author: WELLS, Chief Judge.

text:
    Robert Jeffrey CHASKES, D.O., Sandra Saint-Eloi, ARNP and Vohra Health Services, P.A., Appellants, v. Zoila GUTIERREZ, as Personal Representative of the Estate of Dilia Dolores Jaquez, Appellee.
    Nos. 3D11-3127, 3D11-1967.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Rehearing Denied July 12, 2013.

      Hicks, Porter, Ebenfeld & Stein and Mark Hicks and Dinah Stein, Miami, for appellants.
    Ford & Dean and William A. Dean, Aventura; Burlington & Rockenbach, Bard D. Rockenbach and Adam J. Richardson, West Palm Beach, for appellee.
    Before WELLS, C.J., and LAGOA and LOGUE, JJ.
   WELLS, Chief Judge.

Robert Jeffrey Chaskes, D.O., Sandra Saint-Eloi, A.R.N.P., and their employer Vohra Health Services, P.A., appeal from a final judgment in this medical malpractice action for the negligent treatment of a sacral decubitus ulcer (a bedsore). The defendant doctor and nurse treated then eighty-eight-year-old Dilia Jaquez over a period of- two weeks while she was at Miami Gardens Nursing Center following transfer from Memorial West Hospital where Jaquez had undergone surgery for a broken hip. During her stay at Memorial West, Jaquez developed the sacral ulcer which had deteriorated by the time she was released to Miami Gardens to a stage IV bedsore. On April 8, 2009, Gutierrez, as personal representative of Jaquez’s estate, bought suit claiming that Dr. Chaskes’s and Nurse Saint-Eloi’s care and treatment of Jaquez’s bedsore while at Miami Gardens fell below the standard of care and was a legal cause of damage for which they and Vohra Health were liable. Gutierrez chose not to seek relief from Memorial West where the bedsore developed and initially deteriorated, nor from several of the other medical institutions or individuals which or whom subsequently treated Jaquez, but limited her claim to Dr. Chaskes, Nurse Sain1>-Eloi, and Vohra Health. The defendants alleged Gutierrez’s comparative fault and subsequently joined Memorial Hospital West and Miami Gardens Nursing Center as Fabre defendants.

The case was tried before a jury in April of 2011. At the close of the evidence and shortly before the jury retired, the court below dismissed Memorial West from the action. Defendants’ motion for a directed verdict on proximate causation grounds was denied, and the jury returned a verdict in Gutierrez’s favor apportioning fault 65% to Dr. Chaskes, 25% to Nurse Saint-Eloi, 0% to plaintiff Gutierrez, and 10% to Fabre defendant Miami Gardens Nursing Center. The jury awarded $13,000, for past medical bills and expenses and $337,000. for past pain and suffering, for total damages of $350,000. Defendants moved to set aside the verdict and enter judgment in accordance with their motions for directed verdict. Alternatively, defendants moved for a new trial or remittitur. The trial court denied the post-trial motions and entered a final judgment against defendants for $315,000 according to the jury’s apportionment of fault. A final judgment of $138,650 also was entered against the defendants for attorney’s fees and costs.

Because we agree with defendants’ position that Gutierrez failed to satisfy the standard established in Gooding v. University Hospital Building, Inc., 445 So.2d 1015, 1018 (Fla.1984), as to either this doctor or nurse, we reverse the final judgment rendered in Gutierrez’s favor and remand for entry of judgment in favor of Dr. Chaskes, Nurse Saint-Eoli and their employer Vohra Health. We also reverse the fees and costs order in Gutierrez’s favor which followed the final judgment. This analysis makes it unnecessary to address the remaining points argued by the defendants.

FACTS

On April 30, 2008, Dilia Dolores Jaquez, then age eighty-seven, fell and broke her hip. According to Gutierrez, before her fall, Jaquez had been reasonably healthy, living at home with Gutierrez, travelling alone long distances by air, and taking no medications.

Following her fall, Jaquez was transported to Memorial West Hospital and admitted for hip surgery. Although she tolerated the surgery well, she subsequently suffered a number of set-backs and generally deteriorated during her hospital stay. In addition to suffering from anemia, which required a blood transfusion, her white blood cell count shot up, she developed a urinary tract infection, hematuria (bloody urine), and acute renal failure. She also lost her appetite and was found to be suffering from significant erosive gastritis, a hiatal hernia, and duodenitis. Additionally, she was unable to engage in meaningful therapy to get back on her feet, and from time to time she became disoriented and confused. As one of her physicians noted the day before she was discharged, “[f]rom a functional standpoint ... [Jaquez’s] progress has been very slow. She still requires maximum assistance for bed mobility, total assistance with transfers, and standing balance is dependent.” In part because of this immobility, Coumadin, an anti-coagulant was prescribed to prevent “deep venous thrombosis ... and pulmonary embolism.” She also developed a large pressure ulcer (bedsore) at the base of her spine which had deteriorated to stage IV by the time she was discharged from Memorial West to Miami Gardens on May 23, 2008.

At discharge, Memorial West prescribed for Jaquez, among other things, “continued wound care as [per] pressure ulcer protocol [with] Accuzyme and Lyofoam, [and] cleans[ing] with normal saline daily.” Dr. Jesus Gonzales, Jaquez’s primary treating physician at Miami Gardens, ordered continuation of this treatment when Jaquez was admitted to Miami Gardens late in the evening on that same day. He also ordered a wound consultation with Vohra Health, an entity which provides wound care to nursing home residents. ■

The following day, Dr. Chaskes, a Vohra Health employee, ordered discontinuation of the Accuzyme treatment prescribed for Jaquez’s bedsore and prescribed instead Santyl, a medication he found more effective for enzymatic debridement of bedsores. Dr. Chaskes also ordered continued cleaning of Jaquez’s ulcer on a daily basis.

Two days later, on May 26, Dr. Chaskes and Nurse Sainb-Eloi (also a Vohra Health employee), visited Jaquez. By that time, Dr. Gonzales had noted that although the bedsore had no odor, it was producing a small amount of purulent discharge. He also noted that the sore was not granulating but instead was covered by dead tissue or slough. During their visit, Dr. Chaskes and Nurse Saint-Eloi surgically debrided the bedsore, applying a topical anesthetic (benzocaine) and using a scalpel to cut out dead muscle and other tissue. But because of the threat of excessive bleeding stemming from Jaquez’s anti-coagulation (Coumadin) therapy, they were unable to remove all of the necrotic tissue that they found and opted to treat the remaining small amount of necrotic tissue with enzymatic debridement (with Santyl) followed by removal of any remaining necrotic tissue at their next weekly visit. As before, they ordered daily cleansing of the sore, and to further promote healing, they ordered treatment with Mycolog, an anti-fungal agent, and packing with calcium alginate. They also recommended a pressure mattress for Jaquez’s bed, that she be turned or repositioned every two hours, a gel cushion for her chair and that she be allowed to sit up no more than one hour at a time, all to lessen pressure on the sore.

Two days later, Jaquez was transported to the emergency room at Jackson Memorial Hospital to address a Coumadin overdose. While there, her sacral ulcer was evaluated and described to be much as it was when Dr. Chaskes and Nurse Saint-Eloi treated it on May 26. It had no odor although it was producing a moderate amount of purulent discharge. And while it still had some white/yellow slough, it had begun to show signs of granulation. No treatment of the ulcer was administered during Jaquez’s two day stay at Jackson Memorial other than dressing changes.

At 11:30 pm on the evening of May 29, after the two-day stay at Jackson Memorial, Jaquez was readmitted to Miami Gardens. By this time, she had become both bowel and bladder incontinent. On readmission to Miami Gardens, the orders previously issued by Dr. Chaskes for care of Jaquez’s sore were reinstated. And as before, nurses’ notes confirm that she was experiencing no pain.

On June 2, Nurse Saint-Eloi visited Ja-quez again. Anticipating a follow up de-bridement, Saint-Eloi had ordered administration of pain medication one-half hour before the procedure was to begin. When Saint Eloi examined the sore, she found it to have deteriorated. It now had an odor and was producing a large amount of exudate or discharge. She also saw that the skin around the wound was beginning to strip away. Using a topical anesthetic (Benzocaine) and a scalpel as she had before, Saint-Eloi surgically removed necrotic subcutaneous tissue, necrotic muscle fascia, and slough from the bedsore, cutting more deeply into the sore than she had before. When she was done, she applied Bactroban, an antibiotic powder effectively used in the treatment of MRSA infections, and Santyl, and then packed the wound with calcium alginate. Because Ja-quez was already on a course of Bactrim, another powerful antibiotic, she did not request additional antibiotics but ordered application of Skin Prep to the peri-wound area and continuation of the treatments for the sore that Jaquez had been receiving.

Three days later, Jaquez’s daughter advised Miami Gardens staff that she wanted to remove Jaquez from the facility. She was told that removing her mother was against medical advice (AMA). Moreover, and despite Dr. Chaskes’s instructions that Jaquez was to sit in a chair for no more than one hour at a time, at the family’s request, Jaquez had been out of bed and sitting up for greater time periods.

When Saint-Eloi examined Jaquez on June 9, during her regular weekly rounds, she found that the bedsore had developed a pus pocket and was beginning to undermine. She again surgically debrided the sore, once more cutting even deeper than before, draining the puss pocket and directly applying an antibiotic to the site. She changed the ongoing treatment to packing wet to moist with TABS and indicated that if there was no improvement by the following week, another antibiotic, Augmentin, would be applied. Sitting again was limited to one hour per session with a gel cushion for Jaquez’s chair, and despite the risk of a urinary tract infection, Dr. Chaskes and Saint-Eloi recommended insertion of a Foley catheter to address Jaquez’s urinary incontinence to enhance healing of the bedsore.

