author: SALTER, J.

text:
    MILAN INVESTMENT GROUP, INC., etc., Appellant, v. CITY OF MIAMI, Miami Downtown Development Authority, Miami-Dade Property Appraiser, Miami-Dade County Tax Collector, and Florida Department of Revenue, et al., Appellees.
    No. 3D09-2955.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.
    Rehearing Denied Jan. 20, 2011.
    Linda L. Carroll, Miami and Richard L. Williams, Coral Gables, for appellant.
    Julio O. Bru, City Attorney, and Warren Bittner, Deputy City Attorney, and Henry J. Hunnefeld and John A. Greco, Assistants City Attorney; Robert S. Glazier; R.A. Cuevas, Jr., Miami-Dade County Attorney, and James K. Kracht, Assistant County Attorney; Bill McCollum, Attorney General, and Mark T. Aliff (Tallahassee), Assistant Attorney General, Department of Revenue, for appellees.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   SALTER, J.

Milan Investment, an owner of property within the boundaries of Miami’s Downtown Development Authority (DDA), appeals a final summary judgment dismissing with prejudice a challenge to the constitutionality of the DDA itself and the property tax imposed to fund the DDA. We affirm in part, reverse in part, and remand the case for further proceedings.

The central issue before the trial court at this procedural stage was whether Milan Investment’s challenge — intended for eventual certification as a class action— was barred by the four-year statute of limitations and this Court’s decision in Paresky v. Miami-Dade Board of County Commissioners, 893 So.2d 664 (Fla. 3d DCA 2005). We affirm the trial court’s dismissal ruling insofar as Milan Investment sought a declaratory judgment that the establishment of DDA and its boundaries was unconstitutional. However, because the City of Miami’s authorization of millage for properties within the DDA boundaries is enacted from year to year by the City Commission, we conclude that Paresky is inapplicable to the 2008 property tax component and that this part of the challenge should not have been dismissed with prejudice.

Background

The DDA is not an independent taxing district. It operates under the governance of the City of Miami. The DDA’s boundaries are the City’s “downtown,” and comprise less than all of the area within the City itself. The Florida Legislature authorized “downtown development districts” in 1965 as a means to “remedy existing conditions amounting to blighted business areas, halt further deterioration, and revitalize the central business districts of the larger cities where those conditions exist....” Subsequent legislation in 1971 and 1999 renewed the authorization for such districts and enacted section 166.0497, Florida Statutes (2008) (establishing procedures for altering, amending, or expanding an existing district’s boundaries).

Sections 14-51 through 14-62 of the Code of the City of Miami establish the powers, composition of the board, and procedures for the DDA. Section 14-59 requires the preparation of an annual budget, and section 14-60 authorizes an annual ad valorem tax levy to finance the DDA’s operations:

The city commission is authorized to levy an additional ad valorem tax on all real and personal property in the downtown district as described in this article, not exceeding one-half mill on the dollar valuation of such property, for the purpose of financing the operation of the downtown development authority. This levy of one-half mill per dollar ad valo-rem tax shall be in addition to the regular ad valorem taxes and special assessments for improvements imposed by the city commission.

The last amendment to the boundaries of the DDA district occurred in 2002, but the millage for each fiscal year is levied in a municipal ordinance enacted by the City Commission. In this case, the ordinance for the DDA levy challenged by Milan Investment was City Ordinance 13029, passed in September 2008. The ordinance passed a “tax of five-tenths (.5) mills on the dollar for the purpose of financing the operation of the Downtown Development Authority” for the City’s fiscal year October 1, 2008, through September 30, 2009.

Milan Investment paid the City’s basic municipal property tax and the additional amount levied for the DDA in December 2008, and it filed its lawsuit later that month. In Count I, Milan Investment sought declaratory relief that the 1965 statute authorizing the DDA was unconstitutional; that the 1971 and 1999 amendments were unconstitutional; that “DDA has been funded in violation of the law from its inception;” that “DDA’s boundaries have been expanded illegally;” and that the imposition of aggregate millage within the DDA has been non-uniform (in comparison to the millage applied to properties within the City but not within the DDA boundaries), in violation of the Florida and U.S. Constitutions. In Count II, Milan Investment sought a permanent injunction against the further imposition of any property tax for DDA, and in Count III, Milan Investment sought a refund “of all sums illegally collected ... to the full extent of all claims allowable under the statute of limitations.”

Analysis

The City and DDA are correct in their assertion that the four-year statute of limitations, § 95.11(3), applies to (and bars) Milan Investment’s challenges to the establishment of the DDA and its boundaries. Those allegedly-unconstitutional statutes and ordinances were enacted six years before (and even earlier, as to some of the enactments) Milan Investment’s lawsuit was filed. Paresky, 893 So.2d at 665.

In the case of the separate and later City ordinance imposing the half-mill DDA levy for the fiscal year beginning October 1, 2008, however, the challenged ordinance was enacted by the City within the limitation period and thus the challenge is not time-barred. The annual municipal ordinance to impose the DDA millage is readily distinguishable from cases involving special assessments approved for the repayment of industrial bonds. In Keenan v. City of Edgewater, 684 So.2d 226 (Fla. 5th DCA 1996), the four-year statute of limitations was held to commence when the special assessment for infrastructure improvements was approved by resolution (versus the date of each annual assessment and collection of the amount so approved). In Fredrick v. Northern Palm Beach County Improvement District, 971 So.2d 974 (Fla. 4th DCA 2008), certain drainage taxes and impact fees were authorized in 1990 and 1993 to fund long-term improvements. When property owners challenged those assessments in 2004, the court held that the four-year statute of limitations barred the action. As a matter of public policy, the authorizing resolutions were held to have provided adequate notice to present and future property owners, and the owners’ interests were outweighed by the taxing authority’s need for “certainty in creating water management plans and funding those plans.” Id. at 980.

Here, the City has not tied a special assessment or impact fee to any specific long-term financing for municipal improvements. The City has the authorization, but not an obligation, to impose the special levy of up to a half-mill to fund the DDA. It makes that decision year by year. The unique policy considerations regarding long-term bonds and infrastructure projects, as in Keenan and Fredrick, are inapplicable.

Conclusion

We affirm the final summary judgment as it pertains to the state and municipal actions establishing the DDA and its territorial boundaries. We reverse that portion of the judgment determining that the four-year statute of limitations bars Milan Investment’s constitutional challenge to the 2008 ordinance fixing a half-mill per dollar ad valorem tax exclusively within the boundaries of the DDA district. In doing so, we confirm the applicability of the non-claim statute, § 194.171, to that challenge. Our reversal permitting the challenge to the 2008 half-mill DDA levy also permits Milan Investment’s refund claim to proceed regarding that levy. We express no opinion regarding Milan Investment’s class certification allegations.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . Section 95.11(3), Florida Statutes (2008).

      . Ch. 65-1090 at 692, Laws of Fla.

      . As the parties have recognized in their briefs, the four-year statute of limitations is not the only timeliness issue presented on the face of the complaint. Milan Investment’s claim challenging the annual imposition of the special DDA levy also required compli-anee with the non-claim statute, section § 194.171, Fla. Stat., by commencing that challenge within 60 days of the date the tax roll was certified by the tax collector. Ward v. Brown, 894 So.2d 811 (Fla.2004).


source: Caselaw Access Project

author: THOMAS, J. WOLF, J.,

license: Public Domain

text:
    INTERSTATE BRANDS CORP./BROADSPIRE, Appellants, v. Edwin BLANCO, Appellee.
    No. 1D10-271.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.
    Rehearing Denied Jan. 6, 2011.

      Michael G. Rabinowitz of Banker, Lopez, Gassier, P.A., Tampa, for Appellants.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellee.
   THOMAS, J.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order awarding attorney’s fees and costs to Claimant’s counsel. We reverse based on Interior Custom Concepts v. Slovak, 969 So.2d 1095 (Fla. 1st DCA 2007).

Background

Claimant was injured in an industrial accident on May 5, 1997, and administratively accepted as permanently and totally disabled in 1999. The E/C paid permanent total disability (PTD) benefits and PTD supplemental benefits until January 10, 2008, when those benefits stopped without explanation. Claimant filed a petition for benefits on March 25, 2008, seeking their reinstatement, plus attorney’s fees and costs. The E/C did not file a response to the petition. On May 7, 2008, however, the E/C paid Claimant a lump sum of $9,060.49, representing PTD and PTD supplemental benefits due from January 10, 2008, with penalties and interest. The E/C also resumed paying PTD and PTD supplemental benefits.

Claimant’s counsel filed a petition for attorney’s fees on June 18, 2009, seeking $56,288.95 in fees from the E/C based on benefits counsel asserted he obtained for Claimant. In addition to certain medical benefits not at issue in this appeal, the value of those benefits included not only the $9,060.49 in past due PTD and PTD supplemental benefits, plus penalties and interest, paid on May 7, 2008, but also the present value of all future PTD and PTD supplemental benefits which Claimant’s counsel alleged to be $532,810.88.

The only testimony presented at the subsequent fee hearing came from the E/C’s adjuster, who testified that benefits stopped due to an administrative error when the claim file was transferred from another adjuster to her in January 2008. She testified the E/C never intended to deny benefits and that the failure to pay was “merely an oversight.” The adjuster did not explain why the E/C did not reinstate benefits and pay past due PTD and PTD supplemental benefits before May 7, 2008.

Following the fee hearing, the JCC initially entered an order awarding Claimant’s counsel a fee in the full amount requested. The JCC rejected the E/C’s argument that the value of future PTD and PTD supplemental benefits should not be included in determining the value of benefits obtained by Claimant’s counsel, finding that the E/C never intended to permanently suspend those benefits. Following rehearing, the JCC entered an amended order reducing the fee to $40,237.45, based on the statutory provision that a fee based on benefits obtained should include an amount equal to only 5% of benefits secured after 10 years. See § 440.34(1), Fla. Stat. (1995). The JCC, however, again rejected the E/C’s argument that the value of future PTD and PTD supplemental benefits should not be included in the fee calculation, and based the fee on calculations which included the value of future benefits.

