author: POLEN, J.

text:
    Vera RASTAEDT, Appellant, v. MERCEDES-BENZ USA, LLC, Appellee.
    No. 4D09-2156.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Rehearing Denied June 28, 2011.
    Theodore F. Greene III of Law Offices of Theodore F. Greene, LC, Orlando, for appellant.
    Yasir Billoo of Golden & Grimes LLP, Miami, for appellee.
   POLEN, J.

Appellant, Vera Rastaedt, appeals the trial court’s final judgment entered after the court granted appellee, Mercedes-Benz USA, LLC’s (Mercedes), motion for judgment on the pleadings as to Rastaedt’s claim of breach of express warranty under the Magnuson Moss Warranty Act, 15 U.S.C. 2301, et seq. (MMWA).

On October 16, 2006, Rastaedt purchased a 2005 Mercedes SLK 350 from Mercedes-Benz of Palm Beach for $40,826.80. Mercedes issued and supplied to Rastaedt its written warranty, which included the balance of a four (4) year or fifty thousand (50,000) mile bumper to bumper warranty. The limited warranty provides, in pertinent part:

DEFECTS: Mercedes-Benz USA, LLC (MBUSA) warrants to the original and each subsequent owner of a new Mercedes-Benz passenger car that any authorized Mercedes-Benz Center will make ány repairs or replacements necessary, to correct defects in material or workmanship arising during the warranty period.
ANY MERCEDES-BENZ CENTER: Any authorized Mercedes-Benz Center of the owner’s choice will perform warranty repairs or replacements. The vehicle should be delivered to the Mercedes-Benz Center during normal service hours. A reasonable time should be allowed after taking the car to the Mercedes-Benz Center for performance of the repair.

Rastaedt alleges that shortly after she took possession of the vehicle, she learned of various defects that substantially impaired her use and the value and safety of the vehicle. Accordingly, Rastaedt delivered the SLK 350 to the manufacturer, through its authorized dealership network, “on numerous occasions.” Rastaedt alleges that the vehicle had been subject to repair on at least three occasions for the same defect and that the defect remained uncorrected. On April 1, 2008, Rastaedt sued Mercedes for breach of express warranty under the MMWA, 15 U.S.C. 2301, et seq. Rastaedt complained of the following defects:

a.Defective windows, trunk, convertible top, and body as evidenced by persistent water leaks and the failure of the trunk lid to stay open and the failure of the convertible top to open;
b. Defective moon roof as evidenced by its failure to properly close;
c. Defective air conditioner as evidence by its failure to properly cool;
d. Defective suspension and/or alignment as evidenced by the car pulling to the right;
e. Defective trim items as evidenced by various cracks and scratches;
f. Any other defects as reflected in the repair documents generated by Defendant’s authorized dealer network and in Defendant’s internal repair records for the subject vehicle.

Rastaedt alleges that she provided the manufacturer “sufficient opportunities to repair the SLK350 [sic]” and that the manufacturer was unable and/or failed to repair the defects “within a reasonable number of attempts, reasonable opportunity to cure, and/or reasonable amount of time.” Accordingly, Rastaedt revoked her acceptance of the vehicle, but Mercedes refused her demand. Based on these allegations, Rastaedt pled one count of breach of written warranty pursuant to the MMWA, and sought, among other relief, to revoke her acceptance of the vehicle in accordance with 15 U.S.C. § 2310(d) and section 672.608, Florida Statutes, and to recover all monies paid for the vehicle.

In January 2009, following the Third District’s decision in Ocana v. Ford Motor Co., 992 So.2d 319 (Fla. 3d DCA 2008), Mercedes moved for judgment on the pleadings, arguing that Rastaedt’s claim was based on a limited warranty which, under Ocana, was not governed by the MMWA. Rastaedt responded to the motion, and explicitly stated, “To be clear, Plaintiff does not rely upon § 2304 of the Warranty Act” and limited her argument solely to section 2310(e) of the MMWA. Rastaedt argued that Ocana dealt only with section 2304 of the MMWA where Rastaedt relied on section 2310(e). According to Rastaedt, the plaintiff in Ocana failed to recognize the application of section 2310(e) to limited warranties, and as a result, the court failed to address section 2310.

Following a hearing, the court ultimately granted the motion for judgment on the pleadings and entered a final judgment for Mercedes. The court found:

The limited warranty here provides that Defendant “will make any repairs or replacements necessary, to correct defects in material or workmanship arising during the warranty period.” Plaintiff, like the plaintiffs in Ocana and Chaurasia [v. General Motors Corp., 212 Ariz. 18, 126 P.3d 165 (App.2006) ], is attempting to claim the benefit of a full warranty to which she is not entitled. Plaintiff, although attempting to distinguish this case from Ocana, states in her response to the Motion that she has met the standard of failure to adequately repair as set out in Ocana. The Complaint repeatedly states that Defendant failed to adequately repair within a reasonable period of time, and is not based on repudiation of the limited warranty. Plaintiff attempts to engraft a reasonableness attempt onto the limited warranty.

Rastaedt now appeals and argues the trial court erred in granting the motion for judgment on the pleadings because the MMWA applies to limited warranties and the court misconstrued the Ocana holding. Mercedes replies that there was no error because the MMWA does not address any substantive requirements for limited warranties, and section 627.719, Florida Statutes, does not correct the defects in the complaint.

A trial court’s decision on a motion for judgment on the pleadings is subject to de novo review. Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003). The MMWA, 15 U.S.C. §§ 2301, et seq., at issue here, governs written warranties on consumer products. Section 2303 of the MMWA provides for designation of all written warranties as either “full” or “limited” warranties:

(a) Full (statement of duration) or limited warranty
Any warrantor warranting a consumer product by means of a written warranty shall clearly and conspicuously designate such warranty in the following manner, unless exempted from doing so by the Commission pursuant to subsection (c) of this section:
(1) If the written warranty meets the Federal minimum standards for warranty set forth in section 2304 of this title, then it shall be conspicuously designated a “full (statement of duration) warranty”.
(2) If the written warranty does not meet the Federal minimum standards for warranty set forth in section 2304 of this title, then it shall be conspicuously designated a “limited warranty.”

Section 2304 of the MMWA provides the minimum federal standards applicable only to full warranties:

(a) Remedies under written warranty; duration of implied warranty; exclusion or limitation on consequential damages for breach of written or implied warranty; election of refund or replacement
In order for a warrantor warranting a consumer product by means of a written warranty to meet the Federal minimum standards for warranty—
(1) such warrantor must as a minimum remedy such consumer product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with such written warranty;
(2) notwithstanding section 2308(b) of this title, such warrantor may not impose any limitation on the duration of any implied warranty on the product;
(3) such warrantor may not exclude or limit consequential damages for breach of any written or implied warranty on such product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and
(4) if the product (or a component part thereof) contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such war-rantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be). The Commission may by rule specify for purposes of this paragraph, what constitutes a reasonable number of attempts to remedy particular kinds of defects or malfunctions under different circumstances. If the warrantor replaces a component part of a consumer product, such replacement shall include installing the part in the product without charge.

15 U.S.C. § 2304. In other words, a full warranty is one that complies with the federal standards established by section 2304. Section 2304(a)(1) provides that, where a manufacturer has issued a full warranty, it must “as a minimum remedy such consumer product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with such written warranty.” Id.

As Mercedes points out, the legislative history of the MMWA makes it clear that the “reasonable number of attempts” provision is “designed to rectify the situation where a consumer has received a product which turns out to be a ‘lemon’ or where the supplier’s repair system is so ineffectual that defects are not corrected even though the product is repeatedly returned for repair.” S.Rep. No. 151, 93rd Cong., 1st Sess. 19 (1973). As the authors of Clark & Smith, The Law of Warranties, § 16:1 (2007-08) have explained, “[t]his much heralded ‘lemon-aid’ provision applies only to products covered by full, not limited, warranties.”

Here, Mercedes relies heavily on Ocana, in which a lessee of a Ford vehicle sued Ford under the MMWA, alleging that he had given the vehicle to Ford to fix four different times during the course of a single year; that Ford failed to fix the vehicle within a reasonable period of time; and as such, Ford had violated the MMWA. 992 So.2d at 322-23. The Ocana court held:

[T]he Act is virtually silent with respect to the imposition of requirements on manufacturers or sellers who issue a “limited” warranty. The only prescribed requirement is that such a warranty may not disclaim or limit the duration of an implied warranty to a period shorter than the duration of the express warranty. 15 U.S.C. § 2308(b). There fore, the question whether a warrantor has committed a breach of a limited express warranty under the Act is governed by state law. Under this state’s law, there can be no cause of action for breach of an express limited warranty unless the consumer can allege and prove that the manufacturer did not comply with the limited express %oar-ranty’s terms. See § 672.313, Fla. Stat. (2006).

