFT or consultation with a pulmonologist — is illustrative:

Q: Now, was this episode documented by these records in 1987 what you characterize or what you would diagnose as an exacerbation of COPD?
Plaintiffs attorney: Objection, form, leading.
The Court: Sustained.
Q: Well, what was Ms. Frazier suffering from that reflected in the records we’ve just shown the jury based from March and April of 1987?
A. In my opinion, both of these emergency department visits were due to acute exacerbations of COPD.
Q: And explain why that is your opinion.
A: Well, my opinion, number one, is I believe that Mrs. Frazier during that period of time had definite COPD. And when you look at the first emergency room department visit back in March, the emergency doctor, Dr. Lincoln, indicated that when he listened to her lungs he heard a number of abnormal sounds, including wheezing.
Q: Let me put that up so you can show that one. That’s — you’re referring to this examination here in the center?
A: That’s correct.
Q: Okay. Go ahead. I’m sorry to interrupt you, Doctor.
A: I think this one observation is a very important point in the examination because typically when someone develops acute bronchitis, they may feel bad, they’ll have a lot of, you know, just general symptoms.
But when you listen to someone’s lungs who does not have any underlying lung disease, they just simply catch a cold, get bronchitis, you generally have a perfectly normal chest exam. When you listen to them, you hear normal air movement, no extra sounds.
And whenever you hear the presence of wheezing, that is an indication that there is an underlying lung condition present that typically is being aggravated by the acute bronchitis.
And I think this presentation is rather classic to COPD exacerbation. And like many other COPD exacerbations, oftentimes they recur and they’re more likely to recur shortly after a prior acute exacerbation.
So the fact that she got better for awhile with the first antibiotic and then had to have another course of antibiotics and then again got a little better and then came back again, that would be typically what I would expect to see in someone with COPD with an acute exacerbation.

The record establishes that Dr. Schroeder’s knowledge and opinions were based on all of Ms. Frazier’s medical records, through and including her actual diagnosis with COPD and her lung transplants. Dr. Schroeder did not testify that Dr. Lincoln (the emergency room physician who diagnosed and treated Ms. Frazier’s pneumonia and bronchitis in 1987) misdiagnosed Ms. Frazier, or that any competent physician should have known then what Dr. Schroeder said seemed apparent to him 28 years later. Dr. Schroeder neither listened to Ms. Frazier’s lungs in 1987 nor discussed Ms. Frazier’s case with Dr. Lincoln. Nor did Dr. Schroeder testify that Ms. Frazier herself, a hairdresser with no medical training whatsoever, should have surmised that the doctor treating her in 1987 was missing the “manifestation” of a condition more sinister and chronic than pneumonia or bronchitis.

C. Jury Instruction Regarding the Statute of Limitations

The parties disagreed at the charge conference regarding the form of a jury instruction on the statute of limitations affirmative defense raised by the appellees. The pertinent excerpts from the instruction proposed by the appellees are:

Defendants do not need to prove that Ms. Frazier was actually diagnosed with a smoking-related injury prior to May 5, 1990 in order to prevail on this issue. For purposes of this issue, the critical event is not when a disease or medical condition was actually diagnosed by a physician, but when the disease or medical condition first manifested itself.
Ms. Frazier knew or should have known that there was a reasonable possibility that her injury was caused by cigarette smoking if her injury manifested itself in a way that supplied some evidence of a causal relationship to cigarette smoking.

Ms. Frazier sought an instruction on the limitations issue which included, in pertinent part:

On these defenses, the issues for your determination are:
1) whether the Plaintiff knew or should in the exercise of reasonable care have known, on or before May 5, 1990, both that she had emphysema and that there was a causal connection between her smoking and her emphysema; and
2) whether the Plaintiff knew or should in the exercise of reasonable care have known, on or before May 5, 1990, both that she had the COPD and that there was a causal connection between her smoking and her COPD.

During the charge conference, the trial court considered the arguments by both sides — and both counsel characterized this as a “case-defining” issue. Each side submitted a memorandum of law regarding its proposed instruction on the issue. Ultimately, the trial court gave an instruction on limitations which included this formulation:

Depending on your resolution of the issues that I just described to you, the next issue for your determination may be whether plaintiff knew or, by the use of reasonable care, should have known before May 5th, 1990, that she had been injured and that there was a causal connection between her smoking and her injury. Defendants must prove this issue by the greater weight of the evidence. Defendants do not need to prove that plaintiff was actually diagnosed with, a smoking-related injury prior to May 5th, 1990, in order to prevail on this issue.
For purposes of this issue, the critical event is not when a disease or medical condition was actually diagnosed by a physician but when the disease or medical condition first manifested itself. Plaintiff knew or should have known that there was a causal connection between her smoking and her injury if her injury manifested itself in a way that supplied some evidence of a causal relationship to cigarette smoking.

(Footnote added).

Finally, the trial court approved a verdict form that posed this interrogatory on the limitations issue, as proposed by the appellees:

Did Plaintiff know, or should she have known in the exercise of reasonable care, prior to May 5, 1990, that she had been injured and that there was a causal connection between her smoking and her having been injured?
Yes_No_

Ms. Frazier had asked for two nearly-identical interrogatories on the verdict form, one for emphysema and one for COPD. The latter interrogatory would have asked:

On or before May 5, 1990, did Plaintiff PHYLLIS FRAZIER know, or should she in the exercise of reasonable care have known, both that she had COPD and that there was a causal connection between her smoking and her having developed COPD?
Yes_No_

D. Verdict and Post-Trial Motions

After deliberations, the jury returned a verdict determining that Ms. Frazier was addicted to cigarettes containing nicotine and that her addiction was a legal cause of her COPD/emphysema. On the limitations interrogatory, however, the jury found that Ms. Frazier knew or should have known before May 5, 1990, that she had been injured and that there was a causal connection between her smoking and her having been injured. As directed by the verdict form based on that finding, the jury did not proceed to answer the remaining interrogatories regarding liability, reliance, percentage responsibility, economic and non-economic damages, or liability for punitive damages.

Ms. Frazier filed post-trial motions seeking judgment in accordance with her motion for a directed verdict on the limitations issue and for a new trial, which were denied. Final judgment was entered for each appellee, and this appeal and cross-appeal followed.

II. Analysis

A. Limitations Date

In Engle, the Supreme Court of Florida held that “[t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition manifested itself.” 945 So.2d at 1276. The context involved a class membership cutoff date rather than a limitations date, but Florida’s decisional law regarding so-called “creeping diseases” such as asbestosis or silicosis is consistent with that formulation.

In Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 934 (Fla.2000), the Supreme Court of Florida held that, in a product liability case involving a latent or “creeping” disease, “the cause of action accrues when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product.” That Court reaffirmed such a test recently in American Optical Corp. v. Spiewak, 73 So.3d 120, 126 (Fla.2011), when it held:

With regard to asbestos-related diseases, we have held that an action accrues when the accumulated effects of the substance manifest in a way which supplies some evidence of the causal relationship to the manufactured product. See Celotex Corp. v. Copeland, 471 So.2d 533, 539 (Fla.1985).[]

(Footnote added).

In assessing the applicability of the statute of repose to a cause of action for asbestos-related injuries, this court held the statute unconstitutional because of the “long delay in manifestation of symptoms that will support a medical diagnosis of injury.” Owens-Corning v. Corcoran, 679 So.2d 291, 294-95 (Fla. 3d DCA 1996). Plainly, many symptoms or effects that might later develop to become a compensa-ble injury attributable to smoking—shortness of breath, or persistent coughing, for example—do not in isolation provide a sufficient legal basis for initiating a lawsuit against a tobacco company. Applying the teaching of Engle and the other “creeping disease” cases, these medically—and prae-tieally-ambiguous “manifestations” do not create an issue of fact for resolution by a jury or the court.

Rather, the “manifestations” that are pertinent are symptoms or effects that actually disclose that the prospective claimant is suffering from a disease or medical condition caused by tobacco use, and which are thus sufficient to assert a cause of action against the responsible manufacturer(s). In the case at hand, Ms. Frazier could not have filed a non-frivolous lawsuit against the appellees in 1986 on a theory that her symptoms and pneumonia were compensable results of her addiction to tobacco, nor could she have filed such a lawsuit in 1987 for “pneumonia and/or bronchitis.” It was not until February 1991 that a set of tests and a referral adduced competent evidence that COPD/emphysema was a likely suspect.

Similarly, in Engle the Supreme Court looked at an early 1997 medical report that included a reference to Ms. Della Vecchia’s past medical history of COPD and significant hypertension to confirm her eligibility for class membership. 945 So.2d at 1276. While the accrual date for a disease caused by tobacco addiction may be prior to “formal diagnosis” as that term was used in Engle, certainly that date would not be before a medical professional treating the patient noted at least some suspicion that the presenting “manifestations” might require tests to rule out that disease.

