source: Caselaw Access Project

author: LEWIS, J. CANADY, J.,

license: Public Domain

text:
    Edmund MADY, Petitioner, v. DAIMLERCHRYSLER CORPORATION, Respondent.
    No. SC08-808.
    Supreme Court of Florida.
    March 24, 2011.

      Theodore F. Greene, III, of the Law Offices of Theodore F. Greene, LC, Orlando, FL, and Aaron David Radbil of Krohn & Moss, Ltd., Chicago, IL, for Petitioner.
    John Jason Glenn and Wilnar Jeanne Julmiste of AndersonGlenn, LLC, Boca Raton, FL, and Gregory Andrew Anderson of AndersonGlenn, LLC, Ponte Vedra Beach, FL, for Respondent.
   LEWIS, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA 2008). The district court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2d DCA 2008). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

BACKGROUND

In May 2003, Edmund Mady leased a 2003 Dodge Viper manufactured by DaimlerChrysler Corporation. See Mady, 976 So.2d at 1213. After experiencing problems with the vehicle and being unable to resolve the dispute with the manufacturer, Mady ultimately filed an action against DaimlerChrysler for breach of written warranty pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-2312 (2000) (MMWA). See 976 So.2d at 1213.

In November 2005, DaimlerChrysler served an offer of judgment, pursuant to section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442. See 976 So.2d at 1213. In December 2005, DaimlerChrysler served a second offer of judgment along with a proposed release agreement. On December 29, 2005, the plaintiff accepted the later formal offer of judgment. See id.

Pursuant to the terms of the offer of judgment, DaimlerChrysler would pay the total sum of $8,500 exclusive of attorneys’ fees. See id. It neither admitted liability nor conceded plaintiff’s' entitlement to attorneys’ fees. See id. The agreement acknowledged that the plaintiff might seek attorneys’ fees. See id. The settlement required the plaintiff to execute a complete release and voluntary dismissal with prejudice. See id. at 1213-14.

In June 2006, the plaintiff moved for attorneys’ fees and costs. See id. at 1214. After a hearing, the trial court denied the motion, basing its denial on a finding that the plaintiff had not established he was a consumer who “finally prevailed]” under 15 U.S.C. § 2310(d)(2). See id.

The Fourth District affirmed the trial court, holding that “[tjhere simply was no court-ordered change in the relationship of the parties in this case by the plaintiffs acceptance of DaimlerChrysler’s proposal for settlement.” Id. at 1215. The Fourth District found “that section 768.79(4)’s provision for enforcement is not the same as the required affirmative court action that either approves of the terms of a settlement or affirmatively retains jurisdiction for enforcement.” Id.

In direct conflict, the Second District held in Dufresne that a settlement agreement entered into pursuant to section 768.79 entitles a consumer to attorneys’ fees under the MMWA. See 975 So.2d at 557. The Second District concluded that the agreement “is the functional equivalent of a consent decree and that Dufresne is not precluded from claiming entitlement to attorneys’ fees under the MMWA simply because he accepted the proposal for settlement.” Id. One month after Mady was issued, the Third District Court of Appeal in San Martin v. DaimlerChrysler Corp., 983 So.2d 620, 625 (Fla. 3d DCA 2008), rejected the Mady decision, aligned itself with the Second District, and employed reasoning similar to that of the Second District in Dufresne.

ANALYSIS'

A settlement produced pursuant to Florida’s offer of judgment statute, section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is under the auspices of the court in which the dispute is being processed and is tantamount to a consent judgment. Florida’s offer of judgment statute provides:

An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.

§ 768.79(4), Fla. Stat. (emphasis supplied). A consumer who has exhausted all nonjudicial remedies as a condition required by the MMWA and later secures a favorable formal settlement offer of judgment from a defendant which is accepted in a Florida legal action filed under the MMWA, 15 U.S.C. § 2310, “finally prevails” and may be entitled to recover costs, expenses, and attorneys’ fees under the MMWA.

The MMWA was designed to “encourage warrantors to establish procedures whereby consumer disputes are fairly and expeditiously settled through informal dispute settlement mechanisms.” 15 U.S.C. § 2310(a)(1). To advance that goal, the MMWA requires warrantors to establish an “informal dispute settlement procedure” that adheres to minimum requirements prescribed by the Federal Trade Commission. See 15 U.S.C. § 2310(a)(2). Participation in these procedures is mandatory for consumers seeking relief under the MMWA, as the act states that consumers “may not commence a civil action (other than a class action) under subsection (d) of this section unless he initially resorts to [the warrantor’s informal settlement procedure].” 15 U.S.C. § 2310(a)(3). It was the intent of Congress to provide consumers with an efficient and affordable mechanism to resolve warranty disputes that would not require consumers to incur substantial costs and expenses.

To ensure meritorious warranty claims are resolved in informal non-judicial proceedings, the MMWA provides protection to consumers with regard to warrantors who fail to resolve warranty claims that are later determined to be meritorious. Subsection (d)(1) of the MMWA provides:

Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—
(A) in any court of competent jurisdiction in any State or the District of Columbia; or
(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.

(Emphasis supplied.) Reading subsection (d)(1) in unison with subsection (a)(3), it becomes apparent that an individual consumer can proceed with an MMWA action in court only after “he initially resorts to [the warrantor’s informal settlement procedure].” 15 U.S.C. § 2310(a)(3). To encourage warrantors to resolve disputes without the expense of judicial resources, subsection (d)(2) of the MMWA provides:

If a consumer finally prevails in any action brought [pursuant to this subsection], he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

15 U.S.C. § 2310(d)(2) (emphasis supplied).

Subsection (d)(2)’s fee-shifting provision is consistent with the MMWA’s overarching concern to provide consumer protection at the lowest cost possible. In enacting the MMWA, Congress designed a process intended to encourage warrantors to resolve claims quickly, efficiently, and informally without the necessity of forcing consumers to file legal actions. See 15 U.S.C. § 2310(a)(1). If a warrantor waits to resolve a meritorious claim until after the consumer is forced to involve the courts, the MMWA provides a remedy and method of shifting costs to the war-rantor which at times may be associated with a more extensive resolution process in our courts when the outcome acknowledges the validity of the warranty claim. See 15 U.S.C. § 2310(d)(2). The critical issue, therefore, is whether the resolution of a claim filed pursuant to subsection (d)(1) of the MMWA by a monetary settlement pursuant to an offer of judgment statute applicable to the proceeding bears the imprimatur of a court.

Unlike a settlement before an action is filed, any offer made and accepted pursuant to Florida’s offer of judgment statute is, as illustrated by the very name of the statute, under the auspices of the court in which the offer is made and accepted. A resolution reached pursuant to the offer of judgment statute, as opposed to an extrajudicial settlement agreement that is not subject to judicial enforcement, bears the imprimatur of the court because a party that fails to accept that resolution is subject to judicial penalty and sanctions. See § 768.79(4), Fla. Stat. Further, a settlement produced pursuant to Florida’s offer of judgment statute is subject to that court’s full continuing jurisdiction thereafter. The offer of judgment statute would actually provide a basis to further penalize the consumer if this were not the end result. Consequently, a settlement produced under Florida’s offer of judgment statute necessarily carries judicial implications.

Here, Mady’s action could be filed only after informal dispute settlement procedures failed to achieve a resolution. See 15 U.S.C. § 2310(a)(3). After fading to resolve the dispute, Mady, acting pursuant to subsection (d)(1) of the MMWA, was forced to file an action under the MMWA in state court. The statutory offer pursuant to the offer of judgment statute “neither admitted liability nor conceded plaintiffs entitlement to attorney’s fees, but specifically acknowledged that the plaintiff might seek attorney’s fees.” Mady v. DaimlerChrysler Corp., 976 So.2d 1212, 1213 (Fla. 4th DCA 2008).

Although the trial court may not have needed to actually enter a final judgment document, Mady áchieved the same result with a monetary settlement only after being forced to bear all of the costs and expenses associated with litigation and facing the statutory penalty if the offer of judgment had not been accepted. Daim-lerChrysler could have resolved this dispute during the “informal dispute settlement” phase, but instead waited until after Mady was forced to commence this action and incur the expenses of this litigation. Litigation had commenced, an offer was produced pursuant to the offer of judgment statute and corresponding rule of procedure, and the result necessarily falls under the auspices of a court, which is exactly the design of the MMWA. This interpretation is the only method through which subsection (d)(2) of that act is implemented to afford the designed remedy. Further, this Court has long and consistently held that when a defendant settles a disputed ease only after litigation has developed, the corresponding payment is tantamount to a final judgment when considering prevailing party type attorney fee assessments. See, e.g., Pepper’s Steel & Alloys, Inc. v. United States, 850 So.2d 462, 465 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000); Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So.2d 217, 218 (Fla.1983). Accordingly, Mady should recover the costs, expenses, and attorneys’ fees as allowed by subsection (d)(2) of the MMWA because Daimler-Chrysler ultimately agreed to pay pursuant to a statutorily recognized offer of judgment after the commencement of litigation and also while the consumer faced monetary sanctions pursuant to the offer of judgment concept which could have penalized Mady if the offer had not been accepted.