Id. at 323-24 (citations omitted; emphasis added). The limited express warranty issued by Ford on the leased vehicle in Ocana stated: “[Ford] warrants that during the warranty period, if a Land Rover vehicle is properly operated and maintained, repairs required to correct defects in factory-supplied materials or factory workmanship will be performed without charge upon presentment for service[.]” Id. at 324. The Ocana court determined that, in order “[t]o recover for a breach of this warranty, a warrantee therefore must allege and prove that Ford refused or failed to adequately repair a covered item.” Id. The court found that instead of following this more traditional pleading pathway, Ocana sought to impose liability on Ford “by legally engrafting the Federal minimum standards applicable to ‘full (statement of duration) ... warrantees]’ found in section 2304(a) of the MMWA [ ... ] onto all written warranties” (emphasis in original). Id. In particular, Oca-na sought to proceed on the basis of section 2304(a)(4), the so-called “reasonable number of repair attempts provision,” which states that:

[I]f the product ... contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be). Id. In his complaint, Ocana alleged only that “PLAINTIFF has taken the VEHICLE to the MANUFACTURER’S seller/agent on at least four (4) separate occasions.” Id. However, the court found that “Where is no allegation Ford did not comply with a provision of the express warranty” Id. at 324 (emphasis added). The court stated that “no allegation in the complaint that Ford either refused to repair the vehicle or otherwise failed to adequately repair the vehicle under the warranty at any time.” Id. at 322 (emphasis added). Instead, the gravamen of the plaintiffs complaint in Ocana was that “ ‘Ford Motor Company and Warren Henry Automobiles[,] Inc. breached their express and implied warranties [under the MMWA] by failing to repair the vehicle within a reasonable amount of time or reasonable number of repair attempts’ within the meaning of section 2304.... ” Id. at 322-23. The trial court concluded this focus of the complaint was insufficient to prosecute a MMWA claim for breach of a limited warranty, and, upon counsel’s representation that he did not desire to amend his complaint on this or any other ground, dismissed the complaint with prejudice as to Ford. Id. at 323. Because the warrantee in Ocana merely alleged that Ford failed to repair the vehicle within a reasonable amount of time, the court held he failed to state a cause of action for breach of a limited warranty under section 2304 of the MMWA. Id. at 324.

However, as stated above, Ras-taedt’s limited warranty provides:

DEFECTS: Mercedes-Benz USA, LLC (MBUSA) warrants to the original and each subsequent owner of a new Mercedes-Benz passenger car that any authorized Mercedes-Benz Center will make any repairs or replacements necessary, to correct defects in material or workmanship arising during the warranty period.
ANY MERCEDES-BENZ CENTER: Any authorized Mercedes-Benz Center of the owner’s choice will perform warranty repairs or replacements. The vehicle should be delivered to the Mercedes-Benz Center during normal service hours. A reasonable time should be allowed after taking the ear to the Mercedes-Benz Center for performance of the repair.

(Emphasis added). Thus, given the language of Rastaedt’s express limited warranty, to plead a cause of action for breach of warranty under the MMWA, Rastaedt simply had to allege that Mercedes failed to make the repairs or replacements necessary to correct the defects in the vehicle after being given a reasonable amount of time to perform the repair. Ocana is distinguishable on its facts because in this case, Rastaedt’s warranty actually states: “A reasonable time should be allowed after taking the car to the Mercedes-Benz Center for performance of the repair.” As was held in Ocana, “[u]nder this state’s law, there can be no cause of action for breach of an express limited warranty unless the consumer can allege and prove that the manufacturer did not comply with the limited express warranty’s terms.” Here, Rastaedt alleged in her complaint that she provided Mercedes a reasonable time for performance of the repair, and has thus sufficiently pled breach of the warranty pursuant to the terms of her warranty.

Further, Rastaedt relies on section 2310 of the MMWA, entitled “Remedies in consumer disputes,” which was not at issue in Ocana. Below and on appeal, Rastaedt has relied on section 2810(d) and (e) of the MMWA, instead of section 2804, to support her argument that Mercedes was required, under the limited warranty, to correct the defects if given a reasonable opportunity to do so, and that Mercedes’ failure to do so amounted to a violation of the MMWA. Section 2310(d) provides:

(d) Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims (1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, war-rantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—
(A) in any court of competent jurisdiction in any State or the District of Columbia; or
(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.

The Act defines “written warranty” as follows:

(6) The term “written warranty” means—
(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking,
which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

15 U.S.C. § 2301(6). Subsection 2310(a)(3) provides that warrantors may establish an informal dispute settlement procedure. 15 U.S.C. § 2310(a)(3). Subsection (e), entitled “Class actions; conditions; procedures applicable,” establishes, as a precondition to suit, that an individual must give the warrantor reasonable opportunity to cure the alleged defect. 15 U.S.C. § 2310(e).

Rastaedt’s complaint alleged, in pertinent part, “As a direct and proximate result of Manufacturer’s failure to comply with its written warranty, Plaintiff has suffered damages and, in accordance with 15 U.S.C. § 2310(d)(1), Plaintiff is entitled to bring suit for damages and other legal and equitable relief.” In its motion for judgment on the pleadings, Mercedes relied solely on the Ocana decision and its holding that the reasonable period of time requirement in section 2304 does not apply to limited warranties. However, Mercedes and the trial court overlooked Rastaedt’s reliance on section 2310(d)(1), which as this court held in Rentas v. Daimlerchrysler Corp., 936 So.2d 747, 750 (Fla. 4th DCA 2006), creates a cause of action for breach of a written warranty. The warranty in Rentas was a limited manufacturer’s warranty similar to the warranty at issue here. Id.

Further, the trial court overlooked that Rastaedt also relied on the exact language of her own limited warranty. Thus, the trial court was incorrect in that Rastaedt was attempting to engraft a portion of section 2304 (which deals only with full warranties) onto this claim which is brought under section 2310 (limited warranties). Rastaedt cited the exact language and requirements of her express limited warranty, which incorporates a reasonableness requirement.

Reversed and Remanded for further proceedings consistent with this opinion.

HAZOURI and CIKLIN, JJ., concur.

      . The subject warranty is an Express Limited Warranty for four (4) years or 50,000 miles, whichever occurs first, from the date of initial operation or its retail delivery, whichever occurs first. The subject vehicle was a "DEMO” and was first put into service on August 3, 2004. Thus, the Limited Warranty expired on or about August 3, 2008, or when the subject vehicle reached 50,000 miles, whichever occurred first.

      . The legislative history also indicates that the Senate initially included detailed provisions dealing with warranty practices with respect to used automobiles, but that Congress ultimately decided the Federal Trade Commission would be responsible for promulgating a set of rules “to supplement the provisions of title I and rules thereunder in order to offer reasonable protection to average purchasers of used automobiles.” S. Conf. Rep. No. 93-1408, 93rd Cong., 2d Session 1974.


source: Caselaw Access Project

author: PER CURIAM. EMAS, J.,

license: Public Domain

text:
    Jabier VARGAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-381.
    District Court of Appeal of Florida, Third District.
    May 11, 2011.
    Rehearing Denied June 22, 2011.
    Jabier Vargas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed.

ROTHENBERG and LAGOA, JJ., concur.

EMAS, J.,

dissenting.

I respectfully dissent from the per cu-riam affirmance and write to explain my reasons.

BACKGROUND

In 2008, defendant Jabier Vargas entered a guilty plea (Case No. 08-12484) to burglary of a vehicle and was sentenced to 364 days in the Dade County jail, followed by one year probation. He was later charged with several felonies in three new cases (08-27161, 08-35378, 09-37366), and with a violation of probation in his initial case (08-12484).

On March 18, 2010, Vargas entered a negotiated plea of guilty (and an admission to the violation of probation) and the trial court imposed sentences of ten years’ state prison on all four cases, the sentences to run concurrently with each other.

On July 7, 2010, Vargas filed a motion for posteonviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Vargas alleges in pertinent part:

Defendant specifically inquired to trial counsel as to whether the 10 year sentences in each case would be imposed concurrent and coterminous to each other. Trial counsel affirmatively advised Defendant that the sentences would be imposed coterminously to each other. Trial counsel was ineffective because of his misadvise [sic]. The Florida Department of Corrections is applying the sentences in the instant case concurrently, not coterminously, because this court ordered it so. Absent trial counsel’s affirmative misadvice, Defendant would not have pleaded guilty.

On August 24, 2010, the trial court entered an order denying the motion without an evidentiary hearing. The order states two grounds for the summary denial:

1. The defendant seeks to be resen-tenced coterminously to ten years in state prison in each of the cases. However, such a resentencing would have no effect on the actual time the defendant would serve in custody.
2. During the plea colloquy, Vargas “waived all rights to future Rule 3 filings.”

The order attached a copy of the plea colloquy.

DISCUSSION

A. Whether coterminous sentences would have affected the amount of time actually served.

As to the first ground for denial, whether or not coterminous sentences would have actually affected Vargas’ sentence is not relevant at this stage. Vargas has filed a facially sufficient motion for post-conviction relief, and is entitled to an evi-dentiary hearing unless “the motion, files, and records of the case conclusively show that movant is entitled to no relief.” Fla. R.Crim. P. 3.850(d). There is no evidence in the record to support the trial court’s finding that a coterminous sentence would have no impact on the amount of time Vargas would actually serve.

Even if such evidence was in the record, however, Vargas would still be entitled to an evidentiary hearing, because the question is not whether a coterminous sentence would in fact have any effect on the amount of time actually served, but whether Vargas was advised of this and whether Vargas would have entered the plea had he known that the sentences were not coterminous. If Vargas was advised, for example, that his sentences would be coterminous; that, as a result, he would serve only nine years on his ten-year sentences; and that he entered the plea under this (mistaken) belief, Vargas could claim that, but for the affirmative misadvice, he would not have entered the plea.

