author: DAMOORGIAN, J. LEVINE, J.,

text:
    FETTERMAN AND ASSOCIATES, P.A., Appellant, v. Robert FRIEDRICH and Heather Friedrich, his wife, Appellees.
    No. 4D09-3661.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.
    Rehearing Denied Oct. 14, 2011.

      Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Kara Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellant.
    Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., West Palm Beach, and Scott B. Smith of Smith, Ivey & Fron-rath, P.L., Palm Beach Gardens, for appel-lees.
   DAMOORGIAN, J.

Fetterman & Associates, P.A. (“Fetter-man”) appeals the trial court’s order denying its motions for directed verdict and new trial. Fetterman was the defendant in a negligence suit in which Robert Fried-rich sued Fetterman for failing to warn him of a defective chair located in Fetter-man’s office. We reverse the trial court’s order denying Fetterman’s motion for directed verdict and remand for entry of judgment in favor of Fetterman.

At trial, the evidence established the following facts. While at Fetterman’s law office, the chair in which Friedrich was sitting collapsed. Friedrich sustained injuries in the fall. Friedrich sued Fetter-man for negligence, alleging that he was a business invitee when the chair collapsed and that Fetterman had negligently failed to warn Friedrich of the chair’s dangerous condition. The chair was purchased new and was used without incident from its date of purchase in 1998 through 2003 when the accident occurred.

During the trial, both parties produced engineering experts who agreed that the collapse resulted from a defective joint on the right side of the chair. The defect occurred during the manufacturing process and the joint had been further weakened by a poorly performed repair. The repair could have occurred anytime between the date of manufacture to the day of the accident, although the exact date could not be determined. Friedrich’s expert stated that he inspected his own chairs approximately every six months, and that a “hands-on inspection” of the chair before the accident should have revealed the weak joint. The expert explained that a hands-on inspection entailed flexing the joint by pulling on the chair leg. He then conceded that it was possible that a flex-test may not have revealed the weak joint since it was not possible to determine when the joint began to weaken to the point that the legs would have begun to flex under the test. Finally, a visual inspection would not have revealed the defect.

Fetterman moved for a directed verdict at the close of Friedrich’s case, at the close of all evidence, and again at the close of the charge conference. All motions were denied. The jury found that Fetterman was partially liable for Friedrich’s damages. Post-trial, Fetterman moved to set aside the verdict and enter judgment in accordance with the previous motions to direct verdict, or, in the alternative, to grant a new trial on the grounds that the verdict was against the manifest weight of the evidence. The court denied these motions as well.

On appeal, Fetterman argues, among other things, that assuming due care required inspection of the chairs at six-month intervals, Fetterman’s failure to perform these inspections did not cause the accident since Friedrich’s expert could not opine that conducting the flex-test at any point during the six months preceding the accident would have revealed that the chair was defective. Accordingly, there was a lack of proof establishing á causal connection between Fetterman’s failure to periodically conduct flex-testing on its office chairs and the accident.

The standard for reviewing a trial court’s ruling on a motion for directed verdict is de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). “[A]n appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Id. (citing Amerifirst Fed. Sav. & Loan Ass’n v. Dutch Realty, Inc., 475 So.2d 970, 971 (Fla. 4th DCA 1985)).

A business owner has a duty to determine that its premises are reasonably safe for invitees, and is required to use reasonable care to learn of any dangerous conditions on its premises. Cain v. Brown, 569 So.2d 771, 772 (Fla. 4th DCA 1990). As we noted in Cain, the duty imposed upon a business to discover otherwise unknown dangers was best articulated by Judge Cowart’s scholarly analysis in Winn-Dixie Stores, Inc. v. Marcotte, 553 So.2d 213 (Fla. 5th DCA 1989):

[T]he legal liability of a premises possessor for injuries resulting from dangers not actually known by the possessor pri- or to the injury is based on a breach of the legal duty to use reasonable care to look for, and to discover, reasonably foreseeable but not actually known dangerous conditions.... This duty of a premises possessor to look for unknown dangerous conditions not created by the possessor or his agents is breached by the possessor not making a reasonably diligent search or inspection at reasonable intervals- of time.... The trial of any such premises liability action involves ... evidence as to the defendant’s actual actions relating to the extent and frequency of inspections actually made.... [I]f the injured invitee fails to prove ... that the dangerous condition existed a length of time prior to the injury in excess of a reasonable period between inspections, the possessor should not be held liable for injury caused by that dangerous condition. In such a case, the length of time the dangerous condition existed prior to the injury is an indispensable factor in determining liability.

Id. at 215.

The issue in this case is whether Fried-rich presented competent evidence establishing that Fetterman had a duty to periodically inspect its office furniture for hidden defects and that such periodic inspections would have placed Fetterman on notice of the defect. In other words, did the evidence “prove that the dangerous condition existed a length of time pri- or to the injury in excess of a reasonable period between inspections.” Id.

The evidence established that Fetter-man had no prior knowledge that the chair was defective or that the chair had been repaired. Friedrich’s engineering expert admitted that he did not know when the repair work had been performed, and that it could have occurred anytime between the date of manufacture to the day of the accident. Next, Friedrich’s expert opined that he inspected his office chairs every six months and that periodic inspections of office chairs was reasonable. The expert offered no other time frame for inspections. Finally, this expert testified that a flex-test would have revealed the defect in the chair, but provided no time frame concerning how long before the accident such testing would have been effective. On cross-examination, Friedrich’s expert acknowledged that flex-testing may not have revealed the defect until just before the collapse.

Even if the jury concluded that due care required Fetterman to inspect its chairs at regular six-month intervals, the jury had no basis from which to conclude that Fetterman would have discovered the defect in the chair without receiving evidence as to how long before the accident flex-testing would have revealed the defect. In this case, the lack of evidence establishing when the flex-test would have revealed the defect in the chair prior to the injury was an indispensable factor in determining liability. See id.

Accordingly, Fetterman’s motion for directed verdict should have been granted. We reverse and remand for entry of judgment in favor of Fetterman.

Reversed and Remanded.

MAY, C.J., concurs.

LEVINE, J., dissents with opinion.

LEVINE, J.,

dissenting.

I respectfully dissent from the majority opinion and would affirm the trial court’s denial of the directed verdict for Fetter-man. The “appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). Further, the trial court’s denial of a motion for new trial is reviewed by the appellate court for abuse of discretion. Parisi v. Miranda, 15 So.3d 816, 817 (Fla. 4th DCA 2009). I believe that viewing the evidence submitted by Friedrich, there is a reasonable “view of the evidence” that could sustain the trial court’s denial of Fetterman’s motion for directed verdict.

When reviewing negligence actions “courts follow the more likely than not standard of causation” which requires the plaintiff to “introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.” Tarleton v. Amstein & Lehr, 719 So.2d 325, 328-29 (Fla. 4th DCA 1998) (quoting Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984)).

