author: WALLACE, Judge.

text:
    REGIONS BANK, Successor by Merger with AmSouth Bank, Appellant, v. Albert and Adrienne DELUCA; and JPMorgan Chase Bank, National Association, as Purchaser of the Loans and Other Assets of Washington Mutual Bank, formerly known as Washington Mutual Bank, F.A., Appellees.
    No. 2D11-3828.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.

      Cary A. Lubetsky of Krinzman, Huss & Lubetsky, LLP, Miami, and José D. Vega of Bradley Arant Boult Cummings, LLP, Birmingham, Alabama, for Appellant.
    Benjamin B. Brown, Andrew G. Tretter, and Kevin R. Lottes of Quarles & Brady, LLP, Naples, for Appellees.
   WALLACE, Judge.

Regions Bank, successor by merger with AmSouth Bank, appeals a final summary judgment determining that because of certain irregularities in the formatting of the legal description of the subject real property in its mortgage, Albert Deluca; Adrienne Deluca; and JPMorgan Chase Bank, National Association, were bona fide purchasers for value and without notice of Regions Bank’s prior recorded mortgage. Because the irregularities in the formatting of the legal description were capable of being corrected from other parts of the same instrument, the Delucas and JPMor-gan had constructive notice of the mortgage held by Regions Bank. Accordingly, we reverse the final summary judgment.

I. THE FACTUAL BACKGROUND

From June 2003 through June 2005, Ralph A. Fulchino and Katheryn Y. Ful-chino owned real property in Naples referred to as “the Olde Cypress property.” In 2003, the Fulchinos gave AmSouth Bank a first mortgage and a second mortgage on the Olde Cypress property.

In 2005, the Fulchinos applied for a new mortgage loan from AmSouth to purchase real property in Bonita Springs referred to as “the Bayfront Gardens property.” On April 12, 2005, in connection with their purchase of the Bayfront Gardens property, the Fulchinos borrowed $1,690,000 from AmSouth and gave AmSouth a mortgage. The new mortgage was prepared on a standard Fannie Mae/Freddie Mac mortgage form document intended for use in Florida. The entire instrument consists of nineteen pages. The first eleven pages consist of the basic mortgage document. The loan number appears on the first page of the mortgage. The twelfth page is labeled “EXHIBIT A’”; it contains legal descriptions of the Bayfront Gardens property and the Olde Cypress property. Exhibit “A” is followed by three riders: (1) a two-page “Planned Unit Development Rider,” (2) a two-page “Adjustable Rate Rider,” and (3) a three-page “1-4 Family Rider.”

There is a blank space approximately three inches high on page two of the form. The drafter or drafters of the form provided this space for the scrivener of the mortgage to insert the legal description of the mortgaged property. Notably, this space remains blank on the mortgage. In other words, the scrivener did not insert the legal description of either the Bayfront Gardens property or the Olde Cypress property in the space provided for that purpose. In addition, the scrivener failed to insert words to the effect of “See attached EXHIBIT A’ for legal description.” Immediately after the blank space the scrivener completed the portion of the form provided for the insertion of the address of the mortgaged property as follows: “which currently has the address of 239 Bayfront Drive, Bonita Springs, FL 34134 (‘Property Address’).” This is the address for the Bayfront Gardens property, not the Olde Cypress property.

The single page Exhibit “A” to the mortgage bears some examination. In the upper left hand corner of Exhibit “A” appears the name of the mortgagor, “Fulchi-no,” and a ten-digit number that corresponds to the loan number referenced on the first page of the mortgage instrument. The designation “Parcel 1” appears below “Exhibit A,’ ” followed by the legal description and parcel identification number for the Bayfront Gardens property. Below that legal description and parcel identification number appears a legend centered and in capital letters that reads: “PROPERTY DESCRIBED BELOW CONSTITUTES ADDITIONAL COLLATERAL TO SECURE THE DEBT EVIDENCED BY THIS MORTGAGE.” The words “AND Parcel 2” appear below this legend. The legal description and the parcel identification number for the Olde Cypress property follow. Finally, Exhibit “A” concludes with a release clause for the mortgage applicable to Parcel 2, the Olde Cypress property.

The Fulchinos executed the mortgage as “Borrower” on April 12, 2005. The mortgage was recorded on April 15, 2005, in Official Record Book 3776, pages 79 through 97, of the Public Records of Collier County, Florida. At this point, the bread fell butter side down. The clerk’s office properly indexed the mortgage under the names of the Fulchinos in the grantor/grantee index. But the abstract of the legal description of the property subject to the mortgage in the clerk’s index included only the Bayfront Gardens property, not the Olde Cypress property.

On June 28, 2005, approximately two and one-half months after the AmSouth third mortgage was executed and recorded, the Fulchinos sold the Olde Cypress property to the Delucas for $1,200,000. In connection with their purchase of the Olde Cypress property, the Delucas obtained a loan for $900,000 from JPMorgan’s predecessor in interest. This subsequent mortgage, now held by JPMorgan, was dated June 28, 2005, and recorded July 22, 2005, in Official Record Book 3850, page 3953, of the Public Records of Collier County, Florida.

Unfortunately, the title search conducted in connection with the Delucas’ purchase of the Olde Cypress property from the Fulchinos did not disclose the existence of the AmSouth third mortgage. AmSouth’s first and second mortgages on the Olde Cypress property were satisfied from the closing proceeds. However, because of its omission from the title search, the AmSouth third mortgage was neither satisfied nor released as to the Olde Cypress property at the closing between the Fulchinos and the Delucas. The closing statement prepared in connection with the transaction reflects that the Fulchinos received net proceeds from the closing of $517,380.28. There is no evidence in the record that either the Delucas or JPMor-gan’s predecessor in interest had actual notice that AmSouth claimed to hold a third mortgage on the Olde Cypress property.

At some point after the Fulchinos sold the Olde Cypress property to the Delucas, AmSouth Bank was merged into Regions Bank. In the remainder of this opinion, we will refer to the AmSouth third mortgage that was not satisfied or released at the closing between the Fulchinos and the Delucas as “the Regions Bank mortgage.”

Mr. Fulchino died in December 2008. Thereafter, the Regions Bank mortgage went into default. In October 2009, Regions Bank filed an action to foreclose its mortgage on both the Bayfront Gardens property and the Olde Cypress property. Because the Delucas and JPMorgan had interests in the Olde Cypress property as owners and mortgagee, respectively, Regions Bank named them as defendants in its foreclosure action. The Delucas and JPMorgan filed an answer and affirmative defenses. They alleged as one of their affirmative defenses that they “were bona fide purchasers without notice of any interest Regions [Bank] or its predecessor may have had in [the Olde Cypress property].”

II.THE SUMMARY JUDGMENT MOTION AND THE CIRCUIT COURT’S RULING

Later, the Delucas and JPMorgan moved for summary judgment regarding Regions Bank’s foreclosure of the Olde Cypress property. In support of their motion, the Delucas and JPMorgan argued “that they were bona fide purchasers of [the Olde Cypress property] without any notice of the [Regions Bank] Mortgage’s alleged encumbrance, and hence, Regions [Bank] cannot foreclose the Mortgage against [the Olde Cypress property].”

At the hearing on the motion, the circuit court announced its oral ruling as follows: [T]he Delucas were bona fide purchasers for value of [the Olde Cypress] property and ... there was not sufficient notice. As was stated, the only portion of the mortgage body referred to a[n] address, and that address was not the one that was encumbered.

It is the law, from the Court’s memory, that if an address is stated and you can relate that to the legally-described property, that’s what is effective. And the Court ... feels that the — the only address was the one that was not encumbered by the Delucas.

In the final summary judgment, the circuit court ruled that the Delucas and JPMor-gan were bona fide purchasers for value and without notice of the Regions Bank mortgage, and it dismissed Regions Bank’s foreclosure action with prejudice as to the Olde Cypress property. This appeal followed.

III.THE STANDARD OF REVIEW

The pertinent facts here are essentially undisputed. The parties agree that the applicable standard of review for the

final summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

IV.THE PARTIES’ ARGUMENTS

Florida’s recording statute, section 695.01, Florida Statutes (2004), provides, in pertinent part, as follows:

(1) No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law....

“The act of recording an instrument in accordance with this statute constitutes constructive notice of a prior encumbrance on the property which is the subject of the instrument.” Lafitte v. Gigliotti Pipeline, Inc., 624 So.2d 844, 845 (Fla. 2d DCA 1993) (citing Bank of S. Palm Beaches v. Stockton, Whatley, Davin & Co., 473 So.2d 1358, 1360 (Fla. 4th DCA 1985), abrogated on other grounds by Suntrust Bank v. Riverside Nat’l Bank of Fla., 792 So.2d 1222 (Fla. 4th DCA 2001)). “Constructive notice is a legal inference, and it is imputed to creditors and subsequent purchasers by virtue of any document filed in the grantor/grantee index — the official records.” Dunn v. Stack, 418 So.2d 345, 349 (Fla. 1st DCA 1982), quashed on other grounds, 444 So.2d 935 (Fla.1984).

The Delucas and JPMorgan acquired their interests in the Olde Cypress property after the Regions Bank mortgage was executed and recorded. Thus, with regard to the Regions Bank mortgage, the Delu-cas and JPMorgan are subsequent purchasers for value. Section 695.01 is a “notice” type of recording statute. Argent Mortg. Co. v. Wachovia Bank N.A., 52 So.3d 796, 801 (Fla. 5th DCA 2010).

Therefore, the Regions Bank mortgage has priority over the interests of the Delu-cas and JPMorgan in the Olde Cypress property unless the Delucas and JPMor-gan were without notice of the Regions Bank mortgage when they acquired their interests in the property. Id. at 799, 801.

For the purpose of applying the recording statute, notice may take different forms:

There are three types of notice by which a party may be held to have had knowledge of a particular fact: actual notice, implied notice (or implied actual notice), and constructive notice. “Actual notice” stems from actual knowledge of the fact in question. “Implied notice” is [the] factual inference of such knowledge, inferred from the availability of a means of acquiring such knowledge when the party charged therewith had the duty of inquiry. “Constructive notice” is the inference of such knowledge by operation of law, as under a recording statute.

