author: RAMIREZ, J.

text:
    Marie-Laure MOYNET, Appellant, v. Ann COURTOIS and Rene Courtois, Appellees.
    No. 3D08-2296.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2009.
    Rehearing Denied April 20, 2009.

      Theodore Dempster, for appellant.
    Gary Costales and P. Tristan Bourgoig-nie, Miami, for appellees.
    Before COPE, RAMIREZ, and SALTER, JJ.
   RAMIREZ, J.

Marie-Laure Moynet appeals the trial court’s order denying her motion to vacate the final judgment in this case. We reverse because the complaint fails to state a cause of action for either unjust enrichment or civil theft.

In May 2000, Moynet entered into a pre-construction purchase and sale agreement with the developer of the Bentley Bay Condominium development to purchase a unit for $271,150 and for which Moynet deposited $54,230 with the developer. Moynet assigned her right to purchase the unit for the same specified price to Anne and Rene Courtois. In exchange, the Courtois paid Moynet $87,000 for the assignment.

In March 2003, three years after the Courtois purchased Moynet’s interest in the condominium, the Bentley Bay filed for bankruptcy protection. Pursuant to the assignment, the developer refunded to the Courtois the deposit monies, $54,230, that had been paid by Moynet. In January 2005, the United States Bankruptcy Court for the Southern District of Florida entered an order terminating the contract between Moynet and the Courtois.

In February 2005, the Courtois made written demand on Moynet for repayment of the remaining monies paid by the Cour-tois which had not been reimbursed by the developer, or $32,770. Moynet did not pay, and in August 2005, the Courtois filed a two-count complaint against Moynet-one count for civil theft and another for unjust enrichment. Moynet failed to respond or to file any responsive pleadings. In December 2006, the trial court entered a default against Moynet, and the trial court entered a Final Judgment in November 2007 for $106,075.75, which included three times $32,770 (the funds allegedly stolen), plus $7,765.75 in interest.

Eventually Moynet moved to vacate the default judgment, which the trial court denied because Moynet had not shown excusable neglect for her failure to answer the complaint. Moynet had instead argued that the complaint filed by Courtois failed to state a cause of action.

On appeal, Moynet contends that a default judgment based on a complaint which fails to state a cause of action must be vacated as void. We agree that the complaint as drafted fails to state a cause of action for unjust enrichment or for civil theft.

As we stated in Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989), a default judgment should be set aside when the complaint pursuant to which it was entered on its face fails to state a cause of action. Id. at 488; Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 493 (Fla. 3d DCA 1994). We further noted in Becerra that a default judgment should be set aside where the complaint fails to state a cause of action even in the absence of good grounds for failing to respond to the complaint. Becerra, 551 So.2d at 488. We stated: “This court, likewise, has held that a motion to set aside a default judgment requires no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief.” Id. at 488-89. Accordingly, the trial court erred when it failed to grant Moynet’s motion to vacate the default judgment.

Neither count of the two-count complaint states a cause of action. With regard to the count for unjust enrichment, where there is an express contract between the parties, claims arising out of that contractual relationship will not support a claim for unjust enrichment. See Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So.2d 696, 697 (Fla. 1st DCA 2008); Harding Realty, Inc. v. Turnberry Towers Corp., 436 So.2d 983 (Fla. 3d DCA 1983).

It is clear in this case that the Courtois, in exchange for any benefit conferred on Moynet, received exactly what they bargained for — Moynet’s interest in the contract of purchase of a unit at the condominium project. In fact, the Cour-tois never repudiated the assignment, but instead exercised their contractual rights as assignees in making their claim in bankruptcy court for the deposit being held by the developer.

The case of American Safety Insurance Company, v. Griggs, 959 So.2d 322 (Fla. 5th DCA 2007), is instructive. There investors in a real estate development project sued the developer’s lenders which were foreclosing on property after the developer defaulted on the loan. The investors argued that the lenders had been unjustly enriched as a result of the investments which they had previously made in the real estate development project. Id. at 329. The Fifth District Court of Appeal stated that the elements of a cause of action for unjust enrichment included: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred; and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Id. at 331. The court concluded that the complaint did not state a cause of action and noted that the plaintiff failed to demonstrate that the defendant had not paid for the benefit allegedly conferred by the plaintiff, an essential element of a quasi-contract claim. Id. at 331-32. The court pointed out that when a defendant has given adequate consideration to someone for a benefit conferred, a claim for unjust enrichment necessarily fails. Id. See also Commerce P’ship 8098, Ltd. P’ship v. Equity Constr. Co., 695 So.2d 383 (Fla. 4th DCA 1997).

Here, Courtois purchased all of the right, title and interest of Moynet in a contract to purchase a unit at the subject condominium. Moynet assigned her contract to purchase the unit to the Courtois in exchange for payment by the Courtois of a sum of money. The Courtois received from Moynet just what they had bargained for — all of Moynet’s interest in the contract to purchase the condominium unit. Here, the rights of the parties are governed by the contract that they entered into, thus an unjust enrichment claim cannot be alleged. Furthermore, because the Courtois received what they bargained for, the fourth element of an unjust enrichment cause of action is missing-the requirement that the circumstances be such that it would be inequitable for Moynet to retain the benefits received from the Courtois.

Turning to count two of the complaint, the Courtois attempted to allege a cause of action for civil theft. The claim was asserted pursuant to section 772.11, Florida Statutes (2001). That section provides that any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of sections 812.012 through 812.087 or section 825.103(1), Florida Statutes, has a cause of action for three fold the actual damages sustained. The trial court entered final judgment pursuant to this statute because the court awarded triple damages.

However, a review of the complaint shows that it fails to state a cause of action for civil theft. The complaint details that the dispute between the parties arose out of a contract. There is no allegation of fraud, theft or any other criminal or felonious intent on Moynet’s part. The Courtois only asserted a claim for partial reimbursement when the condominium project went into bankruptcy. Without an allegation of criminal intent, no damages may be awarded for civil theft pursuant to chapter 812. Becerra, 551 So.2d at 486 supports this position.

The Courtois’ failure to alleged criminal intent is fatal to their cause of action for civil theft. Moreover, there are no other facts alleged from which criminal intent may be implied. The Courtois simply allege a contractual relationship with Moy-net; payment of a sum of money for which the Courtois received an assignment of Moynet’s interest in a contract to purchase a condominium unit; and three years later, the failure of the developer. As such, the Courtois failed to state a cause of action for civil theft.

In sum, the complaint failed to state a cause of action for either unjust enrichment or civil theft. Accordingly, the trial court’s order denying Moynet’s motion to vacate the final judgment is reversed, and the case is remanded with instructions to vacate and set aside the Final Judgment.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: BROWNING, J.

license: Public Domain

text:
    LIBERTY TRUCKING, INC., and Charles Ross, Jr., Appellants, v. Patrick W. JOYNER, Appellee.
    No. 1D08-0112.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2009.
    Rehearing Denied May 20, 2009.
    E.T. Fernandez, III, and Sorena S. Fal-lin, of Fernandez Trial Lawyers, P.A., Jacksonville, for Appellants.
    William D. Keith and John Thom Cardil-lo, of Cardillo, Keith & Bonaquist, P.A., Naples, for Appellee.
   BROWNING, J.

AFFIRMED. See Lamb v. Matetzschk, 906 So.2d 1037, 1044 (Fla.2005) (Pariente, C.J., concurring) (“[Wjhere the liability of one defendant is based on vicarious liability and the issue of vicarious liability is undisputed, apportionment of the offer between the active tortfeasor and the vicarious tortfeasor is problematic because the liability of both defendants is not apportioned but is coextensive.... No matter how clever a defendant or plaintiff might be in attempting to frame an offer, the reality is that there is no rational method to apportion fault.”).

KAHN and BENTON, JJ, concur.


author: PER CURIAM.

text:
    GRAND OAKS HOMEOWNERS’ ASSOCIATION, INC., Appellant, v. Norm and Carolyn LEONPACHER, Appellees. Norm and Carolyn Leonpacher, Appellants, v. Grand Oaks Homeowners’ Association, Inc., Appellee.
    Nos. 1D07-6624, 1D08-0743.
    District Court of Appeal of Florida, First District.
    March 3, 2009.
    Rehearing Denied April 24, 2009.
    D. Michael Chesser, Casey L. Jernigan, and Allison Sebastian of Chesser & Barr, P.A., Shalimar, for Appellant.
    Loren E. Levy and Ana C. Torres of The Levy Law Firm, Tallahassee; Jill W. Crew of Crew & Crew, P.A., Fort Walton Beach, for Appellees.
    Loren E. Levy and Ana C. Torres of The Levy Law Firm, Tallahassee; Jill W. Crew of Crew & Crew, P.A., Fort Walton Beach, for Appellants.
    D. Michael Chesser, Casey L. Jernigan, and Allison Sebastian of Chesser & Barr, P.A., Shalimar, for Appellee.
   PER CURIAM.