Friedrich was a business invitee of Fet-terman. As such, Fetterman owed to Friedrich a duty “(1) to use reasonable care to maintain [its] premises in a reasonably safe condition and (2) to warn the invitee of any concealed dangers that the owner knows or should know about, which are unknown to the invitee and cannot be discovered by the invitee through due care.” Morales v. Weil, 44 So.3d 173, 178 (Fla. 4th DCA 2010); see also Yuniter v. A & A Edgewater of Fla., Inc., 707 So.2d 763, 764 (Fla. 2d DCA 1998). In Yuniter, a hotel guest attempted to stand on a chair when the leg broke, causing injury to the guest. In reversing the order granting summary judgment in favor of the hotel, the appellate court found that “[generally questions concerning whether a proper inspection, if made, would have revealed alleged defects are considered genuine triable issues.” Id. at 764 (citation omitted). The court determined that “the first duty” of the hotel was to “maintain the premises in a reasonably safe condition” and to “conduct inspections appropriate for the premises involved.” Id. The court concluded that summary judgment was “inappropriate because whether the motel’s inspection of the chair was reasonable was for a jury to determine.” Id.

In Fontana v. Wilson World Maingate Condominium, 717 So.2d 199 (Fla. 5th DCA 1998), a guest in a hotel was injured while sitting in a chair that collapsed. The trial court directed a verdict for the hotel, finding that there was no evidence that the hotel had notice as to the condition of the chair that collapsed. The Fifth District reversed, determining that the “defect was hidden” and that the hotel “had no procedure in place for the inspection or maintenance of its furnishing.” Id. at 200. The court concluded that the “jury could have found that the owner’s ostrich-like approach to the safety of its premises did not meet its obligations to its invitees.” Id.

As the Florida Supreme Court recently articulated in Cox v. St. Josephs Hospital, 71 So.3d 795, 2011 WL 2637421 (Fla.2011):

[W]hile a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury, it is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation. If the plaintiff has presented evidence that could support a finding that the defendant more likely than not caused the injury, a directed verdict is improper.

It is well established that “[i]f there is any evidence to support a possible verdict for the non-moving party, a directed verdict is improper.” McNichol v. S. Fla. Trotting Ctr., Inc., 44 So.3d 253, 255 (Fla. 4th DCA 2010); Brown v. Kaufman, 792 So.2d 502, 503 (Fla. 4th DCA 2001).

In the present case, there was no evidence that Fetterman had inspected the chair in the years preceding its collapse. Friedrich presented an expert witness who testified that a “hands-on inspection of the chair before the accident should have found” the “weak joint” in the rear, right side of the chair. On cross-examination, that same expert stated that he inspects the chairs in his own office. When asked “how often” he does so, he stated that “[wjhenever I — probably every six months or so. Actually me and [my] wife just bought a table and chairs and I did an inspection of those chairs.” Whether the weak joint in the chair would have been discovered, if Fetterman had a procedure in place to inspect the chair, was an issue ultimately to be determined by the jury.

In this case, there is sufficient “proof that the negligence probably caused the plaintiffs injury,” such that the trial court did not err in denying Fetterman’s motion for directed verdict. Gooding, 445 So.2d at 1018. In conclusion, I would affirm the judgment for Friedrich.

      . To recover for negligence under Florida law, the plaintiff must prove that (1) the defendant owed him a legal duty; (2) the defendant breached that duty; (3) the plaintiff suffered injury as a result of that breach; and (4) the injury caused damage. Kayfetz v. A.M. Best Roofing, Inc., 832 So.2d 784, 786 (Fla. 3d DCA 2002).

      . " ‘In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury.’" Tarleton v. Amstein & Lehr, 719 So.2d 325, 328-29 (Fla. 4th DCA 1998) (quoting Gooding v. Univ. Hasp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984)). Further, the Gooding court noted:
      On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

        Gooding, 445 So.2d at 1018 (quoting Prosser, Law of Torts § 41 (4th ed. 1971)).


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    MIAMI-DADE COUNTY, Petitioner, v. Thomas and Michelle TORBERT, Respondents.
    No. 3D10-2339.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.
    Rehearing Denied Oct. 4, 2011.

      R.A. Cuevas, Jr., County Attorney, and Dennis A. Kerbel, Assistant County Attorney, for petitioner.
    Aldo M. Leiva, Miami, for respondents.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Miami-Dade County petitions for a writ of certiorari to the Circuit Court, Appellate Division, to quash an opinion overruling a Miami-Dade County Commission resolution that approved a Miami-Dade County zoning determination that the respondents’ property be developed only in accordance with current GU zoning regulations. We have second-tier certiorari jurisdiction. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, (Fla.2010); Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm’rs, 794 So.2d 1270 (Fla.2001). We grant the petition for certiorari and quash the opinion below as the Appellate Division applied incorrect principles of law.

On February 8, 2006, Thomas and Michelle Torbert (“the Torberts”) requested a determination from the Miami-Dade Department of Planning and Zoning to confirm that they could develop one-acre residences on a sixty-five-acre parcel that was being used to grow agricultural crops. The sixty-five-acre parcel was zoned GU (Interim Zoning District), which requires a minimum lot size of five acres per home-site. The sixty-five-acre parcel was platted and recorded in 1926, as a subdivision of a larger plat known as Florida City Pines. According to the plat, each home-site was one-eighth of an acre. The Tor-berts’ request for a zoning determination relied on a Miami-Dade County resolution, section 33-196, which stated that parcels purchased prior to April 12,1974, “under a contract for deed, or deeded” and meeting the one-acre-per home site requirement of EU-1 District, shall be qualified for uses permitted in the EU-1 District. The Department of Planning and Zoning issued a letter declining to approve the use of the Torberts’ parcel for one-acre home sites, determining that the 1926 plat was invalid and could not be relied upon to change the zoning of the GU Interim District. The Department determined that the plat was invalid and now could not be relied upon because, even though it had been recorded in 1926, it had not been referred to or relied upon in subsequent deeds for sale and purchase thereby invalidating the plat. On April 16, 2007, the Torberts appealed the Department of Planning and Zoning’s determination to the Miami-Dade Board of County Commissioners. In Resolution Z-1-109, the Board of County Commissioners affirmed the Department’s determination. The Torberts appealed County Resolution Z-l-109 to the circuit court. The Circuit Court Appellate Division reversed the Board of County Commissioners in a per curiam decision. The County’s petition for writ of certiorari that followed was quashed by this Court for reissuance of a written opinion. See Miami-Dade Cnty. v. Torbert, 39 So.3d 482 (Fla. 3d DCA 2010). The circuit court then issued a written opinion on motion for clarification quashing Resolution Z-l-109. The circuit court first concluded that the Board of County Commissioners applied incorrect law — holding that the correct law was that the plat was valid as it was recorded in 1926 and had never been revoked. Second, the circuit court concluded that the Board did not base its decision on competent substantial evidence. Last, the circuit court concluded that, based upon the language of section 33-280, defining agricultural district lots (AU District) to contain a minimum of five acres, the Florida City Pines plat constituted an exception to the five-acre-rule, that only one home is permitted on five acres of land.