Although the accuracy of his belief (i.e., whether a coterminous plea would in fact have resulted in a lower sentence) may be relevant to a determination on the merits following an evidentiary hearing, it is not relevant to a determination of whether Vargas is entitled to an evidentiary hearing. At that hearing, Vargas would have the burden of establishing that:

1.Vargas’ counsel advised him that the sentences imposed would be coterminous; and
2. Vargas, as a result of this advice, believed the amount of time actually served would be reduced by a coterminous sentence; and
3. There is a reasonable probability that, absent this advice from counsel, Vargas would not have entered the plea but would have insisted on going to trial.

Grosvenor v. State, 874 So.2d 1176 (Fla.2004). See also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

B. Whether Vargas waived his right to file ang postconviction motions under Rule 3.850.

The transcript of the plea colloquy (attached to the trial court’s order) evidences that, when the case was called, the following exchange took place:

DEFENSE ATTORNEY: I think we have a resolution as to the Vargas cases. We have [ ] counter offered 10 years and he will accept the 10 years.
THE COURT: Swear the defendant please.
DEFENSE ATTORNEY: Close out all cases with credit time served.

Vargas was then sworn and the following colloquy took place:

THE COURT: Do you understand that you do not have to plead guilty in this case if you don’t want to nor admit to your violation of probation. You could choose to go to trial and have a hearing before me with regards to your violation of probation. But if you’re found to be in violation of your probation by me or guilty by a jury in all these cases you could be sentenced to a total of?
PROSECUTOR: Forty years state prison.
THE COURT: Do you understand that?
DEFENDANT: Yes. I understand that.
THE COURT: 30 years minimum mandatory?
PROSECUTOR: No.
THE COURT: State of Florida would have to prove the charges against you beyond a reasonable doubt. These would have been trials by a jury. You would have the right to testify in this trial. If you chose not to testify I would explain to the jury that they may not consider that decision against you in any way.
You have the right to call witnesses to testify on your behalf and question those that testify against you. And if the jury found you guilty you have the right to an appeal.
Do you understand that you’re now giving up those rights?
DEFENDANT: Yes, sir I do.
THE COURT: Anyone forced you or threatened you to do this?
DEFENDANT: No, sir.
THE COURT: Are you doing this of your own free will?
DEFENDANT: Yes, I am.
THE COURT: Do you understand that if you are not a citizen of the United States the taking of this plea could subject you to deportation?
DEFENDANT: Yes, sir I do.
THE COURT: With regards to your violation of probation the State of Florida would have to prove by a preponderance of the evidence that you violated your probation. You could question those that testify against you and if I found that you violated your probation you could appeal my decision. Do you understand that as well?
DEFENDANT: Yes. I understand that sir.
THE COURT: Okay. Now, has the State disclosed all items of physical evidence in discovery and are you aware of any items of physical evidence in which DNA testing could exonerate this defendant?
PROSECUTOR: State has disclosed all and is aware of none.
THE COURT: All right. And you are not aware of any items?
DEFENSE ATTORNEY: Well, as we speak we are not. I have not reviewed the file but my understanding is that we have copies of all the DNA and all the disclosures.
THE COURT: Do you understand there is no further discovery in these cases? Do you understand that?
DEFENDANT: Yes, I understand that.
THE COURT: Okay.
DEFENDANT: Does that also eliminate probation that I have?
THE COURT: Eliminates everything and Rule Three’s as well.
DEFENDANT: Everything. Okay.
THE COURT: Nothing going to the Third District and the Court of Appeals. You are not having a trial. This ends it all. Do you understand that?
DEFENDANT: Yes. I understand that.
THE COURT: You’re in agreement with that?
DEFENDANT: Yes.
THE COURT: Okay.

(Emphasis added.)

The transcript does not establish that Vargas made a knowing and voluntary waiver of his right to seek postconviction relief. Such a waiver was not announced by the prosecutor or defense counsel as a part of the plea, and there is no evidence in the record that Vargas and his counsel ever discussed such a waiver as a part of the negotiated plea. The trial court’s statement was in response to Vargas’ question whether this plea would terminate his probation. The trial court did not question Vargas about his understanding of “Rule S’s” or whether he understood that “nothing going to the Third District and the Court of Appeals” meant that he could not seek postconviction relief. A waiver of postconviction rights, to be valid, must be knowingly and voluntarily made. See, e.g., Leach v. State, 914 So.2d 519 (Fla. 4th DCA 2005) (upholding waiver of appellate rights where colloquy reflected that waiver was announced on the record by counsel, court permitted defendant to consult with attorney regarding waiver, then questioned defendant and determined that defendant had had enough time to consult with his lawyer and that he understood the ramifications of waiving his right to appeal). See also Stahl v. State, 972 So.2d 1013 (Fla. 2d DCA 2008) (holding a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver). The record is, in my opinion, insufficient to establish that defendant made a knowing and voluntary waiver of his right to seek postconviction relief.

But even if a proper waiver could be found, Vargas alleges that it was predicated upon affirmative misadvice from his counsel that his sentences would run coter-minously. If he can prove this claim, any such waiver would be invalid, since he was induced to enter a plea, and received a sentence, that he did not bargain for.

Although it may be tempting to conclude that Vargas’ claim is without merit, we are called upon at this stage only to determine whether Vargas is entitled to an evidentia-ry hearing. Claims of affirmative misad-vice of counsel are concededly vexing for the trial court because they are often made without a good faith basis, but a determination on the merits can seldom be made upon the existing record. Where no evi-dentiary hearing is granted by the trial court, this Court must accept defendant’s factual allegations as true unless they are conclusively refuted by the record. Hernandez v. State, 20 So.3d 417 (Fla. 3d DCA 2009); Fla. R.Crim. P. 3.850(d).

Based upon the existing record, I conclude that Vargas is entitled to an eviden-tiary hearing, and therefore must respectfully dissent.

      . On the three new cases, Vargas was classified as a habitual felony offender.

      . The trial court’s order refers to Vargas’ motion as a motion to correct illegal sentence, rather than a motion for postconviction relief. Vargas’ motion does not contend that the sentence is illegal under Rule 3.800, but rather alleges affirmative misadvice and ineffective assistance of counsel resulting in a plea he otherwise would not have accepted.

      . Such a consideration would certainly be relevant to determining the credibility of Vargas' claim that, absent the affirmative misad-vice of his counsel, Vargas would not have pled guilty. At an evidentiary hearing, the court must determine, in part, whether this assertion by Vargas is credible. A part of that determination would likely include consideration of what impact, if any, a coterminous plea would have had on the amount of time actually served. If a coterminous plea would have had no impact on the amount of time actually served, the trial court can weigh this in assessing: (1) whether counsel actually made this representation to Vargas; and (2) whether Vargas has established a reasonable probability that, but for the coterminous nature of the sentences, he would not have entered a guilty plea.

      . For example, if Vargas is entitled to credit for the time he served in the Dade County Jail on his probation case (08-12484), coterminous sentences would apply that jail credit to all four of his cases.

      . This is why it is a claim for affirmative misadvice. By definition, these types of post-conviction claims assume that the advice allegedly given turns out to be inaccurate. The gravamen of the claim is that a defendant was given this advice, it induced him to plead guilty, he later found out the advice was incorrect, and but for the misadvice there is a reasonable probability that he would not have entered die plea.

      .The trial court in its order noted that the relief Vargas sought in his pro se motion is a resentencing to coterminous sentences. However, Vargas also sought "any other relief the Court deems just and fair.” In the body of his motion, Vargas asserts that, but for this affirmative misadvice, he would not have entered the plea. If Vargas can prove his claim at an evidentiary hearing, he would be entitled to withdraw his plea.

      . The standard plea colloquy requires advising a defendant that by pleading guilty he gives up certain direct appellate rights. See Fla. R.Crim. P. 3.172(c)(4) ("[T]he trial judge should ... place the defendant under oath and shall address the defendant personally and shall determine that he or she understands ... that he or she gives up the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but does not impair the right to review by appropriate collateral attack.”)

      . In Stahl, the Fourth District also held that a defendant cannot waive ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver. Stahl, 972 So.2d at 1015 (citing Nixon v. United States, 2006 WL 2850430, at *2 (S.D.Ga.2006)). See also United States v. White, 307 F.3d 336, 343 (5th Cir.2002) ("[A]n ineffective assistance of counsel argument survives a waiver of appeal only when the claimed assistance directly affected the validity of that waiver or the plea itself ... [A]n impermissible boot-strapping arises where a waiver is sought to be enforced to bar a claim that the waiver itself — or the plea agreement of which it was a part — was unknowing or involuntary.”).


author: NORTHCUTT, Judge.

text:
    Saverio CASTELLI, Appellant, v. SELECT AUTO MANAGEMENT, INC., Appellee.
    No. 2D09-5277.
    District Court of Appeal of Florida, Second District.
    May 13, 2011.
    Rehearing Denied June 15, 2011.
    Robert G. Garguilo, Bradenton, for Appellant.
    Michael W. Cochran of Icard Merrill Cullis Timm Furen & Ginsburg, P.A., Sarasota, for Appellee.
   NORTHCUTT, Judge.

Select Auto Management, Inc., sued Saverio Castelli for damages stemming from Castelli’s alleged tortious interference with Select’s business relationships. After a bench trial, the court ruled in Select’s favor and awarded $152,223 in damages. Castelli challenges the sufficiency of the evidence to prove his liability and the damages award. His argument concerning liability is well taken, and we reverse. Accordingly, we need not address the other issues raised.

