author: TAYLOR, J.

text:
    Marie-Eve KROENER and Kent Kroener, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION (FIGA) as successor in interest to Atlantic Preferred Insurance Company, Inc., a corporation authorized and doing business in Florida, Appellee.
    Nos. 4D09-3604, 4D09-4102.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Lee H. Schillinger of the Law Office of Lee H. Schillinger, P.A., Hollywood, for appellants.
    Helen Ann Hauser of Restani, Dittmar & Hauser, P.A., Coral Gables, for appellee.
   TAYLOR, J.

In this appeal, homeowners, Kent and Marie-Eve Kroener (Kroeners), challenge two rulings by the trial court: (1) final summary judgment entered in favor of the Florida Insurance Guarantee Association (FIGA) on their claim for hurricane damage, and (2) denial of their motion to enforce FIGA’s proposal for settlement, which the Kroeners attempted to accept after entry of the final summary judgment. We affirm both rulings of the trial court.

The Kroeners are the current owners of a house they purchased from Peter and Gizella Winder (the “prior owners”) on April 10, 2007. The prior owners had homeowners’ insurance with Atlantic Preferred Insurance Company from February 22, 2005 through February 22, 2006. During that period the subject residence sustained interior and exterior property damage from Hurricane Wilma on October 24, 2005. When the hurricane struck, however, the prior owners were not residing in the home. They had moved out shortly before the hurricane to rent it out. Although the prior owners were aware of some damage from Hurricane Wilma, they never notified Atlantic of their property damage losses or made a claim on their homeowners’ policy.

Sometime after the prior owners sold their home to the Kroeners, the Kroeners discovered a roof leak, which their contractor attributed to Hurricane Wilma. At the request of the Kroeners, on December 5, 2007, the prior owners executed an Assignment of Benefits form, which directed Atlantic to pay the Kroeners “any and all applicable authorized insurance benefits for any and all applicable coverage periods, available under the policy issued by Atlantic Preferred Insurance Company....” Subsequently, the Kroeners filed a claim against FIGA for the hurricane damages suffered when the previous owners had the property.

FIGA denied coverage, asserting that when the belated assignment was made, the prior owners, as assignors, no longer had an insurable interest since they had sold the property 7½ months before executing the assignment. The Kroeners then filed a complaint against FIGA for breach of contract and declaratory relief. In response, FIGA asserted that the insurance policy was not validly assigned because: (1) the insurer had not consented to an assignment; (2) the prior owners, as assignors, had no insurable interest at the time of their assignment because their sale of the property prior to the assignment wiped out their interest; (3) the prior owners had made no claims under the policy and thus had nothing to assign; (4) the prior owners had failed to comply with conditions precedent, which required prompt notice of loss, protection of the property, and detailed records of repairs; and (5) the Kroeners lacked standing to sue for a breach of the insurance policy to which they had never been parties.

After the parties engaged in discovery, FIGA amended its affirmative defenses and asserted that: (1) the Kroeners had already been paid for some of the damage by USAA Insurance; (2) they had suffered no loss, having purchased the property “as is” and received a discount from the prior owners for necessary repairs; (3) the prior owners were not covered because they were not residing in the house in 2005; and (4) the Kroeners were committing a fraud.

FIGA filed a motion for summary judgment, arguing that the previous owners had no claim to assign, and no insurable interest, by the time they executed an assignment to the Kroeners, and that the policy’s timely notice requirements had been violated. FIGA further contended that, as a matter of law, a two-year delay for a hurricane loss claim is a violation of the policy’s conditions precedents, without the need to prove prejudice.

On June 9, 2009, a day before the summary judgment hearing, FIGA served a proposal for settlement of $32,000.00 on the Kroeners, including all costs and attorney’s fees. However, the Kroeners did not immediately accept FIGA’s proposal. The next day, the trial court heard arguments from counsel and granted FIGA’s motion for summary judgment. The court later entered final judgment on June 18, 2009.

The Kroeners moved for rehearing on June 22, 2009, and on that same date, filed a “Notice of Acceptance of Defendant’s Proposal for Settlement,” attaching the proposal from FIGA dated June 9, 2009. The trial court denied the Kroeners’ motion for a rehearing on the summary judgment and their motion to compel enforcement of FIGA’s proposed settlement.

Summary Judgment on Insurance Claim

The applicable standard of review of an order granting summary judgment is de novo. Suncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., 981 So.2d 654, 655 (Fla. 4th DCA 2008). •However, it is well-settled that a summary judgment should be affirmed if the record reflects that no genuine issues of material fact exist, and the movant is entitled to judgment as a matter of law. Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007). Here, considering the undisputed facts, the terms of the insurance policy, and applicable case law, we find that the trial court correctly entered final summary judgment for FIGA.

At the outset, we note that the parties agree that the insurance policy itself could not be assigned, but that any authorized benefits that had arisen under the policy during the time of the prior ownership of the property could be assigned. However, to obtain benefits under the policy, the insured was required to “give prompt notice” after a loss occurred.

Although the trial court entered final summary judgment for FIGA under several theories, we agree with the trial court’s ruling that, as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim. See Highlands Ins. Co. v. Kravecas, 719 So.2d 320 (Fla. 3d DCA 1998) (holding that third-party buyer of hurricane-damaged home was not entitled to assert a loss-of-use claim pursuant to insured seller’s assignment of insurance claims, where seller did not claim any loss of use during his period of ownership). Like the new buyer in Highlands, the Kroeners did not receive any claims through the previous owners’ assignment because there were no claims timely made by the previous owners to assign.

Proposal for Settlement

We next address the Kroeners’ argument that the trial court erred in denying their motion to compel enforcement of FIGA’s proposal for settlement.

On June 9, 2009, a day before the summary judgment hearing, counsel for FIGA served a proposal for settlement in the amount of $32,000.00. On June 10, 2009, the trial court heard arguments from counsel and granted FIGA’s motion for summary judgment; it later entered final judgment on June 18, 2009. On June 22, four days after final judgment, the Kroen-ers served a “Notice of Acceptance of Defendant’s Proposal for Settlement,” which was actually filed on June 23rd. On June 22nd, after receiving the “acceptance,” FIGA’s counsel withdrew the offer in writing. The trial court rejected the Kroeners’ argument that they had timely accepted the offer prior to its withdrawal. Instead, the court ruled that the final summary judgment terminated the Kroen-ers’ ability to accept a proposal for settlement. It thus denied their motion to compel enforcement of the proposal for settlement. The court explained its reasoning:

Here the offer was made before a Motion for Summary Judgment was to be heard. It gave the Plaintiff the opportunity to fully consider resolution of the case before a hearing that could result in an adverse ruling. The Plaintiff had the further advantage that had the court denied the Defendant’s motion, it still could have exercised its option to accept the offer. The Plaintiffs argument, would now seek a “no risk” approach — no matter what result was reached at the Summary Judgment hearing — the offer remains viable for the taking. This is somewhat akin to allowing a litigant to file an acceptance after a jury verdict.
The Final Summary Judgment entered constituted an end to the judicial labor. The Motion for Rehearing filed (after the Plaintiffs “acceptance”) in this instance merely tolled the time to file an appeal. Accordingly, the Summary Judgment entered by the Court was effectively the same had a Judgment been entered in Defendant’s favor at trial.

This issue appears to be one of first impression in Florida. Although Florida courts have decided that a proposal for settlement cannot be accepted after trial begins, we could find no authority on the acceptance of settlement offers after -summary judgment. The Kroeners argue that FIGA’s offer was not terminated, as a matter of law, as a result of summary judgment. They contend they had thirty days from the time they received the proposal for settlement to either accept or reject it, pursuant to section 768.79(1), Florida Statutes; within those thirty days, on June 22, 2009, they accepted FIGA’s offer and it was binding notwithstanding entry of summary judgment.

FIGA filed its proposal for settlement pursuant to section 768.79, Florida Statutes (2009), and Florida Rule of Civil Procedure 1.442. Section 768.79(1) provides that a plaintiff has a thirty-day window to accept or reject an offer. “An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.” § 768.79(4). However, “[a]n offer may be withdrawn in writing which is served before the date a written acceptance is filed. Once withdrawn, an offer is void.” § 768.79(5). In addition, Florida Rule of Civil Procedure 1.442(b) restricts service of an offer to no “later than forty-five (45) days before the date set for trial or the first day of the docket on which the ease is set for trial, whichever is earlier.” Here, the Kroeners contend that the trial was set for August 9, 2009, and that their June 22 acceptance, in accordance with Rule 1.442(b), was well within the statutory thirty-day window. Noting that neither section 768.79 nor Rule 1.442(b) “address[es] or shortens the time for acceptance in relation to interlocutory orders which may terminate the litigation,” the Kroeners contend that FIGA’s offer was “irrevocable” at the point when summary judgment was entered.