Miami-Dade County now brings this second-tier petition for writ of certiorari before this Court seeking to reverse the opinion of the circuit court. We grant the petition and issue a writ of certiorari to the circuit court quashing the opinion below on grounds that the circuit court applied incorrect principles of law which resulted in a miscarriage of justice. In doing so, we are mindful of the district court’s limited review on second-tier certiorari. As illustrated by the facts in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d at 1270, the Board of County Commissioners conducted a lengthy hearing on the Torberts’ application for zoning determination. Unlike Dusseau, the Board disapproved the Tor-berts’ application for a zoning change. Like Dusseau, at the circuit court level, the court reviewed the record evidence on both sides and reversed the Board’s decision. As Dusseau points out:

Although the circuit court phrased its reversal in terms of ‘competent substantial evidence,’ the plain language of its [opinion] shows that the court in fact reweighed the evidence at length. Instead of simply reviewing the Commission’s decision to determine whether it was supported by competent substantial evidence, the circuit court also reviewed the decision to determine whether it was opposed by competent substantial evidence. The circuit court then substituted its judgment for that of the Commission as to the relative weight of the conflicting evidence. The circuit court thus usurped the fact finding authority of the agency.

Dusseau, 794 So.2d at 1275.

I

Application of Incorrect Law

The circuit court applied incorrect principles of law when it failed to properly determine the issue of the validity of the plat under established Florida law set forth in Supreme Court cases such as Wahrendorff v. Moore, 93 So.2d 720 (Fla. 1957) and MeCorquodale v. Keyton, 63 So.2d 906 (Fla.1953). These cases hold that, when an owner of land subdivides it, according to platted lots and blocks, providing for streets, parks or public ways, upon deeding one or more lots with reference to the plat, any platted restrictions or representations made are binding on the grantees. Accord Sunshine Vistas Homeowners Ass’n v. Caruana, 623 So.2d 490 (Fla.1993); Peninsular Point, Inc. v. S. Ga. Dairy Co-op., 251 So.2d 690 (Fla. 1st DCA 1971). Even more instructive is the case of Tallahassee Investments Corp. v. Andrews, 185 So.2d 705 (Fla. 1st DCA 1966), which holds that where a deed of conveyance contains no reference or reservation of an easement for streets, a beach or public areas, as embodied in a recorded plat, the titleholder is estopped from relying on the plat and from maintaining a position inconsistent with the deed.

Although the facts before us involve the question of the validity of the plat and do not involve an easement or restrictive covenant in a plat, the principles of law in these cited cases apply here — that reservations encompassed in a plat must be referenced in deeds of conveyance in order for the reservations to pass along with title and to be validated. The Florida Supreme Court has long held that a landowner is not required to plat his land incident to selling it. Kass v. Lewin, 104 So.2d 572 (Fla.1958). Even though a recorded plat exists, a landowner “may sell [his land] by the inch, the foot, or the yard, and describe it by metes and bounds.” Garvin v. Baker, 59 So.2d 360, 365 (Fla.1952). If a landowner plats or subdivides his land into lots or blocks, lays off streets and other public ways, designates portions of the land to be parks, playgrounds, and similar facilities and then conveys lots with reference to the plat, he is bound by the plat and representations he has made. McCorquodale, 63 So.2d at 910 (“Whenever owner of a tract of land subdivides the same into lots and blocks, lays off streets and other public ways and designates portions of said lands to be parks, playgrounds or similar facilities, or uses similar words calculated to encourage prospective purchasers to buy said lots and actually sells the lots with reference to the plat, he becomes bound to his grantees by the plat and the representations thereon”). It is the conveyance with reference to the plat that creates the rights in the purchasers to have the plat maintained according to its references. City of Miami v. Fla. E. Coast Ry., 79 Fla. 539, 84 So. 726 (1920). The purchasers acquire rights to the plat only if the plat is conveyed by incorporating it and referencing it in the deed. In accord with these principles, it also follows that prescriptions, boundaries and lot sizes outlined in the original recorded plat only become operative when the plat is referenced as part of any future conveyance. It is not disputed that the 1926 recorded plat was not referred to in hundreds of subsequent deeds. In reaching its conclusion that the Torberts’ plat was valid because it had been recorded and not revoked, the circuit court failed to follow the correct legal principle that the plat may be validated and relied upon only upon reference in future deeds. If it is not referenced, the purchaser may not rely on that plat or its covenants and restrictions. We quash the opinion below and grant certiorari, as the circuit court failed to apply the correct principles of law.

II

Departure from Essential Requirements of Law

The circuit court opinion states that “the resolution of the Board of Miami-Dade County Commissioners was not supported by the essential requirements of law and their findings and judgment were not supported by substantial competent evidence.” The circuit court concluded that County Attorney opinion 68-18 and the Public Works Department memo, stating that the plat is not valid because it had not been conveyed or publically dedicated, did not constitute substantial competent evidence to support the determination of the Board. Evidence before the Board of County Commissioners included testimony from the Director of Planning and Zoning and a Miami-Dade County Department of Planning and Zoning recommendation to the Board of County Commissioners. That recommendation makes reference to the County Attorney’s opinion dated February 14, 1968, which states that the plat never was properly executed by the first mortgagee in 1926 and was never legally binding, that all future conveyances of the plat never acknowledged the existence of the plat, and that deeded parcels exceeded the minimum standards of EU-1 District. Therefore, it was the opinion of the Department of Planning and Zoning that the Torberts’ parcel could not be subdivided.

The evidence before the Board was that the Torberts’ land was never conveyed at any point in time with reference to the 1926 plat. This evidence alone was substantial and competent to support the Board’s determination that the Torberts acquired neither any rights in the plat nor any rights to allow them to subdivide the parcel accordingly. Because the record before the circuit court contains substantial competent evidence to support the Miami-Dade County Board of County Commissioners’ determination, the circuit court was compelled to affirm that decision. Dusseau; Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000). The circuit court also applied incorrect law to the facts as presented before the Board to conclude that the Torberts acquired rights to the plat and could subdivide their property, and, by so doing, departed from the essential requirements of law.

For these reasons, we conclude that the circuit court incorrectly concluded that substantial competent evidence did not exist to support the determination of the Miami-Dade County Board of Commissioners and applied incorrect law to the facts below, departing from the essential requirements of law. We therefore find that the decision of the circuit court resulted in a miscarriage of justice.

Petition for writ of certiorari is granted and the opinion below is quashed.

      . Section 33-196 Standard for determining regulations to be applied.

      Notwithstanding the foregoing, certain platting activity occurring prior to April 12, 1974, which created lots meeting the minimum requirements of the EU-1 District on April 12, 1974, shall qualify such lots for those uses permitted in the EU-1 District. Those lots shall include only those lots indicated on
      (a) plats recorded prior to April 12, 1974, and
      (b) tentative plats approved as of April 12, 1974 and finally approved and recorded within ninety (90) days after such approval, and
      (c) a tentative plat for single family residential lots approved prior to April 12, 1974, if each lot in the approved tentative plat met the minimum standards of the EU-1 District, provided that no final plat or other tentative plat for the subject property was approved after April 12, 1974, and that as of December 31, 2003, a majority of the lots indicated on the tentative plat had been improved with residences pursuant to building permit in accordance with the tentative plat’s provisions, and Parcels, other than the aforementioned platted lots or tentatively approved platted lots, that prior to April 12, 1974 were purchased under a contract for deed or deeded and met the minimum requirements of the EU-1 District shall be qualified for those uses permitted in the EU-I District.
      On April 12, 1974, the Torberts’ parcel did not qualify for uses permitted in the EU-1 District as the recorded plat only called for lot sizes of one-eighth acre.

      . Under the EU-1 Zoning District regulations, the minimum lot size is one acre.

      . Numerous transactions that occurred after the plat was recorded in 1926 and up until Resolution 4406, adopted by the Board of County Commissioners on June 12, 1960, accepting dedications of plats recorded previously, never recognized the plat.