In this consolidated appeal, we write only to address the trial court’s denial of Norm and Carolyn Leonpachers’ motion for attorney’s fees. We affirm all other issues without further discussion.

The Leonpachers sought and obtained summary judgment against the Grand Oaks Homeowners’ Association (GOHA). Subsequently, they filed a motion for attorney’s fees. At the hearing on the motion, the trial court determined that the Leonpachers were the prevailing party but denied their motion. Section 720.305(1), Florida Statutes (2007), and Article XI, section 2 of GOHA’s declaration of covenants provide that a prevailing party is entitled to recover reasonable attorney’s fees. As such, the trial court erred and the Leonpachers are entitled to receive fees.

AFFIRMED IN PART and REVERSED IN PART.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    William C. WEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4738.
    District Court of Appeal of Florida, First District.
    March 4, 2009.

      William C. Weaver, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Because the trial court denied the appellant’s claim for jail credit on an improper basis, we reverse the trial court’s denial of this claim and remand this case to the trial court for further consideration of the claim.

The appellant alleges that he is entitled to 659 days’ jail credit for total time served in the underlying offense and the two violations of probation, rather than the 94 days’ jail credit awarded at sentencing. The trial court summarily denied the motion, but improperly failed to attach to its order portions of the record conclusively showing that the defendant is not entitled to relief. See Walker v. State, 432 So.2d 727, 728 (Fla. 3d DCA 1983).

The trial court indicated that the appellant should not have been awarded credit for time served in the underlying offence or in the first violation of probation. However, in Griffin v. State, 828 So.2d 1087, 1088 (Fla. 1st DCA 2002), this Court held that a trial court, when sentencing a defendant for violation of probation, shall allow credit for “all of the time” spent in the county jail before sentencing, including time spent related to former violations of probation in the same case.

The appellant also alleges that he spent 219 days in jail in a foreign jurisdiction. Although awarding credit for time served in a foreign jurisdiction is completely within the discretion of the lower court, the record does not reflect the trial court’s understanding that it had the discretionary authority to award credit. See Kronz v. State, 462 So.2d 450, 451 (Fla.1985).

The trial court’s denial of the appellant’s claim for additional jail credit is accordingly reversed and this case is remanded for reconsideration of the claim. Upon remand, the trial court should review the trial court records in the appellant’s case to determine whether these records demonstrate on their face an entitlement to the requested jail credit, as they must before credit for time served may be granted under rule 3.800(a). If the trial court records demonstrate an entitlement to relief, the additional jail credit should be awarded. If they do not, the claim should be denied. If the record demonstrates that the appellant served time on this case in a foreign jurisdiction, the trial court should consider awarding credit and the record should reflect that consideration.

REVERSED AND REMANDED.

KAHN, DAVIS, and CLARK, JJ., concur.


author: WELLS, Judge.

text:
    CITIGROUP REALTY, INC., a Florida corporation, and Enrique Enriquez, Sr. individually, Appellants, v. Noelia VALDES, Appellee.
    No. 3D08-2377.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Arnaldo Velez, Coral Gables, for appellants.
    Pardo & Gainsburg and Jeffrey J. Par-do, Miami, for appellee.
    Before WELLS, SUAREZ, and SALTER, JJ.
   WELLS, Judge.

Citigroup Realty, Inc. and its qualifying real estate broker, Enrique Enriquez, appeal from a final summary judgment awarding damages to Noelia Valdes for allegedly earned, but unpaid, real estate sales commissions. Because material fact issues exist, we reverse.

The judgment on appeal stems from an alleged oral employment agreement between Valdes, a real estate agent, and Citigroup, a licensed real estate brokerage firm, and its qualifying agent, Enrique En-riquez. According to Valdes’ complaint, Citigroup/Enriquez and Valdes orally agreed that Valdes would procure purchasers ready, willing and able to purchase real estate, and, upon execution of purchase and sales agreements by such purchasers, would become unconditionally entitled to 80% of any real estate commission paid to Citigroup and Enriquez at the closing of such sales:

At all times material hereto, Valdes and Defendants had an oral commission agreement whereby Valdes would be paid eighty percent (80%) of the real estate commissions earned on real estate for which Valdes procured a ready, willing, and able buyer (the “Contract”). By the terms of their Contract:
a. Valdes’s duties were limited to procuring a ready, willing and able buyer for real property.
b. Once a contract was signed, Valdes would be entitled to her share of the commission, and
c. At closing of the contract, Defendants would pay Valdes her share of the commission.
d. If Valdes should ever leave Defendants, she would still be paid all commissions earned by her if and when such sales contracts would close.

Citigroup and Enriquez admitted that Citigroup had orally contracted with Valdes to pay 80% of the commissions it received to Valdes for purchasers she procured. It denied, however, that it became obligated to pay those commissions when a contract was executed by a procured purchaser. Rather, Citigroup and Enriquez by way of affirmative defense alleged that Citigroup and Valdes agreed that Valdes would be entitled to share in commissions paid to Citigroup at closing, but only if Valdes handled the transaction through completion. This affirmative defense was supported by Citigroup and Enriquez’ answers to interrogatories:

[Q]. Did Defendants engage Plaintiff as a real estate sales associates [sic]?
[A]. Yes, by Citigroup Realty, Inc.
[Q]. Did Valdes agree to waive her share of earned commissions in the event she left the Defendant?
[A], Ms. Valdes was told that if she left she would not receive anything.

That defense was also supported by En-riquez’ deposition testimony in which he testified that Citigroup was a one-broker operation and although it hired part-time employees from time to time, it had no staff to support sales other than those procured by Enriquez. Thus, according to Enriquez, part-time sales associates had to handle the contracts they procured through closing because Citigroup could not be burdened with activities necessary to support their closings:

Q. Were there any other discussions at that time [when Citigroup agreed that Valdes could work from its brokerage office] regarding the split of the commission?
A. In addition to the [80/20] split — let me tell you something about Citigroup. I was not interested in adding people to the company. Maybe that sound[s] weird, but I produce myself enough to handle the office. Noelia asked me to work, like the three or four other people I mentioned to you, and I had the best thing for her to come to work with the company.
I was concerned about the — Noelia have [sic] so many responsibilities. Because she was involved with the title company, she was involved with other activities, she have [sic] kids, she’s very responsible for the family, stuff like that. I know that the time that she dedicated to all the — I was concerned, Noelia, listen, I would gladly — I will be happy that you come to work, but I need that you take care of the transaction completely. I had the experience before that people start working, I have — I become the clerk of the office and I don’t want to do that. The only thing, I said, ‘Noelia, I want you complete this transaction, you know how to do it. You need any help,’ she have [sic] my number, has everything. T want to help, but I need that you take care of this totally.’ I don’t want to be — like with other people, being assistant in doing so many clerk stuff that it take a lot of time for me.
Q. And you wanted her to do her complete job as a salesperson to earn the commission if she were going to get paid the 80/20 split?
A. Yes.

These discovery responses created a factual dispute as to the terms of the parties’ oral agreement and as to whether Valdes fell within one of the exceptions to the general rule that an employee is entitled to commissions earned during employment, but collected after termination. See Cornell Computer Corp. v. Damion, 530 So.2d 497, 498 (Fla. 3d DCA 1988) (confirming that as a general rule, an employee is entitled to commissions earned during employment but collected after termination); see also Comerford v. Sunshine Network, 710 So.2d 197, 198 (Fla. 5th DCA 1998) (recognizing three exceptions to the general rule that an employee is entitled to commissions collected post-termination, provided those commissions were “earned” during employment where: (1) a contract expressly provides otherwise; (2) a contract requires performance of services as an entirety, as where “an employee is required not only to make sales as part of his employment, but is also required to service that business as a condition of the right to a commission”; and (3) there is a recognized custom in the trade, business or industry that the right to payment of a commission terminates with the employment).