To support their argument that an offer of judgment remains “valid and open for acceptance” for the full statutory time period “despite an intervening grant of summary judgment,” the Kroeners rely upon Perkins v. U.S. West Communications, 138 F.3d 336 (8th Cir.1998). There, the Eighth Circuit held that Federal Rule of Civil Procedure 68, titled “Offer of Judgment,” mandates that any offer made under the rule remains valid for ten days, regardless of an intervening entry of summary judgment. 138 F.3d at 338. In Perkins, the employee brought a Title VII sex discrimination action against his employer. Id. at 337. On November 19, 1996, the employer moved for summary judgment. On March 18, 1997, while the summary judgment motion was pending and before a trial date had been set, the employer made a Rule 68 offer of judgment. Id. Two days later, on March 20, the district court, without knowledge of the employer’s offer of judgment, granted summary judgment in favor of the employer and dismissed the plaintiffs complaint. Id. The next day, counsel for the plaintiff, who learned of the court’s ruling, faxed the employer’s counsel a notice of acceptance of the March 18 offer of judgment and filed the notice with the court. Id. at 337-38. The plaintiff then moved to amend the earlier judgment entered in favor of the employer to conform to the offer of judgment. Id. The district court granted the plaintiffs motion and entered judgment in his favor in the amount of $3,000, plus costs, interest, and attorney fees, pursuant to Rule 68. Id.

In upholding the district court’s entry of judgment for the plaintiff, the Eighth Circuit recognized that there were no federal cases directly on point and relied on state court cases that had addressed comparable state rules on offer of judgment: Centric-Jones Co. v. Hufnagel, 848 P.2d 942 (Colo.1993) (holding that offers of judgment are irrevocable by the offeror for the entire ten-day statutory period and that an intervening summary judgment ruling did not void an offer of judgment), and Hernandez v. United Supermarkets of Oklahoma, Inc., 882 P.2d 84 (Okla.App. Div. 2 1994) (stating that “the acceptance of [an] offer of judgment, along with its attendant mandatory judgment, displaces an intervening summary judgment, which remains interlocutory for the length of the acceptance period” and concluding that the offer of judgment was not extinguished by the trial court’s intervening entry of summary judgment). Id. at 3B9.

In Perkins, the court also looked to the plain language of Rule 68 and declined to follow the analysis of state courts deeming offers of judgment to be unenforceable after the start or conclusion of trial.

However, other courts have held that acceptance of an offer of judgment after entry of summary judgment is a nullity. They reason that to allow acceptance of an offer after entry of summary judgment would defeat the purposes for which the rule was designed — to encourage settlements and avoid protracted litigation. See Preuss v. Stevens, 150 Ariz. 6, 721 P.2d 664 (1986) (holding that a trial court’s entry of summary judgment prior to acceptance of an offer of judgment renders the offer ineffectual for any purpose); Wersch v. Radnor/Landgrant-A Phoenix P’ship, 192 Ariz. 99, 961 P.2d 1047 (1998) (upholding trial court’s rejection of plaintiffs attempt to accept a Rule 68 offer of judgment made after entry of summary judgment but within the thirty-day period within which such offers remain effective under the state rule); Day v. Krystal Co., 241 F.R.D. 474 (E.D.Tenn.2007) (disagreeing with Perkins, and holding that an employee could not accept an offer of judgment after the trial court had granted summary judgment and entered final judgment).

In Day, the court noted that “there is nothing in the plain language or history of Rule 68 to suggest a plaintiff can override a final judgment by accepting an offer of judgment.” 241 F.R.D. at 478. The court went on to state:

Since a judgment was entered disposing of the case in its entirety, the judgment was final for all purposes, including appeal. Once a final judgment has been entered and the case is closed, any attempt to settle the case is then futile. Just as allowing a Plaintiff to choose between a known jury verdict and a Rule 68 settlement offer would frustrate the purposes of a Rule 68 offer of judgment, allowing a plaintiff to choose between entry of a final judgment against her and a Rule 68 offer of judgment would also frustrate the purposes of Rule 68. This is because when the Court entered a final judgment in favor of Defendant, the Court ended the litigation, and the need for settlement was no longer present. When a plaintiff attempts to accept a Rule 68 offer of judgment under circumstances not contemplated by the rule, the mandatory nature of the rule is extinguished. This means the Court is no longer required to enter judgment in favor of Plaintiff but instead has discretion to do so. The Court finds since a final judgment had already been entered against Plaintiff, Plaintiff no longer had the power to accept Defendant’s Rule 68 offer of judgment.

Id.

The court further noted:

Summary judgment serves the same purpose as a determination after trial. It concludes the case unless there are outstanding parties or issues. Treating summary judgment the same as a judgment entered after trial reconciles all the rules and is in keeping with the goals of finality in litigation.

Id. at 479.

The court continued:

Finally, there are public policy reasons for denying Plaintiffs’ motion. The purpose of Rule 68 is to encourage settlement. As Defendant points out, if a defendant will be held to its Rule 68 offer even after a final judgment is entered in its favor, then no defendant would ever want to make a Rule 68 offer when summary judgment motions are pending. This could cause litigation to continue where it could have ended and cause the Court to unnecessarily spend time and resources resolving a motion that would not need to be resolved if the case settled. Furthermore, it would also result in an unfair advantage to Plaintiff. As the Wersch court noted, “it would be manifestly unfair to hold the defendant to its offer after it had been awarded judgment. That would give plaintiffs, who could not prevail as a matter of law against this defendant, a windfall. Moreover, it would punish the party who attempted to settle for having made the attempt, a result contrary to the pro-settlement policy of the rule.” 961 P.2d at 1050.

Id.

The above sentiment was echoed in Smith v. Southeastern Pennsylvania Transportation Authority, 258 F.R.D. 300, 302 (E.D.Pa.2009): if the offeree could accept the offer after the court entered summary judgment, he or she could unilaterally ignore the court’s final order, essentially rendering the court’s ruling meaningless.

As discussed above, the courts which permit acceptance of an offer after a court has entered summary judgment rely on the proposition that the offer is absolutely irrevocable. In Florida, however, the proposal for settlement is revocable at any time before its acceptance by the of-feror, Fla. R. Civ. P. 1.442(e). Further, we find more persuasive the reasoning of the courts that preclude a party’s ability to accept a pending offer of judgment after the grant of final summary judgment. This is more in accord with the reasoning of our courts, which do not allow a party to accept an offer of judgment after trial has commenced or a verdict has been announced because it would frustrate the purpose of Rule 1.442 to encourage settlement, obviate the necessity of protracted litigation, and “totally defeat the ends of justice and allow a mockery of the judicial system.” Braham, 514 So.2d at 73.

We therefore hold that the trial court’s grant of final summary judgment in favor of FIGA terminated FIGA’s pending offer of judgment and precluded the Kroeners’ ability to accept it.

Affirmed.

STEVENSON and GERBER, JJ., concur.

      . On May 31, 2006, Atlantic became insolvent and was placed into liquidation, at which tíme FIGA became the successor in interest to Atlantic, pursuant to Chapter 631.

      . Though not reflected in the record or in the appendix, the Kroeners state that on June 22, 2009, they sent an e-mail to defense counsel, accepting FIGA's proposal for settlement, and that upon receipt of this e-mail, defense counsel e-mailed plaintiffs’ counsel and withdrew the proposal for settlement based on the final judgment.

      . Kennard v. Forcht, 495 So.2d 924 (Fla. 4th DCA 1986) (prohibiting plaintiff from accepting offer, where plaintiff received the offer prior to trial but waited until trial was essentially complete to attempt to accept it); Braham v. Carncross, 514 So.2d 71 (Fla. 2d DCA 1987) (refusing to allow acceptance of offer after jury verdict rendered); O'Brien v. Russell, 698 So.2d 642 (Fla. 3d DCA 1997) (rejecting plaintiff's contention that because section 768.79, Florida Statutes, allows him a full thirty days to accept the defendant’s offer of judgment, he could, immediately after a defense verdict, accept the offer made twelve days before trial).

      . Federal Rule of Civil Procedure 68 provides in pertinent part:
      At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.


source: Caselaw Access Project

author: MONACO, C.J.

license: Public Domain

text:
    R.L., Mother of J.Y. and T.N., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-1294.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2011.

      Nickole E. Frederick, Orlando, for Appellant, J.G. a/k/a J.Y., Father of J.Y., A Child.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant, R.L., Mother of J.Y. and T.N., Children.
    Rosemarie Farrell, of Children’s Legal Services, Orlando, and Kelly A. Swartz, Children’s Legal Services, Rockledge, for Appellee, Department of Children and Families.
    Laura E. Lawson, Tavares, for Appellee, Guardian ad Litem Program.
   MONACO, C.J.

This is a consolidated appeal from an order terminating parental rights and a final judgment of termination with respect to R.L., the mother of two children; and J.G., the father of one child, J.Y. We affirm without further comment the order and judgment terminating the parental rights of the mother, R.L. We reverse, however, with respect to J.G.