In rejecting the E/C’s argument, the JCC first concluded the E/C’s intent was irrelevant to the issue of Claimant’s counsel’s entitlement to attorney’s fees, because the E/C did not respond to the petition for benefits within 30 days. Distinguishing this court’s opinion in Slovak, the JCC then concluded that future PTD and PTD supplemental benefits should be considered in determining the value of benefits obtained because Claimant’s counsel was responsible for reinstatement of the PTD and PTD supplemental benefits.

Analysis

Under section 440.34(3)(b), Florida Statutes (1995), the paragraph of the attorney fee statute applicable to this May 5, 1997, date of accident, a claimant is entitled to recover a reasonable attorney’s fee from an employer or carrier “in any case in which the employer or carrier files a notice of denial with the division and the injured person has employed an attorney in the successful prosecution of his claim.” Our decisions hold that an employer or carrier’s failure to pay the requested benefits, file a notice of denial, or invoke the “pay and investigate” provisions of section 440.20(4), Florida Statutes (1995), results in the E/C being responsible for Claimant’s attorney’s fees under section 440.34(3)(b). See, e.g., McDonald’s Rest. # 7160 v. Montes, 736 So.2d 768, 769 (Fla. 1st DCA 1999). Because the E/C took no action within 14 days of receipt of the petition requesting PTD and PTD supplemental benefits, but later paid those benefits, the JCC properly determined Claimant’s counsel was entitled to attorney’s fees from the E/C. Cf. Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437, 438 (Fla. 1st DCA 2004) (holding that 2002 amendment to section 440.34(3), Florida Statutes, providing that attorney’s fees shall not attach under that subsection until 30 days after the date the carrier or employer receives the petition for benefits, was substantive change and thus could not be applied retroactively).

Although the JCC correctly determined that Claimant’s counsel was entitled to attorney’s fees for obtaining reinstatement of PTD and PTD supplemental benefits, the JCC erred in considering the value of future benefits in determining the amount of fees due. Where the E/C does not intend to permanently suspend PTD and PTD supplemental benefits, our decision in Slovak holds that only the value of past due benefits should be considered in determining the amount of attorney’s fees. 969 So.2d at 1097. Here, the JCC accepted the adjuster’s testimony and specifically found that the E/C had absolutely no knowledge it had ever stopped paying benefits. Given this finding of fact, it was not permissible for the JCC to find (nor did she find) that the E/C intended to permanently suspend PTD and PTD supplemental benefits.

We do not condone the E/C’s negligent failure to timely provide disability benefits. In cases where there is competent, substantial evidence that the E/C intended to permanently suspend PTD and PTD supplemental benefits, a JCC may find the E/C intended to permanently suspend those benefits, and may properly consider the value of future benefits in determining the amount of attorney’s fees to award. Here, however, the JCC made no such finding, and the reasons for including the value of future PTD and PTD supplemental benefits in the fee calculation are no more compelling than in Slovak. We therefore reverse the order on appeal and remand with instructions that the amount of attorney’s fees be determined without considering the value of future PTD and PTD supplemental benefits.

REVERSED and REMANDED with instructions consistent with this opinion.

ROWE, J., concurs; WOLF, J., dissents with written opinion.

WOLF, J.,

Dissenting.

The cornerstone of the majority opinion is that “the JCC accepted the adjuster’s testimony and specifically found that the E/C had absolutely no knowledge it had ever stopped paying benefits. Given this finding of fact, it was not permissible for the JCC to find (nor did she find) that the E/C intended to permanently suspend PTD and PTD supplemental benefits.” The majority, therefore, determined that Interior Custom Concepts v. Slovak, 969 So.2d 1095 (Fla. 1st DCA 2007), is controlling.

I cannot agree. As the JCC correctly determined, the initial subjective intent or lack of culpability of the E/C in originally cutting off benefits is irrelevant. Competent, substantial evidence and the objective measures as reflected by the record support the JCC’s specific factual finding, “[wjithout the intervention of claimant’s counsel, claimant may never have been paid again.” This determination distinguishes the holding in Interior Custom Concepts and is the reason the JCC’s decision to award fees based on future benefits should be affirmed.

Claimant filed a petition for benefits on March 25, 2008. The E/C chose not to respond for more than 14 days. The failure to respond to the petition operated “as a denial of every allegation in the petition for benefits.” Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). This denial included the entitlement to future benefits. Benefits were not actually reinstated until May 7, 2008. The record further reflects the E/C failed to respond to telephone calls made in February and March 2008 inquiring about Claimant’s benefits.

In Interior Custom Concepts, unlike the instant case, the record, including the pleadings, specifically reflected the carrier only intended benefits to be cut off for a discrete amount of time (until a functional medical evaluation occurred). Wfliile the carrier in Interior Custom Concepts may have ultimately taken the position that further benefits were not due based on the functional medical evaluation, it never took the position on the record that these future benefits were not due. In fact, benefits were immediately reinstated after its motion to compel was denied. The objective actions of the carrier in the instant case, especially the failure to respond to the petition for benefits or reinstate benefits within 14 days, distinguish this case from Interior Custom Concepts. I would affirm.


author: DAVIS, Judge.

text:
    Douglas DUVALL, Gail Duvall, Leonard Clark, Howard Clark, Joyce Clark, and Walter Asherbraner, Appellants, v. FAIR LANE ACRES, INC., Appellee.
    No. 2D09-5089.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    Rehearing Denied Jan. 6, 2011.

      David P. Montgomery of The Montgomery Law Firm, Bradenton, for Appellants.
    J. Allen Bobo and Jody B. Gabel of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Sarasota, for Appellee.
   DAVIS, Judge.

Douglas Duvall, Gail Duvall, Leonard Clark, Howard Clark, Joyce Clark, and Walter Asherbraner (the Homeowners) challenge the trial court’s final declaratory judgment entered in favor of Fair Lane Acres, Inc. Because the judgment constituted an unlawful taking of property rights, we reverse.

Fair Lane Acres (the Community) is a mobile home subdivision originally consisting of five platted sections totaling approximately 704 lots. The plats for the Community were recorded beginning in 1956. Original deed restrictions also were recorded at that time, but by the face of the restrictions, they expired in 1979. By the terms of those 1956 restrictions, the property owners were provided a package of services that included the use of the Community’s recreational facilities (recreation hall, pool, and shuffleboard courts) and street lighting, as well as water and sewer services, which were provided through the Community’s internal water distribution lines, sewer collection lines, and lift station. The costs of providing these services were paid by the Community’s residents through annual assessments to entities created by the developer, i.e., Fair Lane Utilities, Inc., and Fair Lane Water Company. The original plans did not call for the creation of a homeowners association for providing these services.

Subsequently, Manatee County agreed to provide the residents of the Community with water and sewer services utilizing the systems already established as part of the Community’s infrastructure. In 1996, a majority of the Community’s residents established the homeowners association Fair Lane Acres, Inc. (the Association); however, the Homeowners opted not to join the Association. The Association then purchased the Community’s common areas and infrastructure facilities from Fair Lane Utilities and Fair Lane Water Company. Since that time, the Association has continuously provided water and sewer services to the Homeowners. However, unlike the Association’s members, the Homeowners have paid for only the water and sewer services and have not contributed to the costs of maintaining the infrastructure or the common areas.

Due to the passage of a Manatee County ordinance, the rates charged by the Association for water and sewer services, including the contribution to the cost of maintaining the systems, are now regulated by the Florida Public Service Commission (FPSC). FPSC allows entities such as the Association exemptions from regulatory requirements if they sell the services to only homeowner association members. By the terms of the Association’s Articles of Incorporation, all the residents of the Community, including the Homeowners, are technically “members” of the Association. The Association thus applied for and was granted the FPSC exemption in 1997.

In April 2000, the Association requested that the residents of the Community consent to submit their properties to the provisions of a recorded Declaration of Covenant and Restrictions by which the Community was designated as “housing for older persons” as defined by federal law. The Declaration specifically states that at least one person residing on each parcel must be older than fifty-five years of age and that all persons living there must be at least forty-five years of age. Based on the Declaration, the Association’s Articles of Incorporation were amended to reflect that the purpose of the Association was to provide housing for older persons. The Association also amended its Bylaws to provide that “[n]o sale, conveyance, or lease of a lot, and/or the dwelling unit thereon, shall be binding on the [Association] until the Board [of Directors] renders its written approval.” The Bylaws also provide that the Board of Directors will have the authority to establish the fee to be assessed for maintenance of the common areas, including the water and sewer systems.

A majority of the Community’s residents consented to submitting their properties to the provisions of the Declaration; the Homeowners, however, did not. Similarly, the Homeowners refused to comply with the Association’s requirement that they execute an Agreement for Water and Sewer Utility Services, which would obligate the Homeowners to “comply with all governmental regulations and the Corporation’s Articles of Incorporation, Bylaws, and Rules and Regulations as promulgated by the Board of Directors.”

The Association then brought a declaratory action against the Homeowners, seeking a determination that it was not required to unbundle the services it provided in order to offer the Homeowners only water and sewer services but not other common area services and that it could require the Homeowners to execute the Agreement, subjecting them to the Association’s Articles of Incorporation and Bylaws. The trial court entered its final judgment, declaring that if the Homeowners “desire to utilize the services available from [the Association], they must contract to do so” and that “the contract terms ... may include a provision indicating that [the Homeowners] are subject to the Articles of Incorporation and By-laws.” The trial court also determined that the Homeowners “may not arbitrarily choose which services and facilities to which they will subscribe.” Finally, the trial court came to the specific conclusion that “[t]he arguments raised by [the Homeowners] that their property rights outweigh the [trial court’s] above findings are not well founded” because “the restriction of occupancy to persons fifty-five ... years of age or older is a restriction of occupancy, not a restriction on property rights.” And in any event, according to the trial court, since the Homeowners have not consented to the terms of the Declaration of Covenants and Restrictions, its age limitation provision would not apply to them. It is this final judgment from which the Homeowners now appeal.