      . The Torberts argued below that Resolution Z-l-109 allowed them to subdivide their parcel because theirs was a plat recorded prior to 1974, and that it met the minimum requirements of the EU-1 zoning. The plat never met the requirements of EU-1 zoning as the plat conformed to one-eighth-acre lots and not to the minimum EU-1 zoning requirement of one-acre lots.


author: MONACO, TOBY S., Associate Judge.

text:
    WILSHIRE INSURANCE COMPANY, Appellant, v. BIRCH CREST APARTMENTS, INC., Appellee.
    No. 4D10-5004.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Rehearing Denied Oct. 10, 2011.
    Warren B. Kwavnick and Bruce M. Try-bus of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for appellant.
    Scott J. Topolski of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for appellee.
   MONACO, TOBY S., Associate Judge.

Appellant, Wilshire Insurance Company (Wilshire), appeals a declaratory judgment which determined the existence of insurance coverage in favor of appellee, Birch Crest Apartments, Inc. (Birch), as assign-ee of Wilshire’s insured under a Coblentz agreement. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A); Canal Ins. Co. v. Reed, 666 So.2d 888 (Fla.1996). Because the record below affirmatively demonstrates that coverage does not exist, we reverse.

Wilshire’s insured, H & H Commercial Painting Company (H & H), performed painting work for Birch on its apartments. In the process, H & H spattered paint on some glass doors and windows. H & H then proceeded to perform work on the glass surfaces to remove the paint spatter and in so doing allegedly damaged them. Birch sued H & H in a separate lawsuit which was settled by consent judgment. The settlement included an assignment to Birch of H & H’s rights against Wilshire. Birch then brought this four-count suit against Wilshire for breach of contract, common law bad faith, statutory bad faith, and declaratory judgment. Both parties moved for summary judgment on coverage. Wilshire asserted that certain policy exclusions precluded coverage for the underlying claims. Birch argued that the policy exclusions did not apply. The trial court denied Wilshire’s motion, but granted Birch’s, declaring that coverage existed under Wilshire’s policy with H & H. From that judgment, Wilshire appeals.

The commercial general liability policy issued by Wilshire to H & H contains exclusions upon which Wilshire relies for its position that there is no coverage for the underlying claim. These provisions exclude damage to:

(5) That particular part of real property on which you ... are performing operations, if the “property damage” arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

Both parties cite case law construing this exclusion. American Equity Insurance Co. v. Van Ginhoven, 788 So.2d 388 (Fla. 5th DCA 2001), involved a pool contractor who was initially hired to do spot repairs, cleaning, and tile replacement on a swimming pool. When the contractor drained the pool, it popped out of the ground causing damage to the pool and to adjacent property including the pool pump, heater, deck, and screen and to the surrounding landscape and irrigation system. The homeowner sued the contractor for damages caused by this occurrence. The contractor’s insurance company conceded coverage for everything except the pool itself, but the homeowner claimed coverage for the entire pool because the contractor was contracted to “perform work” on only specified pool areas and tiles, not the whole pool. The insurer filed a declaratory judgment action against its insured which resulted in a determination that the insurance policy covered the entire loss including replacement of the swimming pool. On appeal, the trial court was reversed. The appellate court, recognizing that the contractor was in fact performing work on the pool when the mishap occurred and that the natural and intended scope of the work would include this activity, found the homeowner’s position untenable and held that damage to the pool was excluded under the clear and unambiguous provisions of the policy. Id. at 391.

Like in American Equity, the record here shows that cleaning paint spatter from windows and doors was within the natural and intended scope of work undertaken by the contractor as part of the painting operations on Birch’s property if in fact such paint spatter occurred. The circumstances are not like those in Nova Casualty Co. v. Willis, 39 So.3d 434 (Fla. 3d DCA 2010), upon which Birch relies. Nova involved a contractor who undertook to trim mangrove trees on an owner’s property. The contractor not only incorrectly trimmed the homeowner’s trees, but departed from the scope of operations by trespassing onto adjacent property and trimming trees that did not belong to the homeowner. The appellate court affirmed the trial court’s determination that coverage applied to damage done to the adjacent property, but not damage done to the homeowner’s property where the work was being performed. The contractor’s “operations” were not intended to and would not normally include trimming trees on adjacent property and damages done to the adjacent property were not subject to the coverage exclusion.

Here, unlike Nova, the scope of the contractor’s operations were intended to include the apartments which were being painted and would, if required, involve cleaning up surfaces which were spattered with paint. There is no genuine issue of material fact that the property damage in this case was to the apartment upon which H & H was performing its operations, and that it arose out of the insured’s operations within the meaning of exclusion (j)(5). Additionally, there is no genuine issue of material fact that the underlying claim resulted from the insured’s incorrect work on the glass doors and windows of the apartments within the meaning of exclusion Cj)(6). Thus, it was error to conclude that coverage existed under the undisputed facts of this case.

Reversed and remanded for entry of declaratory judgment in Wilshire’s favor.

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

      . Coblentz v. Amer. Surety Co. of N.Y., 416 F.2d 1059 (5th Cir. 1969).


author: PER CURIAM.

text:
    Franklin MONFISTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1060.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Rehearing Denied Oct. 10, 2011.
    Franklin Monfiston, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Anthony v. State, 980 So.2d 610 (Fla. 4th DCA 2008), rev. denied, 6 So.3d 607 (Fla.2009). Appellant argues the second claim of his postconviction motion which this court did not discuss in its remand in Monfiston v. State, 946 So.2d 1194 (Fla. 4th DCA 2006). This court affirmed the summary denial of that claim in the prior appeal.

GROSS, CIKLIN and CONNER, JJ., concur.


author: VILLANTI, Judge. CASANUEVA, Judge,

text:
    Vincent D. COOPER, Appellant, v. Shannon COOPER, Appellee. Shannon Cooper, Appellant, v. Vincent D. Cooper, Appellee. Shannon Cooper, Petitioner, v. Vincent D. Cooper, Respondent.
    Nos. 2D10-1102, 2D10-2903, 2D11-1258.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.
    Rehearing Denied Sept. 22, 2011.

      Joseph W. Lehn of Lehn Law, P.A., Sarasota; and Nishit V. Patel of The Van Ness Law Group, P.A., Sarasota, for Vincent D. Cooper.
    Susan J. Silverman, Sarasota, for Shannon Cooper.
   VILLANTI, Judge.

These consolidated appeals all arise from a petition for support unconnected with dissolution filed by Shannon Cooper (the Wife) against Vincent D. Cooper (the Husband). In case number 2D10-1102, the Husband appealed the trial court’s order adopting the magistrate’s report and recommendations concerning alimony, child support, and attorney’s fees. In case number 2D10-2903, the Wife appealed the trial court’s subsequent order that denied her request for entry of a final judgment awarding her alimony pursuant to the pri- or order. In case number 2D11-1258, the Wife sought a writ of prohibition to prohibit the trial court from ruling on the Husband’s motion for modification of alimony and child support while the other appeals were pending. The first two cases were previously consolidated for record purposes only, and the prohibition petition was then consolidated with the first two cases. We now consolidate all three cases for purposes of this opinion. For the reasons explained below, we dismiss the Wife’s appeal in case 2D10-2903, reverse the order on appeal in case 2D10-1102, and remand for further proceedings. Based on these rulings, we deny the Wife’s petition in case number 2D11-1258.