McCausland v. Davis, 204 So.2d 334, 335-36 (Fla. 2d DCA 1967). There is no issue here about actual notice. Instead, Regions Bank argues that the Delucas and JPMor-gan had constructive notice of its mortgage on the Olde Cypress property when they acquired their interests in the property. Regions Bank asserts that the description of the Olde Cypress property on Exhibit “A” was sufficient to give constructive notice that the mortgage encumbered the Olde Cypress property as well as the Bay-front Gardens property.

The Delucas and JPMorgan make two arguments in support of their claim that they were not on constructive notice that the Regions Bank mortgage encumbered the Olde Cypress property. First, Exhibit “A,” which contained the legal description and parcel identification number for the Olde Cypress property, was not properly identified and incorporated into the mortgage. Second, the language of the Fannie Mae/Freddie Mac form mortgage defines the term “Property” in such a manner that only one property — the Bayfront Gardens property — is encumbered by the mortgage.

V. DISCUSSION

The lien of a mortgage only covers the property that is described in the mortgage. § 697.02, Fla. Stat. (2004); Sunshine Meadows Condo. Ass’n v. Bank One, Dayton, N.A., 599 So.2d 1004, 1007 (Fla. 4th DCA 1992). It follows that the recording of a mortgage with no description of the property or a description that would have to be reformed to be effective does not constitute constructive notice and defeats the effect and purpose of recordation. See Neves v. Flannery, 111 Fla. 608, 149 So. 618, 620 (1933) (quoting 41 C.J. at 564-65); Air Flow Heating & Air Conditioning, Inc. v. Baker, 326 So.2d 449, 451 (Fla. 4th DCA 1976). However, in considering the sufficiency of a legal description in a mortgage, one must examine the entire instrument:

[I]f it is apparent from the face of the record that there is a mistake or misde-scription, which is capable of being corrected from other parts of the same instrument, or other details of the same description, it operates as a constructive notice.

Neves, 149 So. at 620 (quoting 41 C.J. at 564-65). Based on this principle, the Florida courts have repeatedly held descriptions of property in mortgages suffi-dent despite minor mistakes and irregularities where the description of the property intended to be encumbered could be determined from a review of the entire instrument. See, e.g., Fed. Land Bank of Columbia v. Dekle, 108 Fla. 555, 148 So. 756, 757 (1938) (holding description of lands by government surveys and subdivisions sufficient despite reference to lands as being in Calhoun County when they were in fact in Jackson County); Neves, 149 So. at 620-21 (holding description of land by reference to lots, block number, and name of recorded plat sufficient despite erroneous statement that the land was located in “the SE 1/4 of the SE 1/4” instead of in “the S.W. 1/4 of the S.W. 1/4” of the appropriate section); Merrell v. Ridgely, 62 Fla. 546, 57 So. 352, 353 (1912) (holding description of land by lot and block number of named subdivision sufficient despite reference to an incorrect plat book for the subdivision); Fid. Bank of Fla. v. Nguyen, 44 So.3d 1238, 1239 (Fla. 5th DCA 2010) (holding description of land by lot and block number of a subdivision identified by name and the designation of the correct plat book sufficient despite reference to an incorrect page number of the plat book), review denied, 57 So.3d 846 (Fla.2011). With these basic principles in mind, we turn to an examination of the arguments made by the Delucas and JPMorgan on the issue of constructive notice.

The first argument made by the Delucas and JPMorgan is that the Regions Bank mortgage did not provide constructive notice concerning the Olde Cypress property because Exhibit “A” was not properly identified and incorporated into the mortgage. We disagree with this argument for two reasons.

First, the recording of the Regions Bank mortgage provided constructive notice not only of the existence of the instrument but also of its contents. See Hull v. Md. Cas. Co., 79 So.2d 517, 519 (Fla.1954); Crenshaw v. Holzberg, 503 So.2d 1275, 1277 (Fla. 2d DCA 1987). Exhibit “A” constituted the twelfth page of a nineteen-page document. Accordingly, Exhibit “A” was a part of the entire mortgage and was not extraneous to it. Anyone who examined the mortgage would necessarily read Exhibit “A.” This exhibit, contained within the four corners of the mortgage, carried a legend in capital letters placed in the center of the page and reciting that the Olde Cypress property was “additional collateral for the debt evidenced by this mortgage.” (Emphasis added.) These facts are sufficient to identify Exhibit “A” as part of the mortgage and to incorporate the exhibit into the mortgage.

Second, Exhibit “A” was linked to the rest of the mortgage instrument through its content, not just its placement within the four corners of the document. The name of the mortgagor, “Fulchino,” appeared in the upper left hand corner of the exhibit along with a ten-digit number, corresponding to the loan number on the first page of the mortgage. In addition to providing a legal description for the Olde Cypress property, Exhibit “A” had a legal description for the Bayfront Gardens property that was identified by street address on page two of the mortgage. Furthermore, Exhibit “A” contained a release clause applicable to the Olde Cypress property for “the mortgage loan.” These items unmistakably linked Exhibit “A” to the remainder of the instrument.

From an examination of the Regions Bank mortgage, it would be immediately apparent to anyone with minimal knowledge of real estate practice that the scrivener of the instrument neglected to insert an appropriate reference to Exhibit “A” in the blank space provided on page two of the document. This was clearly a mistake. However, the mistake is capable of being corrected by the placement of Exhibit “A” within the four corners of the mortgage, the particular language used in Exhibit “A,” and the internal links between Exhibit “A” and the remainder of the instrument. Under these circumstances, the Regions Bank mortgage operated as constructive notice for the Olde Cypress property. See Neves, 149 So. at 620.

The second argument made by the Delu-cas and JPMorgan is that the language of the Fannie Mae/Freddie Mac form mortgage defines the term “Property” in such a manner as to exclude the Olde Cypress property from the lien of the Regions Bank mortgage. This argument is based on a close reading of multiple provisions of the mortgage. To make this argument, one must actually read the mortgage. One cannot reasonably read pages one through eleven and pages thirteen through nineteen of the mortgage while ignoring Exhibit “A” on page twelve. Anyone reading page twelve would necessarily read the legend placed in the center of the page announcing in capital letters that the Olde Cypress property “constitutes additional collateral to secure the debt evidenced by this mortgage.” However closely one may parse the terms of the Fannie Mae/Freddie Mac form mortgage, this language is sufficient to provide constructive notice that the Olde Cypress property — as well as the Bayfront Gardens property — is subject to the lien of the Regions Bank mortgage.

VI. CONCLUSION

The dispute between the parties in this case arises from an unfortunate chain of events. Insofar as the record reveals, the Delucas and JPMorgan relied in good faith on a title search that did not disclose the existence of the Regions Bank mortgage.

Nevertheless, the undisputed facts and the applicable law establish that the Delucas and JPMorgan had constructive notice that the lien of the Regions Bank mortgage encumbered the Olde Cypress property. The circuit court erred in ruling to the contrary. Accordingly, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . The final summary judgment did not affect the other parties in the circuit court action, and those parties did not join in or oppose this appeal. In the interest of simplicity, we have omitted the names of the other patties from the caption of this case.

      . In the balance of this opinion, a reference to ‘‘JPMorgan” should be understood to refer either to that party or to its predecessor in interest, as the context may require.

      . Regions Bank also argues that the Delucas and JPMorgan had implied actual notice of its mortgage on the Olde Cypress property. Based on our disposition of the case, we need not reach the issue of implied actual notice.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    UNION CARBIDE CORPORATION, Appellant, v. William P. AUBIN, Appellee.
    No. 3D10-1982.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.

      Carlton Fields, P.A., and Matthew J. Conigliaro, St. Petersburg, and Dean A. Morande, West Palm Beach, for appellant.
    The Ferraro Law Firm, and James Louis Ferraro, Melissa D. Visconti, and Juan P. Bauta, Miami, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.

      . Judge Emas participated in the decision, but did not hear oral argument.

   On Motion for Rehearing or Certification

ROTHENBERG, J.

We deny William P. Aubin’s (“Aubin”) motion for rehearing or certification. However, to address the arguments advanced in that motion, we withdraw our former opinion, dated June 20, 2012, and substitute the following opinion in its stead.

Union Carbide Corporation (“Union Carbide”) appeals from a final judgment awarding Aubin $6,624,150 in damages on his asbestos-related, products liability claims. Because Aubin failed to present any evidence demonstrating that the defective design of SG-210 Calidria caused Au-bin’s harm, peritoneal mesothelioma, we reverse the trial court’s denial of Union Carbide’s motion for a directed verdict as to Aubin’s design defect claim. In addition, because the jury instructions given by the trial court were misleading, inconsistent with the law in the Third District, and in effect directed the verdict in favor of Aubin, we reverse and remand for a new trial as to the warning defect claim consistent with this opinion.

THE FACTS

/. Background

From October 1972 to September 1974, Aubin worked as a superintendent at his father’s company, Aubin Construction. During those years, Aubin supervised the construction of a model home community known as Desoto Lakes. As part of his duties, Aubin routinely handled and was otherwise exposed to joint compounds and ceiling textures that were created and distributed by Georgia-Pacific, Kaiser Gypsum, Premix-Marbletite, and other intermediary manufacturers. One of the ingredients used in those joint compounds and ceiling textures was a product mined, processed, and sold in bulk by Union Carbide named SG-210 Calidria, a particular grade of chrysotile asbestos.

II. Union Carbide’s SG-210 Calidria asbestos

Union Carbide touted SG-210 Calidria as being a highly efficient grade of asbestos. Jack Walsh, a Union Carbide sales representative, attributed SG-210’s enhanced efficiency to Union Carbide’s carefully designed asbestos processing regimen, or as Union Carbide called it, its “proprietary manufacturing process.” He testified that SG-210 asbestos was twice passed through a centrifuge in order to separate the chrysotile asbestos fibers and thereby increase the product’s effectiveness.