This result is also consistent with federal authority. The United States Supreme Court has held that settlement agreements enforced through a consent decree may serve as a basis for an award of attorneys’ fees. See Maher v. Gagne, 448 U.S. 122, 129-30, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). Although there is no actual consent decree present here, the Eleventh Circuit Court of Appeals has stated:

[E]ven where there has been no formal entry of a consent decree following a settlement agreement, a district court may still award attorney’s fees to the prevailing party as long as: (1) it has incorporated the terms of the settlement into the final order of dismissal or (2) it has explicitly retained jurisdiction to enforce the terms of the settlement. American Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir.2002). Under either option, the district court “clearly establishes ‘judicially sanctioned change in the legal relationship of the parties,’ as required by Buckhannon [Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)], because the plaintiff thereafter may return to court to have the settlement enforced.” Id. A formal consent decree is unnecessary because the incorporation .of the settlement into a court order or the explicit retention of jurisdiction over the terms of the settlement are the “functional equivalent of an entry of a consent decree.” Id.

Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003) (emphasis supplied). Florida’s offer of judgment statute explicitly states that “the court has full jurisdiction to enforce the settlement agreement.” § 768.79(4), Fla. Stat. The resolution under the offer of judgment statute and rule before us today is the “functional equivalent of a consent decree,” and under Smalbein, Mady is a prevailing party under subsection (d)(2) of the MMWA even if Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), is applied as argued by the dissent.

The dissent incorrectly relies on the United States Supreme Court’s decision in Buckhannon, which is completely distinguishable from the facts before us today. In Buckhannon, plaintiffs did not seek relief under the MMWA and instead pursued claims under the Fair. Housing Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990(ADA). See 532 U.S. at 601, 121 S.Ct. 1835. Further, there was no resolution within the legal action such as the settlement here. In Buckhannon the case was terminated due to legislative action separate and apart from the legal action. The ultimate resolution was achieved absent any judicial involvement:

Respondents agreed to stay enforcement of the cease-and-desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see S. 627, I 1998 W. Va. Acts 983-986 (amending regulations); H.R. 4200, II 1998 W. Va. Acts 1198-1199 (amending statute), and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments.

Id. In Buckhannon, the change in the legal relationship of the parties had nothing to do with the courts; it was a product of separate and independent legislative action. The Buckhannon Court reasoned that there was no “judicially sanctioned change.” Id. at 605, 121 S.Ct. 1835.

Here, unlike Buckhannon, the settlement agreement between the parties in litigation produced pursuant to an offer of judgment statute represents a “judicially sanctioned change.” A settlement made pursuant to Florida’s offer of judgment statute remains under that court’s full jurisdiction. See § 768.79(4), Fla. Stat. It thus becomes clear that there is direct judicial involvement in this case because the court in which the settlement agreement was produced retains jurisdiction over that agreement. Further, the dissent fails to provide any authority that applies Buckhannon to the MMWA or any other circumstances similar to the case before us. When other courts have extended Buckhannon beyond the scope of the FHAA and the ADA, they provided authority for doing so. See, e.g., El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 422 n. 3 (5th Cir.2009). Accordingly, Buckhannon is completely distinguishable and has no bearing on this case.

Even if Buckhannon has some application, which it does not, Mady is still a “prevailing party” under the MMWA and the reasoning in Buckhannon does not alter this outcome. In that decision, the United States Supreme Court merely rejected the catalyst theory for legislative action as a legitimate justification for an award of attorneys’ fees pursuant to a fee-shifting statute. See Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. The Court stated:

A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.

Id. (emphasis supplied). Where, as here, a court retains jurisdiction to enforce an offer of judgment, the resulting settlement contains the requisite judicial imprimatur to classify a plaintiff as a prevailing party. See supra pp. 1133-34 (citing Smalbein, 353 F.3d 901). The dissent’s narrow reading of Buckhannon has been explicitly rejected by a number of the federal circuit courts of appeals, including the Eleventh Circuit. See, e.g., Perez v. Westchester Cnty. Dep’t. of Corrections, 587 F.3d 143, 150 (2nd Cir.2009) (“[Njothing in Buck-hannon or its sequelae-limits judicial imprimatur to [a judgment on the merits, a consent decree, or a judicially enforceable settlement agreement ]-”) (emphasis supplied); Mynard v. Office of Personnel Management, 348 Fed.Appx. 582, 586-87 (Fed.Cir.2009); Johnson v. City of Tulsa, 489 F.3d 1089, 1108 (10th Cir.2007) (“[W]e cannot accept the proposition that attorney fees for post-decree efforts are compensa-ble only if they result in a judicially sanctioned change in the parties’ legal relationship.”); Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003).

Without providing any authority to support its conclusion, the dissent asserts that “a judicially enforceable agreement is not equivalent to a judicially approved or sanctioned agreement.” Dissenting op. at 23-24. Through this claim, the dissent attempts to create a rule that provides that a court’s retention of jurisdiction over an agreement is insufficient to confer prevailing party status upon a party. None of the decisions relied on by the dissent, however, supports its bold assertion that judicial retention over an agreement is insufficient to confer prevailing party status to a plaintiff. In fact, all of the decisions relied on by the dissent to support its contention are materially distinguishable. In T.D. v. LaGrange School Dist. No. 102, 349 F.3d 469, 479 (7th Cir.2003), the Seventh Circuit expressly noted that “the district court has no continuing jurisdiction to enforce the agreement.” The court also noted that the agreement “was merely a private settlement agreement between the parties.” Id. at 479 (emphasis supplied). Similarly, in John T. v. Del. County Intermediate Unit, 318 F.3d 545 (3d Cir.2003), the two parties reached an agreement completely outside the confines of the judicial system. See 318 F.3d at 551. Not only did the parties in John T. reach an extrajudicial agreement, the trial court also granted the plaintiffs motion for voluntary dismissal, effectively discharging the matter from the jurisdiction of the court. See id. In Doe v. Boston Public Schools, 358 F.3d 20, 21-22 (1st Cir.2004), the agreement in question was also reached privately, and the only “litigation” at issue that took place before the agreement was reached was through an administrative hearing officer. Next, in New York State Federation of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Commission, 272 F.3d 154, 158-59 (2d Cir.2001), the district court dismissed the case as moot due to the parties entering into a private settlement. Finally, in Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 276-81 (4th Cir.2002), the Fourth Circuit merely held that a preliminary injunction did not make the beneficiaries of that injunction “prevailing parties” for purposes of the civil rights attorney fee statute, never addressing whether the retention of jurisdiction is sufficient. None of these cases involve an agreement made within the confines of the judicial system, let alone pursuant to an offer of judgment statute.

The only decision relied on by the dissent that does involve an offer of judgment statute actually undermines the dissent’s own argument. In Utility Automation 2000, Inc. v. Choctawhatchee Electric Cooperative, Inc., 298 F.3d 1238, 1239 (11th Cir.2002), the plaintiff sought attorneys fees pursuant to the federal offer of judgment rule, the Alabama Trade Secrets Act, and a contract entered into with the defendant. Although the United States Court of Appeals for the Eleventh Circuit awarded attorneys’ fees to the plaintiff pursuant to the terms of a contract, it discussed the federal offer of judgment statute and explicitly stated that the plaintiff would also be a prevailing party because of the offer of judgment statute. Id. at 1247:

Prior to Buckhannon, courts attempted to determine whether a party was a “prevailing party” for the purpose of recovering attorneys’ fees primarily by weighing the relief obtained against the relief sought. See, e.g., Fletcher v. City of Fort Wayne, 162 F.3d 975, 976 (7th Cir.1998).... In Buckhannon, however, the Supreme Court defined a prevailing party as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded.” 532 U.S. at 603, 121 S.Ct. 1835 (quoting Black’s Law Dictionary (7th ed. 1999)). In holding that a plaintiff was not entitled to an award of attorneys’ fees when the lawsuit' had been dismissed as moot, even though it appeared that the suit had induced the legislation that rendered the action moot, the Court explained that a “material alteration of the legal relationship of the parties” is necessary to permit the award. Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The Court gave two examples of judicial outcomes that satisfy this requirement: an enforceable judgment on the merits or a settlement agreement enforced through a court-ordered consent decree. Id. An enforceable judgment establishes a plaintiff as a prevailing party because the plaintiff has received at least some relief based upon the merits of a claim. Id. A consent decree also passes the test because “[a]l-though [it] does not always include an admission of liability by the defendant, ... it nonetheless is a court-ordered ‘change [in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Texas State Teachers at 792, 109 S.Ct. 1486).
Although Buckhannon does not specifically mention Rule 68 offers of judgment, we find its rationale equally applicable in the present context. Admittedly, an offer of judgment falls somewhere between a consent decree and the minimalist “catalyst theory” the Court rejected in Buckhannon. Unlike a consent decree, the court exercises little substantive review over a Rule 68 offer; upon notification that the plaintiff has accepted the offer, the court mechanically enters judgment. However, the court does ensure that the offer conforms with the Rule (it must include costs). More importantly, an accepted offer has the “necessary judicial imprimatur” of the court, Buckhannon at 605, 121 S.Ct. 1835 (emphasis in original), in the crucial sense that it is an enforceable judgment against the defendant. Thus, unlike a “defendant’s voluntary change in conduct” or a purely private settlement resulting in a dismissal, a Rule 68 judgment represents a “judicially sanctioned change in the relationship between the parties.” Id. Indeed, this Court recently held that a district court’s approval of a private settlement along with its explicit retention of jurisdiction to enforce the settlement terms, made the settlement the functional equivalent of a consent decree as described in Buckhannon,. and thus rendered the plaintiff a prevailing party under the ADA. See American Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315 (2002).