Only three days later, on June 12, blood was noted in Jaquez’s urine. The following day she was transferred by ambulance to Jackson Memorial Hospital North where she remained until June 18, with a suspected gastro-intestinal bleed, gross he-maturia (bloody urine), and Coumadin toxicity. During this week-long stay in the hospital, Jaquez’s bedsore was evaluated daily. Each time, the evaluation was the same: the sore was a stage IV ulcer; the sore had a moderate amount of undermining and drainage; the sore had a yellow/white slough; the skin around the sore was macerated; and the sore had no odor. Measured on a scale of 0 to 10 (with 0 being none and 10 being the most severe), the pain from this sore was assessed by Jaquez at 2 — mild. During this stay, “no further breakdown” of the sore was noted and no treatment of the sore other than daily cleaning and dressing changes was administered. In fact, a wound care consult was not even requested until the day before Jaquez was discharged.

On June 18, Jaquez was discharged to her daughter’s home with orders to continue all existing medications except Couma-din. The following day she underwent a comprehensive adult nursing assessment for home health care services. That assessment detailed the condition of Jaquez’s stage IV sacral ulcer — noting that it had no odor — and found that Jaquez was experiencing no pain whatsoever. The only treatment recommended for the sore was cleaning with Kana Klenz, packing with Aqua Gel, and covering with 4x4 gauze. Jaquez’s daughter was also instructed to reposition Jaquez every two hours and to clean the sore with soap and water each time Jaquez’s had her diaper changed. From June 19 through and including June 29, a registered nurse visited Jaquez at least once a day at her home. During these visits, the sore was cleaned with either Kana Klenz or normal saline and covered with 4x4 pads. While Gutierrez claimed her mother was suffering from the bedsore, each of the registered nurses providing care to Jaquez on a daily basis reported, as did all of her previous professional caregivers, that Jaquez had no pain.

On June 29, Jaquez was admitted to Aventura Hospital and Medical Center. The following day she was seen by a wound specialist who noted a stage IV sacral pressure ulcer with undermining, a large amount of yellow drainage, some skin erosion and some redness and maceration. The recommended treatment was virtually identical to that previously prescribed by Dr. Chaskes and Nurse Saint-Eloi. On July 14, Jaquez was sent home. The next day, Trinity Health Care Services conducted yet another assessment of Jaquez’s condition for the purpose of providing home health care services. This assessment determined Jaquez’s prognosis to be good to fair and again confirmed that Jaquez was in no pain. With regard to Jaquez’s bedsore, treatment was to be much the same as it had been in the past, cleaning with normal saline, application of silver sulfadiazine and packing with normal saline wet dressing.

On July 20, 2008, Gutierrez took her mother to the Dominican Republic to live with another of Jaquez’s daughters, a nurse. The caregiver service discharge at that point, indicated a six out of ten on a pain scale. On February 6, 2009, Jaquez died from gastro-intestinal bleeding, a cause totally unrelated to the bedsore. Two months later Gutierrez, bought her suit claiming that Dr. Chaskes’s and Nurse Saint-Eloi’s care and treatment of Ja-quez’s bedsore fell below the standard of care and was a legal cause of damage for which they and Vohra Health were liable.

No Proximate Causation as to Dr. Chaskes, D.O.

“To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.” Gooding, 445 So.2d at 1018.

Dr. James Stern, a plastic surgeon -with no regular nursing home care experience testified as to the standard of care applicable to the treatment of Jaquez’s bedsore by Dr. Chaskes. Dr. Stern’s testimony was that Dr. Chaskes fell below the applicable standard of care for treatment of the bedsore when the bedsore was debrided on May 26 because only a topical anesthesia was utilized which precluded cutting deeply enough into the sore so as to remove all of the necrotic tissue in it:

[BY DR. STERN]. This debridement was done ... on an anticoagulated patient with inadequate anesthesia in an incomplete fashion. Not all of the necrotic tissue was removed.

According to Dr. Stern, the debridement had to be done under either a local or general anesthetic, and because Jaquez was on an anticoagulant, Coumadin, for her heart condition (atrial fibrillation), the anticoagulation should have been “reverse[d]” before debriding the sore or the procedure should have been conducted in the hospital where a blood bank was available. Ignoring the fact that Jaquez had just been released from a hospital following a three-week stay only a few days before Dr. Chaskes first saw her; that Jaquez was admitted to a different hospital only two days after Dr. Chaskes first saw her on May 26; and that Jaquez was readmitted to the second hospital again on June 13 — hospitalizations during which not one of her many caregivers ever suggested much less actually treated the sore as Dr. Stern suggested — Dr. Stern further opined that Dr. Chaskes fell below the applicable standard of care by failing to have her admitted to a hospital for treatment of the sore.

While Dr. Stern did testify that Dr. Chaskes’s failure to comply with this standard of care resulted in infection of the bedsore, he did not testify that had Dr. Chaskes complied with this standard of care that the sore either would have healed or that it would have healed more quickly and without pain. To the contrary, on cross examination, Dr. Stern conceded that he could not predict within a reasonable degree of medical probability that his recommended procedure (or compliance with his described standard of care) would have resulted in a different progression of the wound or less pain for Jaquez:

Q. Next question, do you know whether or not if you had taken her to the operating room and done the procedure that you talked about instead of the one that was done by the Vohra Health Care team, whether or not her sacral ulcer would have progressed differently or caused her any less pain in the long run?
A. Again, I wasn’t treating her, so again, that would be a guess. I would hope that it would promote healing by cleaning the wound out, but that would be, you know, my expectation, but 7 could not say for certainty.
Q. We’re not talking about certainty. Page 70, help refresh your recollection. Under oath, you testified many times before, you’re ready to testify in this case—
A. Yes.
Q. And you knew I was coming to take your deposition testimony to get your opinions for trial?
A. Yes.
Q. Okay. Question, line 15, “Do you know if you had taken her to the operating room and done the procedure that you indicated instead of the one that was done by the Vohra Heath Care team whether or not her sacral ulcer would have progressed differently or caused her any less pain in the long run?”
A. In the long run, you’re right. The answer is, no, that would be difficult to assess and I’ll stand by that.
MR. HARTZ: Excuse me, your Honor. I’d like to read the entire response he gave in his deposition.
[discussion, then deposition question read]
Q. “Do you know if you had taken her to the operating room and done this procedure you indicated instead of the one that was done by the Vohra Health Care team whether or not her sacral ulcer would have progressed differently or caused her any less pain in the long run?” Answer, “No, that would be difficult to assess.” Do you agree with that response?
A. Assess, yes.
Q. And you are of that same opinion today?
A. Yes.

(Emphasis added).

“Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Gooding, 445 So.2d at 1019. “While some jurisdictions allow recovery for the loss of any chance for improvement, ... anything less than the more likely than not causation requirement in medical malpractice actions [is] improper.” Beisel v. Lazenby, 444 So.2d 953, 953 (Fla.1984). In this case, Jaquez’s medical expert admitted he could not say with reasonable, medical probability that the treatment he suggested, even if approved by Jaquez’s physicians in light of her other medical problems, could “cure” the wound, would cause it to heal more quickly, or would result in less pain. At best, all he could say was that his method provided Jaquez with the “best chance to heal”:

Q. My question is reasonable, medical probability. You would agree within a reasonable medical probability, you would tell a patient if you took him to the operating room to do the procedure you say should have [been] done in this case, you would not say within a reasonable medical degree of probability you could cure them; is that correct?
A. It is correct that I—
Q. Thank you.
THE COURT: One minute, [counsel].
A. That I cannot tell that it’s going to cure them in and of itself, but that is the best chance to heal the wound.

This was insufficient. See Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gon zalez, 98 So.3d 1198, 1202 (Fla. 3d DCA 2012) (confirming that “[a] mere possibility of ... causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant” (quoting Gooding, 445 So.2d at 1018)).

Thus, while Dr. Stern’s testimony might support the conclusion that within a reasonable degree of medical probability Dr. Chaskes owed a duty to Jaquez and breached that duty, it cannot support the conclusion that this “breach” was the proximate cause of injury to Jaquez. See Cox v. St. Josephs Hosp., 71 So.3d 795, 799 (Fla.2011) (explaining that in Gooding, “the plaintiff brought a medical malpractice action, asserting that a hospital was negligent,” and observing “while the plaintiffs’ expert witness testified that the inaction of the emergency room staff violated accepted medical standards, the expert did not testify that immediate diagnosis and surgery would have, more likely than not, enabled Mr. Gooding to survive ... [thus] the defendant was entitled to a directed verdict because “the testimony established a no better than even chance for Mr. Gooding to survive, even had there been an immediate diagnosis of the aneurysm and emergency surgery.” (quoting Gooding, 445 So.2d at 1018)); Beisel, 444 So.2d at 953 (affirming a directed verdict issued in a defendant doctor’s favor and concluding “[i]n the ease under review the Beisels’ expert witness could not state that any of the treatments he recommended but which were not given by the defendant probably or more likely than not would have saved Mr. Beisel’s eye. To prevail he needed to do so and thus the district court correctly held the evidence supporting Beisel’s claim was insufficient to create a jury question on causation”); Hollywood Med. Ctr., Inc. v. Alfred, 82 So.3d 122, 125 (Fla. 4th DCA 2012) (“Because [the hospital] did not do any of the [identified] tasks, Nurse Cook testified that they breached the standard of care. What is missing here, as it was in Gooding, is the third element, namely whether the breach of that duty proximately caused the damages claimed.”); Wroy v. N. Miami Med. Ctr., Ltd., 937 So.2d 1116, 1118 (Fla. 3d DCA 2006) (“We understand that Wroy would rather have been diagnosed at the earlier mammogram, and that she is concerned about whether she received the correct treatment. However, Wroy failed to present any evidence that the defendants’ conduct resulted in a “more likely than not” chance of reoccurrence of the breast cancer or that because of the defendants’ alleged negligence, Wroy suffered any injury.”); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 328 (Fla. 1st DCA 2002) (“The ‘more likely than not’ standard is satisfied ... if a plaintiff presents evidence that establishes that the decedent had a fifty-one percent or better chance that death would not have occurred but for the actions or lack thereof of the medical care provider. Rivet v. Perez, 655 So.2d 1169, 1171 (Fla. 3d DCA 1995).”).

