text:
    Kathryn Grace JORDAN, Appellant, v. James PAPPAS, Pappas Properties, John Banister, David Core, Silvie Lin-der, Lake Towers Association Board of Directors, Appellees.
    No. 4D12-394.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 16, 2012.
    Kathryn Grace Jordan, New York, New York, pro se.
    Kenneth N. Johnson of Rutherford Mul-hall, P.A., Palm Beach Gardens, for appel-lee John R. Banister.
   PER CURIAM.

Appellant filed a notice of appeal challenging an award of attorney’s fees pursuant to section 57.105, Florida Statutes, rendered by the court on November 29, 2011, as well as the issuance of a writ of garnishment on January 19, 2012. The appeal was filed January 30, 2012. We have previously dismissed the appeal of the award of attorney’s fees when the notice of appeal was not filed within thirty days of rendition. See Fla. R.App. P. 9.110(b); Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286,1288 (Fla. 4th DCA 2004) (failure to file notice of appeal within thirty days of rendition precludes appellate court from taking jurisdiction over the appeal). As to the issuance of the writ of garnishment, the writ is issued by the clerk. It does not constitute an order of a lower tribunal. See Fla. RApp. P. 9.020(e)-(f). Therefore, it is not an appealable order. We thus dismiss the appeal from that document.

Appellant makes additional claims regarding judicial action taken on her request for exemptions from the writ of garnishment, as well as other matters occurring after the notice of appeal was filed. These may be subject to appeal from a final judgment on garnishment. Cf. McClintock v. Chittenden Trust Co., 906 So.2d 350 (Fla. 4th DCA 2005). They are not appealable from a notice of appeal of the writ of garnishment.

WARNER, STEVENSON and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Washington LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3443.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 16, 2012.
    Washington Louis, Crawfordville, pro se. No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s successive motion to correct an illegal sentence. He claims that the court failed to re-pronounce him a habitual felony offender before sentencing him upon violation of probation, which he claims violates double jeopardy under State v. Akins, 69 So.3d 261 (Fla.2011). He made a similar claim that the trial court failed to pronounce him a habitual offender in the appeal of the denial of his prior motion to correct an illegal sentence. We found then, as we find now, that the trial court did sufficiently pronounce him a habitual offender. See Saffold v. State, 959 So.2d 1247, 1248 (Fla. 4th DCA 2007); Zink v. State, 943 So.2d 895, 895 (Fla. 4th DCA 2006); Scanes v. State, 876 So.2d 1238, 1239-40 (Fla. 4th DCA 2004), rev. denied, 892 So.2d 1014 (Fla.2004); Fitzpatrick v. State, 884 So.2d 981, 982 (Fla. 1st DCA 2004); Yates v. State, 823 So.2d 273, 274-75 (Fla. 5th DCA 2002), rev. denied, 842 So.2d 848 (Fla. 2003).

Affirmed.

MAY, C.J., WARNER and TAYLOR, JJ., concur.


author: STEVENSON, J.

text:
    Albert J. PRIETO a/k/a A.J. Prieto and Manor Development, Inc. f/k/a Monarch Development Corp. f/k/a QRU, Inc., Appellants, v. SMOOK, INC., Appellee.
    No. 4D11-1602.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 19, 2012.

      Matthew C. Sanchez and Benjamin E. Olive of Olive & Associates, P.A., Fort Lauderdale, for appellants.
    Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellee.
   STEVENSON, J.

The appellants, Albert J. Prieto and Manor Development, Inc. (“Manor”), appeal from a final judgment entered against them in the amount of $228,690. The final judgment finds Manor liable for breach of a contract it entered into with the appellee, Smook, Inc. (“Smook”). We affirm the finding as to Manor’s liability without comment. Prieto’s individual liability is based solely on a finding of fraudulent inducement for statements he made prior to execution of the contract. Because the record contains no evidence that Prieto made a false statement, the finding of liability as to Prieto is reversed.

On June 23, 2006, Manor entered into a promissory note with Smook, as the lender, for the principal sum of $175,000. Prieto was Manor’s president. The note indicates that the interest rate was 30% per year. On July 27, 2007, the appellants and Smook entered into an addendum, under which they agreed to reduce the interest rate to 18% per year, compounded monthly, to apply retroactively to the date of execution of the note. Smook subsequently submitted a letter to the appellants acknowledging that a usurious rate was “mistakenly” charged. When Manor failed to repay the loan, Smook filed its complaint which alleged, in relevant part, fraud in the inducement by Manor and Prieto. Smook alleged that Prieto made misrepresentations that he had superior knowledge of the law gained from his positions as a police officer in the economic crimes division and a licensed mortgage broker. According to the complaint, Prie-to falsely represented to Smook that 30% was a legal interest rate and that he would repay the loan.

After hearing evidence from the parties, the trial court found Prieto personally liable for fraudulent inducement based on misrepresentations he made to Smook. A trial court’s factual findings must be supported by competent, substantial evidence in the record. See Crawford Residences, LLC v. Banco Popular N. Am., 88 So.3d 1017, 1019 (Fla. 2d DCA 2012). The elements of a claim for fraudulent inducement are: “ ‘(1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the maker intended that the false statement induce another’s reliance; and (4) the other party justifiably relied on the false statement to its detriment.’ ” Shakespeare Found., Inc. v. Jackson, 61 So.3d 1194, 1199 n. 1 (Fla. 1st DCA) (quoting Rose v. ADT Sec. Sens., Inc., 989 So.2d 1244, 1247 (Fla. 1st DCA 2008)), review granted, 74 So.3d 1083 (Fla.2011).

The record contains no testimony or documentary evidence that Prieto ever represented that 30% was a legal interest rate. The only evidence of any false statement made by Prieto was his promise to pay back the loan. Generally, the false statement of material fact necessary to establish fraud must concern a past or existing fact. See Gemini Investors III, L.P. v. Nunez, 78 So.3d 94, 97 (Fla. 3d DCA 2012). However, “if the plaintiff can demonstrate that the person promising future action does so with no intention of performing or with a positive intention not to perform, such a promise may also constitute a fraudulent misrepresentation.” Mejia v. Jurich, 781 So.2d 1175,1177 (Fla. 3d DCA 2001). The evidence does not meet this standard since there is no indication that Prieto did not intend to pay back the loan at the time he promised to pay. See Biscayne Inv. Grp., Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So.2d 251, 255 (Fla. 3d DCA 2005) (“[A] mere promise not performed, ... by itself, cannot form the predicate for actionable fraud”). As the only basis of Prieto’s individual liability was based on the finding of fraudulent inducement, the final judgment, as to Prie-to, must be reversed.

Affirmed in part, reversed in part.

HAZOURI and GERBER, JJ., concur.


text:
    Kenneth Earl EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4235.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Kenneth Earl Evans, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James G. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. As to first ground for relief, see Hurt v. State, 82 So.3d 1090 (Fla. 4th DCA 2012).

POLEN, TAYLOR and CIKLIN, JJ., concur.


author: EVANDER, J. HARRIS, C.M., Senior Judge,

text:
    BROWN & BROWN, INC., Appellant, v. The SCHOOL BOARD OF HAMILTON COUNTY, Florida, Appellee.
    No. 5D11-1122.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.
    Rehearing and Rehearing En Banc Denied Oct. 12, 2012.

      Bruce A. Hanna, Robert Taylor Bowling and Katherine Hurst Miller, of Cobb Cole, Daytona Beach, for Appellant.
    Dennis R. Schutt and Jeffrey D. Devon-chik of Schutt, Schmidt & Noey, Jacksonville, and James Estes Willingham, Jr., Jasper, for Appellee.
   EVANDER, J.

Brown & Brown, Inc., (“Brown”) appeals from a final judgment in favor of the School Board of Hamilton County (“Board”) following a jury verdict finding Brown in breach of contract. Brown raises several issues on appéal, of which we find only one merits discussion. It is Brown’s contention that because Board settled with Ace American Insurance Company (“Ace”), a co-defendant against whom Board had brought an “inconsistent” claim, it was judicially estopped from maintaining its action against Brown. We affirm.

Board provided health insurance to its employees through membership in a program sponsored by North East Florida Educational Consortium (“NEFEC”). NEFEC is a regional educational consortium authorized by statute and designed for small school districts, such as that of Hamilton County, to band together and combine resources in order to provide students and employees with programs and services not otherwise available to a small school district. Board was self-insured for each of its employees to a limit of $50,000 and obtained excess medical insurance coverage, through the services of NEFEC, from Ace. Brown was the insurance agency retained to administer the insurance plan.

When a Board employee incurred medical bills $293,762.67 above the self-insured limit and coverage was denied by Ace, Board paid the employee’s due and owing bills and then sought reimbursement from Ace and/or Brown. The basis for Ace’s claim denial was that certain information regarding the employee’s pre-existing medical condition and employment status had not been disclosed to Ace during the application period. The record reflects that Brown had received the information regarding the employee in question prior to the close of the application process. When Board commenced the action below, both Ace and Brown denied liability.