Id. at 1248 (emphasis supplied) (parallel citations omitted).

CONCLUSION

We hold that a consumer who resolves a legal action with a warrantor pursuant to Florida’s offer of judgment statute constitutes a prevailing party under.the MMWA and may recover attorneys’ fees as allowed by that statute. Therefor we quash the decision on review and remand for further proceedings consistent with this opinion. We also approve the decisions of the Second District Court of Appeal in Dufresne and the Third District Court of Appeal in San Martin.

It is so ordered.

PARIENTE, QUINCE, and PERRY, JJ., concur.

CANADY, C.J., dissents with an opinion, in which POLSTON and LABARGA, JJ., concur.

CANADY, J.,

dissenting.

I would affirm the Fourth District’s decision for two reasons. First, the interpretation of the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (MMWA) attorney-fee provision should adhere to the reasoning of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). That reasoning points to the inescapable conclusion that the private settlement between Mady and DaimlerChrysler was insufficient to qualify Mady for the recovery of fees under the MMWA because that settlement did not involve a court-ordered or judicially sanctioned change in the legal relationship of the parties. Second, the MMWA specifically provides that a finally prevailing consumer may recover attorney fees “as part of the judgment.” The statute thus clearly contemplates that attorney fees will be awarded only if some other relief is awarded by way of a judgment. No such relief was awarded to Mady.

In the MMWA, Congress authorized the award of attorney fees to the consumer only “[i]f a consumer finally prevails.” 15 U.S.C. § 2310(d)(2) (emphasis added). The majority’s conclusion that “a consumer who resolves a legal action with a warrantor pursuant to Florida’s offer of judgment statute constitutes a prevailing party under the MMWA and may recover attorneys’ fees as allowed by that statute” cannot be reconciled with Buckhannon’s understanding of what is necessary for a litigant to be a prevailing party. Majority op. at 18.

In Buckhannon, the plaintiff sought an award of attorney fees and expenses as the prevailing party in a case under the Fair Housing Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990(ADA). 532 U.S. at 601, 121 S.Ct. 1835. Buckhannon Board and Care Home, Inc. (BBCH), which operated care homes providing assisted living to their residents, failed a fire inspection because some of the homes’ residents were incapable of “self-preservation” under state law. Id. at 600-01, 121 S.Ct. 1835. BBCH instituted an action seeking declaratory and injunctive relief on the ground that the self-preservation requirement violated the FHAA and ADA. Id. Before the case was resolved on the merits, the State eliminated the self-preservation requirement, and the case was dismissed as moot. Id. at 601, 121 S.Ct. 1835. BBCH moved for costs and attorney fees, which the trial court denied. Id. at 602, 121 S.Ct. 1835. BBCH “argued that they were entitled to attorney’s fees under the ‘catalyst theory,’ which posits that a plaintiff is a ‘prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 601, 121 S.Ct. 1835.

The Supreme Court affirmed the denial of attorney fees, holding that the circumstances of the case could not support the conclusion that BBCH was a prevailing party. See id. at 602, 605, 121 S.Ct. 1835. The Supreme Court specifically rejected the “catalyst theory,” concluding that “[i]t allows an award where there is no judicially sanctioned change in the legal relationship of the parties.” Id. at 605, 121 S.Ct. 1835. According to the Supreme Court, its caselaw reflects the settled view that “a ‘prevailing party’ is one who has been awarded some relief by the court.” Id. at 603, 121 S.Ct. 1835 (emphasis added). For example, “enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Assn. v. Garland Ind. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). “Although a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered ‘chang[e] [in] the legal relationship- between [the plaintiff] and the defendant.’ ” Id. (alterations in original) (citation omitted) (quoting Garland, 489 U.S. at 792, 109 S.Ct. 1486). Additionally, “settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees.” Id. But private settlements alone “do not entail the judicial approval and oversight involved in consent decrees.” Id. at 604 n. 7, 121 S.Ct. 1835. Similarly, the catalyst theory is problematic because “[a] defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprima tur on the change.” Id. at 605, 121 S.Ct. 1835. Indeed, the Supreme Court emphasized that “[n]ever have we awarded attorney’s fees for a nonjudicial ‘alteration of actual circumstances.’” Id. at 606, 121 S.Ct. 1835.

The Supreme Court considered the argument that “prevailing party” should be read to include the “catalyst theory” based on legislative history which included a committee report stating that “parties may be considered- to have prevailed when' they vindicate rights ... without formally obtaining relief.” Id. at 607, 121 S.Ct. 1835. The Supreme Court expressed its “doubt that legislative history could overcome ... the rather clear meaning of ‘prevailing party’ — the term actually used in the statute.” Id. The Supreme Court concluded that “the legislative history cited by petitioners is at best ambiguous as to the availability of the ‘catalyst theory' for awarding attorney’s fees.” Id. at 607-08, 121 S.Ct. 1835. Such legislative history was not sufficient to displace the well-established - meaning of “prevailing party”: “Particularly in view of the ‘American Rule’ that attorney’s fees will not be awarded absent ‘explicit statutory authority,’ such legislative history is clearly insufficient to alter the accepted meaning of the statutory term.” Id. at 608, 121 S.Ct. 1835 (citing Key Tronic Corp. v. United States, 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)).

Although Buckhannon only dealt with the fee-shifting provisions of the FHAA and the ADA, there is no basis for applying a different line of reasoning to the MMWA. The Buckhannon court understood “prevailing party” as a legal term of art to be interpreted consistently across fee-shifting statutes. 532 U.S. at 603 n. 4, 121 S.Ct. 1835. “[T]he principles underlying Buckhannon’s holding are broadly stated and are not statute-specific.” Doe v. Boston Pub. Sch., 358 F.3d 20, 25 (1st Cir.2004); see also John T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 556-57 (3d Cir.2003) (applying Buckhannon to the Individuals with Disabilities Education Act and noting that “Buckhannon heralded its wider applicability”). Indeed, the Buckhannon court referenced the MMWA when it cited the appendix in Marek v. Chesny, 473 U.S. 1, 43-51, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (appendix to opinion of Brennan, J., dissenting), which lists over 100 federal fee-shifting statutes, including the MMWA. See Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835. In a footnote immediately following the reference to the Marek appendix, the Supreme Court stated: “We have interpreted these fee-shifting provisions consistently, and so approach the nearly identical provisions at issue here.” Id. at 603 n. 4, 121 S.Ct. 1835 (citation omitted). The fact that the text of the MMWA reads “finally prevails” instead of “prevailing party” is thus of no consequence.

When we are called on to interpret and apply a federal statute authorizing the award of attorney fees to a prevailing party, we are bound by Buckhannon’s explication of what it means to be a prevailing party. We should diverge from Buckhannon ’s reasoning- only when the federal statute at issue provides a clear basis for concluding that Congress did not use the prevailing-party terminology in the “traditional ‘term of art’ sense” explained in Buckhannon. T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 475 (7th Cir.2003). Here, there is no such basis.

Under Buckhannon, the mere entry of a settlement agreement is not sufficient to confer “prevailing party status.” Buckhannon is crystal clear in its holding that a litigant can be considered a prevailing party only when the litigant “has been awarded some relief by the court.” 532 U.S. at 603, 121 S.Ct. 1835 (emphasis added). Where the parties have entered a settlement, “[t]here must be some official judicial approval of the settlement and some level of continuing judicial oversight.” LaGrange Sch. Dist. No. 102, 349 F.3d at 479 (emphasis added). There can be no “ ‘judicial imprimatur’ on the cha[n]ge” in the legal relationship of the parties as required by Buckhannon in the absence of such “official judicial approval” of a settlement. Id. at 474, 479; see also John T., 318 F.3d at 558 (noting that a stipulated settlement could confer prevailing party status under circumstances where the settlement (1) contained mandatory language, (2) was entitled “Order,” (3) bore the signature of the district court judge, not the parties’ counsel, and (4) provided for judicial enforcement); Util. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1248-49 (11th Cir.2002) (finding plaintiff .prevailed where district court, pursuant to Federal Rule of Civil Procedure 68, entered “an enforceable judgment against the defendant” based on accepted offer of judgment); Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 281 n. 10 (4th Cir.2002) (holding that its precedent “[upholding] awards of attorney’s fees based on private settlements not integrated into consent decrees or court orders ... do[es] not survive Buckhannon's rejection of private settlements as a basis for prevailing party status.”); N.Y. State Fed’n of Taxi Drivers, Inc. v. Westchester Cnty. Taxi & Limousine Comm’n, 272 F.3d 154, 158-59 (2d Cir.2001) (reversing grant of fees where the parties entered a private settlement and the district court simply entered an order dismissing the case as moot).

