author: COHEN, J.

text:
    AVALON LEGAL INFORMATION SERVICES, INC., etc., et al., Appellants, v. Gerard F. KEATING, Appellee.
    No. 5D12-78.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.

      Jeremy S. Sloane of Vasallo Sloane, P.L., Orlando, for Appellants.
    Eric A. Latinsky, Daytona Beach, for Appellee.
   COHEN, J.

Avalon Legal Information Services, Inc., a Florida corporation (“Avalon”), and Judy B. Schneider (“Schneider”) appeal from the trial court’s non-final order temporarily enjoining them in accordance with a non-compete/non-solicitation covenant executed in favor of Gerard F. Keating (“Keating”). Avalon and Schneider challenge the grounds for the temporary injunction, the breadth of the injunction order, and the bond set by the trial court. We affirm the injunction and the amount of bond required, but remand for modification of certain terms of the injunction.

From 1998 to 2008, Schneider worked for an attorney who was the first to provide civil service of process training and consulting to Florida’s sheriffs. Schneider, who formerly worked for the Volusia County Sheriffs Office for over thirty years, served as the attorney’s assistant and paralegal. When the attorney retired from the practice of law in 2003, Schneider undertook the purchase of the business and entered into an agreement with Keat-ing to allow him' to act as the supervising attorney over the consulting contracts. In 2004, the retired attorney sold his contracts with forty-three sheriffs’ offices, along with a training program and instruction materials, to Schneider.

Schneider, in turn, bifurcated the business and sold the consulting portion to Keating. Under the purchase agreement, Keating was to pay Schneider $200,000 over four years, with $50,000 down and the balance to be paid from the proceeds of the consulting contracts each quarter. The parties agreed to split the proceeds of the business evenly, with Keating’s payment to Schneider coming from his share of the profits. At the same time in 2004, Schneider sold the training and education portion of the business to George W. Kent (“Kent”), president and CEO of Avalon. Kent, ineligible to practice law in Florida since 1986, was Schneider’s former instructor at paralegal school.

From 2004 to 2008, Keating and Schneider worked the consulting contracts together. Schneider responded to telephone, e-mail and facsimile inquiries, reviewed documents, and provided advice to sheriffs, all subject to Keating’s supervision. Schneider simultaneously worked for Avalon as an instructor in its training program and co-authored a civil process manual with Kent. Keating also was involved to a small extent in Avalon’s training program, occasionally guest-lecturing at its school, and was held out to be a legal expert in its course material.

By August 2008, Keating had paid the balance he owed for the original forty-three contracts, and had grown the business to include additional sheriffs’ offices. On October 1, 2008, Keating and Schneider entered into the Independent Contractor Agreement. Per the agreement, Schneider was to continue to perform the same paralegal services for Keating as an independent contractor. She was to draw a salary of forty percent of the gross revenue, estimated to be approximately $70,000 yearly. The agreement was to last two years, until September 2010, subject to Schneider’s health and ability to work, and was renewable at the parties’ option for an additional two years.

Of particular import, the agreement incorporated a non-compete/non-solieitation covenant. While recognizing that Schneider was an instructor and manual writer for Avalon, the covenant prohibited her from competing with and soliciting Keating’s civil process contracts in the State of Florida for three years following the expiration of the Independent Contractor Agreement (until September 2013).

Keating and Schneider operated successfully under this arrangement until September 2010. By then, Keating had four-year contracts with fifty-four sheriffs’ offices, each set to renew in 2012. Schneider, however, opted not to renew the Independent Contractor Agreement when it expired.

In mid-September 2010, Keating received a copy of a solicitation letter signed by Kent and sent by Avalon to all sixty-seven of Florida’s sheriffs’ offices. The letter highlighted two new changes at Avalon, the first being that Schneider— who was known by clients as an instructor at the school and as “a paralegal responding to questions by phone” — was going to start working exclusively for Avalon. The second change constituted Avalon’s expanded services, which included “a new Help CD and 24/7 telephone support ... designed to answer most questions that have come up about enforceable and nonenforceable process.” A flyer attached to the letter emphasized Avalon’s “New Bundle of Services” and its reduced cost.

In an effort to prevent Keating’s clients from cancelling their contracts, which contained a unilateral cancellation clause, Keating and Kent agreed to send a joint letter, explaining that Keating remained the sheriffs’ legal consultant on civil process matters and that Avalon did not provide legal advice. Over the course of the next year, however, sixteen sheriffs’ offices cancelled their contracts with Keating.

In September 2011, Keating filed a sworn complaint against Avalon, Kent and Schneider for temporary and permanent injunctive relief, an accounting, tortious interference with contractual relationships, and attorney’s fees. Keating subsequently moved for a temporary injunction and a hearing was held at which only he testified.

At the hearing, Keating explained that he had Schneider sign the non-compete agreement because she enjoyed a great deal of goodwill and personal loyalty with the clients, and he did not want to compete against her after purchasing the contracts. Interpreting the solicitation letter, he believed Schneider and Avalon were directly competing against him as they were offering his clients, at a lower price, the same telephonic support and document review service that he provided. When Keating confronted Kent, who knew of the non-compete/non-solicitation covenant, Kent indicated an unwillingness to stop the solicitation. Kent allegedly told Keating he had gone over the non-compete/non-solicitation covenant with Schneider, and they concluded it was unenforceable. Despite sending the joint letter, Keating testified that he received eighteen cancellations, resulting in a loss of $55,200 in revenue from September 2010 to September 2011. Cancellation letters from, and contracts with, the subject sheriffs’ offices were entered into evidence. According to Keating, future losses were difficult to quantify given the expiration period of the existing contracts in 2012, Avalon’s continued solicitation efforts, and ongoing discovery. He believed that, had Avalon not offered the bundled service in competition against him, the sheriffs’ offices would have renewed their contracts in 2012.

A copy of a recent Avalon contract, sent to one of Keating’s former clients, was admitted into evidence and showed that Avalon was providing telephonic support, “Consultation/Research on civil process matters in conjunction with sheriffs in-house legal counsel,” and annual site visits to review “procedures/policies” and to answer questions. While the contract warned that Avalon was not offering “legal consulting or legal services of any kind,” and that Avalon would work closely with the sheriffs in-house legal counsel if an issue required legal advice, Keating testified the disclaimer was added after suit was filed.

The trial court granted the temporary injunction as to Avalon and Schneider, but not as to Kent based on his status as a corporate officer. Regarding the bond, Avalon’s and Schneider’s counsel requested an amount higher than $55,000 — the loss amount to which Keating testified. Keating’s counsel requested a bond of $1,000. The trial court set bond at $10,000 and explained that the injunction was temporary and subject to a motion to dissolve at any time. This appeal followed.

Generally, a trial court is afforded “wide discretion to either grant, deny, dissolve, or modify a temporary injunction, and an appellate court will not intercede unless the aggrieved party clearly shows' an abuse of discretion.” Meyers v. Club at Crystal Beach Club, Inc., 826 So.2d 1086, 1089 (Fla. 5th DCA 2002); see also Gold Coast Chem. Corp. v. Goldberg, 668 So.2d 326, 327 (Fla. 4th DCA 1996) (noting trial court’s ruling on temporary injunction is clothed in presumption of correctness). To the extent a trial court’s ruling on a temporary injunction pertains to a purely legal matter, review is de novo. Suggs v. Sw. Fla. Water Mgmt. Dist., 953 So.2d 699, 699 (Fla. 5th DCA 2007).

Despite the sound discretion enjoyed by the trial court, a temporary injunction is an extraordinary remedy, to be granted sparingly and only after the moving party establishes the following criteria: “(1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) consideration of the public interest.” Colonial Bank, N.A. v. Taylor Morrison Servs., Inc., 10 So.3d 653, 655 (Fla. 5th DCA 2009); see also Fla. R. Civ. P. 1.610(a). To enforce a restrictive covenant by the injunctive power of the courts, the covenant must fall within the parameters of section 542.335, Florida Statutes (2008). Supinski v. Omni Healthcare, P.A., 853 So.2d 526, 529-30 (Fla. 5th DCA 2003); see also § 542.335(l)(j), Fla. Stat.

Section 542.335 contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants contained in contracts. Henao v. Prof'l Shoe Repair, Inc., 929 So.2d 723, 726 (Fla. 5th DCA 2006). Among the prerequisites to enforceability, the statute requires that the restrictive covenant be in writing and signed by the person against whom enforcement is sought; be reasonable- in time, area, and line of business (i.e., scope); and be reasonably necessary to protect one or more legitimate business interests. § 542.335(l)(a)-(e), Fla. Stat. A “legitimate business interest” includes, but is not limited to: (1) trade secrets; (2) valuable confidential business or professional information not otherwise considered trade secrets; (3) substantial relationships with specific prospective or existing customers; (4)client goodwill; and (5) specialized training. § 542.335(l)(b)l.-5., Fla. Stat. Once the moving party has established a prima facie case that the restriction is reasonably necessary to protect a legitimate business interest, the opposing party then has the burden of establishing that the restraint is “overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests.” § 542.335(l)(c), Fla. Stat. If a restraint is overbroad, the court “shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.” Id. The statute further instructs:

A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.

§ 542.335(l)(h), Fla. Stat.