As acknowledged by both parties at oral argument, the claims against Ace and Brown were mutually exclusive. Either Brown had failed to submit the necessary information to Ace during the application process thereby justifying Ace’s denial of coverage or, alternatively, Ace had wrongfully denied coverage.

During the course of the litigation, Board and Ace reached a settlement. Pursuant to the settlement agreement, Ace continued to deny any wrongdoing or otherwise concede liability but did agree to pay Board $175,000 in return for being dismissed from the lawsuit. Subsequently, Brown was permitted to amend its answer and raise the affirmative defense of judicial estoppel. Brown’s ensuing motion for summary judgment based on its judicial estoppel defense was denied and the case proceeded to trial. In its verdict, the jury found that Brown had breached its contract to administer the insurance plan and awarded Board the full amount of its claim. The trial court set off the settlement amount received by Board from Ace and entered a final judgment otherwise consistent with the jury verdict. On appeal, Brown argues that it was error for the trial court to deny its motion for summary judgment. We disagree.

The seminal case in Florida on judicial estoppel is Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001). There, the court defined judicial estoppel as an equitable doctrine “used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings” where doing so would make “a mockery of justice.” Id. at 1066. One of the elements necessary to establish judicial estoppel is that the opposing party must have “successfully maintained” an inconsistent position in the prior proceeding. Id. at 1066-67; see also JSZ Fin. Co., Inc. v. Whipple, 939 So.2d 1189, 1191 (Fla. 4th DCA 2006) (“Here, it appears that both parties have made statements in their briefs in prior appeals inconsistent with the ones they are now espousing. Nevertheless, neither position was successfully maintained, because this court never reached the merits of the restitution issue in either prior proceeding. Thus, judicial estoppel does not apply.”) Even assuming that Board’s claim against Ace is viewed as a “separate proceeding” from its claim against Brown, the “successful maintenance” element was not proved in this case.

To find that a party to be estopped has “successfully maintained” a prior claim or position requires that the first court adopt the claim or position either as a preliminary matter or as part of a final disposition. Grau v. Provident Life and Accident Ins. Co., 899 So.2d 396, 401 (Fla. 4th DCA 2005). Indeed, the United States Supreme Court has observed that “[a]b-sent success in a prior proceeding, a party’s later inconsistent position introduces no ‘risk of inconsistent court determinations,’ and thus poses little threat to judicial integrity” for purposes of applying the doctrine of judicial estoppel. New Hampshire v. Maine, 582 U.S. 742, 750-51, 121 S.Ct. 1808,149 L.Ed.2d 968 (2001) (citation omitted).

"Where, as in the instant case, the prior claim was resolved by settlement, we believe the alleged prior inconsistent position cannot be viewed as having been successfully asserted. See Zeeuw v. BFI Waste Sys. of N.Am., Inc., 997 So.2d 1218 (Fla. 2d DCA 2008); see also Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993) (“The majority of circuits recognizing the [judicial estoppel] doctrine hold that it is inapplicable unless the inconsistent statement was actually adopted by the court in the earlier litigation; only in that situation, according to those circuits, is there a risk of inconsistent results and a threat to the integrity of the judicial process.” (quoting Morris v. California, 966 F.2d 448, 452-53 (9th Cir.1991))); Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980) (“A settlement neither requires nor implies any judicial endorsement of either party’s claims or theories, and thus a settlement does not provide the prior success necessary for judicial estoppel.”). Cf. Lambert v. Nationwide Mut. Fire Ins. Co., 456 So.2d 517 (Fla. 1st DCA 1984) (judicial estoppel precluded plaintiff from recovering under underinsured motorist provisions of Nationwide insurance policy where plaintiff had taken inconsistent position in entering settlement agreement with three alleged tortfeasors, including one of Nationwide’s insureds, and where settlement amount exceeded the uninsured motorist coverage limits). To find that a plaintiffs settlement with one defendant, for less than the full amount of damages sought, could constitute “successful maintenance” of a prior action would also be contrary to the public policy of encouraging settlements. See De Witt v. Miami Transit Co., 95 So.2d 898, 901 (Fla.1957) (public policy favors amicable settlement of disputes and avoidance of litigation).

We would also observe that it is extremely difficult to see how Board’s actions made a “mockery of justice.” Board suffered significant monetary damage because of the denial of insurance coverage for one of its employees. The parties with the most knowledge of the events surrounding the denial of coverage, Ace and Brown, “pointed the finger” at the other. Board, as it was permitted to do, filed an amended complaint asserting inconsistent claims. Board then settled its disputed claim with Ace for less than the full amount of its losses, but continued its action against Brown. Ultimately, Brown was found by a jury to be fully and solely responsible for the damages incurred by Board. No double recovery or windfall was received by Board because the trial court offset the settlement amount against the jury verdict. Indeed, it can be argued that the biggest beneficiary of the prior settlement was Brown because, absent such settlement, it likely would have been held liable for the entire amount of Board’s claim.

AFFIRMED.

PARKER, G.S., Associate Judge, concurs.

HARRIS, C.M., Senior Judge, dissents, with opinion.

HARRIS, C.M., Senior Judge,

dissenting.

This case proves that one can eat his cake and have it too.

The facts are clear and generally undisputed. The School Board of Hamilton County (Board) was a participant in the North East Florida Educational Consortium (NEFEC), an agency set up by the legislature to acquire certain material and services (including insurance) for its participating members at a reduced cost. NEFEC contracted with Brown & Brown (Brown) to obtain health insurance for the employees of its participating members including Board. Brown assumed the responsibility of providing this insurance through Ace American Insurance Company (Ace).

Board had an employee who had medical expenses of $293,762.67 in excess of Board’s self-insured limit. When this claim was presented to Ace, it refused to pay. Board sued Ace on the policy. Later, when Board learned that Ace’s refusal to pay was based on its allegation that Brown had failed to provide Ace with certain material information thus voiding any coverage for the employee, it joined Brown in the suit on the theory that Brown was at fault for not obtaining the insurance it agreed to provide. It is evident that at this point, Board has an action against either Ace OR Brown but not both. Board cannot have insurance and not have insurance at the same time on the same employee. And the one liable, Ace, if there is insurance or Brown, if there is not, is totally liable. There is no shared responsibility for the loss. For example, assume the case had gone to the jury against both parties and the jury had returned a verdict against Ace in the amount of $175,000 because it had insurance coverage and $125,000 against Brown because Brown had failed to obtain the insurance coverage. Most would consider this an inconsistent verdict requiring reversal. That is essentially what happened in this case.

It would have been better had Board stayed its action against Brown and proceeded to judgment against Ace. Board would either have won it all against Ace in which case it would have had its claim paid or Board would have received nothing on its policy thus establishing its damages against Brown. Instead, as was its right, Board elected to settle its insurance claim with Ace. Board released its entire insurance claim and discharged its action against Ace for $175,000. Since Board had an insurance claim OR a non-insurance claim, but not both, it would appear that having settled its insurance claim it would not have a non-insurance claim to fall back on. Apparently not so. Board relies on the old “controverted settlement” argument, which holds that because Ace did not specifically concede liability, the validity of the policy was never judicially determined so that whether there was an enforceable policy has not been judicially determined. Therefore it is argued that Board has not successfully maintained its position that it had insurance. This is so even though the insurance claim has been dismissed and much money has changed hands.

I agree that Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001), sets the requirements for judicial estoppel. The requirement in dispute in this case is whether Board took an inconsistent position in phase II of this trial (the trial against Brown) after successfully maintaining its previous position and whether this inconsistency “makes a mockery of justice.” The majority suggests that a settlement in which the defendant does not admit liability can never constitute “successfully maintaining” a position. Blumberg does not make such a holding and, in a well-reasoned opinion, the First District in Lambert v. Nationwide Mutual Fire Insurance Co., 456 So.2d 517 (Fla. 1st DCA 1984) found judicial estoppel in a settlement case.

It should not matter whether Ace conceded liability in agreeing to settle the insurance claim. Indeed, if an insurance company admits liability but refuses to pay the policy amount, insurance regulators would be all over it. Whether Ace took an inconsistent position is immaterial and there is no question but that Board did. It claimed throughout its litigation with Ace that it had insurance coverage. Without taking this position, Board would never have received the settlement of $175,000. Board went so far to establish this position that it offered sworn testimony (an affidavit of a former Brown employee that the necessary information had been delivered to Ace) which the court accepted and denied Ace’s summary judgment. In phase II of the case, Board rejected the testimony it previously presented to the court.

Even if Ace did not formally admit liability and even if Board did not get full satisfaction, it cannot be denied that the insurance claim was actually, factually, and logically settled. Board got what it agreed to accept for its insurance claim and the claim cannot be asserted again. Board’s claim has been successfully resolved.

The claim against Brown went to jury and the jury returned a verdict against Brown for the total amount of the claim. However, the court immediately gave Brown credit for the insurance settlement proceeds. Combining the proceeds of the insurance claim with the judgment of no insurance seems but further evidence that Brown did its job in acquiring the insurance policy and yet is held liable for failing to do so. If pleading mutually exclusive remedies in two phases of a single proceeding and prevailing on both does not make a “mockery of justice” and “play fast and loose with the courts,” it is difficult to see what might.