Consequently, the court below erred in entering summary judgment in Valdes’ favor on her claim that the undisputed facts were that (1) under the parties’ oral agreement she was entitled to 80% of commissions paid on sales for which she procured a buyer who executed a contract; and (2) the parties’ agreement did not require her “to perform any services beyond procurement of an executed contract.” Moreover, on remand, Valdes should also be allowed to amend her complaint to state a claim, if indeed she has one, as to each defendant named herein since the complaint does not currently do so.

Reversed and remanded with instructions.


author: CORTINAS, J.

text:
    The STATE of Florida, Appellant, v. Pedro Luis LACAYO, Appellee.
    No. 3D07-1577.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Rehearing Denied April 29, 2009.

      Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellee.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, J.

The State of Florida (“State”) seeks review of a trial court order denying its motion to modify appellee’s (“defendant”) probation to include mandatory electronic monitoring, pursuant to Section 948.30(8), Florida Statutes. We reverse.

On September 6, 2005, defendant was charged with fleeing and attempting to elude a police officer (count 1) and resisting a police officer (count 2). On April 3, 2007, defendant pled guilty to both of these charges. The trial court suspended defendant’s sentence as to count 2 and placed defendant on probation as to count 1. On May 15, 2007, the State filed a motion to modify probation stating that defendant met the statutory criteria for mandatory electronic monitoring, pursuant to § 948.30(3), because defendant had been previously designated a sexual predator on September 9, 1999, following his convictions for lewd and lascivious assault on a child and for sexual battery on a helpless victim. On May 30, 2007, the trial court denied the motion finding that it could not impose electronic monitoring on defendant because § 948.30(3) was limited to sexual offense cases.

Generally, the interpretation of a statute is purely a legal matter subject to de novo review. Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006). In interpreting a statute, legislative intent is the “polestar” that guides a reviewing court in its analysis. Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). We initially determine legislative intent by construing the statutes plain and ordinary meaning. Joshua v. City of Gainesville, 768 So.2d 482, 435 (Fla.2000) (“When interpreting a statute and attempting to discern legislative intent, courts must first look at the actual language used in the statute.”). If a statute is clear and unambiguous, we will not expand our analysis and look beyond the statutes plain language or resort to rules of statutory construction. Daniels v. Fla. Dept. of Health, 898 So.2d 61, 64 (Fla.2005) (“In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” (citing State v. Burris, 875 So.2d 408, 410 (Fla.2004))).

In the instant case, the trial court erroneously denied the State’s motion to modify defendant’s probation to include mandatory electronic monitoring. The court incorrectly concluded that mandatory electronic monitoring was limited to sexual offense cases and that, since defendant was convicted for fleeing and attempting to elude a police officer, it could thus not impose on defendant mandatory electronic monitoring. Section 948.30(3) provides, in pertinent part:

Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who ... (b) Is designated a sexual predator pursuant to s. 775.21 ... the court must order, in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision.

Fla. Stat. § 948.30(3)(b) (2007) (emphasis added).

Crime, as stated in § 948.30(3), is defined as a felony or misdemeanor. Fla. Stat. § 775.08(4) (2007) (“When used in the laws of this state ... (4) The term ‘crime’ shall mean a felony or misdemeanor.”); 15A Fla. Jur.2d Criminal Law § 2943 (2008) (“The term ‘crime’ means a felony or misdemeanor.” (citing Fla. Stat. § 775.08(4))).

Clearly, defendant was convicted and placed on probation for fleeing and attempting to elude a police officer, which he committed on September 6, 2005. Fleeing and attempting to elude a police officer is a second-degree felony under Section 316.1935(3), Florida Statutes. Defendant essentially argues that the phrase, “whose crime was committed,” in § 948.30(3) only refers to defendants who commit sexual offenses. This argument is without merit, given that § 775.08(4) explicitly provides that “crime,” as referenced in Florida law, means a felony or misdemeanor. See Fla. Stat. § 775.08(4). Therefore, defendant meets the initial requirements of § 948.30(3), since he committed a “crime” after September 1, 2005. See Fla. Stat. § 948.30(3).

Moreover, defendant was previously convicted of lewd and lascivious assault on a child, pursuant to Section 800.04, Florida Statutes, and of sexual battery on a helpless victim, pursuant to Section 794.011, Florida Statutes. As a result of these convictions, defendant was designated a sexual predator, pursuant to Section 775.21, Florida Statutes. Therefore, defendant has met the clear and unambiguous requirements of § 948.30(3)(b), namely his current felony conviction and sexual predator status. By the plain language of § 948.30(3)(b), as applied to defendant, the trial court should have granted the State’s motion to modify defendants probation to include mandatory electronic monitoring. See Fla. Stat. § 948.30(3)(b).

Reversed and remanded.


text:
    Yalila ALVARADO and Wilfredo Alvarado, Jr., as Natural Guardians and Parents of Wilfredo Alvarado, III, a Minor, Appellants, v. SNOW WHITE AND the SEVEN DWARFS, INC., a/k/a Snow White and the Seven Dwarfs School, Inc., Appellee.
    No. 3D08-319.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for appellants.
    Daniel J. Woodring, Tallahassee; John S. Derr, Tallahassee, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, J.

We reverse the trial court’s dismissal with prejudice of appellants’ case for failure to comply with certain discovery orders. “Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). To ensure that the sanction of dismissal is prudently applied, trial courts must first make certain preliminary findings of fact. Tianvan v. AVCO Corp., 898 So.2d 1208, 1209 (Fla. 4th DCA 2005). These findings must address:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Kozel, 629 So.2d at 818.

Here, there is no showing that the trial court made preliminary findings of fact concerning each of the Kozel factors. Accordingly, we reverse the order of dismissal with prejudice and remand to the trial court to consider all six Kozel factors. If, after considering the six factors, the trial court determines that no less severe sanction is appropriate, and again dismisses the case with prejudice, the trial court shall include in its order of dismissal findings of fact and conclusions of law with respect to each of the Kozel factors. See Smith v. City of Panama, 951 So.2d 959, 962 (Fla. 1st DCA 2007).

Reversed and remanded.


text:
    Manuel FUENTES, Appellant, v. EMBRO INC., and Associated Industries, Appellees.
    No. 1D08-1720.
    District Court of Appeal of Florida, First District.
    March 6, 2009.

      William F. Souza, North Miami Beach, for Appellant.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, and Stephen B. Wilson, Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) abused his discretion by dismissing all of his petitions for failure to prosecute. We agree and reverse.

According to the JCC’s dismissal order, the parties failed to attend a live pretrial hearing noticed for March 7, 2008, or to timely submit a written pretrial stipulation. The JCC determined Claimant bore the burden of advancing his case and the parties’ failure to attend the pretrial hearing equated to Claimant’s failure to prosecute his claim. Without holding a hearing on the issue, the JCC concluded there was no good cause to permit further delay.

A review of the record indicates a pretrial hearing was noticed for March 7, 2008. However, a “mail in pretrial” was listed as the subject of the notice, which created confusion. Claimant filed two motions to vacate the dismissal, and a motion for an emergency hearing. In an affidavit filed by Claimant in support of the motions, Claimant’s counsel stated the parties had jointly requested an extension to complete the pretrial stipulation. They believed the extension had been granted due to communications with the JCC’s office. Claimant also averred that the Employer/Carrier’s counsel agreed the dismissal should be vacated. The JCC did not act upon Claimant’s motions, and the order dismissing all of Claimant’s petitions for failure to prosecute remained in effect.

Dismissal for lack of prosecution is only proper where “a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown.” § 440.25(4)(i), Fla. Stat. (2008). The JCC’s order is devoid of any findings indicating a petition, response, motion, order, request for hearing or notice of deposition had not been filed in Claimant’s case in the 12 months preceding the dismissal.

The JCC’s order may have been intended as a sanction for failing to attend the pretrial hearing. However, we have previously held that dismissal is too harsh a sanction for failing to attend a pretrial hearing, even where good cause cannot be shown, absent willful disregard for the JCC’s authority. See Martinez v. Collier County Public Sch., 804 So.2d 559, 561 (Fla. 1st DCA 2002).

The JCC abused his discretion by dismissing Claimant’s petitions without complying with the statutory requirements of section 440.25(4)(i), Florida Statutes, and by entering a sanction that is too harsh for failing to attend a pretrial hearing. The order dismissing Claimant’s petitions is REVERSED and the case REMANDED for proceedings consistent with this opinion.