We reject 'as both unworkable and unfair an interpretation of the “creeping disease” case law that would allow a defense expert to engage in a belated armchair analysis and to opine many years later that the claimant’s claim is barred because her treating physician should have investigated the creeping, as yet ⅞⅞-mani-fested disease. Dr. Schroeder’s testimony is not competent or relevant evidence on the question of what Ms. Frazier and her doctors knew and when they knew it vis-a-vis COPD/emphysema; it is simply a post hoc conclusion confirming what was learned in and after February 1991. Dr. Schroeder’s opinion was purely speculative, and thus barred by the trial court’s ruling on Ms. Frazier’s pretrial motion, insofar as it purported to opine on what “would have been apparent to the patient herself.”

In Marsh v. Valyou, 977 So.2d 543 (Fla. 2007), the Supreme Court of Florida addressed the boundaries of expert testimony under the Florida Evidence Code. In the present case, Dr. Schroeder conceded that his inferences from the 1991 (and later) x-rays, were not supported by any x-rays, pulmonary function tests, or direct observations obtained before the May 5, 1990, limitations bar date, and were not based on any generally accepted medical or scientific principles or methodologies. But neither were his conclusions a “pure opinion” of the kind addressed in Marsh.

The issue was not whether Ms. Frazier “had” the creeping, stealthy disease of COPD/emphysema before May 5, 1990; the issue was whether she knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against the appellees on the basis of those physical, observable, patent symptoms and effects (“manifestations”) before that date. And Dr. Schroeder had no competent evidence before him from which to hazard his own guesses regarding Ms. Frazier’s knowledge. Here, as in Young-Chin v. City of Homestead, 597 So.2d 879, 882 (Fla. 3d DCA 1992), a medical expert may not furnish a prognosis “from an inference” lacking appropriate supporting physical evidence.

The trial court correctly granted Ms. Frazier’s motion in limine regarding Dr. Schroeder’s testimony, and Dr. Schroeder and the appellees should not have ventured beyond that ruling.

B. Jury Instruction and Verdict Form Regarding Limitations

Although our conclusions regarding the pertinent accrual date and the absence of competent evidence to prove a date before May 5, 1990, are dispositive of this appeal, we also address Ms. Frazier’s legal arguments directed to the form of jury instruction and verdict form relating to the statute of limitations defense. While acknowledging that the appellees proposed, and the trial court accepted, a statute of limitations form of instruction adapted from Florida Standard Jury Instructions in Civil Cases 402.14.a and Carter, the plaintiff in Carter did not raise and preserve the objections raised in the trial court and here by Ms. Frazier. Regarding the standard instruction and the variation proposed by the appellees and given by the trial court, we conclude that the appel-lees’ focus on “injury” is confusing in this case and more pertinent to a products liability case involving a bodily injury other than a disease. The limitations issue in this Engle-progeny case should have focused on the manifestations of Ms. Frazier’s COPD/emphysema and her awareness or lack of awareness that those manifestations and the disease itself were caused by her addiction to, and use of, cigarettes. Using “disease” and “injury” in the course of the instruction suggested that the terms are different.

This problem came to the forefront in the recent case of Philip Morris USA, Inc. v. Barbanell, — So.3d -, 2012 WL 555402 (Fla. 4th DCA 2012), another Engle-progeny case. The instruction and form of verdict on the limitations issue in Barbanell were based in part on Carter (using knowledge of an “injury” prior to May 5,1990, as the initial question). However, the verdict included a further interrogatory asking whether the plaintiff knew or should have known “prior to May 5, 1990, that she suffered from emphysema, a form of COPD, and that there was a reasonable possibility that her injury was caused by cigarette smoking.” The jury returned a verdict answering “yes” to the “knowledge of injury” question (a defense verdict), and “no” on the COPD/emphyse-ma question (but for the preceding response, a plaintiffs verdict). The trial court declined to direct a defense verdict on these two responses, but the Fourth District concluded that this was error and remanded for the entry of a judgment in favor of the defendant. The concurring opinion noted that counsel for the plaintiff had not addressed the “puzzling” differences between the two limitations interrogatories and the jury’s verdict on each. Barbanell, — So.3d at-(Hazouri, J., concurring specially).

In the present case, Ms. Frazier’s counsel raised and specifically objected to the “knowledge of injury” form of instruction and corresponding interrogatory on the verdict form. Ms. Frazier presented competing forms of the limitations instruction and verdict forms, thereby preserving her position on this issue.

C. Issues on Cross-Appeal

As noted at the outset, we reject the appellees’ arguments regarding their cross-appeal. This court has already acknowledged the preclusive effect of the Phase I findings in Engle. Three other District Courts have done so as well.

The appellees also argue that Florida’s twelve year statute of repose relating to fraud claims, section 95.031(2)(a), Florida Statutes (1994), barred Ms. Frazier’s cause of action for fraudulent concealment or conspiracy to conceal. The appellees contend that Ms. Frazier was obligated to prove that she relied upon a deceptive statement or omission after May 5, 1982 (twelve years before the Engle lawsuit began in the trial court). The trial court refused a jury instruction requested by the appellees on this point. We conclude that the last act done in furtherance of the alleged conspiracy fixes the pertinent date for purposes of commencement of the statute of repose, and we conclude that Ms. Frazier introduced evidence of deceptive statements or omissions occurring after May 5, 1982. Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1078 (Fla. 2d DCA 2000). We reject the appellees’ contention that Ms. Frazier was obligated to show further or continued reliance upon the alleged last act in furtherance of the conspiracy. The judgment below is thus affirmed as to each of the issues raised in the cross-appeal.

III. Conclusion

In the direct appeal, Ms. Frazier relies upon a carefully-protected record on the statute of limitations evidence and on the jury instruction and verdict forms. Regarding the evidence, and in particular the speculative, clear-in-hindsight-only testimony of Dr. Schroeder, Ms. Frazier sought and obtained an appropriate order in limine, and she objected as well. Dr. Schroeder could not and did not render competent testimony about what Ms. Frazier knew or might reasonably have known regarding the “manifestations” of her En-pfe-eligible COPD/emphysema and the causal relationship of those manifestations to the cigarettes produced by the appel-lees. He violated the order in limine as his testimony ventured into what was not “manifest” in 1986 and 1987, whether to Ms. Frazier or her treating physician. The manifestations of her COPD/emphyse-ma did not begin, on this record, until 1991, a date within the statutory limitations period.

Regarding the form of jury instructions and verdict form, Ms. Frazier challenged the forms proposed by the appellees and requested forms that would not mislead the jury into a belief that an “injury” of some undefined type — perhaps shortness of breath or an acute illness like pneumonia — might trigger the accrual of the four-year statute. In an Engle-progeny case such as this, there is no reason to open the door to such a possibility. The class certification order in Engle confined the class to Florida citizens and residents, and their survivors, “who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Engle, 945 So.2d at 1256. Ms. Frazier’s complaint further narrowed her “disease and medical condition” to COPD/emphyse-ma. The limitations instruction and the counterpart interrogatory on the verdict form should have been similarly limited, as Ms. Frazier proposed. There was no evidence of other ®?,(/fe-qualified causes of action based on other diseases or medical conditions.

Finally, in the cross-appeal we find no error in the trial court’s ruling granting preclusive effect to the pertinent Phase I class findings from Engle or denying an instruction on the fraud statute of repose.

Reversed and remanded with instructions to grant Ms. Frazier a directed verdict on the statute of limitations issue, and for further proceedings in accordance with this opinion; affirmed as to all issues raised on cross-appeal by the appellees.

      . Individual cases filed pursuant to Engle v. Liggett Group, Inc., 945 So.2d 1246, 1277 (Fla.2006).

      . Am. Optical Corp. v. Williams, 73 So.3d 120, 126 (Fla.2011).

      . "COPD” refers to "any one of a group of diseases comprising emphysema, bronchial asthma, chronic bronchitis, bronchiectasis, and cystic fibrosis,” Attorneys’ Dictionary of Medicine and Word Finder, C-211 (1993), and is marked by chronic obstruction of the bronchial tubes. Id. In Ms. Frazier’s case, the ultimate diagnosis was COPD/emphysema, a single tobacco-related disease that is one type of COPD. COPD, with no separate reference to emphysema, is among the diseases caused by smoking cigarettes according to the Engle Phase I class findings. Engle, 945 So.2d at 1276-77.

      . These two issues were "(1) whether plaintiff was addicted to cigarettes containing nicotine and (2) if so, whether plaintiff's addiction to cigarettes was a legal cause of her COPD/em-physema.”

      . Celotex Corp. v. Copeland, 471 So.2d 533 (Fla. 1985).

      . Barnes v. Clark Sand Co., 721 So.2d 329 (Fla. 1st DCA 1998), approved sub nom. Pulmosan Safety Equip. Corp. v. Barnes, 752 So.2d 556 (Fla.2000).

      . It should be noted, however, that the majority opinion in American Optical Corp. also states that "prior to the [Asbestos and Silica Compensation Fairness Act in 2005], a diagnosis of asbestos-related disease triggered the accrual of a cause of action.” 73 So.2d at 127.