On appeal, Avalon and Schneider raise four challenges to the grounds underlying the injunction. First, they argue the trial court erred in finding that Schneider violated the non-compete/non-solicitation covenant by working for Avalon, causing irreparable harm to Keating. The trial court’s finding, however, is amply supported by evidence which included Keat-ing’s testimony, Avalon’s solicitation letter, and a copy of one of Avalon’s civil process contracts. The restrictive covenant clearly prohibited Schneider from answering questions and reviewing documents as a civil process consultant or paralegal for any entity that competed for or solicited Keating’s clients. That prohibition was not vitiated by the recital that recognized Schneider’s role as Avalon’s primary civil process instructor and manual writer. While the recital language implied she could answer Avalon’s clients’ questions and review documents in her capacity as a civil process educator, the covenant made clear she could not act as a civil process consultant or paralegal for Avalon as she had done.

According to section 542.335(l)(j), Florida Statutes, Schneider’s violation of the restrictive covenant created a presumption of irreparable injury to Keating. As the trial court did not find this presumption rebutted by the fact that Keating quantified the loss at the hearing and provided a list of cancelled contracts, irrepa-rabie harm was established. See Litwinczuk v. Palm Beach Cardiovascular Clinic, L.C., 939 So.2d 268, 272 (Fla. 4th DCA 2006).

Second, Avalon and Schneider contend the trial court erred in finding the non-compete/non-solicitation covenant protected a legitimate business interest. Specifically, the trial court determined the covenant protected Keating’s “substantial relationships with existing and prospective clients” and “client goodwill.” Avalon and Schneider claim Keating’s relationships were not “substantial” under subsection 542.335(l)(b)3., Florida Statutes, because Schneider enjoyed long-standing relationships with Keating’s clients prior to working for him. However, their argument ignores the fact that Keating paid Schneider $200,000 for the consulting business, which included Schneider’s client relationships and goodwill. Because the purchaser of the assets and goodwill of a business has a legitimate business interest in preventing the seller from servicing former clients, the trial court did not err in finding the non-compete/non-solicitation covenant was supported by a legitimate business interest. See USI Ins. Servs., of Fla. Inc. v. Pettineo, 987 So.2d 763, 766 (Fla. 4th DCA 2008); see also § 542.33(2)(a), Fla. Stat. (2008).

Alternatively, Avalon and Schneider claim the non-compete/non-solicitation covenant was not reasonably necessary to protect any legitimate business interest pursuant to section 542.335(l)(c), Florida Statutes, because it eliminated all competition and prevented Schneider from gainful employment. To the contrary, the restrictive covenant only prohibits Schneider from servicing “any Sheriff who is, or has been an [sic] customer of Gerard F. Keat-ing....” According to this language, Schneider remains free to compete with Keating and solicit the remaining sheriffs’ offices not under contract with Keating or not specifically identified as a prospective customer. See Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1263-64 (Fla. 5th DCA 2009) (interpreting non-compete provision in similar fashion). Moreover, Schneider is free to provide other civil process services, such as the educational and manual drafting services she has been offering Avalon’s clients all along, or advice to private process servers or companies. Cf. Edwards v. Harris, 964 So.2d 196, 198 (Fla. 1st DCA 2007) (reversing injunction that prevented employee from working with a competitor in any capacity).

As for their third challenge, Avalon and Schneider argue the non-compete/non-solicitation covenant’s three-year time limitation was presumptively unreasonable under section 542.335(l)(d), Florida Statutes. Despite any statutory presumption, however, the trial court found the evidence supported the conclusion that the limitation was reasonable. Keating testified at the hearing that the three-year limitation was chosen because the contracts entered into in 2008 were set to expire in 2012. By prohibiting Schneider from competing until after the first year of the second contract cycle (2013), Keating believed his clients would renew their contracts. Any limitation of less than three years would have done little to protect the contracts. The trial court may have also considered Schneider’s importance in the field of civil service consulting. See Dorminy v. Frank B. Hall & Co., 464 So.2d 154, 158 (Fla. 5th DCA 1985) (“[T]he higher in management and the more key or important the function performed by the employee[,] the longer the time which could be justified for a no-competition covenant.”). As such, the trial court did not err in finding the three-year limitation reasonable.

Lastly, Avalon and Schneider claim the non-compete/non-solieitation covenant is unenforceable because it contravenes public policy by violating the Florida Rules of Professional Conduct. In considering the enforceability of a restrictive covenant, the trial court “[s]hall consider all other pertinent legal and equitable defenses”; and “the effect of enforcement upon the public health, safety, and welfare.” §§ 542.335(l)(g)3., 4., Fla. Stat. At the same time, however, the statute provides:

No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.

§ 542.335(l)(i), Fla. Stat.

Here, the trial court articulated no such public policy that would have substantially outweighed the need to protect Keating’s legitimate business interests, nor have Avalon and Schneider identified one on appeal. Cf. DePuy Orthopaedics, Inc. v. Waxman, 95 So.3d 928, 940 (Fla. 1st DCA 2012) (finding neither trial court nor enjoined party identified public policy that would override enforcement of valid non-compete covenant). Instead, the trial court’s order recognized that public policy favored the enforcement of valid contractual rights. See Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 48 So.3d 957, 962 (Fla. 4th DCA 2010). As Avalon and Schneider have been unable to establish any error as to the grounds for the temporary injunction, we hold that the restrictive covenant was enforceable.

While enforceable, however, we find the injunction against Avalon and Schneider is overly broad. The non-compete/non-solicitation covenant restricted Schneider from civil process “consulting,” which the Independent Contractor Agreement described as “handling] all phone calls and fax reviews to questions of the proper service and execution of civil process from contracted Sheriffs.” However, the injunction against Avalon and Schneider goes beyond prohibiting civil process consulting. Paragraph B of the injunction restricts Schneider and Avalon from answering questions related to “civil process, civil procedure or domestic violence issues ...,” some of which may not concern service of process. To the extent the injunction restricts Schneider and Avalon from answering questions related to civil process education and training, or civil procedure and domestic issues unrelated to service of process, it should be clarified. Cf. Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 870 So.2d 111, 115 (Fla. 2d DCA 2003) (“Because the noncom-petition agreements prohibit only solicitation, that is the only activity that can be the subject of an injunction based on the parties’ contracts.”).

Additionally, the restrictive covenant prohibits Avalon and Schneider from competing for and soliciting Keating’s clients. The court’s order is overly broad to the extent it enjoined Avalon and Schneider from competing for “any sheriffs in Florida” in the area of civil service consulting, irrespective of whether they were a client of Keating. The trial court should modify the injunction to allow Avalon and Schneider to compete for the remaining sheriffs’ offices with which Keating shares no substantial relationship.

As to the bond amount, Avalon and Schneider acknowledge the trial court provided them an opportunity to address the appropriate bond amount, but claim the court “terminated that opportunity midstream.” Consequently, they argue the trial court failed to hold an evidentiary hearing as to the appropriate bond amount, and thus there was no basis for its decision.

Before setting the bond amount, a trial court must have some basis for the exercise of its discretion, which is typically the evidence provided to the court by the parties. AOT, Inc. v. Hampshire Mgmt. Co., 653 So.2d 476, 478 (Fla. 3d DCA 1995). The amount of the injunction bond should reflect the court’s determination of the foreseeable damages for a wrongful injunction. Lotenfoe v. Pahk, 747 So.2d 422, 425 (Fla. 2d DCA 1999) (citing Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021 (Fla.1989)). If wrongfully enjoined, the party’s damages are generally limited to the bond amount posted. Id. “[T]he court may consider factors other than anticipated costs and damages in setting a bond, including the adverse party’s chances of overturning the temporary injunction.” Longshore Lakes Joint Venture v. Mundy, 616 So.2d 1047, 1047 (Fla. 2d DCA 1993).

While it appears little time was spent discussing the bond, Avalon’s and Schneider’s request for a bond was heard and supported by evidence. By basing their request for a $55,000 — plus bond on Keating’s lost profits, which was supported by the cancelled contracts admitted into evidence at the injunction hearing, Avalon and Schneider effectively argued that their damages would be the same if wrongfully enjoined. Moreover, no clear abuse of discretion has been shown solely by the fact the trial court set bond at $10,000 as opposed to a figure closer to the amount requested. See Montville v. Mobile Med. Indus., Inc., 855 So.2d 212, 216 (Fla. 4th DCA 2003).

In sum, we affirm the trial court’s order granting the temporary injunction and setting the bond. We remand with directions to the trial court to modify and narrow the terms of the injunction consistent with this Court’s opinion.

AFFIRMED; and REMANDED with directions.

PALMER and TORPY, JJ., concur.

      . According to the parties, "civil service of process training and consulting” constitutes the practice of helping Florida's sheriffs’ office personnel better understand the requirements and procedures of nonenforceable process under chapter 48, Florida Statutes, and enforceable process under chapters 55 (judgments) and 56 (final process), Florida Statutes, as well as under the rules concerning replevins, injunctions, writs of execution, writs of attachment, levy sales, and foreign judgments. The service is offered in conjunction with the support already provided by the sheriff’s in-house counsel and is purportedly a niche market, wherein only Keating, Avalon and Schneider currently compete.

      . As Schneider had filed for Chapter 7 bankruptcy protection, she was being sued in equity and not for damages.

      . Specifically, the statute defines goodwill as that associated with:
      a.An ongoing business or professional practice, by way of trade name, trademark, service mark, or "trade dress”;
      b. A specific geographic location; or
      c. A specific marketing or trade area.
      § 542.335(l)(b)4.a.-c„ Fla. Stat.