WOLF, BENTON and BROWNING, JJ., concur.


text:
    Wilbert PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4096.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      Wilbert Pierre, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Pierre appeals the trial court’s dismissal of his post-conviction motion entitled “Emergency Writ of Mandamus/Habeas Corpus/error/AU Writs,” in which he alleged that his plea was involuntary because he was not advised that the entry of the plea might subject him to deportation. Pierre initially filed this petition in the Florida Supreme Court. By order dated May 21, 2008, the Supreme Court transferred the case to the circuit court and directed that it “treat the petition as if it had been originally filed there on the date it was filed in this Court.” The trial court summarily dismissed the petition, finding that Pierre had failed to state a claim for relief. We reverse and remand for an evidentiary hearing.

Although not a model of clarity, Pierre’s petition does allege that he is facing “imminent” deportation and that he was not advised during his plea colloquy that the entry of a plea would subject him to deportation. in an exhibit attached to his petition, Pierre alleges that he would not have entered the plea if he had been aware of the possible consequences. A transcript of Pierre’s plea colloquy is attached to his petition and supports his claim. Finally, Pierre’s petition was filed with the Florida Supreme Court within two years of the date on which his judgment and sentence became final. The petition adequately stated a claim for relief. State v. Green, 944 So.2d 208 (Fla.2006).

REVERSED and REMANDED for An Evidentiary Hearing.

TORPY, EVANDER and COHEN, JJ., concur.


author: EVANDER, J.

text:
    Barry Jack KAPLAN, D.O., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE, Appellee.
    No. 5D08-1036.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      Kathryn L. Kasprzak, Orlando, for Appellant.
    Charlyne “Khai” Patterson, Assistant General Counsel, Prosecution Services Unit, Tallahassee, for Appellee.
   EVANDER, J.

Dr. Barry Kaplan appeals a final order of the Board of Osteopathic Medicine (the Board) which, inter alia, suspended and restricted his license to practice osteopathic medicine. We affirm the Board’s decision and write only to address Dr. Kap-lan’s contention that the Board wrongfully imposed a penalty more severe than recommended by the administrative law judge (ALJ).

On November 21, 2006, an administrative complaint was filed by the Department of Health (the Department) which alleged that Dr. Kaplan had violated section 459.015(l)(x), Florida Statutes (2005) by failing to practice osteopathic medicine with the level of care, skill, and treatment recognized by a reasonably prudent similar osteopathic physician in the care of his patient, B.C. Dr. Kaplan disputed the complaint and requested a formal administrative hearing. After holding a contested hearing, the ALJ entered a recommended order. In its recommended order, the ALJ found that the Department had proven its allegations by clear and convincing evidence and recommended that Dr. Kap-lan be fined $6,500 and placed on three years probation with such conditions as determined appropriate by the Department, including additional education requirements.

The record reflects that Dr. Kaplan had been disciplined by the Board on three prior occasions — two of which involved patient care. The prior administrative complaints had been resolved by Dr. Kaplan’s stipulation to the imposition of certain sanctions, including, in one case, a suspension of his right to perform certain surgical procedures. Although the ALJ was aware of the prior disciplinary actions, it found that Dr. Kaplan should be treated as a first-time offender because the prior disciplinary proceedings did not conclude with an order in which there had been a “finding” of a statutory violation. The Department filed an exception to the ALJ’s determination that Dr. Kaplan should be treated as a first-time offender and the exception was properly sustained by the Board. Rule 64B15-19.003, Florida Administrative Code, specifically authorizes the Board, in its determination of an appropriate penalty, to consider the number of times the licensee has previously been disciplined by the Board. The rule does not limit consideration of prior disciplinary actions to those cases in which there has been a “finding” of a statutory violation.

The sanctions ultimately imposed by the Board were authorized for a violation of section 459.015(l)(x), but far more severe than recommended by the ALJ. Dr. Kap-lan was issued a reprimand, assessed a fine of $6,500, ordered to take a medical records course, and prohibited from performing cosmetic surgery until such time as he demonstrated competency in cosmetic surgery by obtaining Board certification. Additionally, the Board suspended Dr. Kaplan’s license for one year with six months stayed, and imposed a three year probationary period to follow the suspension.

We find no error in the Board’s determination of the sanctions to be imposed against Dr. Kaplan. Section 120.57(1)(Z), Florida Statutes (2008), provides that where an agency reduces or increases the recommended penalty in a recommended order, it must engage in a review of the complete record and state with particularity its reasons for doing so by citing to the record. See also Hether v. Dep’t of Health, 980 So.2d 1124 (Fla. 5th DCA 2008). Here, the Board fully complied with the requirements of section 120.57(1)(Z). The Board’s final order reflected that the increased penalty was directly related to Dr. Kaplan’s significant disciplinary history.

AFFIRMED.

MONACO and TORPY, JJ, concur.

      . The ALJ also recommended that Dr. Kaplan be required to reimburse B.C. for the cost of her surgery. The Board did not impose this recommended sanction, finding that patient reimbursement was not authorized under the disciplinary guidelines set forth in Rules 64B15-19.001 and 64B15-19.002, Florida Administrative Code.


author: POLEN, J.

text:
    STATE of Florida, Appellant, v. Richard Philip HEBERT, Appellee.
    No. 4D08-980.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellee.
   POLEN, J.

Appellant, the State of Florida, appeals the trial court’s order granting Appellee, Richard Hebert’s, motion to suppress. This court has jurisdiction. Fla. R.App. P. 9.140(b)(1)(A).

While on patrol in Vero Beach, a sergeant of the Florida Highway Patrol was stopped at a traffic light on a six-lane divided highway facing south. The light turned green allowing southbound traffic to proceed through the intersection. As southbound traffic began to move through the intersection, the sergeant saw a northbound vehicle make a left turn cutting in front of the southbound vehicles, forcing everyone to slam on their brakes and nearly causing a collision with one vehicle. The sergeant pulled the vehicle over, and upon running the driver’s license discovered that the license had been permanently revoked.

Hebert was charged with driving while his license was permanently revoked and filed a motion to suppress his identity arguing that the sergeant did not have probable cause to stop his vehicle. At the hearing on Hebert’s motion to suppress, the sergeant testified that he had no way of knowing whether the offending vehicle had a green arrow or not when the driver initiated the turn because he could not see the light for northbound traffic. However, the sergeant was certain that the light for southbound traffic was green. Both Hebert and his wife testified that the arrow was green when he made the turn.

The trial court granted Hebert’s motion to suppress and found that, although the sergeant s testimony was credible, there was “honest doubt as to whether or not the defendant violated” the applicable statute. The State now timely appeals.

A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). At the same time, legal issues such as the legal standard applied by the trial court are reviewed de novo. State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008). In order to determine the constitutional validity of a traffic stop, the “correct test to be applied is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.” Id. (quoting Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So.2d 1171, 1174 (Fla.2004)). Probable cause exists where the totality of the facts known to the officer at the time would cause a reasonable person to believe that an offense has been committed. State v. Walker, 991 So.2d 928, 931 (Fla. 2d DCA 2008).

In State v. Wimberly, police officers stopped a vehicle because they believed the windows were illegally tinted. 988 So.2d 116, 118 (Fla. 5th DCA 2008). After testimony proved that the window tint was legal, the trial court granted defendant’s motion to suppress concluding that because the window tint was legal, the police officers had no reason to stop the vehicle. Id. at 119. The Fifth District reversed the trial court finding it had applied the wrong standard in granting defendant’s motion to suppress because it had determined whether there was an actual violation instead of whether the officers had probable cause to believe there had been a violation. Id. at 119-20.

In the present case, the trial court expressed it had an honest doubt as to whether or not the defendant violated the applicable statute and never determined whether the sergeant had probable cause to stop Hebert’s vehicle. Therefore, the trial court erred by applying the wrong legal standard.

Reversed and remanded for further proceedings consistent with this opinion.

WARNER and HAZOURI, JJ., concur.

      . Section 316.112, Florida Statutes, provides: The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction, or vehicles lawfully passing on the left of the turning vehicle, which is within the intersection or so close thereto as to constitute an immediate hazard. A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.


author: THOMAS, J.

text:
    Terrence J. KERRIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-149.
    District Court of Appeal of Florida, First District.
    March 13, 2009.
    Rehearing Denied April 29, 2009.

      Terrence J. Kerrin, pro se, Appellant.
    Bill McCollum, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant seeks review of the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Appellant raised eight claims for relief. The trial court granted an evidentiary hearing as to claims one, two, and three, and summarily denied the remaining claims. Because the trial court improperly summarily denied claim five based on double jeopardy, we reverse and remand for further proceedings. We affirm the trial court’s order as to the remaining claims without further comment.