We agree with the Homeowners that the trial court erred in requiring them to execute the Agreement in order to continue receiving water and sewer services from the Association. The Agreement specifically requires them to submit to the applicability of the Association’s Articles of Incorporation and Bylaws, both of which implement the conversion of the Community to “housing for older persons” by placing age limitations on the residents and requiring Association approval prior to any sale of the Homeowners’ real property.

The most valuable aspect of the ownership of property is the right to use it. Any infringement on the owner’s full and free use of privately owned property, whether the result of physical limitations or governmentally enacted restrictions, is a direct limitation on, and diminution of, the value of the property and the value of its ownership and accordingly triggers constitutional protections.

Snyder v. Bd. of Cnty. Comm’rs, 595 So.2d 65, 70 (Fla. 5th DCA 1991), quashed on other grounds, 627 So.2d 469 (Fla.1993). As such, the trial court erred in concluding that the age restriction was a restriction on occupancy and not a restriction on “property rights.”

To impose a limitation on who can use and enjoy property is a direct restriction on the Homeowners’ ownership rights in their properties. See Black’s Law Dictionary 1215 (9th ed. 2009) (defining “ownership” as “[t]he bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others”). Similarly, to restrict the ability to transfer property by imposing an obligation to seek the approval of the Association is an improper infringement on the Homeowners’ property rights. These property rights are constitutionally protected, and the trial court erred in ordering the Homeowners to sign the Agreement by which they would be required to surrender these rights. See Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 964 (Fla.1991) (“Property rights are among the basic substantive rights expressly protected by the Florida Constitution. Art. I, § 2; Fla. Const.”).

Accordingly, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.

      . Although Manatee County does provide water and sewer services directly to several properties located on the peripheral lots of the Community, it will not agree to provide the Homeowners with water and sewer services unless the Association consents, and the Association has refused to do so.


author: MAY, J.

text:
    Myron Alphesus STANLEY, Jr., Appellant, v. QUEST INTERNATIONAL INVESTMENT, INC., Appellee.
    No. 4D09-1690.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Rehearing Denied Jan. 26, 2011.
    Eric A. Jacobs and Lirón Offir of Jacobs/Offir, PL, Hollywood, for appellant.
    No appearance filed for appellee.
   MAY, J.

This landlord-tenant dispute comes to us on the following certified question from the County Court for Broward County.

WHETHER A TENANT CLAIMING A DEFECTIVE OR NON-EXISTENT THREE-DAY NOTICE IN A RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT REGISTRY AS SET FORTH IN FLORIDA STATUTE § 83.60(2) IN ORDER TO DEFEND THE ACTION BASED ON THE DEFECTIVE OR NON-EXISTENT THREE-DAY NOTICE.

We answer the question in the affirmative and affirm the decision of the County Court.

The landlord filed a removal action against the tenant using a Florida Bar fill-in-the-blank form for the complaint and for the attached notice of “demand for payment or possession.” The tenant filed a timely motion to dismiss, or in the alternative, motion to determine rent, but did not deposit the undisputed rent into the court registry as required by section 83.60(2), Florida Statutes (2009).

The County Court Judge entered a detailed “ORDER OF DEFAULT, ORDER DENYING TENANT’S MOTION TO DISMISS COMPLAINT, AND CERTIFICATION TO THIS COURT AS A QUESTION OF GREAT PUBLIC IMPORTANCE.” The court held “if the [tenant] desired to defend the action based on a defective three-day notice, then he was required, at a minimum, to have tendered the undisputed rent into the court registry.” The court certified a question of great public importance due to conflicting decisions within the circuit. The court contemporaneously entered a default judgment for eviction. From the order and judgment, the tenant appealed directly to this court.

We have de novo review of questions involving statutory interpretation. E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009). “The intent of the Legislature is the polestar of statutory construction. To discern this intent, the Court looks ‘primarily' to the plain text of the relevant statute, and when the text is unambiguous, our inquiry is at an end.” Id. (internal citations omitted).

The tenant argues that a proper three-day notice is a statutory condition precedent to filing an action for removal of a tenant and a defective notice deprives the trial court of jurisdiction to remove the tenant. The landlord responds that the deposit of rent into the court registry is a prerequisite to any defense other than payment. We find the statute’s plain language answers the question. We agree with the landlord and affirm the decision of the county court.

Section 83.60(2), Florida Statutes (2009), defines the tenant’s responsibilities in a suit with the landlord.

In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent.... The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid ... constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant ... to issue without further notice or hearing thereon.

§ 83.60(2), Fla. Stat. (2009) (emphasis added). The statute plainly requires the payment of rent if the tenant chooses to assert any defense other than payment, and failure to make the necessary deposit constitutes an absolute waiver allowing for immediate default judgment in favor of the landlord.

We have previously held the notice requirement unnecessary to establish subject matter jurisdiction. Bell v. Kornblatt, 705 So.2d 113, 114 (Fla. 4th DCA 1998). Nevertheless, the tenant suggests that giving the statute its plain meaning offends public policy because the landlord can obtain a default judgment regardless of whether proper notice is given. Despite any emotional appeal of the tenant’s policy argument, it is not our place to disregard plain statutory text. Policy decisions belong to the legislature. Barr v. State, 507 So.2d 175, 176 (Fla. 3d DCA 1987).

As Judge Lee wrote:

The Legislature has provided that failure to post unpaid rent is not merely a waiver; it is an absolute waiver. The landlord is not merely entitled to a judgment; the landlord is entitled to an immediate judgment. The use of such strong language indicates to this Court that the Legislature was comprehensive in its intentions as to the effect of the statute.

Quest Int'l Inv., Inc. v. Stanley, 16 Fla. L. Weekly Supp. 586b (Fla. Broward Cty. Ct. Apr. 14, 2009) (alterations in original). The tenant is required to deposit the disputed rent into the court registry to assert any defense other than payment. The plain language of the statute requires it. The court correctly entered the default judgment.

We answer the certified question in the affirmative and affirm the order and default judgment.

Affirmed.

DAMOORGIAN and GERBER, JJ., concur.

      . The notice and complaint failed to contain a signature on the notice, alleged conflicting dates of service on the notice, failed to specify the time and specified method of delivery, contained an improper date for payment on the notice, and failed to identify the attorney’s signature on the complaint.


author: PER CURIAM.

text:
    S.V., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-494.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Rehearing and Rehearing En Banc Denied Jan. 6, 2011.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Negron v. State, 306 So.2d 104 (Fla.1974).


author: MONACO, C.J.

text:
    Brittney M. WYRICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-367.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.
    Rehearing Denied Jan. 6, 2011.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, C.J.

This appeal requires us to interpret sections 322.34(5) and 322.34(10), Florida Statutes (2009), in order to determine under the facts of this case whether the appellant, Brittney M. Wyrick, should have been charged with a third-degree felony or a first-degree misdemeanor for the crime of driving while her license was suspended. Because we conclude that she was properly charged with a felony, we affirm.

Although the appellant was initially accused of three offenses, only one of these is pertinent for purposes of this appeal. The critical count in the information against her charged Ms. Wyrick with a third-degree felony for driving without a license after her license had been revoked pursuant to section 322.264, Florida Statutes (2009), as an habitual traffic offender (“HTO”). That statute, among other things, relates that if a person whose record as maintained by the Department of Highway Safety and Motor Vehicles reflects that he or she has accumulated three convictions within a 5-year period for DUI or for driving a motor vehicle while his or her license is suspended or revoked (among other reasons), then that person is designated as an HTO. Section 322.34(5), Florida Statutes, in turn, makes it a third-degree felony for one whose license is suspended or revoked as an HTO, to drive a motor vehicle upon the highways of Florida. Thus, if a person is an HTO and is caught driving in the State, he or she is to be charged with a felony.

The rub comes because in 2008 the Legislature adopted section 322.34(10)(a)6., Florida Statutes, which states that notwithstanding any other provision of section 322.34, if the offender does not have a prior forcible felony conviction, and if the person is designated an HTO as a result of the suspension of the offender’s license because of certain purely financial defaults (as well as some other enumerated reasons not germane to this case), the offender is only to be punished for a first-degree misdemeanor upon a second or subsequent conviction for the same offense.

After being charged, Ms. Wyrick filed a motion to dismiss the felony charge of driving without a license and asked that the State be compelled to amend the charge to a first degree misdemeanor. In doing so Ms. Wyrick attached her driving record which reflected that she had been convicted of DUI in 2004, as well as two driving with license suspended or revoked offenses, both in 2006. The 2006 charges were, however, financial responsibility suspensions; namely, driving without insurance.

Ms. Wyrick noted that although she drove her vehicle while being labeled an habitual offender under section 322.34(10), her current offense should have been charged only as a first degree misdemean- or. She takes this position because two of the offenses for which she had previously been convicted fell within the exceptions listed in subparagraph (l)(a)4. To understand her argument, it is helpful to examine section 322.34(10) with greater particularity. That statute provides in pertinent part:

(a) Notwithstanding any other provision of this section, if a person does not have a prior forcible felony conviction ..., the penalties provided in paragraph (b) apply if a person’s driver’s license or driving privilege is canceled, suspended, or revoked for
1. Failing to pay child support....;
2. Failing to pay any other financial obligation ak provided in s. 322.245....;
3. Failing to comply with a civil penalty. ...;
4. Failing to maintain vehicular responsibility. ...;
5. Failing to comply with attendance or other requirements for minors ....; or
6. Having been designated a habitual traffic offender under s. 322.264(l)(d) as a result of suspensions of his or her driver’s license or driver privilege for any underlying violation listed in subparagraphs 1.-5.
(b)2. Upon a second or subsequent conviction for the same offense of knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in sub-paragraphs (a)l. — 6., a person commits a misdemeanor of the first degree....