A finding of judicial estoppel is based on inconsistent positions and not necessarily on bad faith. Certainly Board did not act in bad faith in taking inconsistent positions in order to acquire as much money as possible. That can be also said, I believe, of Blumberg who dismissed one case in order to avoid an unacceptable judgment so he could proceed in another case. We should not be over concerned with bad faith and instead look to see how prevailing on inconsistent positions reflects on the image of the court.

I respectfully dissent.

      . § 228.0857, Fla. Stat. (2001).

      . Board also initially sought to recover from Fringe Benefits, another plan administrator. However, Fringe Benefits was later dismissed from the suit and neither party to this appeal claims that Fringe Benefits was liable for losses suffered by Board.


author: MARSTILLER, J.

text:
    Bernice WILLIAMS, Appellant, v. STATE of Florida DEPARTMENT OF CORRECTIONS/DIVISION OF RISK MANAGEMENT, Appellees.
    No. 1D11-4792.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2012.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Colleen Cleary Ortiz of Colleen Cleary Ortiz, P.A., Pensacola, for Appellees.
   MARSTILLER, J.

At issue in this workers’ compensation appeal is whether Claimant may recover attorney’s fees from the Employer/Carrier (“E/C”) under section 440.34(3)(b), Florida Statutes (2008), when the E/C made a $2,000 advance compensation payment pursuant to section 440.20(12)(c), Florida Statutes (2008), 20 days after receiving Claimant’s petition for benefits (“PFB”), but failed to begin paying installments of the requested permanent total disability (“PTD”) benefits within 80 days of receiving the PFB. A successful claimant is entitled to an award of attorney’s fees if payment of a claim occurs more than 30 days after the E/C receives the PFB. The Judge of Compensation Claims (“JCC”) ruled that the $2,000 advance compensation the E/C paid Claimant constituted PTD benefits. Thus, the benefits were timely paid, and Claimant is not entitled to attorney’s fees. We conclude, ,to the contrary, that payment of an advance under section 440.20(12) does not equate to initiating benefit payments, even though the E/C is entitled to deduct the advanced amount from future installments. Because the E/C did not begin Claimant’s PTD benefit payments until 41 days after receiving her PFB, the JCC erred in denying Claimant’s petition for attorney’s fees.

The relevant facts are not in dispute. Claimant sustained a compensable accident on December 31, 2008. She filed a PFB on January 25, 2011, seeking payment of PTD benefits, as well as payment of an attorney’s fee. The E/C received the PFB on January 28, 2011. On February 8, 2011, Claimant filed an unopposed motion for a $2,000 advance as authorized by section 440.20(12), Florida Statutes (2008), which the JCC approved by order the following day. On February 16, 2011, the E/C notified Claimant’s attorney that the claim for PTD benefits was approved. The E/C issued the advance check the next day, February 17, 2011, 20 days after receiving Claimant’s PFB. Finally, on March 10, 2011, 41 days after receiving the PFB, the E/C issued a check paying Claimant PTD benefits for the period June 4, 2010, through March 10, 2011, less the $2,000 advance, and instituted bi-weekly payments thereafter.

Claimant subsequently filed a petition seeking an award of attorney’s fees under section 440.34, asserting as grounds that the E/C initially denied her PFB but ultimately initiated benefit payments, including back benefits, penalties, and interest, due to the efforts of Claimant’s attorney. The JCC denied Claimant’s petition, concluding that an advance paid pursuant to section 440.20(12) is “a discharge of liability from the date thereof until such advance is recouped by offset against subsequent benefits,” and that the $2,000 advance at issue was paid within 30 days of the E/C’s receipt of Claimant’s PFB.

Because the issue on appeal is solely one of statutory interpretation, appellate review is de novo. See Airey v. Wal-Mart, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009). We begin our analysis with the provision under which Claimant asserts entitlement to attorney’s fees. Under section 440.34(3)(b), Florida Statutes (2008), a successful claimant may recover a reasonable attorney’s fee from the E/C “[i]n any case in which the employer or carrier files a response to petition denying benefits with the Office of the Judges of Compensation Claims and the injured person has employed an attorney in the successful prosecution of the petition[.]” The E/C is deemed to have denied a PFB by failing to accept or deny it within 14 days of receipt. See McDonald’s Rest # 7160 v. Montes, 736 So.2d 768, 769 (Fla. 1st DCA 1999); see also § 440.192(8), Fla. Stat. (2008). “Successful prosecution is achieving ‘acceptance and payment of the claim.’ ” Franco v. SCI at the Palmer Club at Prestancia, 989 So.2d 709, 710 (Fla. 1st DCA 2008) (quoting Mitchell v. Sunshine Cos., 850 So.2d 632, 633 (Fla. 1st DCA 2003)). A successful claimant is not enti-tied to attorney’s fees, however, “until 80 days after the date the carrier or employer, if self-insured, receives the petition.” § 440.84(3), Fla. Stat. (2008). Claimant here asserts that she is entitled to fees because the E/C failed to accept or deny her PFB within 14 days, and failed to initiate benefit payments until 41 days after receiving her PFB. We agree.

The JCC’s conclusion that the E/C made timely payment on Claimant’s PFB by making the $2,000 advance compensation payment conflicts with decisions from this Court regarding the nature of such advances. Section 440.20(12)(c), Florida Statutes (2008), permits claimants to request and obtain advances of up to $2,000 under specified circumstances. Although an E/C is entitled to subsequent reimbursement of advanced amounts from “any unpaid installment or installments of compensation due,” see section 440.20(13), Florida Statutes (2008), the advance payment occurs without regard to the E/C’s liability to pay a claimant compensation and/or benefits available under chapter 440. “The statute does not require proof that the injured worker will actually receive any benefits in the future ... and does not limit advances to cases in which compensability is established.” Lopez v. Allied Aerofoam, 48 So.3d 888, 889 (Fla. 1st DCA 2010); see also Workers of Fla. v. Williams, 743 So.2d 609, 609-10 (Fla. 1st DCA 1999) (rejecting E/C’s argument that JCC erred in ordering payment of $2,000 advance “because there was no evidence of legal entitlement to future benefits from which the E/C could recoup the advance,” and distinguishing cases involving advances of more than $2,000). Thus, even though the amount advanced is termed “compensation,” it is not a payment of “compensation due” a claimant.

As the JCC correctly noted, timeliness of payment of benefits is determined not by the date on which the E/C notifies a claimant’s attorney that the claim is accepted and benefits will be paid, but by “the date checks of payment are placed in the mail[.]” See Amerimark, Inc. v. Hutchinson, 882 So.2d 1114, 1115 (Fla. 1st DCA 2004). Here, the first check sent to Claimant that specifically paid her PTD benefits was the check sent on March 10, 2011, 41 days from the date the E/C received the PFB. Because more than 30 days elapsed between the time Claimant submitted her PFB and received payment of the claim, the requirements of section 440.34(3) are met, and Claimant is entitled to recover a reasonable attorney’s fee from the E/C. See Franco, 989 So.2d at 709. Accordingly, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

VAN NORTWICK and ROBERTS, JJ., concur.


author: GERBER, J.

text:
    Heather MINTY, Appellant/Petitioner, v. MEISTER FINANCIALGROUP, INC. and Law Offices Of Claudine T. Smikle, P.L., Appellees/Respondents.
    No. 4D11-2528.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Heather Minty, Miami, pro se.
    Paula Levy and Michael Rothman of Rothman & Tobin, P.A., Coral Springs, for appellee Meister Financial Group, Inc.
   GERBER, J.

The borrower appeals the circuit court’s non-final orders: (1) denying her motion to dissolve a temporary injunction entered in the lender’s favor; (2) severing some of her counterclaims; and (3) dismissing with leave to amend some of her other counterclaims. We reverse the court’s denial of the motion to dissolve the temporary injunction and remand for an evidentiary hearing on that motion. We treat the appeal of the severance order as a petition for writ of certiorari and grant the petition. We lack jurisdiction over the appeal of the dismissal order and thus dismiss that part of the appeal.

According to the underlying complaint’s allegations, this case arose when the borrower was sued by a non-party bank foreclosing upon a mortgage in a different case. To avoid the foreclosure, the borrower entered into a loan refinance agreement with the lender in this ease. Under the agreement, the lender transferred an amount of money to the borrower’s attorney to pay off the foreclosing bank’s mortgage, and the borrower executed a promissory note and mortgage in the lender’s favor.

Four years after the lender transferred the payoff amount to the borrower’s attorney, the boirower fell behind on her note payments to the lender. The lender then discovered that, allegedly at the borrower’s direction, the borrower’s attorney never transferred the payoff amount to the foreclosing bank, which obtained a final foreclosure judgment against the borrower as a result.

The lender then sued the borrower and her attorney. The lender’s complaint sought a mandatory injunction requiring the borrower and her attorney to return the payoff amount. After filing the complaint, the lender filed a motion for a temporary injunction. The motion requested the circuit court to order the borrower’s attorney to transfer the payoff amount to the lender’s attorney while the action was pending. Following a non-evidentiary hearing on the motion, the court entered an order granting the motion. However, in the order, the court directed the borrower’s attorney to deposit the payoff amount into the court registry instead of transferring it to the lender’s attorney.