      .We conclude that "formal diagnosis” might not be an appropriate test in a case in which a medical professional notes the possibility or even likelihood of a chronic disease such as COPD and refers the patient to appropriate lab tests and consultation with a specialist, but the patient ignores the medical advice. In such a case, the accrual date would be an issue of fact even though a “formal diagnosis” had not yet been made. Contrast such a case with Ms. Frazier’s, in which the pre-1991 records do not mention COPD or emphysema (or any other chronic tobacco-related disease) and do not order those tests or make the referral that would be appropriate to investigate further.

      . See, e.g., Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

      . R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010); R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011); and Brackett v. Lorillard Tobacco Co., 81 So.3d 636 (Fla. 5th DCA 2012).

      . As already noted, separate instructions and verdict interrogatories were not necessary for "COPD” and "emphysema” in Ms. Frazier’s case. A single form addressing "COPD/em-physema” would have sufficed.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    AJH PROPERTY INVESTMENTS LTD., a United Kingdom limited company, et al., Appellants, v. SUNTRUST BANK, a Georgia banking company, Appellee.
    No. 3D11-962.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.

      Beck & Lee, Elizabeth Lee Beck, and Jared H. Beck, Miami, for appellants.
    Bergman & Jacobs and Richard H. Bergman, Hollywood, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SUAREZ, J.

AJH Property Investments Ltd., Ivor Barwin, Peter Bishton, Reena Bishton, Paul Briggs, Catherine Briggs, Shoshana Carson, Stephen Carson, Timothy Davis, Jacquelin Davis, Annette Di Cienzo, Mario Di Cienzo, Michael Di Cienzo, Jonathan Eastwood, Ezequiel Fagetti, James Hanson, Andrea Salmon, James Salmon, Brian Lee Southern, and Leon Woods (“Appellants”), appeal a final summary judgment in favor of SunTrust Bank (“SunTrust”). We reverse the final summary judgment to allow the trial court to resolve genuine issues of material fact which remain to be determined.

In 2006 and 2007, Appellants purchased yet-to-be constructed condominium units in the Hollywood Grande, a condominium resort hotel, being developed by Hollywood Grande, LLC. Appellants deposited with the escrow agent, SunTrust, twenty percent (20%) of the units’ purchase price, including funds for furniture packages. The terms of the escrow agreement governing SunTrust’s obligations as escrow agent appeared- in paragraph 5.4 of the escrow agreement between SunTrust and the developer, Hollywood Grande, LLC, which stated:

5.4 Deposits in Excess of Ten Percent. The portion of any Deposit in excess of ten percent (10%) of the sales price of a Unit shall be held in a special escrow account. If the Contract of any Buyer so provides, upon written request to Escrow Agent by Developer, accompanied by a statement that the construction of improvements has begun, Escrow Agent shall pay out of the special escrow account to Developer any Deposits in excess of ten (10%) of the sales price set forth in any Contract.
Escrow Agent will not be responsible as to the proper application of any funds released to Developer pursuant to this provision. Any request by Developer for disbursement of any escrowed funds pursuant hereto shall be accompanied by a written statement of Developer stating the following: (i) that construction has begun on the Condominium in which the Unit is located and (ii) that all funds released to Developer will be used solely for construction and development purposes. With respect to such funds, Escrow Agent will not be responsible as to the proper application of same by Developer, and Developer agrees to indemnify and hold Escrow Agent harmless from any and all liabilities which may be incurred by Escrow Agent, including attorneys’ fees, in connection with the disbursement of such funds to Developer.

The developer secured a two million dollar surety bond which was delivered to SunTrust. SunTrust then delivered to the developer the first ten percent (10%) of the purchase price deposits being held in escrow. From time to time thereafter the developer requested and SunTrust delivered monies from the excess ten percent (10%) deposits being held in escrow.

In 2008, the project was cancelled and the developer declared bankruptcy. Appellants requested the return of its deposit and received a refund equivalent to the first ten percent (10%) of its deposit pursuant to the two million dollar surety bond posted by Hollywood Grande, LLC. The remaining deposit funds were disbursed by SunTrust to the developer prior to cancellation of the project. On February 28, 2010, Appellants filed suit against Sun-Trust, seeking to recover the remainder of its deposit and damages on grounds of breach of fiduciary duty, negligence, and equitable accounting. SunTrust moved for summary judgment claiming that, pursuant to the escrow agreement, it was entitled to disburse the deposits in excess of ten percent (10%) of the purchase price upon written request of the developer, and, because it had complied with that requirement, it could not be held responsible for the disbursements. The trial court granted summary judgment in favor of Sun-Trust, and this appeal follows.

Appellants argue on appeal that the record reveals genuine issues of material fact which would prevent the granting of summary judgment on the issue of whether SunTrust’s disbursements under the agreement were proper. We agree and reverse.

We review the final summary judgment entered below de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Daneri v. BCRE Brickell, LLC, 79 So.3d 91 (Fla. 3d DCA 2012). In reviewing a final summary judgment, this Court must consider the evidence in the record, including any supporting affidavits or documents, in the light most favorable to the non-moving party. Daneri, 79 So.3d 91, 93.

Under the terms of the escrow agreement, a written request to the escrow agent by the developer, accompanied by a statement that the construction of improvements had begun on the condominium unit, was a precondition for the escrow agent to pay out of the escrow funds in excess of ten percent (10%) of the purchase price of the contract. The escrow agreement specifically states that the request by the developer for disbursement of escrowed funds “shall [have been] accompanied by a written statement from the developer stating that construction had begun on the unit and that all funds released would be used solely for construction and development purposes.” Paragraph 5.4 further states that the escrow agent will not be responsible for the developer’s use of the released funds as long as the escrow agent releases the funds to the developer “pursuant to this provision.” Therefore, only upon meeting the specific pre-condition requirements could SunTrust not be liable for the disbursements.

All parties admit the requests for draws in excess of ten percent (10%) of the purchase price by the developer did not include the required language of paragraph 5.4 of the agreement that construction had begun and that the released funds would be used for construction and development purposes. The argument of SunTrust, as presented below and on appeal, is that it did not have to comply because the developer had provided supporting documents, such as contracts, bills, or work orders, along with the requests for disbursement in excess of ten-percent (10%) and, therefore, by showing SunTrust that the money would be used for construction, the developer met the precondition to supply a statement that construction of improvements had begun. The problem is that this contention, when presented at summary judgment, was only an argument presented by counsel for SunTrust. The supporting documents alluded to were never of record before the trial court on summary judgment. Thus, the trial court never had the opportunity, based upon record evidence and not merely purported evidence, to determine whether there was a material breach of the escrow agreement or whether SunTrust had substantially complied. Based upon the absence of record evidence that would support the argument of SunTrust, we find that summary judgment was not proper as SunTrust did not prove compliance with the terms of the escrow agreement.

We therefore reverse the summary judgment on grounds that genuine issues of material fact remain as to whether Sun-Trust had properly disbursed funds in excess of ten percent (10%) of the purchase price according to the terms of the escrow agreement. See Daneri, 79 So.3d 91, 93 (holding that a genuine issue of material fact existed as to whether a condominium developer receiving a deposit of twenty percent (20%) of purchase price violated statute limiting use of money placed in escrow to protect purchasers under pre-construction contracts); First Sarasota Serv. Corp. v. Miller, 450 So.2d 875 (Fla. 2d DCA 1984) (reversing summary judgment as to duties under escrow agreement where question existed whether escrow agent disbursed deposit funds to developer in proper manner).

Reversed and remanded.

      . A genuine issue of material fact remains on whether the argument of SunTrust, that it never received furniture deposits and therefore is not liable under the escrow agreement, relieves it of its duty, under the agreement, of proper disbursement.

      . We choose not to address or make findings as to whether or not the production of the documents by SunTrust would amount to substantial compliance with the escrow pre-con-dition requirement or whether such production would be sufficient to comply with the terms of paragraph of 5.4.


author: PER CURIAM.

text:
    Mynor SOLANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3210.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Rehearing Denied June 15, 2012.

      Carlos J. Martinez, Public Defender, and Andrew M. Stanton, Assistant Public Defender, Eleventh Judicial Circuit, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before EMAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   On Remand, from the Supreme Court of Florida

PER CURIAM.

Pursuant to the decision of the Supreme Court in Solano v. State, 76 So.3d 897 (Fla.2011), quashing Solano v. State, 35 So.3d 930 (Fla. 3d DCA 2010), the conviction under review is reversed and the cause is remanded for a new trial on the authority of State v. Montgomery, 39 So.3d 252 (Fla.2010).

Reversed.


text:
    Juan VELAZQUEZ and Caridad Marquez, Appellants, v. SOUTH FLORIDA FEDERAL CREDIT UNION, Appellee.
    No. 3D11-1415.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Rehearing Denied June 8, 2012.