(Emphasis supplied).

Ms. Wyrick argues in this court as she did in the motion to dismiss below that because two of the suspensions that were the basis for her current classification as an habitual offender were premised on her failure to maintain auto insurance, she should only have been charged with a misdemeanor. Since under her theory she should have been charged with a misdemeanor, and since the other two counts that she faced were also misdemeanors, she moved the circuit court to transfer her case to the county court. There was no dispute at the motion hearing that Ms. Wyrick was an HTO and that she had no prior forcible felonies. Her habitual traffic offender status was based on the prior DUI and two other suspensions that fell specifically within the ambit of section 322.34(10)(a)4., Florida Statutes.

The State’s position has been and remains that for Ms. Wyrick to prevail, all three prior convictions would have to fall within the listed exceptions under (10)(a) in order for the current offense to be charged as a misdemeanor rather than a felony. In other words, for the current charge to qualify as an exception to the general rule in section 322.34(5), Florida Statutes, it would have to fit all of the criteria set forth in the exception. The current charge did not come within the statute in the view of the State, however, because of the preexisting DUI conviction. Thus, the State reads (10)(a)6. to require all of the three prior convictions to be within (10)(a)l.-5. in order for the statute to apply.

The defense counters that because (10)(a)6. uses the word “suspensions,” meaning more than one prior suspension, it did not require that “all” three prior suspensions fall within (10)(a)l.-5. Thus, as “some” of Ms. Wyrick’s prior convictions were based on financial defaults, (10)(a)6. should apply. In addition, she argues that because the language was vague, it should be interpreted in her favor, and she should have been charged only with a misdemeanor.

The trial court, considering this a case of first impression, disagreed with the defense and reasoned that Ms. Wyrick only partially attained her status as an HTO from her financial defaults. In other words, without the DUI, the two driving while license suspended or revoked convictions would not have resulted in her HTO status. The court considered the intention of the Legislature in adopting the statutes in question and concluded that the Legislature intended for Chapter 322 to be construed to discourage repeat offenders, such as habitual traffic offenders, from driving in Florida, and that for section 322.34(10)(a)6. to be of benefit to the appellant, all three priors would have to be based upon the exceptions listed in subsection (10)(a)l.-5. Finally, the trial court explained that if it reduced Ms. Wyrick’s charge to a misdemeanor, this would, in effect, ignore her status as an HTO, and undermine the legislative intent in devising the punishment schedule. After the court denied her motion, Ms. Wyrick entered a plea of guilty to the charge, reserving her right to appeal the denial of her motion to dismiss.

We think the trial judge got it right. One of our primary responsibilities in construing a statute is to effectuate the intention of the Legislature in creating the statute. See State v. J.M., 824 So.2d 105, 109 (Fla.2002). Moreover, it is our obligation when doing so to consider the statutory framework as a whole, including such matters as the evil addressed by the statute in question and the interrelationship between the statutes that make up the framework, as well as the language used by the Legislature and other considerations. See Bautista v. State, 863 So.2d 1180, 1186 (Fla.2003).

In the present case the intent we are seeking is specifically provided by the Legislature in section 322.263, Florida Statutes (2009). That statute, entitled “Legislative Intent,” reads as follows:

It is declared to be the legislative intent to:
(1) Provide maximum safety for all persons who travel or otherwise use the public highways of the state.
(2) Deny the privilege of operating motor vehicles on public highways to persons who, by their conduct and record, have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state and the orders of the state courts and administrative agencies.
(3) Discourage repetition of criminal action by individuals against the peace and dignity of the state, its political subdivisions, and its municipalities and impose increased and added deprivation of the privilege of operating motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.

We conclude, as did the trial court, that the Legislature intended Chapter 322 to discourage repeat offenders, such as HTOs, from driving -within Florida. Our construction of section 322.34(10), Florida Statutes, therefore, must be guided by this intention.

Section 322.34(5), Florida Statutes, makes it a third-degree felony for one whose driver’s license has been revoked as an habitual traffic offender to drive a motor vehicle upon the highways of the State. Thus, the two elements of the offense are that a defendant’s license is revoked as an “habitual offender,” and that the person has driven a motor vehicle upon the highways of the State. As previously noted, in order to be an habitual traffic offender pursuant to section 322.264, Florida Statutes, a person’s record, as maintained by the Department of Highway Safety and Motor Vehicles must show that the person had accumulated three convictions within a 5 year period. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002), review denied, 839 So.2d 697 (Fla.2003).

By adopting section 322.34(10), Florida Statutes, the Legislature made an exception to the general scheme of Chapter 322 by granting certain leniency to persons who became an HTO only because of those reasons listed in (10)(a)l. — 5. To say that one could take advantage of that legislative leniency by having some but not all of the violations based on failures of financial responsibility would appear to fly in the face of the intention to discourage repeat offenders from driving on Florida’s streets and highways.

Here, Ms. Wyrick was unquestionably designated an HTO, but not solely as a result of the underlying defaulted financial responsibilities. Only with the addition of the DUI did Ms. Wyrick become qualified as an HTO. As we construe paragraph (10)(a)6. to apply only if all three underlying violations utilized to designate Ms. Wy-rick an HTO would have fallen within (10)(a)l.-5., and as she does not meet this statutory requirement, we agree with the trial court that she was properly charged with a third-degree felony.

Finally, we note, as did the trial court, that to adopt Ms. Wyrick’s position would essentially require us to eliminate her status as an HTO, even though she has worn that badge for three years. The result that she seeks would be absurd in light of the statutes in question, because it would render section 322.34(5) ineffective in this instance. In interpreting a statute courts should avoid absurd results. See State v. Webb, 398 So.2d 820, 824 (Fla.1981).

Accordingly, we affirm the judgment and sentence in all respects.

AFFIRMED.

SAWAYA and PALMER, JJ„ concur.


author: NORTHCUTT, Judge.

text:
    REVELLO MEDICAL MANAGEMENT, INC., and Martin Revello, Petitioners, v. MED-DATA INFOTECH USA, INC., Respondent.
    No. 2D10-534.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.

      Stefan V. Stein, Christine A. Donoghue, and Tina E. Dunsford of GrayRobinson, P.A., Tampa, for Petitioners.
    Donald A. Mihokovich of Adams and Reese LLP, Tampa, for Respondent.
   NORTHCUTT, Judge.

Med-Data Infotech, Inc., sued Revello Medical Management, Inc., Martin Revello (collectively Revello), and others seeking damages and injunctive relief for misappropriation of trade secrets. See Ch. 688, Fla. Stat. (2008). In simple terms, Med-Data claims that one of its former employees developed a software program to aid in medical insurance billing and that the employee took the program with him when he began working for Revello. Revello is marketing a computer program that Med-Data claims is based on its trade secrets. Med-Data sought to discover the computer source code used in Revello’s program and, over Revello’s objections that its program was a trade secret, the circuit court ordered it to produce the program to Med-Data’s expert. Revello seeks a writ of certiorari to quash the order. We grant the writ and quash the order requiring production.

Med-Data began this dispute when it brought suit asserting that its own trade secret had been misappropriated. It concedes that before proceeding with discovery in this kind of suit, the plaintiff must identify with reasonable particularity the nature of the trade secret involved. See Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 148 F.Supp.2d 1322, 1325 (S.D.Fla.2001). The plaintiff must, as a threshold matter, establish that the trade secret exists. To do so, it must disclose the information at issue. Lovell Farms, Inc. v. Levy, 641 So.2d 103, 104-05 (Fla. 3d DCA 1994). Med-Data contends that it has met its burden, but we disagree.

In response to a defense discovery request for its computer source code, Med-Data stated: “[a]s to source codes, [Med-Data] declines to publish the exact nature of the trade secrets.” Under Florida’s “at issue” doctrine, “[w]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence,” he waives his right to claim that the matter is privileged in pretrial discovery. Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957); Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 508 (Fla. 2d DCA 2006) (quoting Savino). Thus it is clear that Med-Data has neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists. As such, it was not entitled to discover the computer source code used in Revello’s program.

Still, Med-Data is entitled to some protection of its alleged trade secret in pretrial discovery. Ordinarily such matters should be submitted to the circuit court to conduct an in-camera review. But because the alleged trade secret is a computer program, the evidence of its existence likely will consist of computer source code. We presume this from the fact that Med-Data is seeking to discover the computer source code of Revello’s program in order to prove that Revello has misappropriated the alleged trade secret. If the circuit judge does not have the requisite experience in examining such code, he may wish to appoint a neutral computer expert to review Med-Data’s program. If it is established that Med-Data indeed has a trade secret to protect, the court may revisit its discovery request for Revello’s computer source code and Revello’s objections to discovery and craft similar protection for Revello’s alleged trade secret.

We grant the petition for writ of certio-rari and quash the order compelling discovery of Revello’s computer code.

ALTENBERND and WALLACE, JJ., Concur.

      . The other parties in the circuit court proceeding did not join in or oppose this petition. We have omitted them from the style of this case to avoid confusion.


text:
    Douglas STALLEY, Appellant, v. Harrison WILLIFORD, as Representative of the Estate of Pamela Lynn Williford, Deceased, Appellee.
    No. 2D09-4635.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.

      Laura Whitmore of Gunn Law Group, Tampa, and Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellant.
    Brian E. Johnson of Brian E. Johnson, P.A., Seminole, for Appellee.
   NORTHCUTT, Judge.

Pamela Lynn Williford died in 2008, leaving two minor children as the sole heirs of her intestate estate. Douglas Stalley was tendered by the children as a suitable personal representative, but the circuit court appointed Williford’s father, Harrison Williford, instead. This appointment was contrary to the statute prescribing the order of preference for appointment of a personal representative in this case. Accordingly, we reverse.