Accordingly, a verdict should have been directed in Dr. Chaskes’s favor.

No Proximate Causation as to Sandra Saint-Eloi A.R.N.P.

As to Nurse Saint-Eloi, we likewise find Gutierrez failed to present sufficient evidence to create a question of fact under Gooding. See Gooding, 445 So.2d at 1018 (“To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.”). Thus, likewise, a verdict should have been directed in Nurse Saints Eloi’s favor.

Testifying as an expert for Gutierrez as to Nurse Saint-Eloi’s actions was Nurse Joyce Black, who holds a doctoral degree in nursing. The crux of Nurse Black’s testimony was that Saint-Eloi departed from the standard of care in failing to remove all the necrotic tissue from Ja-quez’s bedsore the first time it was debrid-ed on May 26, 2008. She focused on the May 26th procedure throughout her testimony, repeating in various iterations that “[t]his was a healable wound [had] it been cared for properly at the late stage of May.”

First, it is not clear whether it was Nurse Saint-Eloi or Dr. Chaskes who performed the May 26th debridement. What is clear is that Saint-Eloi was working side by side that day with her supervisor, Dr. Chaskes. Nonetheless, Nurse Black maintained that Saint-Eloi departed from the standard of care by not getting Jaquez into a hospital then and there to address her bleeding problems which in turn resulted in having to leave a small amount of necrotic tissue in the sore. This, again according to Nurse Black, led to an infection which led to non-healing.

Nurse Black concluded that as to the events of May 26, had a proper debridement been performed, Jaquez “had a good chance of healing.” Even if this language met the “fifty-one percent or better” standard, it was not sufficient in this case, as at the May 26th debridement, Dr. Chaskes was there with Nurse Saint-Eloi. He signed off on all the notes for the visitation and procedure performed that day as did Saint-Eloi, and as Gutierrez concedes “[a]s her supervisor, Dr. Chaskes was responsible for Nurse Saint-Eloi and her treatment of Jaquez.”

According to expert Black, a proper de-bridement would have been with no Coum-adin or in a hospital with a blood bank setting. Even if Saint-Eloi had a different opinion as to the best way to proceed in the face of this stage IV bedsore, her supervising physician was with her, had actual knowledge of the patient’s condition, and did not recommend or advise hospitalization or termination of Jaquez’s anti-coagulation therapy but instead signed off on the procedure as that was performed.

As previously stated, Dr. Stern, the expert as to Dr. Chaskes’s actions, opined that he could not say there was a better than even chance that had the procedure advocated been followed — a “full debridement” either in a hospital setting or following termination of anticoagulant therapy— the result would have been different. In sum, as to the events of May 26, there was no testimony upon which a jury could conclude that because Nurse Saint-Eloi failed to comply with the standard stated by Black, Jaquez more likely than not, suffered the injuries alleged. As to that day’s events, the decision how to proceed lay with Dr. Chaskes, and the expert testifying as to his actions would not conclude that those actions more likely than not resulted in Jaquez’s injury.

As to Nurse Sainb-Eloi’s treatment of Jaquez after that date, Nurse Black’s testimony is much less definitive as to whether the breach alleged proximately caused the damages claimed. Questioned in this regard, her answers either referred back to what was done incorrectly on the 26th or were at best contradictory — stating at various points under questioning that the wound still could have been cured after that date or that it was too late to correct that initial mistake. More importantly, Nurse Black never indicated that her recommended procedure, done on either of those later dates, would have resulted in a better than even chance of the healing of the wound or alleviating the pain and suffering claimed.

While Nurse Black pointed to a number of things Nurse Saint-Eloi did wrong at her June 2nd and June 9th visits to Jaquez, she did not say that without those alleged deficiencies — failing to change antibiotics, failing to have a culture done, failing to properly chart what Saint-Eloi was doing and why — Jaquez would have had a better than even chance of improving. Without this critical last link in the chain of evidence demonstrating causation, there was no question for the jury to consider. See Simmons-Russ v. Emko, 928 So.2d 397, 398 (Pla. 1st DCA 2006) (“Because the appellant/cross-appel-lee’s expert testimony failed to satisfy the requirements of Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1020 (Fla.1984), as to the essential element of causation, we conclude that the trial court correctly entered a directed verdict and final judgment in favor of the appellee/cross-appellant.”). Thus, a verdict should have been directed in Nurse Saint-Eloi’s favor.

Conclusion

Because we conclude Gutierrez failed to satisfy the standard established in Good- ing, as to either this doctor or this nurse, we reverse the final judgment rendered in her favor and remand for entry of judgment in favor of Dr. Chaskes, Nurse Saint-Eoli and Vohra Health. We also reverse the trial court’s award of attorney’s fees and costs to Gutierrez. See, e.g., Packaging Corp. of Am. v. DeRycke, 49 So.3d 286, 294 (Fla. 2d DCA 2010); Progressive Express Ins. Co. v. Menendez, 979 So.2d 335 (Fla. 3d DCA 2008); ARC Foods, Inc. v. MGI Props., 746 So.2d 514, 514 (Fla. 2d DCA 1999).

Reversed and remanded.

      . The trial testimony was that, generally, a stage I pressure ulcer (or bedsore) is a condition where the skin is darker in pigmentation, warm, hard, and swollen; a stage II pressure ulcer is a condition where a superficial skin lesion has developed something similar to an abrasion, blister or small crater; a stage III pressure ulcer is a deep crater with damage or death of subcutaneous tissue; and a stage IV pressure ulcer is one with extensive destruction of the skin, tissue necrosis, or damage to muscle, bone, or supporting structures. See also NME Props., Inc. v. Rudich, 840 So.2d 309, 310 (Fla. 4th DCA 2003).

      . Prior to the court granting defendants' motion to amend, defendants also had moved for partial summary judgment on, among other things, defendants' lack of involvement in the "initial development of [Ms. Jaquez’s] pressure wound.” At the pre-trial summary judgment hearing, the court granted that motion based on plaintiff’s counsel's agreement that plaintiff would not suggest in any way that the defendants "started” or "created” the ulcer, and the court granted a summary judgment holding that the defendants "did not create the ulcer.” At the start of the trial, the court instructed the voir dire jury panel that everyone agreed that "[defendants didn’t cause the wound.”

      . See Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . See Sims v. Cristinzio, 898 So.2d 1004, 1005-06 (Fla. 2d DCA 2005) ("A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party.”).

      . In addition to arguing that the defendants were not the proximate legal cause of Ja-quez's injury, defendants also argued the trial court erred in its ultimate decision that Memorial West should not be listed as a Fabre defendant, and that the $337,000 non-economic damage award was excessive.

      . Upon admission to Memorial West, Jaquez had been diagnosed with onset atrial fibrillation which also is treated with anticoagulation therapy.

      . Accuzyme is an enzymatic ointment used to chemically debride (remove or dissolve) nec-rcitic (dead, damaged or infected) tissue and to liquefy slough (dead tissue either white— with little bacteria present, yellow or green— with larger amounts of bacteria present, or brown — with hemoglobin from blood present) in lesions such as pressure ulcers.

      . Lyofoam is a dressing (bandage) used to promote healing of exuding (oozing or discharging) wounds.

      . The trial testimony was that Santyl permits a deeper debridement than Accuzyme and may be used with an antibiotic powder when infection is present.

      . Purulent meaning pussy or oozy. See Purulent Definition, Merriam-Webster.com, http:// www.merriam-webster.com/medical/purulent (last visited Mar. 14, 2013).

      . Granulation is the formation of cells which provide a base on which skin cells grow. See Granulation Definition, Merriam-Webster.com, http://www.merriam-webster.com/medical/ granulation (last visited Mar. 14, 2013).

      . Calcium Alginate packing is a dressing (bandage) which absorbs exudate and provides a moist, cushioned healing environment for infected and non-infected wounds.

      . This was described in Saint-Eloi’s notes as periwound excoriation.

      . MRSA is an anachronism for methicillin resistant staphylococcus aureus, a bacteria highly resistant to many drugs. See MRSA Definition, Merriam-Webster.com, http://www. merriam-webster.com/medical/mrsa (last visited Mar. 14, 2013).

      . A commercial skin cleanser.

      . Dr. Chaskes and Saint Eloi had earlier requested daily testing of Jaquez's pre albumin level and that she receive daily vitamins.

      . Undermining "signifies that the edges of the wound had separated from the underlying tissue.” Olsten Health Servs., Inc. v. Cody, 979 So.2d 1221 (Fla. 3d DCA 2008).

      . TABS is an anachronism for triple antibiotic solution.

      . This is a softening by moisture. See Macerate Definition, Merriam-Webster.com, http://www.merriamwebster.com/medical/ macerate?show=0&t= 1363276233 (last visited Mar. 14, 2013).

      . The expert testimony indicated that odor may be a sign of infection.

      . A commercial skin cleanser.

      . A commercial lubricated pad.

      . The assessment noted that Jaquez was both urinary and bowel incontinent.

      .Dr. Stern was called to testify solely as to Dr. Chaskes’s treatment of Jaquez. It was agreed that he would not opine as to nurse Saint-Eloi’s performance, as that testimony would come in through a separate expert. He had no opinion about development or treatment of the sore before Jaquez’s admission to Miami Gardens.