To terminate parental rights, the State must establish: (1) the existence of one of the statutory grounds set forth in Chapter 39; (2) that termination is in the best interest of the child; and- (3) that termination is the least restrictive means of protecting the child from harm. See T.C. v. Dep’t of Children & Families, 961 So.2d 1060, 1061 (Fla. 4th DCA 2007). The evidence must be clear and convincing. See In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 719, 133 L.Ed.2d 672 (1996). Clear and convincing evidence is defined as an “intermediate level of proof’ entailing both a qualitative and quantitative standard. It requires the evidence to be credible and the memories of the witnesses to be clear and without confusion. In addition, the total sum of the evidence must be of sufficient weight to convince the trier of fact “without hesitancy.” See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). See also M.H. v. Dep’t of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004).

It appears from the record that the Department of Children and Families (“DCF”) had little knowledge of J.G., or of the facts that he was paying support and having contact with, J.Y., his child. From the time of the initial shelter proceeding DCF found as a general proposition that J.G. had abandoned J.Y., but it did so without sufficient information to back up that conclusion. The fact that J.G. was involved in overseas work or was suffering personal medical problems would not alone be a sufficient basis to support a finding of abandonment, especially in light of the fact that money for the support of J.Y. was frequently supplied by J.G., and that J.G. often visited the child. That is to say, reunification was never a goal for DCF as it related to J.G. It is quite doubtful, based on all the testimony, that DCF made a good faith effort to reunite J.Y. with his natural father. No case plan was ever offered to J.G. Indeed, it may not have been necessary for DCF to “reestablish” a parent-child bond since the evidence is that J.Y. seemed to react positively when his natural father visited during visitation periods.

C.A.T. v. Dep’t of Children & Families, 10 So.3d 682 (Fla. 5th DCA 2009), is instructive. In C.A.T., DCF initially filed a petition for termination of parental rights against both the father and the child’s mother. The petition was filed on an expedited basis pursuant to section 39.806(3), Florida Statutes. This court noted that the father was not offered a case plan for reunification prior to initiation of the termination proceeding. He was apparently never offered a case plan with services as an alternative to losing his parental rights in the proceedings below. We explained that while DCF could expedite a termination petition without offering the parent a case plan for reunification, DCF has to show when doing so that the parent will not benefit from court ordered services in order to establish that termination is the least restrictive means. See In re D.L.H., 990 So.2d 1267, 1273 (Fla. 2d DCA 2008). See also M.S. v. Dep’t of Children & Families, 920 So.2d 847, 851 (Fla. 4th DCA 2006) (finding that least restrictive means of protecting child would be to offer the mother a case plan); C.B. v. Dep’t of Children & Families, 874 So.2d 1246, 1252 (Fla. 4th DCA 2004) (order of the trial court reversed so that a case plan, with a goal of reunification could be established).

Just as in C.A.T., the evidence below fails to demonstrate that the father was not amenable to remedy any deficiencies through appropriate services or that supervised visitation would be harmful to J.Y. during the time the father worked to meet the case plan priorities. Similarly, in the instant case even though the father and child only lived together for awhile (1999-2003), there seemed to be relatively constant visitation afterwards, and it is virtually uncontradicted that a recognizable parental bond exists between them. In short, it appears that the finding that termination of the father’s parental rights was the least restrictive means of protecting J.Y. from harm is not supported by substantial competent evidence in the record.

In addition, the lower court’s findings regarding the manifest best interest of J.Y. based on section 39.806(l)(b), Florida Statutes (2010), are likewise not supported by substantial competent evidence. We note parenthetically that while the court’s findings might well have been true with respect to K.N., the father of T.N., they simply did not apply to J.G. We conclude in this regard, therefore, that the best interest determination was clearly erroneous as it was applied to J.Y.

Accordingly, we affirm the order and judgment terminating the parental rights of the mother, R.L., and reverse the order and judgment with respect to J.G., and remand for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

LAWSON and JACOBUS, JJ., concur.

      . K.N. was the father of the second child, T.N. The appeal with respect to K.N. was earlier dismissed by this court.

      . DCF concedes in its answer brief that they never claimed in their petition for termination that R.L., the mother, abandoned her two children. Rather it asserted only that grounds existed under section 39.806(l)(c), Florida Statutes for parental termination. We agree that the final judgment should be corrected to reflect this on remand.


author: PER CURIAM.

text:
    Jeffrey W. MUMANI, Petitioner v. STATE of Florida, Respondent.
    No. 5D11-560.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2011.
    Jeffrey W. Mumani, Santa Rosa, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Jeffrey Mumani petitions this Court for a writ of prohibition, alleging a violation of his right to a speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(b)(4). We agree that the facts of this case mandate discharging Mumani of the criminal charge in Volusia County Circuit Court Case No. 2009-32213 CFAES.

Mumani was charged in the underlying criminal case with dealing in stolen property. While serving a six-year term of imprisonment stemming out of an unrelated case in Marion County, Mumani filed his demand for speedy trial on July 15, 2010, in the instant matter. Thereafter, on January 11, 2011, he filed his Notice of Expiration of Speedy trial. The court subsequently entered an order, determining that Mumani was not entitled to invoke speedy trial because he had not yet been arrested for the offense. The trial court misapplied this Court’s case, State v. Hurley, 760 So.2d 1127 (Fla. 4th DCA 2000), to support its determination.

At issue in Hurley was rule 3.191(a) (Speedy Trial without Demand), which provides that the time periods under the speedy trial rule commence upon the person being “arrested” if the crime charged is a felony. That rule is inapplicable here because Mumani filed a “Demand for Speedy Trial” pursuant to rule 3.191(b) (Speedy Trial upon Demand). Under subsection (b), the action that starts the time limit to bring the matter to trial is the filing of a written demand, rather than the arrest. See Thomas v. State, 46 So.3d 116, 117 (Fla. 1st DCA 2010); Brown v. State, 798 So.2d 773, 774 (Fla. 2d DCA 2001).

Accordingly, we grant the petition and direct that the circuit court enter an order discharging Mumani from the pending charge[s] in Volusia County case number 2009-32213 CFAES.

PETITION GRANTED.

ORFINGER, COHEN and JACOBUS, JJ. concur.


text:
    UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Gerrtrude ABBOTT, et al., Appellees.
    No. 3D11-374.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Loughren & Doyle and Richard B. Doyle, Jr., and Katherine Hercher, Fort Lauderdale, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez <& Gomez and Paul B. Feltman, for appellees.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

PER CURIAM.

Upon Appellees’ proper confession of error, the trial court’s orders compelling appraisal before conducting an evidentiary hearing and denying reconsideration are reversed. See Citizens Prop. Ins. Corp. v. Maytin, 51 So.3d 591, 591 (Fla. 3d DCA 2010); Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, Inc., 48 So.3d 188, 191 (Fla. 3d DCA 2010). This case is remanded for further proceedings.


text:
    Edwin WAGNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2989.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm without prejudice to Edwin Wagner’s right, if any, to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

NORTHCUTT, DAVIS, and SILBERMAN, JJ., Concur.


text:
    Jerome VARDAMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2603.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

Jerome Vardaman appeals the revocation of his probation and imposition of sentence. His probation violation charges were based on a new arrest for drug offenses. Because we find no error in the trial court’s denial of appellant’s motion to suppress evidence, we affirm the order revoking appellant’s probation. However, we reverse the thirty-year prison sentences imposed in this case because the totality of circumstances presented an un-rebutted presumption of judicial vindictiveness. See Wilson v. State, 845 So.2d 142 (Fla.2003).

Appellant originally pled to carjacking with a firearm (Count I), robbery with a firearm (Count II), and resisting arrest without violence (Count IV). On July 31, 2002, he was sentenced as a youthful offender to four years in prison, followed by two years of community control on Count I, a concurrent six-year term of probation on Count II, and time served on Count IV. He violated community control and was reinstated to probation on December 18, 2006. On January 16, 2008, appellant was arrested for possession of cocaine with intent to sell and possession of cannabis.

Following appellant’s arrest on the new drug charges, an affidavit and amended affidavit alleging violation of probation were filed. Appellant filed a motion to suppress, which the court denied after a hearing. The trial court held two status hearings on May 6 and 7, 2008, during which the court extended appellant a plea offer of concurrent eight-year prison terms on Counts I and II, with credit for four years. Appellant rejected the offer, although it would have resulted in his serving only an additional four years in prison. On May 8, after a final hearing, the trial court revoked appellant’s probation and sentenced him to concurrent thirty-year prison terms on Counts I and II.

Appellant unsuccessfully sought to vacate the thirty-year prison sentences in a Rule 3.800(b)(2) motion. There, as in this appeal, he argued that the trial court’s involvement in the plea-bargaining process, followed shortly thereafter by an un-rebutted presumptively vindictive sentence, violated due process and constituted reversible error. Appellant asserted that the court gave no reasons for the vast disparity between its plea offer of eight years, with credit for four years, and the actual thirty-year sentences it imposed.