Appellant was convicted by a jury of one count of first-degree murder, one count of armed home invasion robbery, one count of armed burglary of a dwelling, and one count of conspiracy to commit armed robbery. He was sentenced to life imprisonment on counts I — III and 25 years’ imprisonment on count IV. On September 6, 2007, Appellant filed a motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850.

In claim five of his motion, Appellant alleged that he is entitled to post-conviction relief because his convictions for armed home invasion robbery and armed burglary of a dwelling violate the principles of double jeopardy. The trial court determined that double jeopardy claims are not cognizable in motions for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and summarily denied the claim. This determination was improper, as double jeopardy claims are cognizable in rule 3.850 motions. See State v. Williams, 854 So.2d 215, 217 (Fla. 1st DCA 2003); Rudolf v. State, 851 So.2d 839, 842 (Fla. 2d DCA 2003); Damon v. State, 718 So.2d 305 (Fla. 2d DCA 1998). Further, at least one district court has held that dual convictions for armed home invasion robbery and armed burglary violate the principles of double jeopardy. See Perez v. State, 951 So.2d 859 (Fla. 2d DCA 2006); see generally Valdes v. State, 3 So.3d 1067 (Fla.2009) (discussing the prevailing standards for addressing allegations of double jeopardy violations).

As such, where the trial court improperly summarily denied Appellant’s double jeopardy claim, we reverse and remand.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Brett E. DEJARNATT, Husband, Appellant, v. Monica J. DEJARNATT, Wife, Appellee.
    No. 1D08-1839.
    District Court of Appeal of Florida, First District.
    March 13, 2009.
    Aaron M. Makofka, Jacksonville, for Appellant.
    Beth M. Terry of Law Office of Beth M. Terry, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, Brett E. Dejarnatt, appeals an amended order granting a motion to enforce the Consent Final Judgment of Dissolution of Marriage, which was filed by Appellee, Monica J. Dejarnatt. Appellant raises six issues on appeal, only one of which has merit. Given Appellee’s ac-knowledgement that the parties knew that Appellant would be unable to access his trust fund “free and clear” until he turned forty, we agree with Appellant that the trial court abused its discretion in awarding statutory interest on the equitable distribution award and reverse the order as to this award. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions to strike the statutory interest award.

DAVIS, BENTON, and PADOVANO, JJ., concur.


text:
    John M. FERENC, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D08-3472.
    District Court of Appeal of Florida, First District.
    March 13, 2009.
    Rehearing Denied April 24, 2009.
    John M. Ferenc, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Carolyn J. Mosley, Attorney Supervisor, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

John M. Ferenc seeks certiorari review of an order denying his petition for -writ of habeas corpus. We conclude that the circuit court did not depart from the essential requirements of law when it rejected as factually unsupported Ferenc’s claim, founded on Avera v. Barton, 632 So.2d 167 (Fla. 1st DCA 1994), that the Department of Corrections impermissibly applied the 1983 gain-time statute in calculating and then forfeiting gain-time attributable to his sentence for an offense committed in 1977.

We decline to address petitioner’s claim that although the Department in fact did apply the 1977 statute in determining the amount of gain-time awardable to him, it erred by applying that gain-time in a lump sum rather than in progressive monthly increments, and thus forfeited more gain-time than should have been available at the time of disciplinary infractions he committed in the early years of his sentence. That claim was not raised in the petition below, nor was it addressed in the administrative grievances Ferenc appended to his petition. Instead, Ferenc raised this issue for the first time in his circuit court reply, and then only after conceding that the factual allegations supporting the claim articulated in his petition were not accurate. Because this issue was raised for the first time in petitioner’s reply and there was no showing that it had been exhausted through the administrative grievance process, the circuit court did not depart from the essential requirements of law when it declined entertain this claim as a basis for granting relief. See Richardson v. Fla. Parole Comm’n, 871 So.2d 1007 (Fla. 1st DCA 2004).

Accordingly, the petition for writ of cer-tiorari is denied. This disposition is without prejudice to Ferenc exhausting available administrative remedies concerning his claim that his gain-time was improperly applied in a lump sum, and if still dissatisfied, to petitioning the circuit court for relief on that basis.

WOLF, BENTON, and BROWNING, JJ., concur.


author: SILBERMAN, Judge.

text:
    Valerie M. HINGSON, Appellant, v. MMI OF FLORIDA, INC., a Florida Corporation, and Magnecel Services, L.C., a Florida limited liability company, Appellees.
    No. 2D07-5215.
    District Court of Appeal of Florida, Second District.
    March 18, 2009.
    Rehearing Denied May 6, 2009.

      John P. Holsonback of Fuller Holson-back & Malloy, Tampa, for Appellant.
    Arnold D. Levine and Robert H. Mac-Kenzie of Levine, Hirsch, Segall, Mac-Kenzie & Friedsam, P.A., Tampa, for Ap-pellees.
   SILBERMAN, Judge.

Valerie M. Hingson appeals an order on motions for attorney’s fees and a final judgment of attorney’s fees that award attorney’s fees to her and to her former employers, MMI of Florida, Inc., and Mag-necel Services, L.C. (the Employers). We reverse the attorney’s fees awarded to the Employers and remand for the trial court to add prejudgment interest to the attorney’s fees awarded to Hingson from the date the trial court determined entitlement. We affirm without discussion the trial court’s decision not to apply a contingency multiplier in determining Hingson’s attorney’s fees.

The Employers hired Hingson as an account executive to sell medical equipment and maintenance services. She signed a written employment agreement prepared by the Employers, with an effective date of December 1, 2002. The employment agreement contains a provision for attorney’s fees to the Employers if they prevailed “[i]n any legal action or other proceeding involving, arising out of or in any way relating to this Agreement.”

In her amended complaint, Hingson claimed that she was terminated without cause on January 30, 2004, and that she was not paid commissions or bonuses that were due her, “including but not limited to, amounts due on transactions with Radiology & Imaging Specialists of Lakeland and Dimensional Imaging Sarasota.” In count 1, she asserted the Employers’ breach of the employment agreement, and in count II, she alleged an alternative claim for unjust enrichment. The Employers answered and asserted four affirmative defenses, including that Hingson was terminated for failing to perform as called for in the employment agreement, that she was paid in excess of what was due to her, and that she was not entitled to any commissions or other monies. The Employers did not assert any counterclaims.

After a nonjury trial, the trial court entered an amended final judgment in Hingson’s favor, noting that it had also ruled in Hingson’s favor on the Employers’ affirmative defenses. The court determined that the Employers “breached their employment agreement with [Hingson] by not paying her compensation due upon termination for the sale to Radiology and Imaging Specialists of Lakeland and for the first payment received for asset management services from such customer.” The trial court awarded Hingson damages of $31,659.50, plus prejudgment interest of $10,447.64 and costs of $4,273.25, for a total of $46,380.39. In light of its decision on count I, the trial court found Hingson’s unjust enrichment claim in count II to be moot.

Both parties filed motions for fees and costs. Hingson sought fees pursuant to the employment agreement and pursuant to section 448.08, Florida Statutes (2003), which allows awards of attorney’s fees and costs to successful litigants in actions for unpaid wages. The Employers sought fees pursuant to the agreement. The Employers argued that Hingson had claimed commissions on the full value of sales to customers but that the trial court had ruled she was only entitled to a commission on monies the Employers had received at the time of her termination.

Following a hearing, the trial court stated that Hingson “was asking for several hundred thousand dollars, maybe $200,000, and actually got a judgment for $31,000 plus the interest” and that “a significant part of the claim was denied.” The trial court determined that under the employment agreement, the Employers prevailed on the significant issues in the litigation. In its written order entered on April 25, 2007, the court concluded that Hingson was entitled to fees under section 448.08 as the prevailing party. The court further concluded that the Employers were entitled to an award of attorney’s fees as the prevailing party under the employment agreement based upon Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla.2005).

Alter a hearing to determine the amount of the fees, the trial court entered a final judgment of attorney’s fees, finding that Hingson incurred reasonable attorney’s fees of $112,000 and that the Employers incurred reasonable attorney’s fees of $56,000. The court then awarded net attorney’s fees of $56,000 in Hingson’s favor. The trial court refused Hingson’s request to award interest on the fee award from April 25, 2007, the date the court had determined entitlement to fees. On appeal, Hingson argues that because the trial court found that the Employers had breached the employment agreement and because it entered a judgment in her favor for unpaid commissions, the court erred in awarding attorney’s fees to the Employers, which offset part of her fee award.