The borrower’s attorney complied with the order.

The borrower filed her answer, affirmative defenses, and counterclaims. The counterclaims sought damages under various theories for the lender’s alleged misconduct regarding the loan agreement. The borrower also filed a motion to dissolve the temporary injunction. The motion argued that the court’s order directing her attorney to deposit the loan amount into the court registry was entered without satisfying the requirements for entry of a temporary injunction. The borrower requested the court, pursuant to Florida Rule of Civil Procedure 1.610(d) (2011), to hold a hearing within five days after she filed the motion. See Fla. R. Civ. P. 1.610(d) (2011) (“If a party moves to dissolve or modify [a temporary injunction], the motion shall be heard within 5 days after the movant applies for a hearing on the motion.”).

The circuit court did not hold a hearing on the borrower’s motion to dissolve. Instead, the court entered a second order seeking to clarify its first order. In the second order, the court stated that it did not grant the lender’s motion for a temporary injunction, but merely “ordered that the monies be placed in the Court Registry up and until a full evidentiary/trial is completed to determine entitlement.”

Meanwhile, the lender filed a motion to sever some of the borrower’s counterclaims and to dismiss some of the borrower’s other counterclaims. In the motion to sever, the lender argued that the equitable nature of its claim for injunctive relief, compared to the legal nature of some of the borrower’s counterclaims for damages, justified severing those counterclaims. In the motion to dismiss, the lender argued that some of the borrower’s other counterclaims failed to state a cause of action.

After a hearing, the circuit court granted the lender’s motion to sever. The court also granted the lender’s motion to dismiss with leave to amend the counterclaims to which the motion was directed.

This appeal followed. The borrower argues that the circuit court erred in: (1) denying her motion to dissolve; (2) severing some of her counterclaims; and (3) dismissing with leave to amend some of her other counterclaims. We address each argument in turn.

We agree with the borrower that the circuit court erred in denying her motion to dissolve. The court’s order directing the borrower and her attorney to deposit the loan amount into the court registry was, in effect, an order granting a temporary injunction and is thus reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(B) (2011) as an interlocutory order. See CMR Distribs., Inc. v. Resolution Trust Corp., 593 So.2d 593, 594 (Fla. 3d DCA 1992) (“An order requiring the deposit of funds into the registry of the court prior to judgment is, in effect, an order granting an injunction and is thus reviewable under [Florida Rule of Appellate Procedure] 9.130(a)(3)(B) ... as an interlocutory order.”) (citations omitted). We employ a mixed standard of review. See Burtoff v. Tauber, 85 So.3d 1182, 1183 (Fla. 4th DCA 2012) (“The standard of review of a court’s ruling on a motion to dissolve an injunction is abuse of discretion if the order is based on factual matters, and de novo if based on legal matters.”) (citation omitted).

Here, the court’s order denying the borrower’s motion to dissolve was in error for three reasons.

First, the temporary injunction did not state the reasons for its entry. See Fla. R. Civ. P. 1.610(c) (2011) (“Every injunction shall specify the reasons for entry....”); Burtoff, 85 So.3d at 1184 (“[Rjeversal is required because the ... order does not contain the findings required by Florida Rule of Civil Procedure 1.610(c).”) (footnote omitted). The reasons required for entry of a temporary injunction are: “(1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest.” Id. at 1183 (citation and quotations omitted).

Second, the court entered the temporary injunction without requiring the lender to post a bond. See Fla. R. Civ. P. 1.610(b) (2011) (“No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.”); Denowitz v. Info. Television Network, Inc., 717 So.2d 1106, 1106 (Fla. 4th DCA 1998) (“We agree with appellants that it was reversible error to enter a temporary injunction without requiring a bond.”) (citations omitted).

Third, the circuit court did not hold an evidentiary hearing on the borrower’s motion to dissolve. See Burtoff, 85 So.3d at 1184 (“If the party [against whom the injunction was entered] opts to move to dissolve the injunction, the court must hold an evidentiary hearing where the plaintiff must go forward with evidence sufficient to sustain the ... grant of temporary injunc-tive relief. Further, the opposing party must have an opportunity to demonstrate that the allegations relied on by the court are not true.”) (citations and quotations omitted).

We remand with instructions that the circuit court hold an evidentiary hearing on the motion to dissolve, at which the lender shall have the burden to present evidence sufficient to grant injunctive relief, The court must give the borrower an opportunity to dispute the allegations. If the court determines that an injunction is appropriate, it must make the required findings. See id. (“On remand, if an evi-dentiary hearing was not already held, [the appellee] has the burden to present evidence sufficient to grant injunctive relief. The court must give [the appellant] an opportunity to dispute the allegations. If the court determines that an injunction is appropriate, it must make the required findings.”).

The circuit court shall set the evidentia-ry hearing to occur within five days of the issuance of our mandate. See Fla. R. Civ. P. 1.610(d) (2011) (“If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.”); Tsiperfal v. Ohio Sav. Sec., Inc., 756 So.2d 1087, 1088 (Fla. 4th DCA 2000) (granting petition for writ of mandamus to compel the trial court to set a prompt hearing on the petitioner’s motion to dissolve a temporary injunction, where the trial court did not hear the motion on its merits within five days of the petitioner’s request for a hearing pursuant to rule 1.610(d)).

On the appeal of the severance order, we treat the appeal as a petition for writ of certiorari. See Fla. R. App. P. 9.040(c) (2011) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.”). “Certiorari is an appropriate remedy for orders severing or bifurcating claims which involve interrelated factual issues because severance risks inconsistent outcomes.” Kavouras v. Mario City Rest. Corp., 88 So.3d 213, 214 (Fla. 3d DCA 2011). “[A] party seeking review through a petition for writ of certiorari must demonstrate: (1) a material injury in the proceedings that cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2) a departure from the essential requirements of the law.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012) (citation, quotations, and brackets omitted).

Here, the borrower has demonstrated that the severance order departs from the essential requirements of the law because the parties’ claims are inextricably interwoven. See Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022, 1024 (Fla. 1st DCA 1998) (“Although the matter of separation of the issues to be tried rests in the trial court’s discretion ... [i]t is improper to sever a counterclaim and affirmative defenses from the plaintiffs claim, when the facts underlying the claims of the respective parties are inextricably interwoven.”) (citations and quotations omitted). The parties’ claims are inextricably interwoven because the borrower’s affirmative defenses and counterclaims allege the lender committed misconduct regarding the loan agreement. Accordingly, if we allow the borrower’s affirmative defenses and counterclaims to remain severed, then a final judgment in the lender’s favor on its claim will moot the borrower’s affirmative defenses and counterclaim, leaving the borrower no adequate remedy on appeal. Thus, we grant the petition and quash the severance order. See Norris v. Paps, 615 So.2d 735, 737 (Fla. 2d DCA 1993) (granting petition for writ of certiorari where the circuit court severed the defendant’s compulsory counterclaim from the plaintiffs equitable claim and the claims raised common issues). The circuit court shall try all claims together, with a jury to decide any legal claims and the court to decide any equitable claims.

On the appeal of the dismissal order, we lack jurisdiction and dismiss that part of the appeal. The dismissal order was with leave to amend the affected counterclaims. See Mossel v. Mossel, 424 So.2d 979, 980 (Fla. 4th DCA 1983) (dismissing appeal of circuit court’s dismissal of counterclaim with leave to amend because “[a]n order dismissing a complaint with leave to amend is a non-appealable non-final order.”) (citation omitted).

Appeal reversed in part and dismissed in part; petition for writ of certiorari granted; remanded with instructions.

Taylor and Ciklin, JJ., concur.

      . The foregoing principle does not apply to sections 83.232(1) and 83.60(2), Florida Statutes (2011), which require tenants to deposit rent payments into the court registry while an action for possession is pending. Although landlords often seek orders to compel such payments, those statutes are self-executing. See Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So.3d 811, 813 (Fla. 3d DCA 2010) (where the tenant failed to deposit the rent in the court registry, the trial court was statutorily required to enter an immediate default and writ of possession, regardless of the tenant’s reason for failing to make the deposit). Also inapplicable is Florida Rule of Civil Procedure 1.600 (2011), which allows a party to deposit a sum of money into the court registry in an action in which the relief sought is a judgment for the sum of money or the disposition of the sum of money. See Morroni v. Fisher, 647 So.2d 127, 129 (Fla. 2d DCA 1994) ("[Rule 1.600] contemplates only a voluntary deposit of funds. It is permissive in nature and does not allow a trial court to enter an order compelling an unwilling party to deposit a disputed sum into the court regis-tiy.") (emphasis added; citation omitted).

      . We do not reach the borrower's argument that the lender's action is actually an action at law for damages, for which equitable relief, such as a temporary injunction requiring a deposit into the court registry, would be unavailable. See CMR, 593 So.2d at 594 ("It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court ... or indeed for any restraint upon the use of a defendant’s unrestricted assets prior to the entry of judgment.”) (citations and quotations omitted): St. Lawrence Co., N.V. v. Alkow Realty, Inc., 453 So.2d 514, 515 (Fla. 4th DCA 1984) ("An action at law is not transformed to one in equity simply by requesting an injunction.”) (citation omitted). We leave that argument for the circuit court to review in the first instance at the evidentia-ry hearing or at any further hearing as necessary.