      . Dr. Chaskes’s expert medical witness, Dr. Glenn Gedsig, an internist working exclusively as a geriatrician in nursing homes for the past ten years, testified that Dr. Chaskes’s treatment was appropriate and met the applicable standard of care based on Jaquez’s medical condition. More to the point, he testified that taking her off Coumadin would have subjected Jaquez to too great a risk of stroke, and that general anesthesia might have proven fatal to her, all of which was contraindicated for treatment of a relatively benign lesion.

      . The expert testimony adduced in Olsten Health Services, Inc. v. Cody, 979 So.2d 1221, 1225 (Fla. 3d DCA 2008), demonstrates exactly that testimony missing as to Dr. Chaskes — a statement that more probably than not, the damages incurred were the result of the doctor's negligence:
      Thus, Cuzzell testified that in her expert opinion, Nurse Edwards should have had a "one on one conversation with a physician, not an answering machine" when she noticed that the pressure ulcer was deteriorating, Cody was depressed, and his family was "overwhelmed." Cuzzell testified that Cody should have been "evaluated further for infection": Nurse Edwards breached the standard afeare by not “getftingj” him to a physician on or about November 21;

        and if he had been seen by a physician and/or taken to an emergency room on November 21, the "fissure” (the almost-healed Stage 2 decubitus pressure ulcer) would not have progressed into a Stage 4 pressure ulcer, and therefore, Cody ‘‘would not have gone through the five plus years of suffering with a stage four fpressure ulcer].”

      (Emphasis added).

      . See Jackson Cnty. Hosp, Corp. v. Aldrich, 835 So.2d at 328 ("The "more likely than not” standard is satisfied ... if a plaintiff presents evidence that establishes ... a fifty-one percent or better chance that [the injury] would not have occurred but for the actions or lack thereof of the medical care provider.”).

      . Nurse Black confirmed that the ultimate recommendation as to how to treat this patient belonged to the Vohra wound group:

      Q: Now, we know that operative decision that we’re talking about, taking her in with potential blood transfusions, getting her off of Coumadin and all that stuff was something that you recommend. But that certainly wasn't recommended by anybody at that Miami Gardens admission, correct?
      A. The people that would have recommended it would have been the Vohra wound group.

      (Emphasis added).

      . The deposition testimony of admitting physician Dr. Jesus Gonzalez Jr., read into the record at trial, confirmed only that he thought the treatment given throughout the time period at issue was "appropriate.”

      . This analysis makes it unnecessary to reach the remaining two points argued by these defendants: one, that the trial court erred in dismissing Memorial West as a Fabre defendant, and two, that the verdict was excessive.
      We nonetheless agree that Memorial West should have remained on the jury verdict form. Defendants’ expert, Dr. Glenn Gidseg, testified that the bedsore never should have developed and that Memorial West’s care and treatment of it fell below the standard of care. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla.1996). "A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged.” Salazar v. Helicopter Structural & Maint., Inc., 986 So.2d 620, 622 n. 1 (Fla. 2d DCA 2007); see also Chesterton v. Fisher, 655 So.2d 170, 172 (Fla. 3d DCA 1995); W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746, 747-48 (Fla. 2d DCA 1994).”); see, e.g., Jackson v. York Hannover Nursing Centers, 876 So.2d 8, 12 (Fla. 5th DCA 2004) (ruling that it was appropriate for the jury to consider the potential fault of the non-party hospital that provided treatment to the decedent prior to her admission to the nursing home because both facilities "were dealing with a continuum of the same injury.”).
      We do not, however, agree that the amount of the verdict was excessive. Gutierrez testified that Jaquez suffered pain in her final months as a result of the bedsore. Defendants failed to show that the amount awarded was so inordinately large that it "exceed[ed] the maximum limit of a reasonable range.”
        Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla.1977) ("In tort cases damages are to be measured by the jury's discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”); Tsavaris v. NCNB Nat'l. Bank of Fla., 497 So.2d 1338, 1338 (Fla. 2d DCA 1986) ("An appellate court is not entitled to reverse simply on the basis that a decision of the trier of fact is against the weight of the evidence.”); Talcott v. Holl, 224 So.2d 420, 422 (Fla. 3d DCA 1969) (“A party who assails the amount of a verdict as being excessive, has the burden of showing it is unsupported by the evidence, or that the jury was influenced by passion or prejudice.”); Subaqueous Servs., Inc. v. Corbin, 25 So.3d 1260, 1268 (Fla. 1st DCA 2010) ("The party claiming an excessive verdict bears the burden to prove that the amount is not supported by the evidence or that the jury was influenced by matters beyond the bounds of the record.”); see also § 768.74, Fla. Stat. (2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Astrid MINIET, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D12-1755.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Rehearing Denied July 2, 2013.
    Alvarez, Carbonell, Feltman, Jimenez, & Gomez, P.L., and Paul B. Feltman, for appellant.
    Hinshaw & Culbertson LLP, and Maureen G. Pearcy, Coral Gables, for appellee.
    Before WELLS, C.J., and LAGOA and LOGUE, JJ.
   PER CURIAM.

Affirmed. See 1500 Coral Towers Condo. Ass’n v. Citizens Prop. Ins. Corp., 112 So.3d 541 (Fla. 3d DCA 2013).


text:
    Bruce LING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1430.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Rehearing Denied July 15, 2013.

      Bruce Ling, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1286 (Fla.2004).

BENTON, C.J., WETHERELL and ROWE, JJ., concur.


author: BLACK, Judge.

text:
    TARA WOODS SPE, LLC, Appellant, v. Louella CASHIN, Appellee.
    No. 2D12-3854.
    District Court of Appeal of Florida, Second District.
    May 24, 2013.
    Rehearing Denied July 15, 2013.

      Jody B. Gabel and J. Allen Bobo of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Sarasota, for Appellant.
    Robert B. Burandt of Burandt, Adamski & Feichthaler, PL, Cape Coral, for Appel-lee.
   BLACK, Judge.

Tara Woods SPE, LLC, appeals the final judgment and supplemental final judgment entered in favor of Louella Cashin. Collectively, the judgments interpret provisions of Florida’s Mobile Home Act, chapter 723, Florida Statutes (2007), and permit Ms. Cashin to rescind her lease contract. Presented with an issue of first impression, we must determine whether Tara Woods SPE, LLC (Tara Woods), a mobile home park owner, complied with the disclosure requirements of the Mobile Home Act (Act) as it relates to resale purchasers. Ms. Cashin persuaded the circuit court that the park owner did not comply with the Act; Tara Woods contends that the circuit court erroneously concluded that the park owner did not do enough to comply with the Act and further contends that Ms. Cashin waived certain rights. As we will explain in detail, we agree with Tara Woods’ arguments and therefore reverse the judgments on appeal.

I. Background

In August 2007 Ms. Cashin purchased a mobile home in Tara Woods Mobile Home Park. Tara Woods owns the park, which is regulated by the Act. Ms. Cashin’s mobile home was a resale; she purchased the home from the trustee of a deceased resident’s trust (Seller).

A. Documents

On August 8, 2007, Ms. Cashin executed a Rental Assumption Agreement acknowledging and agreeing to assume the remaining term of the rental agreement between Tara Woods and the Seller. In addition, she executed a Rental Agreement to be effective for the period assumed— September 1, 2007 through December 31, 2007. The Rental Agreement included a rent increase provision identical to the rent increase provision in the Seller’s original rental agreement, to wit: “The LANDLORD may raise the amount of base rent and special use fees and other charges annually effective the 1st day of January,_Increases in the base rent and other fees and charges will be determined in the manner disclosed in the Prospectus.”

On the same day, Ms. Cashin signed an acknowledgment stating that she received a copy of Tara Woods’ Prospectus and a Lifetime Lease. The Prospectus provided to Ms. Cashin was approved by the Department of Business and Professional Regulation (Department) in 1994, pursuant to the Act. See §§ 723.006(8), .011(1); Vill. Park Mobile Home Ass’n., Inc. v. Fla. Dep’t. of Bus. Reg., 506 So.2d 426, 426 (Fla. 1st DCA 1987). The Lifetime Lease, as an attachment to the Prospectus, had been approved by the Department on March 28, 2006. See §§ 723.011(2), .012(14)(d).

The first page of the Prospectus contains four paragraphs, each of which is typed in capital letters and required under the Act. See § 723.012(l)(b). As relevant to this appeal, paragraphs one, two, and four provide:

THIS PROSPECTUS CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND YOUR FINANCIAL OBLIGATIONS IN LEASING A MOBILE HOME LOT. MAKE SURE THAT YOU READ THE ENTIRE DOCUMENT AND SEEK LEGAL ADVICE IF YOU HAVE ANY QUESTIONS REGARDING THE INFORMATION SET FORTH IN THIS DOCUMENT. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN NATURE. A PROSPECTIVE LESSEE SHOULD REFER TO ALL REFERENCES, ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND ALL SALES MATERIALS.
UPON DELIVERY OF THE PROSPECTUS TO A PROSPECTIVE LESSEE, THE RENTAL AGREEMENT IS VOIDABLE BY THE LESSEE FOR A PERIOD OF FIFTEEN (15) DAYS.

Section VIII, paragraph D of the Prospectus, under the heading “Increases in Lot Rental Amount,” addresses factors affecting rent increases:

Factors which may affect the level of increases in the lot rental amount or user fees are as follows:
Consumer Price Index (CPI): [Tara Woods] will consider increases in the level of CPI for the twelve-month (12-mo.) period immediately preceding the notice of increase. Rent and other charges may be increased by a percentage equal to the increase in the level of CPI but such increase will not exceed ten percent (10%) of the level of rent or other charges in the year prior to the effective date of the increase.