In 2004, Castelli leased a parcel of land to Robert Melvin on which Melvin conducted a used car business, Car-Mel. At around the same time, Melvin entered into a business relationship with Select, a company that purchased customer financing agreements at a discount from used car dealers. Select purchased financing agreements from Melvin under two different arrangements. Under the first, Select bought the car purchasers’ finance agreements and collected the loan payments directly from the purchasers, who were instructed to mail their payments to Select. Under the second plan, Melvin collected the loan payments from the purchasers and then sent Select its share of the sums received. The purchasers mailed their payments to Car-Mel, or they came to the dealership to pay. Melvin also assigned a number of financing agreements to Castelli in lieu of rent. He accomplished this by placing Castelli’s name on car titles as the first lienholder. Apparently, he collected the amounts owed to Castelli.

Melvin’s business began to fall apart in June 2005. Select learned that Car-Mel was having financial problems, and on June 10, 2005, it terminated Melvin’s right to collect payments under the second plan. By the end of that month, Select had sent letters to all Car-Mel’s customers whose financing agreements had been purchased under the second plan, instructing them not to make payments to the dealership but rather to send the payments to Select.

Also in June 2005, while Castelli was on vacation, Melvin closed the business and left. When Castelli returned sometime between June 27 and 29, he found the car lot and the business office empty. In form letters dated June 27, 2005, Castelli advised car purchasers to send their payments to him. He claimed to have contacted only purchasers of the cars on which he held liens. His letters were not addressed to any specific person and used the salutation “Dear Sir/Madam.” No evidence established that any car purchaser actually received one of these form letters.

In early July 2005 an agent of Select visited the Car-Mel lot. He found Castelli in the office and gave him a list of 105 cars on which Select had purchased the financing. He told Castelli not to accept payments from the purchasers of those vehicles. But the agent also testified that he discussed stopping by to pick up any payments that the vehicle owners made to Castelli. In fact, he stated that at one point Castelli told him to come by the dealership and he would give the agent a check for any payments he had collected. Castelli testified that he thought the agent was asking him to assist in collecting Select’s payments.

In any event, Castelli continued to accept payments from Car-Mel customers through the month of July and into early August. He admitted that he did not check any list or ledger to see who might be entitled to these payments. On August 19, 2005, Select told him directly and through a letter to his attorney to stop accepting any payments. The letter contained a list of 134 vehicles on which Select had purchased the financing agreements. Castelli testified that he stopped accepting any payments on August 13, 2005, and Select presented no evidence disputing this assertion.

In order to show that Castelli tortiously interfered with its business relationships, Select was required to prove:

1. The existence of a business relationship;
2. Castelli’s knowledge of the relationship;
3. Castelli’s intentional and unjustified interference with the relationship; and
4. Select’s damages as a result of the interference.

See Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985); Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So.3d 836, 838 (Fla. 2d DCA 2009). Select’s evidence was sufficient to meet prong one of its cause of action. In an attempt to meet prong two, it introduced the two lists of its customers given to Castelli on July 5, 2005, and to his lawyer on August 19, 2005, in order to prove that Castelli was aware of specific relationships Select had with the car purchasers. Select also presented testimony showing that Castelli was present at a meeting early in 2005 when Melvin explained his financing arrangements with Select.

But Select presented evidence of Castel-li’s interference with only one specific relationship with a car purchaser, a Mr. Led-better, and that evidence failed to show either that Castelli knew about that specific relationship or that his interference was intentional. A representative of a servicing agency used by Select testified that Ledbetter came to his office on August 19, 2005, angry that the agency had repossessed his truck when he was current in his payments. Ledbetter had complained several times before that the agency had not credited him for payments he had made to Car-Mel. The representative accompanied Ledbetter to the former Car-Mel dealership to confront Castelli. He and Ledbetter went over the payment amounts Ledbetter had made and Castelli gave Ledbetter his money back.

Ledbetter’s name did not appear on the list of accounts given to Castelli on July 5, but it was on the list given to his lawyer on August 19. No evidence established when Ledbetter made the disputed payments to Castelli, but they were obviously made before August 19, the date he and the servicing agent met with Castelli. Thus, Select failed to prove that at the time Castelli accepted the payments, he was on notice that Select had a business relationship with Ledbetter.

Select presented additional testimony, from the servicing agent and from one of Select’s owners, that other car purchasers had complained that they had made payments to Castelli but had not been credited for the payments by Select. Select also introduced a copy of Castelli’s June 27th form letter, with no names or addresses, but it offered no proof that the letter was sent to any of the names on Select’s customer lists. Another letter, sent to a specific Car-Mel customer and dated July 3, 2005, was also placed in evidence, but it had been returned to Castelli as undeliverable. Also introduced were copies of checks Castelli provided Select in discovery. These checks showed that Castelli had reimbursed three car purchasers— whose names all appeared on Select’s July 5, 2005, list — for payments made at the dealership. But none of these purchasers testified, and Select did not establish when their payments were made to Castelli.

In its oral findings, the circuit court found that Castelli had express knowledge of Select’s customers and his lack of authority to collect from those customers “no later that August 19 of 2005.” As proof of Castelli’s intentional interference with Select’s customers, the court cited the letters Castelli had sent directing car purchasers to make payments to him at the dealership. Of course, as previously noted, the form letter was dated June 27 and the returned letter was dated July 3, both of which were before Select’s agent presented Castelli with the first list of Select’s customers. Further, Select never established that the letters actually were sent to or received by any of its finance customers. In short, the letter evidence simply did not support the court’s finding, and as such, the finding was clearly erroneous. See Sharrard v. Ligon, 892 So.2d 1092, 1099 (Fla. 2d DCA 2004) (explaining that clearly erroneous standard is used to review trial court’s finding of fact based on undisputed evidence, such as the dates of the letters in this case); see also Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005) (noting that in a bench trial, the judge’s findings should not be disturbed on appeal unless they are clearly erroneous).

The court also found that Castelli’s acceptance of payments from Ledbetter and the three other customers, all of which were returned to them, established his intentional interference with Select’s relationships. As noted above, the payments from Ledbetter had to have been received before Select informed Castelli that he was a customer. That admitted acceptance of money cannot prove intentional interference because Select failed to prove that Castelli had knowledge of the relationship at the time he took the money. Select presented no evidence from the other three customers about when they made their payments. Again, then, Select did not present sufficient proof that Castelli interfered with known customers.

Select proved the existence of its business relationships with car purchasers, but it entirely failed to prove which, if any, relationships Castelli intentionally interfered with. See Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla.1994) (concluding, in tortious interference action, that the plaintiff did not identify customers with whom it had an agreement with which the defendant interfered); see also Sarkis v. Pafford Oil Co., 697 So.2d 524, 526 (Fla. 1st DCA 1997) (affirming the dismissal of a complaint alleging tortious interference when the complaint failed to identify the customers who were the subject of the alleged interference).

We reverse the judgment in this case and remand with directions to enter judgment for Castelli.

CASANUEVA, C.J., and LaROSE, J., Concur.

      . According to Castelli, Melvin tracked the payments he received in three separate ledgers: one for collections he was making for Select, one for collections made for the cars on which Castelli held liens, and one for Melvin’s collections on the financing agreements that he still owned.


text:
    Kevin THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4721.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Rehearing Denied June 28, 2011.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Kevin Thomas, appeals the order of the trial court, adjudicating him guilty of possession of cocaine with intent to sell, and sentencing him to six years in prison. We reverse and remand for a new trial.

This ease involves a discovery violation regarding the testimony of the State’s witness Detective Tianga, who arrested Thomas for possession of cocaine with intent to sell pursuant to a search warrant, obtained based on information given by an informant. Defense counsel initially objected to Tianga testifying as an expert in street level narcotics during the State’s direct examination of Tianga, arguing that the State failed to list Tianga as an expert. At a sidebar conference, the State admitted that it had not listed Tianga as an expert, and listed him only as a Category A witness in discovery. The trial judge then stated that he was going to conduct a Richardson inquiry and asked defense counsel: “Tell me why that would have prejudiced you.” Defense counsel stated that he was prejudiced because if he had known, he would have had the opportunity to present his own expert to testify that the packaging of the drugs could be consistent with personal use. The trial judge then told defense counsel, “You could always call in any witness you want to show that it’s not packaged for sale, that it was packaged for personal use.” Defense counsel asked that if the court determined that it was not a Richardson violation, that he be allowed to provide the State with a list of witnesses that he might choose to call to rebut the State’s expert’s testimony. The trial judge said he would allow that, and then if the State was not prejudiced, the defense expert would be allowed to testify. The trial judge concluded that “maybe there was a violation here, but it shouldn’t be prejudicial to the defense” and proceeded to allow Tianga to testify as an expert. The State then tendered Tian-ga as an expert in street level narcotics. The court asked: “Any objection?” and defense counsel responded: “No.” Tianga then testified that, in his expert opinion, the drugs were packaged for sale and were not for personal use. The jury returned a guilty verdict. This appeal followed.