      . Both sides claim the other has violated the ethics rules in providing the consulting services. We agree with the trial court that the alleged rule violations are best left for The Florida Bar to resolve.


source: Caselaw Access Project

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

license: Public Domain

text:
    Harry Dewayne CONDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1718.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, C.M., Senior Judge.

Condo was on probation for failing to comply with sex offender reporting requirements. He was instructed that he could not leave the county of his residence, Hernando, without the permission of his probation officer. Condo was given a permit to travel to New Port Richey, Pasco County, for work purposes only. He was also instructed not to violate the law.

Condo was stopped in Pasco County for driving while license suspended and pled to the lesser charge of no valid driver’s license. When asked by the officer why he was in Pasco County, appellant replied that he was visiting family. He testified at the probation hearing that he was going to visit a friend, a friend he considered a brother, to pick up tools. Condo had no authority to be out of Hernando County for any reason other than work. He admitted he was not heading toward home or work at the time he was stopped.

The trial judge found Condo in willful violation of the provision that restricted his travel out of Hernando County for work purposes only and that he violated the law by driving while license suspended and sentenced him to four and one-half years in prison. The record supports the trial judge’s decision.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    Gregory A. SPECKHARDT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2990.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Gregory A. Speckhardt seeks review of the order revoking his probation and placing him on two years of community control. Although Speckhardt admitted to the violation, he did so without first being offered or provided counsel and without the State having filed an affidavit of violation of probation. These two omissions require reversal.

In April 2010, Speckhardt entered guilty pleas to various burglary and grand theft charges. The court sentenced Speckhardt to twenty-four months of probation to run concurrently with a condition that he serve thirty days in jail. On May 12, 2011, Speckhardt was arrested for possessing marijuana. He appeared in front of the court for a probable cause hearing the next day. The court informed Speckhardt that he had a violation of probation for possessing marijuana. The court found probable cause and then told Speckhardt that the State was going to make him an offer. After hearing other cases, Speck-hardt’s case was recalled. The court informed Speckhardt that the State was offering two years of house arrest with drug conditions. Speckhardt replied, “I’ll take it.”

The court then engaged Speckhardt in a plea colloquy. The court asked Speck-hardt if he understood the rights he was giving up and Speckhardt responded, “Yes, Sir.” The court started to ask if Speck-hardt was satisfied with counsel and then corrected itself and asked if Speckhardt was satisfied with moving forward without having an attorney. Speckhardt replied in the affirmative, and the judge accepted his plea.

On appeal Speckhardt correctly argues that he was entitled to be informed of his right to counsel before he was required to respond to charges that he violated his probation. See State v. Hicks, 478 So.2d 22, 23 (Fla.1985); Brady v. State, 910 So.2d 388, 390 (Fla. 2d DCA 2005). And without a knowing and intelligent waiver of the right to counsel, the trial court erred by accepting Speckhardt’s admission to the violation of probation. See Brady, 910 So.2d at 390.

Speckhardt was also entitled to written notice of the claimed violations of his probation. See Staley v. State, 851 So.2d 805, 806 (Fla. 2d DCA 2003). The State argues that the criminal report affidavit was sufficient to constitute an affidavit of violation of probation. See Chadwick v. State, — So.3d - (Fla. 2d DCA 2012). However, for a criminal report affidavit to provide sufficient written notice of the claimed violations of probation, it must “eontain[ ] the factual allegations necessary to fulfill the function of an affidavit alleging a violation of probation.” Id. at-. The factual allegations in the criminal report affidavit do not fulfill this function. These allegations reference the reason for the arrest as Speckhardt’s possession of marijuana not his violation of probation. While the allegations do reference Speckhardt’s being on probation, they do not inform him that he is being charged with a violation of probation and do not mention any conditions of probation Speckhardt may have violated by possessing marijuana. We therefore reverse the order revoking Speckhardt’s probation without prejudice to any right the State may have to file an appropriate affidavit of violation of probation. See Perkins v. State, 842 So.2d 275, 278 (Fla. 1st DCA 2003).

Reversed.

WALLACE and BLACK, JJ., Concur.


author: MORRIS, Judge.

text:
    SP HEALTHCARE HOLDINGS, LLC; ASC Holdings, Inc.; Rodolfo Gari, M.D.; Laurie Gari; Rodolfo Gari Jr., Grantor Retained Annuity Trust; and Laurie Gari Grantor Retained Annuity Trust, Petitioners, v. SURGERY CENTER HOLDINGS, LLC; Armenia Ambulatory Surgery Center, LLC; Surgery Center Holdings, Inc.; and H.I.G. Middle Markets, LLC, Respondents.
    No. 2D12-3812.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Stacy D. Blank, Joseph H. Varner, III, and Bradford D. Kimbro of Holland & Knight, Tampa, and Leonard S. Englander and William G. Lazenby of Englander & Fischer LLP, St. Petersburg, for Petitioners.
    Alan Rosenthal, Jack R. Reiter, and Natalie J. Carlos of Carlton Fields, P.A., Miami, for Respondents.
   MORRIS, Judge.

SP Healthcare Holdings, LLC; ASC Holdings, Inc.; Rodolfo Gari, M.D.; Laurie Gari; Rodolfo Gari Jr. Grantor Retained Annuity Trust; and Lauri Gari Grantor Retained Annuity Trust (the Sellers) seek certiorari review of an order granting a motion to compel compliance with a discovery order filed by Surgery Center Holdings, LLC; Armenia Ambulatory Surgery Center, LLC; Surgery Center Holdings, Inc.; and H.I.G. Middle Markets, LLC (the Buyers). We grant the petition and quash the portion of the order requiring that all discovery be approved by the circuit court.

I. Background

In 2009, H.I.G. Middle Markets entered into negotiations with SP Healthcare Holdings, LLC, and ASC Holdings, Inc., for the purchase of a group of ambulatory surgical centers. H.I.G. Middle Markets created Surgery Center Holdings, LLC; Armenia Ambulatory Surgery Center, LLC; and Surgery Center Holdings, Inc., for the purpose of owning and operating the surgery centers. H.I.G. Middle Markets was not a party to the agreement but negotiated the agreement on behalf of the Buyers’ investors. The purchase agreement, dated December 24, 2009, provided for an initial cash payment of approximately $120,000,000 as well as a potential earn-out payment of up to $10,000,000 based on the surgery centers’ 2010 financial performance. The purchase agreement also provided for the establishment of an escrow account holding funds in the amount of $2,944,000 to cover claims that the Buyers may have for indemnification according to their rights under the purchase agreement.

In December 2010, the Buyers submitted claims for indemnification to the escrow account. These claims, totaling $4,967,521, related to alleged overpayment, billing, coding, and collections issues that occurred prior to the closing date. In July 2011, the Buyers asserted additional claims for indemnification, alleging that the Sellers had misrepresented their accounts receivable by $14,035,081. After applying a multiplier provided for in the purchase agreement, the Buyers claimed a loss of $78,034,772. The Sellers, on the other hand, claimed that they are entitled to the full $10,000,000 earn-out based on the 2010 performance of the surgery centers. The Sellers claimed that the Buyers were misrepresenting that the accounts receivable were overstated in an effort to avoid paying the Sellers the $10,000,000 earn-out and that the Buyers never had the intention to make the $10,000,000 earn-out payment to the Sellers.

As a result of these disputes, the Sellers filed suit against the Buyers and H.I.G. Middle Markets, alleging two counts for fraud, two counts for breach of contract, and one count to adjudicate the Buyers’ claims for indemnification made against the escrow account. The Sellers sought to discover evidence of other similar conduct by H.I.G. Middle Markets and its parent company, H.I.G. Capital, in other business transactions. The Sellers claimed that H.I.G. Middle Markets responded falsely in its interrogatory response that it had not been a party to any other lawsuit; the Sellers had discovered that H.I.G. Middle Markets and its affiliates had been involved in several other lawsuits. Specifically, the Sellers claimed that they learned that an H.I.G. Middle Markets’ affiliate had alleged similar facts in another legal dispute. The Sellers served the Buyers with a notice of intent to serve subpoenas duces tecum without deposition on numerous in-state and out-of-state nonparties which had been acquired by H.I.G. Middle Markets or its affiliates since 2005.

The Buyers filed a counterclaim and third-party complaint for declaratory judgment, breach of contract, and abuse of judicial process. The Buyers named Rodolfo Gari and Laurie Gari and the two trusts as new defendants, claiming that all of the Sellers engaged in a campaign to disparage and discredit H.I.G. Middle Market and H.I.G. Capital. The Buyers objected to the Sellers’ serving the subpoenas duces tecum.

A special magistrate heard the issue of the subpoenas, and the circuit court entered an order ratifying the special magistrate’s rulings on March 8, 2012. With respect to entities located outside of Florida, the order directed the Sellers to “follow all applicable rules and procedures for issuance and service of out-of-state subpoenas, to the extent required by the target states.” The circuit court provided that the Sellers “may issue the subpoenas identified” in the notice. However, the circuit court granted the Buyers’ objections “with respect to the any proposed subpoenas to entities [located] outside the United States.” The circuit court entered a thirty-day stay of the order from the date of the hearing (February 27, 2012) so that the Buyers could “seek relief from the appellate court.” The Buyers sought cer-tiorari review in this court in case 2D12-1772, and this court granted a further stay pending review.