While short-fiber SG-210 Calidria may have been more efficient than other asbestos products, it was also found more dangerous with respect to the development of asbestosis, according to several studies proffered by Aubin. This much was acknowledged by Dr. Carl Dernehl, Union Carbide’s former toxicology expert, in a letter he wrote to Union Carbide’s medical director in 1967. In that letter, Dr. Der-nehl described a study he conducted to discern how the effects of Calidria compared to those of “standard fiber” and “long fiber” asbestos. Based on the results, Dr. Dernehl warned Union Carbide’s medical director that: “The only conclusion we can draw from this crude test is that it is possible that our [Calidria] product may be more hazardous to use than long fiber asbestos in that it may induce the disease, asbestosis, at an early time after exposure.”

Although Aubin presented studies linking SG-210 Calidria to a higher degree of danger with respect to the development of asbestosis than other types of asbestos, he failed to introduce any evidence suggesting SG-210 Calidria was more dangerous than raw chrysotile asbestos with respect to the contraction of cancer or peritoneal meso-thelioma. While there was evidence generally linking chrysotile asbestos to the contraction of mesothelioma, the only relevant evidence in the record suggests that SG-210 Calidria, and chrysotile asbestos generally, was either less dangerous than other types of asbestos with respect to the contraction of mesothelioma, incapable of causing it, or inconclusive on the issue. For instance, in 1967, Dr. I.C. Sayers, of Union Carbide’s toxicology department, prepared a report explaining that an experiment comparing the carcinogenic effects of chrysotile asbestos to those of amosite and crocidolite was underway, but not yet complete. Thus, Dr. Sayers wrote that “it is not yet known whether there are significant differences in the number of tumours produced by different types of fibres.” Later, in 1970, Dr. Dernehl wrote a report on the toxicity of Calidria asbestos, and concluded that it should be assumed that “Calidria Asbestos will behave like other asbestos” with regard to “the development of lung cancer and mesotheli-oma.” In addition, Aubin proffered the testimony of Dr. Brody, a cell biologist, who testified that while chrysotile asbestos could cause peritoneal mesothelioma, other types of asbestos were “more dangerous” and “more likely to cause the disease” than chrysotile asbestos. Finally, Union Carbide presented the testimony of Dr. Rog-gli, a pathologist at Duke University, who testified that exposure to chrysotile asbestos cannot cause peritoneal mesothelioma.

The dangers associated with SG-210 Calidria are perhaps better understood by examining its intended use. The evidence showed that Union Carbide marketed and sold SG-210 Calidria to intermediary manufacturers knowing that they would incorporate the asbestos into their joint compound and texture spray products. It was also established that Union Carbide representatives knew the joint compounds and texture sprays ultimately would be sanded and sprayed by contractors during the installation of drywall and completion of finishing work, and that such sanding and spraying would liberate the SG-210 Calid-ria fibers into the air, creating a cloud of asbestos-laden dust. And as is explained below, that is exactly what happened at Desoto Lakes.

III. The Use of SG-210 Calidria at the Desoto Lakes Construction Site, and Aubin’s Exposure to Asbestos-Laden Dust

Nelson Yoder, the drywall subcontractor for Desoto Lakes, explained that at the Desoto Lakes construction site, he administered texture sprays with a spray gun onto the walls and ceilings, and applied joint compounds to the walls. After the joint compounds were applied, all the joints and nails were sanded to eliminate imperfections in the finish work and to smoothen the surface. Yoder confirmed that the processes of sanding and spraying created what he described as a “fog” of dust, and that this dust was ever present at the Desoto Lakes construction site. Yo-der also attested to the fact that Aubin was regularly present throughout all phases of construction, and, consequently, was exposed to and inhaled the dust.

In fact, by all accounts, Aubin was an active supervisor. Aubin testified that he worked hands on with the joint compounds and texture sprays, hanging and finishing drywall, and cleaning up after the subcontractors when they finished sanding and spraying. Like Yoder, Aubin recalled that the processes of sanding and spraying generated thick “clouds” of dust that were present throughout the construction of De-soto Lakes. Aubin specifically remembered using joint compounds made by Kaiser Gypsum and Georgia-Pacific, but did not recall warnings of any kind on the containers or packages in which they were delivered.

IV. The Warnings

Union Carbide stipulated at trial that neither Union Carbide nor the intermediary manufacturers placed warnings on the joint compounds and texture sprays. Union Carbide representatives testified that Union Carbide began placing warnings on its own bags of asbestos in 1968, which read: “Warning, breathing dust may be harmful. Do not breathe dust.” Aubin challenged this proposition by offering the testimony of Howard Schutte, a Georgia-Pacific corporate representative, who stated that he did not recall such labels on Union Carbide’s bags. In 1972, the Occupational Safety and Health Administration (“OSHA”) required that all containers of raw asbestos or asbestos mixtures contain the following warning:

CAUTION

Contains Asbestos Fibers

Avoid Creating Dust

Breathing Asbestos Dust May Cause

Serious Bodily Harm

Union Carbide representatives testified that pursuant to this regulation, Union Carbide began placing these warnings on their bags of asbestos in 1972.

It was also hotly contested as to whether Union Carbide otherwise adequately informed intermediary manufacturers about the dangers of asbestos. Union Carbide representatives testified that along with the OSHA warning labels, Union Carbide regularly updated its clients regarding the dangers of asbestos as such dangers came to light. Conversely, Aubin introduced evidence suggesting that Union Carbide actively downplayed and even concealed the truth about the dangers of asbestos from its clients and the public, and engaged in a “misinformation campaign.”

In any event, Union Carbide stipulated that the intermediary manufacturers did not place any warnings on their products, Union Carbide knew the intermediary manufacturers did not place any warnings on their products, and Union Carbide itself did not directly warn end-users about the dangers of asbestos. Aubin claims that because there were no warnings on these products, he was unaware of the dangers associated with the liberation of SG-210 Calidria asbestos fibers into the air, and, therefore, did not wear any respiratory masks or protective gear while exposed to the asbestos. As a consequence, for roughly two years, Aubin routinely inhaled the lethal dust.

V. The Litigation

Aubin thereafter contracted peritoneal mesothelioma, an incurable, terminal disease. Aubin attributed his contraction of mesothelioma to his exposure to asbestos, and filed a complaint in the Miami-Dade Circuit Court against numerous defendants, including Union Carbide. In his complaint, Aubin alleged claims of negligence and strict liability based on theories of design, manufacturing, and warning defects. Aubin proceeded to trial against Union Carbide alone, settling or otherwise dismissing his claims against the remaining defendants.

Relying on the component parts doctrine recognized by the Restatement (Third) of Torts: Products Liability § 5 (1997) (“the Third Restatement”), as adopted by this Court in Kohler Co. v. Marcotte, 907 So.2d 596, 598-99 (Fla. 3d DCA 2005) {“Kohler ”), Union Carbide moved for a directed verdict on Aubin’s strict liability and negligence claims. That motion was denied. At the charge conference, Union Carbide requested jury instructions regarding the Third Restatement’s component parts doctrine, and, alternatively, on the duty to warn and bulk supplier doctrines under the Restatement (Second) of Torts § 388 (1965) (“the Second Restatement”). The trial court denied Union Carbide’s requests, choosing instead to deliver the special instructions that were requested by Aubin and which were taken from language used in the Fourth District’s decision in McConnell v. Union Carbide Corp., 937 So.2d 148 (Fla. 4th DCA 2006). The instruction read: “An asbestos manufacturer, such as Union Carbide Corporation, has a duty to warn end users of an unreasonable danger in the contemplated use of its products.”

The jury found in Aubin’s favor, awarding $14 million in noneconomic damages and $191,000 in economic damages, and assessing Union Carbide’s fault at 46.25 percent. After the trial court entered judgment on the verdict, Union Carbide timely moved for judgment in accordance with its motion for a directed verdict or, in the alternative, a new trial. The trial court denied the motions and amended the judgment to total $6,624,150 to reflect settlements into which Aubin had entered with other defendants. This appeal followed.

Union Carbide’s primary contention on appeal is that the trial court erred by refusing to apply the Third Restatement’s component parts doctrine, and choosing instead to rely on the Second Restatement. Further, Union Carbide argues the trial court erred in: (1) denying its motion for a directed verdict; and (2) instructing the jury that Union Carbide had a duty to warn end-users directly without also instructing the jury that Union Carbide could have discharged its duty to warn.

LEGAL ANALYSIS

Upon our careful review of the record and the controlling case law, we hold that the trial court erred in: determining that Aubin’s claims are governed by the Second Restatement rather than the Third Restatement; denying Union Carbide’s motion for a directed verdict with respect to Aubin’s design defect claim; and instructing the jury that Union Carbide had a duty to warn end-users without also instructing the jury that Union Carbide could have discharged this duty by adequately warning the intermediary manufacturers, and reasonably relying on them to warn end-users.

I. Aubin’s claims are governed by the Third Restatement.

A trial court’s determination regarding the legal standard that governs a case is reviewed de novo. Dep’t of Revenue Poynter v. Bunnell, 51 So.3d 543, 545 (Fla. 1st DCA 2010); State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009). A review of the record and the case law reveals that the trial court erred as a matter of law in determining that Aubin’s claims are governed by Sections 388 and 402 of the Second Restatement.

In Kohler, this Court adopted the component parts doctrine articulated in Section 5 of the Third Restatement as the governing law for products liability claims arising out of a defendant’s sale of a component part to a manufacturer who then incorporates the component into its own products. Kohler, 907 So.2d at 598-99. This Court’s adoption of the Third Restatement was later reaffirmed and extended in Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 997 (Fla. 3d DCA 2010), where this Court rejected the Second Restatement’s “consumer expectations” test as an independent basis for finding a design defect, determining instead that, after Kohler, the appropriate standard is the “risk-utility/risk-benefit” test articulated in Section 2 of the Third Restatement.

Despite this Court’s clear adoption of the Third Restatement and its component parts standard, the trial court, during the charge conference, determined that the Second Restatement was controlling, and cited two reasons for so concluding. First, the trial court found it instructive that in McConnell, which was decided after this Court’s decision in Kohler, the Fourth District relied on the Second Restatement when presented with a factual predicate similar to the one in this case. Second, the trial court noted that in 1976, the Florida Supreme Court adopted Section 402A of the Second Restatement in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976), and has not yet expressly adopted the Third Restatement:

The Restatement Second of Torts, Section 402-A, was adopted as the law of Florida by the Supreme Court in West versus Caterpillar. The Restatement Third of Torts has not been adopted in Florida.... [And] [i]t just so happens that the case of McConnell supersedes, in terms of time, the Kohler case in the Third DCA. I leave it there.