Here, there was no award of “some relief by the court,” no “official judicial approval of the settlement,” and no “judicial imprimatur” on the change in the parties’ relationship. As the Fourth District noted, “[t]here simply was no court-ordered change in the relationship of the parties in this case by the plaintiffs acceptance of DaimlerChrysler’s proposal for settlement.” Mady, 976 So.2d at 1215. Unlike the situation where there is a consent decree, the trial court here did not review or approve the agreement and played no role in changing the legal relationship between the parties. The court had no involvement whatsoever in the settlement entered into by the parties. That reality is not altered by the majority’s bare assertion that “any offer made and accepted pursuant to Florida’s offer of judgment statute is ... under the auspices of the court in which the offer is made and accepted” and thus “bears the imprimatur of the court.” Majority op. at 1132-33. Imprimatur means “approval.” Webster’s Third New International Dictionary of the English Language 1137 (1993). Contrary to the majority’s assertion, a judicially enforceable agreement is not equivalent to a judicially approved or sanctioned agreement. The prospect that some relief may be available in the future does not meet Buckhannon’s requirement that a litigant “has been awarded some relief by the court.” 532 U.S. at 603, 121 S.Ct. 1835 (emphasis added).

In both San Martin v. DaimlerChrysler Corp., 983 So.2d 620 (Fla. 3d DCA 2008), and Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2d DCA 2008), the district courts — like the majority here— inappropriately focus on the parties’ actions rather than on judicial action to determine whether the settlements were akin to consent decrees. In San Martin, the court stated that “the use of the procedural vehicle [section 768.79, Florida Statutes] as it was employed by the parties in this case removes their arrangement from that of a private settlement or voluntary cessation.” 983 So.2d at 625. Similarly, the court in Dufresne focused on the nature of the settlement and the fact that the settlement pursuant to section 768.79 gave the trial court the authority to enforce the agreement. 975 So.2d at 557. However, Buckhannon’s reasoning necessarily turns on the court’s actions — not the private parties’ actions — as the basis for determining whether there is a judicially sanctioned change in the legal relationship of the parties.

Beyond the “finally prevails” terminology in the statute, the text of the attorney-fee provision of the MMWA expressly points to the conclusion that attorney fees will be awarded only in conjunction with other relief from the court. The MMWA provides that “[i]f a consumer finally prevails ..., he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended).” 15 U.S.C. § 2310(d)(2) (emphasis added). The statute thus provides that the award of attorney fees is ancillary to the granting of other relief by the court. The statute does not contemplate that fees will be awarded apart from some other relief obtained by way of a judgment.

Mady relies on legislative history to support his argument that Buckhannon's reasoning should not apply to the MMWA. Mady cites a Senate committee report that states that an injured consumer “may resort to formal adversary proceedings with reasonable attorney’s fees available if successful in the litigation (including settlement).” S.Rep. No. 93-151, at 22-23 (1973). This argument is no more persuasive than the legislative-history argument rejected in Buckhannon. Mady’s argument should be rejected for the same reasons that the Supreme Court rejected the similar argument presented in Buckhannon. The legislative history relied on by Mady is at the very best ambiguous. Although it mentions “settlement,” it is silent concerning whether such a settlement must be sanctioned by a judgment entered by the court. Such ambiguous legislative history “is clearly insufficient to alter the accepted meaning” of the statutory text. Buckhannon, 532 U.S. at 608, 121 S.Ct. 1835. The text of the MMWA is if anything clearer on the question at issue than was the text considered by the court in Buckhannon.

Accordingly, I would affirm the Fourth District’s decision that is on review and disapprove Dufresne and San Martin.

POLSTON and LABARGA, JJ., concur.

      . Fed.R.Civ.P. 68.


author: PER CURIAM.

text:
    Fredrick L. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5354.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2010.
    Luke Newman of Luke Newman, P.A., Special Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Kellie A. Nielan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF, DAVIS, and WETHERELL, JJ., Concur.


text:
    WAREHOUSE 1800, LLC, and Peter Izaak, Appellants, v. Alan LIEBERMAN, Appellee.
    No. 3D10-3338.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2011.
    Arnstein <& Lehr, Franklin L. Zemel, and Natalie F. Guerra-Valdes, Fort Laud-erdale; Ginnis & Groysman and Roman Groysman, Fort Lauderdale, for appellants.
    Robert P. Frankel, Miami, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 608.4492(1), Fla. Stat. (2010).


author: MONACO, C.J.

text:
    SEMINOLE COUNTY SCHOOL BOARD, Appellant, v. James Patrick DOWNEY, Jr., etc., et al., Appellee.
    No. 5D11-236.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.

      Ned N. Julian, Jr., Sanford, for Appellant, Seminole County School Board.
    William J. Grant, of Grant & Samargya, LLC, Inverness, for Appellee, James Patrick Downey, Jr.
    Leonard E. Ireland, Jr., of Clayton-Johnston, P. A., Gainesville, for Appellee, Florida High School Athletic Association, Inc.
   MONACO, C.J.

The appellant, Seminole County School Board, brought this nonfinal appeal from an order of the trial court granting a temporary injunction in favor of the appellee, James Patrick Downey, Jr., as next friend of his son, enjoining the.School Board from prohibiting the appellee’s son from participating in interscholastic wrestling activities. We review this case pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). Upon receiving the initial documents filed with this court, we granted a stay of the -injunction, and ordered an expedited briefing schedule in order to preserve the rights of the parties to the extent possible. We have concluded that the temporary injunction should not have been entered by the trial court and, accordingly, reverse.

We derive the facts of this case from Mr. Downey’s First Amended Complaint For Injunctive Relief (including attachments) filed in the lower tribunal, despite the fact that the complaint is not verified and that the affidavit in support of the complaint only addresses a few of the facts alleged. In December of 2010, Oviedo High School filed a Request for Eligibility ruling with the, appellee, Florida High School Athletic Association (“FHSAA”) on behalf of the minor appellee. The request indicated that the minor would be enrolling at Oviedo High School in January of 2011, as a transfer from a high school in Maryland. Apparently the request was necessitated because of a question concerning the minor’s eligibility to compete in wrestling at Oviedo High. The minor had been declared ineligible to participate by his high school in Maryland, but had not been declared ineligible by the Maryland High School Athletic Association, the body in Maryland that is equivalent to the FHSAA. The reason for the minor’s ineligibility at the Maryland high school is not revealed in the pleadings, briefs or other documents presented to us.

On January 7, 2011, the FHSAA determined that the minor was ineligible to compete interscholastically based on Bylaws 9.3.2 and 9.3.4 of the FHSAA. The appellees appealed to the FHSAA emergency appeal committee. On January 20, 2011, however, the appeal committee affirmed the original noneligibility ruling. A further appeal to the FHSAA Board of Directors was available on January 23rd, but that would have occurred one day after the next wrestling competition. The .ap-pellees alleged that unless the minor was allowed to compete in the January 22nd competition, he would not be able to qualify for state competition, “thus affecting his ability to receive scholarships from colleges and universities.” At this point the judicial branch became involved.

Mr. Downey sought a temporary injunction against the Seminole County Public Schools and the FHSAA “allowing [the minor’s] participation in interscholastic wrestling activities at Oviedo High School.” Mr. Downey was able to secure hearing time before the circuit court at 9:00 a.m., on January 21, 2011. The only notices of that hearing given to the School Board and the FHSAA were faxed to the Superintendent of the Seminole County Schools and the resident agent for - the FHSAA. The faxed notices of hearing had printed on them a date and time stamp of January 20th at 6:02 p.m. Mr. Downey now advises us that the notice was actually served an hour earlier, but that the fax machine used to transmit the documents had not been adjusted from Daylight Savings Time. The record reflects no other attempts to give notice to the appellants, although Mr. Downey’s brief said the attorneys representing him called shortly before 5:00 to say that a pleading and notice were going to be faxed. While the written record neither confirms nor rejects that assertion, the certificate of service indicates that only the after-hours fax was used for notification purposes. Not surprisingly, the injunction hearing went lin-contested, and the lower tribunal entered a barebones injunction order -containing no findings, and simply requiring a $500 cash bond to be posted.

Thereafter, the School Board filed an Emergency Petition For Writ of Prohibition (treated by this court as a notice of non-final appeal), and requested a stay of the injunction. We issued the stay and ordered expedited briefing after being informed that although the minor did not wrestle in the January 22nd meet, the District wrestling competition was upcoming and that this competition is one “which a wrestler has to compete in [sic] order to qualify for the State Wrestling Championship...”