Whether a defendant’s sentence is vindictive is a question of law subject to de novo review. Parker v. State, 977 So.2d 671, 672 (Fla. 4th DCA 2008) (citing Trot ter v. State, 825 So.2d 362, 365 (Fla.2002)). “When there is judicial participation in plea negotiations, followed by a harsher sentence, the supreme court has adopted a totality of the circumstances approach in determining whether a presumption of vindictiveness arises.” Mounds v. State, 849 So.2d 1170, 1171 (Fla. 4th DCA 2003) (citing Wilson, 845 So.2d at 155). It is the defendant’s burden to demonstrate vindictiveness. Id. If the defendant meets this burden, a rebuttable presumption of vindictiveness arises, which the state must then rebut.

The Florida Supreme Court explained that “[jjudicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a ‘reasonable likelihood’ that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial.” Wilson, 845 So.2d at 156. Other factors that should be considered are:

(1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner11;
(2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial;
(3) the disparity between the plea offer and the ultimate sentence imposed; and
(4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. (footnotes omitted).

Regarding factors (1) and (2), “if the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his or her comments appears to have departed from the role of a neutral arbiter, then these actions alone may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption.” Id. Generally, the trial judge should not advocate for a plea offer, which may result in the judge losing the status of a neutral arbiter. Id. at 156-57. Additionally, “[t]he trial judge must make clear that the sentence is based on what the judge presently has before him or her, and must caution that there is no guarantee that this same sentence will be imposed if the defendant elects to go to trial. Further, if the defendant elects not to accept the offer and the judge later imposes a harsher sentence, the trial judge should consider placing the reasons for the greater sentence on the record.” Id. at 157.

In circumstances very similar to those in this case, the Florida Supreme Court found an unrebutted presumption of judicial vindictiveness in Wilson. Id. at 158. There, the state alleged that Wilson violated his community control. Id. at 146. At the final hearing, Wilson indicated he wanted to enter an open plea and admit to the violation. Id. The court offered Wilson 128 months if he pled guilty, but when Wilson indicated he wanted his fiancée to testify before the court imposed sentence, the court withdrew the offer and said before the hearing, “ ‘And my advice to you was the court’s offer was the bottom of the guidelines and in my opinion you should have taken it.’ ” Id. at 146-47, 158. The trial court then imposed a mid-range guideline sentence of 150 months. Id. at 147.

In Wilson, the court explained that this comment suggested the judge may have departed from his role as a neutral arbiter, and implied the judge had already decided that Wilson would not receive the bottom-guidelines sentence, regardless of what the hearing revealed, resulting in a penalty for exercising his right to a hearing. Id. at 158. The court entered the 150-month sentence with no explanation, and the record did not contain any facts to support it. Id. The supreme court stated: “In Wilson’s case, it is not simply the increased sentence that gives rise to an unrebutted presumption of vindictiveness. Rather, it is the judge’s comment that Wilson should have accepted the offer, coupled with the increased sentence imposed shortly thereafter, and the absence of any explanation for the increase that give rise to the unre-butted presumption of vindictiveness.” Id.

Applying Wilson’s totality of the circumstances approach in Mounds, we held there that the defendant was unable to demonstrate that a rebuttable presumption of vindictiveness arose. We noted that it did not appear from the record that the judge initiated the plea dialogue, and that even if the judge did initiate the plea discussion, the court did not urge the defendant to take the plea. We further found that the disparity between the offer and the actual sentence, though significant, was not extreme — 105.25 months versus 60 months. 849 So.2d at 1172.

In contrast to Mounds, here appellant has shown that the totality of the circumstances gave rise to a rebuttable presumption of judicial vindictiveness. Regarding the first factor, the trial judge in this case initiated the plea discussions with appellant at the May 6 hearing.

COURT: The Court will offer him the bottom .... [I]f I find that’s a willful, substantial violation of probation at the final hearing, the least you would receive is 99 months Florida State Prison. You understand that?

The second factor was also met. The trial judge, through her comments on the record, appears to have departed from her role as an impartial arbiter by urging appellant to accept the plea offer or by implying that the sentence imposed would hinge on his decision to exercise the right to a final hearing. The court stated:

COURT: Here’[s] my position on that; if he doesn’t want to waive his right to appeal, that’s fine but he’s looking at about what? Forty-five years in prison or something?
STATE: No, he’s looking at about 80 years.
COURT: Eighty years in prison and I think that I’m being more than generous with — the State’s not offering. This is my offer to resolve those cases but if he wants to go ahead and go to final and go to trial in this case.
COURT: ... The State, I think, wants you to go to prison for a lot more than four years so it’s up to you with these options. If you want to appeal the motion to suppress, that’s your right, you know, I have no issue with that but the Court offer is gain time; waiving that and pleading to the other case. So we’ll put it on for tomorrow for status. You can talk to your family; talk to your lawyer some more. If not, we’ll go forward with the final on Thursday.
COURT: I’m offering him 98.85 on the violation and four years on the other case. And he’s got five more minutes to think about it. It’s going to VOP tomorrow and he’s looking at 30 years on one count; 30 years on another count. The YO [youthful offender] count is out the ivindow already and 15 years on the other case. And the State’s not happy with me as it is and it’s not going to get any better than that.
COURT: ... I gave you time to think about it. It’s your decision. I understand that but by tomorrow afternoon at 3:00, I’m going to be here. There’s going to be witnesses here and there’s no deal on the table. The Court did everything that the Court could do to try to give you a break on this case. I don’t know ivhat the facts are going to come out, you know, and I heard the motion to suppress. A carjacking is a horrible crime to commit. You got a break then and it ivas your option but you want to roll the dice and go with the final VOP. That’s your option and I will see you tomorrow at 3:00.

Similar to the trial judge’s comments in Wilson, the judge’s statement in this case that appellant had previously been given a break, and that his decision to have a final hearing on the probation violation charges would amount to “rolling the dice,” implied that he would no longer be treated with leniency and would most likely receive a harsher sentence.

As to the third factor — the disparity between the plea offer and the ultimate sentence imposed — there was a vast disparity between the two sentences. The court initially offered ninety-nine months incarceration, or roughly eight years, with credit for four years, which would have resulted in appellant’s serving only an additional four years. However, the court ultimately imposed concurrent sentences of thirty years, which amounted to twenty-two more years than the original offer.

Finally, the fourth factor' is present: “the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.” Here, the record reflects nothing of significance that transpired between the time the trial court extended the plea offer and the next day when it sentenced the defendant to justify imposing the increased sentences. In sum, the state has failed to rebut the presumption of vindictiveness that arose from the totality of circumstances discussed above.

Accordingly, we reverse the sentences imposed and remand for resentencing by a different judge. See Wilson, 845 So.2d at 159 (concluding that in cases where an unrebutted presumption of judicial vindictiveness arises, the appropriate remedy is resentencing before a different judge).

Reversed and Remanded for resentenc-ing.

STEVENSON and GERBER, JJ., concur.

      . The plea offer extended by the trial court was a bottom-range guidelines sentence of ninety-nine months in prison, which amounted to about eight years and three months.

      . In State v. Warner, 762 So.2d 507, 513 (Fla.2000), the Florida Supreme Court clarified that judicial participation in the plea bargaining process is permissible but placed certain restrictions on judicial participation " 'to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.’"


author: POLEN, J.

text:
    Lionita COLEMAN, Appellant, v. GRANDMA’S PLACE, INC., a Florida non-profit corporation, f/k/a Kidsanctuary, Inc., Appellee.
    No. 4D10-1302.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Catherine A. Riggins, Miami Gardens, for appellant.
    Craig S. Hudson and Jeannie A. Liebe-gott of Marshall, Dennehey, Warner, Coleman & Goggin, Fort Lauderdale, for ap-pellee.
   POLEN, J.

Appellant, Lionita Coleman, appeals the final order of the trial court granting summary judgment in favor of appellee, Grandma’s Place, Inc. We find that the trial court erred in its granting of Grandma’s Place’s motion for summary judgment, as factual disputes exist in this case. Rather than granting summary judgment, the trial court should have allowed a jury to decide on these facts. Accordingly, we reverse the trial court’s order and remand this case for jury determination of the facts.

In October of 2005, Coleman was approached by Barbara McMillin of KidSanc-tuary (now referred to as “Grandma’s Place, Inc.”) and was told that the facility was looking for a program director. The program director was responsible for activities of the children, as well as the scheduling of all doctor appointments for the children while they were residents of Grandma’s Place. Coleman interviewed with two supervisors from the facility, Barbara McMillin and Suzanne Maurno, and was offered the position on the spot.