The statute, section 733.301, Florida Statutes (2008), sets forth the following order of preference in appointment of a personal representative of an intestate estate:

1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3.The heir nearest in degree.

§ 733.301(l)(b).

There was no surviving spouse in this case. Douglas Stalley was the person selected by both heirs, acting through the guardians of their property as authorized under section 733.301(2). Thus, Stalléy should have been appointed unless otherwise disqualified. Cf. §§ 733.302, 303 (providing qualifications for personal representative); In re Estate of Snyder, 333 So.2d 519, 521 (Fla. 2d DCA 1976) (holding, under earlier version of statute, that court did not abuse its discretion in declining to appoint person with statutory preference where he lacked “the qualities and characteristics necessary to properly perform the duties”).

There was a complete absence of evidence to suggest that Stalley was unfit to serve. Thus, the court abused its discretion by appointing the decedent’s father rather than the representative chosen by-the heirs.

Reversed and remanded.

ALTENBERND and KHOUZAM, JJ„ Concur.


author: STEVENSON, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Ingrid CIRILLO-MEIJER, Appellee.
    No. 4D09-667.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Caryn L. Bellus of Kubicki Draper, Miami, for appellant.
    David H. Charlip of Charlip Law Group, LC, Aventura, for appellee.
   STEVENSON, J.

While driving a car owned by Irma Cohen, Ingrid Cirillo-Meijer was rear-ended by Felix Martinez. Cirillo-Meijer settled with Martinez and then sued GEICO, Cohen’s uninsured/underinsured motorist carrier, alleging the accident had caused her to suffer TMJ and the $10,000 settlement with Martinez had been insufficient to compensate her for the injuries. The trial court ultimately directed a verdict in favor of GEICO with regard to the permanency threshold necessary to support the award of non-economic damages, leaving for the jury only the matter of the plaintiffs future and past medical expenses. The jury awarded $25,545 for past medical expenses and $13,500 for future medical expenses. The trial court permitted GEI-CO a set-off for the PIP benefits already paid by GEICO, but denied it a set-off for the settlement with Martinez. In this appeal, GEICO insists the trial court erred by refusing to setoff the settlement with Martinez from the jury’s damages award. And, in her cross-appeal, Cirillo-Meijer argues the trial court erred in directing a verdict on the permanency threshold thus taking the issue of non-economic damages from the jury. We find merit in GEICO’s argument concerning the set-off, but affirm the directed verdict on the permanency threshold.

Set-Off

Section 627.727, Florida Statutes, authorizes an injured party to settle with the other driver and his liability insurer for less than the amount of the damages claimed, but requires the injured party to give the UM carrier notice of the settlement and gives the UM carrier the right to a set-off against “total damages,” defined as “the full amount of damages determined to have been sustained by the injured party, regardless of the amount of underin-sured motorist coverage.” § 627.727(6)(a)-(c), Fla. Stat. (2010). The UM carrier is entitled to the set-off, however, “only ... where the [UM] award duplicates benefits already recovered from the tortfeasor’s liability insurer.” State Farm Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 571 (Fla. 2d DCA 1999). The burden is on the UM carrier to demonstrate that the plaintiffs receipt of the settlement and the full amount of the jury’s damages award will result in a duplication of benefits. See Aetna Cas. & Sur. Co. v. Langel, 587 So.2d 1370, 1373 (Fla. 4th DCA 1991).

The instant case is similar to Somoza v. Allstate Indemnity Co., 929 So.2d 702, 704 (Fla. 3d DCA 2006). There, the plaintiff settled with the tortfeasor’s insurer for the $10,000 policy limits. The plaintiff then sued her UM carrier, seeking past and future economic and non-economic damages. The jury awarded sums for past medical expenses and lost earnings, but found the plaintiff did not sustain a permanent injury and thus awarded no non-economic damages. The jury’s verdict was held to represent a “total damages” award, despite the jury’s failure to actually award non-economic damages. The appellate court thus affirmed the trial court’s grant of a set-off to the UM insurer. In so doing, the court noted the plaintiff could have avoided the issue by submitting to the jury only the issue of economic damages, but she had failed to do so. The court also rejected the plaintiffs attempt to avoid a finding of a duplication of benefits by characterizing the settlement with the tortfeasor as a settlement for solely non-economic damages. See also Allstate Ins. Co. v. Campbell, 842 So.2d 1031 (Fla. 2d DCA 2003) (finding jury verdict represented “total damages” and UM insurer entitled to set-off where plaintiff sought both economic and non-economic damages and jury returned a verdict awarding economic damages, but nothing for pain and suffering, despite finding plaintiff suffered a permanent injury).

Here, as in Somoza and Campbell, the plaintiff pled and tried the issues of both economic and non-economic damages. In Somoza and Campbell, it was the jury that determined the plaintiff was entitled to no non-economic damages. In the instant case, by granting a directed verdict in favor of the UM insurer on the permanency threshold, the trial court resolved the issue of non-economic damages, finding, as a matter of law, that the plaintiff was not entitled to the same. The fact that it was the trial court that determined the plaintiff was not entitled to non-economic damages does not render the jury verdict any less of a “total damages” award. Thus, as in Somoza and Campbell, the UM insurer was entitled to the set-off.

Galante v. USAA Casualty Insurance Co., 695 So.2d 456, 457 (Fla. 4th DCA 1997), the authority relied upon by Cirillo-Meijer, is distinguishable. In Galante, the plaintiff sought only non-economic damages in the suit against the UM insurer and the jury was never called upon to decide the extent of the plaintiffs economic losses; it was thus impossible to determine whether the undifferentiated settlement represented a duplication of benefits. Id. Cirillo-Meijer pled and tried entitlement to economic and non-economic damages.

Permanency Threshold

Cirillo-Meijer presented evidence that, at the time of the trial, the medical treatment she had received for her TMJ had failed to afford her complete relief and, thus, surgery had been recommended. The surgeon with whom Cirillo-Meijer had consulted testified the surgery would require him to make an incision by Cirillo-Meijer’s left ear so that he could either put the disc in the jaw back into place or, if it was damaged, remove the disc and replace it with fat taken from her abdomen. The surgeon testified the surgery would leave a 1½ inch to 2 inch scar by the ear and possibly a 1 inch or smaller scar on the abdomen. At the time of trial, Cirillo-Meijer had not yet had the surgery, but she did testify she had scheduled the same. Cirillo-Meijer insists that the testimony that she would suffer a scar as the result of the surgery she planned to have was sufficient evidence from which the jury could have found that she had sustained an injury resulting in “[significant and permanent scarring or disfigurement”—one of the ways in which a plaintiff may satisfy the permanency threshold necessary to support the award of non-economic damages in a tort suit against the owner or operator of a motor vehicle or his or her insurer. § 627.737(2)(c), Fla. Stat. (2010). She thus contends it was error for the trial court to direct a verdict on the issue. We disagree.

Generally, “whether a facial scar is a disfigurement is for the jury’s observation and evaluation and is not subject to determination as a matter of law.” Cohen v. Pollack, 674 So.2d 805, 806 (Fla. 3d DCA 1996). Here, the plaintiff does not yet have the scar. Further, assuming, without deciding, that a scar which the plaintiff will sustain if she has surgery in the future could satisfy the permanency threshold so as to support an award of non-economic damages, the evidence in the instant case was wholly insufficient to permit the jury to make a determination that the scar would rise to the level of “significant and permanent.” Here, the jury was told only that the surgery would result in a scar 1⅝ to 2 inches in length and near the plaintiffs ear and, depending on the condition of the disc in the jaw, possibly a 1 inch scar on the abdomen. There was no evidence regarding the extent to which any scarring would be visible and remain so, or the extent to which the scars would be discolored or raised, i.e., there was no evidence apart from the length that would have permitted a jury to find that the scar rose to the level of “significant and permanent.” Cf. Soto v. Scaringelli, 189 N.J. 558, 917 A.2d 734, 743 (2007) (interpreting a statute similar to section 627.737(2) and holding that “significant disfigurement or significant scarring” threshold is satisfied when “on an objective basis, the disfigurement or scarring substantially ‘impairfs] or injure[s] the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, deforming her in some manner’ ” and that “a number of factors are relevant, ‘including appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters’ ”) (quoting Gilhooley v. Cnty. of Union, 164 N.J. 533, 753 A.2d 1137 (2000)).

Accordingly, the judgment on appeal is reversed and the matter remanded to the trial court with directions that the court reduce the final judgment in the amount of $10,000 to reflect Cirillo-Meijer’s settlement with the tortfeasor and his insurer.

Affirmed in part and Reversed in part.

GROSS, C.J., and FARMER, J„ concur.

      . We note that, despite appellant's arguments to the contrary, she may not return to court at a later date and again litigate her entitlement to non-economic damages. See Faulkner v. Allstate Ins. Co., 367 So.2d 214, 217-18 (Fla. 1979); Calhoun v. N.H. Ins. Co., 354 So.2d 882, 883 n. 4 (Fla.1978).


text:
    Jeffrey WATSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1660.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.
    Rehearing Denied Jan. 10, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

Jeffrey Watson (“Watson”) appeals his conviction and sentence for trafficking in cocaine. We reverse.

The police pulled Watson over for driving erratically and found a plastic bag with 124.6 grams of cocaine under the driver’s seat. The police arrested Watson, and the State charged him with trafficking in cocaine.

At trial, Watson’s defense was that he did not know about the cocaine because the car did not belong to him. The arresting officer testified and took photographs showing a plastic bag protruding from under the driver’s seat. However, the officer never testified that he saw Watson hide the bag. Further, there were no fingerprints or other admissible evidence linking Watson to the bag of cocaine.