Not surprisingly, Aubin’s argument on appeal mirrors the trial court’s rationale. Aubin contends that Kohler and the Third Restatement do not control here because “Florida’s Supreme Court has not adopted the Third Restatement, and, unless and until it does so, the Third Restatement is not the law in this State.”

We disagree with the rationale shared by the trial court and Aubin, as “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme] Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980). This Court, in Kohler, adopted Sections 2 and 5 of the Third Restatement, and that decision has not been overruled by the Florida Supreme Court. Kohler, 907 So.2d at 598-99, review denied, 917 So.2d 194 (Fla. 2005). Those legal principles, therefore, are binding in this District. Accordingly, since Aubin’s claims against Union Carbide stem from Union Carbide’s sale of a component part, SG-210 Calidria, to intermediary manufacturers who incorporated the asbestos into their joint compounds and texture sprays, they are governed by the Third Restatement.

II. The trial court erred in denying Union Carbide’s motion for a directed verdict on Aubin’s design defect claim, but properly denied Union Carbide’s motion for a directed verdict on Aubin’s warning defect claim.

Union Carbide argues that when Kohler and the Third Restatement are applied, Union Carbide is entitled to judgment as a matter of law, and asks this Court to reverse the trial court’s denial of its motion for a directed verdict. As is explained below, we agree with Union Carbide that the trial court erred by denying Union Carbide’s motion for a directed verdict as to Aubin’s design defect claim, but conclude the trial court proceeded correctly in submitting the warning defect claim to the jury.

A trial court’s ruling on a motion for a directed verdict is reviewed de novo. Fasani v. Kowalski, 43 So.3d 805, 812 (Fla. 3d DCA 2010). “In reviewing a trial court’s denial of a motion for a directed verdict, this Court is required to view the evidence in the light most favorable to the nonmoving party.” Id. (citing Olsten Health Servs., Inc. v. Cody, 979 So.2d 1221, 1223 (Fla. 3d DCA 2008)). “A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict.” Fasani, 43 So.3d at 812 (quoting Schreidell v. Shoter, 500 So.2d 228, 232 (Fla. 3d DCA 1986)). “Where evidence is conflicting, or will admit of different reasonable inferences, the issue should be submitted to the jury as a question of fact, and not passed upon by the judge as a matter of law.” Martinolich v. Golden Leaf Mgmt., Inc., 786 So.2d 613, 615 (Fla. 3d DCA 2001) (quoting Levey v. Getelman, 444 So.2d 1027, 1028 (Fla. 3d DCA 1984)).

In Kohler, this Court adopted the component parts doctrine articulated in Section 5 of the Third Restatement, which provides:

One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
(a) the component is defective in itself, as defined in this Chapter,[] and the defect causes the harm; or
(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(b)(2) the integration of the component causes the product to be defective, as defined in this Chapter; and (b)(3) the defect in the product causes the harm.

Kohler, 907 So.2d at 598-99; Restatement (Third) of Torts: Products Liability § 5.

As is clear from the above passage, Kohler and Section 5 of the Third Restatement delineate two potential avenues for finding a component manufacturer liable for harm: (1) proving that the components themselves were “defective”; or (2) proving that the component manufacturers substantially participated in the integration of the components into the design of the finished products. Because the second avenue is not implicated in this case, we focus solely on the first.

The language in subsection 5(a) instructs courts to refer to the language of Chapter 1 to determine whether a product is “defective.” Accordingly, in Kohler, we relied on Section 2 of Chapter 1 of the Third Restatement in defining the circumstances under which a product is deemed “defective.” Section 2 of the Third Restatement states:

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Kohler, 907 So.2d at 599-600; Restatement (Third) of Torts: Products Liability § 2 (1997) (emphasis added). We need not address the possibility of a “manufacturing defect” in this opinion, as Aubin concedes that there was none in this case. That leaves only design defects and warning defects for this Court’s consideration.

A. Aubin’s design defect claim

The trial court erred in denying Union Carbide’s motion for a directed verdict with respect to Aubin’s design defect claim because Aubin failed to present any evidence suggesting that the design of SG-210 Calidria caused Aubin’s harm. Plaintiffs with asbestos-related design defect claims face three hurdles under the Third Restatement. To succeed, they must demonstrate that: (1) the product was a “designed” product rather than a raw material; (2) the product’s design was “defective”; and (3) the defective design caused the plaintiffs harm.

(i) There was sufficient evidence to conclude that SG-210 Calidria was a “designed” product rather than merely a raw material.

Under the Third Restatement, “a basic raw material such as sand, gravel, or kerosene cannot be defectively designed.” Restatement (Third) of Torts: Product Liability § 5 cmt. c. Relying on this language, Union Carbide argues that, like sand, gravel, and kerosene, SG-210 Calid-ria was naturally occurring ehrysotile asbestos, a basic, raw material, and, therefore, it could not have been defectively designed. Conversely, Aubin contends that SG-210 Calidria was not merely raw ehrysotile asbestos, but the product of Union Carbide’s “proprietary manufacturing process.” Aubin argues that there was sufficient evidence presented below for the jury to determine that once raw ehrysotile asbestos emerged from the proprietary manufacturing process, it became a “designed” product for purposes of products liability law. We agree with Aubin.

The evidence established that SG-210 Calidria was ehrysotile asbestos that had been subjected to Union Carbide’s carefully designed asbestos processing regimen. During this process, the ehrysotile asbestos was placed through a centrifuge multiple times in order to separate the ehrysotile fibers and thereby increase the efficiency of the asbestos when added to water. As a direct result of this process, Union Carbide, in its marketing literature, proclaimed that “Calidria asbestos generally goes twice as far, on a pound for pound basis, as ... other commercial types used in tape joint compounds.” We conclude that this evidence was sufficient to reach the trier of fact for a determination as to whether SG-210 Calidria was “designed” within the meaning of Section 2. See McConnell, 937 So.2d at 152 (“Carbide’s argument that the Calidria Asbestos substance it sold to Georgia-Pacific was merely ‘raw material’ is utterly betrayed by its own marketing literature. Calidria Abestos had an ‘intended design’ by [Union] Carbide. A product so designed may properly be deemed ‘defective’ within the meaning of Florida products liability law.”).

(ii) There was sufficient evidence to conclude that the design of SG-210 Calidria was “defective.”

Union Carbide argues that Aubin failed to establish that the design of SG-210 Calidria was defective because Aubin did not present any evidence demonstrating that the foreseeable risks of harm posed by SG-210 Calidria could have been reduced or avoided by the adoption of a “reasonable alternative design.” Union Carbide’s argument fails because Aubin presented sufficient evidence from which a trier of fact could have determined that the design of SG-210 Calidria was “maní-festly unreasonable,” a determination that obviates the necessity for demonstrating a “reasonable alternative design."

We note that Union Carbide is correct in pointing out that Aubin failed to present any evidence regarding a “reasonable alternative design.” As is demonstrated from the transcript of the charge conference, Aubin’s counsel did not believe such evidence was necessary because he litigated the design defect claim as if it was governed by the Second Restatement’s “consumer expectations” standard:

It’s defective by design if it does not act as a reasonable consumer would expect it to act. And that’s what the jury has to decide.
Mr. Terry is under the impression that ... I’ve got to come in here with alternative designs of how they should have done it instead, and that’s not required.

As has already been established, however, the Third Restatement rejects the consumer expectations test as an independent basis for finding a product defectively designed. Restatement (Third) of Torts: Products Liability § 2 cmt. g. (“Under Subsection (b), consumer expectations do not constitute an independent standard for judging the defectiveness of product designs.”); Agrofollajes, 48 So.3d at 996-97 (rejecting the consumer expectations test as an independent basis for finding a design defect in light of this Court’s adoption of the Third Restatement in Kohler). Nevertheless, as is demonstrated below, Aubin’s failure to offer evidence regarding a reasonable alternative design did not necessarily preclude a finding of liability for a defective design.

While the plain language of subsection 2(b) requires plaintiffs with design defect claims to prove the availability of a “reasonable alternative design,” satisfying subsection 2(b) is not the exclusive means by which plaintiffs may establish liability for a defective design under the Third Restatement. Under comment e., plaintiffs may forego the demonstration of a “reasonable alternative design” by showing that the product design at issue is “manifestly unreasonable.” Restatement (Third) of Torts: Products Liability § 2 cmt. e. A product design is “manifestly unreasonable” when “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.” Id.

In this case, the record is replete with evidence regarding the dangers posed by the design of SG-210 Calidria, as well as its social utility. The evidence established that the design of SG-210 Calidria improved the efficiency of the asbestos when added to water, but also increased the hazards associated with the development of asbestosis, a terminal disease. We conclude that this evidence was sufficient to reach the trier of fact for a determination as to whether the design of SG-210 Calid-ria was “manifestly unreasonable” within the meaning of Section 2.

(iii) There was no evidence, however, suggesting that SG-210 Calidria’s purported design defect caused Aubin’s harm.

Under Section 5, the last hurdle is proving that the design defect caused the plaintiffs harm. See Restatement (Third) of Torts: Products Liability § 5(a) (predicating liability on a showing that “the component is defective in itself, as defined in this Chapter, and the defect causes the harm.”) (emphasis added). This requirement reflects the understanding that “[pjroducts are not generieally defective merely because they are dangerous.” Restatement (Third) of Torts: Products Liability § 2 cmt. a.

In this case, Aubin failed to present any evidence suggesting that the defective design of SG-210 Calidria caused Aubin’s harm. While there is record evidence suggesting that the design of SG-210 Calidria caused it to be more dangerous with respect to the contraction of asbestosis than raw chrysotile asbestos, such evidence is irrelevant to Aubin’s design defect claim because Aubin did not contract asbestosis; he contracted meso-thelioma. And as was established above, Aubin failed to present any evidence suggesting that the purported design defect of SG-210 Calidria made it more dangerous than raw chrysotile asbestos with respect to the contraction of mesothelioma.