On appeal, Thomas argues that the trial court reversibly erred by failing to make an adequate Richardson inquiry. Specifically, Thomas argues that the trial court only addressed the issue of what the prejudice was to Thomas, without considering whether the violation was inadvertent or willful, or trivial or substantial. Additionally, Thomas argues that the trial court further erred by relieving the State of its burden of disproving procedural prejudice on the discovery issue, and shifting the burden of proving prejudice to Thomas. The State argues that Thomas did not preserve the issue for appeal, and that even if he did, the trial court granted the remedy which Thomas requested and Thomas did not object to the adequacy of the remedy in the trial court.

“Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review.” Major v. State, 979 So.2d 243, 244 (Fla. 3d DCA 2007) (citing Celestine v. State, 717 So.2d 205, 206 (Fla. 5th DCA 1998)). However, “[t]here are no exact ‘magic words’ or phrases which must be used by the defense in order to necessitate the [Richardson ] inquiry; only the fact that a discovery request has not been met.” Jones v. State, 32 So.3d 706, 710 (Fla. 4th DCA 2010) (citing Smith v. State, 7 So.3d 473, 506 (Fla.2009)). “Once a trial court has notice of a discovery violation, the court must conduct a Richardson hearing to inquire about the circumstances surrounding the state’s violation of the discovery rules and examine the possible prejudice to the defendant.” Jones, 32 So.3d at 710.

Based on defense counsel’s initial objection, the side-bar conversation regarding the discovery violation, and defense counsel’s notification to the trial court that the State did not list Tianga as an expert, all while Tianga was on the witness stand, we hold that Thomas timely objected to the State’s discovery violation, thus preserving the issue on appeal. See Picket v. State, 32 So.3d 638, 639-40 (Fla. 4th DCA 2009)(finding preservation of alleged discovery violation when raised on the first day of trial); Jones, 32 So.3d at 709-10 (finding preservation of alleged discovery violation when raised before the state’s direct examination); State v. Evans, 770 So.2d 1174, 1182 (Fla.2000) (finding preservation of alleged discovery violation when raised during the state’s direct examination); Smith v. State, 7 So.3d 473, 505-06 (Fla.2009) (finding preservation of alleged discovery violation when raised after the state’s direct examination); and Powell v. State, 912 So.2d 698, 700-01 (Fla. 2d DCA 2005) (finding preservation of alleged discovery violation when raised during cross-examination). Although the trial judge asked if there were any objections when the State tendered Tianga as an expert, and defense counsel said “no,” this exchange occurred a mere ten pages later in the transcript of the proceeding. Thus, since the judge was aware of defense counsel’s initial objection, it would have been futile for defense counsel to object again, on the same grounds, minutes later. The record demonstrates that defense counsel brought the issue to the trial court’s attention during the State’s direct examination. At this point, it was the trial court’s duty to conduct a Richardson inquiry, as it was notified of a possible discovery violation.

Finally, we find no merit in the State’s argument that Thomas waived the issue by accepting the trial court’s remedy of allowing the defense to provide the State with a list of witnesses to call to rebut Tianga’s testimony. The record clearly reflects that defense counsel was not arguing that this was the remedy for the discovery violation. Instead, defense counsel was arguing that if the trial court found there was no discovery violation, defense counsel would like to have the opportunity to try to find an expert to testify. Because the trial court never conclusively ruled on whether there was in fact a discovery violation, nor did it even touch on the other two issues in a Richardson inquiry, it cannot be said that Thomas accepted this remedy, which the trial court and defense counsel understood was conditional upon the finding of a violation.

The State must disclose “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).” Fla. R.Crim. P. 3.220(b)(l)(A)(i)(7) (2009). Failing to list a witness as an expert, even when the witness is listed as a Category A witness, is a discovery violation. Luis v. State, 851 So.2d 773, 775-76 (Fla. 2d DCA 2003).

“A Richardson hearing is required when there is a ‘possible discovery violation in order to flesh out whether there has indeed been a discovery violation.” Landry v. State, 931 So.2d 1063, 1065 (Fla. 4th DCA 2006) (emphasis in original). In conducting a Richardson hearing, the trial court must inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” State v. Evans, 770 So.2d 1174, 1183 (Fla.2000). Regarding the third factor:

[T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant.

State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995).

Thus, the harmless error standard for a State discovery violation does not focus on the discovery violation’s effect on the verdict; instead, the inquiry is whether there is a reasonable possibility that the discovery violation materially hindered the defendant’s trial preparation or strategy. Scipio v. State, 928 So.2d 1138, 1149-50 (Fla.2006). Although “the trial court has discretion to determine whether a discovery violation would result in harm or prejudice to the defendant, ‘the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.’ ” Barrett v. State, 649 So.2d 219, 222 (Fla.1994) (citing Richardson, 246 So.2d at 775) (emphasis added). Finally, imposing the burden on the defendant to demonstrate prejudice instead of determining the circumstances of the discovery violation and requiring the State to demonstrate lack of prejudice to the defendant, does not satisfy the procedure contemplated by Richardson. See In Interest of J.B., 622 So.2d 1175 (Fla. 4th DCA 1993).

In Henry v. State, 42 So.3d 328 (Fla. 2d DCA 2010), the State sought to qualify a police officer, who was listed as a Category A witness, as an expert witness based on his field experience as a member of a drug unit. Henry objected, arguing that Officer Tamboe was not listed as an expert during discovery. Id. The trial court overruled the objection, determining that the State should have an opportunity to lay the foundation with regard to the officer’s qualifications as an expert. Id. On review, the Second District held that Henry was entitled to a new trial as the trial court committed reversible error by failing to conduct a Richardson hearing. Id. The court reasoned that under the version of rule 3.220(b)(l)(A)(i) in effect at the time of Henry’s trial, designating a witness as an expert witness at trial required listing that witness as such in pretrial discovery. Id. Merely listing the witness as a category A witness did not satisfy the plain language of the rule. Id. Because it was undisputed that the officer was listed only as a Category A witness, the court reasoned that once the State sought to qualify the officer as an expert, and the defense objected to the discovery violation, the trial court should have conducted a Richardson hearing. Id. The court remanded for a new trial because the record did not conclusively show that the error was harmless. Id. at 830.

Based on the foregoing, we hold that upon being notified by Thomas of an alleged discovery violation, the trial court was required to conduct a Richardson inquiry. Although the trial court has discretion to determine whether a discovery violation would result in prejudice to the defendant, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Barrett, 649 So.2d at 222. Here, the trial court never determined whether the violation was willful or inadvertent or if it was trivial or substantial. Thus, the trial court did not make an adequate inquiry into all of the surrounding circumstances. Further, because the trial court did not require the State to demonstrate the lack of procedural prejudice, and instead only inquired of defense counsel how he would be prejudiced, the Richardson inquiry was inadequate. Finally, the record does not support the State’s contention that Thomas was not procedurally prejudiced beyond a reasonable doubt by the discovery violation. Thus, the error cannot be considered harmless.

Reversed.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . The 2010 version of rule 3.220(b)(l)(A)(i), effective January 1, 2010, added expert witnesses who are going to testify as a type of category A witness. The court noted that had this amended version of the rule been effective at the time of Henry’s trial, the listing of the officer as a category A witness may have been sufficient to allow the State to qualify him as an expert without a Richardson hearing. Henry, 42 So.3d at 329.


author: PER CURIAM.

text:
    T.K.B., a child, Petitioner, v. Stepheny DURHAM, Superintendent of the Duval Regional Juvenile Detention Center and State of Florida, Respondents.
    No. 1D11-1984.
    District Court of Appeal of Florida, First District.
    May 18, 2011.

      Matt Shirk, Public Defender, and Robert W. Mason, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

T.K.B., a child, petitioned this court for a writ of habeas corpus to challenge the validity of her secure detention, pending the outcome of a juvenile delinquency proceeding. We granted the petition in an unpublished order and directed that respondent release the child. By this opinion, we now state the reasons for granting relief.

Petitioner entered a guilty plea to resisting an officer without violence, a misdemeanor. The child was placed on home detention care, but failed to appear at the adjudication hearing and a custody order issued. The child was later detained and placed in secure detention to await the adjudication hearing.

An order detaining a child in the custody of the state pending a juvenile delinquency hearing must comply with the statutes authorizing juvenile detention. See R.W. v. Soud, 639 So.2d 25 (Fla.1994). Section 985.24, Florida Statutes, provides that a child may be detained only for the specific reasons given in the statute. Additionally, section 985.245 states that, in the absence of a specific statutory exception, an order placing a child in detention “shall be based on a risk assessment of the child.” The risk assessment is done uniformly throughout the state on a standardized document known as a Risk Assessment Instrument (“RAI”).

Juvenile detention determinations involve a two-step process. If a juvenile qualifies for detention under the “admission criteria” of the RAI and subsections 985.255(l)(a) through (j), the inquiry proceeds to the tallying of points for various factors to yield a “risk assessment,” and the RAI score must establish a need for detention. R.A.P. v. Parkins, 994 So.2d 414, 415 (Fla. 1st DCA 2008). According to the criteria set by the RAI, a child who has a score of twelve or more points qualifies for secure detention, a child who has a score of seven to eleven points qualifies for home detention, and a child who scores below seven points does not qualify for any form of detention. The Department of Juvenile Justice (“DJJ”) scored petitioner’s RAI at 22 points, including ten points for absconding, one point for the pending misdemeanor and three points for “aggravation.”

Although the pre-disposition report recommended probation, the state objected contending that petitioner was at high risk to reoffend because she had a history of running away from home. The circuit court continued petitioner’s detention for almost a month while awaiting a new predisposition report. Petitioner’s parents refused to pick her up from detention and the circuit court found that there were no other viable options for her placement.