Pursuant to section 448.08, the trial court properly awarded fees to Hing-son. Section 448.08 provides, “The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.” Unpaid commissions are considered wages for purposes of section 448.08. See Gulf Solar, Inc. v. Westfall, 447 So.2d 368, 367 (Fla. 2d DCA 1984); D.G.D., Inc. v. Berkowitz, 605 So.2d 496, 498 (Fla. 3d DCA 1992). The policy behind section 448.08 is to provide “a means to equalize the disparate positions of employees in attempting to collect for the fruits of their labors.” Tampa Bay Publ’ns, Inc. v. Watkins, 549 So.2d 745, 747 (Fla. 2d DCA 1989). The fact that Hingson did not recover all the commissions she sought does not alter her status as prevailing party under section 448.08. Although she recovered less than the amount that she claimed, she established, and the trial court found, that the Employers breached the employment agreement and that she was entitled to damages and her statutorily authorized attorney’s fees as a result of that breach.

Regarding the trial court’s award of fees to the Employers, we conclude that the trial court erred. As noted previously, the court awarded fees to the Employers based on Lashkajani, 911 So.2d 1154, stating that for purposes of the fee provision in the employment agreement, the Employers were the prevailing party.

In Lashkajani, the circuit court awarded attorney’s fees of $117,022.42 to the wife in a dissolution action pursuant to section 61.16, Florida Statutes (2001), based on the parties’ relative financial inequality. The court also awarded attorney’s fees of $63,022.92 to the husband for his successful defense of the parties’ prenuptial agreement, based on the prevailing party provision in the agreement. The supreme court stated that it was only addressing the narrow issue of “whether a prenuptial agreement may contract away a future obligation to pay attorney’s fees and costs during the marriage by providing for prevailing party attorney’s fees in actions seeking to enforce the agreement.” 911 So.2d at 1156. The court held “that prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.” Id. at 1160. The court did not otherwise address the circuit court’s separate fee awards to the parties.

In Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), the Florida Supreme Court discussed the test that should be used to determine the prevailing party for purposes of recovering attorney’s fees in a breach of contract action. The court determined “that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Id. at 810. There, the trial court found that the plaintiffs had breached the contract and that the defendant partially prevailed on its counterclaim. The supreme court stated, “It is apparent from the record that the trial judge concluded that [the defendant] prevailed on the significant issues in the case because it did not breach the contract and, consequently, should not be required to pay attorney’s fees to the parties who did not prevail on their complaint and only partially prevailed on their defense to the counterclaim.” Id.

Here, the Employers denied all liability for any unpaid commissions and raised four affirmative defenses. The Employers did not file a counterclaim. Hingson brought her claim for unpaid commissions, albeit under alternative theories of breach of the employment agreement and unjust enrichment. The trial court specifically found that the Employers breached the employment agreement. The court also ruled in Hingson’s favor on the Employers’ affirmative defenses. Although Hingson did not recover the total amount that she sought, she prevailed as to her claim that the Employers breached the agreement and were liable to her for damages, and the Employers did not prevail in any affirmative relief. Based on this record, we conclude that the trial court erred in its application of Lashkajani to award attorney’s fees to the Employers and in determining that the Employers were the prevailing parties on the significant issues in the breach of agreement claim. Therefore, we reverse the award of attorney’s fees to the Employers.

With respect to Hingson’s claim that the trial court should have awarded prejudgment interest on her fee award from the date that the court determined that she was entitled to recover her attorney’s fees, we agree. See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929, 930-31 (Fla.1996) (concluding that “interest accrues from the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination, even though the amount of the award has not yet been determined”); Nat’l Portland Cement Co. v. Goudie, 718 So.2d 274, 275-76 (Fla. 2d DCA 1998) (determining that an employee was entitled to prejudgment interest on a fee award from “the date of the trial court’s order awarding attorney’s fees and costs”). Thus, we reverse the trial court’s decision to deny prejudgment interest to Hingson. On remand, we direct the trial court to award prejudgment interest on Hingson’s fee award from April 25, 2007.

Accordingly, we affirm the award of fees to Hingson, reverse the award of fees to the Employers, and reverse the denial of prejudgment interest to Hingson on her fee award. We remand for the trial court to enter an amended final judgment of attorney’s fees that is consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

LaROSE, J, and PALMER, WILLIAM D., Associate Judge, Concur.

      . The Employers filed a notice of cross-appeal but did not raise or argue any cross-appeal issues in their brief, thereby abandoning their cross-appeal.

      . Section 57.105(6), Florida Statutes (2002), which applies to contracts entered into on or after October 1, 1988, makes this provision reciprocal. The statute has since been renumbered and the reciprocity provision is now contained in section 57.105(7). See Ch. 2003-94, § 9 at 472, Laws of Fla.; § 57.105(7), Fla. Stat. (2003-2008).

      . In Prosperi v. Code, Inc., 626 So.2d 1360, 1363 (Fla.1993), the court held that the Mor-itz test also applied to determine who is the prevailing party for the purposes of awarding fees on a statutory claim brought under section 713.29, Florida Statutes (1989).


author: DAMOORGIAN, J. FARMER, J.,

text:
    Patrick J. CARR, Appellant, v. OLD PORT COVE PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 4D08-1449.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Rehearing Denied April 17, 2009.
    Patrick J. Carr, North Palm Beach, pro se.
    Richard Valuntas and Tatiana B. Yaques of Katzman Garfinkel Rosenbaum, LLP, and Chris A. Draper of Becker & Polia-koff, P.A., West Palm Beach, for appellee Old Port Cove Property Owners Association, Inc.
    Garnett Chisenhall, Tallahassee, for ap-pellee Department of Business and Professional Regulation.
   DAMOORGIAN, J.

We affirm the order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes (the “DBPR”) denying Patrick J. Carr’s petition for a declaratory statement.

Carr is a unit owner and member in the Harbor Village Condominium Association, one of seven condominium associations in the Old Port Cove community. Old Port Cove Property Owners Association (the “POA”) is the master condominium association in the Old Port Cove community.

Carr petitioned the DBPR for a declaratory statement on the issue of whether the POA may engage in lobbying the Florida Legislature to amend the Florida Condominium Act, directly or indirectly through an organization of condominium associations, for a fee or at no cost. Through his petition, Carr sought interpretation of chapter 718, Florida Statutes (2006), which defines the statutory powers and duties of a condominium association. The POA intervened in the proceedings before the DBPR, arguing that the First Amendment to the United States Constitution, as applied to the states through the Due Process Clause, gives it the right to engage in lobbying activity. It also argued that its governing documents permit it to lobby the Florida Legislature.

The DBPR denied Carr’s petition, stating that the petition sought interpretation of provisions of the POA’s governing documents and interpretation of a constitutional provision as applied to the facts of the case, both of which are not approved functions of the DBPR. In addition, the DBPR denied the petition because it involved a disputed issue of material fact concerning the POA’s membership in a lobbying organization.

Carr argues that the DBPR erred in denying his petition for a declaratory statement because the constitutional issue, contract interpretation issue, and factual dispute all arose from the POA’s response to his petition. He asserts that the DBPR should merely answer the questions in his petition as they relate to chapter 718, Florida Statutes (2006), ignoring all of the issues raised by the POA.

Section 120.565, Florida Statutes (2006) governs the right to seek a declaratory statement under the Administrative Procedure Act, explaining that “[a]ny substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.” § 120.565(1), Fla. Stat. (2006). The DBPR’s authority to issue declaratory statements is limited as follows:

A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules or orders over which the agency has authority. A petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner’s particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person.

Fla. Admin. Code R. 28-105.001 (2007). Thus, the purpose of a declaratory statement is to answer the petitioner’s questions about how the statutes or rules apply to his own circumstances so that he may select a proper course of action. Fla. Admin. Practice § 2.41, at 2-48 (2004).

In addition to the abovementioned limitations, a declaratory statement may not be used to decide constitutional issues. Myers v. Hawkins, 362 So.2d 926, 928 (Fla.1978) (noting that a declaratory statement is not the appropriate mechanism to interpret a constitutional provision); PPI, Inc. v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 917 So.2d 1020, 1022 (Fla. 1st DCA 2006) (stating that “section 120.565(1) does not authorize an agency to construe a constitutional amendment”).