The Sellers contend that after the expiration of the circuit court’s stay and before the entry of the stay pending review in this court, the Sellers “resumed their informal investigation of the facts surrounding their claim.” This prompted the Buyers to file on April 9, 2012, a motion to compel compliance with the court order and for sanctions for litigation misconduct. The Buyers claimed that the Sellers circumvented the discovery order by issuing numerous ex parte discovery requests and mass emails to hundreds of recipients through professional networking websites in Europe and the United States. The Buyers claimed that the Sellers misrepresented to these recipients that the Sellers were in the process of having Florida subpoenas served for the purpose of gathering this information if the recipients were not willing to provide the information. The Buyers claimed that the Sellers were “requesting the same information and documents in the [s]ubpoenas [that] were subject to” the court’s March 8, 2012, order. The Buyers argued that the Sellers were trying to circumvent the March 8, 2012, order and were attempting “to disparage the reputation of H.I.G. Capital and to unlawfully gain leverage in this case.”

The circuit court held a hearing on May 1. 2012, after which it entered an order granting the Buyers’ motion. The written order entered on June 21, 2012, provides in relevant part:

2.As determined by the Court on May 1, 2012, [the Sellers’] use of Florida subpoenas to obtain discovery from third parties in jurisdiction [sic] outside of Florida and use of other informal discovery practices to obtain that discovery without notice were contrary to the intent of the Court’s March 8, 2012[,] Order Ratifying Recommendation of Special Magistrate.
3.Pursuant to Florida Rule of Civil Procedure 1.280(c), the Court is limiting discovery in this case by requiring that all discovery requests to third parties be conducted by formal compulsory process through the court system.

The order also provided that it was subject to the stay entered by this court in 2D12-1772 and that after the resolution of 2D12-1772, “the parties may seek rehearing or clarification of this [o]rder.” The court also reserved ruling on the Buyers’ request for sanctions. The Buyers’ petition for writ of certiorari filed in case 2D12-1772 was later denied by this court on October 17, 2012.

II. Analysis

The Sellers now seek certiorari review of the June 21, 2012, order granting the Buyers’ motion to compel compliance. In their petition for writ of certiorari, the Sellers claim that the circuit court departed from the essential requirements of the law in precluding the Sellers from communicating with any third party about the facts of this case without first proceeding through the court’s formal discovery process. The Sellers contend that the order infringes on their right to free speech and their right to critical work product and that the circuit court was without authority to enter the order. The Buyers respond that the June 21, 2012, order only limits compulsory disclosure and not informal fact-finding generally.

Certiorari review is proper here. See Zirkelbach Constr. v. Rajan, 93 So.3d 1124, 1127 (Fla. 2d DCA 2012) (“ ‘[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” (alteration in original) (quoting Allstate Ins. v. Langston, 655 So.2d 91, 94 (Fla.1995)); Rodriguez v. Feinstein, 734 So.2d 1162, 1163 (Fla. 3d DCA 1999) (holding that certiorari review is proper when an order implicates a violation of the parties’ constitutional rights and the harm cannot be corrected on plenary appeal).

We first look to the circuit court’s statements made at the hearing on May 1, 2012. After hearing argument from the Buyers and the Sellers, the following discussion occurred:

COURT: Generally speaking, yes, of course, you can do informal fact-finding, but my subpoena is not informal, you know, because once I issue discovery, I issue discovery.
So from today forward I’m going to have to enter some type of status quo order that basically requires discovery to run through the court system to obtain discovery from these various entities because we just need to make it clear so everybody’s kind of playing all discovery through the court system.
Yes, I would — my—I intended the order to be through the process of the out-of-state jurisdiction, obtain the subpoena through that, and not send a letter to an entity with the subpoena attached. I intended it to be — because my subpoenas do not or my issue — things I issue have no force in another jurisdiction, so I don’t — I dislike having an order of the Court suggest that it can do things that it can’t do. That’s just my personal view. So I try to be specific on that from that standpoint.
So I’m going to do this. I’m just going to order that on this — I guess the question is, is there a need to have just a generic status quo order so that no discover — all discovery, any investigation of discovery, is conducted through the court processes?
[SELLERS’ COUNSEL]: Judge, do I understand — with respect to the subpoenas, I understand your ruling. I hear what you’re saying ... but with respect to [my] going on the Internet looking for cases, my clientfs] calling people he knows asking questions, one, there was never any request to limit that behavior, I don’t know what the authority would be for it, and that’s not in your order.
COURT: The authority — I mean, they have — the authority — since I — being in business court, I get these periodically. There is some case law authority that allows the Court to order what’s called a status quo or status quo injunction/order that kind of gets everything— stops parties from escalating in effect issues beyond where — and I don’t like to do it where ... there’s legitimate need to investigate.
I do see the need to do it where there’s suggestions of the need — you know, where there’s going to be some type of suggestion that ... besmirches a party’s reputation with regard to the— you know, just making the request and suggesting something that doesn’t need to be suggested. So it’s a balance, to answer the question.
Clearly the case law doesn’t favor the status quo orders, but that’s why I’m asking because I can just order everybody to take this through the court system?
The thing I’m trying to limit — or “balance” is a better word, I guess, to balance your right to obtain the information to prove potentially your fraud count versus their right not to have their reputation kind of sullied....
I understand you have the right to conduct discovery. I get that. I think [Buyers’ counsel] gets that. I appreciate the fact that they want to minimize the fallout from that type of discovery.
[SELLERS’ COUNSEL]: I don’t know from your ruling if I can go on the internet and do research about H.I.G.
COURT: You can research your heart away.... I’m trying to limit affirmative statements being placed out there.... And so I’m trying to limit the affirmative thing, not the receipt of information.
So I’m trying to limit it so that you can — I’m letting you subpoena all these people. It’s not that — it’s not that I’m not allowing you to use the court process to directly subpoena all these entities to obtain your information_I’m just requiring you to obtain it through the formal court process so that we’re limiting the fallout. It’s just compulsory process through the court system, and that’s the way we’re going to do it.

The circuit court’s statements indicate that the court was concerned with the competing interests of the Buyers and the Sellers, but the statements do not unequivocally demonstrate whether the circuit court intended for informal investigations in this case to be court-approved or whether the circuit court intended that its ruling apply only to requests for documents. The Buyers claim that the order only relates to formal discovery or compulsory disclosure requested by a party and not to informal investigation or fact-finding. But the Sellers’ contend that the Buyers have taken a contrary position below, i.e., that the Sellers must go through the court process in order to informally communicate with nonparties. We conclude that the circuit court’s written order can be interpreted to prevent the Sellers from seeking information, even informally, from any third parties without first obtaining permission from the court.

As its basis for the order, the court cited Florida Rule of Civil Procedure 1.280(c), which provides in relevant part:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (8) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court....

The circuit court’s citation to rule 1.280(c) indicates that the circuit court’s order serves as a type of protective order. Although the Sellers do not cite rule 1.280(c), they seem to suggest that the law regarding unconstitutional restraints on free speech operates as a limitation on the circuit court’s authority under rule 1.280(c). See, e.g., Forrest v. Citi Residential Lending, 73 So.3d 269 (Fla. 2d DCA 2011) (recognizing the difference between unconstitutional prior restraints on free speech and orders entered within the circuit court’s discretion to protect parties and prevent the abuse of the discovery process).

“ ‘A trial court possesses broad discretion in overseeing discovery[] and protecting the parties that come before it.’ ” Rojas v. Ryder Truck Rental, 641 So.2d 855, 857 (Fla.1994) (quoting Rojas v. Ryder Truck Rental, 625 So.2d 106, 107 (Fla. 3d DCA 1993)). Under the parameters of rule 1.280(c), the circuit court may fashion discovery orders that protect a party from abuses of the discovery process. We have no doubt that the circuit court had the authority to protect the Buyers from the Sellers’ alleged conduct in regard to the numerous subpoenas that were at issue in the March 8, 2012, order and that were sought to be served on various out-of-state entities. The issue of those subpoenas had previously been before the court, and the circuit court acted within its discretion in finding that a protective order was necessary in regard to that matter. But to the extent that the order broadly requires all informal fact-finding to be approved by the court, the circuit court exceeded its authority for two reasons.

First, the order severely impedes the Sellers’ ability to prepare their case for trial. Neither party has cited, nor have we been able to find, any Florida decisions directly on point. But we rely on two out-of-state cases as persuasive authority. In International Business Machines v. Edelstein, 526 F.2d 37, 41 (2d Cir.1975), the circuit court reviewed an order that provided that when the parties interview a ■witness in the absence of opposing counsel, the parties must hire a court reporter to transcribe the interview so that it could be reviewed by the court. On appeal, the circuit court noted the crucial role an interview may play in a party’s preparation of the case:

A lawyer talks to a witness to ascertain what, if any, information the witness may have relevant to his theory of the case, and to explore the witness’ knowledge, memory and opinion — frequently in light of information counsel may have developed from other sources. This is part of an attorney’s so-called work product. It is the common experience of counsel at the trial bar that a potential witness, upon reflection, will often change, modify or expand upon his original statement and that a second or third interview will be productive of greater accuracy.

Id. The court opined that the order “unduly infringed upon counsels’ ability to prepare their case for trial” and did a disservice to the court by requiring the court’s scrutiny over “the process by which counsel researches, develops and integrates the case which he ultimately presents.” Id. at 42. The court noted that courts cannot interfere “with the preparation of a client’s defense by restricting his counsel’s ability to freely interview witnesses willing to speak with him.” Id. at 43.