It is clear, therefore, that Aubin pointed to nothing other than the dangerous propensities of basic, raw chrysotile asbestos as the source of his harm. As we have already explained, such evidence is legally insufficient under the Third Restatement because “products are not generically defective merely because they are dangerous.” Id. Accordingly, a plaintiff must demonstrate that the product’s defective design, rather than its basic, raw, and naturally occurring characteristics, caused the plaintiffs harm. See Restatement (Third) of Torts: Products Liability § 5. Because Aubin introduced no evidence demonstrating that the design of SG-210 Calidria caused it to be more dangerous than it naturally is with respect to the harm suffered by Aubin, the trial court erred in denying Union Carbide’s motion for a directed verdict pertaining to Aubin’s design defect claim.

B. Aubin’s warning defect claim

Union Carbide claims the trial court erred by denying its motion for a directed verdict regarding Aubin’s warning defect claim. We affirm because there was sufficient evidence adduced at trial to create a factual issue regarding whether, based on the foreseeable risks of harm posed by SG-210 Calidria, Union Carbide discharged its duty to warn end-users by adequately and sufficiently warning the intermediary manufacturers, and reasonably relying on them to warn the end-users.

Subsection 2(c) of the Third Restatement provides that a product:

(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Restatement (Third) of Torts: Products Liability § 2. As is clear from the plain language of subsection (c), the warning defect standard focuses on the notion of “reasonableness” for judging the adequacy of warnings, a malleable notion that is intertwined with the facts and circumstances of each case. “Whether the warning actually given was reasonable in the circumstances is to be decided by the trier of fact.” Restatement (Third) of Torts: Products Liability § 2 cmt. i. Comment i of Section 2 also assists the trier of fact by providing a non-exhaustive list of factors to guide the determination as to whether a warning was adequate in any given situation:

No easy guideline exists for courts to adopt in assessing the adequacy of product warnings and instructions. In making their assessments, courts must focus on various factors, such as content and comprehensibility, intensity of expression, and the characteristics of expected user groups.

Id.

Additionally, comment i lists a number of factors for the trier of fact to consider when determining whether a manufacturer such as Union Carbide may rely on an intermediary to warn end-users, and thereby discharge its duty to warn, or conversely, is required to warn end-users directly:

There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user. Thus, when the purchaser of machinery is the owner of a workplace who provides the machinery to employees for their use, and there is reason to doubt that the employer will pass warnings on to employees, the seller is required to reach the employees directly with necessary instructions and warnings if doing so is reasonably feasible.
Whether the warning actually given was reasonable in the circumstances is to be decided by the trier of fact.

Id. (emphasis added).

Thus, under the Third Restatement, the determination as to whether a manufacturer like Union Carbide discharged its duty to warn end-users by adequately warning an intermediary is clearly a question reserved for the trier of fact. This is consistent with longstanding Florida law, which provides that “[t]he sufficiency and reasonableness of a manufacturer’s warnings are fact questions appropriate for the jury to decide unless such warnings are ‘accurate, clear, and unambiguous.’ ” Brito v. County of Palm Beach, 753 So.2d 109, 112 (Fla. 4th DCA 1998) (quoting Felix v. Hoffmann-LaRoche, Inc., 540 So.2d 102, 104 (Fla.1989)).

“Among the factors to be considered” by the trier of fact in determining whether a manufacturer has a duty to warn end-users directly are: (1) “the gravity of the risks posed by the product”; (2) “the likelihood that the intermediary will convey the information to the ultimate user”; and (3) “the feasibility and effectiveness of giving a warning directly to the user.” Restatement (Third) of Torts: Products Liability § 2 cmt. i. The use of the word “among” demonstrates that this list of factors is intended to be inclusive rather than exhaustive. At bottom, the “standard is one of reasonableness.” Id. Thus, depending on the facts and circumstances presented in each case, other pertinent factors may be considered when deciding whether a manufacturer has a duty to warn end-users.

For example, we find that the intermediary’s education, knowledge, expertise, and relationship with end-users bear heavily on the reasonableness of a manufacturer relying on that intermediary to relay warnings to the end-users. This calls into question whether the “learned intermediary” doctrine applies in asbestos-related products liability cases, and if so, how.

In Florida, the “learned intermediar/’ doctrine originated as a defense available to prescription drug manufacturers in failure to warn cases. See Buckner v. Allergan Pharm., Inc., 400 So.2d 820, 822 (Fla. 5th DCA 1981) (“A manufacturer of a dangerous commodity, such as a drug, does have a duty to warn but when the commodity is a prescription drug we hold that this duty to warn is fulfilled by an adequate warning given to those members of the medical community lawfully authorized to prescribe, dispense and administer prescription drugs.”) (footnote omitted). Florida courts are clear that prescription drug manufacturers may discharge their duty to warn end-users as a matter of law by adequately warning physicians regarding the hazards associated with prescription drugs. See Felix, 540 So.2d at 104 (determining that while drug companies have the duty to warn of a drug’s dangerous side effects, that duty to warn is directed to physicians rather than patients under the “learned intermediary” doctrine); see also Hoffmann-LaRoche Inc. v. Mason, 27 So.3d 75, 77 (Fla. 1st DCA 2009) (“[T]he duty of a drug manufacturer to warn of the dangers involved in the use of a drug is satisfied if it gives an adequate warning to the physician who prescribes the drug”).

In Florida, a variant of the learned intermediary doctrine has been extended outside of the prescription drug context, although not as a complete defense. Instead, the intermediary’s level of education, knowledge, expertise, and relationship with the end-users is informative, but not dispositive, on the issue of whether it was reasonable for the manufacturer to rely on that intermediary to relay the warning to end-users. See Brito, 753 So.2d at 109 (quoting Felix, 540 So.2d at 104) (“Even assuming that Super Shops was a learned intermediary, we disagree that, as a matter of law, the warnings provided to Super Shops by AEW were sufficient. The sufficiency and reasonableness of a manufacturer’s warnings are fact questions appropriate for the jury to decide unless such warnings are ‘accurate, clear, and unambiguous.’ ”); see also Hayes v. Spartan Chem. Co., 622 So.2d 1352 (Fla. 2d DCA 1993) (reversing summary judgment entered in favor of the defendant and remanding for the jury to determine the adequacy of the warnings even though the Second District determined that the Clearwater Police Department was not a learned intermediary). This is entirely consistent with the Third Restatement’s position on the matter, as subsection 6(d) of the Third Restatement, which deals exclusively with prescription drugs, adopts the learned intermediary defense expressly, while Section 2 retains the “reasonableness” standard.

We specifically note that under the Second Restatement, the determination as to whether a manufacturer may rely on intermediaries to relay warnings to end-users is substantially the same as under the Third Restatement. Like the Third Restatement, Florida courts applying Section 388 of the Second Restatement have held that the determination as to whether a bulk supplier may rely on an intermediary to warn end-users is a question reserved for the trier of fact. Kavanaugh, 879 So.2d at 45 (holding that “it was for the jury to determine the adequacy of UCC’s warnings to Georgia-Pacific and whether, based on the sufficiency of the warnings given, UCC still owed Kavanaugh a duty”). Also, like the Third Restatement, comment n. of Section 388 of the Second Restatement and its “bulk supplier” doctrine focus on the “reasonableness” of the manufacturer’s reliance on the intermediary to relay the warning to end-users:

Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it.
Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them....

Restatement (Second) of Torts § 388 cmt. n. (emphasis added).

Additionally, Florida courts applying the Second Restatement in determining whether a bulk supplier has discharged its duty to warn end-users have relied on a list of factors that is nearly identical to those outlined in the Third Restatement:

(1) the dangerous nature of the product;
(2) the form in which the product is used; (3) the intensity and form of the warnings given; (4) the burdens to be imposed by requiring warnings; and (5) the likelihood that the warnings will be adequately communicated to the foreseeable users of the product.

Kavanaugh, 879 So.2d at 45. In sum, the analysis regarding whether a manufacturer like Union Carbide may rely on an intermediary manufacturer to warn end-users is substantially the same under the Second Restatement and the Third Restatements.

As is detailed below, there was sufficient evidence presented at trial to create factual questions to be resolved by the jury regarding: whether Union Carbide warned the intermediary manufacturers; whether the alleged warnings to the intermediary manufacturers were adequate; the actual degree of dangerousness of SG-210 Calidria with respect to the contraction of mesothelioma; whether it was feasible or unduly burdensome for Union Carbide to warn end-users directly; and each intermediary manufacturer’s degree of education, knowledge, expertise, and relationship with the end-users. For example, although Union Carbide presented evidence that it regularly apprised the intermediary manufacturers of the dangers associated with asbestos by providing them with the latest scientific reports and studies, Aubin presented evidence that Union Carbide misled the intermediary manufacturers into thinking SG-210 Calidria was safe. And although Union Carbide claimed that it began placing warnings on its asbestos bags in 1968, a Georgia-Pacific representative called by Aubin testified that he did not recall such labels on Union Carbide’s bags of asbestos. Further, while Aubin challenged the adequacy of the OSHA warnings, he testified at trial that if he had seen Union Carbide’s OSHA warning, he “more than certainly” would have taken steps to protect himself from the hazards of asbestos. In addition, while Aubin presented expert testimony attributing his contraction of mesothelioma to his exposure to SG-210 Calidria, Union Carbide presented expert testimony that it was relatively unlikely, if not impossible, that Aubin contracted peritoneal mesothe-lioma from exposure to chrysotile asbestos. Lastly, although Aubin claimed that it would have been feasible for Union Carbide to warn end-users directly, or to contractually require intermediary manufacturers to warn end-users, Union Carbide offered the testimony of Jack Walsh, a Union Carbide sales representative, who testified that Union Carbide did not sell directly to consumers; claimed Union Carbide had no way of identifying the end-users; attested to the fact that Union Carbide was not involved in how the intermediary manufacturers designed, distributed, or packaged their products; and contended that Union Carbide was incapable of requiring intermediary manufacturers to place warnings on products containing Union Carbide’s asbestos. Because the evidence was conflicting, and supported different reasonable inferences, the duty to warn issue was a question of fact to be determined by the jury. Thus, the trial court properly denied Union Carbide’s motion for a directed verdict as to Aubin’s warning defect claim.