Facts

The Husband and Wife were married in May 1997 and spent the majority of their married lives in Florida. Both have doctorates in pharmacy, and the Wife worked as a pharmacist on at least a part-time basis during most of the marriage. In August 2006, the parties moved to Pennsylvania to further the Husband’s career with a large pharmaceutical company. Subsequently, in August 2008, the parties agreed to return to Florida. However, when the time came for the actual move in December 2008, the Husband indicated that he could not go, and the Wife moved to Florida with the children and without the Husband.

On January 27, 2009, the Wife filed a petition for support unconnected with dissolution in Florida, seeking both alimony and child support. Shortly thereafter, the Husband filed a petition for dissolution of marriage in Pennsylvania. Despite the filing of the dissolution petition in Pennsylvania, the parties litigated the Wife’s petition for support in Florida. After an evidentiary hearing, the magistrate issued a report and recommendations awarding alimony, child support, and attorney’s fees to the Wife. On February 8, 2010, the trial court entered an order adopting the report and recommendations of the magistrate, with a minor alteration to the child support award. That order required the child support to be paid by income deduction. The Husband appealed this order by notice dated March 9, 2010, in what became case number 2D10-1102.

In April and May 2009, the Wife filed motions for indirect criminal contempt, apparently in an effort to enforce the alimony award included in the February 8 order. Rather than enforce that award, however, the trial court entered an order on May 17, 2010, which stated that “the State of Pennsylvania has full jurisdiction and should determine ultimate issues relating to alimony and distribution of assets.” Thus, the court concluded that it “will not enter a Final Judgment awarding permanent alimony to the [Wife].” The Wife appealed this order by notice dated June 11, 2010, in what became case number 2D10-2903.

After the trial court refused to enforce the alimony award but before the Wife filed her notice of appeal of that order, the Husband filed a petition seeking to modify both the alimony and child support awards based on an allegedly unforeseen involuntary change in' his circumstances. The Wife moved to dismiss this petition, arguing that the trial court lacked jurisdiction to consider it while the original order awarding alimony and child support was pending on appeal. The trial court denied the Wife’s motion to dismiss, thus allowing the Husband’s petition for modification to go forward. On March 15, 2011, the Wife filed a petition for writ of prohibition in what became case number 2D11-1258, contending that the trial court was acting in excess of its jurisdiction in considering the Husband’s petition for modification while the appeal in case number 2D10-1102 was pending.

We now address the parties’ appeals, not in the order of filing but in the order most conducive to judicial review.

Case 2D10-2903

In the order giving rise to case number 2D10-2903, the trial court denied the Wife’s request for a final judgment awarding permanent alimony, finding that the Wife’s claim for permanent periodic alimony would best be considered in the pending Pennsylvania dissolution action. The effect of this order was to deny the Wife’s petition for support unconnected with dissolution to the extent that it sought permanent alimony, and it is clear from the language of the order that the trial court anticipated that the order would end its judicial labor and that the parties would address the Wife’s permanent alimony claim in the pending dissolution action in Pennsylvania. While not styled as a “final judgment” or “final order,” it is clear from the substance of the order that the trial court intended this order to be final, i.e., to end its judicial labor. See, e.g., Canfield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (defining a final judgment as an order that “ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary”); Fla. Farm Bureau Ins. Co. v. Austin Carpet Serv., Inc., 382 So.2d 305, 306 (Fla. 1st DCA 1979) (noting that while specific words of finality may cast light upon a court’s intent, when an order is “final in form and content,” the failure to employ specific language will not diminish the order’s finality). This final order, however, was entered while the Husband’s appeal of the trial court’s earlier nonfinal order that adopted the magistrate’s report and recommendations was pending. Thus, this purported final order is a nullity by operation of law.

Florida Rule of Appellate Procedure 9.130(f) provides:

In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

(Emphasis added.) As this court has explained:

Pursuant to Florida Rule of Appellate Procedure 9.130(f), a nonfinal appeal does not act as an automatic stay of proceedings in the trial court, but it divests the trial court of the power to “render a final order disposing of the cause pending such review.” Thus, the trial court in this case could conduct a final hearing in the dissolution and even enter an order containing findings and determinations from that hearing, but it could not enter a final judgment while the nonfinal appeal was pending unless this court expressly authorized it to do so.

Robinson v. Robinson, 998 So.2d 1171, 1172 (Fla. 2d DCA 2008).

Here, this court never authorized the trial court to enter a final order disposing of the Wife’s petition while the Husband’s nonfinal appeal was pending. Thus, while the trial court had jurisdiction to proceed with pending matters pertaining to the Wife’s petition for support while the Husband’s appeal was pending, the trial court had no authority to enter a final order disposing of the case until the Husband’s appeal of the prior nonfinal order was no longer pending. Accordingly, the order purporting to finally dispose of the Wife’s claim for permanent alimony is a nullity, and the Wife’s appeal in case number 2D10-290B must be dismissed.

Case 2D10-1102

In case number 2D10-1102, the Husband appeals the February 8, 2010, order adopting the magistrate’s report and recommendations. He raised three issues on appeal, only one of which merits discussion. The Husband contends that the cumulative total • of alimony, child support, and other expenses imposed on him by the trial court’s order adopting the magistrate’s report and recommendations was excessive and thereby constituted an abuse of discretion. Given the facts in the record, we readily agree.

The magistrate’s report and recommendation, as adopted by the trial court, established that the Husband’s gross monthly income, including his prorated annual bonus, was $19,435.99. His net monthly income, again including his prorated annual bonus, was $12,582.99. From this, the trial court ordered the Husband to pay $5000 per month in alimony, $2452 in child support payable to the Wife, $2750 per month for the children’s private school tuition, and $307 per month for the children’s health insurance. These figures total $10,509, or approximately 83.5% of the Husband’s net monthly income. This award, which inarguably consumes an excessive amount of the Husband’s income, constitutes an abuse of the trial court’s discretion. See, e.g., Perez v. Perez, 11 So.3d 470, 473 (Fla. 2d DCA 2009) (reversing award that consumed 86% of husband’s net income); Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007) (reversing award that consumed over 90% of husband’s net income); Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004) (reversing award that consumed 80% of husband’s net income); Dennison v. Dennison, 852 So.2d 422, 423-24 (Fla. 5th DCA 2003) (reversing award that consumed 83% of husband’s net income).

Because the cumulative award constitutes an abuse of the trial court’s discretion, we reverse the order adopting the magistrate’s report and recommendations and remand for the trial court to conduct further proceedings to determine appropriate amounts of alimony and child support given the Husband’s net available income.

Case 2D11-1258

In case number 2D11-1258, the Wife seeks a writ of prohibition directed to the trial court to prohibit it from considering the Husband’s motion to modify alimony and child support while the other two appeals are pending. On its face, the Wife’s petition is not well-taken. Both the Third and Fourth Districts have held that the trial court has jurisdiction over a petition for prospective downward modification of alimony and/or child support even while the appeal of an initial award of alimony and child support is pending because “‘[t]he granting of modification relief prospectively would have no effect on the order being appealed.’ ” Atlas v. Atlas, 708 So.2d 296, 298 (Fla. 4th DCA 1998) (quoting Merian v. Merhige, 690 So.2d 678, 681 (Fla. 3d DCA 1997)) (emphasis added). Holding otherwise would result in the inequitable situation of allowing one party to enforce a judgment on appeal against one wholly unable to pay but also •unable to seek modification due to the vagaries of-the appellate court’s workload. No rule or statute requires such an inequitable result.