Paragraph E of the Prospectus, under the same section and heading, addresses “Additional Considerations” and provides, in relevant part:

Tenants assuming the remaining portion of a rental agreement as prescribed by § 723.059(3), F.S., are hereby notified that upon the expiration of the assumed rental agreement, the Park Owner expressly reserves the right to increase lot rental amount in an amount deemed appropriate by the Park Owner with such increase being imposed in the manner disclosed in the Prospectus delivered to the initial recipient. The increase must be disclosed and agreed to by the purchaser in writing prior to occupancy.

Also on August 8, 2007, Ms. Cashin signed an acknowledgement stating that Tara Woods provided her with an approved Prospectus and that she had not been supplied with the original prospectus delivered to the Seller. That document reads:

The owner of the home I purchased on Lot 143 did not supply me (we) or the Sales Office with the original Prospectus which was delivered to the previous owner(s), per the terms specified in Chapter 723, Florida Statutes, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes.
Tara Woods Community Management furnished me (us) with a current approved Prospectus, which is now being delivered to new residents who purchase new homes. I(we) were informed that it may or may not be the same form as the original Prospectus delivered to the previous owner(s). I(we) the buyer(s) Louella Cashin accept the current Prospectus given to me (us) at the time of the signing of the Lease Agreement to be used as a guide for information purposes.

The final document signed by Ms. Cash-in is her lot rental agreement (Lifetime Lease). Although the date Ms. Cashin signed the Lifetime Lease is unclear — two executed Lifetime Leases were introduced into evidence below — it is clear Ms. Cashin signed a Lifetime Lease. Section C, paragraph 3(C), of the Lifetime Lease addresses factors affecting increases in rent and reads:

Effective the first day of every calendar year the base rent shall be adjusted by the percentage increase in the CPI; however, if the percentage increase in the CPI is less than three percent for any year, the base rent shall be increased by three percent. Alternatively, at the sole discretion of Community Owner, effective the first day of each calendar year, the base rent shall be adjusted to the market rent, but in no year by more than the percentage increase in the CPI plus two percent.

On the last page of the Lifetime Lease, section V, Homeowner Acknowledgement of Understanding, provides: “Homeowner hereby acknowledges that [s]he has read the foregoing Lot Rental Agreement and that prior to executing this Lot Rental Agreement [s]he has had a reasonable opportunity to read and review it....” Finally, immediately preceding the signature lines on the last page of the lease, and typed in bolded, all capital letters appears the following disclosure:

YOU DO NOT HAVE TO ACCEPT THIS RENTAL AGREEMENT.
THIS RENTAL AGREEMENT CONTAINS PROVISIONS WHICH ARE DIFFERENT FROM THE PROSPECTUS DISCLOSURE. THESE DIFFERENCES MAY INCLUDE FEES AND FACTORS WHICH MAY AFFECT THE LOT RENTAL AMOUNT OF OTHER PROVISIONS.
THIS RENTAL AGREEMENT APPLIES ONLY TO THOSE HOMEOWNERS WHO CONSENT TO IT.

B. Lawsuit

On June 24, 2010, almost three years after executing her Lifetime Lease, and after two annual rent increases, Ms. Cash-in filed a two-count complaint against Tara Woods. In count I, Ms. Cashin sought declaratory relief, asking the court to declare the Prospectus the “supreme governing document” such that any provision in Ms. Cashin’s Lifetime Lease which conflicted with the Prospectus was unenforceable. In count II, she claimed damages based on the difference between the rent she paid under the Lifetime Lease and what she would have been obligated to pay under a lease identical to the Seller’s.

Tara Woods answered the complaint and filed affirmative defenses including (1) that Ms. Cashin accepted the Rental Assumption Agreement, Rental Agreement, and Lifetime Lease without question, protest, or dispute; (2) that Ms. Cashin executed an acknowledgment stating that she had not received the Seller’s prospectus and had accepted the current Prospectus; (3) that Ms. Cashin voluntarily agreed to the Lifetime Lease which includes conspicuous language indicating that it was optional; and (4) that Ms. Cashin waived any claim asserting an entitlement to a different rental agreement by her voluntary execution of the Lifetime Lease and the thirty-four-month period in which it had governed the parties’ relationship.

C. Judgments

Following an unsuccessful mediation, the matter went to nonjury trial on May 27, 2011. On January 30, 2012, the court issued its final judgment, concluding in pertinent part:

Assuming ... a prospectus can be amended by attaching a rental agreement as an exhibit with provisions which conflict with those in the prospectus, as was the situation in this case, the prospectus, as amended, the disclosures made, and the manner in which it is presented to prospective purchasers of existing homes, must, at a minimum, in order to comply with the full and fair disclosure requirements set forth in Chapter 723, Florida Statutes, clearly inform [Ms. Cashin] of her rights under Fla. Stat. 723.059 and choice to enter into a lot rental agreement on the terms and conditions consistent with her Seller’s prospectus. On the facts of this case, [Ms. Cashin] was not given that disclosure and choice. Here, [Ms. Cash-in] was not even provided with a copy of the optional lease she had the right to elect to enter into and informed of the amount of the base rent, if different, she would have to pay under that option. [Ms. Cashin] did not voluntarily consent to the Lifetime Lease and waive her rights under Florida Statute 723.59(3) & (4). Instead, the Lifetime Lease was simply imposed on [Ms. Cashin] by [Tara Woods] by presenting her with only with [sic] that lease, with the confusing and conflicting language used in the documents prepared by [Tara Woods], and presented to [Ms. Cashin], without giving her any meaningful understandable choice. In order to have a valid waiver, there must be a voluntary and intentional relinquishment of a known right.
ORDERED AND ADJUDGED, [Ms. Cashin] is entitled to the benefits provided by Florida Statute 723.59(3) & (4), to rely on the terms and conditions of her Seller’s prospectus, and to have the increase in her annual rent, after expiration of the assumed rental agreement of her Seller, imposed in a manner consistent with the initial prospectus given to her Seller, and if she chooses, to a lot rental agreement in accordance with those terms, restorative to the date of her purchase, together with damages equal to the amounts paid by [Ms. Cash-in] in excess of the amounts so determined, and prejudgment interest thereon.

Thereafter, the court entered its supplemental final judgment reflecting that Ms. Cashin had elected to rescind her Lifetime Lease pursuant to the final judgment, which “provided for an election by [Ms. Cashin] to rescind her [Lifetime Lease] and, if she elected to rescind, for damages equal to the amounts paid ... in excess of the amount payable based on the terms of her seller’s prospectus and lease.”

II. Discussion

In a declaratory judgment action, this court defers to the circuit court’s findings of fact, provided they are supported by competent, substantial evidence. See Fortune v. Hutchinson, 20 So.3d 476, 477 (Fla. 2d DCA 2009). However, the circuit court’s conclusions of law, when based on its interpretation of statutes and written agreements and contracts, are reviewed de novo. See J.S.U.B., Inc. v. U.S. Fire Ins. Co., 906 So.2d 303, 306 (Fla. 2d DCA 2005).

A. Relief requested

Although not raised by Tara Woods on appeal, we must note that the circuit court’s final and supplemental final judgments grant relief not requested by Ms. Cashin — the right to rescind her Lifetime Lease. Nothing in our record indicates that a motion for supplemental relief was filed. See § 86.061, Fla. Stat. (2011). Further, to the extent Ms. Cashin’s declaratory action seeks, in part, a determination that she had a right to rely on the rent-increase provision in the Prospectus she was given, the court so determined. However, the specific prayer of the declaratory action was effectually denied. The court did not find “that the Prospectus is the supreme governing document and that anything contained in [Ms. Cashin’s] lease that is contrary to the Prospectus is unenforceable” or “that the minimum increase of 3% contained in the [Lifetime Lease] is unenforceable because it conflicts with [Ms. Cashin’s] Prospectus.”

Nonetheless, because Ms. Cashin was “entitled to a judicial determination of the rights at issue,” see Meadows Cmty. Ass’n., Inc. v. Russell-Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006), the court determined that Tara Woods had specific obligations pursuant to section 728.059 of the Act, which were not met. The court further found that the manner in which rent was increased under the Lifetime Lease conflicted with the manner in which rent was increased under the Prospectus. Based on these determinations, the court granted Ms. Cashin the right to rescind her Lifetime Lease.

B. Issues raised on appeal

1. Statutory interpretation

The first three points on appeal address the circuit court’s interpretation of the Act as reflected in the final judgment. - It is upon these issues that the case presented is one of first impression. Because of this, we have endeavored to discuss each relevant provision of the documents signed by Ms. Cashin, as well as the relevant statutes. In doing so, it became apparent that the circuit court misinterpreted the Act such that the court elevated the Prospectus beyond the status intended by the legislature, affording it greater weight than the Lifetime Lease.

The Prospectus, whether the Seller’s or Ms. Cashin’s, “is fundamentally a disclosure document.” Vill. Park, 506 So.2d at 428. This is made abundantly clear by the language of the Act. Section 723.011, titled “Disclosure prior to rental of a mobile home lot; prospectus, filing, approval,” states that “[t]he prospectus ... together with its exhibits is a disclosure document intended to afford protection to homeowners and prospective homeowners in the mobile home park. The purpose of the document is to disclose the representations of the mobile home park owner concerning the operations of the mobile home park.” § 723.011(3); see Sun Coast Int'l., Inc. v. Dep’t. of Bus. Reg., 596 So.2d 1118, 1120 n. 1 (Fla. 1st DCA 1992) (“The purpose of the prospectus is to disclose to the tenants certain information regarding the operation of the mobile home park .... ”); see also Vill. Park, 506 So.2d at 428 (listing the statutory disclosure requirements). Section 723.012, detailing the requirements of the prospectus, mandates that the prospectus include, “in conspicuous type,” the admonition that “[t]he statements contained herein are only summary in nature. A prospective lessee should refer to all references, all exhibits hereto, the contract documents, and sales materials.” § 723.012(1)(b)(2) (emphases added). In addition, a “prospectus must be delivered prior to the creation of an enforceable rental agreement.” Fed’n. of Mobile Home Owners of Fla., Inc. v. Fla. Manufactured Hous. Ass’n., Inc., 683 So.2d 586, 588 (Fla. 1st DCA 1996). Quite clearly the legislature did not intend the prospectus to create rights or duties not already imposed by the Act, nor did it intend the prospectus to be a contract. The Department’s rules align with our reading of the Act. See Fla. Admin. Code R. 61B-31.001(1) (“The prospectus shall clearly describe all matters required by Chapter 723, Florida Statutes, and shall not contain other information except as permitted by the [Department] to fully and fairly disclose all aspects of the park and the offer”)- The Act makes the prospectus “part of the contract between the mobile home park owner and the mobile home owner,” Fed’n. of Mobile Home Owners, 683 So.2d at 591, but not an independent contract and certainly not the “supreme governing document.”