We reverse for many reasons. First, it is clear that the notice of the injunction hearing given by Mr. Downey was inadequate. While rule 1.610(a)(1)(A), Florida Rules of Civil Procedure, allows for the entry of a temporary injunction without oral or written notice, that process may only be utilized if the facts shown in an affidavit or verified pleading reflect that immediate' and irreparable injury, loss or damage would result before the adverse party could be heard in opposition. That clearly was not the case here. The affidavit indicates only that the minor lives in Oviedo with his father, and that the two of them did not live with the senior Downey’s parents. It also relates that the minor was not ruled ineligible by the Maryland Public Secondary School Athletic Association or by the Anne Arundel County Public Schools. No mention of the fact that the minor was ruled ineligible by his Maryland high school is made. The appellee elected to fax a notice after business hours. Rule 1.080, Florida Rules of Civil Procedure, specifies that facsimile service occurs when the transmission is complete and that service completed after 5:00 p.m. “shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.” On that basis alone, reversal would be appropriate, even if we credit the extra hour claimed because of the failure to adjust the fax machine for the change in time.

Next, we examine the injunction process and the order that was issued. Rule 1.610(a)(2) provides that no evidence other than an affidavit or verified pleading may be considered unless the adverse party either appears at the hearing or has been given adequate notice and fails to appear. As indicated above, notice here was inadequate and the pleading was not verified, so we must look to the affidavit for support of the injunction. The affidavit is as inadequate as the notice. While the complaint for injunctive relief is rich in detail, the affidavit is sparse. It says only that Mr. Downey is over 18; that he is the natural father of his minor son; that he did not and does not reside with his parents in Maryland; and that his son has never .been ruled ineligible by the Maryland equivalent of the FHSAA or by the Anne Arundel County Public Schools. No injunction should have been issued based on this pleading and affidavit.

Similarly, the order simply grants the temporary injunction and sets a bond, even though Rule 1.610(a)(2) says:

Every temporary injunction granted without notice shall be endorsed with the date and hour of entry and shall be filed forthwith in the clerk’s office and shall define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given.

(Emphasis added). Because the notice given by Mr. Downey was essentially no notice at all, the findings and reasons were required to be articulated in the order. See Somerville v. Reusser, 649 So.2d 339, 342 (Fla. 5th DCA 1995). As they were not, the order was erroneous.

Moreover, Rule 1.610(d) requires, among other things, that every injunction specify the reasons for entry, and describe the acts being restrained (without reference to another pleading or document). Here, the order meets neither of those requirements. The unelaborated order only says (after the unchecked blocks are ignored):

THIS MATTER having come before the Court on Plaintiffs Motion for Injunc-tive Relief and the Court, having reviewed the matter and being fully advised in the premises, does hereby,
ORDER, ADJUDGE and DECREE as follows:
Injunction GRANTED, with the following stipulations:
Injunction is valid after Plaintiff posts a $500.00 cash bond with the clerk of the Circuit Court.

There is no effort to describe the acts being restrained, or to specify the reasons for entry of the temporary injunction. The order, accordingly, does not meet the minimum requirements of the rule. See Mitts, Boyle & Assoc. Inc. v. Boyle Accounting Services, Inc., 703 So.2d 1218 (Fla. 5th DCA 1998); City of Jacksonville v. Naegele Advertising Co., 634 So.2d 750 (Fla. 1st DCA 1994), approved by 659 So.2d 1046 (Fla.1995).

Finally, an injunction may only issue if certain substantive requirements are met. In order to be entitled to a temporary injunction one must demonstrate, among other things, that the party seeking relief will suffer irreparable injury if the injunction is not issued. See Smith v. Housing Authority of City of Daytona Beach, 148 Fla. 195, 3 So.2d 880 (1941); Naegele Outdoor Advertising Co., 634 So.2d at 754; Cordis Corp. v. Prooslin, 482 So.2d 486, 489-90 (Fla. 3d DCA 1986). This court has previously held that “the possibility of a scholarship is not a protect-able property interest.” See Fla. High School Athletic Assn. v. Melbourne Central Catholic High School, 867 So.2d 1281, 1288 (Fla. 5th DCA 2004). We held further that “a student’s interest in participating in interscholastic sports is a mere expectation, and not a constitutionally protected property right.” Id. at 1289. We reverse, as well, because of the failure of Mr. Downey to demonstrate irreparability.

Accordingly, we reverse the order of the trial court granting the temporary injunction and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . Although the FHSAA obviously sides with the School Board, it is technically an appellee under rule 9.020(g)(2), Fla.R.App.P.

      . 9.3.2 Transfer Student Not Eligible Until The Following School Year. A student who transfers from one school to anothér will not be eligible at the new school until the beginning of the next school year, unless the student qualifies under one of the following four exceptions: (exceptions omitted).
      9.3.4 Ineligible Student Cannot Transfer To Become eligible. A transfer student who is ineligible for any reason at the time of the transfer will not be eligible in the new school until the student has been in attendance for one full semester. Attending a new school at the beginning of the school year does not decrease or eliminate the period of ineligibility.

      . While mootness has been raised, we need not address this issue because of the disposition we make of this case.


text:
    Greg LAFFITTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2992.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Greg Laffitte, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: PER CURIAM. COHEN, J., TORPY, J.,

text:
    SUNCRUZ CASINOS, LLC, Appellant, v. Danny STOUT, Appellee.
    No. 5D09-987.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Rehearing Denied May 2, 2011.
    Hinda Klein, of Conroy, Simberg, Ga-non, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant.
    Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   PER CURIAM.

AFFIRMED.

PALMER, J., concurs.

COHEN, J., concurs specially, with opinion.

TORPY, J., dissents, with opinion.

COHEN, J.,

concurring.

One might think that in a case where a verdict in excess of $550,000 was rendered, Appellant would provide a complete trial transcript to permit a full review. Instead, only excerpts were prepared until Appellant filed a transcript as an appendix to its initial brief. Because the transcript was not part of the record on appeal, it cannot be considered. Miller v. Miller, 767 So.2d 532 (Fla. 5th DCA 2000).

To prevail on appeal based upon the denial of a proposed jury instruction, the proponent of the instruction must establish that “the requested jury instruction contained an accurate statement of the law, that the facts of the case support the giving of the instruction, and that the instruction was necessary for the jury to properly resolve the issues in the case.” Giordano v. Ramirez, 503 So.2d 947, 949 (Fla. 3d DCA 1987). Dealing with trial excerpts is problematic; we have no transcript establishing the entirety of the facts placed before the jury, only a partial transcript of the charge conference, and no transcript of the jury instructions provided to the jury. Given the state of the record, I agree that Appellant cannot establish reversible error and that affirmance is required.

TORPY, J.,

dissenting.

I would reverse because the trial court failed to adequately instruct the jury on the defense theory. In this slip and fall case, Appellant claimed that Appellee was an “undiscovered trespasser,” as defined by statute — a status that affects Appellant’s duty. Although the trial court acknowledged a fact dispute on this issue, it denied a proposed special instruction that would have given the jury the legal framework to resolve this issue.


text:
    David HARRICHARAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-102.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    Rehearing Denied April 7, 2011.
    Richard C. Klugh, of Richard C. Klugh, PLLC, and Mark Seiden, of Law Offices of Mark Seiden, P.A., Miami, for Appellant.

      Pamela Jo Bondi, Attorney General; Tallahassee, and Douglas T. Squire; Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

David Harrieharan appeals an order denying his postconviction motion after an evidentiary hearing. We affirm as to all issues and write only to address Harri-charan’s argument that the case should be remanded so that he can amend his post-conviction motion to include a claim of fundamental error based upon State v. Montgomery, 39 So.3d 252 (Fla.2010) (holding that the standard manslaughter by act jury instruction’s second element— that the defendant “intentionally caused the death of (victim)” — erroneously required the jury to find proof that the defendant intended to kill the victim in order to find him guilty of that crime).

With respect to this claim, we conclude that Montgomery does not apply to cases such as Harricharan’s, which were final before Montgomery was decided. See, e.g., Reed v. State, 837 So.2d 366, 370 (Fla.2002) (finding fundamental error in giving of standard jury instruction for aggravated child abuse, but applying holding only to “cases pending on direct review or not yet final.”); Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (“[W]e hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to- a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final- To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.”) (citations omitted); see also, Rozzelle v. State, 29 So.3d 1141 (Fla. 1st DCA 2009) (holding that First District’s decision in Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), which was approved in the Supreme Court’s Montgomery opinion, did not apply retroactively to cases that were final before the decision was issued).

AFFIRMED.

GRIFFIN, SAWAYA, and LAWSON, JJ., concur.


author: POLEN, J. PER CURIAM.

text:
    STATE of Florida, Appellant, v. Richard T. MICHELS, Appellee.
    No. 4D09-4696.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    As Amended on Rehearing April 27, 2011.

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

Appellant, the State of Florida, appeals the trial court’s order adjudicating Appel-lee, Richard Michels, guilty of failure of sex offender to properly register and sentencing him to one day in jail with credit for one day served. Having determined that the trial court erred in granting Mi-chels a downward departure, we reverse and remand for Michels to be.sentenced within the statutory guidelines.

In July 2009, the Palm Beach County Sheriffs Office learned that Michels was residing in Riviera Beach, was required to register as a sex offender in both South Carolina and North Carolina, and had not registered in Florida. Upon reporting to Michels’ possible address, sheriffs detectives met with Michels who admitted he was convicted of aggravated oral sexual battery in Louisiana, was required to register in North Carolina and South Carolina, was aware of the requirement to register but failed to do so, and had not registered in Palm Beach County or any other Florida county.