      . The record indicates that the circuit judge who entered the orders on appeal recused from the case, for reasons unrelated to the orders, just before the borrower filed the notice of appeal. This court directs its instructions on remand to the circuit judge to whom the case has been re-assigned.


text:
    Wilbert E. HOLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3401.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Rehearing Denied Oct. 19, 2012.
    Wilbert E. Hollins, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Wilbert E. Hollins (Defendant) appeals an order summarily denying his rule 3.850 motion, claiming newly discovered evidence in the form of a proposed witness who was willing to testify that the victim told him that she had lied at his trial and Defendant did not commit the offenses for which he was convicted, but that another individual actually shot her. We affirm, but not for the same reasons provided by the trial court.

While the trial court suggested that the motion might be untimely, it did not actually make a finding of untimeliness. However, the record indicated that in a prior rule 3.850 motion under oath, filed in a different lower tribunal case involving the same victim, which Defendant filed in July 2008, he stated he had learned of the information “a few months ago as of this writing.” Construing “a few” to mean three or more, but more than two, Defendant had to have learned of the information not later than some time in April 2008. The instant motion, turned over to prison authorities for mailing in May 2010, therefore was untimely. Fla. R.Crim. P. 3.850(b)(1). We affirm for that reason.

Affirmed.

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


author: CLARK, J. MAKAR, J.,

text:
    SHERIFF OF PALM BEACH COUNTY, Appellant, v. PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Chartered by the Florida Police Benevolent Association, Inc., Appellee.
    No. 1D11-6198.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.
    Mark E. Levitt, Michael Mattimore and Peter L. Sampo of Allen, Norton & Blue, P.A., Tallahassee, for Appellant.
    G. “Hal” Johnson of the Florida PBA Inc., Tallahassee and Larry Fagan of the Palm Beach County PBA, Inc., West Palm Beach, for Appellee.
   CLARK, J.

The Sheriffs Office of Palm Beach County appeals the final order of the Public Employees Relations Commission which determined that the Sheriffs Office violated section 447.501(1), Florida Statutes by refusing to process a former deputy’s grievance to arbitration. The PERC ruled that the “Last Chance Contract” entered into by the Sheriffs Office and the former deputy prior to the termination action did not constitute a waiver of all the former deputy’s avenues to contest the termination and in this case, did not waive his right to grieve his termination under the grievance and arbitration clause of the collective bargaining agreement. The Commission ordered the Sheriffs Office to cease certain actions and to process the former employee’s grievance to arbitration.

Finding no grounds to reverse under sections 120.68(7) or 447.504(2), Florida Statutes, the Commission’s order is AFFIRMED.

BENTON, C.J., concurs; MAKAR, J., concurs with opinion.

MAKAR, J.,

concurring.

Last chance agreements (LCAs), sometimes known as return to work agreements, are written contracts between employers and wayward employees designed to provide the latter with one more chance at workplace redemption or suffer the consequences, typically termination. See generally Peter A. Bamberger & Linda H. Donahue, Employee Discharge and Reinstatement: Moral Hazards and the Mixed Consequences of Last Chance Agreements, 53 Indus. & Lab. Rel. Rev. 3 (1999). They are enforceable if correctly and precisely drafted; those that are not can become Hydra-like to their drafters by cutting off remedial paths only to find that others remain or have sprouted. See Drew Sar-rett, Last Chance Agreements For Federal Employees: Hidden Costs and Unseen Problems, 18 Fed. Circuit B.J. 157, 163 (2008); see also Martinez v. S. Fla. Water Mgmt. Dist., 705 So.2d 611, 612 (Fla. 4th DCA 1997); Confessor Tony Ramirez v. Amalgamated Transit Union, 33 F.P.E.R. 209 (2007). As one commentator recently noted, a last chance agreement “is a simple concept in theory” but experience shows that leeway exists “for one more chance after the last chance.” James J. Carty, One More Chance After The Last Chance: When Labor Arbitrators Fail To Enforce Last-Chance Agreements, 36 Oída. City U. L. Rev. 633, 634 (2011).

In this case, the Palm Beach Sheriffs Office entered the LCA with Sergeant Brett Raban, a member of the Palm Beach County Police Benevolent Association, which represents his interests in this appeal. By entering the LCA, the Sheriffs Office bargained away its right to terminate Raban for his initial violations of rules and regulations but received in return the ability to terminate Raban for any future violations without Raban contesting them; at least that was the Sheriffs Office’s intent.

The problem in this case is that the language of the LCA did not conclusively eliminate all of Raban’s remedial options. A small window of ambiguity exists through which Raban plausibly asserts that he bargained away all his remedial rights, except the right to have an arbitrator decide whether the LCA should be applied to allow his termination due to his subsequent violation. This situation is much like that in United Steel Workers of America v. Century Aluminum of Kentucky, 157 Fed.Appx. 869, 874 (6th Cir. 2005), where the court held that the last chance agreement at issue failed to clearly and unambiguously waive the issue of guilt; instead, it only waived the manner in which discipline could be imposed. The court noted that the employer could have drafted the agreement to exclude the issue of “factual guilt” from arbitration, but did not. Id. Likewise here, nothing prevented the Sheriffs Office from clearly and unambiguously excluding all avenues of relief or review including the arbitrability of factual guilt for the new violation alleged against Raban. Notably, both the hearing officer and the Public Employees Relations Commission (“PERC”) found that the LCA at issue was enforceable generally; and, per its terms, Raban could not appeal to a hearing review board. But, as PERC’s final order noted, the LCA did not exclude all remedial possibilities, stating “[h]ad the Sheriff included language similar to that found in numbered paragraph one in the concluding paragraphs of the Agreement which excluded the option of ‘challenge in any forum,’ our analysis would be different.” Because the LCA did not, I concur that affirmance is proper.


text:
    Richard W. SHAWFRANK, Former Husband, Appellant, v. Sally C. SHAWFRANK, Former Wife, Appellee.
    No. 1D11-5248.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Rehearing Denied Oct. 4, 2012.

      William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellant.
    Barry S. Sinoff, Jacksonville, Michael J. Korn and Mary C. Coxe of Korn & Zeh-mer, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The former husband appeals the trial court’s order awarding attorney’s fees and costs to his former wife arising from post-dissolution proceedings. The trial court assessed attorney’s fees of $68,028.56 against the former husband, determining that the former husband’s supplemental petition for modification of alimony was without merit and was brought or maintained primarily to harass. We reverse the trial court’s order assessing attorney’s fees against the former husband.

This case presents a long and tortured history. The parties were divorced in November 1999, and pursuant to the final judgment of dissolution, the former wife was awarded permanent periodic alimony in the amount of $8,850 per month. At the time, the former husband was employed by a family-owned business that manufactured components for the production of cathode-ray television tubes. In December 1999, a month after the final judgment of dissolution was entered, the former husband filed a petition seeking a downward modification of alimony. Three months later, the former husband filed a motion for temporary suspension of alimony. The former husband also appealed the final judgment of dissolution and the permanent alimony award to the former wife. This court affirmed the trial court’s judgment in Shawfrank v. Shawfrank, 779 So.2d 687 (Fla. 1st DCA 2001) (“Shawfrank I ”).

Later in 2001, after Shawfrank I was decided, the former husband filed a second supplemental petition for modification of alimony, citing a reduction in his income as a substantial, material change in circumstances not contemplated at the time of the final judgment of dissolution. The second petition resulted in the trial court ordering that the former husband’s alimony obligation be reduced by over 50%. That order was reversed by this court based on a determination that the record supported only a 19% reduction in the former husband’s alimony obligation. See Carr v. Shawfrank, 894 So.2d 272, 273 (Fla. 1st DCA 2004) (“Shawfrank II”). On remand, the trial court entered an order on September 26, 2005, reducing the former husband’s alimony obligation in accordance with the decision in Shawfrank II.

Less than a year later, in August 2006, the former husband filed another supplemental petition for modification of alimony, citing a substantial change in circumstances due to an unanticipated and significant reduction in his income. The former husband asserted that his business had lost all of its principal customers as a result of changes in technology, and the lack of demand for cathode-ray tube televisions. The former husband stated that the family business had ceased operations and that he was unable to obtain comparable employment. The former husband also asserted that distributions of principal he received from two trusts established by the former husband’s parents should not be considered income available for the payment of alimony. The trial court denied the requested modification of alimony, determining that despite the former husband’s loss of income from the family business, the trust income available to the former husband, as well as income derived from the sale of real property, supported the former husband’s ability to continue meeting his alimony obligation. By separate order, which is the subject of the instant appeal, the trial court awarded the former wife attorney’s fees and costs based on its determination that the former husband’s petition was without merit and brought primarily to harass. We conclude that the trial court erred in awarding fees to the former wife.

In Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the Florida Supreme Court instructed that “[t]he purpose of [section 61.16, Florida Statutes] is to ensure that both parties will have a similar ability to obtain competent legal counsel.... [T]o ensure that both parties have similar access to competent legal counsel, the trial court must look to each spouse’s need for suit money versus each spouse’s respective ability to pay.” Id. at 699 (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). Thus, the primary considerations for the trial court to consider when awarding attorney’s fees under section 61.16 are need and ability to pay. Here, however, need and ability to pay were not the primary bases for the trial court’s award. Because the parties stipulated below that neither party would submit testimony or argument related to their monthly expenses, the trial court made no findings regarding the former wife’s need for an award of fees. However, the financial affidavits submitted by the parties to the trial court reflect that both parties have substantial liquid assets and no liabilities. Thus, the record evidence does not establish that the former wife required an award of fees to “have a similar ability to obtain competent legal counsel.” Id.

However, pursuant to Rosen, in addition to considering the relative financial positions of the parties, the trial court may also consider “other relevant circumstances” in determining whether to award attorney’s fees and costs:

Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that, a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained, primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Had the legislature intended to limit consideration to the financial resources of the parties, the legislature easily could have said so.

Id. at 700 (emphasis added).

Here, the trial court based the award of attorney’s fees and costs to the former wife based on the scope and history of the litigation between the parties and its determination that the litigation brought by the former husband was without merit and brought primarily to harass. The trial court concluded that the litigation between the parties “has been virtually continuous, as a result of Former Husband’s continued efforts to eliminate his alimony.” The trial court further concluded that the former husband’s petition was wholly without merit and the litigation was brought or maintained primarily to harass.

We disagree. Based on a careful review of the record, we conclude that the trial court erred in awarding attorney’s fees to the former wife based on purported litigation misconduct by the former husband and the merits of the litigation. Despite the long history of litigation between the parties, and despite our decision affirming the trial court’s discretionary ruling denying the current petition, we cannot conclude that the legal positions asserted by the former husband in support of the current petition for modification were wholly without merit. The record supports that the former husband stopped receiving income from the family business when the business ceased operations. The record also reflects that the former husband was required to take distributions of principal from the family trust accounts to continue to meet his alimony obligation to the former wife. To conclude that the former husband’s legal position with regard to the substantial change of circumstances in his financial position was wholly without merit is contrary to the record.

Because the record evidence of the relative financial positions of the parties does not support an award of attorney’s fees to the former wife under Rosen, and because the record does not demonstrate that the former husband brought the current litigation primarily to harass or that the former husband’s legal positions wholly lacked merit, we reverse the trial court’s award of attorney’s fees to the former wife.

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

      . In a separate case in this court, # 1D11-1429, the former husband is also appealing the trial court’s denial of his motion to modify or terminate alimony. In an opinion being released concurrent with this opinion, this court is affirming the trial court’s denial of the motion to modify. Shawfrank v. Shaw-frank, No. 1D11-1429, 95 So.3d 220, 2012 WL 3642446 (Fla. 1st DCA Aug. 27, 2012).


author: EVANDER, J.

text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. A.W. BAYLOR VERSAPANEL-PLASTERING, INC., et al., Appellees.
    No. 5D11-3523.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Rehearing Denied Oct. 12, 2012.

      MaryEllen Koberg, of Kinsey, Vincent, Pyle, LC, Daytona Beach and Herman L. Fussell, of Foltz Martin, LLC, Atlanta, Georgia, Pro Hac Vice, for Appellant.
    Daniel J. Webster of Daniel J. Webster, P.A., Daytona Beach, for Appellee.
   EVANDER, J.

Continental Casualty Company (“Continental”) appeals from an order awarding attorney’s fees to A.W. Baylor Versapanel-Plastering, Inc. (“Baylor”) in a post-arbitration proceeding. The arbitration panel had declined to award either party attorney’s fees under section 713.29, Florida Statutes (2007), after finding that neither was the “prevailing party.” That statute provides for an award of attorney’s fees to the prevailing party in an action to enforce a claim on a bond under chapter 713.

Notwithstanding the arbitrator’s decision, the trial court found that Baylor was entitled to recover attorney’s fees pursuant to sections 627.756 and 627.428, Florida Statutes (2007). These statutes generally permit, inter alia, an award of attorney’s fees to a subcontractor who obtains a judgment against a surety insurer under a payment or performance bond for pecuniary loss resulting from a contractor’s contractual breach. We reverse because we conclude that section 713.29 is the controlling statute in this case.

Continental, a surety for the general contractor, Aviation Constructors, Inc. (“ACI”), furnished a section 713.23 payment bond for a large construction project on which Baylor was a subcontractor. After various disputes arose between Baylor and ACI, Baylor filed a complaint in the circuit court against both ACI and Continental. Based on an arbitration provision in the ACI-Baylor contract, the parties were ordered to arbitration. Prior to the arbitration hearing, the parties entered a stipulation requesting that the panel determine entitlement to attorney’s fees under section 713.29 as well as the quantum, if any, of an award:

1. The parties agree that the Arbitrators are requested to determine the assessment of attorneys’ fees, arbitrators’ fees, and the AAA fees and costs in connection with this arbitration proceeding under application of FI. St. Section 713.29.
2. The parties agree that the Arbitrators are to determine both entitlement to an award under Section 713.29 in terms of “prevailing party” as well as the quantum, if any, of an award.

After an evidentiary proceeding, the arbitration panel determined that Baylor was entitled to recover $139,498.00 from ACI and Continental on certain change order claims and an additional $213,762.29 against ACI for delay damages. The damages awarded Baylor were for far less than the amount of its claim. Prior to the arbitration panel addressing the attorneys’ fees issue, Baylor submitted a memorandum of law seeking attorney’s fees not only under sections 713.29, but also pursuant to sections 627.756 and 627.428.

After declining to award attorney’s fees under section 713.29, the arbitrators concluded that they were not authorized to address Baylor’s claim for fees under sections 627.756 and 627.428:

The Panel, having reviewed the sub-mittals of the parties on the issue of who may be the prevailing party for purposes of awarding attorneys’ fees and costs, does hereby decide and determine that there is no prevailing party in this action. This determination is limited to a determination of prevailing party under the provisions of Sec. 713.29, Fla. Stat., it being the view of the Panel that the agreement of the parties limits the jurisdiction of the Panel to claims for attorneys’ fees under Sec. 713.29. Therefore, no determination has been made as to who may be the prevailing party or whether there is any right to attorneys’ fees under Secs. 627.428 and 627.756, Fla. Stat.

Baylor then filed a motion with the circuit court to recover attorney’s fees under sections 627.756 and 627.428. In its motion, Baylor did not challenge the arbitration panel’s denial of its claim for fees under section 713.29, but rather argued that sections 627.756 and 627.428 provided an “alternative basis” to award fees. The trial court erred in accepting this argument because these statutes apply conflicting standards in determining entitlement to fees with section 713.29 being the controlling statute.

Section 713.29 is directed exclusively to actions brought to enforce a lien or to enforce a claim against a bond brought under chapter 713. It specifically provides that the determination of entitlement to attorney’s fees is to be based on the “prevailing party” standard:

Attorney’s fees.—

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

§ 713.29, Fla. Stat. Under this statute, the party who has prevailed on the “significant issues” is the party entitled to an attorney’s fee award. Trytek v. Gale Indus., Inc., 3 So.3d 1194 (Fla.2009). When there is a determination that neither side prevailed, the tribunal may decline to award fees even where there is a judgment entered in favor of one party. Id. at 1203.

By contrast, sections 627.756 and 627.428 apply generally to actions brought against an insurance company or a bonding company:

§ 627.756

(1) Section 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of the state to indemnify against pecuniary loss by breach of a building or construction contract. Owners, subcontractors, laborers, and mate-rialmen shall be deemed to be insureds or beneficiaries for the purposes of this section.

§ 627.428

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Under these sections, the claimant is not required to be the prevailing party on the significant issues in order to recover attorney’s fees, but need only obtain a judgment — no matter how minimal the amount of damages awarded. See Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994) (holding that “prevailing on significant issues” test does not apply to award of attorney’s fees under sections 627.756 and 627.428).

The conflict between these statutes is apparent when one considers the hypothetical situation where a claimant obtains a judgment against a bonding company in an action brought on a section 713.23 bond, but the bonding company is found to be the prevailing party on the significant issues. Under this scenario, the claimant, not the bonding company, would be entitled to attorney’s fees if sections 627.756 and 627.428 governed, while the opposite outcome would occur if section 713.29 controlled. Thus, the primary issue that must be resolved in the instant case is which statutory provision controls.

Statutory interpretation is a question of law subject to de novo review. Murray v. Mariner Health, 994 So.2d 1051,1056 (Fla.2008). A well-established rule of statutory construction is that where two statutory provisions are in conflict, the specific provision controls. Id. at 1061 (“A rule of statutory construction which is relevant ... is that where two statutory provisions are in conflict, the specific provision controls the general provision”)

Here it is undisputed that Baylor’s action against Continental was a claim to enforce a section 713.23 bond. Given that section 713.29 applies solely to actions brought to enforce a lien or to enforce a claim against a bond under chapter 713, we conclude that it is the controlling statute in this case. (By contrast, sections 627.756 and 627.428 would appear to control if the payment bond was a common law bond).