      Juan Velazquez and Caridad Marquez, in proper persons.
    The Barthet Firm, Patrick C. Barthet and John C. Hanson, II, Miami, for appel-lee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

The appellants, non-attorneys representing themselves, seek review of a circuit court deficiency judgment and related post-judgment rulings regarding a defaulted boat loan. Though noting the aggressiveness of the legal actions taken by the appellee, a federal credit union, we are constrained to affirm the judgment and trial court rulings in all respects. Our opinion breaks no new legal ground, and is only written for two reasons: to assist the individual appellants in understanding why the credit union’s actions (and the trial court’s rulings) complied with applicable law, and to caution counsel for the federal credit union regarding the filing of, and reliance upon, extra-record documents.

I. Facts and Procedural Background

In October 2008, the credit union loaned the appellants $38,400 for the purchase of a boat for personal use. The loan was secured by a “first preferred ship mortgage” duly filed with the United States Coast Guard vessel documentation center. On July 6, 2010, the credit union’s collections manager sent a letter to the appellants notifying them that the loan account — then having a balance of $35,271.88 — was past due for non-receipt of the monthly payments due for May and June of that year. The letter referred to prior telephonic and written notifications without a response from the appellants, requested an immediate telephone call to discuss the past due amount ($1,015.12), and indicated that legal action would be considered “[i]f we do not hear from you immediately.”

A few days after the credit union sent the letter, the appellants sent a check to the credit union for the monthly payment amount, $507.56, one-half of the past due amount. The check did not indicate whether it was tendered as part of the past due amount or to cover the monthly amount due for July. On July 16, 2010, the attorneys for the credit union sent a letter, return receipt requested, demanding immediate payment of the $1,015.12 past due amount plus $250.00 in attorney’s fees. The demand letter stated that such a payment “must be received by the undersigned within thirty (30) days of the date of this letter to avoid the initiation of suit against you.” In their subsequent affidavit, the appellants admitted that they received the letter on July 24, 2010.

On July 19, 2010 — only thirteen days after the credit union collection manager’s letter, without further notice, and allegedly before the appellants received the attorney’s demand letter — the credit union’s agent, National Liquidators, repossessed the boat from its slip in Key Largo, Florida, and transported it to the agent’s own premises. On July 24, 2010, the appellants reported the boat stolen; learned from the Monroe County Sheriffs Office that the boat had been repossessed; and (viewed in the light most favorable to the appellants) received the correspondence from the credit union’s attorney and a further notice letter from the credit union collections manager (dated July 21, 2010) advising the appellants of the repossession, demanding payment in full of the entire loan balance (including interest and fees) in order to redeem the boat, and notifying them that the boat would be sold at auction if the boat was not redeemed within the statutory ten-day period.

Through an attorney, the appellants notified the credit union (rather than the attorneys for the credit union) in writing that “we have evidence that our clients have complied with the Purchase and Sale Agreement of the vessel,” “that our clients have made their monthly payments due [to the credit union], on a timely basis,” and that “the taking of the vessel was unlawful and unwarranted, and without merit.” No documents or payment details accompanied the letter. The credit union’s attorneys responded that only the July payment was received and applied (after the repossession), and required that any proof to the contrary be submitted within two weeks or “we will advise the Credit Union to move forward with the sale of its repossessed collateral.” The appellants did not pay the past due amount under protest, provide copies of their own cancelled checks or account records to prove that the loan was actually current rather than past due, or seek any legal relief to prevent the sale of the boat under the applicable provisions of Florida’s Uniform Commercial Code.

On October 7, 2010, over three months after the initial credit union letter regarding the past due payments, and over two months after the appellants became aware of the repossession and the credit union’s legal position, National Liquidators sold the boat for net proceeds of $21,810.32, which was then applied to the defaulted loan. Two weeks later, the credit union filed, a complaint seeking payment of the deficiency amount. The appellants represented themselves, alleging (in the circuit court and here) violations of the federal Fair Debt Collection Practice Act and a failure to produce records. The credit union moved for summary judgment, supported by two affidavits and the supporting computations. The appellants filed an affidavit which did not address the salient elements of the credit union’s complaint or claim for a deficiency judgment. In February 2011, a final summary judgment was entered for $21,256.63 for the deficiency and attorney’s fees and costs.

The appellants filed a pro se “objection” to the summary judgment (including as well a motion to dissolve a garnishment and a claim of exemption), which the trial court treated as a timely motion for rehearing or to alter or amend the final judgment. The trial court denied those motions on May 17, 2011, and this appeal followed.

II. Analysis

Although the actions taken by the credit union seem aggressive, there is no question that they were authorized under the applicable loan documents and Florida statutory provisions. The appellants never provided competent evidence or an affidavit to establish that the May and June 2010 payments were made (when due, or after the credit union’s July demand). Section 4.04 of the ship mortgage authorized the credit union to, among other things, “[t]ake and enter into possession of the Vessel subject to this Mortgage at any time, wherever the same may be, without legal process,” at any time after default. Sections 679.609 and 679.610, Florida Statutes (2010), also authorized the repossession of the boat without judicial process “without breach of the peace,” and sale of the vessel in a “commercially reasonable” manner. Absent proof of a departure from the terms of the loan documents and statutory provisions, the credit union was then entitled under section 679.615 to establish and collect any remaining deficiency after application of the net sales proceeds.

The appellants’ claims were unavailing below and are equally unavailing here because those claims were legally insufficient and ignored the threshold problem — payment defaults. Left uneured, without a payment under protest, and lacking proof of actual payments to rebut the allegation of default, the defaults induced the credit union to pursue its remedies. This factual scenario and this appeal itself would be unremarkable and undeserving of a written opinion, were it not for two important occurrences.

A. The “Demand for Debt Validation”

The appellants filed, as part of their objection to any deficiency, a document that appears to have been copied from the internet, commencing with a bold legend, “Notice to the Principal is Notice to the Agent and Notice to the Agent is Notice to the Principal,” and including a request for sworn evidence “per FRE 602.” If that were the only such document, it would only be a further illustration of the need for a licensed attorney in such matters.

But the appellants later filed a “Demand for Debt Validation” from a person identified as Emory Eugene Exum with a mailing address in Masaryktown, Florida, in Hernando County. This remarkable document again commences with an all-caps, solemn legend that “notice to the agent is notice to the principal; notice to the principal is notice to the agent,” and includes the following commentary:

I am in receipt of your offer to contract in the form of a Civil Action, Case # 10-57217-CA-31, dated January 14, 2011 regarding Account No. 15805-21.
As I want to resolve this matter as soon as possible, and as such, I conditionally accept for value (Pursuant to UCC 1-308) your aforementioned offer ... and agree to perform to the original contract in full pending your response ....
DEMANDS
I, Emory Eugene Exum, demand that you provide the following list of documents certified as true and correct as so stated below:
1. The original lenders mortgage note or contract with wet ink signatures in the actual flesh and blood name of Juan Marcos Velazquez and Caridad Marquez, signed and witnessed by both parties and not a unilateral agreement, and upon which signed page is referenced to the entire agreement.
2. The title page that shows whether or not the lender’s note has already been satisfied.
If I have not received evidence of the above demands within three (3) business days (72 hours) of your receipt of this correspondence, I can only conclude that the claim on. this mortgage by South Florida Federal Credit Union is not valid and unenforceable [sic]....

After additional notices, demands, and commentary, Mr. Exum apparently signed the document for the appellants “under penalty of perjury,” “without prejudice,” and before a notary. According to the current directory of The Florida Bar, Mr. Exum is not a licensed Florida attorney.

We thus serve notice again that borrowers in financial distress (a) defend themselves in litigation without an attorney at their peril, and (b) must beware of schemes readily available on the internet and (typically) described by non-attorney “debt consultants.”

B. Extra-Record Documents

In the appendix to its answer brief, and with references to them in the answer brief (but without moving for leave of court to supplement the record), the credit union included copies of three checks purportedly sent by the appellants for monthly payments but returned by the appellants’ bank for insufficient funds. These checks were not a part of the record in the trial court. Counsel’s excuse at oral argument (that these needed to be submitted to respond to numerous extra-record documents filed here by the appellants) is rejected. Two wrongs never make a right in such matters, and obviously an attorney may not disregard Florida Rule of Appellate Procedure 9.200 simply because a pro se party has first done so.

Appellate review is limited to the record as made before the trial court at the time of the entry of a final judgment or orders complained of. It is entirely inappropriate and subjects the movant to possible sanctions to inject matters in the appellate proceedings which were not before the trial court.

Rosenberg v. Rosenberg, 511 So.2d 593, 595 n. 3 (Fla. 3d DCA 1987).

By separate order, we have denied the appellee’s motion for appellate attorney’s fees and costs for this reason. We also reaffirm the obvious by stating expressly that those extra-record documents played no part in, and were not pertinent to, our decision to affirm the rulings below.

III. Conclusion

For all of these reasons, we affirm the final summary judgment and post-judgment rulings entered by the circuit court, and we deny the credit union’s motion for appellate attorney’s fees and costs.