We believe that the rationale behind the Edelstein decision is applicable here. The circuit court’s order in this case can be read to require the court’s permission before informal investigation may be conducted. This hinders the Sellers’ counsel’s ability to prepare their case for trial and places an unnecessary burden on the circuit court to oversee informal fact-finding. Beyond the issue of the subpoenas discussed at the March 8, 2012, hearing, the Buyers did not establish, and the circuit court did not find, that there was a need to limit the Sellers’ ability to engage in other informal discovery.

Second, the order infringes on the Sellers’ right to free speech. In Maggi v. Superior Court of Orange County, 119 Cal.App.4th 1218, 15 Cal.Rptr.3d 161, 166-67 (2004), the Fourth District Court of Appeal of California held that the trial court erred in restricting a party’s right to talk to witnesses on an informal basis. The parties had entered into a stipulated protective order that prevented them from disclosing to third parties any confidential document produced in discovery. Id. at 163. When confidential documents were disclosed to nonparty investors of the defendants via an anonymous letter, the court issued a restraining order preventing the plaintiffs’ from discussing the lawsuit or related lawsuits with the nonparty investors without first receiving the court’s permission. Id. at 163-64. The court later denied the plaintiffs’ request when they sought permission to discuss the case with certain nonparty investors who had contacted them. Id. at 164-65.

The appellate court held that the order was a gag order that did not pass constitutional muster because the restrained speech did not pose a threat to a protected competing interest. Id. at 166. The court held that the right to a fair trial is a constitutionally protected competing interest that is not outweighed by the opposing party’s right to be free from abusive discovery. The court found that the order was “not merely a restriction on discovery, but a restriction on speech” because it prohibited “any informal discussion with the investors without obtaining the court’s permission.” Id. at 167. The court held that the order was an improper sanction for the plaintiffs’ allegedly violating a discovery order and that other forms of sanctions were available to remedy the abuse of the discovery process. Id.

As in Maggi, the order here infringes on the Sellers’ right to free speech because it prohibits any informal investigation of the case without the Sellers’ first seeking permission from the court. The order is not simply an order regulating discovery that had become an issue in the case; it broadly restricted the Sellers’ future speech. The Sellers’ actions in violating the earlier discovery order do not warrant the circuit court broadly restricting the Sellers’ ability to informally investigate their case by contacting third parties.

III. Conclusion

In sum, the circuit court exceeded its authority to the extent that its order can be read to require that all investigation regarding third parties must go through the court system. The circuit court was attempting to protect the Buyers from embarrassment or disparagement based on the Sellers’ misconduct regarding particular subpoenas, but the circuit court could have fashioned an order protecting the Buyers from that misconduct without broadly restricting the Sellers’ right to prepare for trial and their right to free speech. We grant the Sellers’ petition and quash that portion of the order.

Petition granted; order quashed in part.

NORTHCUTT, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . The facts regarding the relationship and dispute between the parties are gleaned from the complaint and other filings in the circuit court.

      . The Sellers indicated their intention to seek clarification or rehearing, but it is not clear if the issue was ever brought back before the circuit court in the form of a motion.

      . The Buyers also respond that the issue is not preserved because it was never raised below and that the Sellers are attempting to challenge the March 8, 2012, order when they failed to timely seek review of that order. These arguments are without merit because the Sellers alerted the circuit court to the issues raised herein; in a letter to the circuit court, the Sellers opposed the Buyers’ proposed order on the bases that it misstates the circuit court’s rulings and may "impinge upon [the Sellers’] free speech rights and the obligations of [the Sellers'] counsel.” Also, the Sellers do not challenge the March 8, 2012, order, which simply directs how the Sellers shall proceed in issuing subpoenas to certain out-of-state third parties. Rather, the Sellers challenge language specific to the June 21, 2012, order, which the Sellers claim broadly restricts their right to interview or contact third parties beyond the scope of the subpoenas that were the subject of the March 8, 2012, order.

      . The orders also prohibited the plaintiffs’ counsel from representing any of the third-party investors. The court held that this restriction also infringed on "the rights of free speech and association without adequate justification.” 15 Cal.Rptr.3d at 167.


author: BLACK, Judge.

text:
    Raphael G. SURINACH, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4125.
    District Court of Appeal of Florida, Second District.
    March 13, 2013.
   BLACK, Judge.

Raphael G. Surinach appeals the order striking as untimely his amended motion filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

After his judgment and sentences became final, Surinach filed a timely rule 3.850 motion. He then filed an amended motion over a year later and outside of the two-year time limit for filing rule 3.850 motions. See Fla. R.Crim. P. 3.850(b). In the order striking the amended motion as untimely, the postconviction court stated that it did not become aware of Surinach’s original motion until he filed his amended motion and that it would be ruling on the original motion in a later order. However, the court gave no indication that it had considered whether the amended motion enlarged on claims made in the timely original motion or whether it solely raised new claims. Surinach asserted in ground two of his amended motion that it relates back to a claim in his original motion. The original motion is not part of the record in this appeal.

Amended motions for postconviction relief are subject to the two-year time limit for filing rule 3.850 motions unless they merely enlarge an issue or issues raised in the original motion. See Lanier v. State, 826 So.2d 460, 461 (Fla. 1st DCA 2002) (holding that the two-year time limit for filing rule 3.850 motions does not preclude untimely amended motions that enlarge on the claims raised in the timely motion); see also Jumper v. State, 903 So.2d 264, 266 (Fla. 2d DCA 2005).

Accordingly, we reverse and remand for the postconviction court to determine whether there are claims in the amended motion that it should address on the merits because they enlarge upon claims in the original motion. New claims should again be stricken for untimeliness.

Reversed and remanded with directions.

KHOUZAM and SLEET, JJ., Concur.


author: VILLANTI, Judge.

text:
    Kevin Lee BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2845.
    District Court of Appeal of Florida, Second District.
    March 13, 2013.
   VILLANTI, Judge.

Kevin Lee Burns challenges the summary denial of his postconviction motion for extraordinary relief. Because the motion presented claims involving allegedly newly discovered evidence, the postconviction court properly considered it pursuant to Florida Rule of Criminal Procedure 3.850. However, because Burns failed to allege a facially sufficient claim, the post-conviction court should have stricken the motion and allowed him an opportunity to amend.

A claim of newly discovered evidence must be filed within two years from the date the evidence could have been discovered with the exercise of due diligence. Fla. R. Crim. P. 3.850(b)(1); see Bolender v. State, 658 So.2d 82, 85 (Fla. 1995). Therefore, as a threshold requirement, Burns had to not only allege but also demonstrate that his motion was filed within two years from the date that the evidence could have been discovered. See Bolender, 658 So.2d at 85. Burns failed to make the required allegations. As the postconviction court found, Burns gave no indication when or how he discovered the evidence or why it could not have been discovered sooner. Furthermore, Burns failed to allege that withdrawal of the plea was necessary to correct a manifest injustice. See Bradford v. State, 869 So.2d 28, 29 (Fla. 2d DCA 2004) (holding that Bradford’s rule 3.850 claim of newly discovered evidence was facially insufficient where he failed to allege that withdrawal of the plea was necessary to correct a manifest injustice). Thus, Burns’ claims were facially insufficient.

Based on this facial insufficiency, the postconviction court denied Burns’ motion. However, when claims in a postcon-viction motion are facially insufficient, the postconviction court should strike them with leave to amend within a reasonable time rather than denying the motion. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). Accordingly, we reverse and remand for the postconviction court to strike Burns’ newly discovered evidence claims and provide him with a reasonable time to amend them.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.

      . Burns filed his claim pursuant to Florida Rule of Juvenile Procedure 8.140. However, his juvenile cases were transferred to circuit court, and he pleaded to an overall sentence as a youthful offender to six years’ prison suspended in lieu of six years’ probation. The claims raised in the motion were not cognizable under rule 8.140.

      . If Bums can in good faith file an amended motion, he must provide factual specifics to support any allegation that the claims were raised within two years from the date the evidence could have been discovered with the use of due diligence. He must also allege facts in support of any allegation that it would be a manifest injustice not to allow him to withdraw his plea.


author: KHOUZAM, Judge.

text:
    Kevin Bruce STONE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5738.
    District Court of Appeal of Florida, Second District.
    March 13, 2013.
    Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Affirmed. See Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011). As in Williams, we hold that a trial court’s failure to instruct the jury on section 812.025, Florida Statutes (2011), does not constitute fundamental error. Also as in Williams, we recognize conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), and certify to the Florida Supreme Court the following questions of great public importance:

1. MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?
2. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?
3. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREES OR OF DIFFERENT SEVERITY RANKING?

Affirmed; question certified.

ALTENBERND and SLEET, JJ., Concur.


author: TORPY, J.

text:
    Fay NICOLL, Appellant, v. MAGICAL CRUISE COMPANY, LIMITED, etc., Appellee.
    No. 5D11-1039.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Philip A. Gold of Gold & Gold, P.A., Coral Gables, for Appellant.
    Jerry D. Hamilton and Michael J. Dono of Hamilton, Miller & Birthisel, LLP, Miami, for Appellee.
   ON MOTION FOR WRITTEN OPINION

TORPY, J.

Appellee seeks a written opinion regarding our prior order denying its motion for appellate attorneys’ fees. We withdraw our prior order and substitute this opinion in its stead. Because this case is a maritime case, federal law governs substantive issues, including attorneys’ fees. Accordingly, applying federal law, we deny the motion for attorneys’ fees, notwithstanding Appellee’s entitlement to fees under state law.