Section 985.255(1) provides that a child placed on home detention may continue to be detained if the child is alleged to be an escapee from a nonresidential commitment program, a probation program or conditional release supervision. At that point the child is eligible for secure detention. Nothing in the statute provides for secure detention for absconding from any situation other than those three programs.

Section 985.03 does not define the term “abscond.” Black’s Law Dictionary (9th ed. 2009), defines “abscond” as to “depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process,” or “to leave a place, usually hurriedly, with another’s money or property.” DJJ has adopted rule 63D-10.004(5), Florida Administrative Code, which states that absconding

occurs when a supervised youth goes in a clandestine manner out of the jurisdiction of the court in order to avoid the legal process, or when the youth hides, conceals, or absents himself or herself with the intent to avoid the legal process. Mere absence or not appearing for appointments is not absconding, but may constitute a technical violation of supervision.

The rule further provides that within one working day after determining that the youth has absconded, the Juvenile Probation Officer shall file with the court an Affidavit for An Order to Take Into Custody and an Affidavit/Petition for Violation of Probation. No such affidavits were filed in this case.

Rule 63D-10.004(5) includes a statement that a “youth reported by parent(s)/guardian(s) to have run away is considered an absconder.” However, this definition of “absconding” to mean “run away” does not appear in the statute. As this court has repeatedly held, the power to place juveniles charged with a delinquent act in detention is entirely statutory in nature. S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996). Therefore, strict compliance with the statute is required. W.C. v. Smith, 898 So.2d 1187, 1138 (Fla. 1st DCA 2005).

In addition to the improper score of ten points for absconding, DJJ erroneously scored one point for the pending misdemeanor, which was not a separate offense. Nor were the three points for “aggravation” supported by the record. Subtracting those fourteen points improperly included in the RAI, petitioner correctly scored eight points, which did not qualify her for secure detention.

The circuit court is strictly prohibited from ordering detention because of a lack of a better alternative. § 985.24(2)(d). Detention because of concern for the child’s well-being is not authorized. J.J. v. State, 31 So.3d 295 (Fla. 3d DCA 2010). Nor is detention authorized where a parent expresses fear that the child might run away, take drugs or engage in sexual activity. K.E. v. Dep’t of Juvenile Justice, 963 So.2d 864, 867 (Fla. 1st DCA 2007).

Finally, we note that this is the eighteenth juvenile habeas petition this court has considered from Duval County in the last thirteen months. Ten of the petitions have been granted, three petitions have been denied on the merits and the remaining cases were dismissed as moot. This is an inefficient use of limited judicial resources, especially where the rule of law is clear: if the statute fails to authorize secure detention, a juvenile cannot be so held. Z.B. v. Dep’t of Juvenile Justice, 938 So.2d 584, 585 (Fla. 1st DCA 2006). In a similar circumstance, this court noted that

Juvenile detention is a matter that is controlled by legislation. It is not for us, as judges, to question the wisdom of the legislation. Rather, our task is simply to carry it out. Section 985.255 establishes the criteria for detaining a child, pending the outcome of a juvenile delinquency case. A decision to detain a child must be made according to the statutory criteria.

K.E., 963 So.2d at 868.

PETITION GRANTED.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


author: GROSS, C.J.

text:
    KINGSWAY AMIGO INSURANCE COMPANY, Appellant, v. OCEAN HEALTH, INC., a/a/o Belizaire Gomez, Appellee.
    No. 4D10-4887.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      David B. Pakula, P.A., Southwest Ranches, for appellant.
    Gary M. Farmer Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, and Todd A. Landau of Todd Landau, P.A., Miami, for ap-pellee.

      . See Ch. 2007-324, §§ 20, 23, Laws of Fla.

   GROSS, C.J.

Kingsway Amigo Insurance Company appeals a final summary judgment entered in favor of Ocean Health, Inc., by a county court in Broward County. The county court certified the following question as an issue of great public importance pursuant to section 34.017, Florida Statutes (2010):

MAY A PIP INSURER NEVERTHELESS ELECT TO USE THE MEDICARE PART B FEE SCHEDULES SET FORTH IN FLA. STAT. § 627.736(5)(a)(2) WHEN THE SUBJECT PIP POLICY SPECIFIES THAT THE PIP INSURER WILL PAY 80% OF MEDICALLY NECESSARY EXPENSES?

This court accepted discretionary review pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A). We answer the certified question in the negative and affirm the decision of the county court.

Kingsway is a motor vehicle insurer. In April 2008, its insured was involved in a motor vehicle accident. The applicable policy, with effective dates of March 29, 2008, through September 29, 2008, provided PIP benefits. The insured assigned her PIP benefits to Ocean Health in return for chiropractic treatments. Ocean Health submitted bills directly to Kingsway. After applying the deductible, Kingsway paid the bills for dates of service from April 16, 2008, through June 26, 2008, at 80% of 200% of the Medicare Part B fee schedule. This amount paid was less than payment at 80% of the billed amount. In making payment, Kingsway relied upon subsection 627.736(5)(a)2., Florida Statutes (2008), which went into effect on January 1, 2008.

The applicable insurance policy provided that:

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law, as amended, to or for the benefit of the injured person:
1. 80% of medical expenses;
Medical expenses means those expenses that are required to be reimbursed pursuant to Florida Motor Vehicle No Fault Law, as amended, and that are reasonable expenses for medically necessary ... services.

Section 627.736, Florida Statutes (2008), sets out the provisions for “[rjequired personal injury protection benefits” and provides in pertinent part:

(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection ... as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.

Expanding on the subsection (1) requirement that the statute requires reimbursement of “reasonable expenses,” the 2007 version of the statute provided a framework for the concept of “reasonableness” in subsection 627.736(5)(a):

(5) CHARGES FOR TREATMENT OF INJURED PERSONS.—
(a)l. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered .... In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

In 2007, subsection 627.736(5)(a) was amended to add subsections (5)(a)2. through 5., which in pertinent part provide:

2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
5. If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.

Subsection 627.7407(2), Florida Statutes (2008), which is titled “Application of the Florida Motor Vehicle No-Fault Law,” provides for incorporation of the new law into policies, as follows:

(2) Any personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this act.
(3) An insurer shall continue to use the personal injury protection forms and rates that were in effect on September 30, 2007, until new forms or rates are used as authorized by law.

In a thoughtful, detailed order, the trial judge entered final summary judgment in favor of Ocean Health and certified the above question. The court reviewed the statutory scheme set forth above, including the 2007 amendments, and came to this conclusion:

[T]he new PIP statute provides both a mandatory and permissive method of reimbursement. Giving effect to both provisions means that an insurer is required to pay 80% of all reasonable expenses, but has the safe-harbor option to limit its reimbursement obligation and pay a fixed fee for individual services. Because the new PIP statute in effect since January 1, 2008[,] now contains mandatory and permissive language on the amounts that insurance will pay for medical claims, it is important for the PIP insurer to clearly and unambiguously choose and identify its selected payment methodology.

The trial court then reviewed the language in the policy and found that the policy established an agreement to reimburse 80% of medically necessary expenses as provided in subsection 627.736(l)(a) rather than the safe harbor amount found in subsection 627.736(5)(a)2.f., which the policy did not mention. It relied on case law holding that, when a policy provides for coverage greater than that required by statute, the terms of the policy control.

A trial court’s ruling on a motion for summary judgment posing a pure question of law is subject to de novo review. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

“[Ljegislative intent is the polestar that guides a court’s statutory construction analysis.” Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla.2004). To discern legislative intent, a court first looks to the statute’s plain language. See Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). If a statute is clear and unambiguous, “there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). A court may not “construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.” Id. (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)) (emphasis removed). “Further, words must be given their plain meaning and statutes should be construed to give them their full effect,” Jones v. State, 966 So.2d 319, 326 (Fla.2007) (citation omitted), and “[w]here possible, it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act,” Knowles, 898 So.2d at 9 (quoting Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977)) (alteration in Knowles) (emphasis removed).

We agree with the trial court that these statutes are unambiguous and that their plain language allows an insurer to choose between two different payment calculation methodology options. Significantly, subsection 627.736(5)(a)2. provides that the insurer “may limit reimbursement,” language that indicates that this option choice is not mandatory; subsection 627.736(5)(a)5. states “[i]f an insurer limits payment as authorized by subparagraph 2.,” language that anticipates that an insurer will make a choice.

The applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)2. The policy cites the No-Fault Act, states it will pay “80% of medical expenses,” and defines medical expenses as those that it is required to pay “that are reasonable expenses for medically necessary ... services.” That is the language of subsection 627.736(l)(a), which is amplified by subsection 627.736(5)(a)l. The policy does not say it will pay 80% of 200% of Medicare Part B Schedule as provided in subsection 627.736(5)(a)2.