The DBPR did not err in denying Carr’s petition for a declaratory statement. The questions Carr raised in his petition implicate the issue of whether the POA has the right, under the First Amendment to the United States Constitution, to engage in lobbying, and the DBPR is not authorized to resolve this issue. See id. Moreover, if the DBPR were to ignore this constitutional issue, as Carr would have it do, it would not be able to provide Carr and the POA with a proper interpretation of chapter 718, Florida Statutes (2006). See generally Firestone v. News-Press Publ’n Co., 538 So.2d 457, 459 (Fla.1989) (“Whenever possible, a statute should be construed so as not to conflict with the constitution.”). This would undermine the purpose of a declaratory statement — to aid the petitioner in selecting a course of action in accordance with the proper interpretation and application of the statute. See Fla. Admin. Practice § 2.41, at 2-48 (2004).

A declaratory statement by the DBPR is not the appropriate way to deal with the issues raised in Carr’s petition. Accordingly, we affirm.

Affirmed.

GROSS, C.J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

I concur in affirming the Agency’s refusal to issue a declaratory statement in this case. Petitioner himself has phrased the precise question he sought to have answered as: “The Petition asked ... whether Ch. 718 permitted the lobbying activities of Appellant’s POA.” He described this as a “simple question that DBPR was required to answer.”

The real legal query petitioner presented to the Agency was whether under § 718.111(2) and § 718.115 a Property Owners Association may engage in lobbying the Legislature to amend the condominium law through an organization of condominium associations. But as phrased, his particular query turns out to be meaningless individually but of some import to classes of general interests.

In truth the issue he raises is really whether Chapter 718 expressly forbids such lobbying activities by POAs. Chapter 718 makes clear that it is not the only possible source of a POA’s right or power to engage in such lobbying. So merely asking the Agency whether § 718.111(2) and § 718.115 permit such activity could not yield any application of Chapter 718 affecting this owner’s actual situation.

Section 120.565 limits an Agency’s declaratory statements to the agency’s position on an issue raised by an individual petitioner in a particular set of facts, and bars an agency from using a declaratory statement to adopt broad agency policy or to provide statutory or rule interpretations that apply to an entire class of persons. It is plain to me that an Agency answer to the query posed here could have resulted only in an answer having no direct effect on petitioner personally. Instead it would have amounted to mere hypothetical statutory and constitutional interpretation having no affect on him personally or the activity he challenges.

For that reason, I join in affirming the Agency’s refusal to issue a declaratory statement.

      . See § 718.111(2), Fla. Stat. (2008) ("The powers ... of the association include those set forth in this section and, except as expressly limited or restricted in this chapter, those set forth in the declaration and bylaws and chapters 607 and 617, as applicable” [e.s.]); Raines v. Palm Beach Leisureville Community Ass’n Inc., 413 So.2d 30 (Fla.1982) (condominium association derives its powers and duties from this chapter and from association’s declaration of restrictions and bylaws ).

      . Regal Kitchens Inc. v. Fla. Dep’t of Revenue, 641 So.2d 158, 161-62 (Fla. 1st DCA 1994). Petitioner makes no claim to recover a pro rata amount of POA fees spent in such activities.


author: GROSS, C.J.

text:
    NATIONAL EQUITY RECOVERY SERVICES, INC., Appellant, v. MIDFIRST BANK, Ronald McKenzie and Tracy McKenzie, Appellees.
    No. 4D08-610.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Kevin Coyle Colbert, Miami, for appellant.
    No brief filed for appellees.
   GROSS, C.J.

This case involves the competing fee claims of the assignee of a foreclosed property owner and a surplus trustee appointed by the clerk of the court. To decide the case, we must construe the provisions of sections 45.031-45.034, Florida Statutes (2007). We hold that the trial court did not abuse its discretion by dividing statutory fees between an assignee who did not comply with the time limits of section 45.083(3) and a surplus trustee properly appointed by the clerk.

Tracy and Ronald McKenzie owned a home in Broward County, Florida. Pursuant to a final judgment of foreclosure, the clerk sold the property on February 15, 2007, at a foreclosure sale for $265,000. After disbursement of the sale proceeds, there remained a surplus of about $139,000.

On March 9, 2007, Ronald signed an assignment of interest agreement with appellant National Equity Recovery Services, Inc., which was qualified as a surplus trustee in foreclosure actions under section 45.034. National Recovery intervened in the foreclosure lawsuit and obtained an order on May 29, 2007 that disbursed Ronald’s 50% of the surplus proceeds. Tracy’s portion of the surplus proceeds continued to be held by the clerk.

On August 22, 2007, pursuant to section 45.032(3)(c), the clerk appointed Home-works Recovery Services, LLC as a surplus trustee for the remaining surplus funds. On October 1, 2007, Homeworks secured an order disbursing 2% ($1,375.08) of the surplus as a statutory “cost advance.” See § 45.034, Fla. Stat. (2007).

After disbursement of the cost advance, on October 15, 2007, Tracy executed an assignment of interest agreement with National Equity. Based on this assignment, National Equity moved to intervene and secure disbursement of the remaining surplus on October 22. After a hearing on November 8, the trial court found that (1) Tracy’s assignment “was entered into in good faith with no intent to defraud” and (2) that the clerk appointed Homeworks in good faith. The court ruled that Home-works and National Equity should split the fees, with National Equity receiving 6% of the surplus funds and Homeworks 4% of the money. The court ordered the remaining 90% of the surplus to be disbursed to Tracy. National Equity challenges this order on appeal.

The primary purpose of the surplus trustee provisions of sections 45.031 to 45.034 is to provide a mechanism to locate the owner of record so that a surplus can properly be distributed. See § 45.034(6), Fla. Stat. (2007). The statute also allows for an assignment of the right to collect a surplus to an assignee that “is qualified as a surplus trustee, or could qualify as a surplus trustee, pursuant to s. 45.034.” § 45.033(3)(d), Fla. Stat. (2007). The stab ute thus allows for assistance to an unsophisticated property owner in foreclosure, while capping the owner’s exposure to fees and costs at twelve percent. See §§ 45.033(3)(e), 45.034(7), Fla. Stat. (2007).

After a foreclosure sale, the clerk must file a certificate of disbursements specifying the total disbursements and the surplus, if any. § 45.031(7)(b), Fla. Stat. (2007). The required statutory notice in the certificate states that after 60 days from the sale, only the owner of record “as of the date of the lis pendens” in the case may claim the surplus.

As Tracy did in this case, the statute allows an owner of record to assign her rights to a surplus and permits the assign-ee to secure release of the surplus from the clerk for distribution to the owner. See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment under the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.” § 45.0S3(3)(b), Fla. Stat. (2007). Here, National Recovery did not obtain or file an assignment from Tracy within the 60-day time frame. This triggered the application of section 45.033(5) which provides:

If the court finds that a voluntary transfer or assignment does not qualify under subsection (3) but that the transfer or assignment was procured in good faith and with no intent to defraud the trans-feror or assignor, the court may order the clerk to pay the claim of the transferee or assignee after payment of timely filed claims of subordinate lienholders.

(Emphasis added). Tracy’s assignment did not “qualify under subsection (3)” because it was untimely filed, so the decision to award fees to National Equity was discretionary (“the court may order the clerk to pay the claim of the ... assignee”) (emphasis added) with the circuit judge. Where an assignment complies with section 45.033(3), the decision to award fees to the assignee is not discretionary; section 45.033(4) provides that the court “shall honor” an assignment that “complies with the requirements of subsection(3), in which case the court shall order the clerk to pay” the assignee from the surplus.

The clerk properly appointed Home-works as a surplus trustee under the statute. If no claim for a surplus is filed during the 60 days after the clerk issues a certificate of disbursements, the clerk “shall appoint a surplus trustee from a list of qualified surplus trustees as authorized in s. 45.034.” § 45.032(3)(c), Fla. Stat. (2007). The clerk prepared and filed a “notice of appointment” of the surplus trustee on August 22, 2007. On October 2, 2007, Homeworks obtained an order awarding the “2 percent” cost advance allowed by section 45.034(7)(a).

Not until mid October did National Equity obtain an assignment from Tracy. Because the trial court found that the assignment was entered into in good faith, with no intent to defraud, it had the discretion to award fees to National Equity.

National Equity contests the award of 4% of the surplus to Homeworks. It argues that Homeworks did not “obtain[ ] a court order disbursing the surplus to the owner of record.” § 45.034(7)(b), Fla. Stat. (2007).