During closing arguments, defense counsel argued, consistent with his defense, that there was no evidence that Watson placed the drugs under the seat. In rebuttal, the State argued that it could be inferred from the bag’s position that Watson was trying to conceal the cocaine before the police stopped him. Defense counsel objected three times concerning the State’s reference to concealment. Each time, the trial court overruled the objection. The trial court also denied defense counsel’s motion for mistrial. The jury convicted Watson, and the trial court sentenced him to ten years in prison with a three-year minimum mandatory sentence. Watson appealed.

On appeal, Watson asserts that the trial court erred in overruling defense counsel’s objections to the State’s improper rebuttal argument. In essence, because there was no evidence of Watson’s concealment, it was highly prejudicial, and reversible error to argue facts not in evidence. The State contends that the trial court did not err in overruling defense counsel’s objections to rebuttal argument as the comments were reasonable inferences from the evidence and invited responses to the defense closing. We agree with Watson and reverse.

A prosecutor must confine his or her closing argument to evidence in the record and must not make comments which could not be reasonably inferred from the evidence. See Ruiz v. State, 743 So.2d 1, 4 (Fla.1999); Brown v. State, 18 So.3d 1149, 1150 (Fla. 4th DCA 2009). Further, a proper rebuttal argument is limited to a reply to what has been brought out in the defendant’s closing argument. 18 So.3d at 1150.

Here, there was no trial evidence presented to infer that Watson hid the drugs under the driver’s seat. Defense counsel’s closing argument discussed the absence of evidence proving Watson’s knowledge of the cocaine. Knowledge, in turn, is an essential element of the crime charged. We determine that the prosecutor’s rebuttal argument, inferring that from the bag’s position Watson was trying to conceal the drags before the police stopped him, was improper and reversible error. Thus, the trial court erred in overruling defense objections to the prosecutor’s rebuttal argument.

Accordingly, we reverse and remand for a new trial.

Reversed and remanded.


author: FARMER, J.

text:
    POINT EAST FOUR CONDOMINIUM CORPORATION, INC., Appellant, v. ZEVULONI & ASSOCIATES, INC., Appellee.
    No. 4D09-3221.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Joshua A. Berkowitz of Law Offices of Daniel E. Jonas, P.A., Miami Beach, for appellant.
    Erwin Rosenberg, Miami Beach, (withdrawn as counsel after filing brief), for appellee.
   FARMER, J.

We reverse the trial court’s denial of prevailing party attorneys fees under the contract between the parties. The contract provided that “the prevailing party in any action shall be entitled to reasonable attorney’s fees.”

The Condominium Association hired Ze-vuloni & Associates as a public insurance adjuster to handle its claim for benefits under a casualty insurance policy. The contract for adjustment provided for a fee of 10% of the proceeds recovered by the Association. There has never been any recovery of insurance benefits by the Asso-eiation. Nevertheless the public adjuster sued the Association for its fee. Its suit was dismissed for failure to state a cause of action for breach of the fee agreement, without prejudice to refile when a fee became due. While the public adjuster’s motion for rehearing of that decision was still pending, the Association moved for attorneys fees under the contract. The trial court denied the motion for fees finding neither party to be the prevailing party.

The adjuster’s suit for fees without any recovery by the insured Association was meritless and was properly dismissed. The Association was undeniably the prevailing party in that action.

We review the interpretation of contractual provisions de novo as a pure matter of law. Stevens v. Zakrzewski, 826 So.2d 520, 521 (Fla. 4th DCA 2002). Courts have no discretion to decline to enforce this kind of contractual attorneys fees provision. Rose v. Rose, 615 So.2d 203, 204 (Fla. 4th DCA 1993) (where contract provides for attorneys fees to prevailing party in litigation arising out of contract trial judge has no discretion to decline to enforce the contractual provision). When one party loses in an action for breach of contract, the adverse party is the prevailing party. Scutti v. Daniel E. Adache & Assoc. Arch. P.A., 515 So.2d 1023, 1024 (Fla. 4th DCA 1987). The public adjuster’s suit for a fee under the contract was manifestly “any action” as that term was used in the attorneys fee provision of the contract. The trial judge had no choice but to grant the motion for fees and proceed to fix the amount of a reasonable fee.

Reversed.

WARNER and POLEN, JJ., concur.


author: WHATLEY, Judge.

text:
    John Dargan STANTON, III, Appellant, v. Susan Kay STANTON, Appellee.
    No. 2D10-919.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2010.

      John E. Johnson and Janelle A. Weber of Shutts & Bowen, LLP, Tampa, for Appellant.
    Amy D. Singer and Eliane I. Probasco of Allen Dell, P.A., Tampa, for Appellee.
   WHATLEY, Judge.

In this dissolution of marriage proceeding, the Husband, John Stanton, appeals a nonfinal order awarding the Wife, Susan Stanton, temporary alimony, child support, and attorney’s fees. The trial court awarded the Wife $75,000 per month in temporary support for her and the parties’ minor child and a total of $336,946.48 in temporary attorney’s fees and costs. We agree with the Husband that the trial court’s finding that the Wife needed this amount of monthly support is not supported by competent, substantial evidence in the record and reverse the award of monthly support. We also agree with the Husband that the trial court’s award of temporary attorney’s fees must be reversed because the trial court failed to make any findings regarding the reasonableness of the hourly rate and time expended. We do not find merit in his argument regarding the prior financial agreement of the parties and affirm on that point without discussion.

When a trial court evaluates whether an award of temporary alimony is proper, it must consider the parties’ standard of living in addition to the need of one spouse and the other spouse’s ability to pay. de Gutierrez v. Gutierrez, 19 So.3d 1110, 1113 (Fla. 2d DCA 2009). In Ghay v. Ghay, 954 So.2d 1186, 1190 (Fla. 2d DCA 2007), this court noted that it was much more difficult to establish that a trial court abused its discretion or that a harmful error of law occurred in an order awarding temporary alimony. However, this court nevertheless reversed the temporary award of alimony and child support because the amount awarded was greater than the evidence establishing the wife’s need. Id. at 1189. In Ghay, the wife testified that she needed between $7000 and $8700 per month to meet the family’s expenses and she did not differentiate between her expenses and the children’s expenses. Id. However, the trial court awarded a combined total of almost $13,000 a month for the wife and the children. Id. This court held that even though the award was temporary, it had to be reversed because it did not comport with the evidence presented. Id. at 1190; see also de Gutierrez, 19 So.3d at 1112-13 (“Although awards of temporary alimony are within the trial court’s broad discretion, the record must contain competent, substantial evidence to support the trial court’s ruling.”).

In the present case, the Wife testified that her monthly expenses totaled $44,029 and, similar to Ghay, this amount included both her expenses and her son’s expenses. Her affidavit reflected the same total for her monthly expenses, and as noted in her brief, the child’s itemized expenses were reflected in her affidavit. Therefore, the trial court clearly erred in awarding her $75,000 in monthly support when the evidence showed that the monthly expenses for the Wife and the child were at most $44,029. See Ghay, 954 So.2d at 1189.

Because the monthly award of $75,000 is not supported by the record, we must reverse. On remand, we would note that any award of temporary alimony must be based on the Wife’s “needs” and not an attempt “to fund the enjoyment of every little luxury enjoyed before divorce.” Levine v. Levine, 964 So.2d 741, 742-43 (Fla. 4th DCA 2007) (“Where a high standard of living is met during marriage, the purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce.”). “Fixing alimony at a profligate standard of living is to turn alimony into a lottery. That is one reason why the standard of living during marriage is not a super factor trumping all other factors in awarding alimony.” Jaffy v. Jaffy, 965 So.2d 825, 828 (Fla. 4th DCA 2007).

Here, the Wife’s affidavit asserted that she needs $72,000 a year for vacations for her and the parties’ ten-year-old child and $13,800 a year for them entertainment, which amount does not include over $20,000 for the child’s Halloween party. The Wife also asserted a need for almost $2000 a month for her and the child’s clothing and $2600 a month for groceries and meals outside of the home, which we would note equates to more than $85 per day in food expenses for the Wife and the child. Finally, although the Wife is a stay at home mother, she claims to need $12,000 in babysitting and daycare expenses. See § 61.30(7), Fla. Stat. (2007) (child support may include “[cjhild care costs incurred on behalf of the children due to employment, job search, or education calculated to result in employment or to enhance income of current employment. ...”). Here, the Wife testified that she has no intention of even attempting to find a job until the child is “at least 18.” See Kremer v. Kremer, 595 So.2d 214, 215 (Fla. 2d DCA 1992) (“The husband came into the marriage with substantially more assets and income than did the wife, and there has been no showing that the disparity between the husband’s and the wife’s assets and income after the dissolution resulted in any substantial way from the marriage.”); see also Jessee v. Jessee, 961 So.2d 1118, 1121 (Fla. 2d DCA 2007) (holding that husband was not entitled to permanent alimony where he did not abandon his career or endure undue hardship during the marriage and he received a considerable amount as part of the equitable distribution of marital assets); Geddes v. Geddes, 530 So.2d 1011, 1018 (Fla. 4th DCA 1988) (holding that trial court did not err in failing to award permanent alimony where parties were married for nine years and wife left marriage considerably wealthier than when she entered it).

We also conclude that the trial court erred in ordering the Husband to pay the Wife $4,988 each month in addition to the support award for the maintenance of three properties. In the Wife’s affidavit, she included the cost of maintaining the three properties in her request for $44,029 a month. Therefore, the award of an additional $4,988 was duplicative.

Since the trial court will again have to determine the Husband’s current ability to pay, we do not address the Husband’s argument on this issue or his related argument on the affidavit of the Wife’s expert, Mr. Briggs Stahl.