As a result, Ms. Cashin has no independent rights under the Prospectus. Her rights are provided by the Act and the Lifetime Lease. Thus, one of the questions before us is whether the Act requires Tara Woods, as the mobile home park owner, to “clearly inform” a resale home buyer of her rights under section 723.059 of the Act.

As a statutory basis for her lawsuit, Ms. Cashin relies on section 723.059(3). Section 723.059, titled “Rights of purchaser,” defines the rights of a resale purchaser within a mobile home park:

(3) The purchaser of a mobile home who becomes a resident of the mobile home park in accordance with this section has the right to assume the remainder of the term of any rental agreement then in effect between the mobile home park owner and the seller and shall be entitled to rely on the terms and conditions of the prospectus or offering circular as delivered to the initial recipient.
(4) However, nothing herein shall be construed to prohibit a mobile home park owner from increasing the rental amount to be paid by the purchaser upon the expiration of the assumed rental agreement in an amount deemed appropriate by the mobile home park owner, so long as such increase is disclosed to the purchaser prior to his or her occupancy and is imposed in a manner consistent with the initial offering circular or prospectus and this act.

§ 723.059(3), (4).

In the final judgment, the circuit court interpreted section 723.059 not as a statute delineating Ms. Cashin’s rights but as a statute imposing duties upon Tara Woods. In doing so, the court read section 723.059 as requiring Tara Woods to (1) “clearly inform [Ms. Cashin] of her rights under Fla. Stat. 723.059 and her prospectus”; (2) “provide her with a copy of the optional lease she had the right to elect to enter into”; and (3) inform Ms. Cashin “of the amount of the base rent, if different, she would have to pay under that option.” Tara Woods argues that these obligations are not part of the Act but are creations of the circuit court.

Both parties agree that Ms. Cashin exercised her right to assume the remaining term of her Seller’s rental agreement and all rights provided thereunder, in accordance with section 723.059(3). They also agree that pursuant to section 723.059(4), Ms. Cashin had a right to be informed of any rental increase prior to her occupancy. That is, Tara Woods had a duty to disclose any rental increase to Ms. Cashin prior to her occupancy. Additionally, any disclosed rent increase was required to be imposed “in a manner consistent with” the Prospectus. § 723.059(4).

Here, although the Prospectus provided to Ms. Cashin was not identical to the prospectus provided to her Seller, it is undisputed that it contained an identical “Increases in Lot Rental Amount” provision. As a result, Ms. Cashin was entitled to rely on that provision of her Prospectus. The Prospectus provides that a rent increase is subject to several factors, one of which is CPI. Other factors affecting the lot rental amount include “[t]he imposition of and/or increases in special use fees, government and utility charges, pass-through charges, recouped costs, and pass-on charges.” Ms. Cashin’s Lifetime Lease provides that rent increases are affected by CPI or market rent. The manner in which rent may be increased is affected, in both instances, by CPI — making the provisions consistent. Further, the Department approved the Lifetime Lease executed by Ms. Cashin as part of its statutory duties pursuant to the Act. See § 723.011(l)(d) (tasking the Department with approving amendments to prospectuses and their attachments); § 723.012(14) (requiring lease agreements to be attached to prospectuses). Thus, Ms. Cashin’s rights under section 723.059, as applicable to the facts of this case, were the right to assume the remaining term of her Seller’s lease and rights thereunder and the right to rely on the terms of her Seller’s prospectus.

To the extent the court’s order requires Tara Woods to provide a copy of a seller’s prospectus to a resale home buyer, that is error. Section 723.011(2) requires the mobile home park owner to provide a copy of an approved prospectus, along with all attachments thereto, to each prospective lessee. See Fed’n. of Mobile Home Owners, 683 So.2d at 593 (“The mobile home park owner is statutorily obligated to provide tenants with an ‘approved’ prospectus, and cannot enter into a binding rental agreement until after providing the prospective tenant with an ‘approved’ prospectus”); see also § 723.014(1) (“If a prospectus ... was not provided to the prospective lessee prior to execution of the lot rental agreement ... the rental agreement is voidable by the lessee until 15 days after the receipt by the lessee of the prospectus.... ”). Section 723.059(3) states only that a resale home buyer “shall be entitled to rely on the terms and conditions of the [seller’s] prospectus”; it imposes no affirmative duty upon the mobile home park owner. Section 723.059(4) imposes a disclosure obligation on the mobile home park owner as to increases in rent and requires that an increase conform with the manner prescribed in the seller’s prospectus. It does not impose an affirmative duty to provide the resale home buyer with the seller’s prospectus.

The second duty imposed by the court is to provide Ms. Cashin with a copy of the optional lease she had the right to elect to enter into. Nothing in the Act supports this reading of section 723.059. Cf. § 627.727(1), Fla. Stat. (2011) (requiring insurance policies to include certain coverage unless insured rejects in writing the coverage such that insured has the “privilege of rejecting” it). Nor does the Act support the court’s conclusion that Tara Woods was required to inform Ms. Cashin of the difference in lot rental amount between the Lifetime Lease and the Seller’s lease. See Wexler v. Rich, 80 So.3d 1097, 1101 (Fla. 4th DCA 2012) (concluding bank was not required to explain significance between types of account ownership where account agreements contained options); Beckett v. Dep’t. of Fin. Servs., 982 So.2d 94, 101 (Fla. 1st DCA 2008) (“If the [legislature had intended to require particular means or procedures for obtaining informed consent, it could have done so”).

In reaching these conclusions, we reiterate what Florida courts have long held: the legislature is presumed to understand the meaning of the words it chooses, Overstreet v. State, 629 So.2d 125, 126 (Fla.1993), and those words are to be ascribed their plain and ordinary meaning, see Velez v. Miami-Dade Cnty. Police Dep’t., 934 So.2d 1162, 1164-65 (Fla.2006). Here it is obvious that the legislature understands the differences between rights and obligations; section 723.022 defines the mobile home park owner’s general obligations and sections 723.054, 723.055, and 723.059 define various rights of the mobile home owner. And because the legislature used words with clear meanings — rights, obligations, disclose, and provide — the courts “may not invade the province of the legislature and add words which change the plain meaning of the statute.” Metro. Dade Cnty. v. Bridges, 402 So.2d 411, 414 (Fla.1981). Nor may the courts otherwise extend or modify the words or their meanings. Velez, 934 So.2d at 1164-65.

Because we do not read the circuit court’s order as requiring a mobile home park owner to provide legal advice regarding the mobile home owner’s rights, we need not address that issue. We note, however, that by requiring every prospectus to include, “in conspicuous type,” the admonition to “seek legal advice” should any questions arise regarding a mobile home owner’s legal rights, the legislature clearly contemplated a mobile home owner’s potential need for such advice. See § 723.012(1).

2. Waiver

Tara Woods’ final argument on appeal addresses the circuit court’s conclusion that Ms. Cashin did not voluntarily consent to the Lifetime Lease and did not waive her statutory rights. As discussed above, the circuit court granted Ms. Cashin rights and extended Tara Woods’ obligations beyond those provided by the Act. By doing so, the court complicated what would otherwise have been a simple waiver case.

Because the circuit court’s findings of fact are supported by competent, substantial evidence in the record, and are largely included in the background herein, we do not address them.

Although not conceding that Ms. Cashin had rights beyond those delineated by the Act, Tara Woods contended in its affirmative defenses and at trial that Ms. Cashin had waived any rights she may have had with regard to the terms of her Lifetime Lease. And as Lifetime Leases governed by the Act are contracts like any other, general contract law applies. See Miren Int’l. Lodging Corp. v. Manley, 982 So.2d 1203, 1204 (Fla. 5th DCA 2008). To prove waiver, Tara Woods was required to establish “the existence at the time of the waiver of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage.” See Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007) (citing Arbogast v. Bryan, 393 So.2d 606, 608 (Fla. 4th DCA 1981)). Knowledge of the right is critical. Id.

As discussed above, for purposes of this appeal, the only statutory right Ms. Cashin had was the right to rely on the terms of her Seller’s prospectus. And again, it is undisputed that the relevant provisions pertaining to rental increases in both the Seller’s prospectus and the approved Prospectus given to Ms. Cashin contained identical language.

As to Ms. Cashin’s “actual or constructive knowledge” of her right, “Florida law has long held that a party to a contract is ‘conclusively presumed to know and understand the contents, terms, and conditions of the contract.’ ” Rocky Creek Ret. Props., Inc. v. Estate of Fox, 19 So.3d 1105, 1108-09 (Fla. 2d DCA 2009) (quoting Stonebraker v. Reliance Life Ins. Co. of Pittsburgh, 123 Fla. 244, 166 So. 583, 584 (1936)). “Florida adheres to the principle that a ‘party has a duty to learn and know the contents of a proposed contract before [s]he signs’ it.” Wexler, 80 So.3d at 1100-01 (quoting Mfrs.’ Leasing, Ltd. v. Fla. Dev. & Attractions, Inc., 330 So.2d 171, 172 (Fla. 4th DCA 1976)). Therefore, a party is “‘assumed to have known, and [is] charged with the knowledge, of the provisions incorporated into the contract [she] executed.’ ” Breckenridge v. Farber, 640 So.2d 208, 211 (Fla. 4th DCA 1994) (quoting Marthame Sanders & Co. v. 400 West Madison Corp., 401 So.2d 1145, 1146 (Fla. 4th DCA 1981)). “[The] alleged inability to understand the Agreement does not vitiate her assent to that Agreement in the absence of some evidence that she was prevented from knowing its contents.” Rocky Creek, 19 So.3d at 1108-09.