III. The trial court reversibly erred by delivering misleading jury instructions which, in effect, removed the duty to warn issue from the jury’s consideration.

While the standard of review for jury instructions is abuse of discretion, such “discretion, as with any issue of law is strictly limited by case law.” Zama v. State, 54 So.3d 1075, 1077 (Fla. 4th DCA 2011) (quoting Newman v. State, 976 So.2d 76, 78 (Fla. 4th DCA 2008)). Reversible error exists where the trial court delivers an instruction that “reasonably might have misled the jury.” Citizens Prop. Ins. Corp. v. Hamilton, 43 So.3d 746, 756 (Fla. 1st DCA 2010) (quoting McPhee v. Paul Revere Life Ins. Co., 883 So.2d 364, 368 (Fla. 4th DCA 2004)).

We note that at the time the charge conference was held, no standard instructions existed regarding products liability warning defects. See Fla. Std. Jury Inst. (Civ.) PL5 cmt. 2 (2010) (“Pending further development of Florida law, the committee reserved the question of whether there can be strict liability for failure to warn and, if so, what duty is imposed on the manufacturer or seller.”). The trial court therefore turned to the parties and the case law for guidance. Relying on language from McConnell, Au-bin requested, and the trial court granted, the following special instruction: “An asbestos manufacturer, such as Union Carbide Corporation, has a duty to warn end-users of an unreasonable danger in the contemplated use of its products.”

While Aubin’s requested special instruction is technically accurate, it was, standing alone, misleading because Florida law provides that this duty may be discharged by reasonable reliance on an intermediary. Recognizing that Aubin’s requested instruction was misleading, Union Carbide requested that Aubin’s special instruction be supplemented with an explanation of how the duty to warn could have been discharged by Union Carbide. The trial court rejected Union Carbide’s request, and delivered Aubin’s instruction without further explanation. This was error.

As has already been discussed, under both the Third Restatement and the Second Restatement, the determination as to whether a manufacturer like Union Carbide may rely on intermediaries to warn end-users is to be analyzed by the trier of fact, Kavanaugh, 879 So.2d at 45, and the standard to be employed is one of “reasonableness.” The Third Restatement provides several factors to guide the analysis, and these factors are substantially the same as those set forth in the Section 388 of the Second Restatement under comment n. Moreover, we have identified several additional considerations that are instructive in this analysis, including the intermediary’s level of education, knowledge, expertise, and relationship with the end-users.

The trial court, however, did not instruct the jury on any of these factors. And while the trial court did instruct the jury regarding the general negligence standard, which theoretically subsumes many of these considerations, the instruction to the jury that Union Carbide had a duty to warn end-users effectively foreclosed such considerations, and amounted to a directed verdict since Union Carbide had stipulated at trial that it had not warned end-users. Because the trial court’s instruction communicated to the jury that Union Carbide had a duty to warn end-users, but did not inform the jury that Union Carbide could have discharged its duty by adequately warning the intermediary manufacturers and reasonably relying on them to warn end-users, we conclude that the instruction given was misleading and entitles Union Carbide to a new trial.

AUBIN’S MOTION FOR REHEARING OR CERTIFICATION

I. Aubin’s Motion for Rehearing

In his motion for rehearing, Aubin argues that this Court overlooked record evidence establishing that SG-210 Calidria is more dangerous than raw chrysotile asbestos with respect to the contraction of mesothelioma. Aubin notes that Union Carbide’s proprietary manufacturing process “removed impurities” from the raw chrysotile asbestos, and, as a result, yielded a “more pure” form of chrysotile asbestos. Aubin argues that the increased purity of SG-210 Calidria caused it to be more dangerous than raw chrysotile asbestos with respect to the contraction of mesothe-lioma. We disagree with Aubin’s circular reasoning.

“Pure” means “containing no added, substitute, or foreign substance.” Webster’s Third New International Dictionary 1845 (1986). Thus, Aubin is correct in noting that, by extracting impurities — or “foreign substances” — from the raw chry-sotile asbestos, Union Carbide’s proprietary manufacturing process made the raw chrysotile asbestos more pure. Our focus, however, is not on the foreign substances removed, which, by definition, are separate and distinct from the raw chrysotile asbestos. Our focus is on the raw chrysotile asbestos itself. And, as we have explained, Aubin presented no evidence establishing, or allowing for the inference, that Union Carbide’s proprietary manufacturing process altered the raw chrysotile asbestos in any way that enhanced its carcinogenic effects.

II. Aubin’s Motion to Certify Direct Conflict

Aubin also argues that our decision to reverse his design defect claim, and our determination that the trial court’s jury instructions were misleading, directly conflict with case law from the Fourth District, which adheres to the Second Restatement. Thus, Aubin urges this Court to certify conflict. We decline his invitation.

First, with respect to Aubin’s design defect claim, we recognize that the standards governing whether a product suffers from a design defect are different under the Second Restatement and Third Restatement. Under the Second Restatement, this issue is governed by the “consumer expectations” standard, while under the Third Restatement, it is governed by the “risk-utility/risk-benefit” standard. See Agrofollajes, 48 So.Bd at 997. However, our reversal of Aubin’s design defect claim is not based on any discrepancy between these two standards. In fact, we expressly determined that Aubin presented sufficient evidence to reach the trier of fact on whether SG-210 Calidria was a “designed” product, and whether its purported design was defective. We are reversing Aubin’s design defect claim because he did not present any evidence showing that SG-210 Calidria’s purported design defect — as opposed to its basic, raw, and naturally occurring characteristics — caused his harm. This requirement is identical under the Second Restatement and the Third Restatement. See Liggett Group, Inc. v. Davis, 973 So.2d 467, 475 (Fla. 4th DCA 2007) (holding that under the Second Restatement, plaintiffs must demonstrate two things: “[f]irst, that the product is defective; and, second, that such defect caused plaintiffs injuries.”) (emphasis added).

In addition, our determination that the jury instructions in this case were misleading is based on legal principles that are materially the same under both the Second Restatement and the Third Restatement. As we have explained, in Kavanaugh, which is still good law, the Fourth District applied Section 388 of the Second Restatement in evaluating whether Union Carbide, as a bulk supplier of asbestos, had a duty to directly warn the end-users of its product’s dangers. Kavanaugh, 879 So.2d at 44. The Kavanaugh court’s analysis mirrored our own. Applying the Second Restatement, the Kavanaugh court agreed, in conformity with a long series of Florida cases, that whether Union Carbide had discharged its duty to warn end-users by adequately warning the intermediary manufacturers, and reasonably relying on them to warn the end-users, is a factual determination for the jury to decide. Id. at 45 (“In this case, it was for the jury to determine the adequacy of [Union Carbide’s] warnings to Georgia-Pacific and whether, based on the sufficiency of the warnings given, [Union Carbide] still owed Kavanaugh a duty.”). Further, the Kavanaugh court articulated several factors for the jury to consider when making this determination, and these factors are essentially the same as those set forth in the Third Restatement. See id. (holding that “[fjactors to be taken into consideration when determining whether a supplier has discharged its duty to warn the ultimate user of its product include: 1) the dangerous nature of the product; 2) the form in which the product is used; 3) the intensity and form of the warnings given; 4) the burdens to be imposed by requiring warnings; and 5) the likelihood that the warnings will be adequately communicated to the foreseeable users of the product.”); see also Restatement (Third) of Torts: Products Liability § 2 cmt. i. (stating that “[a]mong the factors to be considered” by the trier of fact in determining whether a manufacturer has a duty to warn end-users are: (1) “the gravity of the risks posed by the product”; (2) “the likelihood that the intermediary will convey the information to the ultimate user”; and (3) “the feasibility and effectiveness of giving a warning directly to the user.”). Thus, because the jury instructions did not inform the jury that Union Carbide could have discharged its duty to warn end-users by adequately warning the intermediary manufacturers, and reasonably relying on them to warn end-users, they were misleading under both the Third Restatement and the Second Restatement.

For these reasons, we decline to certify direct conflict.

Affirmed, in part; reversed, in part; remanded for a new trial; motion for rehearing or certification denied.

      . Union Carbide sold asbestos in bulk to intermediary manufacturers. The intermediary manufacturers then combined the asbestos with other ingredients to manufacture and sell finished products, such as joint compounds and texture sprays, to distributors, contractors, and consumers. Importantly, Union Carbide had no involvement in the packaging or distribution of the finished products.

      . Section 5 is located in Chapter 1 of the Third Restatement, which is titled: "Liability Of Commercial Product Sellers Based On Product Defects At Time Of Sale.”

      . As of the time this opinion was written, there were still no standard instructions on strict liability failure to warn claims.

      . See Brito, 753 So.2d at 112 (quoting Felix, 540 So.2d at 104).

      . To the extent the trial court may have relied on the Fourth District's decision in McConnell, its reliance was misplaced because the McConnell court’s reading of the Kavanaugh court's holding was flawed. For example, the McConnell court concluded that the Kava-naugh court held "that the 'learned intermediary’ exception is not applicable to Calidria Asbestos and Ready-Mix with its hidden measure of asbestos." McConnell, 937 So.2d at 156. The Kavanaugh court, however, made no such finding. The Kavanaugh court concluded that it was for the jury to weigh whether the warnings provided to the manufacturer who integrated Union Carbide’s product were adequate and whether Union Carbide discharged its duty to end-users. It also appears that the McConnell court may have transformed the affirmation of the jury's determination in Kavanaugh into a legal holding to be applied in all future cases involving Calidria asbestos. Because such a holding would effectively preclude Union Carbide from litigating against future plaintiffs as to whether its reliance on intermediaries was reasonable, it comes perilously close to application of non-mutual, offensive collateral es-toppel, which is impermissible in Florida. E.C. v. Katz, 731 So.2d 1268, 1269 (Fla. 1999) (quoting Stogniew v. McQueen, 656 So.2d 917, 919 (Fla.1995)). In any event, the McConnell court neither receded from nor overruled Ka-vanaugh. As such, Kavanaugh, which is consistent with our analysis in this case, is still good law.


author: PER CURIAM.

text:
    PEOPLE’S TRUST HOMEOWNERS INSURANCE, Appellant, v. Ovsep AVAGYAN and Sonia Avakian, Appellees.
    No. 4D11-2179.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Rehearing Denied Oct. 19, 2012.
    Michelle Diverio and Anthony J. Tinelli of Lydecker Diaz, Miami, for appellant.
    Marlene S. Reiss of the Law Offices of Marlene S. Reiss, Esq., P.A., Miami, for appellees.
   PER CURIAM.