We reject Kingsway’s argument that, because the PIP statute is incorporated into the policy, it had the unilateral right to ignore the only payment methodology referenced in the policy. Similar reasoning was rejected by the fifth district in State Farm Florida Insurance Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009), a case involving a claim under a homeowner’s policy. We adopt the trial court’s analysis of Nichols as it applies to this case:q

In Nichols, the insurer argued that it was entitled to pay in accordance with the limitation language in a statute that was not specifically mentioned in the policy, while at the same time the policy provided a means to determine payment. The [fifth district], however, considered the “may limit” language appearing in the sinkhole insurance statute to be permissive. Similarly, the language “may limit” appears in the new No-Fault statute. As in Nichols, the insurance policy in this case expressly states that the insurance company will pay for claims pursuant to a particular methodology (80% of incurred medically necessary expenses). The “reasonable amount” methodology corresponds to the mandatory language contained in § 627.736(l)(a) of the new PIP statute. Because the new PIP statute also states that a PIP insurer may apply the new fee schedule listed in [subsection 627.736(5)(a)2,] this provision is permissive, not mandatory, and the policy language that requires payment in accordance with the reasonable amount methodology specified in [subsection 627.736(l)(a) ] is “not in conflict with the [permissive methodology set forth in the new] statute and is [therefore] binding on the parties to the insurance contract.” Nichols, 21 So.3d at 905. If the [Insurer] wanted to take advantage of the permissive fee schedule, it should have clearly and unambiguously selected that payment methodology in a manner so that the insured patient and health care providers would be aware of it. Maryland Cas[.] Co[.] v. Murphy, 342 So.2d 1051 (Fla. 3d DCA 1977) (in order to rely on statutory provisions allowing an insurance company to prohibit assignment of benefits, insurance company was required to include a provision to that effect in its insurance policy). In both Nichols and the instant case, the insurer failed to reference in the policy or anywhere else the permissive language that was contained in the statute.
The crux of the issue is whether or not the policy language that requires payment is in conflict with the statute. As in Nichols, the language contained in this contract for insurance sold by Kingsway ... is not in conflict with the statute and is therefore binding on the parties to the insurance contract. An insurance company is not precluded from offering greater coverage than that required by statute. See Wright v. Auto-Owners Ins[.] Co., 739 So.2d 180 (Fla. 2d DCA 1999) (policy provision requiring payment in accordance with the PIP statute should not be construed to limit coverage to the minimum amount authorized by the PIP statute). These cases are consistent with the result reached in Nichols, because they confirm that when the insurance policy provides greater coverage than the amount required by statute, the terms of the policy will control.

The requirement that a PIP policy specify the applicable payment methodology is consistent with the requirement that a subsection 627.736(5)(d) health insurance claim form and subsection 627.736(10)(b)3. demand letter specify “each exact amount” owed. See MRI Assocs. of Am., LLC v. State Farm Fire & Cas. Co., 61 So.3d 462 (Fla. 4th DCA 2011). Such precision is not possible where the payment calculation methodology is in doubt.

Affirmed.

HAZOURI and CIKLIN, JJ., concur.

      . See Ch. 2007-324, §§ 20, 23, Laws of Fla.

      . This statutory language existed prior to and after the amendments to section 627.736 created by Chapter 2007-324. See § 627.736(1), Fla. Stat. (2007).


text:
    DAIMLERCHRYSLER INSURANCE COMPANY, a foreign corporation as subrogee of DCFS Trust, Appellant, v. ARRIGO ENTERPRISES, INC., d/b/a Arrigo Dodge Chrysler Jeep, Lincoln General Insurance Company, McCloud Agency, Inc., Mr. Auto Insurance of South Lake, Access General Agency of Florida, Inc., and Lorenzo V. Baltazar, Appellees.
    No. 4D10-509.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Rehearing Denied June 28, 2011.

      Fredric S. Zinober, Michael B. Buckley, and Eric W. Neilsen, Buckley & Curtis, P.A., St. Petersburg, for appellant.
    John S. Penton, Jr. of Cole, Scott & Kissane, P.A., West Palm Beach, for appel-lee Lincoln General Insurance Company.
    Lawrence H. Kunin of Morris, Manning & Martin, LLP, Atlanta, Georgia, for ap-pellee, Access General Agency of Florida, Inc.
   GROSS, C.J.

DaimlerChrysler Insurance Company, as subrogee of DCFS Trust, appeals the dismissal with prejudice of its complaint against the appellees. The appellees, the defendants below, are Lincoln General Insurance Company, Access General Agency of Florida, and Mr. Auto Insurance of South Lake, which were, respectively, the insurer, the insurance broker, and the insurance agent for the lessee of a vehicle. The complaint arose from an accident involving a vehicle owned by DCFS and leased to the lessee, for which accident Daimler paid a $1 million settlement.

Although we agree with Daimler that it could properly have maintained an equitable subrogation claim, we nonetheless affirm; the negligence cause of action Daimler sought to pursue against appellees failed as a matter of law because, in providing insurance to the lessee, appellees owed no legal duty to Daimler.

Facts

The allegations in Daimler’s second amended complaint paint the following picture of a long-term motor vehicle lease transaction. Daimler was the vicarious liability insurance carrier for DCFS, which was in the business of leasing cars. In 2002, Arrigo Enterprises, Inc., entered into a long-term lease with a lessee/driver who did not maintain the level of liability insurance required by the lease agreement. Instead of coverage limits of $100, 000/$300,000/$50,000, the driver obtained $10,000/$20,000/$10,000 insurance. The driver informed appellees that the vehicle was leased and that DCFS was the lessor. DCFS accepted Arrigo’s assurance that the proper insurance coverage was in place when it accepted assignment of the lease from Arrigo.

In 2004, the leased vehicle was involved in an accident that resulted in the death of a passenger in the other vehicle. ' Congress then passed the Graves Amendment which, for any case filed after August 10, 2005, provided that a long term lessor of a vehicle may not be held vicariously liable for a lessee’s negligence, unless there is negligence on the part of the lessor. Nonetheless, Daimler and DCFS concluded that, pursuant to subsection 324.021(9)(b), Florida Statutes, the fact that the driver did not have the proper insurance made DCFS the “owner” of the vehicle with unlimited vicarious liability-under Florida’s dangerous instrumentality doctrine. As a result, they believed that DCFS’s “contingent auto coverage” was triggered and that Daimler was compelled to pay the estate of the accident victim $1 million to settle the “underlying injury/death claim” against DCFS. They made that payment in June 2006.

Noting that it was subrogated to the rights of its insured, DCFS, by virtue of its insurance policy and by common law equitable subrogation principles, Daimler then filed this action against the driver/lessee, Arrigo, and appellees. Against ap-pellees, Daimler asserted claims for negligence. Daimler alleged that the driver had informed appellees that the vehicle was leased, that DCFS was the lessor, and that appellees knew or should have known Florida law regarding the liability limits for lease agreements. Daimler asserted that underwriting standards require an insurer to know the identity of the owner of a vehicle and that the appellees owed a duty to vehicle lessors and to the general public to abide by standard insurance practices to issue auto liability insurance coverage on leased vehicles as required by Florida vehicle leases and Florida statutes. By breaching this duty, appellees assisted the driver in breaching his lease.

Daimler informed the circuit court that the Florida Supreme Court had stayed review of Rosado v. DaimlerChrysler Financial Services Trust, 1 So.3d 1200 (Fla. 2d DCA 2009); in that case the second district held that the Graves Amendment preempts subsection 324.021(9)(b)(l), Florida Statutes (2002), regarding long-term automobile leases. Thus, application of the Graves Amendment would mean that lessor DCFS would not be liable for the underlying accident unless it was negligent or somehow guilty of criminal wrongdoing. Rosado was stayed pending the the Supreme Court’s review of this court’s decision Vargas v. Enterprise Leasing Co., 993 So.2d 614, 616 (Fla. 4th DCA 2008).

The trial court granted appellees’ motion to dismiss, ruling, among other things, that the Graves Amendment applied and preempted subsection 324.021(9)(b)(l), so that DCFS was not vicariously liable for the accident. Because Daimler had not pleaded any facts showing that preemption did not apply, the trial court ruled that it could not bring a subrogation claim against appellees.

Analysis

The preemptive effect of the Graves Amendment did not preclude Daimler from using equitable subrogation to assert a claim against appellees. After the following discussion on equitable subrogation, we explain why we nonetheless affirm.

As Justice Anstead explained in his opinion concurring in part and dissenting in part in Continental Casualty Co. v. Ryan Inc. Eastern:

“Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999) (quoting W. Am. Ins. Co. v. Yellow Cab Co., 495 So.2d 204, 206 (Fla. 5th DCA 1986)). Equitable subrogation, also referred to as legal subrogation, “is not created by a contract, but by the legal consequences of the acts and relationships of the parties.” Dade County, 731 So.2d at 646. In general, equitable sub-rogation is appropriate where:
(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subro-gation would not work any injustice to the rights of a third party.
Id. (citing Fowler v. Lee, 106 Fla. 712, 143 So. 613, 614 (1932)). The party who has discharged the debt “stands in the shoes” of the party whose claim has been discharged and therefore is entitled to the “right and priorities of the original creditor.” Id.

974 So.2d 368, 380 (Fla.2008) (Anstead, J., concurring in part and dissenting in part).

Daimler met all five requirements for equitable subrogation. It is undisputed that Daimler was not primarily liable, that there was no injustice to a third party, and that Daimler paid off the entire claim by acquiring a settlement with the accident victim. Daimler did not act as a volunteer and acted to protect its own interest, because at the time of the settlement the impact of the Graves Amendment had not been established by any court and settlement was a reasonable attempt to limit its liability.