Finally, with regard to the trial court’s award of temporary attorney’s fees, we conclude that such award must be reversed because the trial court failed to make any findings regarding the reasonableness of the hourly rates and time expended. The trial court awarded $76,837.50 for attorney Marian McCul-loch’s actual fees and $50,000.00 for her anticipated fees, $64,434.12 for attorney Louis Hornstine’s fees and $25,000.00 for his anticipated fees, and $96,174.86 for forensic accountant Stahl Consulting Group’s costs and $25,000.00 for its anticipated costs. As to the reasonableness of the fees, the trial court stated only that “[tjhese amounts are considered reasonable .... ” However, the award of attorneys’ fees does not contain any factual findings regarding reasonable hourly rates or the reasonableness of the time expended. See Ghay, 954 So.2d at 1189 (reversing award of temporary attorney’s fees where order did not contain any factual findings as to the “reasonable hourly rates and the amount of fees that are expected to be reasonably incurred”); Reed v. Reed, 857 So.2d 936, 936 (Fla. 4th DCA 2003) (reversing final judgment awarding attorney’s fees where judgment lacked articulated findings as to the reasonable hourly rate for that type of litigation and the number of hours reasonably expended).

On remand, we would remind the trial court that any award of fees should not include the travel time of the attorneys absent proof that a competent local attorney could not be obtained to complete the work. Mandel v. Decorator’s Mart, Inc. of Deerfield Beach, 965 So.2d 311, 315 (Fla. 4th DCA 2007).

Accordingly, the order awarding the Wife temporary monthly support and temporary attorney’s fees and costs is reversed and the case is remanded for further proceedings consistent with this opinion.

DAVIS and KHOUZAM, JJ., Concur.

      . The parties were married for nine years.

      . The Wife did not testify as to any health issues which would prevent her from working.


author: ORFINGER, J.

text:
    LR5A-JV, etc., Appellant, v. LITTLE HOUSE, LLC, et al., Appellee.
    No. 5D09-3857.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 2010.

      Steven Ellison and Talina Bidwell, of Broad & Cassel, West Palm Beach, for Appellant.
    Edward Ronsman, of Christine & Christine, P.A., St. Augustine, for Appellee.
   ORFINGER, J.

LR5A-JV, LP (“LR5A”), a Massachusetts limited partnership, seeks review of a non-final, post-judgment order setting a date for sale of real property, which was the subject of a 2008 final judgment of foreclosure. LR5A contends that the trial court was not authorized to order a post-judgment, judicial sale of the mortgaged property, or, if the trial court possessed such authority, it abused its discretion in ordering the sale. We disagree and affirm.

In 2005, Little House, LLC, and Little Lakes, LLC (collectively, the “Borrowers”), entered into a loan agreement with LR5A, whereby LR5A loaned the Borrowers $17,500,000 to fund the construction of several condominium conversion projects throughout Florida. The Borrowers executed and delivered a promissory note to LR5A secured by a mortgage that encumbered undeveloped real property in Fla-gler County. Additional real property in Broward County, Florida also served as collateral for the obligation.

The Borrowers defaulted on the note and mortgage and LR5A filed a foreclosure action on the Flagler County property. LR5A joined the Matanzas Shores Owners Association (the “Association”) as a defendant in the Flagler County action in an effort to foreclose claims of lien filed by the Association. The Association filed an answer and cross-claim, seeking damages against the Borrowers for unpaid assessments totaling approximately $400,000.

LR5A filed a motion for summary final judgment of foreclosure on the Flagler County property, asserting priority over the rights of the Association. The trial court entered a final judgment of foreclosure, finding that LR5A was due $30,651,523.93, and set a date for a judicial sale of the property. Believing that orders of clarification and rehearing as to the Association’s liens may have adversely affected the priority of its mortgage, LR5A appealed. As a result, the sale was cancelled. This Court subsequently affirmed the final judgment of foreclosure, ruling that LR5A’s 2005 recorded mortgage was superior to the Association’s assessment liens and that section 720.3085(2), Florida Statutes (2007), did not dictate otherwise. See LR5A-JV, LP v. Little House, LLC, 998 So.2d 1173 (Fla. 5th DCA 2008). The cause was remanded with instructions to proceed to foreclose LR5A’s superior mortgage. The Association then moved the trial court to set a sale date. Following a hearing on the motion, and over LR5A’s objection, the court entered an order setting a date for a judicial sale. LR5A now appeals this order.

LR5A contends that as the judgment holder, it has the right to control when, if at all, a foreclosure sale takes place under section 45.031, Florida Statutes (2010). According to LR5A, the Association, as a junior lien holder, cannot demand that a foreclosure sale date be set, and the trial court erred as a matter of law in setting the date for the judicial sale. The Association counters that section 45.031(1), gives the trial court the ultimate authority to order a judicial sale. We agree with the Association.

Section 45.031(1) governs the procedures for judicial sales following entry of a final judgment of foreclosure. It provides in pertinent part:

45.031. Judicial sales procedure
In any sale of real or personal property under an order or judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.
(1) Final judgment.—
(a) In the order or final judgment, the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. A sale may be held more than 35 days after the date of final judgment or order if the plaintiff or plaintiffs attorney consents to such time....

§ 45.031(l)(a), Fla. Stat. (2010) (emphasis added). This statute clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiffs consent.

Florida decisional law reflects that the matter of fixing the time for a judicial sale is set by statute, but that the trial court has reasonable discretion within the statutory framework to set or reset the date for such sale. State ex rel. Raulerson v. Sloan, 134 Fla. 632, 184 So. 128 (1938); Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905); Commw. Mortg. Corp. of Am., L.P. v. Frankhouse, 551 So.2d 599 (Fla. 4th DCA 1989). This seems consistent with the equitable nature of such proceedings. See § 702.01, Fla. Stat. (2010) (“All mortgages shall be foreclosed in equity .... ”); see also Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916) (stating that courts of equity have supervision over judicial sales made under their decree); Cross v. Fed. Nat'l Mortg. Ass’n, 359 So.2d 464 (Fla. 4th DCA 1978) (reiterating that mortgage foreclosure is equitable action).

LR5A relies on U.S. Bank National Ass’n v. Tadmore, 23 So.3d 822 (Fla. 3d DCA 2009), Bankers Trust Co. of California, N.A. v. Weidner, 688 So.2d 453 (Fla. 5th DCA 1997), and First Nationwide Savings v. Thomas, 513 So.2d 804 (Fla. 4th DCA 1987), to support its contention that under section 45.031, the judgment holder enjoys the right to control the timing of a judicial sale. Each is distinguishable.

Tadmore held that it was error for the trial court, in a foreclosure action involving a condominium unit, to enter an order requiring the plaintiff bank to proceed diligently to conclude its foreclosure action or pay the monthly maintenance fee on the unit. The appellate court explained that the bank was not liable to pay the condominium maintenance fee prior to obtaining title to the unit. The decision makes no mention of the trial court’s authority to set a date for a judicial sale pursuant to section 45.031(1). Weidner holds that the trial court erred in granting the family of the mortgagor, who had recently died, an indefinite stay of a scheduled foreclosure sale. This Court held there was no legitimate basis for entry of an indefinite stay, the inverse of the situation here. Finally, Thomas, like Weidner, similarly involved reversal of an order permanently cancel-ling a scheduled foreclosure sale without explanation. The Fourth District stated that “[a] lender has the right, under the statutes, except under extraordinary circumstances not found in this record, to proceed with the sale of any real estate on which it has successfully foreclosed its mortgage.” Thomas, 513 So.2d at 805. Thomas neither holds nor suggests that a lender, who has undertaken foreclosure proceedings, has the unilateral right to control the process, including when or if a judicial sale occurs.

In our earlier opinion in this dispute, we remanded the matter with instructions “to proceed to foreclose the superior mortgage of LR5A-JV.” LR5A-JV, LP, 998 So.2d at 1175. Once the mandate issued and jurisdiction again resided in the trial court, the provisions of section 45.031(1) authorized the trial court to set a date for the judicial sale. The trial court’s order setting the judicial sale fully comports with the statute.

LR5A alternatively argues that the trial court abused its discretion in setting the date of the judicial sale, thereby, subjecting it to the “whims of the Association.” “Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” White v. State, 817 So.2d 799, 806 (Fla.2002).

LR5A’s argument not only contravenes the provisions of section 45.031, but also ignores the Association’s interest in collecting lawful assessments on the subject property. As the Association points out, LR5A is not obligated under section 720.3085, Florida Statutes, to pay the Association’s assessments, yet, the Association must still maintain the common property and facilities, which inure to the benefit of the property. Since foreclosure proceedings are equitable in nature, the trial court may, consistent with the statute, consider the interests of all of the parties in determining the matter of the judicial sale.

Finally, the Association points out that the recent report of the Task Force on Residential Mortgage Foreclosure Cases, issued pursuant to a directive from the Florida Supreme Court, noted the adverse impact of the foreclosure situation on community associations and suggested the prompt resolution of foreclosure proceedings when possible. See Fla. Supreme Court Task Force on Residential Mortg. Foreclosure Cases, Final Report & Recommendations on Residential Mortgage Foreclosure Cases (Aug. 17, 2009), available at http://www.floridasupremecourt. org/pub info/documents/ Filed 8-17-2009 Foreclosure Final Report.pdf. Specifically, the Task Force noted that “community associations and their members, who are the owners of parcels in the communities, are severely impacted by the foreclosure situation....” Id. at 25-26. This is because of non-payment of assessments by defaulting owners and the fact that foreclosing first mortgagees, which take title through foreclosure, are not liable under Florida law for assessments until such time as title is issued. Id. Prompt resolution of foreclosure cases acknowledges the issues of property values and community stabilization. Id. at 41.

In its Final Report, the Task Force also addressed problems with cancellation of sales by plaintiffs and suggested adopting a new standard, whereby foreclosing plaintiffs would be required to show cause before cancelling a sale in a pending matter:

The current form foreclosure judgment permits the plaintiff to cancel the sale unilaterally simply by not showing up, because it includes the language that the sale will not be held unless the plaintiffs representative is present. As a result, a vast number of properties are in a state of limbo between final judgment and sale. For the sale to be reset, a judge must sign another order. Reviewing the motions to reset sale, an explanation of the cancellation is seldom given. Even if the cancellation is due to workout efforts with the borrower, there is no report of the status of the efforts. As a result, there is enormous waste of sale capacity and duplication of efforts in terms of resetting those sales being unnecessarily consumed in these cases.