Although not necessary to our disposition in this case, it further appears that prior to the arbitration proceedings, both parties properly recognized that section 713.29 was the controlling statutory provision; hence, the stipulation that the arbitration panel would determine the issue of attorney’s fees “under application of FI. St. Section 713.29.”

The trial court should have denied Baylor’s motion for attorney’s fees.

REVERSED and REMANDED.

LEVIN, S.J., Associate Judge, and HARRIS, C.M., Senior Judge, concur.

      . The statute sets forth the language that must be contained in a payment bond in order for the bond to qualify as a section 713.23 payment bond. Here, the parties stipulated that the bond in question was a 713.23 payment bond.

      . Prior to a 1992 statutory amendment, section 713.29 applied only to actions "brought to enforce a lien” under chapter 713. As a result, sections 627.756 and 627.428 were found to govern attorney’s fees awards in actions to enforce a chapter 713 bond. See, e.g., Julian E. Johnson & Sons, Inc. v. Balboa Ins. Co., 408 So.2d 1044, 1046 (Fla.1982) ("Clearly, if the legislature had intended to include the award of attorney’s fees for the recovery on construction bonds in section 713.29, it could have done so_”). In 1992, section 713.29 was amended to extend its application to actions brought "to enforce a claim against a bond under this part.”


text:
    Samuel BELLAMY, Petitioner, v. GOLDEN FLAKE SNACK FOODS, INC. and The Charter Oak Fire Insurance Company and The Travelers Companies, Inc., Respondents.
    No. 1D12-1775.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2012.

      Daniel E. Smith, II, and Salim A. Punja-ni of the Coye Law Firm, Orlando, for Petitioner.
    Vanessa M. Herbert of the Law Offices of Jack D. Evans, Jacksonville, for Respondents.
   PER CURIAM.

Petitioner/Claimant seeks certiorari review of an order of the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s (E/C’s) motion to compel his attendance at an independent medical examination (IME). Because we conclude that the order departs from the essential requirements of law and Claimant would suffer harm not remediable on appeal should the exam go forward, we grant the petition and quash the March 8, 2012, order.

Claimant suffered a crush injury to the right hand on May 4, 2010, for which the E/C accepted responsibility and provided medical treatment. Claimant filed a petition for benefits in December 2010. In March 2011, Claimant filed a notice with the JCC that the issues raised in the petition were resolved, and the JCC entered an order on March 7, 2011, dismissing the pending petition and administratively closing the file. No subsequent petition was filed. Throughout the time relevant to this matter, Claimant remained under the care of physicians authorized by the E/C to provide treatment.

On February 16, 2012, the E/C filed a motion to compel Claimant’s attendance at an IME. In support of the motion, the E/C alleged there existed

disputes with regard to what it contends to be an excessive permanent impairment rating not substantiated by the Florida Permanent Impairment Guides, and work restrictions rendered by the authorized treating physician Dr. Zoel-ler. Also disputed by the [E/C] is the extent of disability arising from the claimant’s hand injury and the medical treatment and diagnoses including RSD/ CRPS and resulting treatment plans as they related to the claimant’s work injury by the current treating physicians Dr. Zoeller and Dr. Pyles.

The E/C never alleged it had denied any medical benefits requested by Claimant. The JCC granted the motion, finding “[h]ere, the E/C has expressed more than ‘speculative concerns over Claimant’s progress.’ The E/C has expressed disagreement with the diagnosis and medical treatment of the treating physicians. When considering the foregoing case law, the E/C has established a dispute over medical benefits entitling it to an IME.”

Certiorari review is properly invoked when a JCC orders an IME without statutory authority. See Zabik v. Palm Beach County Sch. Dist., 911 So.2d 858, 859 (Fla. 1st DCA 2005) (“Certiorari review lies if the JCC orders a psychiatric IME without statutory authority.”). Material harm may be established, when considering a compelled physical examination, simply by the occurrence of the exam as once the exam takes place, it cannot be undone on appeal. See Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d at 1244, 1245 (Fla. 1st DCA 1999) (“In the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.”).

This court addressed a situation similar to the one presented here in Lehoullier v. Gevity/Fire Equipment Services, 43 So.3d 834 (Fla. 1st DCA 2010). In Lehoullier, we noted that IMEs are appropriate when a “dispute” arises “ ‘concerning overutilization, medical benefits, compensability,’ or disability.” Id. at 836. See also § 440.13(5)(a), Fla. Stat. (2009). A “dispute” was read “to mean a legal dispute cognizable under the Florida Worker’s [sic] Compensation Law.” Lehoullier, 43 So.3d at 836. The Lehoullier court concluded

there was no “dispute” between the parties because Claimant had not requested any benefit or medical treatment that the E/C declined to provide. Contrary to the E/C’s argument, it did not demonstrate a dispute by expressing concern over Claimant’s progress with the physician it authorized to treat Claimant’s injuries. To create a dispute concerning medical benefits, an E/C is required to deny a claimant’s request for medical benefits. Simply expressing unilateral speculative concerns over a claimant’s progress with an authorized physician is insufficient. See Zabik, 911 So.2d at 859 (holding E/C’s speculative but unrealized concern over claimant’s psychiatric condition insufficient to constitute dispute warranting IME).

Id. (emphasis added).

Here, the relevant inquiry was whether the E/C denied a medical benefit requested by Claimant. It was the E/C’s burden to present evidence of such a denial, and it failed to do so. Thus, the JCC here, as did the JCC in Lehoullier, erred in compelling Claimant’s attendance at an IME. Accordingly, we GRANT the petition and QUASH the order granting the E/C’s motion to compel.

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Vondall Lamar BRACEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-143.
    District Court of Appeal of Florida, Fifth District.
    Sept. 11, 2012.
    Vondale L. Bracey, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

ORFINGER, C.J., SAWAYA and COHEN, JJ., concur.


text:
    Gary HYDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3918.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Rehearing Denied Oct. 19, 2012.
    Gary Hyde, Live Oak, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s untimely and successive postconviction motion which attempted to challenge his 1996 plea. Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011). Appellant, a habitual felony offender, has other convictions subjecting him to deportation, and he has not shown that the plea in this case alone subjects him to deportation. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008); Buton v. State, 995 So.2d 1130, 1132 (Fla. 4th DCA 2008).

Further, contrary to appellant’s sworn allegation that he was not advised, appellant signed a plea form which advised of the possibility of deportation, and he acknowledged on the record during the plea colloquy that he had read and understood the form. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010); Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999).

Appellant has initiated numerous untimely and meritless postconviction challenges and appeals. He appears to have brought false information before the court. He is cautioned that abuse of postconviction relief procedures may result in sanctions. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2012); § 944.28(2)(a), Fla. Stat. (2012); Fla. R.Crim. P. 3.850(m). The bringing of false information before a court may result in a perjury prosecution or other sanctions. Oquendo v. State, 2 So.3d 1001, 1007 (Fla. 4th DCA 2008).

Affirmed.

WARNER, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    E.G., the Father, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D12-1270.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Christopher A. Hicks of The Law Office of Christopher A. Hicks, Fort Pierce, for appellant.
    Jeffrey Dana Gillen, Statewide Appeals Director, Children’s Legal Services, West Palm Beach, for appellee Department of Children and Families.
    Kelley Ruth Schaeffer, Appellate Counsel, Tavares, for Guardian Ad Litem Program.
   PER CURIAM.

The father appeals the trial court’s termination of his parental rights. The trial court’s twenty-seven-page final order thoroughly recapitulates the facts of this case. The child, who is HIV-positive, was sheltered when her viral load increased drastically because her medications were not being administered properly. The child requires an intensive regimen of HIV an-tiretroviral medications, some of which must be administered twice daily and carefully measured each time. Failure to administer these medications properly and precisely will be life-threatening to the child.

The Department of Children and Families (“DCF”) prepared a case plan with the goal of reunification. The father was required to attend the child’s medical appointments and prove that he was proficient in measuring and administering the child’s medications. DCF attempted to assist the father by providing information about the medications and even went so far as to offer transportation to the various medical appointments. The trial court concluded that the father did not comply with the case plan, which was not due to any failure of reasonable efforts by the father; instead, the court concluded that the father materially breached the case plan.

We hold that the father did not preserve for appellate review any argument about the sufficiency of the ease plan DCF prepared for him because the father raises the issue for the first time on appeal. Further, we find that even if the father had preserved this issue for appeal, the case plan provided sufficiently specific instructions to the father, who testified at the final hearing that he understood what it required of him. Additionally, competent, substantial evidence supported the trial court’s conclusion that the child would be at risk of harm by the father’s continued involvement: the father missed the majority of the child’s medical appointments; he testified that he could not name the medications the child was currently taking nor could he name the child’s physicians; and he had not demonstrated an ability to measure and administer the child’s vital and demanding regimen of medications. Therefore, we affirm.

Affirmed.