In April of 2006, Coleman began expressing concerns to her superiors within Grandma’s Place about possible Health Insurance Portability and Accountability Act (“HIPAA”) violations by the facility. Coleman’s main concern with the operation of Grandma’s Place was that the facility’s volunteers knew as much about the children as the employees. Maurno admittedly recognized that this was the scenario at the facility, thus a violation of HIPAA. In response to Coleman bringing this issue to the attention of McMillin and Maurno, a meeting was held so all of the facility’s employees could be trained on HIPAA requirements. Maurno did not attend this meeting. Coleman later stated that she believed one of the reasons she was terminated from her position at Grandma’s Place was because of these concerns she raised internally.

In June of 2006, as a Department of Children and Families imposed task, Coleman transported one of the children from Grandma’s Place to Pediatric Associates for medical attention. The doctor gave Coleman oral orders that if the child, B.W., suffered from vomiting, diarrhea, or an increased temperature that he should be taken to the emergency room. The next afternoon, Coleman called Grandma’s Place from her home to check on B.W.’s status and was informed that earlier he had diarrhea and an increased temperature, but he was now “okay.” Regardless of B.W.’s current status, Coleman went to Grandma’s Place to take B.W. to the emergency room, pursuant to the doctor’s orders.

After B.W. was admitted to the hospital, Coleman returned to Grandma’s Place where she spent the night in one of the occupied children’s rooms. She had slept in children’s rooms before and was never reprimanded for it in the past, even after discussing it with McMillin. In fact, months before the B.W. incident, there were sleeping chairs in the children’s rooms for employees, but they were removed when McMillin and Maurno visited other facilities and realized no one else offered that option to employees. Coleman was under the impression that the removal of the chairs was simply to keep overnight employees from resting while they were supposed to be working. Retrospectively, Coleman did admit an understanding that sleeping in a child’s room could raise an issue, but she was unable to go home late at night and return to the facility early in the morning, so it seemed like the most logical solution at the time.

Shortly thereafter, Coleman complained to Maurno again, this time about Grandma’s Place’s failure to tend to B.W.’s medical needs. During her discussion with Maurno, Coleman told her that if anything happened to B.W., the State would close the facility down. Maurno stated that neither she nor McMillin thought the child’s condition was serious enough for emergency medical attention, despite undisputed evidence that doctor’s orders required B.W. to be taken to the emergency room upon the occurrence of certain conditions.

Coleman’s eventual termination allegedly stemmed from two vehicular accidents in which she was involved. Grandma’s Place’s van was typically used by Coleman and other employees to transport the children to their appointments. Early in her employment with Grandma’s Place, Coleman would use her own vehicle because of a 2003 accident that raised her personal insurance and would have affected Grandma’s Place’s as well. On July 11, 2006 and July 17, 2006, Coleman was in two minor accidents in the company van. In both of these accidents, no children were harmed and no police reports were written. Coleman offered to pay for the scrapes on the van, which was the extent of the damage.

In addition to the accidents, there was also a reported incident where a file was missing from the facility and Maurno believed Coleman, in violation of policy, removed the file and returned it once she was questioned about it. Though there was no proof that Coleman was the person who returned it, Maurno stated that employees saw her walk out with a file and a report was generated for Coleman’s personnel file based on the employee accusations. However, the names of the employees who reported the matter and the specific details therein are now unknown because Coleman’s personnel file is missing items.

Coleman’s employment with Grandma’s Place was terminated on July 18, 2006. In July, Coleman filed a lawsuit alleging unlawful retaliation and wrongful termination of employment. Coleman believed that if the two minor accidents had not occurred, McMillin and Maurno would have looked for some other reason to terminate her employment because they were angry with her about her internal complaints, regarding HIPAA violations and B.W.’s healthcare, and were looking to retaliate.

Grandma’s Place filed a motion for summary judgment on January 27, 2010. Grandma’s Place attached to the motion: an affidavit of Jackeline Alvarez, house mother of Grandma’s Place; the termination letter from Maurno to Coleman, dated July 18, 2006; and Coleman’s answers to Grandma’s Place’s interrogatories. Coleman failed to respond to the motion for summary judgment and did not attend the hearing on the motion. The trial court entered a final order granting summary judgment in favor of Grandma’s Place. Coleman filed a motion for rehearing, which was opposed by Grandma’s Place and then denied by the trial court. This appeal followed.

“ ‘The standard of review of an order granting summary judgment is de novo.’ ” Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). The movant carries the burden of showing that no genuine issue of material fact exists, making summary judgment appropriate. Patten, 965 So.2d at 1224. “ ‘If the evidence raises any issue.of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.’ ” Id. (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)).

Coleman alleged Grandma’s Place’s motion for summary judgment was insufficient and should have given rise to a denial of the motion. We disagree as to the insufficiency of the motion for summary judgment. Coleman set forth several mer-itless arguments for this court to consider during its review of the trial court’s order and presented only one infirmity, which was not fatal to the motion.

Under rule 1.510(e), Florida Rules of Civil Procedure, affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show “the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e). All documents referenced in the affidavit must be sworn or certified and attached to the affidavit. Fla. R. Civ. P. 1.510(e). It is within the court’s discretion to allow supplemental evidence for the affidavits. Fla. R. Civ. P. 1.510(e).

Coleman argued that the affidavit of Jackeline Alvarez is legally insufficient and violates the requirements of rule 1.510(e). Alvarez did not have personal knowledge of all the matters in her affidavit, made evident by a statement that Alvarez has personal knowledge of the matters, and/or reviewed Lionita Coleman’s personnel file. Alvarez made it unclear as to what she had personal knowledge of and she failed to attach Coleman’s personnel file to the affidavit.

Zoda v. Hedden out of the Second District Court of Appeal stands for the proposition that an affiant who uses public record to develop personal knowledge must attach certified copies of those public records to the affidavit, unless he is a custodian of the records and can authenticate the documents. 596 So.2d 1225, 1226 (Fla. 2d DCA 1992). In accordance with Zoda, Coleman believed that the order granting summary judgment should be reversed because the motion relied on insufficient support.

The position of Grandma’s Place was that Alvarez was obviously competent to testify as an authorized employee of the facility. Topping v. Hotel George V out of the Second District Court of Appeal supports Grandma Place’s argument by stating that employees have personal knowledge of the records and files at a business and, as such, are competent to testify as to matters related to the files. 268 So.2d 388, 389 (Fla. 2d DCA 1972). Further, Grandma’s Place responded to Coleman’s reliance upon Zoda and provided that Alvarez’s affidavit was distinguishable because Alvarez supplied information about which Coleman had already testified. Grandma’s Place argued that, regardless of the possible insufficiency of Alvarez’s affidavit, it did not rely on the affidavit to establish facts and, instead, only cited the affidavit to supplement Coleman’s personal testimony about her termination date and second car accident.

We agree that the general information in Alvarez’s affidavit was discussed in the depositions of Coleman and Maurno. However, the details pertaining to the information Alvarez supplied were not all consistent with Coleman’s deposition testimony. Accordingly, to comply with rule 1.510(e), the personnel files and other documents upon which Alvarez relied should have been sworn and attached to the affidavit because the information conflicted with that which was already on file with the court.

As such, the affidavit was insufficient and should not have been relied upon by the trial court in reaching its decision to grant summary judgment in favor of Grandma’s Place. This particular insufficiency, however, does not render the entire motion for summary judgment insufficient because other factors were considered by the court in reaching its decision. Cf. Williams v. Henderson, 779 So.2d 450, 451 (Fla. 2d DCA 2000) (providing that the trial court’s sole reliance on an insufficient affidavit in granting summary judgment would be improper).

Despite the sufficiency of the motion for summary judgment, we agree with Coleman that factual disputes exist in this case, making summary judgment improper. Taylor v. Mem’l Health Sys., Inc., 770 So.2d 752, 754 (Fla. 5th DCA 2000) (stating that a court may vacate summary judgment upon the existence of factual disputes).

Alvarez’s affidavit mentions several instances of misconduct by Coleman, aside from .the aforementioned car accidents, which allegedly contributed to her termination. As discussed above, when asked during her deposition about these allegations, Maurno was unable to offer specific examples of misconduct because she claimed papers were missing from Coleman’s personnel file which would have refreshed her memory about these occurrences. These other alleged acts of misconduct by Coleman included: sleeping in children’s rooms; removing children’s files from the premises; and faxing unauthorized, confidential information about the children to Walgreens. Coleman adamantly objected to each of these allegations, stating that: she was never reprimanded for spending the night in a child’s room and that others did the same thing; that no one ever saw her take nor return the files so the accusations were fruitless; and she faxed information that was authorized and advised by the auditor to a medical provider.

Assuming these facts are true, it is clear that there were reasons, outside of possible retaliation, for Coleman’s employment with Grandma’s Place to be terminated. On the other hand, if those accusations are false, it is possible Grandma’s Place would not be able to satisfy its burden of showing its termination of Coleman was legitimate and non-retaliatory. The occurrences of those events listed in Alvarez’s affidavit remain in dispute and each party’s ability to successfully prove its case is materially affected as a result.