In any event, because of our rulings in cases 2D10-1102 and 2D10-2903, jurisdiction will be returned to the trial court upon issuance of mandate, and the trial court will then be required to determine the proper amount of alimony and child support payable by the Husband. We therefore deny the Wife’s petition as unnecessary.

Reversed in part, dismissed in part, and denied in part.

LaROSE, J., Concurs.

CASANUEVA, J., Concurs in part; dissents in part.

CASANUEVA, Judge,

Concurring in part; dissenting in part.

I concur with the majority’s opinion except for footnote 4 and the final sentence in footnote 1, from which I dissent.

      . This conclusion is buttressed by the trial court's other orders. The court had already entered an order providing for child support by income deduction, and it had entered a final judgment on the Wife’s claim for attorney's fees. Thus the only matter pending when the trial court entered this order was the Wife’s request for a final judgment on her permanent alimony claim. The trial court’s order states that it would not enter a final judgment “awarding permanent alimony to the Wife.” This is not an abdication of the court's responsibility to rule on the Wife’s petition; it is simply a refusal to grant the Wife the remaining portion of the relief she sought.

        . This order is an appealable nonfinal order. See Fla. R.App. P. 9.130(a)(3)(C)(iii).

      . We also note that it appears that the magistrate double-counted the Husband’s annual bonus—counting it once toward a determination of the Husband’s monthly income and then awarding it a second time as a lump sum annual payment to the Wife when the bonus was received. On remand, the trial court must ensure that the Husband’s annual bonus income is included only once in its calculations.

      . Nothing in this opinion should be construed to prevent the trial court on remand from again deferring the Wife’s claim for perma-nenl alimony to the Pennsylvania court as it fully intended to do.


text:
    Ronald RICCARDO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1429.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    Rehearing Denied Sept. 26, 2011.
    Ronald Riccardo, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We grant the petition for habeas corpus relief seeking a belated appeal. We review the order denying Petitioner’s rule 3.850 motion on the merits and affirm. See Johnson v. State, 994 So.2d 960, 963 (Fla.2008); Racine v. State, 16 So.3d 955, 956 (Fla. 5th DCA 2009); Hall v. State, 853 So.2d 546, 549 (Fla. 1st DCA 2003).

PETITION GRANTED; AFFIRMED.

MONACO, TORPY and LAWSON, JJ., concur.


text:
    Denise N. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3892.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    Rehearing Denied Sept. 23, 2011.
    Denise N. Anderson, Titusville, pro se.
    No Appearancé for Appellee.
   PER CURIAM.

Denise N. Anderson appeals an order affirming the Florida Department of Law Enforcement’s denial of her request for a certificate of eligibility in order to have her criminal history sealed pursuant to section 943.059, Florida Statutes (2010). We must affirm because, as Ms. Anderson concedes, she was adjudicated guilty of a misdemeanor arising out of the criminal activity to which her petition to seal pertained. See § 943.059(1)(b)2., Fla. Stat. (2010). Her remedy, if she has one, is to seek executive clemency pursuant to section 940.03, Florida Statutes (2010).

AFFIRMED.

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.


author: ROTHENBERG, J.

text:
    RIVERWOOD CONDOMINIUM ASSOCIATION, INC., Appellant, v. LITECRETE, INC., Appellee.
    No. 3D10-3368.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 4, 2011.

      Fein & Meloni, Esqs., and Steven A. Fein and Shelley J. Murray, Plantation, for appellant.
    Steven M. Rosen, Miami, for appellee.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Riverwood Condominium Association-, Inc. (“Riverwood”), appeals from a final summary judgment entered in favor of the plaintiff, Litecrete, Inc. (“Li-tecrete”). Because Riverwood has made claims material to this litigation, and because these claims remain unrefuted, we reverse.

BACKGROUND

Riverwood entered into a general construction contract with Litecrete for the complete roofing renovation of thirty-two condominium units, new clerestory windows, and miscellaneous wood repair. Having completed all required governmental inspections, Litecrete believed that its performance under the contract had been completed and therefore demanded the balance due under the construction contract. After Riverwood failed to tender the payment, Litecrete sued Riverwood, seeking to obtain the amount owed under the contract, asserting claims of breach of contract, unjust enrichment, and account stated. The remaining amount owed under the contract is not in dispute.

Riverwood, as its affirmative defense, alleges that throughout the course of the project, Litecrete caused significant damage to Riverwood’s property and performed unsatisfactory and defective work. Thus, Riverwood claims it properly withheld final payment under its contract with Litecrete, which provides that, “[pjayment may be withheld on account of (1) defective work not remedied; (2) claims filed for damages caused by Contractor....” Riv-erwood further contends that it is entitled to a setoff for some or all of the damages resulting from Litecrete’s performance of the contract.

In support of its affirmative defense, Riverwood submitted the sworn affidavit and deposition testimony of Arnold Bau-man (“Bauman”), Riverwood’s manager since 1993. In his affidavit and sworn deposition testimony, Bauman avers that: (1) the work performed by Litecrete was defective; (2) the contract provides that payment may be withheld based on defective, unremedied work and for damages caused by the contractor in performance of the contract; (B) the defective work has not been fully remedied; and (4) Litecrete caused damage to Riverwood’s property which has not been remedied.

STANDARD OF REVIEW

Our standard in reviewing an order granting summary judgment is de novo. See Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008). “Summary judgment is correctly granted when the record evidence shows there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.” Edwards v. State Farm Fla. Ins. Co., 64 So.3d 730, 732 (Fla. 3d DCA 2011) (citing Fla. R. Civ. P. 1.510(c)). Further,

[o]n appeal from summary final judgment, the appellant is entitled to have the record reviewed so that every reasonable inference is drawn in his favor. Conversely, the moving party has the burden of conclusively showing the absence of genuine issues of material fact. If the existence of such issues, or the possibility of their existence, is reflected in the record, or the record even raises the slightest doubt in this regard, the summary final judgment must be reversed.

Williams v. Fla. Realty & Mgmt. Co., 272 So.2d 176, 177 (Fla. 3d DCA 1973).

ANALYSIS

Riverwood contends that the trial court erred in granting summary judgment in favor of Litecrete for two reasons: (1) Riverwood has asserted an affirmative defense which has not been contested; and (2) Bauman’s affidavit and deposition testimony raise issues of material fact which bar summary judgment. We agree.

“The law is clear that where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment.” Maung v. Nat’l Stamping, LLC, 842 So.2d 214, 216 (Fla. 3d DCA 2003); see also Emile v. First Nat’l Bank of Miami, 126 So.2d 305, 306-07 (Fla. 3d DCA 1961) (finding that a plaintiff is not entitled to summary judgment as a matter of law where the defendant has raised an affirmative defense of setoff and the plaintiff has not presented any evidence in contradiction or opposition to that defense).