On October 29, 2009, Michels pled guilty to the charge and the trial court, after determining that the facts of the case supported a downward departure, sentenced him to one day in jail with credit for one day time served. During the hearing, Mi-chels testified that he currently resided in Delray Beach and had lived there for three months, In Louisiana, in 1997, Michels committed an offense which resulted in him having to register as a sexual offender. He had lived in Florida for a couple years. Michels had failed to comply with the registration requirement because he was an alcoholic and his addiction was so bad he was “in a life or death situation.” Ultimately, he entered a treatment program which he completed. At the time of the hearing he had been sober twenty-three months. Michels acknowledged that he was required to register twice a year and stated that he had last registered in September 2009. Defense counsel asked whether Michels was remorseful about the incident that resulted in him becoming a sexual offender, and he replied that he was. Michels ultimately stated:

I just want to say that I’m guilty of the charge, but uh ... I’m part of a solution now.
I go into these meetings and I talk to these' people about all sorts of addictions. And sexual addiction is part of the problem. That leads to other addictions.

On cross-examination, Michels testified that even though he was struggling with alcoholism when he moved to Florida, he knew he was required to register’. The State pointed out that under section 921.0026(3), Florida Statutes, a defendant’s substance abuse or addiction does not provide justification for a downward departure. The State argued that Michels’ failure to register was not an isolated -offense because Michels had about a year and a half to register and did not. Finally, the State asserted that Michels’ remorse for the offense he committed in 1997 was irrelevant because the downward departure statute refers to remorsefulness regarding the current charge — failure to register as a sexual offender.

The trial court noted that the substance abuse issue was not relevant to its determination regarding the downward departure. The court found that Michels was remorseful insofar as he was currently making a contribution to the community trying to help others see the error of their ways. The State .now timely appeals.

This court has discussed its review of a downward departure:

Our review of a downward departure decision is based upon a two part process. The first prong, whether the court can depart, “is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The level of proof necessary to establish facts supporting a departure is a preponderance of the evidence. § 921.001(4)(a)(6), Fla. Stat. We assess the record evidence for its sufficiency only, not its weight. Banks, 732 So.2d at 1067.

State v. Strawser, 921 So.2d 705, 707 (Fla. 4th DCA 2006). Section 921.0026(2) provides a non-exhaustive list of mitigating factors. Subsection (j), relied on in the present case, allows for a departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2009). When the trial court relies solely on this mitigating factor, all three elements must be shown. State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004).

In State v. Geoghagan, 27 So.3d 111 (Fla. 1st DCA 2009), the First District reversed the trial court’s downward departure in a similar case. There, the trial court granted a downward departure under (2)(j) but failed to find’ that the incident was isolated. The First District determined:

[T]he record does not support such a finding. Section 943.0435(14)(a), which requires that “[a] sexual offender must report in person each year during the month of the sexual offender’s birthday and during the sixth month following the sexual offender’s birth month,” became effective on September 1, 2005. The record indicates appellee’s birthday is June 2. Therefore, he would have been required to report initially in June 2006 and every six months thereafter. Here, appellee was charged with failing to report in December 2006 and June 2007. Therefore, appellee failed to register two of the three times he was required to register between June 2006 and June 2007, which does not constitute an isolated incident. Therefore, reasons 8 and 10, that appellee committed the offense in an unsophisticated manner and showed remorse, are invalid reasons for departure because the incident was not also isolated.

Id. at 115.

Similarly here, the trial court did not find that the incident was isolated. Under Geoghagan, such a finding would have been error in any case. The testimony was undisputed that Michels moved to Florida in January 2008, and as of July 2009, had not registered. Michels was required to register upon initially moving to Florida, every September and every March. It appears he failed to register in Florida four different times. Further, the record does not show that Michels was remorseful for failing to register or that the offense was unsophisticated. Instead, Michels’ testimony established that he was remorseful for the incident which gave rise to him being required to register as a sexual offender, and that he knew he was required to register but neglected to do so. The trial court erred in granting a downward departure under (2)(j). We reverse and remand for Michels to be sentenced within the statutory guidelines.

Reversed and Remanded.

CIKLIN and LEVINE, JJ., concur.

On Motion for Rehearing

PER CURIAM.

We grant appellee’s motion for rehearing. The language. in our slip opinion, dated March 2, 2011, that directs the trial court to sentence appellee within the statutory guidelines is corrected as follows: On remand, the trial court should be again permitted to depart if it finds a legally sufficient reason to do so. See Jackson v. State, — So.3d -, No. SC09-2383, 2011 WL 536429 (Fla. Feb. 17, 2011).

POLEN, CIKLIN and LEVINE, JJ., concur.


author: GERBER, J.

text:
    Verushka VALERO, individually and as parent and natural guardian of D.R., a minor, Alberto Mila and Karelli Mila, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., a non-profit Florida corporation, Humberto Ramirez and Shyla Ramirez, Appellees.
    Nos. 4D09-1151, 4D09-1335.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Rehearing Denied May 26, 2011.

      Roy D. Wasson of Wasson & Associates, Chartered, and Howard J. .Weitzner of Greenberg & Stone, P.A., Miami, for appellant Verushka Valero..
    Perry M. Adair of Becker & Poliakoff, P.A., Coral Gables, for appellants Alberto Mila and Karelli Mila.
    Charles W. Rice, Robert Dugan and Jennifer A. Golden of Buckner, Shifrin, Rice & Etter, P.A., Miami, for appellee Florida Guaranty Insurance Association.
    No appearance for appellees Humberto Ramirez and Shyla Ramirez.
   GERBER, J.

The insurer filed a declaratory judgment action alleging that it had no obligation to provide a defense or coverage for its insureds on a negligent supervision action arising out of sexual molestation. The insurer relied on the sexual molestation exclusion in the insureds’ homeowners’ policies to deny coverage. The circuit court granted the insurer’s motion for summary judgment on that argument. We affirm.

The exclusion at issue provided that coverage did not apply to “bodily injury ... [ajrising out of sexual molestation....” In its motion for summary judgment, the insurer acknowledged there was no Florida case addressing whether a sexual molestation exclusion applied to a negligent supervision action arising out of sexual molestation. However, the insurer argued that because the negligent supervision action arose out of sexual molestation, the sexual molestation exclusion should exclude coverage regardless of the legal theory by which the alleged victim was pursuing the underlying action.

The alleged victim and the insureds, in their responses to the motion for summary judgment, argued that the sexual molestation exclusion was inapplicable because the alleged victim’s underlying action was based on the insureds’ negligent supervision of the alleged perpetrator, and not on sexual molestation by the insureds. The alleged victim further argued that if the insurer intended to exclude coverage for negligent supervision, then it should have expressly stated such an exclusion in the policy. The insureds further argued that it was unclear from the exclusion’s language whether coverage for sexual molestation is excluded when committed by any person or only by the insured. That ambiguity, according to the insureds, had to be resolved against the insurer and in favor of coverage.

In its order granting the motion for summary judgment, the circuit court reasoned;

[T]he language excluding coverage for sexual molestation is clear and unambiguous. Any insured would be on notice the insuring .agreement will not insure against acts of sexual molestation.... [W]hat homeowner could possibly expect to be insured for something as egregious as child molestation[?]

In further support of its decision, the circuit court cited other states’ supreme court decisions which rejected insureds’ attempts to raise negligent supervision actions to avoid sexual molestation exclusions. According to the circuit court, “All concluded the act leading to damages was sexual molestation — and it really did not matter how it was pled.”

This appeal followed. “Our review of an order granting summary judgment is de novo, as is the interpretation of an insurance contract and the determination of whether the law requires the insurer to provide coverage.” Am. Strategic Ins. Co. v. Lucas-Solomon, 927 So.2d 184, 186 (Fla. 2d DCA 2006) (citations omitted).

We agree with the circuit court that the language excluding coverage for sexual molestation is clear and unambiguous. However, we reach that conclusion based on a finding slightly different from that which the circuit court made. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

The policy at issue contains a list of twelve enumerated exclusions stating that coverage did not apply to bodily injury:

a. Which is expected or intended by the insured;
b. Arising out of or in connection with a business engaged in by an insured ...;
c. Arising out of the rental ... of any part of any premises by an insured ...;
d. Arising out of the rendering of or failure to render professional services;
e. Arising out of a premises ... that is not an insured location;
f. Arising out of ... ownership ... of motor vehicles ...;
g. Arising out of ... ownership ... of an excluded watercraft ...;
h. Arising out of ... ownership ... of an aircraft ... ;
i. Caused ... by war ...;
j. Which arises out of the transmission of a communicable disease by an insured;
k. Arising out of sexual molestation, corporal punishment or physical or mental abuse; or
l.Arising out of the use [or] sale ... by any person of a Controlled Substance ....

(emphasis added; internal quotation marks omitted).

As emphasized above, exclusions a., b., c., and j. all expressly limit those exclusions based on some action taken by an insured. However, exclusion k., which is at issue here, contains no such express limitation. Thus, we conclude the plain meaning of exclusion k. is that the exclusion applies to bodily injury arising out of sexual molestation “by any person.” See U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 883 (Fla.2007) (“[W]e apply well-established principles of insurance contract interpretation, reading the policy both in accord with its plain language ... and as a whole, endeavoring to give every provision its full meaning and operative effect.”) (internal citation and quotations omitted).