      . The appellants’ affidavit of February 16, 2011, states that the check was intended to be for the July 2010 monthly payment. Although the appellants in their affidavit denied receipt of a subsequent demand letter from the credit union’s attorneys, they did not (a) deny receipt of the credit union's past-due notice letter or telephone calls, or (b) deny that the loan was past due by two months in July 2010.

      . An attorney representing the appellants after the initial exchange of letters could have explored, among other things: (1) whether the credit union failed to produce discoverable documents as requested and, if so, whether the court would compel such production; (2) whether the loan could have been "worked out” and the defaults cured; (3) the legal sufficiency of the notice of sale of the boat; and (4) the commercial reasonableness of that sale.

      . See JPMorgan Chase Bank, N.A. v. Hernandez, - So.3d-, 2011 WL 2499641 (Fla. 3d DCA 2011), in which a borrower attempted (unsuccessfully) to use a "demand for validation of debt/claim,” "notice of intent to file discharge,” and "unilateral note” to turn her obligation to repay a residential mortgage debt of over $300,000 into a right to collect that amount from the foreclosing mortgage lender.


author: SHEPHERD, J.

text:
    Luis G. Laplana MARTINEZ, etc., et al., Appellants, v. ASCENSORES SERVAS, S.A., etc., Appellee.
    No. 3D10-241.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Rehearing Denied June 6, 2012.

      Berger Singerman and Michel O. Weisz, Miami, for appellant.
    Holland & Knight, and George Mencio, Jr., and Rebecca M. Plasencia, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal from a final judgment rendered after a non-jury trial, awarding the appellee, Ascensores Servas S.A. (As-censores), $600,000 jointly and severally against Luis Laplana Martinez, an individual, (Laplana) and Laplana Martinez y Asociados, C.A. (Laplana Asociados) and $1,716,076.14 against Laplana Asociados for breach of contract. The trial court also awarded $1,352,100 against Laplana, personally, for breach of the duty of loyalty. We affirm the trial court’s finding of liability against Laplana and Laplana Asocia-dos, but reverse and remand for recalculation of damages awarded.

Laplana Asociados and Ascensores entered into a pre-incorporation business agreement to establish a joint venture, later known as Servas USA Elevators, LLC (Servas USA), in Florida to manufacture, sell, and maintain elevators. The pre-in-corporation business agreement arranged for a 50/50 ownership of Servas USA, with Laplana Asociados making an initial cash capital contribution of $5,000,000 within six months of inception and Ascensores providing the technology for the manufacturing, marketing, systems rationalization, and sizing of the Servas USA product line. The agreement further provided that:

If, for strategic or opportunistic reasons, and with both parties’ consent, it is decided that the full contribution of Lapla-na Martinez y Asociados, C.A. is not necessary, the parties agree that the company will pay “THE TECHNOLOGICAL PARTNER” [Ascensores] 50% of the amount of capital that was not actually contributed as compensation.

After Laplana Asociados failed to meet its obligation to contribute the full $5,000,000, the parties entered into a Memorandum of Agreement on May 13, 2004, which modified the original contribution outlined in the pre-incorporation agreement. Under the modified agreement, Laplana Asociados and Laplana, in his personal capacity, would pay $600,000 to Ascensores as compensation and $800,000 to Servas USA to address cash flow issues. From Laplana’s corresponding portion of the profits, fifty percent (50%) was to be paid to Ascensores as compensation and fifty percent (50%) to Servas USA as a capital contribution, until the combined sum of $3,000,000 was reached. Furthermore, the agreement provided that if there was a breach of the modification, the obligations of the pre-incorporation business agreement, calling for the original $5,000,000 capital contribution, would govern again as a matter of law. Laplana and Laplana Asociados failed to make any of its payments under the modified agreement. Around September 2004, Servas USA ceased doing business.

Ascensores filed suit against Laplana and Laplana Asociados for judicial dissolution of Servas USA, breach of contract, breach of the duty of loyalty against La-plana for failure to perform the duties as a managing member, and for misuse of the company for personal benefits. After a non-jury trial, the trial court entered its final judgment, dissolving Servas USA, finding Laplana and Laplana Asociados liable for breach of the pre-incorporation agreement, and finding Laplana liable for breach of the duty of loyalty. In its final judgment, the trial court calculated the damages for breach of contract using the formula provided in the pre-incorporation business agreement — Ascensores was to be compensated for fifty percent (50%) of the amount Laplana and Laplana Asocia-dos failed to contribute of the $5,000,000 contribution. The trial court found Lapla-na made a contribution of $750,847.71 to Servas USA, but deducted $383,000 for improper use of company funds, for a total contribution of $367,847.71. This amount, subtracted from the initial $5,000,000, yielded a total balance of $4,632,152.29, of which the trial court awarded half, for a total award of $2,316,076.14 to Ascensores for breach of the pre-incorporation business agreement.

As to damages for breach of the duty of loyalty, the trial court awarded Ascensores $1,352,100 against Laplana, individually. The trial court derived this amount by awarding damages in three categories where Laplana breached his fiduciary duty. First, the trial court awarded $620,600, which equates to half the expenses Laplana improperly used for his personal benefit: one-half of $70,000 in payments Quality Elevators made to re-duee the Palmetto warehouse mortgage; one-half of $30,000 in payments for Lapla-na’s LeJeune Road office, which was used by Laplana’s personal secretary for his personal affairs and for eight to twelve other companies he owned; one-half of $30,000 for salary to a person who served as Laplana’s chauffeur, gardener, and personal assistant; one-half of $48,000 paid to Laplana’s accountant; one-half of $43,200 paid to Laplana’s personal secretary; one-half of $74,000 in payments for Laplana’s Mercedes Benz; one-half of $88,000 for Laplana’s personal expenses; and one-half of $858,000 for the acquisition value of Quality Elevators. Secondly, the trial court awarded Ascensores $87,000 in expenses it incurred in completing the installation of elevators after Laplana improperly decided to have Servas USA abandon the project. Lastly, the trial court awarded $644,500 to Ascensores for expenses it incurred in its preparatory work to qualify for UL approval, pursuant to the parties’ original pre-incorporation business agreement.

“[W]hen a cause is tried without a jury, the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.” Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005) (citing Federated Dep’t Stores, Inc. v. Planes, 305 So.2d 248, 248-49 (Fla. 3d DCA 1974)). Based upon our review of the record on appeal in this case, we find no clear error in the findings of the trial court in determining liability, and conclude competent substantial evidence supports the trial court’s findings as to the valuation of damages. However, “a double recovery based on the same element of damages is prohibited.” Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 199 (Fla. 2d DCA 2004); see also M & M Aircraft Servs., Inc. v. EC Tech., Inc., 911 So.2d 161, 161 (Fla. 3d DCA 2005) (holding because plaintiff, in its fraudulent inducement claim, received the full amount of its damages, any additional award of damages would have been an improper double recovery).

In this case, when the trial court determined the amount of damages owed in the breach of contract claim, the trial court found Laplana improperly used $383,000 of the company’s money for his personal use. To compensate Ascensores of this improper use, the trial court deducted the $383,000 from Laplana’s total capital contribution. In essence, the trial court awarded Ascensores a reimbursement of the money Laplana improperly used. Because Ascensores is made whole by the deduction of the $383,000 in the breach of contract claim, the trial court improperly awarded a double recovery to Ascensores by awarding one-half of the same expenses Laplana improperly used for his personal affairs in the breach of fiduciary duty claim. Thus, the awards amounting to one-half of the $70,000 in payments Quality Elevators made to reduce the Palmetto warehouse mortgage; one-half of $30,000 in payments for Lapla-na’s LeJeune Road office; one-half of the $30,000 salary to a person who served as Laplana’s chauffeur, gardener, and personal assistant; one-half of $48,000 paid to Laplana’s accountant; one-half of $43,000 paid to Laplana’s personal secretary; one-half of $74,000 in payments for Laplana’s Mercedes Benz; and one-half of $88,000 for Laplana’s personal expenses, should be vacated.

As to all other arguments raised on appeal, we conclude they lack merit and affirm. Affirmed in part, reversed in part, and remanded for further proceedings in compliance herewith.

      . This amount encompassed $70,000 in payments Quality Elevators made to reduce the Palmetto warehouse mortgage; $30,000 in payments for Laplana’s LeJeune Road office, used by Laplana’s personal secretary for his personal affairs and for eight to twelve other companies he owned; $30,000 for salary to a person who served as Laplana's chauffeur, gardener, and personal assistant; $48,000 paid to Laplana’s accountant; $43,000 paid to Laplana’s personal secretary; $74,000 in payments for Laplana’s Mercedes Benz; and $88,000 for Laplana’s personal expenses.