Though, while Grandma’s Place filed a sufficient motion for summary judgment, disputed material facts which both parties are using to satisfy their burdens existed. It is clear to this court that the trial court facially denied Coleman’s motion for rehearing while there were material issues of fact present, giving rise to a denial of a motion for summary judgment. Therefore, we find that the trial court’s decision to grant summary judgment should be reversed and the case remanded for jury determination of the facts in dispute.

Reversed.

WARNER and CONNER, JJ., concur.


text:
    Jerry M. SANNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2179.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion fob Rehearing

PER CURIAM.

We grant appellant’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

Appellant challenges his conviction for fleeing and eluding a law enforcement officer under section 316.1935(3)(a), Florida Statutes (2006), claiming that the state failed to prove an essential element of the crime, namely that a patrol vehicle in the chase had “agency insignia and other jurisdictional markings prominently displayed on the vehicle.... ” We agree that the state failed to put on proof of this statutory element, requiring reversal. See Ers kine v. State, 23 So.3d 1207, 1208-09 (Fla. 3d DCA 2009); Jackson v. State, 818 So.2d 539, 542 (Fla. 2d DCA 2002); Gorsuch v. State, 797 So.2d 649, 650-51 (Fla. 3d DCA 2001). We therefore reverse with directions to reduce the conviction to a third degree felony under 316.1935(1).

We affirm as to appellant’s challenge to his habitual offender qualification offenses, finding that the state sufficiently proved them and that appellant’s attorney conceded that appellant qualified for habitual offender status.

Affirmed in part; reversed in part and remanded for resentencing in accordance with this opinion.

WARNER, LEVINE and CONNER, JJ., concur.


text:
    Elizabeth NIESEN a/k/a Elizabeth Urbec, Appellant, v. GMAC MORTGAGE, LLC, Appellee.
    No. 4D10-4572.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Joann M. Hennessey of Law Offices of Joann M. Hennessey, P.L., Miami, for appellant.
    Jeffrey M. Gano of Florida Default Law Group, P.L., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1205 (Fla. 4th DCA 2010).

HAZOURI, GERBER and CONNER, JJ., concur.


text:
    HCA HEALTH SERVICES OF FLORIDA, INC. d/b/a St. Lucie Medical Center, Petitioner, v. CYBERKNIFE CENTER OF the TREASURE COAST, LLC, Respondent.
    No. 4D11-484.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Thomas E. Warner, Dean A. Morande and Elisabeth Amanda Romfh of Carlton Fields, P.A., West Palm Beach, for petitioner.
    David Steinfeld and Richard H. Leven-stein of Kramer, Sopko & Levenstein, P.A., Stuart, for respondent.
   PER CURIAM.

Petitioner HCA Health Services of Florida, Inc. (HCA) seeks certiorari relief from a Martin County Circuit Court order which granted a motion by respondent Cy-berknife Center of the Treasure Coast, LLC (Cyberknife) to amend its second amended complaint to add a claim of punitive damages in a count alleging fraudulent inducement to contract. We conclude that this order departs from the essential requirements of law resulting in material harm of an irreparable nature in that it subjects petitioner to financial worth discovery when a contract on which it was based expressly provided for waiver of punitive damages and where Cyberknife has not shown any other basis for entitlement to make such a claim. Chemplex Fla. v. Norelli, 790 So.2d 547 (Fla. 4th DCA 2001) (entertaining certiorari review of order granting leave to amend to add punitive damages claim where there was no legal basis demonstrated for it).

Cyberknife sought damages for the fraudulent inducement, thereby affirming the contract including its provision for waiver of punitive damages. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 313 (Fla.2000); see also Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755 (Fla. 2d DCA 2005).

Even if it should later elect the equitable remedy of rescission in the alternative on its count for fraudulent inducement to contract, Cyberknife still would not be entitled to claim punitive damages. Hoppe v. Hoppe, 370 So.2d 374 (Fla. 4th DCA 1978), cert. denied, 379 So.2d 206 (Fla.1979).

Therefore, we quash the circuit court’s order and remand for further proceedings.

MAY, CIKLIN and LEVINE, JJ., concur.


text:
    Steven GLANZ, Petitioner, v. Catherine Irene GLANZ, Respondent.
    No. 4D11-499.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for petitioner.
    Mark A. Levy and Kenneth A. Gordon of Brinkley Morgan, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner and respondent were involved in a bitter divorce. After the petitioner failed to pay sums due by the final judgment, the respondent moved for an order to permit her to file a notice of lis pendens against the former husband’s office condominium, which was owned by a separate corporation, Glanz Real Estate Holdings, LLC, which was not a party to the proceedings. The court granted the motion, and the notice of lis pendens was filed. Petitioner seeks a writ of certiorari to review that order and filing of the notice. Based upon the controlling authority of Marbin v. Cohen, 789 So.2d 1193 (Fla. 4th DCA 2001), we grant the petition. Without the titleholder of the subject property being made a party to the proceedings, the lis pendens is “entirely without legal basis.” We quash the order. The lis pen-dens is discharged.

WARNER, DAMOORGIAN and LEVINE, JJ., concur.


author: WARNER, J.

text:
    NORTH RIDGE ELECTRIC, INC. and Associated Builders and Contractors Florida East Coast Chapter, Inc., Appellants, v. CITY OF SUNRISE, Appellee.
    No. 4D10-2059.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Rehearing Denied June 29, 2011.
    Douglas J. Roberts of Stearns & Roberts, P.A., and Larry R. Leiby of Malka & Kravitz, P.A., Fort Lauderdale, for appellants.
    Michael T. Burke and Tamara M. Scrud-ders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee.
   On Motion for Rehearing

WARNER, J.

We deny the motion for rehearing, but withdraw our previously issued opinion, and substitute the following in its place.

The plaintiffs appeal the denial of their motion for class certification in their declaratory judgment action against the City. We affirm, concluding that the trial court did not abuse its discretion in determining class action status was not necessary to the relief sought.

In this action, the plaintiffs asked the court to declare that the City’s practice of collecting excessive building permit and inspection fees, the excess of which was not returned to the contractors but placed in the City’s general fund, was contrary to the provisions of section 553.80, Florida Statutes (2009), which require any excess funds to be refunded or used solely for the purposes of carrying out enforcement of the building code. The plaintiffs also requested restitution of excessive fees. The City opposed class certification on grounds that even if the fees charged by the City did exceed the actual costs of enforcement, the statutes, specifically section 553.80(7), expressly gave the City the discretion to either refund the excess or allocate those funds to future allowable activities. The City also argued that there was no need for class certification because if the declaratory relief sought by the plaintiffs were granted, then the benefits would automatically accrue to others similarly situated. The trial court denied class certification because section 553.80(7) gave the City the discretion of either refunding the excess or allocating the excess to allowable activities, that choice being given to the municipality, according to statute. In light of that, the court found that there was no necessity to pursue the claim as a class action and denied certification.

We affirm, concluding that the court did not abuse its discretion in determining that class action status was not necessary to effectuate the relief to which the plaintiffs might be entitled under the statute, as relief by one in the declaratory judgment action would entitle all others similarly situated to relief also. In Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979), the court held that there was no necessity to bring an administrative rule challenge as a class action, because if a single plaintiff were successful in invalidating an administrative rule, the agency could not enforce it against any other person. Similarly, in this case a declaratory decree finding that the City violated the statute would be uniformly applicable, and the City would have to abide by the terms of the statute by either refunding excessive fees or allocating those funds to allowable activities. See Kansas Health Care Ass’n v. Kansas Dep’t. of Social and Rehab. Servs., 31 F.3d 1536 (10th Cir.1994) (class action status not necessary if all persons will benefit from relief sought in injunction by named plaintiffs).

We discount the concern of the individual plaintiff, Northridge, that the City could at this point either refund money to Northridge or move an equivalent amount of money into an authorized account and thus destroy standing. A suit for a declaratory judgment may be maintained by “[a]ny person claiming to be interested ... whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance ... may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance ... and obtain a declaration of rights, status, or other equitable or legal relations thereunder.” § 86.021, Fla. Stat. (2010) (emphasis supplied). The individual plaintiff alleges that it is a contractor which has paid fees, and the Association of Building Contractors is an organization of South Florida contractors who have also paid such fees which they claim are excessive and contrary to section 553.80. We think that this is sufficient to show standing to secure a declaration of the City’s practices of collection of fees and whether they violate the statutory provisions. The plaintiffs are certainly interested parties in the payment and collection of building permits.

Affirmed.

LEVINE and CONNER, JJ., concur. .


author: GUIDRY, Justice. KNOLL, Justice,

text:
    STATE of Louisiana, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL v. INFINITY SURETY AGENCY, L.L.C., Benetech, L.L.C. and JRDKS Construction, L.L.C., a Joint Venture, Benetech, L.L.C., and JRDKS Construction, L.L.C.
    No. 2010-C-2264.
    Supreme Court of Louisiana.
    May 10, 2011.