When Daimler made payment to settle the case in June 2006, the law surrounding the Graves Amendment was unsettled; at that point, no Florida district court of appeal had considered the impact of the federal statute. Subsection 30106(b)(2) of the Graves Amendment contains a savings clause providing that the statute does not supersede the law of any state “imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under state law.” Not until 2008 did this court determine that, for short-term vehicle leases, subsection 324.021(9)(b)2., Florida Statutes (2007), was not a “financial responsibility or liability insurance requirement” within the meaning of the section 30106(b)(2). See Vargas, 993 So.2d at 618, approved by 2011 WL 1496474. The first case to hold that the Graves Amendment preempts subsection 324.021(9)(b)l., dealing with a long term motor vehicle lease, was Rosado v. DaimlerChrysler Financial Services Trust, 1 So.3d 1200 (Fla. 2d DCA 2009).

Like state law regarding the impact of the Graves Amendment, federal law was also unsettled in 2006. In Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242 (11th Cir.2008), the eleventh circuit held the Graves Amendment to be constitutional. Prior to that, the district courts in Florida were split, with two cases holding the Graves Amendment to be outside the scope of the congressional commerce power. See Vanguard Car Rental USA, Inc. v. Huchon, 532 F.Supp.2d 1371 (S.D.Fla.2007); Vanguard Car Rental USA, Inc. v. Drouin, 521 F.Supp.2d 1343 (S.D.Fla.2007), rev’d., 21 Fla. L. Weekly Fed. C 1719, 2009 WL 995141 (11th Cir. 2009) (unpublished per curiam decision).

If there is a reasonable doubt concerning liability at the time of a settlement, the settling party is not later precluded from pursuing equitable subro-gation. As the third district explained in Kala Investments, Inc. v. Sklar:

One should have the right to settle a lawsuit in which there is a reasonable doubt concerning liability and not be required to incur all of the expenses of litigation to conclusion before being entitled to seek subrogation. To hold otherwise would be to discourage settlements and to promote litigation, a concept which should be discouraged by the courts. We believe it is not inappropriate to hold that one who is sued for alleged negligence and who, in an effort to save his property, including the expenditure of attorney’s fees, enters into a reasonable settlement is not a volunteer and is entitled to seek reimbursement under the doctrine of equitable subrogation.

588 So.2d 909, 918 (Fla. 3d DCA 1989) (quoting Rawson v. City of Omaha, 212 Neb. 159, 322 N.W.2d 381, 385 (1982)); see also Suntrust Bank v. Riverside Nat’l Bank, 792 So.2d 1222, 1225 (Fla. 4th DCA 2001) (holding that, under the doctrine of equitable subrogation, “equity will grant relief where a mortgage is satisfied by mistake and no rights of third parties have intervened” if the mistaken action was reasonable).

To argue that it should not be barred from equitable subrogation because of its failure to properly evaluate the preemptive impact of the Graves Amendment, Daimler cites cases that involve mistakes of fact— West American Insurance Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204 (Fla. 5th DCA 1986), and Transport International Pool, Inc. v. Pat Salmon & Sons of Fla., Inc., 609 So.2d 658 (Fla. 4th DCA 1992). In both cases defendants settled, only to later find out that they did not have any liability based on the facts of the case. Given the Supreme Court’s commitment “to a liberal application of the rule of equitable subrogation,” we see no reason to treat reasonable mistakes of law differently than reasonable mistakes of fact. Dantzler Lumber & Export Co. v. Columbia Cas. Co., 115 Fla. 541, 156 So. 116, 120 (1934).

We affirm the dismissal with prejudice, however, for another reason. Even if Daimler might stand in the shoes of DCFS and pursue a lawful claim by way of equitable subrogation, it could not base a cause of action for negligence against appellees because appellees did not owe a legal duty to DCFS that would support such an action.

One of the elements of a negligence cause of action is a “duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (quoting Prosser and Keeton on the Law of Torts 164-65 (W. Page Keeton ed., 5th ed. 1984)) (emphasis in Clay Elec.). Whether a legal duty exists in a negligence action is a question of law for the court. Biglen v. Fla. Power & Light Co., 910 So.2d 405, 408 (Fla. 4th DCA 2005).

The Supreme Court has held that a legal duty may arise from four general sources:

(1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of a case. Clay Elec., 873 So.2d at 1185 (citing McCain v. Fla. Power Corp., 593 So.2d 500, 503 n. 2 (Fla.1992)). The fourth category encompasses “that class of cases in which the duty arises because of a foreseeable zone of risk arising from the acts of the defendant.” McCain, 593 So.2d at 503 n. 2.

Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1227-28 (Fla.2010).

We explained the concept of foreseeability in Biglen:

The supreme court has made foreseeability the polestar to finding both the existence of a legal duty and its scope; “whenever a human endeavor creates a generalized and foreseeable risk of harming others,” which the court describes as a “foreseeable zone of risk,” the law generally places a duty upon a defendant “ ‘either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.’ ” McCain ..., 593 So.2d [at] 503[ ] (quoting Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989)). The existence of a legal duty means that a defendant stands in a “ ‘relation to the plaintiff as to create [a] legally recognized obligation of conduct for the plaintiffs benefit.’ ” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998) (quoting Prosser and Keeton § 42, at 274). The absence of a foreseeable zone of risk means that the law imposes no legal duty on a defendant, and therefore defeats a negligence claim.

910 So.2d at 408. In Palm Beach-Bro-ward Medical Imaging Center, we described the application of the foreseeable zone of risk test:

In applying the “foreseeable zone of risk” test to determine the existence of a legal duty, the supreme court has focused on the likelihood that a defendant’s conduct will result in the type of injury suffered by the plaintiff. This aspect of foreseeability requires a court to evaluate
whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that ‘in the field of human experience’ the same type of result may be expected again.
Pinherton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla.1961).

715 So.2d at 345 (emphasis in Pope).

In this case, no legislative enactment or administrative regulation imposed a duty running from appellees to the lessor DCFS to see that the lessee acquired a certain level of insurance. The insurance levels discussed in subsection 324.021(9)(b)l. are not mandatory; if a lease “requires the lessee” to obtain insurance with “not less than” $100,000/$300, 000/$50,000 in coverage, and “insurance meeting these requirements is in effect,” then the lessor avoids the operation of the dangerous instrumentality doctrine. § 324.021(9)(b)l. Nothing in the statute requires a party to a long-term motor vehicle lease to obtain a specified level of insurance. The lessor may obtain insurance to satisfy the statute so long as “the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million.” Id. Nothing in Chapter 324 precludes a long-term motor vehicle lessee from obtaining only the minimum coverage required for financial responsibility under section 324.022. Chapter 324 leaves lessors and lessees free to negotiate the level of insurance that will be required under the lease. Appellants have pointed to no statute or administrative rule that requires an insurer, insurance broker, or agent to make sure that a lessee is not in breach of his lease with a motor vehicle lessor.

Similarly, we do not find that appellees’ conduct created a foreseeable zone of risk running to DCFS. Appellees’ status as the lessee’s insurer and its agents did not impose upon them a legally recognized obligation of conduct for the benefit of the lessor. Between the issuance of the policy to the lessee and Arrigo’s assignment of the lease to DCFS were four missteps by the parties to the lease and assignment, any one of which might have led DCFS to avoid the loss for which Daimler now seeks recovery. First, the lessee breached his lease with Arrigo by failing to secure the level of insurance required in the lease. Second, Arrigo failed to verify that the lessee had in fact complied with the lease requirements. Third, Arrigo potentially breached its agreement with DCFS by assigning a lease that placed the assignee at risk. Fourth, DCFS failed to verify that Arrigo was assigning it a lease where the parties had complied with subsection 324.021(9)(b)l.

With four such missteps standing between defendants and an injury to the lessors, there was no foreseeable zone of risk requiring appellees to protect the lessor from the type of injury that occurred here. The law does not require appellees to bear the risk of multiple breaches of contract; as a general rule, where the parties to a contract fail to take even minimal steps for their own protection they should not, under tort law, be able to shift the loss to a party that is a stranger to that contract. Although principles of subrogation would allow Daimler to stand in the shoes of DCFS to assert a lawful claim of DCFS against appellees, common law negligence will not lie.

Affirmed.

POLEN and DAMOORGIAN, JJ., concur.

      . See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users § 10208(a), Pub. L. No. 109-59, 119 Stat. 1144 (codified at 49 U.S.C. § 30106 (2006) (effective Aug. 10, 2005)).

      . The claims against the driver/lessee were for common law and contractual indemnity and breach of contract. The claims against the dealership were for negligent misrepresentation and breaches of the dealership agreement and assignment contract.

      . The Supreme Court approved this court’s Vargas decision in Vargas v. Enterprise Leasing Co., 60 So.3d 1037 (Fla. Apr.21, 2011).

      . Appellees rely on a number of indemnity cases which are not relevant, because they interpret contractual indemnification clauses rather than apply the rules of equitable subro-gation. See, e.g., Metro. Dade Cnty. v. Fla. Aviation Fueling Co., 578 So.2d 296 (Fla. 3d DCA 1991).

      . We distinguish this case from the title insurance cases, where a negligent abstractor knows or should know that third persons not in privity with the abstractor will be relying on the abstract. See First Am. Title Ins. Co. v. First Title Serv. Co. of Fla. Keys, 457 So.2d 467 (Fla.1984); Safeco Title Ins. Co. v. Attorneys’ Title Servs., Inc., 460 So.2d 518 (Fla. 3d DCA 1984).