      . In finding Laplana did not sign the pre-incorporation business agreement in his individual capacity, but rather signed only the modification agreement, the trial court limited Laplana's damages to $600,000-the amount of compensation Laplana agreed to pay to Ascensores in the modification agreement-of the total damages for breach of contract. Laplana Asociados was held separately liable for the remaining $1,716,076.14 in damages.


author: STEVENSON, J.

text:
    SEIU FLORIDA PUBLIC SERVICES UNION, CTW, CLC (“FPSU”), Appellant, v. CITY OF BOYNTON BEACH, Florida, Appellee.
    No. 4D11-51.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied June 29, 2012.
    Shellie L. Sewell of Mier2wa & Associates, P.A., Lake Worth, for appellant.
    Shana H. Bridgeman and James A. Cherof of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

In this appeal, SEIU Florida Public Services Union, CTW, CLC (“SEIU”) challenges an order dismissing with prejudice its motion to confirm an arbitration order. Although the City properly filed a written notice of objection with the arbitrator to the alleged “untimely” delivery of the order, it failed to file the statutorily-required motion to vacate in the circuit court after the award was received. We therefore reverse and remand for further proceedings.

SEIU is the collective bargaining representative for certain “blue-collar” workers employed by the City of Boynton Beach. Here, in response to SEIU’s motion to confirm an arbitration award issued on October 12, 2009, concerning City-employee Paul Green, the City filed a motion to dismiss. At the hearing, the City argued that there was no valid arbitration award for the court to confirm as the arbitrator had acted in excess of his “jurisdiction” in failing to make the award within thirty days of submission of the briefs as provided in the arbitration agreement. See § 682.09(2), Fla. Stat. (2009) (“An award shall be made within the time fixed therefor by the agreement or provision for arbitration _”) (emphasis added). The briefs were submitted on May 9, 2009, and on October 5, 2009, the City filed a written objection to issuance of any award after June 9, 2009, as untimely. Thereafter, the arbitrator issued its decision on October 12, 2009. The City asserted that it had given the arbitrator timely written notice of its objection of an untimely award and that it was required to do nothing further. See § 682.09(2) (“Any objection that an award was not made within the time required is waived unless the objecting party notifies the arbitrators or umpire in writing of his or her objection prior to the delivery of the award to him or her.”). SEIU, on the other hand, insisted that because the City had failed to raise this issue in a timely motion to vacate, it was now too late for the City to avoid confirmation of the arbitration award on this ground. The trial court sided with the City and dismissed SEIU’s motion for confirmation. We agree with SEIU and reverse, finding that chapter 682 required the City to challenge the issuance of the arbitration award in a timely motion to vacate.

Confirmation of arbitration awards is governed by chapter 682, Florida Statutes. Section 682.12 provides that “the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in ss. 682.13 and 682.14.” (emphasis added). Section 682.13(2) provides that an application to vacate an arbitration award must be made within ninety days after delivery of a copy of the award to the applicant, except in cases predicated upon corruption, fraud, or other undue means. The language of section 682.12 is mandatory— the court must confirm the arbitration award unless a motion to vacate or modify has been filed within ninety days of delivery of the award. And, section 682.13 expressly provides for a motion to vacate “when ... [t]he arbitrators ... in the course of her or his jurisdiction exceeded their powers.” § 682.13(l)(c). Such language is sufficiently broad to encompass the claim advanced by the City in its motion to dismiss.

Klinefelter v. American Employers Insurance Co., 438 So.2d 864 (Fla. 4th DCA 1983), the case cited by the trial court in granting the City’s motion to dismiss, is distinguishable. In Klinefelter, this court held that the trial court erred in refusing to vacate the arbitration award where “[cjlearly the arbitrators acted too late and had no jurisdiction at the time the award was rendered.” Id. at 864. There is nothing in the Klinefelter opinion suggesting that the party who claimed the arbitrator had made the award outside of the time allowed by the contract or in the absence of “jurisdiction” did not timely file a motion to vacate.

Accordingly, the order dismissing SEIU’s motion to confirm arbitration award is reversed and the matter remanded so that the trial court may consider the merits of the same.

Reversed and Remanded.

MAY, C.J., and GROSS, J„ concur.


text:
    Cliff MILLER, Appellant, v. Steven MILLER and Connie L. Miller, etc., Appellee.
    No. 5D11-281.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Rehearing Denied May 30, 2012.
    Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellant.
    Joseph A. Frein and Regina E. Frein, of Joseph A. Frein, P.A., Orlando, for Appel-lee.
   PER CURIAM.

Appellant, Clifford Miller, as beneficiary of a family trust, filed a surcharge action against the co-trustees of the trust. He sought damages alleging that the co-trustees improperly entered into a lease agreement that did not provide fair market value to the trust. He also sought to void the lease agreement. The lease agreement at issue was entered into by the trustees on behalf of the trust and a company in which the trustees hold an ownership interest. Appellant appeals from a final judgment refusing to remove co-trustees, approving the lease renewal, authorizing payment of attorney’s fees from trust assets, and entering judgment in his favor on one of his claims. The trial court’s finding that the trustees acted in the best interest of the trust in entering the lease are supported by competent, substantial evidence. Additionally, the trial court correctly concluded that Appellant failed to prove damages that would support imposing a surcharge against the trustees. See Crusselle v. Mong, 59 So.3d 1178, 1181 (Fla. 5th DCA 2011) (“The elements of a cause of action for breach of fiduciary duty are (1) the existence of a duty, (2) breach of that duty, and (3) damages flowing from the breach.”).

However, the evidence was not sufficient to support approval of a new or renewed lease, prospectively. The original lease did not contain a renewal clause, and although one of the trustees testified that a new lease had been entered, the purported new lease was not presented to the court for approval. Accordingly, we affirm the final order in all respects except for the provision approving a renewed lease. It will be incumbent upon the trustees to secure approval of any new lease for the property, which involves a potential conflict of interest. See § 736.0802(2)(b), Fla. Stat. (2010).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA, LAWSON and JACOBUS, JJ., concur.

      . A surcharge action seeks to impose personal liability on a fiduciary for breach of trust through either intentional or negligent conduct. See Black’s Law Dictionary 1441 (6th ed. 1990); see also Harding v. Rosoff, 951 So.2d 912, 914 (Fla. 4th DCA 2007) (defining "surcharge” as "charge against a fiduciary to compensate a beneficiary for the breach of fiduciary duty”); Merkle v. Guardianship of Jacoby, 862 So.2d 906, 907 (Fla. 2d DCA 2003) (defining "surcharge” as “the amount that a court may charge a fiduciary that has breached its duty”).


text:
    Frederick Charles DUTTON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5871.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Rehearing Denied June 19, 2012.
    Frederick Charles Dutton, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Frederick Charles Dutton, Jr., presents a timely claim of ineffective assistance of appellate counsel. He asserts that his appellate counsel failed to properly argue that the trial court erred in imposing a three year minimum mandatory sentence under the Law Enforcement Protection Act (“LEPA”), section 775.0823, Florida Statutes. However, because the trial court was required by section 316.1935(3)(b), Florida Statutes, to impose the minimum mandatory term complained of, petitioner suffered no prejudice as a consequence of counsel’s alleged deficiency. Accordingly, the petition alleging ineffective assistance of appellate counsel is DENIED on the merits.

Nonetheless, because the portion of petitioner’s written judgment and sentence identifying LEPA as the basis for the minimum mandatory term is an obvious clerical error, we direct the trial court to correct the judgment and sentence to reflect that the minimum mandatory term was in fact imposed pursuant to section 316.1935(3)(b), Florida Statutes.

PADOVANO, LEWIS, and CLARK, JJ., concur.


author: RAMIREZ, J. WELLS, C.J.,

text:
    Lucia A. DOUGHERTY, on behalf of contract Vendee J. Laurence EISENBERG, Trustee, Petitioner, v. CITY OF MIAMI, Florida, etc. et al., Respondents.
    No. 3D11-1701.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Rehearing Denied July 2, 2012.

      Goldstein, Tanen & Trench, P.A., and Susan E. Trench, Miami, for petitioner.
    Julie O. Bru, City Attorney, Rafael Suarez-Rivas and John A. Greco, Assistant City Attorneys, for respondent City of Miami; Kaplan Zeena LLP and Michael A. Sastre, Miami, for respondent Morningside Civic Association.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   RAMIREZ, J.

This dispute involves the permitting process for a building in the Morningside area of the City of Miami. This is the third appeal of this case. Petitioner seeks cer-tiorari to the Circuit Court for Miami Dade County, which ruled in its appellate capacity upon a decision from the City of Miami Commission. Dougherty contends the Circuit Court departed from the essential requirements of law when it affirmed the City Commission’s changes to a permit application already approved by the appropriate agency within the City. We agree, and consequently, grant the petition.

Dougherty sought a special permit to construct a residential building planned as a 135-foot, 14-floor, 98-unit residential building. In 2003, the Zoning Plans Examiner signed the Permit Referral after finding the project was in compliance with all applicable zoning regulations. Dough-erty then filed the application with the City of Miami Planning and Zoning Department.