      Jason Adam Bonaventure, Pamela Miller Perkins, Baton Rouge, for Applicant.
    Marc Edward Belloni, Couhig Partners, LLC, Robert Emmet Couhig, Jr., New Orleans, Phelps Dunbar, LLP, Shelton Dennis Blunt, Baton Rouge, for Respondent.
   GUIDRY, Justice.

_jjWe granted the State of Louisiana’s writ application to determine whether the lower courts erred in sustaining the defendants’ exceptions of no cause of action and dismissing the State’s suit with prejudice. For the reasons set forth below, we reverse the rulings of the lower courts and remand the case to the district court for further proceedings.

FACTS

Because this case concerns review of a ruling on an exception of no cause of action, we begin as we must with the allegations asserted in the State of Louisiana’s Petition for Damages and Forfeiture of Bid Security (hereinafter, “petition”), accepting them as true for the purpose of ruling on the exception of no cause of action. See Scheffler v. Adams and Reese, L.L.P., 06-1774 (La.2/22/07), 950 So.2d 641. The State of Louisiana, through its Division of Administration, Office of Facility Planning and Control, on or about May 29, 2008, issued a Project Manual and Bid Specifications (hereinafter, “project manual”) to remove and replace existing cabins at Bayou Segnette State Park, Jefferson Parish, Westwego, Louisiana (hereinafter, “project”).

1 Recording to the petition, the “Advertisement for Bids” section of the project manual provided, in pertinent part:

All bids must be accompanied by bid security equal to five percent (5%) of the sum of the base bid and all alternates, and must be in the form of a certified check, cashier’s check, or Facility Planning and Control Bid Form written by a surety company licensed to do business in Louisiana, signed by the surety’s agency or attorney in fact. Surety must be listed on the current U.S. Department of the Treasury Financial Management Service list of approved bonding companies as approved for an amount equal to or greater than the amount for which it obligates itself in the Bond, or must be a Louisiana domiciled insurance company with at least an A-rating in the latest printing of the A.M. Best’s Key Rating Guide.

The project manual included a Facility Planning and Control Bid Form (hereinafter, “bid form”), which set forth the procedure and conditions for the submission of bids for the project. According to the petition, the bid form provided, in pertinent part:

If the Bidder is notified of the acceptance of the bid within thirty (30) days after the opening of bids, he agrees to execute and deliver the “Contract Between Owner and Contractor and Performance and Payment Bond,” a copy of which is attached to the Contract Documents, within ten (10) days after notice from the Owner that the instrument is ready for signature.
If the Bidder fails to complete all requirements for executing the “Contract Between Owner and Contractor and Performance and Payment Bond” within ten (10) days after notifications, the Owner may reject the Bid, retain the Bid Bond, call in the surety for payment, and award the contract to the next lowest bidder.
Bid Security: Attached is the bid security in the sum of 5% of total base bid and all alternates. The bid security is to become the property of the Owner in the event the Contract and bond are not executed within the time set forth, as Liquidated Damages for the delay and additional work caused thereby.

The petition alleges the State opened the sealed bids for the project on or about July 9, 2008. Beneteeh, L.L.C., and JRDKS Construction, L.L.C., A Joint Venture (hereinafter, “Joint Venture”), submitted the lowest bid for the project.

|3The petition alleged the bid bond attached to Joint Venture’s bid was signed by both Joint Venture and Infinity Surety Agency, L.L.C. (hereinafter, “Infinity Surety”). According to the petition, the bid bond provided in pertinent part:

Surety represents that it is listed on the current U.S. Department of the Treasury Financial Management Service list of approved bonding companies as approved for an amount equal to or greater that the amount for which it obligates itself in this instrument or that it is a Louisiana domiciled insurance company with at least an A- rating in the latest printing of A.M. Best’s Key Rating Guide.

The State claims it relied on the representations of both Infinity and Joint Venture in the bid bond, stating that Infinity Surety was qualified to write bid bonds, when on July 18, 2008, it accepted Joint Venture’s bid by sending contract documents to Joint Venture to execute and return.

According to the petition, the bid form required the lowest responsible and responsive bidder to execute the contract and return it along with a performance and payment bond, which was to be governed by La.Rev.Stat. 38:2219. Joint Venture selected Infinity Surety for the required performance and payment bond. At this point, the State’s petition claims, it discovered that Infinity Surety did not meet any of the requirements of either La.Rev.Stat. 38:2219, or the bid specifications, in terms of being qualified to write surety bonds on public works projects. The State’s petition asserts it refused to accept Infinity Surety’s improper performance and payment bond. But, despite the fact that the bid form requires Joint Venture to deliver both the properly executed “Contract Documents and |4Performance and Payment Bond” to the State -within ten (10) days of receipt, the petition alleges the State, in good faith, negotiated for approximately four months with Joint Venture in an attempt to have Joint Venture deliver an acceptable performance and payment bond.

The petition alleges that on November 3, 2008, “due to the failure of Joint Venture to provide an acceptable performance and payment bond within the extended time frame,” the State notified both Joint Venture and Infinity Surety that the bid bond was forfeited, and that the State would be moving on with the project. Thereafter, the State’s petition claims it was forced to rebid the project and to enter into a public works contract with another contractor for a higher price than its original bid with Joint Venture.

The State filed its petition on April 15, 2009, against Joint Venture, Infinity Surety, Beneteeh, L.L.C., and JRDKS Construction, L.L.C. The petition asserts the defendants are liable to the State for the following:

1.Failing to comply with the requirements of the Project Manual and Bid Form regarding the requirements for acceptable bonds;
2. Misrepresenting to the State that Infinity Surety was qualified to write surety bonds on Louisiana public works projects;
3. Failing to tender to the State $121,767.90, which represents the amount of Joint Venture’s Bid Bond.

The State’s petition claims it suffered damages as a result of the defendants’ conduct, including, but not limited to:

1. Costs necessary to rebid project including administrative expenses;
2. Delay damages for the four months the project was delayed while Joint Venture attempted to procure acceptable Payment and Performance Bond;
3. Difference in price between Joint Venture’s bid and bid ultimately accepted for the project;
4. Attorney’s fees, expenses, and court costs;
5. Any and all damages as may be proven at trial.

| fiThe petition further alleges that Infinity Surety, as “Surety,” and Beneteeh, L.L.C., and JRDKS Construction, L.L.C., A Joint Venture, as “Contractor,” are liable to the State for these damages. Additionally, the petition asserts, JRDKS Construction L.L.C., and Beneteeh, L.L.C., as the two entities of which the former Joint Venture comprised, are individually liable to the State for the above damages in the event Joint Venture is no longer in existence.

PROCEDURAL HISTORY

Benetech, Joint Ventare, and Infinity Surety filed peremptory exceptions of no cause of action alleging the State’s petition fails to state a cause of action upon which relief can be granted. In the exceptions, the defendants contended Joint Venture’s bid was non-responsive and, therefore, the State should have rejected Joint Venture’s bid and awarded the contract to the next lowest responsible bid, rather than to Joint Venture. The defendants argued the State’s right to retain the Bid Bond as liquidated damages was conditioned on the successful bidder failing to execute the contract within a specified period of time. Here, the defendants asserted the State, as the public entity, was required to comply with the applicable bid law, which the State failed to do. The defendants argued the State was prohibited by the public bid law, La.Rev.Stat. 38:2212, from awarding the contract to Joint Venture, because Joint Venture had failed to comply with the advertised bid specifications and, thus, was not a responsive bidder. Essentially, the defendants argued the State should not have relied on their assertions in the bid form that Infinity Surety was an authorized surety and, thus, it was the State’s eiTor for awarding the contract to Joint Venture. Additionally, the defendants argued, citing La.Rev.Stat. 38:2212(A)(l)(b), the State was prohibited from waiving any deficiencies in the bid, so as to transform a non-responsive bid into a responsive bid.

|r,The State responded that its petition asserts three causes of action: breach of contract, intentional misrepresentation, and negligent misrepresentation. The bid form itself, the State argued, established the contractual agreement between the parties. The State contended Joint Venture was required by the bid form to return the executed contract and a proper performance and payment bond within ten days of being awarded the contract, and the failure to do so could result in forfeiture of the bid bond. The State pointed out that the petition specifically alleges facts to support a breach of contract claim. The State argued the defendants cannot prevail on an exception of no cause of action by asserting defenses to the claims, arguing that the Joint Venture bid was responsive, that Joint Venture and Infinity Surety cannot hide behind their intentional misrepresentations, that Infinity Surety had guaranteed payment under terms of the bid bond, and that Infinity Surety, even as an unauthorized insurer, could not void its obligation under the bid bond, citing La.Rev.Stat. 22:1256.

With regard to intentional misrepresentation, the State contended it alleged facts to support the two elements essential to establishing a cause of action for intentional misrepresentation: an intent to defraud or gain an unfair advantage and a resulting loss or damage. The petition alleges both Joint Venture and Infinity Surety represented in the bid form that the latter was an authorized surety, that the State relied on these representations, and the State was ultimately forced to rebid the project when Joint Venture could not provide a proper performance and payment bond. Similarly, the State argued the petition asserts sufficient facts to support a claim of negligent misrepresentation, which is determined under a duty-risk analysis.