Our decision is controlled by the abuse of discretion standard applicable under section 45.033(5). The court’s order indicates that the case was heard on November 8, 2007. No transcript of the hearing was provided. There is nothing in the record to indicate that the trial court abused its discretion by its decision to divide the statutory trustee fees.

Affirmed.

FARMER, J., and MAASS, ELIZABETH, Associate Judge, concur.


author: PER CURIAM. HAZOURI, J.,

text:
    Daila CANO, Appellant, v. HYUNDAI MOTOR AMERICA, INC., and Guillermo Cano, Appellees.
    No. 4D08-2108.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.

      Aaron D. Radbil and Jeffrey Y. Spiegel of Rrohn & Moss, Ltd., Chicago, IL, for appellant.
    Danielle Robinson and William L. Bro-magen of Bromagen & Rathet, P.A., Fort Lauderdale, for appellee Hyundai Motor America, Inc.
   PER CURIAM.

This is an appeal from a final judgment awarding attorney’s fees and costs to the Appellee, Hyundai Motor America, Inc., pursuant to section 768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442.The Appellant, Daila Cano, contends that the award was improper because Hyundai’s joint settlement offer failed to satisfy section 768.79 and rule 1.442’s apportionment requirement. We agree and reverse.

Daila Cano and Guillermo Cano purchased from Hyundai a 2000 Hyundai Accent. After taking possession of the car, the Canos experienced various operating defects. Due to these defects, the Canos brought a claim against Hyundai for breach of express and implied warranty, as well as for revocation of acceptance.

Before trial, Hyundai, pursuant to section 768.79 and rule 1.442, offered the Ca-nos a joint proposal for settlement. The proposed settlement failed to specify the amount and terms attributable to each party. The Canos did not accept the proposed settlement. The case proceeded to trial, at which time Guillermo Cano was dropped as a Plaintiff. The jury found in favor of Hyundai. Hyundai subsequently filed a motion for an award of attorney’s fees pursuant to section 768.79 and rule 1.442.The trial court granted this motion. Daila responded by filing a motion for rehearing and reconsideration of the order granting Hyundai attorney’s fees and costs. Daila alleged that the proposed settlement failed to meet the requirements of section 768.79 and rule 1.442 and, as such, could not serve as a basis for the award of attorney’s fees and costs. The trial court denied the motion, stating that although the proposal failed to specify the amount and terms attributable to each plaintiff, the proposal was nevertheless valid because the Canos’ claims were indistinguishable. Thereafter, the trial court entered a final judgment awarding attorney’s fees and costs to Hyundai.

Section 768.79 and rule 1.442 are strictly construed because they are “in derogation of the common law rule that each party pay their own fees.” Brower-Eger v. Noon, 994 So.2d 1239, 1241 (Fla. 4th DCA 2008). In determining “whether an offer of settlement comports with rule 1.442 and section 768.79,” an appellate court uses the de novo standard of review “because a proposal for settlement is in the nature of a contract.” Id. at 1240-41.

Section 768.79, in governing “offers of and demands for judgment .... authorizes an award of attorney’s fees as a sanction against a party who unreasonably rejects a reasonable offer made in good faith.” Id. at 1241. Working in conjunction with section 768.79, “[r]ule 1.442 of the Florida Rules of Civil Procedure requires particularity in the contents of the proposal and strict compliance with the rule.” Id. If a proposed settlement does not comport with the strict requirements of rule 1.442,an award of attorney’s fees and costs pursuant to 768.79 is improper. See id.

One of the particularity requirements of rule 1.442 is found in subsection (c)(3), which provides that “[a] proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3). Because “[o]ur supreme court has rejected any deviation from the strict requirements of [section 768.79] and rule [1.442],” a settlement “offer [ ] made to or from two or more parties ... must specify the amount attributable to each of them.” Brower-Eger, 994 So.2d at 1241 (citing Lamb v. Matetzschk, 906 So.2d 1037, 1040-41 (Fla.2005)). Rule 1.442(c)(3) is also a “bright line rule” and, “applies in all proposal for settlement cases, without exception.” Graham v. Yeskel, 928 So.2d 371, 373 (Fla. 4th DCA 2006).

In this case, at the time the Hyundai proposal was given, there were two plaintiffs, Daila Cano and Guillermo Cano. The proposal, however, failed to specify the amount attributable to each party. Given the bright line application of rule 1.442, we reverse the award of attorney’s fees and costs against Daila because the joint proposal failed to meet rule 1.442’s strict requirement of specifying the amount attributable to each party. Although the claims of the Canos were indistinguishable, it does not change the outcome. This is because the rule requiring apportionment between multiple parties applies “without exception” in “ ‘all proposals for settlement authorized by Florida law.’ ” Graham, 928 So.2d at 373 (quoting Fla. R. Civ. P. 1.442(a)).

Reversed.

POLEN and CIKLIN, JJ., concur.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

I concur but write to echo the First District Court’s call for the Florida Supreme Court to consider whether rule 1.442 should be amended to align with the legislative intent that offers of judgments (also labeled by rule 1.442 as proposals for settlements) are meant to encourage settlements. Lamb constrains this goal when proposals for settlement are made to offer-ees whose claims are one and the same. See Heymann v. Free, 913 So.2d 11 (Fla. 1st DCA 2005).


text:
    Roger LOVETTE, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-4170.
    District Court of Appeal of Florida, First District.
    March 19, 2009.

      Roger Lovette, pro se, Appellant.
    Bill McCollum, Attorney General, Marcus O. Graper, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the lower court’s denial of his petition for writ of mandamus wherein he challenged a disciplinary report for disrespect of a prison official and the subsequent loss of gain time. We affirm the lower court’s order denying Appellant’s petition, but reverse and remand for the court to address the claims raised in his amendment to the petition for writ of mandamus.

Appellant is an inmate with the Florida Department of Corrections. On December 3, 2007, Appellant was issued a disciplinary report for disrespect to a prison official. A disciplinary hearing was held on December 4, 2007, wherein Appellant was found guilty and sanctioned to a loss of 30 days of gain time. After filing a formal grievance with the institution and a grievance appeal with the Department of Corrections, Appellant filed a petition for writ of mandamus in the trial court on or about March 25, 2008, challenging the disciplinary action. On April 3, 2008, the trial court ordered Appellee to show cause why the petition should not be granted. On May 21, 2008, Appellant filed an amendment to his petition for writ of mandamus, raising additional claims; Appellee then filed a response to the petition, but declined to address the claims raised in the amended petition. The trial court denied the petition, also without addressing Appellant’s additional claims.

Appellant argues that the trial court improperly failed to address the claims raised in his amended petition for writ of mandamus. We agree. The Florida Rules of Appellate Procedure are applicable to extraordinary writ proceedings involving an appellate remedy in the circuit court. See Newell v. Moore, 826 So.2d 1033, 1033 (Fla. 1st DCA 2002); but see Surratt v. Freeman, 924 So.2d 905 (Fla. 1st DCA 2006) (holding that an extraordinary writ proceeding that did not seek review by quasi-judicial administrative action was governed by the Florida Rules of Civil Procedure). The rules of appellate procedure include a broad amendment provision stating that “[a]t any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits.” Fla. R.App. P. 9.040(d). Thus, Appellant’s amendment to his petition was properly before the court, and the trial court improperly declined to address the claims therein.

Appellee argues that the amendment to the petition was improperly before the court, and relies on Florida Rule of Civil Procedure 1.190(a). Rule 1.190(a) provides that a party may amend a pleading once prior to the filing of any responsive pleading. Fla. R. Civ. P. 1.190(a); Boca Burger, Inc. v. Forum, 912 So.2d 561, 566-68 (Fla.2005). ■ Appellee argues that the trial court’s order to show cause constituted a responsive pleading. As noted above, however, Appellant’s petition is not governed by the rules of civil procedure. Newell, 826 So.2d at 1033. Further, even if the petition were governed by the rules of civil procedure, the trial court’s order to show cause does not constitute a responsive pleading as contemplated by such rules. See generally Fla. R. Civ. P. 1.100(a); Boca Burger, Inc., 912 So.2d at 566-68.

Accordingly, because the trial court improperly failed to address the claims raised in Appellant’s amendment to his petition for writ of mandamus, we reverse and remand for the trial court to address the additional claims.

AFFIRMED in part, REVERSED in part, and REMANDED.

WEBSTER and VAN NORTWICK, JJ., concur.