Appellant brought suit against Ap-pellee after she slipped and fell in a restroom aboard one of Appellee’s ships. Appellee served an offer of judgment on Appellant, which was rejected. The trial court entered summary judgment in favor of Appellee on all counts of Appellant’s complaint, and we affirmed. Appellee seeks attorneys’ fees on appeal pursuant to section 768.79, Florida Statutes (2012). Entitlement to attorneys’ fees under this statute is a substantive right. Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 80 (Fla.2012).

Appellee cites numerous cases in support of its motion, none of which involve a maritime tort claim. Because federal admiralty law governs substantive issues in maritime cases, Appellee’s reliance on non-admiralty cases is misplaced. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) (holding that federal admiralty law governs substantive issues in maritime cases); see also Rindfleisch v. Carnival Cruise Lines, Inc., 498 So.2d 488, 490 (Fla. 3d DCA 1986) (applying federal admiralty law to substantive issues in tort claim). Under federal admiralty law, the prevailing party is not entitled to attorneys’ fees absent circumstances not applicable here, even when a state statute establishes an entitlement to fees. Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 841 (11th Cir.), cert. denied, — U.S.-, 130 S.Ct. 3505, 177 L.Ed.2d 1091 (2010); Texas A & M Research Found. v. Magna Transp. Inc., 338 F.3d 394, 405 (5th Cir. 2003); Am. Nat’l Fire Ins. Co. v. Kenealy, 72 F.3d 264, 270 (2d Cir.1995); Southworth Mach. Co. v. F/V Corey Pride, 994 F.2d 37, 41 (1st Cir.1993); Su v. M/V S. Aster, 978 F.2d 462, 475 (9th Cir.1992); Sosebee v. Rath, 893 F.2d 54, 56-57 (3d Cir.1990).

Although not cited by either party, we are aware that our decision is in conflict with our sister court’s decision in Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. 3d DCA 1992). We disagree with that decision for the same reasons expressed in Garan, Inc. v. M/V Aivik, 907 F.Supp. 397, 400 (S.D.Fla.1995). We note that a panel of the Third District, in a nonfinal opinion, has recently called Modesto into question. See Royal Caribbean Cruises, Ltd. v. Cox, — So.3d-(Fla. 3d DCA 2012).

MOTION FOR FEES DENIED.

SAWAYA and COHEN, JJ., concur.


author: SALTER, J.

text:
    WELLS FARGO BANK, N.A., Appellant, v. ARISTO MORTGAGE, LLC, etc., Appellee.
    No. 3D12-3012.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.

      Moskowitz, Mandell, Salim & Simowitz, and Todd A. Armbruster, Fort Lauder-dale, for appellant.
    Arnaldo Velez, for appellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   SALTER, J.

Wells Fargo Bank, N.A., appeals an order denying its motion to vacate a judgment disbursing approximately $176,000 in surplus funds from a foreclosure sale to Aristo Mortgage, LLC, the appellee. Wells Fargo and Aristo were defendants in the foreclosure action by virtue of second and third mortgage hens, respectively.

The complaint and Wells Fargo’s post-sale motion for disbursement of the excess proceeds established the priority of Wells Fargo’s hen over the hen claimed by Aris-to, and there was no issue below or here regarding that priority. Nonetheless, in its own post-sale motion for the proceeds, Aristo alleged that “ARISTO owns an equity of redemption that is superior to all others,” and that “Although there are other junior lienholders, ARISTO has rights that are superior to those.” Aristo then served a notice of hearing for its motion which contained an incorrect hearing date and failed to identify any individual attorney in the firm then representing Wells Fargo.

When counsel for Aristo appeared at a hearing on its motion, and an attorney for Wells Fargo did not, the trial court granted Aristo’s motion and directed disbursement of the excess proceeds to Aristo. That order did not include any finding regarding Aristo’s priority, or the priority of any other party to the lawsuit, as a claimant to the excess proceeds.

Ultimately Wells Fargo filed a motion which, though containing a typographical error, recited Aristo’s misrepresentations, Wells Fargo’s priority, and the non-receipt by Wells Fargo of Aristo’s notice of hearing. The motion requested the circuit court to vacate the order directing payment of the excess proceeds to Aristo. The motion was denied, and this appeal ensued.

Analysis

Then-counsel for Aristo led the trial judge into error. Relying on a motion that misrepresented the undisputed priorities and a notice of hearing that contained an erroneous hearing date on its face, Aristo obtained that which it was not entitled (on the present record, at least) to obtain — the surplus proceeds. Here, as in Golindano v. Wells Fargo Bank, 913 So.2d 614, 615 (Fla. 3d DCA 2005), we conclude that relief is appropriate “based on the fact that the trial court disbursed foreclosure surplus funds without first determining priorities and amounts due junior lienholders.” Had then — counsel for Aristo simply informed the trial court that its motion contained an error, or that Wells Fargo’s motion claiming the proceeds and lien superiority was then pending, the veteran trial judge certainly would have considered Aristo’s claim in a different light. At the risk of viewing professional courtesy through rose-colored glasses, we can also recall a day when counsel appearing without opposition for a hearing on an obviously-contested matter — one in which the contending pleadings each sought priority to a six-figure sum of money — would first place a telephone call to opposing counsel to confirm that some personal emergency or postal glitch had not occurred.

Under these unique (and, hopefully, nonrecurring) facts, the motion to vacate was well taken and should have been granted. We reverse the order denying relief under Florida Rule of Civil Procedure 1.540. We remand the case to the circuit court (1) to vacate the order directing disbursement of the surplus proceeds to Aristo’s then-counsel’s trust account; and (2) to consider and determine (a) the respective priorities and extent of each party’s claim to the surplus proceeds under Golindano, and (b) Wells Fargo’s claim to disgorgement by Aristo, should Aristo fail to prove its allegations below.

Reversed and remanded for further proceedings consistent with this opinion.

      . Arista's motion and notice of hearing were signed by an attorney and firm other than its appellate counsel here.

      . The motion sought to vacate the order distributing surplus funds to Aristo under "Rule 1.440 of the Florida Rules of Civil Procedure,” though the body of the motion plainly seeks relief under Florida Rule of Civil Procedure 1.540. Rule 1.440, "Setting Action for Trial,” was not applicable to the post-sale process, and the motion itself makes no reference to trial.


author: POLEN, J.

text:
    E.F., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2883.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

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

The juvenile, E.F., appeals from the trial court’s disposition order finding him guilty of loitering and prowling following an adjudicatory hearing. The juvenile argues that the court erred in denying his motion for judgment of dismissal because the elements of the offense were not committed in the officer’s presence. We agree with the juvenile’s argument. We reverse and remand for the dismissal of the loitering and prowling charge.

Around 9:00 one morning, a detective patrolling a residential neighborhood where there had been recent burglaries noticed the juvenile walking down one of its streets. The detective continued to watch him for several minutes. He observed the juvenile walking slowly while looking into carports and the sides of houses. He also observed that the juvenile was carrying a “large black satchel bag,” and that he had a yellow flashlight hanging out of his front pants pocket. The detective parked his car, got out, and initiated contact with the juvenile.

From across the street, the detective asked the juvenile if he lived in the neighborhood. The juvenile acknowledged that he did not. The detective then ordered the juvenile to come over to him, and asked the juvenile if he could cheek him for weapons. The juvenile complied. While the detective was patting him down, a concerned citizen from the neighborhood rode up on a bicycle. The citizen, who testified at the hearing, had noticed the juvenile walking down the street several minutes prior to the detective. The citizen had observed the juvenile look at a vacant house, look across from the vacant house to his neighbor’s house, and walk around his neighbor’s house. At that point, the citizen got on his bicycle to follow the juvenile. He caught up to him during the juvenile’s encounter with police.

During this encounter, the detective asked the juvenile what was in his satchel bag. The juvenile responded that it contained “scrap items.” Upon request, he opened his bag, which revealed pieces of copper piping, a pair of bolt cutters, a pair of gloves, screwdrivers, and a hammer. The juvenile provided his name to the detective, which the detective confirmed.

The detective gave the juvenile the opportunity to explain himself, and contacted a deputy to assist him. The juvenile told the detective that he obtained the copper piping from a nearby business. The deputy then drove him to the business to verify that story. He was arrested thereafter.

During the adjudicatory hearing, the trial court simultaneously heard the juvenile’s previously filed motion to suppress physical evidence obtained, during the search on grounds that the detective lacked any reasonable suspicion to justify detaining him. After the presentation of evidence and argument on the motion, the court denied the motion to suppress. However, the court granted the juvenile’s motion for judgment of dismissal on his other charge for possession of burglary tools.

The juvenile also moved for a judgment of dismissal on the loitering and prowling charge, arguing that the State failed to present evidence sufficient to prove either of the two elements of the crime as set forth in section 856.021, Florida Statutes (2011). The court denied that motion. Following closing arguments, the court found the juvenile guilty of loitering and prowling, adjudicated him delinquent, and imposed a disposition of time served.

On appeal, the juvenile argues that the trial court erred in denying his motion for judgment of dismissal on the loitering and prowling charge because the State failed to present sufficient evidence to support a conviction. Specifically, he contends that because the crime is a misdemeanor, the illicit conduct must have occurred in the officer’s presence. He asserts the detective merely observed E.F. walking down the street looking at houses, carports, and the sides of houses — actions that he maintains are not criminal. We agree.