WARNER, HAZOURI and CIKLIN, JJ., concur.


author: THOMAS, J.

text:
    Ricky HENDERSON, Candidate for School Board District One, Appellant, v. Tina JOHNSON, Candidate for School Board District One, Appellee.
    No. 1D11-4726.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2012.

      Clifford L. Davis, Monticello, for Appellant.
    Robert A. Harper, Jr., Harper Law Firm, P.A., Tallahassee, for Appellee.
   THOMAS, J.

We have for review the trial court’s order dismissing with prejudice Appellant’s “Amended Complaint to Contest Election” filed pursuant to section 102.168, Florida Statutes. The complaint concerned the November 2, 2010 election for the District 1 Madison County School Board seat. For the reasons discussed below, we agree with Appellant that the trial court erred.

Background

On November 12, 2010, Appellant filed his original “Complaint to Contest Election,” naming as defendants the Madison County Election Supervisor, the members of the county canvassing board, and Appel-lee, the prevailing candidate for the contested school board seat. Appellant did not effect service of process on any of the named defendants for this complaint.

The complaint alleged that Appellant ran against Appellee for a seat on the county school board and lost by just 28 votes. Appellant also alleged that there was a “gross disparity” between the percentages of early voting (which favored Appellant 58% to 42%) and the votes at the precincts (favoring Appellant 53% to 47%) when compared to absentee ballots (which favored Appellee 72% to 28%). The complaint further alleged that the percentage of absentee ballots cast in the district in question was significantly higher than in the other four districts.

Appellant’s complaint also included allegations of irregularities concerning absentee ballots. Appellant alleged that the “[sjtatistical evidence alone establishes a number of illegal votes were counted in the absentee ballots,” as “substantiated by voters who submitted absentee ballots and tried to vote on election day” as well as the election supervisor’s refusal to comply with Appellant’s record request. But for these allegedly illegal votes, Appellant contended, he would have won the election.

About four months later, on March 9, 2011, Appellant filed an “Amended Complaint to Contest Election.” Appellant effected service of process on Appellee for this version of the complaint on March 10, 2011 (117 days after the original complaint was filed). The amended complaint is essentially the same as the original, but contains additional purported anecdotal evidence of alleged absentee ballot irregularities.

In addition to Appellee’s answer to this complaint denying any election-related improprieties, Appellee filed a motion to dismiss Appellant’s amended complaint. As grounds for dismissal, Appellee asserted that the complaint was not timely because it was filed more than ten days after the election. Appellee also contended dismissal was warranted because the amended complaint was neither timely filed nor served, was filed without leave of court, and did not contain any “relation back” language. The motion also asserted Appellant’s amended complaint was deficient because it did not allege any wrong-doing by Appellee and was “otherwise facially deficient because it cites no grounds recognized under section 102.608 that can be considered a valid contest.” At the hearing held to address the motion to dismiss, Appellee argued the amended complaint should be dismissed because it was not signed by Appellant, pointing to the fact that the “signature” was in fact printed and, thus, not properly sworn, as required by section 102.168. Appellee also argued the complaint failed to assert that the election’s outcome would have been different but for the alleged misconduct.

The trial court subsequently issued its order, which has two operative paragraphs. The first states Appellee’s motion to dismiss is granted. The second states, “Based on the nature of the cause of action ... and the legal basis for this Court’s ruling, [Appellee’s] motion to dismiss ... is GRANTED with prejudice.” The order gives no explanation of the “legal basis” underlying the court’s decision.

Analysis

It is unclear from the dismissal order why the trial court dismissed Appellant’s complaint with prejudice. Thus, if there was any permissible reason for doing so, the trial court should be affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding “the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.... Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”). Here, however, the trial court’s order cannot be affirmed under any theory which would support the order dismissing the complaint.

Contrary to Appellee’s contention, the original complaint was timely filed. Section 102.168(2), Florida Statutes, provides that election contest complaints must be filed within “10 days after midnight of the date the last board responsible for certifying the results officially certifies the results of the election being contested.” Appellant filed his complaint on November 12, 2010, or ten days after the election; presumably, final certification occurred no earlier than election day on November 2, 2010. Further, it was not necessary for Appellant to obtain leave of court to file his amended complaint. Florida Rule of Civil Procedure 1.190(a) provides: “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.” Here, it is clear that the amended complaint was filed before any response to the original was filed.

Likewise, the absence of any “relation back” language to which Appellee referred in her motion is likewise not grounds for dismissal because no such language is necessary. Florida Rule of Civil Procedure 1.190(c) plainly states: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” (emphasis added). The rule says nothing about the inclusion of “relation back language” for the rule to take effect. Here, it is clear on the face of the amended complaint that it “arose out of the conduct, transaction, or occurrence set forth ... in the original pleading,” i.e., the election at issue. As noted, the only significant difference between the original and amended complaints is that the latter added additional alleged anecdotal evidence of election misconduct.

Additionally, Appellant’s failure to effect service of process of the original complaint was not fatal under the circumstances here. Appellant filed and served his amended complaint within the 120-day window for effecting service of the original complaint. Pursuant to Florida Rule of Civil Procedure 1.070(j), a trial court has three options when a plaintiff fails to timely effect service: “(1) direct that service be effected within a specified time; (2) dismiss the action without prejudice; or (3) drop that defendant as a party.” Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001) (emphasis added). “[W]hen the statute of limitations has run and service has been perfected as of the date of the hearing on the motion to dismiss, a trial court abuses its discretion by not extending the time for service and dismissing the complaint.” Miranda v. Young, 19 So.3d 1100,1102 (Fla. 2d DCA 2009).

Applying the foregoing, dismissal with prejudice for failing to timely obtain service was not one of the options available to the trial court, particularly considering the statute of limitations for filing an election contest complaint had long since expired as of the time the court issued its order. For this same reason, it would have been an abuse of discretion to dismiss the complaint as to Appellee only because, by statute, she was a necessary party to the action. At most, the trial court could have ordered Appellant to obtain service of process of the original complaint on Appel-lee within a time certain. Under the circumstances here, this would have not only been an unnecessary waste of time and money, it would have frustrated the purpose of rule 1.070(j), which “is to speed the progress of cases on the civil docket, but not to give defendants a ‘free’ dismissal with prejudice.” Chaffin, 793 So.2d at 104 (quoting Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part)).

The remaining potential procedural basis for the trial court’s dismissal concerns Appellee’s contention at the hearing that Appellant did not “sign” the amended complaint. It appears clear from the colloquy between the court and Appellee’s counsel that it is unlikely the court based its decision on the fact that Appellant printed his name on the signature line instead of writing it in cursive. As the court noted, it is clear from the signature block that an official in the clerk’s office attested to Appellant’s “signature” and affixed the court seal on the document. Given this fact, dismissal with prejudice based on this issue would have been error.

This leaves the issue of the sufficiency of the complaint when restricting review to the four corners of the document. See Varnes v. Dawkins, 624 So.2d 349, 350 (Fla. 1st DCA 1993) (holding “[i]n determining the sufficiency of the complaint, the trial court may not look beyond the four corners of the complaint, consider any affirmative defenses raised by the defendant, nor consider any evidence likely to be produced by either side.”). “Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.” Sarkis v. Pafford Oil Co., Inc., 697 So.2d 524, 526 (Fla. 1st DCA 1997).

We first reject Appellee’s assertion that the complaint was deficient for failing to allege any wrongdoing on her part, as it is not necessary to do so. Section 102.168(4), Florida Statutes, specifically states that the successful candidate is a necessary party to an action brought under section 102.168. Appellant also named the only other indispensible party, i.e., the canvassing board, though he also named the election supervisor as well.

Appellee also contended that the amended complaint was “facially deficient” because “it cites no grounds under” the statute “that can be considered a valid contest.” It is clear, however, that the complaint, when read in its entirety, alleges wrongdoing with respect to, absentee ballots. The complaint addresses a large disparity between the number of votes Appellant received in early voting and on election day as compared to the number of absentee ballots, and juxtaposed those figures with the votes for Appellee which showed a lower number of votes in early voting and on election day compared to a significantly higher number of absentee ballots. Furthermore, much of the purported anecdotal evidence recited in the complaint addresses alleged irregularities related to absentee ballots.

“Significantly, all material factual allegations of the complaint must be taken as true.” Vames, 624 So.2d at 350. Here, taking Appellant’s allegations as true, they “are sufficient to clearly inform the defendant of the particular proceeding or cause for which the nomination or election .is contested.” § 102.168(5), Fla. Stat. Specifically, they are sufficient to allege at least two of the grounds for contesting an election: 1) “Misconduct, fraud, or corruption on the part of any election official ... sufficient to change or place in doubt the result of the election”; and 2) “Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” § 102.168(3)(a), (e), Fla. Stat.

Conclusion

Based on the foregoing, we find no basis for dismissing Appellants complaint with prejudice. Consequently, the trial courts order is REVERSED and this matter is REMANDED for proceedings consistent with this opinion.

PADOVANO and CLARK, JJ., concur.

      . One of the other defendants also filed an answer and motion to dismiss, but the trial court’s order, and thus this opinion, addresses only Appellee’s motion.