Citing section 723.059(8), Ms. Cashin’s Prospectus expressly notified her “that upon the expiration of the assumed rental agreement,” Tara Woods reserved the right to increase rent “with such increase being imposed in the manner disclosed in the Prospectus delivered to the initial recipient.” Although the Prospectus does not indicate it, this language is a quote from section 723.059(4). As a result, Ms. Cashin was put on notice that any rent increase subsequent to the expiration of her Rental Assumption Agreement would be made in a manner consistent with the terms of the Prospectus. And nothing in sections 723.059(3) or (4) requires a verbal explanation of the resale buyer’s rights. Therefore, the circuit court’s conclusion that “the right to rely on her Seller’s prospectus” was not disclosed to Ms. Cash-in is in error. This error is compounded by the court’s conclusion that Ms. Cashin did not voluntarily consent to the terms of the Lifetime Lease and waive her right under section 723.059(3).

We reiterate that the Department approved not only the Prospectus provided to Ms. Cashin but also the Lifetime Lease attached to it. The final page of that Lifetime Lease expressly, unambiguously, and conspicuously advised Ms. Cashin that she did not have to accept the Lifetime Lease, that it only applied to those homeowners who consented to it, that the Lifetime Lease contained provisions different from those of the Prospectus, and that those differences “may affect the lot rental amount.” The Lifetime Lease also provides that “[t]he relationship between Homeowner and Community Owner shall be subject to the terms of Chapter 723, Florida Statutes.” Moreover, by reading the terms of the Rental Assumption Agreement and those of the Lifetime Lease it is clear that the rent provisions differed in a minor way not impacting the overall manner in which rent increases could be imposed.

“Freedom of contract ‘includes freedom to make a bad bargain.’ ” Wexler, 80 So.3d at 1100 (quoting Posner v. Posner, 257 So.2d 530, 535 (Fla.1972)). Ms. Cashin does not contend she had no opportunity to read the documents she signed. In fact, testimony at trial supports the finding that Ms. Cashin signed the Lifetime Lease on August 29, 2007, twenty-one days after she first received it. Testimony also established that Ms. Cash-in did not ask questions about the documents she received and signed. And Ms. Cashin does not argue that she was under pressure to execute the documents. Ms. Cashin’s signatures on each of the pertinent documents, but particularly on the Lifetime Lease, evince her intention to relinquish her right and consent to the Lifetime Lease.

III. Conclusion

Tara Woods complied with its statutory obligations to Ms. Cashin, a resale home buyer, under Florida’s Mobile Home Act. The documents presented to and executed by Ms. Cashin met the requirements of the Act. As a result, and notwithstanding the circuit court’s erroneous interpretation of the Act, the issue in this case is simply one of waiver. The rent increase between Ms. Cashin’s assumption of the Seller’s lease and her execution of the Lifetime Lease was clearly disclosed, and the Lifetime Lease conspicuously advised that it was optional. Ms. Cashin was in no sense pressured into signing the Lifetime Lease; she took three weeks to review and execute it. She had the time, and indeed was admonished, to seek legal advice should she have any questions. Ms. Cashin was specifically advised of the matter about which she now complains, and she acknowledged her awareness in writing. Ms. Cashin voluntarily consented to the Lifetime Lease. For these reasons, we reverse the final judgment and supplemental final judgment and remand with directions that judgment be entered in favor of Tara Woods.

Reversed and remanded with instructions.

KHOUZAM, J., and MAKAR, SCOTT D., Associate Judge, Concur.

      . Ms. Cashin’s lot rental agreement is referred to as a Lifetime Lease because the term of the agreement is the lifetime of the Homeowner and the lease is to remain in effect until the Homeowner’s or Homeowner’s spouse’s death or until the sale of the home or transfer of title to the home.


author: EMAS, J. SCHWARTZ, Senior

text:
    MOTORS, PUMPS & ACCESSORIES, INC., et al., Appellants, v. MIAMI MEDLEY BUSINESS & INDUSTRIAL, LLC., Appellee.
    No. 3D12-197.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Rehearing Denied June 26, 2013.

      Marlene S. Reiss, Miami, for appellants.
    Steven Bruce Sprechman and Stacey S. Fisher, Miami, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Motors, Pumps & Accessories, Inc. (“MPA”) and Aris Paula (“Paula”), appeal an order denying their motion to set aside a default judgment. For the reasons that follow, we reverse.

MPA leased office/warehouse space for $1950 per month from Miami Medley Business & Industrial, LLC (“Miami Medley”) pursuant to a lease agreement dated July 3, 2007. Paula personally guaranteed the lease. The parties signed a lease renewal agreement on July 16, 2008, extending the lease an additional year, with monthly rent payments of $2050 beginning August 1, 2008. On June 16, 2009, Miami Medley sued MPA and Paula, asserting MPA had failed to pay rent due and owing. Through counsel, MPA and Paula filed an answer and affirmative defenses to the complaint.

For our purposes, the relevant litigation events took place beginning May 27, 2010, when the court entered an order setting the case for trial and ordered the parties to mediation, which was scheduled to take place on August 10, 2010. When no one appeared at the mediation on behalf of MPA and Paula (including their counsel), Miami Medley filed a motion for sanctions, seeking, inter alia, an order striking MPA and Paula’s pleadings and a default judgment against them. The motion for sanctions was set for a non-evidentiary hearing on October 7, 2010, but neither MPA/Paula, nor their attorney, attended the hearing and no response to the motion for sanctions was filed. On October 18, 2010, the trial court granted the motion for sanctions and default, citing the failure of MPA/Paula (and their counsel) to attend mediation. The order provided that the defendants could purge the default within fifteen days of the order by showing good cause in writing to be filed with the court.

Many months later, on June 2, 2011, the trial court entered default final judgment against MPA and Paula, in the amount of $32,671, to be recovered from both Defendants jointly and severally. On June 28, 2011, counsel for MPA and Paula moved to withdraw, citing irreconcilable differences.

On August 5, 2011, a new attorney filed, on behalf of MPA and Paula, a verified emergency motion to set aside the default judgment. As grounds for setting aside the default judgment, MPA and Paula asserted the following under oath:

— Mr. Paula was never advised by his attorney of the mediation, and was unaware that sanctions and a default judgment had been entered;
— Miami Medley had perpetrated a fraud on the court by filing an affidavit which intentionally misrepresented that the amount owed was $27,774.50, when the documents attached to the complaint showed otherwise and that, at most, the amount owed was $4300;

The motion alleged that the former attorney’s misconduct in failing to attend mediation and other hearings, and failure to notify his clients of the mediation and other hearings, should not be imputed to the clients, and that the court failed to consider the Kozel factors before striking their pleadings and granting the default judgment. Finally, the motion alleged that the court improperly entered final judgment on a claim of unliquidated damages without first conducting an evidentia-ry hearing.

At the hearing on the motion to set aside the default judgment, the trial court told counsel for MPA and Paula:

I am going to deny your motion to vacate. I find that the defense attorneys were properly noticed throughout the litigation. And they received a copy of the final judgment and did not even move to withdraw until more than 20 days after. You have done as good a job as you can with what—

When counsel further argued about the amount of damages, the court said “... your client unfortunately is way, way beyond out of court,” and “[y]ou are trying to represent your client the best you can with what you have, which is basically, unfortunately, prior attorneys may need to be liable for this.” The court denied the motion to set aside the default judgment, and this appeal followed.

MPA and Paula contend the trial court grossly abused its discretion in denying the motion to vacate the default judgment under these circumstances. Further, they argue the court erred in entering final default judgment without an evidentiary hearing as to the unliquidated damages. Miami Medley asserts the trial court did not abuse its discretion because there was a repeated pattern of misconduct, Kozel does not apply, and the court made specific findings in its order granting sanctions.

We review the denial of a motion to vacate default judgment for a gross abuse of discretion. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007).

In Kozel, 629 So.2d 817 (Fla.1993), the Florida Supreme Court set forth a “meaningful set of guidelines to assist [trial courts] in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience.” Id. at 818. The Kozel court reasoned that the purpose of encouraging the orderly movement of litigation “usually can be accomplished by the imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible for the [misconduct.]” Id. Examples, “in those situations where the attorney, and not the client, is responsible for the error,” include “fine, public reprimand, or contempt order” Id. The court then set forth the factors to be considered by a trial court when determining whether dismissal with prejudice is appropriate:

1) whether the attorney’s disobedience was willful, delibex-ate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noneompliance; and 6) whether the delay created significant problems of judicial administration.

Id.

Importantly, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id. Miami Medley argues that Kozel is inapplicable because the trial court struck the pleadings and entered a default judgment, rather than (as in Kozel) a dismissal of plaintiffs case with prejudice. We reject this argument. The striking of pleadings and the entry of a default judgment is perhaps the severest sanction which can be imposed upon a defendant. It prohibits the defendant from defending the merits of the claim, leaving only the determination of damages. We previously have held that Kozel applies under these circumstances. See Buroz-Henriquez v. De Burn, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009) (holding “[i]t is well established that before a court may dismiss a cause or default a party as a sanction, it must first consider each of the [Kozel factors] ... and set forth explicit findings of fact in the order imposing the sanction.”). We repeatedly have reversed final default judgments and orders striking pleadings in similar situations where the trial court failed to make findings of fact in its order as set forth in Kozel. See e.g., Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366 (Fla. 3d DCA 2011); Coconut Grove Playhouse, Inc. v. Knight-Ridder, Inc., 935 So.2d 597 (Fla. 3d DCA 2006). See also Nat’l City Bank v. White, 112 So.3d 663 (Fla. 4th DCA 2013) (reversing order of dismissal where the trial court failed to consider the Kozel factors and where the record was insufficient to support a sanction against the client.)