In its oral reasons for granting the exceptions, the district court found the State had failed to state a cause of action. According to the trial judge, Infinity 17Suretys only role was to put up the bid bond. Pursuant to the bid form, the court reasoned, if the successful bidder is awarded the contract and fails to execute the contract within the specified time, then the State has a right to retain the bond as liquidated damages. In this case, the court found, the bid was non-responsive; therefore, the contract should not have been awarded to Joint Venture. The district court allowed the State fifteen days to amend its petition, pursuant to La.Code Civ. Proc. art. 984; however, when the State did not amend it petition, the district court signed a judgment dismissing the State’s claims with prejudice.

The State appealed, alleging the district court erred: (1) in holding the State was not entitled to liquidated damages; (2) in allowing fraudulent documentation to shield the defendants from damages; and (3) by ruling that the petition did not state a cause of action for the tort of misrepresentation. The State argued it relied on the documents Joint Venture submitted, and when it could not comply with the terms, the State was entitled to retain the bid bond. The State further argued it had no way of checking whether the surety complied with the bid requirements, and thus relied on the representations of both the bidder and the surety.

The court of appeal rejected these arguments, holding the State as the awarding authority has a duty to carefully consider the written bid. Further, the appellate court reasoned public bid law mandates the sources to determine whether a surety company is authorized, and the State made no showing that it was unable to check these sources before it awarded the contract. The court rejected the State’s contention that it had no duty to determine compliance, pointing to La.Rev.Stat. 38:2212 A(l)(b)(i), which provides that the provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived. The appellate court pointed out that a nonconforming bid must be rejected as non-responsive. See Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 04-211, 04-212 (La.3/18/04), 867 So.2d 651, 663. In this case, the court reasoned, the bid bond was not written by an authorized surety; therefore, the bid did not comply with the statutory requirements and should have been rejected by the public entity as non-responsive. Furthermore, the court noted, any bid not meeting the statutory requirements of the statute is null and void. La.Rev.Stat. 38:2220. The appellate court lastly declined to rule on whether the State’s tort claims are actionable, noting the bid should have been rejected by the State because it was non-responsive.

We granted the State’s writ application to consider the correctness of the lower courts’ rulings. State of Louisiana, Div. of Admin. v. Ifinity Surety Agency, L.L.C., 10-C-2264 (La.1/14/11), 56 So.3d 950.

DISCUSSION

The narrow issue presented in this case is whether the State’s petition asserts a cause of action against defendants such that its suit should be allowed to proceed. For the reasons set forth below, we find the defendants’ exceptions of no cause of action should have been overruled.

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. De Caire, p. 7, 869 So.2d at 118. No evidence may be introduced to support or controvert an exception of no cause of action. La.Code Civ. Proc. art. |a931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Ramey v. DeCaire, p. 7, 869 So.2d at 118; Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey v. DeCaire, p. 6, 869 So.2d at 118; Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.

Louisiana utilizes a system of fact pleading. La.Code Civ. Proc. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Accordingly, it is not necessary for a plaintiff to plead the theory of his case in the petition. Ramey v. DeCaire, p. 7, 869 So.2d at 118; Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). Nevertheless, the mere conclusions of the plaintiff unsupported by facts do not set forth a cause of action. Ramey v. DeCaire, p. 7, 869 So.2d at 118; Montalvo v. Sondes, p. 6, 637 So.2d at 131.

The mover has the burden of demonstrating the petition states no cause of action. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is necessarily based solely on the sufficiency of the petition. Ramey v. DeCaire, pp. 7-8, 869 So.2d at 118; Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans, p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Ramey v. DeCaire, p. 8, 869 So.2d at 118; City of New Orleans, p. 29, 640 So.2d at 253.

| inAccepting all of the allegations in the State’s petition as true and applying the legal principles set forth above, see Ramey v. DeCaire, 03-1299, p. 8, 869 So.2d at 119, we find the State’s petition alleges facts sufficient to state a cause of action under the public bid law. As the petition alleges, the bid form established the agreement between the State, Joint Venture, and Infinity Surety, namely that the lowest responsible and responsive bidder, if awarded the project, was to execute the contract and return the documents along with a valid performance and payment bond within ten days of being awarded the project, and the failure to do so would result in forfeiture of the bid bond for liquidated damages. The petition alleges that Joint Venture was awarded the project as the lowest responsive bidder, but Joint Venture failed to return in a timely manner both the contract and a proper performance and payment bond and the State unsuccessfully attempted to call in the bid bond. Thus, on the face of its petition, the State has established a cause of action sounding in contract.

Whether Joint Venture breached the contract; whether Joint Venture’s bid was responsive; whether Joint Venture was the lowest responsible and responsive bidder; whether the State, as opposed to the bidder, had the sole and affirmative duty to determine if Infinity Surety was an authorized surety under the bid form; whether the State could instead reasonably rely on the representations of the bidder and the surety in the bid form; whether the State should have or could have rejected the bid as defective; whether the insurance code precludes Infinity Surety as an unauthorized insurer from asserting its surety contract is void; and whether the State could have waived any purported defects in the bid bond, are all issues that should be resolved at trial or in a summary proceeding, rather than on the peremptory exception of no cause of action. Rather than focusing on the allegations in the petition, see Scheffler, p. 5, 950 So.2d at 646, both courts below ^apparently made a factual determination that Joint Venture’s bid was non-responsive and should have been rejected by the public entity, and then based their rulings sustaining the exceptions on that determination. We conclude such a basis for sustaining the exceptions of no cause of action was improper.

CONCLUSION

For the reasons set forth above, upon our de novo review, we find the State of Louisiana’s petition for damages and forfeiture of the bid bond sufficiently alleges facts on which it could be awarded relief under the public bid law. Accordingly, the rulings of the lower courts are reversed, and the defendants’ exceptions of no cause of action are overruled.

REVERSED AND REMANDED

KNOLL, Justice, dissents with written reasons.

KNOLL, Justice,

dissenting.

| Respectfully, I dissent from the majority opinion, as I find the lower courts did not err in granting the exception of no cause of action. Reviewing the petition and accepting the well-pleaded allegations of fact as true, I find the petition fails to state a cause of action in contract for forfeiture of the bid security. Essentially, the petition prays for the court to award to the State of Louisiana, Division of Administration, Office of Facility Planning and Control (“State”) the bid security.

In its petition, the State avers the following pertinent allegations (emphasis mine):

4.
The “Advertisement for Bids” section of the Project Manuel provides, in pertinent part:
All bids must be accompanied by bid security equal to five percent (5%) of the sum of the base bid and all alternates, and must be in the form of a certified check, cashier’s check, or Facility Planning and Control Bid Form written by a surety company licensed to do business in Louisiana, signed by the surety’s agency or attorney in fact. Surety must be listed on the current U.S. Department of the Treasury Financial Management Service list of approved bonding companies as approved for an amount equal to or greater than the amount for which it obligates itself in the Bond, or must be a Louisiana domiciled insurance company with at least an A-rating in the latest printing of the A.M. Best’s Key Rating Guide.
12
After Joint Venture attempted to use Infinity Surety for the required performance and payment bond, the State discovered that Infinity Surety did not meet any of the requirements of either La. R.S. 38:2219, or the Bid Specifications, in terms of being qualified to write surety bonds on public works projects ....

By the very petition the State filed, the State acknowledges the bidder did not meet either La.Rev.Stat. 38:2219 or the Bid Specifications because it attached a bid bond written by an entity unqualified to write the bid.

The provisions and requirements of La. Rev.Stat. 38:2212, those stated in the advertisement for bids, and those required on the bid forms shall not be waived by any entity. La.Rev.Stat. 38:2212(A)(l)(b)(i); Hamp’s Constr. v. City of New Orleans, 2005-0489, p. 10 (La.2/22/06), 924 So.2d 104, 110-111 (requirements of the Public Bid Law, those stated in the bid advertisement, and any requirements on the bid form shall not be waived by the public entity).

By its very petition, the State fails to state a cause of action in contract, as it was the State’s responsibility to not accept a bid that did not conform with the Public Bid Law and bid specifications. Therefore I cannot subscribe to the majority opinion.

      . La.Rev.Stat. 38:2219 provides the minimum requirements for a surety bond written for a Louisiana public works project. It provides that any surety bond written for a public works project shall be written by:
      (1) a surety or insurance company currently on the U.S. Department of the Treasury Financial Management Service list of approved bonding companies which is published annually in the Federal Register, or

        (2) a Louisiana domiciled insurance company with at least an A- rating in the latest printing of the A.M. Best's Key Rating Guide, or
      (3) an insurance company that is either domiciled in Louisiana or owned by Louisiana residents and is licensed to write surety bonds.