The insureds argued in the circuit court that exclusion k. is ambiguous because exclusion l. expressly states that it applies to bodily injury “[a]rising out of the use [or] sale ... by any person of a Controlled Substance” (emphasis added), whereas exclusion k. does not expressly refer to sexual molestation “by any person.” However, reading all twelve exclusions together, we believe that the insurer’s use of the phrase “by any person” in exclusion l. is merely superfluous and does not create an ambiguity in exclusion k. or in exclusions d. through i., which also do not use the phrase “by any person.” For example, exclusion i. states that coverage does not apply to bodily injury “[c]aused ... by war.” It would make no sense for that exclusion to apply only if war was caused “by an insured.”

In practical terms, assuming that “any person” who commits sexual molestation can be an uninsured person, a situation logically must exist in which the insurer then can apply the sexual molestation exclusion to deny coverage to an insured person. That situation presumably would occur where the sexual molestation victim seeks to impose liability against the insured person on some theory of indirect liability such as negligent supervision. In that situation, the insurer would be able to apply the sexual molestation exclusion to deny coverage to an insured person, regardless of the theory pled. That is the situation which exists here. Thus, the circuit court reached the right result by recognizing the insurer’s ability to deny coverage in this case.

The alleged victim and the insureds argue that we should reverse the circuit court based on Mactown, Inc. v. Continental Insurance Co., 716 So.2d 289 (Fla. 3d DCA 1998). In Mactown, an insurer relied on an intentional tort exclusion to deny the defense of a negligent retention action arising out of a battery. The third district rejected the insurer’s position, reasoning:

[The exclusion] covers a number of intentional torts. It does not specifically exclude negligent acts. From the “ordinary person perspective” this exclusion is, at best, ambiguous, and thus must be construed in favor of coverage.

Id. at 292 (citations omitted). We find Mactown to be of limited assistance. There, our sister court addressed the exclusion at issue in isolation and found the exclusion to be ambiguous. Here, we have been able to consider the exclusion at issue in context with the entire exclusions section and have found the exclusion to be unambiguous.

The alleged victim and the insureds also rely on Premier Insurance Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994). In Premier, the fifth district rejected an insurer’s reliance on an intentional act exclusion to deny the defense of a negligent supervision action against an insured parent arising out of sexual molestation by an insured child. The exclusion at issue excluded coverage for claims of “bodily injury ... which is expected or intended by any insured.” Id. at 1055 (emphasis omitted). The insurer argued that the term “any insured” excluded all insured persons, and not just' the perpetrator, notwithstanding the policy’s severability clause which stated that the policy applied “separately to each insured.” Id. at 1056. The fifth district disagreed with the insurer, reasoning:

[W]hen an insurance policy is ambiguous or fairly susceptible to two reasonable interpretations, one of which is in favor of the insured and one of which is in favor of the insurer, the policy must be construed strictly against the insurer as drafter of the policy.... [T]he most plausible interpretation is that the exclusionary clause is to exclude coverage [only] for the separate insurable interest of that insured who intentionally causes the injury.

632 So.2d at 1057. We find Premier to be of limited assistance as well for two reasons. First, the exclusion at issue in Premier precluded coverage for bodily injury arising out of an intentional act by any insured, whereas the exclusion at issue here precludes coverage for bodily injury arising out of sexual molestation by any person. Second, our sister court in Premier based its decision on a severability clause which the court found to be ambiguous. Here, we have based our decision on the exclusion which we have found to be unambiguous.

Both sides have encouraged us to interpret the exclusion at issue in isolation by comparing other jurisdictions’ interpretations of identical or similar exclusions. For example, the insurer has cited cases from other jurisdictions holding that identical or similar exclusions preclude coverage for an insured. See, e.g., Philbrick v. Liberty Mut. Fire Ins. Co., 156 N.H. 389, 934 A.2d 582, 585-86 (2007) (where the policy language “explicitly ties the exclusion to the nature of the injury, the analysis should be directed toward the injuries suffered, rather than the causes of action in the complaint”). Conversely, the alleged victim and the insureds have cited cases from other jurisdictions holding that similar exclusions do not preclude coverage for an insured. See, e.g., Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 913 N.E.2d 426, 435 (2009) (“Several courts have ... examined] each tort on its own merits and declined] to apply intentional-act and illegal-act exclusions ... to preclude coverage for negligent acts related to intentional torts”).

We respect other jurisdictions’ decisions. However, those decisions are not helpful here because the other jurisdictions, at least as indicated by their opinions, examined the exclusions at issue only in isolation. We have had the benefit of considering the exclusion at issue in context with the entire exclusions section. Thus, we leave for another day the interpretation of an identical or similar exclusion for which we lack the context available to us here.

Affirmed.

TAYLOR, J., and ROSENBERG, ROBIN, Associate Judge, concur.


text:
    CRYSTAL CLEAR HOLDINGS, LLC, Appellant, v. Theodore GOSMAN, Appellee.
    No. 3D10-1267.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Albert D. Rey, for appellant.
    S. Alan Johnson Law, and S. Alan Johnson and Lei Ru, Hollywood, for appellee.
    Before GERSTEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. § 49.041, Fla. Stat. (2009); Miller v. Partin, 31 So.3d 224 (Fla. 5th DCA 2010).


text:
    TOTAL SIGNS & LIGHTING, INC., Appellant, v. Gary BARRIOS, Appellee.
    No. 3D10-772.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Rehearing Denied April 7, 2011.

      Vernis & Bowling and David.W. Gross-man, Miami; Hicks, Porter Ebenfeld & Stein, Mark Hicks, Miami, and Erik P. Bartenhagen,- for appellant.
    Lawrence J. McGuinness; Roberto Vil-lasante, Coral Gables, for appellee.
    Before, SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because the appellant-defendant-employer was entitled to workers’ compensation immunity from common law liability to the appellee-employee for injuries in a construction accident as a matter of law, see sections 440.02(15)(c)(3); 440.11(1), Fla. Stat. (2006), the trial court should have granted the defendant’s motion for directed verdict below. The judgment under review in appellee’s favor is therefore reversed and the cause remanded with directions to enter one for the appellant.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    John SAN MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-628.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before, SUAREZ and SÁLTER, Jj., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

On this appeal from convictions and a 30-year sentence with a 25-year min-man for attempted armed robbery and armed burglary, the sole issue challenges the admission of the defendant’s inculpato-ry statements to the police. Of the various grounds asserted, the only one which deserves discussion argues that the Miranda waiver, which was otherwise impeccably secured, was spoiled by the utterance, “S-t, nigga ain’t got one,” stated while he was indicating his willingness to speak without counsel by initialing that provision of the standard waiver form. It was not.

In agreement with both sides, we take it from this comment that the defendant was reflecting his awareness of and perhaps displeasure with the fact that there was no attorney actually present when he waived his Miranda rights. It is established, however, that these rights do not include one to have a lawyer immediately available before questioning can begin. As the Supreme Court has stated, “Miranda does not require that attorneys be producible on call ... Miranda requires only that the police not question a suspect unless he waives his right to counsel,” [e.s.], which San Martin clearly did. See Duckworth v. Eagan, 492 U.S. 195, 204, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989); see also Everett v. State, 893 So.2d 1278, 1285 (Fla.2004), cert. denied, 544 U.S. 987, 125 S.Ct. 1865, 161 L.Ed.2d 747 (2005).

Affirmed.

      . See Almeida v. State, 737 So.2d 520, 523 (Fla.1999), cert. denied, 528 U.S. 1182, 120 S.Ct. 1221, 145 L.Ed.2d 1121 (2000) ("Custodial utterances are extraordinarily rich in diversity. ... ”).


text:
    Tony Lee ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6722.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    Tony Lee Ashley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Tony Lee Ashley, challenges the trial court’s order summarily denying his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Based upon the portions of the record that the trial court attached to its order, summary denial as to grounds one and three was proper. However, as the State acknowledged in its response to this Court’s Toler order, the trial court failed to attach portions of the record conclusively refuting the claims made in ground two of the motion. Accordingly, we reverse and remand for the trial court to either attach portions of the record conclusively refuting ground two or for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

WOLF, DAVIS, and PADOVANO, JJ., concur.


author: STEVENSON, J.

text:
    MINTZ & FRAADE, P.C., a foreign professional corporation, Frederick Mintz, individually, and Alan P. Fraade, individually, Appellants, v. BETA DRYWALL ACQUISITION, LLC, a Florida limited liability company, Beta Drywall, LLC n/k/a Beta Construction, LLC, a Florida limited liability company, Stephen Feldman, individually, and B. Michael Watkins, individually, Appellees.
    No. 4D10-546.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.
    Rehearing Denied May 24, 2011.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and John C. Rayson of the Law Offices of John C. Rayson, Fort Lauderdale, for appellants.
    John J. Shahady of Yoss LLP, Fort Lauderdale, for appellees.
   STEVENSON, J.