Riverwood has asserted the affirmative defense of setoff, which has not been refuted by Litecrete. In support of its affirmative defense, Riverwood filed Bauman’s affidavit and deposition testimony, wherein Bauman averred that Litec-rete performed defective work and damaged Riverwood’s property. The defective work and damages alleged are as follows: (1) damage to four patio enclosures, with an estimated per unit cost of repair for three of the units at $5400 and for the remaining unit at $9200; (2) defective installation of one of the clerestory windows which has an unresolved leak with an approximate repair cost of $1400; (3) damage to a parking lot as a result of the contractor’s use of equipment with an estimated repair cost of $2800; (4) a fence that was reinstalled incorrectly and encroaches on neighboring property with an estimated repair cost of $985; and (5) improperly installed gutters, for which no price estimate exists at this time. Litecrete has offered no direct opposition to any of these alleged damages. Therefore, it is clear that Bauman’s affidavit raises material issues of fact which precludes summary judgment.

In support of its argument that the trial court correctly granted summary judgment, Litecrete argues that the trial court improperly considered Bauman’s affidavit at the summary judgment hearing because it was not timely filed. Litecrete however, failed to raise below any argument regarding the timeliness of Bauman’s affidavit, and Litecrete cannot raise this issue for the first time on appeal. The issue is therefore waived. See Castor v. State, 365 So.2d 701, 703 (Fla.1978) (“As a general matter, a reviewing court will not consider points raised for the first time on appeal.”).

Additionally, Litecrete contends that the information contained in the affidavit was not based on personal knowledge, and therefore, the affidavit was improperly considered. In support of this proposition, Litecrete relies on Florida Power Corp. v. Zenith Industries Co., 377 So.2d 203 (Fla. 2d DCA 1979), which held that an affidavit filed in support of summary judgment which is based on the affi-ants “personal opinion” is inadequate. Fla. Power, 377 So.2d at 204 n. 1 (citing Arkin Constr. Co. v. Simpkins, 99 So.2d 557 (Fla.1957)). We disagree and conclude that Litecrete’s reliance on Florida Power is misplaced, because, whereas the affidavit in Florida Power was based on personal opinion, Bauman’s affidavit was based on his own personal knowledge. Bauman served as Riverwood’s manager since 1993, and he testified that he was personally aware of the condition of the condominium units and the condition of Riverwood’s property before and after the renovation. Thus, the trial court properly considered Bauman’s affidavit when ruling on the motion for summary judgment.

Litecrete also contends that if the court were to determine factual issues with regard to the setoff claimed by Riverwood, Litecrete would be entitled to partial summary judgment in an amount equal to the claimed balance less specific amounts as to the setoff. Litecrete is incorrect. River-wood was justified in withholding an amount greater than the cost to repair the defective work because the contract provides that the prevailing party to litigation shall be entitled to attorney’s fees, including appellate attorney’s fees. The contract provides that payment may be withheld for damages incurred. Attorney’s fees are damages under the contract and were pled. Therefore, partial summary judgment requiring Riverwood to pay Litecrete for the work done, less the alleged cost for repairs, was error because it did not take into consideration Riverwood’s additional damage in the form of attorney’s fees.

CONCLUSION

Because unrefuted claims were alleged in Bauman’s sworn affidavit and deposition testimony, and attorney’s fees were not taken into consideration in the summary judgment award, the trial court erred in granting summary judgment and partial summary judgment. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed.


author: WHATLEY, Judge.

text:
    Andrea B. OTTO-JONES, Appellant, v. Reuben T. JONES, Appellee.
    No. 2D10-4193.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2011.

      Michael J. Park of Park, Ossian, Bar-naky & Park, P.A., Clearwater, for Appellant.
    Reuben T. Jones, pro se.
   WHATLEY, Judge.

Andrea B. Otto-Jones, the Mother, appeals an order requiring the parties’ nine-year-old son to attend a private school in Pinellas County for the first half of the school year and attend a Hillsborough County public school for the second half of the school year. The order was entered after a hearing on the Mother’s “Motion Regarding Child’s Continued Attendance at [the private school],” which was filed after the Mother and Reuben Jones, the Father, were unable to agree regarding which school their son should attend. We understand the trial court’s frustration with the parties, whom it found engaged in repeated and unnecessarily vexatious litigation regarding the educational decision making for the child. However, we must reverse the order because there was no evidence that this rotating school schedule is in the best interest of the child.

In Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995), this court similarly held that it was not in the best interest of the child to require the child, who was in the second grade, to rotate schools at the beginning of December and the beginning of June every year. This court noted that attending two different schools during the school year would be “a disruption in this young girl’s academic and personal life, no matter how much her parents work to smooth the transition.” Id.; see Bainbridge v. Pratt, 68 So.3d 310 (Fla. 1st DCA 2011) (reversing trial court order where there was no evidence that it was in the best interest of the child to require child with special needs to rotate schools— attending a school where mother lived for a year and then attending a school where father lived for a year). In the present case, the trial court appeared to recognize that a rotating school schedule was not in the child’s best interest when it warned the parties:

And if the parties can’t agree on something, I guarantee that if you come back in front of me, I’m going to do just what I threatened to do: You’re going to pick one year and mom is going to pick the next year and then you’re going to pick and mom’s going to pick. And if you two think that’s in [the child’s] best interest, I would seriously reconsider that.

We note that it would be beneficial to the child if the parents could agree on which school the child will attend. However, if past history is any indication, such an agreement is not likely. Therefore, if the parties do not immediately indicate to the trial court that there is an ongoing effort to select the child’s school, the trial court will need to expedite this matter and hold an evidentiary hearing to determine the school which is in the child’s best interest to attend.

Accordingly, the trial court order is reversed and remanded with directions.

ALTENBERND and MORRIS, JJ„ Concur.

      . The final judgment dissolving the parties' marriage was entered on January 3, 2007.

      . Although the trial court mentioned the possibility of rotating schools every school year, in its order it directed the child to change schools during the middle of the school year.


author: HAZOURI, J.

text:
    Marilyn Ann NUNES, Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, Appellants, v. ALLSTATE INVESTMENT PROPERTIES, INC., Gilman H.C. Nunes, Danielle A. Intili, Jesus M. Alvarez, Julissa Alvarez, husband and wife, and Washington Mutual Bank, N.A., Appellees.
    No. 4D10-992.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 10, 2011.
    Robert A. Koppen of Koppen, Watkins, Partners & Associates, P.A., Delray Beach, for appellants.
    David I. Brodt of Leslie Robert Evans & Associates, P.A., Palm Beach, for appel-lees.
   ON MOTION FOR REHEARING, MOTION FOR REHEARING EN BANC, MOTION FOR CLARIFICATION AND SUGGESTION OF GREAT PUBLIC IMPORTANCE

HAZOURI, J.

We deny appellants’ motion for rehearing, motion for rehearing en banc, motion for clarification and suggestion of great public importance, withdraw our prior opinion, and substitute the following in its place.

Marilyn Ann Nunes, in her capacity as Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, (collectively “Nunes”), appeal the trial court’s order granting final summary judgment in favor of Jesus M. Alvarez, Julissa Alvarez, and SunTrust Mortgage, Inc. (collectively “Alvarez”). Nunes filed a declaratory action against among others, Alvarez, to determine Nunes’s right to certain property which she contended was wrongfully conveyed to Alvarez through a series of conveyances originating with a forged deed. Two deeds were identified as forgeries: (1) a warranty deed recorded on October 6, 2003, in official records book 15973, page 64, in which the grantee is All State Investment, Inc.; and (2) a corrective warranty deed, amending the former deed, recorded on December 3, 2003, in official records book 16265, page 272, in which the grantee is Allstate Investment Properties, Inc.