Similar to a judgment of acquittal in a criminal case, the standard of review applicable to a motion for judgment of dismissal in a juvenile case is de novo. B.J. v. State, 951 So.2d 100, 102 (Fla. 4th DCA 2007). This is because “the motion tests the legal sufficiency of the state’s evidence.” Id.

To establish the crime of loitering and prowling, the State must prove the following two elements: (1) the defendant loitered or prowled “in a place, at a time, or in a manner not usual for law-abiding individuals,” and (2) the loitering was under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” See § 856.021, Fla. Stat. (2011); see also J.M.C. v. State, 956 So.2d 1235, 1237-38 (Fla. 4th DCA 2007); E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999). Additionally, “[bjecause loitering or prowling is a misdemeanor, both elements of the offense must be committed in the officer’s presence prior to arrest.” 956 So.2d at 1238 (citing Grant v. State, 854 So.2d 240, 242 (Fla. 4th DCA 2003)) (emphasis added); see also G.G. v. State, 903 So.2d 1031, 1033 (Fla. 4th DCA 2005). Regardless, due to the loitering statute’s potential for abuse, it “must be applied with special care.” P.R. v. State, 97 So.3d 980, 982 (Fla. 4th DCA 2012).

In order to prove the first element, the State “must establish that the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved.” E.C., 724 So.2d at 1244. The idea of this element is “suspicious criminal conduct which comes close to, but falls short of, actual commission or attempted commission of a substantive crime.” B.J., 951 So.2d at 103 (citation omitted). A mere “vaguely suspicious presence is insufficient” to satisfy this element. P.R., 97 So.3d at 983 (citation omitted).

In order to prove the second element, the arresting officer must be able “to articulate specific facts which, when ‘taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened.’ ” G.G., 903 So.2d at 1033 (citation omitted). Circumstances that may be considered when determining whether such breach of the peace is imminent or public safety threatened are “whether the person takes flight, refuses to identify himself, or attempts to conceal himself or an object.” Id.-, see also § 856.021(2), Fla. Stat. (2011).

Here, because both elements of loitering and prowling must be committed in the officer’s presence prior to arrest, the trial court was limited to considering only the detective’s observations that, around 9:00 in the morning, the juvenile was (1) walking slowly while looking into carports and sides of houses in an area where burglaries had occurred, and (2) carrying a large satchel bag along with a yellow flashlight hanging out of his pants pocket. Even when viewed in the light most favorable to the State, this conduct was not unusual or indicative of incipient criminal activity required to satisfy the first element. Likewise, this conduct was not the type that would warrant a finding that a breach of peace was imminent or the public safety was threatened, which is necessary to prove the second element.

Moreover, the items found in the juvenile’s satchel bag cannot be considered under the facts of this case. Possession of suspicious tools may support a suspicion of imminent criminal activity after the fact, but “the offense of loitering and prowling must be completed prior to any police action.” E.C., 724 So.2d at 1245 (holding the court erred in denying motion for judgment of dismissal because evidence that juvenile and others walked back and forth in front of strip mall eight times at 11:00 p.m. was insufficient to support conviction; noting presence of a 12" screwdriver discovered on juvenile after police stop for loitering and prowling did not give rise to a suspicion of imminent criminal activity) (emphasis added); see also D.S.D. v. State, 997 So.2d 1191, 1194 (Fla. 5th DCA 2008) (pair of gloves found on juvenile did not alter result that officer’s observations were insufficient to demonstrate a threat to public safety or an imminent breach of the peace because found after police action).

For the foregoing reasons, we hold that the State failed to meet its burden with regard to either element of the offense. Accordingly, we reverse the finding of guilt and remand for the trial court to vacate the disposition order.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON and CONNER, JJ., concur.


author: BLANC, PETER D., Associate Judge.

text:
    George W. FELDER, Appellant, v. KING MOTOR COMPANY OF SOUTH FLORIDA d/b/a King Hyundai, Appellee.
    No. 4D11-3893.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      David L. Rich of David L. Rich, P.A., Margate, and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Port Laud-erdale, for appellant George W. Felder.
    Joshua D. Lerner and Nicole Sieb Smith of Rumberger, Kirk & Caldwell, Miami, for appellee.
   BLANC, PETER D., Associate Judge.

Appellant, George W. Felder (“Felder”), timely appeals from the final summary judgment entered in favor of Appellee, King Motor Company of South Florida d/b/a King Hyundai (“King”). This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). We affirm on all points and write only to explain our reasons for rejecting Felder’s argument that the trial court erred in holding as a matter of law that a motor vehicle dealer qualifies as a “statutory employer” under existing law and to confirm the continuing authority of Gator Freightways, Inc. v. Roberts, 550 So.2d 1117 (Fla.1989), which expressly states that section 440.10(l)(b), Florida Statutes, is not limited to construction contracts.

Felder, the plaintiff below, filed a complaint for damages against King after he was injured on October 10, 2006, when he stepped into a hole in a concrete patio on King’s automobile dealership property. According to the complaint, when the incident occurred the hole was obscured by dirty, standing water which King had negligently allowed to exist on the premises.

King answered the complaint and asserted eleven affirmative defenses, one of which alleged as follows:

King Motor contracted with Plaintiffs employer, JAL Chemical Co., Inc. d/b/a Teph Seal to prepare vehicles for sale and delivery by providing wash and detailing services. Plaintiff was allegedly injured in the course and scope of his employment to provide such services, and he received worker’s compensation benefits pursuant to Chapter 440, Florida Statutes. Accordingly, King Motor was the statutory or special employer of Plaintiff pursuant to Section 440.10(l)(b), Florida Statutes, or, alternatively, Plaintiff was the borrowed servant of King Motor. For these reasons, King Motor is entitled to immunity from this suit under the Florida Workers’ Compensation Act, and this action is barred by Section 440.11, Fla. Stat.

Felder filed a motion to strike this affirmative defense arguing that section 440.10(l)(b), Florida Statutes (2006), was applicable only to the type of contractual obligations that arise within the construction industry. King responded to the motion to strike asserting that Gator Freight-ways specifically holds that section 440.10 is not limited to construction cases. Felder countered that the legislative changes to chapter 440, Florida Statutes, which were made after the Gator Freightways decision but prior to the 2006 version of the statute, make specific reference in certain provisions to construction contracts, thereby creating an ambiguity within the statute which would allow the court to find that it was the intent of the Legislature to limit the application of section 440.10(l)(b) to the construction industry. The trial court denied Felder’s motion to strike affirmative defenses. Felder moved for rehearing which the Court denied during the hearing on King’s motion for summary judgment. Ultimately, the trial court granted King’s motion for summary judgment and this appeal followed.

“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting Ai?. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (1931)). “It is only if the statutory language is ambiguous that ‘the Court must resort to traditional rules of statutory construction to determine legislative intent.’ ” Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla.2004) (quoting Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1282 (Fla.2000)). Likewise, the “[a]dministrative construction of a statute, the legislative history of its enactment, and other extraneous matters are properly considered only in the construction of a statute of doubtful meaning.” Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1153 (Fla.2000) (quoting Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 576-77 (Fla.1958)) (emphasis in original).

In the instant case we reject the Appellant’s invitation to- look to the history of this statute to determine its intent. We find the language of the statute to be clear and unambiguous. Further, the Legislature simplified this court’s job by specifying in section 440.015, Florida Statutes (2006), that “[i]t is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” Nothing -within this statutory provision is unclear or suggests the Legislature’s intent to limit its application to the construction industry.

First, in section 440.02(16)(a), Florida Statutes (2006), the Legislature defines “employer” and states:

“Employer” means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person. “Employer” also includes employment agencies, employee leasing companies, and similar agents who provide employees to other persons ....

Next, in section 440.02(15)(a), Florida Statutes (2006), the Legislature defines “employee” as follows:

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

Further, section 440.10(l)(b), Florida Statutes (2006), the portion of chapter 440 that creates a “statutory employer,” states:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

Finally, the first line of section 440.11(1), Florida Statutes (2006), states:

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death....

This section goes on to list certain exceptions that do not apply to the case at bar. Despite Felder’s argument to the contrary, there is nothing about the definitions or statutory language referenced herein that is ambiguous or creates even a suggestion that the Legislature intended to limit the application of this statute to the construction industry. Therefore, it would be clear error for this court to find such ambiguity as a basis for inferring a legislative intent contrary to the clearly expressed language of the statute. Accordingly, we approve in full the decision of the trial court and hold that King was a statutory employer of Felder pursuant to section 440.10(l)(b), Florida Statutes (2006). We further find that, consistent with the binding precedent set forth in Gator Freightways, this section is not limited to construction contracts. “It is axiomatic that stare decisis obligates this court to follow Florida Supreme Court precedent.” Ramcharitar v. Derosins, 35 So.3d 94, 98 (Fla. 3d DCA 2010). We therefore decline the Appellant’s invitation to expressly ignore Gator Freightways absent a clear expression of that intent from the Legislature.

Affirmed.

WARNER and CIKLIN, JJ., concur.

      . Because this incident occurred in 2006, it is controlled by the 2006 statute. Derogatis v. Fawcett Mem'l Hosp., 892 So.2d 1079 (Fla. 2d DCA 2004).


author: DAMOORGIAN, J.

text:
    Leroy SMITH, Appellant, v. Mary SMITH, Appellee.
    No. 4D11-4462.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Karen B. Weintraub of Sidweber & Weintraub, P.A., Fort Lauderdale, for appellant.
    Terry Ellen Fixel and August La Rocco of Fixel & La Rocco, Hollywood, for appel-lee.
   DAMOORGIAN, J.