This appeal stems from an order of summary judgment in favor of the insureds in their action for declaratory relief. A review of the record convinces us that genuine issues of material fact remain.

The insureds, Ovsep Avagyan and Sonia Avakian, filed a claim of loss for damages allegedly sustained to their home as a result of a water leak from a burst kitchen pipe. The insurer, People’s Trust Homeowners Insurance, denied their claim. The insureds filed a declaratory judgment action, seeldng a determination that they were entitled to “full coverage” for the loss and that the insurer was estopped from claiming the policy was void. The insurer raised nine affirmative defenses, including claims that the damages alleged were the result of a pre-existing condition; that the insureds did not allow the insurer an adequate opportunity to inspect the premises; and that, prior to allowing inspection by the insurer, the insureds removed large portions of drywall, which prevented the insurer from determining the scope and cause of the loss, and intentionally concealed or misrepresented material facts, rendering the policy void. The insureds filed a motion for summary judgment, asserting there were no issues of material fact and, as a matter of law, they were entitled to entry of a declaratory judgment determining “that there is insurance coverage for the subject loss” and that the policy was not void.

The “party moving for summary judgment must show conclusively the absence of any genuine issues of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479-80 (Fla. 4th DCA 2006). Moreover, “[w]hen a party raises affirmative defenses, ‘[a] summary judgment should not be granted where there are issues of fact raised by [the] affirmative defense[s] which have not been effectively factually challenged and refuted.’ ” Alejandre v. Deutsche Bank Trust Co. Americas, 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So.2d 983, 984 (Fla. 4th DCA 1987)). A determination that the insureds were entitled to “full coverage” for the loss required resolution of the cause of the damage for which coverage was sought and of the affirmative defenses raised by the insurer. The evidence at summary judgment included evidence that, prior to inspection by the insurer’s adjuster, the insureds removed the drywall, up to a height of four feet, in multiple rooms; that laminate floors and furniture in some of the same rooms where the drywall had been removed showed no signs of water damage; and that the handyman who removed the drywall found grass growing around the bottom of the wax ring on the toilet, mushrooms growing on the walls, and mold as high as forty-eight inches, all of which he opined could not have happened in the short amount of time that had passed since the burst pipe. Such evidence precluded resolution of the issues raised on motion for summary judgment.

Accordingly, the order appealed is reversed and the matter remanded for further proceedings.

Reversed and Remanded.

STEVENSON, CIKLIN, JJ., and WALSH, LISA S., Associate Judge, concur.


text:
    Abdelaziz HAMZE, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D12-0560.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Rehearing Denied Oct. 4, 2012.
    Abdelaziz Hamze, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Parker, General Counsel, Tallahassee, for Appellee (no appearance).
   PER CURIAM.

DISMISSED. See Milord v. Parole Comn., 4 So.3d 762 (Fla. 1st DCA 2009) (J. Browning concurring); Parker v. McNeil, 9 So.3d 761 (Fla. 1st DCA 2009); Powell v. Dept. of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

WOLF, CLARK, and MARSTILLER, JJ., concur.


author: PER CURIAM. ,

text:
    Gerald M. McKIRE, Appellant, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Appellee.
    No. 1D11-4205.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.
    Rehearing Denied Oct. 3, 2012.
    Gerald M. McKire, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Alexandria Walters, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM. ,

Appellant, Gerald McKire, raises three issues in his appeal from the trial court’s denial of his Petition for Writ of Mandamus. We affirm as to the first two issues without comment. Because we cannot consider appendix material, not the subject of the current appeal, we affirm the trial court’s decision as to the third issue, and find that on the record facts the trial court did not err in denying Mr. McKire’s petition to compel the Department of Corrections to provide him certain departmental documents.

We note, however, that while inmates possess a necessarily restricted access to documents and must follow enumerated procedures to obtain them, these hurdles do not mean inmate access is non-existent. See § 945.10(3), Fla. Stat. (2012); Fla. Admin. Code R. 33-601.901(l)(a)(l), (4). Upon a proper factual showing that an inmate has met the legal conditions for access, mandamus would be an appropriate remedy where an agency has a non-discretionary duty imposed by law to provide access and has failed to do so. See Solomon v. Sanitarians’ Registration Bd., 155 So.2d 353, 356 (Fla.1963).

AFFIRMED.

BENTON, C.J., CLARK, and MAKAR, JJ., concur.


text:
    SHELLY L. HALL, M.D., P.A., d/b/a Island Pediatrics, Appellant, v. Bonnie K. WHITE, M.D., and Bonnie K. White, M.D., P.A., Appellees.
    No. 1D11-4546.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 3, 2012.

      Bryan S. Gowdy and Jessie L. Harrell of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    Alan D. Henderson and Suzanne Wor-rall Green, Ponte Vedra Beach, for Appel-lees.
   PER CURIAM.

The appellant, Dr. Shelly L. Hall, P.A., d/b/a Island Pediatrics, appeals an order and final judgment that awarded a total of $92,812.00 in attorney’s fees to the appel-lees, Dr. Bonnie K. White and Dr. Bonnie K. White, P.A. The appellant argues that the trial court erroneously taxed $84,898.25 in attorney’s fees against her on the appellees’ unpaid wage claim under Chapter 448, Florida Statutes, because the appellees failed to meet their burden of proof and because the trial court erred in concluding that the issues and claims in the case were inextricably intertwined. The appellant also argues that the trial court erroneously taxed the entire amount of fees under section 57.105, Florida Statutes, $7,913.75, against her alone where it was obliged to split the fees between her and her attorney. We agree and reverse and remand.

Under section 448.08, Florida Statutes, attorney’s fees and costs may be awarded to the prevailing party in an action for unpaid wages. However, section 448.08 does not apply to independent contractors. See Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1102-03 (Fla. 5th DCA 2006). Here, the appellees brought a claim for unpaid wages, but also brought a claim concerning Dr. White’s service as an independent contractor. The appellant brought several counterclaims that were unsuccessful. After a jury trial at which the appellees were awarded $916.14 on their unpaid wage claim and $23,707.94 in damages on the remaining claim, the ap-pellees filed a motion for attorney’s fees pursuant to section 448.08 and a motion for fees under section 57.105.

After the trial court determined that the appellees were entitled to fees, it scheduled an evidentiary hearing on the amount of fees to be awarded. At the hearing, the appellees argued that the issues in the case were so inextricably intertwined that a division of labor between the claims was impossible. In support, the appellees offered an affidavit from their attorney detailing the number of hours he and his colleagues spent on the case and the blended hourly rate charged. The appellees also offered the affidavit of Alan Winter, who opined that the number of hours spent and the blended rate charged were reasonable. No detailed time records or invoices were introduced into evidence. The only testimony at the fee hearing was provided by Winter, who opined that the case involved a central core of facts and the claims could not be segregated. Winter admitted that he did not attempt to separate out the time per claim. In awarding the appellees their requested fees under Chapter 448, the trial court stated that the requisite attorney’s fees affidavits were filed to demonstrate the reasonableness of the attorney’s fees sought and that it agreed with Winter’s testimony that the issues and claims were inextricably intertwined such that a division of labor between the claims was impossible.

This Court reviews an award of attorney’s fees for abuse of discretion. See Jones & Granger v. Johnson, 788 So.2d 381, 382 (Fla. 1st DCA 2001). A trial court’s determination of whether claims are inextricably intertwined is a question of law reviewed de novo. See Van Diepen v. Brown, 55 So.3d 612, 614 (Fla. 5th DCA 2011).

As to the claim for fees under Chapter 448, we find that the fee award for $84,898.25 constituted an abuse of discretion. First, we do not agree that the issues in the case were inextricably intertwined because our review of the appel-lees’ second amended complaint leads us to believe that the claims could support independent actions and were not simply alternative theories of liability for the same wrong. See e.g., Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513, 516 (Fla. 3d DCA 2006). Furthermore, as the party seeking fees, the appellees carried the burden of allocating the fees to the Chapter 448 claim for which fees were awardable or showing that the issues were so intertwined that allocation was not feasible. See Lubkey v. Compuvac Systems, Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003). See also Crown Custom Homes, Inc. v. Sabatino, 18 So.3d 738, 740 (Fla. 2d DCA 2009) (reversing fee order and finding that the expert’s opinion that the claims were sufficiently intertwined lacked any factual foundation and did not constitute competent proof). Here, as in Grown, the trial court made no factual findings to support its legal conclusion that the claims were inextricably intertwined, and the appellees failed to offer sufficient proof in the form of detailed time records and further elaboration from Winter to support a finding of such on review. Id.

As to the fees under section 57.105, we agree that the trial court abused its discretion in taxing those fees solely against the appellant. Section 57.105(1) provides that the fees are “to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney.” Here, the appellees’ motion for fees under section 57.105 was clearly addressed toward the conduct of the appellant’s attorney, Roger Hall, and we decline to infer that the trial court intended to find that Hall acted in good faith so as to be exempt from fees under section 57.105(3).

Accordingly, we reverse the order in its entirety. On remand, the trial court should hold a new fee hearing and award fees only for the services the appellees’ attorneys performed regarding the Chapter 448 unpaid wage claim. As to the section 57.105 fees assessed solely against the appellant, we remand with instructions to reduce the amount to $3,956.88, which represents half of the previous fee award. See Neustein v. Miami Shores Village, 837 So.2d 1054,1055 (Fla. 3d DCA 2002).

REVERSED and REMANDED with instructions.