In the next step of the process, the City’s Design Review Committee made recommendations directed toward control of potentially adverse impacts the proposed structure would have on the surrounding neighborhood. As a result, the proposed building was reduced in scale, to 90 feet in height, eight floors, and 63 units. The City’s Urban Development Review Board unanimously recommended approval with those conditions. The Planning and Zoning Board (“Zoning Board”), reviewed the Urban Development Review Board’s recommendations, and found the modified project satisfied the applicable requirements and approved the permit application. The Planning and Zoning Director accepted the Zoning Board’s recommendation.

After the Planning and Zoning Director’s approval was issued, Morningside Civic Association and the other citizen respondents (collectively, “Morningside”), appealed to the Zoning Board. The Zoning Board denied the appeal. Morningside appealed to the City Commission, which, after a de novo hearing, reversed the Zoning Board. Dougherty appealed to the Circuit Court, which determined the City Commission improperly exceeded its appellate jurisdiction by considering new evidence and not including necessary findings of fact. Morningside failed in its appeal of that decision to this Court.

On remand from the first appeal, the City Commission conducted a de novo hearing, and approved the permit but required a further height reduction to 35 feet from the previously approved height. Dougherty appealed again, and the Circuit Court affirmed the City Commission. Dougherty sought certiorari from this Court, which granted the petition. Dougherty v. City of Miami, 23 So.3d 156 (Fla. 3d DCA 2009). The Circuit Court determined the City’s legislation permitted City Commission review of the record from the Zoning Board, not a de novo review of the permit application’s merits. After appeal to this Court, the Circuit Court’s determination became binding as the law of the case. See Dougherty, 23 So.3d at 157.

On remand from the second appeal, the City Commission conducted a de novo review and again imposed the 35-foot height limitation. Dougherty appealed to the Circuit Court, which denied relief in a PCA opinion. Dougherty now seeks cer-tiorari.

When we address a petition for second-tier certiorari, we determine whether the circuit court afforded the parties due process and adhered to the essential requirements of law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010). Our role requires “assessment of the gravity of the error and the adequacy of other relief.” Id. (quoting Haines City Comm. Dev. Co. v. Heggs, 658 So.2d 523, 531 (Fla.1995)). “The writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.” Broward County, v. G.B.V. Int’l Ltd., 787 So.2d 838, 842 (Fla. 2001). The lower court’s application of the wrong standard of review can be corrected through certiorari. Id. at 845.

The law from which we measure the departure in this case was established in an earlier appeal. “Under the law of the case doctrine, questions of law that actually have been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings.” State, Dep’t of Revenue v. Bridger, 935 So.2d 536, 538 (Fla. 3d DCA 2006). The lower court’s failure to follow the law of the case warrants certiorari because such failure exceeds the court’s role in the appellate process. See Bridger, 935 So.2d at 539; see also Parker Family Trust I v. City of Jacksonville, 804 So.2d 493, 498 (Fla. 1st DCA 2001); accord Dougherty, 23 So.3d at 158.

In this case, the circuit court erred when it affirmed the City Commission. The law of the case required the City Commission to conduct a limited appellate review of the Zoning Board, not a de novo review. The applicable standard of review was a question of law actually decided in the earlier appeal. Despite this, the City Commission record shows that it either: a) considered additional evidence, rather than relying upon the evidence already in the record when evaluating if the permit could survive; or b) rejected the evidence upon which the Zoning Board relied, without any basis. Either process amounts to de novo review. The City Commission endeavored to rehear the evidence and objections, rather than review whether the Zoning Board correctly affirmed the Department of Planning and Zoning Director’s determination to grant the permit. This process was contrary to the law of the case. The City Commission’s de novo review deprived Dougherty of the previously successful application without any legal basis and allowed the respondents an additional bite at the apple not contemplated under either the City’s Code or the appellate pronouncements in this case.

As the Florida Supreme Court has stated, our certiorari jurisdiction in these types of cases is limited. G.B.V. Int’l, Ltd., 787 So.2d at 845 (“Once the district court granted certiorari and quashed the circuit court order-i.e., once the court halted the miscarriage of justice-the district court’s job was ended.”). Thus, because we can only affect the Circuit Court’s, and not the City Commission’s, decision, we grant the petition for writ of certiorari, and quash the Circuit Court’s PCA decision. We note, however, that allowing the special exception granted by the Zoning Board, after it performed its delegated duty under the City’s Code, to again be rescinded would be unfair. See, e.g., Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708, 710 (Fla. 3d DCA 2000). If we were able to direct the City Commission to affirm the Zoning Board’s determination, the result which would have occurred but for the City Commission’s erroneous de novo review almost eight years ago, we would do so.

Petition granted; decision quashed.

WELLS, C.J.,

specially concurring.

For the same reasons stated in my special concurrence in Dougherty v. City of Miami, 23 So.3d 156, 163 (Fla. 3d DCA 2009), I agree that the most recent decision from the Appellate Division of the Circuit Court must be quashed:

[WJhile I cannot agree with the reasons set forth by the appellate division in its July 2006 opinion for reversing the City commission’s decision to deny the instant permit, I nonetheless agree with the majority herein that by virtue of that opinion and this court’s refusal to review it, the Commission was obligated on remand to: (1) limit its review to the record before the ZAB; and (2) state its reasons for any determination that it made. It would also appear that by virtue of the appellate division’s reliance on the zoning code prior to its January 2004 amendment, this is the version of the code to be applied below.

The City Commission’s August 3, 2010 Resolution, on its face, confirms that under the previously mandated “limited review,” Doughtery is entitled as a matter of law to its Class II permit without the modifications imposed in the August 3 Resolution. The Appellate Division’s decision to affirm denial of this permit must, therefore, be quashed with instructions on remand to reverse the August 3 Resolution and remand to the City Commission for further legislative action consistent with the statements made herein.


text:
    Ivory MILES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6854.
    District Court of Appeal of Florida, First District.
    April 27, 2012.
    Rehearing Denied June 20, 2012.
    Ivory Miles, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court did not abuse its discretion by denying Appellant’s motion for extension of time to file a motion for rehearing and denying the motion for rehearing as untimely. Because the motion for rehearing was untimely, it did not toll the rendition of the final order for purposes of seeking this appeal. Fla. RApp. P. 9.020(h). This appeal is thus untimely and is DISMISSED. Gary v. State, 5 So.3d 713 (Fla. 1st DCA 2009).

PADOVANO, ROWE, and MARSTILLER, JJ., concur.


author: WELLS, Chief Judge.

text:
    In re The Marriage of Stefano GUIZZARDI, Appellant, v. Rosario GUIZZARDI, Appellee.
    No. 3D11-1745.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Rehearing Denied June 6, 2012.

      Claudio R. Cedrez Pellegrino, for appellant.
    Ricardo E. Pines, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   WELLS, Chief Judge.

Stefano Guizzardi appeals from a post-dissolution order granting his former wife Rosario Guizzardi’s petition to relocate the parties’ minor child to Lima, Peru. We reverse and remand with instructions.

On September 11, 2006, a final judgment of dissolution of marriage incorporating two settlement agreements was entered. Pursuant to the final judgment, the parties were to share parental responsibility with each parent to enjoy liberal visitation rights, the mother being deemed the primary residential parent once the child reached school age. The final judgment also provided that the child was not to relocate outside Miami-Dade or Broward Counties without the consent of both parents:

The Parties shall not relocate to an area outside of Miami-Dade or Broward county with the minor child. The Parties shall not permanently remove the minor child from Miami-Dade or Bro-ward county without the knowledge and consent of the other parent.

On November 17, 2010, the mother filed a Notice of Intent to Relocate Child, requesting leave to relocate the child to Peru. Claiming best interests of the child at stake, she maintained that circumstances had changed since the divorce and that, while she had diligently pursued but ultimately had been unable to secure employment locally, she had obtained employment in Lima where her family lived. The notice also claimed that the father had not been able to financially support the child as ordered in the final judgment and that he was in arrears on his child-support obligations.

On June 7, 2011, the father moved to dismiss, arguing that the court below lacked subject matter jurisdiction because the mother relied on the wrong version of the Florida statutes governing relocation requests. The trial court rejected this argument and subsequently ruled that the mother had satisfied the requirements imposed by section 61.13001(7) of the Florida Statutes and that she would be allowed to relocate. The father claims here, as he did below, that because section 61.13001 is inapplicable to the instant controversy, the court below lacked subject matter jurisdiction to consider this relocation request. We disagree with this argument.

“ ‘[Subject matter] jurisdiction,’ in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action.” MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)) (citing Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927), for the proposition that “[s]ubject matter jurisdiction ‘concerns the power of the trial court to deal with a class of eases to which a particular case belongs’ ”). Relocation requests, whether made under section 61.13001 or the law preceding adoption of that provision, fall squarely within Chapter 61 of the Florida Statutes and the jurisdictional purview of the circuit courts. See § 61.13001(l)(b), Fla. Stat. (2009) (defining the term “Court” as used in section 61.13001 as “the circuit court in the county in which either parent and the child reside”); § 61.13001(7), Fla. Stat. (2009) (conferring authority on “the court” to order relocation following evaluation of the criteria listed therein); § 61.13(2)(d), Fla. Stat. (2005) (governing relocation requests from October 1, 2005, through September 30, 2006, and conferring jurisdiction on “the court” to adjudicate such requests); see also § 26.012(2)(c), Fla. Stat. (2004) (governing jurisdiction of the circuit courts stating that circuit courts have original jurisdiction “[i]n all cases in equity including all cases relating to juveniles”); see also Brown v. Broum, 790 So.2d 453-54 (Fla. 1st DCA 2001) (confirming that a circuit court had the authority to modify provisions of a final judgment prohibiting relocation).