In this appeal, the issue before us is whether a party to a marital settlement agreement may seek to terminate or modify an obligation to pay alimony by invoking Florida’s supportive relationship statute section 61.14, Florida Statutes (2011), notwithstanding the party’s express agreement to the contrary. We hold that a party to a marital settlement agreement may not invoke Florida’s supportive relationship statute in order to modify or terminate an alimony obligation where such action is prohibited under the terms of the agreement. We affirm.

By way of background, Leroy Smith filed a petition to terminate his alimony obligation on the grounds that his former wife, Mary Smith, was in a supportive relationship as defined under Florida’s supportive relationship statute. § 61.14(l)(b)l. Mary Smith responded to the petition by filing a motion for judgment on the pleadings, arguing that the parties’ marital settlement agreement expressly provided that the alimony obligation was “non-modifiable by the parties, in either amount or duration, regardless of any change in circumstances of either party.” The trial court granted Mary Smith’s motion for judgment on the pleadings and Leroy Smith appeals.

Florida’s supportive relationship statute section 61.14(l)(b), “is actually a codification of prior case law which held that, in post dissolution matters, cohabitation can be a basis for reduction or termination of alimony awards.” Linstroth v. Dorgan, 2 So.3d 305, 307 (Fla. 4th DCA 2008). Courts in this State have long recognized that the statutory right to petition for modification of an alimony award may be intentionally or impliedly waived and that the waiver may be stated in express terms or through interpretation of the agreement as a whole. Bassett v. Bassett, 464 So.2d 1203, 1205 (Fla. 3d DCA 1984). See Lee v. Lee, 157 Fla. 439, 26 So.2d 177, 179 (1946); Cunningham v. Cunningham, 499 So.2d 880, 882 (Fla. 1st DCA 1986). “[I]f the language of the agreement ‘indicates a clear intention by the parties that the agreed-upon provisions for alimony would be controlling, and that its terms would be modifiable only as authorized therein,’ then the language is sufficient to operate as an implied waiver of any other ground for modification.” DePoorter v. DePoorter, 509 So.2d 1141, 1145 (Fla. 1st DCA 1987) (quoting Cunningham, 499 So.2d at 882). Finally, “[a]n agreement which fails to make provision for unmarried cohabitation may be interpreted as precluding reduction or termination of alimony on that ground.” Id.

In this case, the parties’ agreement specifically states:

2. Said alimony shall be non-modifiable by the parties, in either amount or duration, regardless of any change in circumstances of either party.
3. This alimony shall terminate on the Husband’s death, the Wife’s death, or the Wife’s remarriage, whichever shall first occur.

Viewed as a whole, the parties’ agreement unambiguously provided that all alimony was non-modifiable and would cease only upon the occurrence of the death of either of the parties, or Mary Smith’s remarriage. To be sure, the concept of a supportive relationship as a possible termination event was something the parties could have contemplated at the time they entered into their agreement. They chose not to do so. DePoorter, 509 So.2d at 1145.

Affirmed.

GROSS, J., and HANZMAN, MICHAEL, Associate Judge, concur.

      . Florida’s statute section 61.14 provides in pertinent part:
      The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides.
      61.14(l)(b) 1., Fla. Stat.


author: WARNER, J.

text:
    Roy JOSSFOLK, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D12-443.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Michael R. Seward of Ligman Martin, P.L., Miami, for appellant.
    Michelle Diverio, Anthony J. Tinelli and Evelyn Cobos of Lyndecker Diaz, Miami, for appellee.
   WARNER, J.

The appellant challenges a final summary judgment in favor of his insurance company in a declaratory judgment action in which he contended that he was entitled to an appraisal of “Ordinance and Law” coverage based on roof damage caused by a hurricane. “Ordinance and Law” is the cost of bringing any structure (here, the roof) into compliance with applicable ordinances or laws. The insurance company contended that in a prior proceeding all of the appellant’s damages had been appraised. We reverse the trial court’s summary judgment, because the prior proceeding had not appraised Ordinance and Law coverage, nor could it because none had been incurred at the time of the appraisal.

Appellant Jossfolk submitted a claim to his insurance company, appellee, United Property & Casualty Insurance Company (“United”), alleging that his insured property was damaged in Hurricane Wilma. United found no wind related damages but paid for other damages. Jossfolk disputed the amount and requested that the claim be submitted to appraisal. Each party appointed an appraiser, and the two selected a neutral appraiser. The neutral appraiser submitted a proposed appraisal for damages but excluded roof repair. Joss-folk’s appraiser objected to the proposed award because it did not include Ordinance and Law coverage for replacement of the roof, which Jossfolk’s appraiser believed was necessary, based upon his belief that the building department would not allow for any repair of the roof without meeting the current code. The neutral appraiser ultimately increased the award on other damages and allowed for the removal and replacement of two squares of concrete tile roof (220 square feet). The award stated that “Ordinance and Law” was “not appraised.” United made payment to Joss-folk for the amount of the award.

Jossfolk’s contractor then applied to the City of Weston (“the City”) for a roofing repair permit in which he claimed 1359 square feet or about 34% of the roof area needed repair. The roofing repair permit was rejected by the City because the repair exceeded the area allowed by the building code of 25% of the total roof area which could be repaired without requiring replacement of the entire roof system to conform to the current code.

Thereafter, Jossfolk’s representative requested United to pay for the entire roof repair under Ordinance and Law coverage. United responded that “this claim was settled in appraisal on April 27, 2009 in which the umpire rejected your request for law and ordinance.” (Emphasis supplied). As a result, Jossfolk filed a Declaratory Judgment action, seeking a ruling that United must participate in an appraisal for Ordinance and Law coverage. United answered and moved for summary judgment arguing in its motion that the prior appraisal did not include loss for Ordinance and Law coverage; therefore, Jossfolk was not entitled to an appraisal. The trial court granted the motion for summary judgment without making a declaration of Jossfolk’s rights. He appeals.

Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The standard of review is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Although United argued that the arbitration code should apply to this appraisal process, Allstate Insurance Co. v. Suarez, 833 So.2d 762 (Fla.2002), holds that appraisal clause was not an agreement to arbitrate, and the formal procedures of the Arbitration Code are inapplicable. Thus, we reject United’s contention that the only way Jossfolk can challenge the arbitration award is through section 682.13(1), Florida Statutes, within the Arbitration Code. See also Citizens Prop. Ins. Corp. v. Cuban-Hebrew Congregation of Miami, Inc., 5 So.3d 709, 712 (Fla. 3d DCA 2009) (citing Suarez, 833 So.2d at 763-66) (“The Florida Supreme Court has held that the Florida Arbitration Code is not applicable to appraisal cases.”).

While United argued that the appraisers denied Ordinance and Law coverage, we conclude that it is clear from the award, as the appraisers stated, Ordinance and Law coverage was “not appraised.” This is consistent with Ceballo v. Citizens Property Insurance Corp., 967 So.2d 811 (Fla.2007), which is determinative of this issue. The Ceballos lost their home to a fire, and Citizens paid the face value of the policy. The Ceballos then sought payment under a supplemental coverage for Ordinance and Law. The parties agreed that the Ceballos were entitled to recover under this supplemental coverage but disagreed as to whether they had to first show an actual loss in order to recover under that provision. The Third District found that there had to be actually incurred expenses in order for them to recover. The Supreme Court agreed: the Ceballos had received the face value for the loss of their home, but that loss did not affect their obligation to show that they incurred an additional loss in order to recover under the supplemental coverage. As the supreme court noted, “‘to incur’ means to become liable for the expense, but not necessarily to have actually expended it.” 967 So.2d at 815.

Ceballo supports Jossfolk’s contention that Ordinance and Law is not recoverable until it is incurred and thus could not have been appraised at the time of the original appraisal. Here, at the time of the original appraisal, Jossfolk had not applied for repairs of the roof. Thus, he had not incurred or become liable for any additional expense until the City had required compliance with current ordinances in order to complete repairs. It was at that point, according to Ceballo that Jossfolk incurred additional loss, for which he had the right to an appraisal.

United also argues that Ordinance and Law coverage is not implicated, because the appraisers allowed for only two square feet of tile replacement, which was considerably less than the 25% of total area which would trigger the City’s requirement that the entire roof be replaced to current ordinance standards. This was not a ground argued by United in its motion for summary judgment. Nevertheless, Jossfolk offered an affidavit from its general contractor stating that the City would require replacement because the original roof tiles were no longer made and could not be replaced. Thus, the evidence did not conclusively refute the factual issues in this case.

For these reasons, we reverse the final summary judgment and remand for further proceedings.

CIKLIN, J, and BLANC, PETER, Associate Judge, concur.

      . “Ordinance and Law” coverage was explained in Citizens Property Insurance Corp. v. Mallett, 7 So.3d 552, 554 n. 1 (Fla. 1st DCA 2009):
      [L]aw and ordinance coverage under the policy provides reimbursement for up to 25% of dwelling policy limits for increased repairs and replacement costs incurred by the insured to comply with the requirements of the applicable laws and ordinances regulating construction or repair of property. See, e.g., § 627.701 l(l)(b), Fla. Stat. (2004).

      . Section 682.13(1) provides:
      (1) Upon application of a party, the court shall vacate an award when:
      (a) The award was procured by corruption, fraud or other undue means.
      (b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
      (c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
      (d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to tire controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
      (e)There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.
      But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.