PADOVANO, ROBERTS, and ROWE, JJ., concur.


text:
    BAYVIEW CONSTRUCTION CORPORATION, Petitioner, v. JOMAR PROPERTIES, LLC., et al., Respondents.
    No. 4D11-4426.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 19, 2012.

      Ryan V. Kadyszewski and John A. Hoc-kin of Linkhost & Hockin, P.A., Jupiter, for petitioner.
    Raymond M. Masciarella II of Raymond M. Masciarella II, P.A., North Palm Beach, for respondents.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the respondents’ motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

Bayview Construction Corporation (Bay-view), the plaintiff below, filed a petition for writ of certiorari, seeking review of a nonfinal order granting the motion of the defendant Jomar Properties, L.L.C. (Jo-mar) and its surety, Accredited Surety and Casualty Company, Inc., for reduction in transfer bond. We deny the petition.

Bayview sued Jomar for breach of a construction contract and also to foreclose its construction lien against Jomar’s real property. Pursuant to section 713.24, Florida Statutes, Jomar transferred the construction lien to a bond in the amount of $1,602,455.40, which was calculated based on the face amount of the lien, which was $1,014.212.30.

The parties agreed to submit their dispute to binding arbitration. An arbitrator entered an award in Bayview’s favor on the lien, but only in the amount of $633,087.80, reserving jurisdiction as to pre-judgment and post-judgment interest, and the entitlement and amount of attorney’s fees. Thereafter, the arbitrator also awarded Bayview pre-judgment interest in the amount of $82,836.63 and found Bay-view was entitled to attorney’s fees. The trial court confirmed the arbitration award, but a dispute (not relevant here) has prevented the trial court from entering a final judgment.

Meanwhile, in September 2011, Jomar and its surety (the respondents in this proceeding) served a motion for reduction in transfer bond, which was verified by counsel. Based partly on Bayview’s discovery responses, they represented that the amount which Bayview still sought now totaled only $l,297,991.70-which was $304,463.70 less than the amount of the transfer bond. They requested the court to reduce the transfer bond accordingly.

The respondents set their motion for hearing on the trial court’s motion calendar. At the hearing, they argued that the unrebutted evidence showed the bond was too high. Bayview suggested the matter should have been set for an evidentiary hearing and argued against reduction of the transfer bond, asserting that because the case was ongoing, there had been additional attorney’s fees, costs, and interest since it last provided discovery. Bayview represented that the current total was approximately $1,524,985, which was very close to the amount of the bond. It explained that the most by which the transfer bond could be reduced was $77,470.40, but that if the bond were so reduced, then Bayview would have to seek an increase each month for the fees and interest generated that month. Bayview asked the court to consider affidavits which counsel had in hand showing the additional amounts that already had accrued, but the trial court refused to do so unless Bayview were to move for a subsequent hearing. After considering only the arbitrator’s award, attorney’s fees, and pre-judgment interest already determined, the trial court granted the respondents’ motion and reduced the bond amount to $1,297.991.70. The court stated that if additional amounts were proved, Bayview could move to increase the bond, as often as weekly. After the trial court denied Bayview’s motion for rehearing, Bayview sought certiorari relief from this court.

Respondents argue that certiora-ri relief is not available because the trial court’s order reducing the bond will not cause Bayview to suffer material injury for which there is no adequate remedy on appeal. We disagree. Before the issuance of the order, Bayview’s claims against Jomar were secured to the extent of $1,602,455.40; as a result of the order, Bayview’s claims, which continue to accrue, are secured only to the extent of an amount which is $226,993.30 less than the amount it claimed were its damages as of the hearing date. In the event Jomar is unable to pay the difference, or to increase the bond on Bayview’s later request, Bay-view may have no recourse, because a surety is liable only up to the face amount of the transfer bond. Aetna Cas. and Sur. Co. v. Buck, 594 So.2d 280, 283 (Fla.1992) (noting that “the lienor is left with an unsecured judgment against the owner for any costs which exceed the remaining face amount of the bond”); Smith Original Homes, Inc. v. Carpet King Carpets, Inc., 896 So.2d 844 (Fla. 2d DCA 2005) (reversing final judgment entered in favor of carpet company after trial court struck pleadings of home building company for failing to pay increase in the transfer bond; trial court imposed severe sanction without express statutory authority or findings of deliberate disregard or gross indifference to the court’s order). See generally Saul v. Basse, 375 So.2d 290 (Fla. 2d DCA 1979) (granting certiorari relief as to order denying motion by mortgage holders to require foreclosed condominium unit owners to deposit accrued rent into registry of court pursuant to statute which contemplated establishment of secured fund with which to satisfy any monetary judgment, without which petitioners could be required to seek other sources to satisfy any judgment). The prospect that Bayview will be left with a partially unsecured judgment is a harm which is irreparable on final appeal. Therefore, we have certiorari jurisdiction to review the order granting the respondents’ motion.

However, we agree with respondents that the trial court did not depart from the essential requirements of the law by reducing the transfer bond based on the evidence before it. The respondents gave Bayview notice of the evidence supporting their verified motion to reduce transfer bond to be heard at a motion calendar hearing. At the time of the hear-

ing, although Bayview represented that it had affidavits in opposition to the respondents’ motion, it did not file or serve its affidavits before the hearing. Because Bayview had notice that the hearing was not an evidentiary one, it should not have expected to be able to present its affidavits for the first time at the hearing. “An affidavit must be served a reasonable time before the hearing at which it is to be used.” Henry P. Trawiek, Jr., Florida Practice And Procedure § 9:6 (2011 ed.) (citing Tribune Co. v. Approved Personnel, Inc., 115 So.2d 170 (Fla. 1st DCA 1959)). Under the circumstances, we cannot say that the trial court departed from the essential requirements of law in granting respondents’ motion based on what properly was before it at the time of the hearing. Moreover, the trial court invited Bay-view to set another hearing if it wished to present its own affidavits and further advised Bayview it could file a motion to increase the bond as often as weekly.

Petition Denied.

STEVENSON, GROSS and TAYLOR, JJ., concur.

      . The petition was timely filed within thirty days after the original order granting defendants’ motion. Because a motion for rehearing is not authorized from a nonfinal order, such a motion does not defer rendition and delay the time for seeking certiorari relief. McGee v. McGee, 487 So.2d 412, 413 (Fla. 4th DCA 1986).


author: TUTER, JACK B., JR., Associate Judge.

text:
    Jerome RICH, Appellant, v. Linda X. WEXLER, as Successor General Partner of The Rich Real Estate Limited Partnership #2, and Jodi Rich, Appellees.
    No. 4D11-4157.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.

      Robert J. Hauser of Beasley Hauser Kramer & Galardi, P.A., and John J. Pan-kauski of The Pankauski Law Firm PLLC, West Palm Beach, for appellant.
    Manuel Kushner of Kaye Scholer LLP, West Palm Beach, for appellee Linda Wex-ler.
   TUTER, JACK B., JR., Associate Judge.

This appeal questions the existence of an enforceable settlement agreement. The trial court entered an order compelling compliance with the agreement. We affirm the order, but remand the case to the trial court to ensure the releases to be signed are in compliance with the settlement agreement.

The appellant (brother), and appellee (sister) are the children of the decedent. Before his death, the decedent transferred a family partnership’s ownership interest in real property to the brother and his wife. Subsequent to the father’s death, the sister sued her brother for return of the property interest to the partnership.

To resolve the lawsuit, the brother made an offer of judgment, pursuant to section 768.79, Florida Statutes (2010). The offer provided for the sister to dismiss her complaint with prejudice upon “the parties executing a mutual release limited to the issues in this case.” The brother was to convey the property back to the partnership by deed, and pay his sister a specified amount. The sister filed her acceptance of the offer of judgment, which clarified that the form of the deed would conform to an agreement the parties made by email.

Subsequently, the brother sent a proposed release to his sister. The sister signed the release, but wrote in the margin “except for [a named attorney and his PA] _” The brother refused to sign the corresponding release, which included a release of the sister’s attorney. The sister then filed a motion to enforce the settlement agreement, attaching the offer of judgment, the acceptance, and the releases. At a uniform motion calendar hearing, the sister’s attorney explained that the sister changed the language of the proposed release to preserve her right to bring suit against the named attorney, in his capacity as the father’s attorney for handling the transfer of the property.

The sister’s attorney pointed out that the offer of judgment provided for release of the parties only, and did not include the named attorney. The brother’s attorney asked the judge to reset the motion for an evidentiary hearing because the offer of judgment was ambiguous as to who would be released. The court declined, finding there was no ambiguity in the offer of judgment as to who would be released. The court entered an order granting the sister’s motion to compel. From this order, the son appeals.

Here, the sister accepted the offer as clarified by an agreement between the parties regarding the form of the deed, but the parties disagree over the terms of the mutual release. The issue is whether an enforceable settlement agreement ever came into existence. We have de novo review as the issue concerns a matter of law. See Barone v. Rogers, 930 So.2d 761, 764 (Fla. 4th DCA 2006).

Because the parties “said the same thing” with respect to the essential elements, there was an enforceable settlement agreement. See Dania Jai-Alai Palace, Inc. v. Sykes, 495 So.2d 859, 861 (Fla. 4th DCA 1986) (finding that where parties agreed to exchange mutual releases “that did not objectively prejudice either party,” plaintiffs proposed release was not a counteroffer even though it was broader than the terms of the agreement as the plaintiff was merely attempting to effectuate the agreement and the defendant was free to make changes to the proposed language). The trial court correctly enforced the agreement. The offer was unambiguous, and the sister filed an acceptance of the offer.

However, the court’s order, read together with the motion to enforce and the attachments, appears to require both parties to sign a release greater than that bargained for in the offer of judgment and acceptance. As the trial court stated at the hearing, the agreement provided for a release of the parties only, no one else. We therefore affirm, but remand the case to the trial court to ensure the releases mirror the terms of the settlement agreement. See Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002) (affirming court’s decision to enforce settlement agreement, but reversing and remanding for entry of an order that mirrors the agreement).

Affirmed and Remanded.

MAY, C.J., and DAMOORGIAN, J., concur.

      . " 'The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties having meant the same thing but on their having said the same thing.' " Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985) (citations omitted).