Thus, while we agree that the trial court erred in applying section 61.13001 to the instant relocation request because that provision states that it applies to orders entered before October 1, 2009, if those orders “do[ ] not expressly govern relocation of the child,” we cannot agree that this error deprived the court below of jurisdiction to consider this relocation request. Nor can we agree that the instant order must be reversed because the court below determined that the criteria set forth in section 61.13001 had been met. That provision encompasses all of the requirements of the law previously governing relocation requests (section 61.13(2)(d)) and then some.

We do, however, reverse the order entered below because we are unable to discern from either the order or from the record whether a substantial change in circumstances has occurred to justify modifying the judgment at issue here:

[Tjhere is no restriction on change of residence by a custodial parent unless such a restriction is contained in the final judgment of dissolution, and even if such restriction does appear, the custodial parent is not barred from obtaining a modification-upon a showing of a substantial change in circumstances and that it would be in the best interests of the child-approving removal of the child from the state or jurisdiction.

McIntyre v. McIntyre, 452 So.2d 14, 20 (Fla. 1st DCA 1984); Mize v. Mize, 621 So.2d 417, 420 (Fla.1993) (concluding that in addition to consideration of the factors subsequently delineated in sections 61.13 and 61.13001 relating to best interests of the child, “in cases where the final judgment incorporates a prohibition against the relocation of the child thereby reflecting that the issue was litigated, the parent with the primary residential responsibility must show a change of circumstances in order to justify the relocation”); Lancaster v. Briley, 932 So.2d 549, 550-51 (Fla. 1st DCA 2006) (“In cases where a final judgment of divorce incorporates an express prohibition against relocation, the moving party must show a change of circumstances in order to justify relocation.”); MacConnell v. Cascante, 668 So.2d 668, 669-70 (Fla. 4th DCA 1996) (concluding that in addition to the Mize (or section 61.13 and 61.13001) factors, “where the final judgment incorporates a prohibition against the relocation of the child, the parent with primary residential responsibility must show a change of circumstances to justify the relocation”).

For this reason alone we reverse and remand for a determination as to whether this requirement has been met.

Reversed and remanded with instructions.

      . Section 61.13001(11 )(a) 1. states that this provision applies "[t]o orders entered before October 1, 2009, if the existing order ... does not expressly govern the relocation of the child.” Added by Laws 2006, c. 2006-245, § 2, eff. Oct. 1, 2006. Amended by Laws 2008, c. 2008-61, § 9, eff. Oct. 1, 2008; Laws 2009, c.2009-21, § 5, eff. July 7, 2009; Laws 2009, c.2009-180, § 4, eff. Oct. 1, 2009.


text:
    Jerome FELDMAN and Networks USA XXX LLC, Appellants/Cross-appellees, v. VILLA REGINA ASSOCIATION, INC., a Florida Corporation, Appellee/Cross-appellant.
    No. 3D10-1328.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Rehearing Denied June 6, 2012.

      Robert S. Glazier, for appellants/cross-appellees.
    Cooney Trybus Kwavnick Peets and Warren B. Kwavnick (Fort Lauderdale); Vernis & Bowling and Andrew W. Bray, for appellee/cross-appellant.
    Before WELLS, C.J., and EMAS, J„ and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Jerome Feldman and Networks USA XXX LLC appeal from an order granting defendant, Villa Regina Association, Inc.’s, motion for new trial. Villa Regina cross-appeals from an order denying its motion for judgment in accordance with its motion for directed verdict. We reverse both orders and remand with instructions to enter judgment in Villa Regina’s favor.

This action involves a number of claims all arising from alleged water intrusion, and damage therefrom, into a condominium unit owned by Feldman. From the start, and consistently throughout, Feld-man chose to proceed solely on the theory that the injury to his unit was permanent and sought to recover only the “substantial diminution in the value of the [condominium] and loss of use (fair rental value)” caused by the water intrusion. See Bisque Assocs. of Fla., Inc. v. Towers of Quayside No. 2 Condo. Ass’n, 639 So.2d 997, 999 (Fla. 3d DCA 1994) (wherein this court explained that “[ujnder general principles of tort law, where the injury to real property is merely temporary, or where the property can be restored to its original condition at reasonable expense, the measure of damages should include the cost of repairs or restoration. Where the cost of repair exceeds the value of the property in its original condition, or where restoration is impracticable, [referred to in other cases as a permanent injury] the measure of damages is diminution of value”) (citations omitted).

At trial, and consistent with his representations throughout, Feldman made no effort to prove the cost of restoring the unit but sought to establish only how much the value of the unit had been diminished by virtue of the alleged water intrusion. In doing so, he introduced the testimony of licensed appraiser Lee War-onker who utilized an estimate provided by a general contractor for repairs to the unit in determining the diminution in value of the unit. At the close of the testimony, the jury was asked whether the damage suffered, if any, was permanent as opposed to temporary. See Bisque, 639 So.2d at 999 (reversing and remanding for new trial on damages “so that a jury may decide the nature of the injury and, accordingly, the measure and amount of damages due”). The jury returned a verdict finding that the damage suffered by Feldman was temporary, with no diminished value attributable to a permanent injury. On that determination, judgment should have been entered in Villa Regina’s favor.

However because the verdict form additionally asked the dollar amount of damages due for a temporary injury, which the jury pegged at $1,453,000, and because there was no evidentiary support for this award, the court below granted a motion for a new trial on damages. Because Feldman sought only diminution value for a permanent loss, a claim rejected by the jury, no basis exists for determining restoration damages — damages that Feld-man repeatedly renounced. Judgment should have been entered for Villa Regina. See Resorts Int'l, Inc. v. Charter Air Ctr., Inc., 508 So.2d 1298, 1295 (Fla. 3d DCA 1987) (“ ‘It is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.’ Atl. Co. v. Orendorff, 156 Fla. 1, 22 So.2d 260, 263 (1945) (en banc); see also Mansell v. Foss, 343 So.2d 910 (Fla. 3d DCA 1977).”); accord Wellcraft Marine Corp. v. Outdoor World, Inc., 533 So.2d 775, 776 (Fla. 3d DCA 1988).

The orders on appeal are, therefore, reversed with this cause remanded for entry of judgment in Villa Regina’s favor.

      . Title to the condominium unit at issue here initially was held by Feldman and his wife but later was transferred to Networks USA XXX, LLC. While both Feldman and Networks are appellants/cross-appellees here, they will be referred to collectively as Feldman.

      . To this end, Feldman's counsel repeatedly represented to both the court and opposing counsel that "our claim is for diminution of value only. I'm not seeking restoration damages. I won’t ask the court for restoration damages.”

      . Q. So after you determined the market value of the unit in the undamaged condition, Mr. Waronker, how do you go about determining the value of the unit as it really was at that time?
      A. As it was, the first thing we deducted was the cost that was provided to us by, I think it was Southern, was a cost to repair the unit.
      Q. Now you’re referring to an estimate for construction costs, by Southern Construction Services?
      A. Yes, sir.
      Q. That’s a licensed general contractor?
      A. To my knowledge.
      Q. Is this the type of information that an appraiser would look at, an estimate, a construction cost estimate, in determining diminishment of value?
      A. In fact, I think our letter of authorization to the client asked that they provide us with a cost estimate by a licensed contractor.
      Q. Now, what was the estimate by Southern Construction Services to repair the unit?
      A. Rounded, 1,453,000.

      . No competent, substantial evidence was adduced below to support an award of restoration costs. Waronker's testimony citing to a general contractor’s repair estimate, the only testimony adduced regarding restoration costs, could not be used as a conduit for introducing this otherwise inadmissible evidence. As this Court made clear in Smithson v. V.M.S. Realty, Inc., 536 So.2d 260, 261-62 (Fla. 3d DCA 1988):
      Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and the data are the type reasonably relied on by experts on the subject, Bender v. State, 472 So.2d 1370 (Fla. 3d DCA 1985); Sikes v. Seaboard Coast Line R. Co., 429 So.2d 1216, 1222 (Fla. 1st DCA) review denied, 440 So.2d 353 (Fla. 1983); Gomez v. Couvertier, 409 So.2d 1174 (Fla. 3d DCA 1982); ... the witness may not seive as a conduit for the presentation of inadmissible evidence. See Sikes, 429 So.2d at 1222-23.
      (Emphasis added.); see Erwin v. Todd, 699 So.2d 275, 111 (Fla. 5th DCA 1997); Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995).

      . This determination resolves the additional points raised in both the appeal and the cross-appeal.