This appeal stems from a complaint filed by appellees, Beta Drywall Acquisition, LLC, (hereinafter “Beta Acquisition”), Beta Construction, LLC, Stephen Feldman and B. Michael Watkins, against Mintz & Fraade, P.C. (hereinafter “M & F”), and Mintz and Fraade, individually, for legal malpractice and breach of fiduciary duty. M & F sought to compel arbitration in New York, pursuant to an arbitration clause contained in the retainer agreement between the parties. The trial court denied the motion to compel arbitration. Because the retainer agreement involves interstate commerce and is governed by the Federal Arbitration Act (FAA), we reverse.

In 2003, Feldman, Watkins and non-party, Jay Landesman, sought the professional services of M & F in acquiring the assets of Beta Drywall, Inc.,: a Florida corporation. The parties entered into a retainer agreement signed by Feldman, Watkins, Landesman and Beta Acquisition. Feldman and Landesman were New York residents, while Watkins was a resident-of Arizona. Beta Acquisition was not formed at the time the retainer agreement was executed; however, the parties anticipated that it would be formed as a Florida corporation for the purpose of acquiring Beta Drywall, Inc. The retainer agreement contained the following arbitration clause:

The parties agree that they shall be deemed to have agreed to binding arbitration in New York, New York, with respect to the entire subject matter of any and all disputes relating to or arising under this Retainer Agreement, including, but not limited to, any fee disputes.

As outlined by the retainer agreement, M & F executed the documents necessary to form Beta Acquisition in preparation for the purchase of Beta Drywall, Inc. However, conflict arose between the parties and a third entity was created to complete the purchase. This resulted in litigation between Landesman, Feldman and Watkins, and ultimately led to appellees filing the instant complaint. The complaint alleges, generally, that M & F failed to properly formalize and file the various start-up and operating documents for Beta Acquisition; failed to properly advise Feldman and Watkins; failed to protect the interests of Feldman and Watkins; and failed to withdraw as counsel when a conflict of interest arose. M & F filed a motion to compel arbitration based on the arbitration clause in the retainer agreement. The trial court denied the motion, reasoning that Florida courts could not compel arbitration in another state.

“‘An order granting or denying a motion to compel arbitration is reviewed de novo.’” Berkowitz, Dick, Pollack & Bryant v. Smith, 49 So.3d 309, 311 (Fla. 4th DCA 2010) (quoting DFC Homes of Fla. v. Lawrence, 8 So.3d 1281, 1282 (Fla. 4th DCA 2009)). “[A]n agreement to arbitrate future disputes in another jurisdiction is outside the authority of the Florida Arbitration Code ... and ... renders the agreement to arbitrate voidable at the instance of either party.” Damora v. Stresscon Int'l Inc., 324 So.2d 80, 82 (Fla.1975). However, as an exception to the above principle, Florida courts may enforce an arbitration clause contained within an agreement governed by the Federal Arbitration Act. See Default Proof Credit Card Sys., Inc. v. Friedland, 992 So.2d 442, 444 (Fla. 3d DCA 2008). The FAA is applicable where an agreement evidences “a transaction involving commerce.” 9 U.S.C § 2 (2003). The term “involving commerce” means “a transaction that, in fact, involves interstate commerce,” even if interstate commerce was not intended. Default Proof, 992 So.2d at 445. Further, the term “interstate commerce” is to be interpreted broadly. See Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So.2d 658, 660 (Fla. 4th DCA 2008).

The .instant retainer agreement clearly involved interstate commerce. The retainer agreement, entered into by New York and Arizona residents, expressly provided that professional services were being obtained for the purpose of acquiring a Florida corporation. Additionally, the agreement, in fact, involved interstate commerce because M & F’s services.re-suited in the incorporation of Beta Acquisition as a Florida entity and the successful acquisition of Beta Drywall, Inc., by Feldman and Watkins. Because the retainer agreement involved interstate commerce, the contract falls within the ambit of the FAA and is enforceable. See 9 U.S.C. § 2 (arbitration clauses in contracts involving interstate commerce are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”).

The choice of law provision contained in the arbitration clause is also enforceable. Choice of law provisions, in general, are enforced by Florida courts, so long as the law of the foreign state does not contravene “strong public policy of Florida or is unjust or unreasonable.” Default Proof, 992 So.2d at 444. Appellees argue that the instant retainer agreement contravenes Florida public policy against mandatory arbitration of fee disputes in retainer agreements. Arbitration clauses in retainer agreements may be enforceable, but are construed against the attorney and must comply with the Rules Regulating The Florida Bar. See, e.g., Vargas v. Schweitzer-Ramras, 878 So.2d 415, 417-18 (Fla. 3d DCA 2004) (construing arbitration clause in retainer agreement against attorney); see also Feldman v. Davis, 53 So.3d 1132, 1137 (Fla. 4th DCA 2011) (observing that a retainer agreement may not include a mandatory arbitration provision unless that agreement complies with rule 4-1.5(i) of the Rules Regulating The Florida Bar). New York takes a similar approach to fair and fully-disclosed arbitration clauses in retainer agreements and does not contravene the “strong public policy of Florida.” See, e.g., Larrison v. Scarola Reavis & Parent LLP, 11 Misc.3d 572, 812 N.Y.S.2d 243, 247-49 (N.Y.Sup.Ct.2005) (arbitration clause in retainer agreement, as construed against the attorney, was unenforceable for violating public policy and the Code of Professional Responsibility).

Additionally, the complaint filed by appellees raises issues that fall within coverage of the arbitration provision. The relevant inquiry is “‘whether the factual allegations underlying the claim are within the scope of the arbitration clause.’” Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93 (4th Cir.1996) (quoting J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.1988)). Further, when the term “arising out of’ is combined with “relating to” in an arbitration provision, the provision is to be interpreted broadly. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636-37 (Fla.1999); Am. Recovery Corp., 96 F.3d at 93. The instant arbitration clause applies to disputes “relating to or arising under” the retainer agreement. This language is broad enough to encompass the malpractice and breach of fiduciary duty claims because they are based solely on M & F’s actions while providing services obtained through the retainer agreement. The additional arguments raised by the parties reveal no basis on which to find the arbitration provision invalid. Thus, the provision is enforceable and the trial court’s order is reversed.

Reversed and remanded.

WARNER and GERBER, JJ., concur.


text:
    Christopher L. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3420.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Christopher Edwards, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Christopher Edwards appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, which raised two claims. We affirm, without discussion, as to both claims, but remand with directions that the trial court address a sentencing illegality apparent in the record. See Govea v. State, 785 So.2d 638 (Fla. 5th DCA 2001) (on postconviction appeal, appellate court may order correction of patent sentencing errors not raised in postconviction motion or in order on appeal) (citing Rodriguez v. State, 766 So.2d 1147 (Fla. 3d DCA 2000) and Kinsey v. State, 728 So.2d 1199 (Fla. 2d DCA 1999)).

In the proceedings below, the trial court initially sentenced Edwards to eight years in prison followed by five years of probation on a charge of robbery, a second degree felony with a fifteen-year maximum penalty. Edwards has not performed well on probation, and has violated his probation several times. For Edwards’ most recent violation of probation, the trial court imposed a new split sentence of fourteen years in prison (with appropriate credit for prior jail and prison time), to be followed by a new one-year probationary term. When a trial court imposes a new split sentence following a violation of probation, the law requires that the court “‘give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.’” Waters v. State, 662 So.2d 332, 333 (Fla.1995) (quoting Bragg v. State, 644 So.2d 586, 587 (Fla. 1st DCA 1994)); see also, Smith v. State, 941 So.2d 565, 566 (Fla. 1st DCA 2006) (“When imposing a sentence for a violation of probation, a court must provide credit for time previously served on probation when necessary to ensure that the total time served does not exceed the statutory maximum for the offense at issue.”) (citations omitted).

In this case, the new split sentence reaches the statutory maximum penalty with no credit for the time that Edwards previously served on probation. It appears from the record before us that Edwards has already served approximately seven months on probation and community control for this offense. If Edwards is not given credit for the time he has already served on probation and community control against the new one-year probationary term, then Edwards will be forced to serve approximately fifteen years and seven months on the charge, as a result of the new split sentence, in violation of Waters.

Accordingly, we affirm as to the issues raised in Edwards’ postconviction motion, but remand with directions that Edwards be given the credit necessary for his new split sentence to comply with Waters.

AFFIRMED; REMANDED WITH DIRECTIONS.

PALMER, ORFINGER, and LAWSON, JJ., concur.


text:
    Eric M. AYLUARDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-427.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Eric Ayluardo, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his rule 3.800 motion. He claims that his sentence exceeds the statutory maximum. As the State points out, Appellant’s sentence does not exceed the maximum sentence if it was properly reclassified based upon a jury finding that he used a weapon during the commission of the crime. Based upon the limited record before us, we cannot tell whether the jury made the necessary finding. The trial judge did not attach portions of the record to refute the claim. Accordingly, as the State properly concedes, reversal is necessary with instruction for the trial court to grant the relief or attach the proper records to refute the claim.

REVERSED AND REMANDED.

MONACO, C.J., ORFINGER and TORPY, JJ., concur.