Id. at 26-27.

The Task Force proposed a new standard Motion to Cancel and Reschedule Foreclosure Sale in its recommendations to the supreme court as to Rule and Form Changes, explaining:

Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. Therefore, this form requires that the movant advise the court specifically as to why the foreclosure sale is being sought to reset. Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.

Id. at 44 (emphasis added).

In response, the Florida Supreme Court adopted amendments to the rules of civil procedure relating to mortgage foreclosures. In re Amends, to the Fla. R. of Civ. P., 44 So.3d 555 (Fla.2010). Included in these amendments is Form 1.996(b), entitled “Motion to Cancel and Reschedule Foreclosure Sale,” which sets out a list of reasons for cancellation of a scheduled judicial sale, and provides, “If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.” In other words, the supreme court, in adopting the form, apparently did not contemplate that a judicial sale would be left in limbo.

The trial court’s order comports with section 45.031(1) and the policies enunciated by the Foreclosure Task Force and Form 1.996(b). No abuse of discretion has been demonstrated. We affirm the order and remand for the trial court to set a judicial sale of the property.

AFFIRMED and REMANDED.

SAWAYA and PALMER, JJ., concur.

      . LR5A also filed a separate foreclosure action in Broward County concerning the property in that county.

      . Our jurisdiction to review this order is based on Florida Rule of Appellate Procedure 9.130(a)(4).


author: COHEN, J.

text:
    Walter Clayton MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1822.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 2010.

      Walter Clayton Morris, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Walter Clayton Morris appeals the trial court’s order summarily denying his post-conviction claims filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s postconviction motion asserted ten grounds of ineffective assistance of counsel and one claim of prosecutorial misconduct. The prosecutorial misconduct claim is not cognizable in a postconviction motion and was properly denied. See Fla. R. Crim. P. 3.850(c); Sampson v. State, 845 So.2d 271, 272 (Fla. 2d DCA 2003). With the exception of the grounds raised in claims two, three and nine, Appellant’s claims were correctly denied because they were either conclusively refuted by the record or Appellant did not establish prejudice. Accordingly, we affirm in part and reverse in part.

Pursuant to a plea agreement, Appellant was convicted in one case of aggravated assault on a law enforcement officer and received a five-year sentence; in a second case, he was convicted of aggravated battery with a firearm and aggravated assault with a firearm and received ten-year and five-year sentences, respectively.

The trial court denied Appellant’s second and third claims as facially insufficient. However, when an initial rule 3.850 motion is determined to be legally insufficient for failing to “meet the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion. [T]he proper procedure is to strike the motion with leave to amend within a reasonable period.” Spera v. State, 971 So.2d 754, 761-62 (Fla.2007). We therefore reverse the portions of the trial court’s order denying relief as to Appellant’s second and third claims, and direct that the trial court strike the claims with leave to amend within a reasonable period if Appellant can do so in good faith.

We also find merit to Appellant’s ninth claim that his counsel misadvised him regarding the State’s three-year plea offer in case number 2008-CF-520. Appellant alleged that his counsel advised him not to accept the three-year offer because he could negotiate a sentence of twenty-four to thirty months at the most. He also alleged that he was willing to accept the three-year plea offer, but does not articulate whether he unequivocally told his counsel to accept the offer, which counsel failed to do. Following a three-month defense continuance, he returned to court to learn that the State had withdrawn the three-year offer and the new offer was ten years. Neither assertion is refuted by the record. The trial court denied this claim because the State, in fact, withdrew the offer before it was accepted.

Counsel’s failure to convey a client’s acceptance of a plea offer to the State can constitute ineffective assistance of counsel. White v. State, 731 So.2d 74 (Fla. 2d DCA 1999). Further, an ineffective assistance of counsel claim can be based on counsel’s advice to reject a plea offer. Morgan v. State, 991 So.2d 835 (Fla.2008); Colon v. State, 909 So.2d 484 (Fla. 5th DCA 2005). In Birch v. State, 961 So.2d 1112 (Fla. 5th DCA 2007), we held that a defendant was entitled to an evidentiary hearing on a claim that counsel was ineffective for failing to accept a plea offer before the State withdrew it because the claim was not conclusively refuted by the record. Accordingly, we reverse the portion of the trial court’s order denying relief as to his ninth claim and remand for the trial court to either attach those portions of the record that conclusively refute Appellant’s claims, or to hold an evidentia-ry hearing. Bland v. State, 25 So.3d 600 (Fla. 1st DCA 2009).

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY and LAWSON, JJ., concur.

      . Case no. 2008-CF-380.

      . Case no. 2008-CF-520.


text:
    Donna Ann RENNA, former wife, Appellant, v. Gregory Scott RENNA, former husband, Appellee.
    No. 1D10-5586.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2010.
    R. Flint Crump of the Law Office of R. Flint Crump, Gainesville, for Appellant.
    Patricia M. Lee, St. Petersburg, for Ap-pellee.
   PER CURIAM.

DISMISSED. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002); Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009).

WEBSTER, HAWKES, and THOMAS, JJ., concur.


text:
    Bradford W. JOSEPH, M.D. and Borland-Groover Clinic, P.A., Appellant, v. Leonara “Lynn” NIOSI a/k/a Leonara Reiff Niosi and Arthur A. Niosi, her husband, Appellee.
    No. 1D10-827.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.

      Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida; and Childs Reed, P.A., Jacksonville, for Appellant.
    Robert L. McLeod, II, and Elizabeth A. Scanlon of The McLeod Firm, St. Augustine, for Appellee.
   PER CURIAM.

The defendants in this medical malpractice action seek review of two rulings concerning admission of evidence, a ruling denying a peremptory strike during jury selection, and an order allowing attorney’s fees based upon unaccepted proposals for settlement. We affirm without comment the jury selection and evidentiary issues, which we review under the abuse of discretion standard. Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008). The attorney’s fee matter, which raises a challenge to the facial sufficiency of the proposals, is reviewed de novo. Nilo v. Fugate, 30 So.3d 623, 625 (Fla. 1st DCA 2010); Oasis v. Espinoza, 954 So.2d 632 (Fla. 3d DCA 2007). We reverse the order awarding attorney’s fees to the appellees, the plaintiffs below.

In their motion for trial attorney’s fees and costs and entry of final judgment, the appellees recounted that on September 2, 2009, they had sent three proposals for settlement to the appellants, who effectively rejected those proposals under Florida Rule of Civil Procedure 1.442(f)(1) by failing to accept them by delivery of a written notice of acceptance within 30 days after service of the proposal. On October 23, 2009, the jury returned a verdict in favor of the appellees in the amount of $510,175.00.

The trial court found plaintiff Mrs. Niosi’s proposal of settlement to Dr. Joseph as to Count One of the amended complaint invalid and unenforceable as a matter of law, a ruling the appellees do not challenge in this appeal. Mrs. Niosi served another proposal for settlement upon the vicariously hable corporate defendant in the amount of $239,999.00 as to Count Two of the amended complaint. The third proposal for settlement was Mr. Niosi’s proposal to Dr. Joseph and the corporate defendant in the amount of $19,999.00 to settle his consortium claim, Count Three. Section 768.79(6)(b), Florida Statutes (2007), states that “[i]f a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs ... and attorney’s fees....” The amount of the verdict in favor of Mrs. Niosi is at least 25 percent more than the amount of the offer; the same is true of the offer served by Mr. Niosi. In its amended final judgment, the court awarded the appellees’ fees in the amount of $94,610.50 based on the two proposals for settlement deemed valid and enforceable.

In the trial court and in this appeal, the appellants opposed the appellees’ motion for attorney’s fees and costs, and the award itself, on the grounds that the two remaining proposals for settlement to multiple defendants are invalid and unenforceable as a matter of law. Specifically, the appellants argued that under Lamb v. Matetzschk, 906 So.2d 1037, 1040 (Fla.2005) (“Each defendant should be able to settle the suit knowing the extent of his or her financial responsibility.”), offers made to multiple parties — even if their liability is only vicarious — must be differentiated, yet the appellees’ proposals failed to comply with this requirement. Accord Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 650 (Fla.2010) (stating that rule 1.442 requires a joint offer to “state the amount and terms attributable to each party” and “state with particularity any relevant conditions”). Additionally, the appellants asserted that the two proposals failed to comply with the plain language in rule 1.442(c)(3) stating “[a] joint proposal shall state the amount and terms attributable to each party.” See Lamb, 906 So.2d at 1042; Easters v. Russell, 942 So.2d 1008 (Fla. 2d DCA 2006) (concluding that patient’s proposal to settle a medical malpractice action, sent jointly to the surgeon and the surgeon’s professional association, was not a valid proposal for settlement that would justify awarding the patient’s attorney’s fees, where the offer did not contain separate settlement amounts for each defendant and failed to state the amounts and terms attributable to each party); Heymann v. Free, 913 So.2d 11 (Fla. 1st DCA 2005) (on mot. for clarification). The Florida Supreme Court has made it clear that “any offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties’ decisions. Gorka, 36 So.3d at 650. Finally, acknowledging the rigidity of the present regime, our supreme court has amended rule 1.442(c), effective January 1, 2011, to provide that “[njotwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party.”

The appellees do not (and cannot) meaningfully distinguish the holding in Easters to somehow justify the award of trial attorney’s fees based on the facially invalid proposals for settlement. Accordingly, we affirm the amended final judgment in part and reverse the award of the appellees’ attorney’s fees on the authority of Lamb, Gorka, and Easters.

AFFIRMED in part and REVERSED in part.

WOLF, KAHN, and WEBSTER, JJ., Concur.