The trial court granted final summary judgment in favor of Alvarez, finding that Nunes was equitably estopped from asserting her interest in the property. We agree with the trial court and affirm.

“The standard of review of an order granting summary judgment is de novo.” Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). “When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action.” Id. (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004)). “Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact.’ ” Id. (citations omitted).

The parties agreed in mutual motions for summary judgment that the facts were undisputed and that the case was ripe for summary judgment. As noted, the property was ultimately conveyed to Alvarez through a series of events involving several prior conveyances. The trial court’s order granting summary judgment details the facts and law upon which it relied, which we adopt as follows:

Petitioners assert that deeds transferring their interest in real property located in Palm Beach County to ALLSTATE INVESTMENT PROPERTIES, INC. all are forgeries and thus void. Further that since the deeds are void, all subsequent transfers of the real property, including the transfer to ALVAREZ are void and must be set aside.
Among the Affirmative Defenses asserted by ALVAREZ to Petitioners’ claim is equitable estoppel. ALVAREZ maintains that because Petitioners and their counsel knew of the forged Deeds but took no action to assert their interest in the real property for a period of almost two (2) years, Petitioners are barred.
The Court finds that the following facts are agreed or not in dispute for purposes of Defendants’ Motion for Summary Judgment:
A. The [Pjetitioners’ former son in law and husband, GILMAN H.C. NUNES, forged a Warranty Deed transferring Petitioners’ interest in the real property to ALLSTATE INVESTMENT PROPERTIES, INC. which was recorded in the Public Records of Palm Beach County on October 6, 2003.
B. A forged Corrective Warranty Deed transferring Petitioners’ interest in the real property to ALLSTATE INVESTMENT PROPERTIES, INC. was recorded in the Public Records of Palm Beach County on December 3, 2003.
C. ALLSTATE INVESTMENT PROPERTIES, INC., not knowing that the deed was forged, transferred the real property to DANIELLE A. INTIL-LI [sic] by Warranty Deed dated December 25, 2003.
D. DANIELLE A. INTILLI [sic], not knowing that the deed was forged, transferred the real property to ALVAREZ by Warranty Deed dated December 15, 2004.
E. Petitioners commenced this action to assert their interest in the real property on August 25, 2005.
F. Petitioners and their counsel had constructive notice of the forged Warranty Deeds on October 6, 2003 when the Deeds were recorded in Palm Beach County.
G. Petitioners’ counsel, Robert Kop-pen, who represented Petitioner, MARILYN ANN NUNES, in her divorce case from GILMAN H.C. NUNES, had actual knowledge of the forged Deeds in May of 2004 when he took the deposition of Gilman [H.]C. Nunes, the former husband.
H. Petitioners and their counsel decided to take no action to protect or assert their interest in the real property in the divorce case filed by Petitioner, MARILYN ANN NUNES, in which a claim for partition of the real property was filed.
I. ALVAREZ relied (without any knowledge of the forgery) upon the Public Records in and for Palm Beach County in acquiring the real property from DANIELLE A. INTILLI [sic]. The Public Records did not contain any notice that Petitioners had an interest in the real property that ALVAREZ purchased for value.
J. ALVAREZ, in reliance upon the Public Records as to the title of the real property, has resided in and has maintained it since December 15, 2004.
Both sides agreed that this case is appropriate for Summary Judgment and rely upon the same cases to support their positions. Coram v. Palmer, 63 Fla. 116, 58 So. 721, 722 (1912), established the rule that equitable estoppel, as it relates to title to land, is a doctrine by which a party is prevented from asserting his claim of legal title if he has through his acts, words or silence led another to take a position in which the assertion of legal title would be contrary to equity and good conscience.
The Supreme Court in Coram held:
If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right.
Coram v. Palmer, supra.
Zurstrassen v. Stonier, 7[86] So.2d 65, 68-69 (Fla. 4th DCA 2001), has held that the doctrine of equitable estoppel as set forth in Coram v. Palmer applies to forged deeds.
The former husband and son in law delivered a forged deed and received the full purchase price for the home which would have included payment from the first buyer of any interest which would have belonged to the Petitioners. Because of this fraud upon the Petitioners the former husband and former son in law would have held a portion of the proceeds of the sale in trust for the [P]etitioners. At the very least the [P]etitioners would have had a cause of action for damages against GILMAN H.C. NUNES which they decided not to pursue. They knowingly let the bad guy walk and instead they sued the subsequent buyers.
Petitioners and their counsel knowingly failed to assert their interest in the real property before ALVAREZ acquired title to the property although having numerous unrestricted opportunities to do so. They knew that the public record had deeds that the former husband had executed and the public would rely on those deeds. They may not have created the potential for harm but once they knew of it they had a duty to give notice so that others would not be harmed. Petitioners’ silence and failure to assert their claims resulted in ALVAREZ relying to their detriment upon the Public Record that did not contain any indication of Petitioners’ claimed ... interest in the subject real property.
ALVAREZ was an innocent, bona fide purchaser of the real property for value. He was the very person the public record was there to protect and the person to whom the [Petitioners’ [sic] owed a duty. The [P]etitioners’ silence when they had knowledge is tantamount to affirmative representation to the public as a whole that “go ahead and buy as I don’t have an interest in this property”. (This quote is the expression of this court and is not language from the text of any reported case.) Thus the representation element is present.
BASED ON THE FOREGOING, IT IS HEREBY CONSIDERED, ORDERED AND ADJUDGED:
Respondents, JESUS M. ALVAREZ, JULISSA ALVAREZ and SUNTRUST MORTGAGE, INC.’S, Motion for Summary Final Judgment is hereby GRANTED.
Petitioners’ Motion for Summary Judgment is hereby DENIED.
Final Judgment be and the same is hereby entered in favor of Respondents, JESUS M. ALVAREZ, JULISSA ALVAREZ and SUNTRUST MORTGAGE, INC., against Petitioners, MARILYN ANN NUNES, as the Personal Representative of the ESTATE OF KATHLEEN L. PHILLIPS and MARILYN ANN NUNES, individually, on their Third Amended Petition filed in this action and Petitioners shall take nothing from this action and go hence without day.

The record demonstrates that Nunes was aware of the forged deed prior to its transfer to Alvarez. Despite this knowledge, she failed to assert any interest in the property, and Alvarez, unaware of any encumbrances, purchased it. Nunes is equitably estopped from now asserting her interest in the property because her “silence led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.” Coram, 58 So. at 722. Nunes’s conduct clearly falls within the admonition of the court in Coram in that she knowingly, though she passively looked on, suffered Alvarez to purchase and expend money on property under an erroneous opinion of title, without making known her claim. Accordingly, we affirm the trial court’s order granting summary final judgment in favor of Alvarez, and deem that because of Nunes’s actual knowledge of the forgery prior to the purchase by Alvarez, Nunes is equitably estopped from asserting her interest.

Affirmed.

GROSS and CIKLIN, JJ., concur.