Contrary to the position taken by Miami Medley, the order granting the motion for sanctions for defendant’s failure to attend mediation contains no acknowledgment, discussion or analysis of any of the Kozel factors. The order states merely that the motion is granted because defendants failed to appear at a duly scheduled mediation, of which defendants’ counsel was given notice. When presented with defendants’ sworn motion, alleging that the failure to attend mediation was the fault of the attorney and that the client was never made aware mediation had been ordered and scheduled, the trial court grossly abused its discretion in denying the motion to set aside the default without considering whether the default was improvidently granted and without addressing the Kozel factors.

In Cruz v. Caribbean Spring Village, 944 So.2d 1161, 1162 (Fla. 3d DCA 2006), we affirmed an order granting a client’s motion to vacate and set aside a default judgment where, similarly, “there was ample evidence to find that [the client] was not involved in any way in disobeying” court orders. See also Yusem v. Butler, 683 So.2d 1170 (Fla. 4th DCA 1996) (reversing denial of motion to vacate default where failure of client to answer complaint was excusable neglect due to abandonment by counsel); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971) (reversing denial of motion to vacate final judgment entered where counsel failed to attend pretrial conference, finding client should not be punished for such failure.). At the very least, the trial court must consider the Kozel factors before denying a motion to vacate the default under these circumstances, and may conduct an evidentiary hearing to determine the veracity of the defendants’ allegations. See Bennett v. Tenet St. Mary’s Inc., 67 So.3d 422 (Fla. 4th DCA 2011) (reversing trial court’s refusal to set aside a dismissal where it failed to set forth Kozel findings, and remanding for the court to do so).

We also conclude that the trial court erred in failing to conduct an eviden-tiary hearing before entering final judgment on the amount of damages.

[I]t is well settled in Florida that a default judgment only admits to a plaintiffs entitlement to liquidated damages.’ Damages are liquidated when the amount to be awarded can be determined with exactness from a pleaded agreement between the parties, by an arithmetical calculation, or by application of definite rules of law.

DYC Fishing, Ltd. v. Martinez, 994 So.2d 461, 462-63 (Fla. 3d DCA 2008) (quoting U.S. Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So.2d 169, 171 (Fla. 3d DCA 1996)).

We therefore reverse and remand with directions to vacate the final default judgment and for further proceedings consistent with this opinion.

ROTHENBERG, J., concurs.

SCHWARTZ, Senior

Judge, dissenting.

I believe that:

a) The trial court did not abuse its discretion in the ruling under review on the basis of a clear showing that the appellant had violated the rules of court in several significant respects. The fact that this occurred through, and as a result of the negligence of its chosen attorney (who also failed to preserve its position below) makes no difference. In the end, that negligence is attributed only to the client and certainly not to the appellee, much less to the trial court. See Herrick v. Southeast Bank, 512 So.2d 1029 (Fla. 3d DCA 1987); and

b) Returning the case to the court below for the purely formulaic purpose of expressing in writing what we already know to be true is no more than judicial “wheel spinning” which we should avoid, not encourage. See Lightsey v. State, 112 So.3d 616 (3d DCA 2013).

      . A notice of the August 10th mediation conference was served on counsel for all parties on June 30, 2010.

      . The principal amount claimed by Miami Medley in its "affidavit of proof” from Ralph Merritt, Jr., plus interest, costs and fees. Interestingly, the "affidavit of proof" is notarized, but not signed by Merritt.

      . A stipulation for substitution of counsel was filed on October 31, 2011.

      . Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).

      .A review of Miami Medley’s motion for sanctions, and the court’s order granting the motion, reveals that the singular basis for sanctions was defendants’ failure to attend the mediation.

      . Kozel rejected the argument that, because the attorney acted as an agent of the client, the trial court properly sanctioned the client for the alleged misconduct of their counsel:
      Dismissal “with prejudice” in effect disposes of the case, not for any dereliction on the on the part of the litigant, but on the part of his counsel. We are not unmindful of the rule that counsel is the litigant’s agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal "with prejudice” would in effect punish the litigant instead of his counsel.

        Kozel, 629 So.2d at 818 (quoting Beasley v. Girten, 61 So.2d 179, 181 (Fla.1952)).


author: MARSTILLER, J.

text:
    DANNY’S BACKHOE SERVICE, LLC, Appellant, v. AUTO OWNERS INSURANCE COMPANY and Ring Power Corporation, A Florida corporation, Appellees.
    No. 1D12-5142.
    District Court of Appeal of Florida, First District.
    May 30, 2013.
    Rehearing Denied July 10, 2013.

      John S. Kalil of Law Offices of John S. Kalil, P.A., Jacksonville and John E. Spiller of John E. Spiller, P.A., Kissimmee, for Appellant.
    Brett B. Little of Carter, Drylie & Little, P.A., Gainesville, for Appellees.
   MARSTILLER, J.

Appellant, Danny’s Backhoe Service, LLC (“Danny’s Backhoe”), appeals a final summary judgment declaring that Appel-lee, Auto Owners Insurance Company (“Auto Owners”), has no duty to defend Danny’s Backhoe in a tort suit brought by Appellee, Ring Power Corporation (“Ring Power”), for damage to its equipment, and that Auto Owners did not waive the right to deny coverage. Finding no error by the trial court in interpreting either the insurance contract or the pertinent statute, we affirm.

The relevant facts are not in dispute. Auto Owners issued Danny’s Backhoe an insurance policy providing, inter alia, commercial general liability (“CGL”) coverage and commercial inland marine (“CIM”) coverage for equipment. Ring Power is denoted an “additional insured — lessor of leased equipment” under the CGL portion of the policy. The CIM coverage insures equipment “described in the Declarations under Contractors Equipment.”

On February 8, 2011, Danny’s Backhoe rented a Caterpillar 307C Excavator from Ring Power to remove a customer’s in-ground swimming pool. During the removal, the excavator operator, Danny Smith, ruptured a propane gas tank, causing an explosion and fire that damaged the excavator. Ring Power subsequently sued Danny’s Backhoe claiming $68,437 in damages caused by Smith’s alleged negligence.

Before the accident, the only item listed in the insurance policy under “Contractors Equipment” for CIM coverage was a 2002 John Deere Backhoe. In addition, the policy sets forth the following relevant exclusions from CGL coverage:

2. Exclusions

This insurance does not apply to:

J. Damage To Property
“Property damage” to:
(1) Property you own, rent, occupy or use, including any cost or expense incurred by you or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another’s property;
(2) Property that any of your:
(a) “Employees”;
(b) “Volunteer workers”;
(c) Partners or members (if you are a partnership or joint venture); or
(d) Members (if you are a limited liability company)
own rent, occupy or use. However, this exclusion J.(2), shall not apply to your liability for damage to such property.

When Danny’s Backhoe filed a claim under the policy for the damaged excavator at issue in the Ring Power’s lawsuit, Auto Owners denied coverage and filed a declaratory judgment action alleging the excavator was not covered under the policy, and thus, Auto Owners had no duty to defend Danny’s Backhoe. Granting Auto Owners’ motion for summary judgment, the trial court found:

Since the equipment wasn’t added to the policy prior to the loss it isn’t covered and Auto-Owners has no duty to defend Danny’s or pay any damages, attorneys fees or costs on its behalf.... Exclusion 2 J(l) applies in cases where there is “Property damage to: 1) Property you own, rent, occupy or use ... [.]” It is clear from the record Danny’s rented the equipment and Danny’s is the insured under the policy.... Further, there is no ambiguity between exclusions 2 J(l) and 2 J(2).

In addition, the court concluded Auto Owners had not waived its right to deny coverage, finding that “[a] reservation of rights letter wasn’t necessary because this is clearly a ‘complete lack of coverage claim.’ ”

Appealing the summary judgment, Danny’s Backhoe argues the trial court incorrectly interpreted the insurance policy to exclude coverage for the leased excavator, and erred in concluding that Auto Owners did not waive the right to claim no coverage. We conclude the plain and unambiguous policy language excludes the leased equipment, and that section 627.426(2), Florida Statutes, did not require Auto Owners to provide written notice of reserving its right to assert a coverage defense.

Under the plain language of the policy, CIM coverage extends only to items listed under “Contractors Equipment.” The sole item specified as of February 8, 2011, was a John Deere backhoe. Thus, the excavator was excluded from CIM coverage. As to CGL coverage, although Ring Power is an additional named insured, paragraph 2 J. (1) under CGL coverage exclusions unambiguously states that damage to “property you own [or] rent” is not covered. Thus, whether applied to Danny’s Backhoe or to Ring Power as the named insured, the excavator is excluded from CGL coverage. Danny’s Backhoe argues that paragraphs 2 J. (1) and 2 J. (2) create an ambiguity as to coverage that should operate in its favor. We disagree. Paragraph 2 J. (2) excludes coverage for damage to “Property that any of your (a) ‘Employees’; (b) ‘Volunteer Workers’; (c) Partners or Members (if you are a partnership or joint venture); or (d) Members (if you are a limited liability company) own, rent, occupy or use. However, this exclusion J. (2), shall not apply to your liability for damage to such property.” (italics added.) It is clear in that paragraph 2 J. (1) excludes coverage for damage to property leased by the insured, while paragraph 2 J. (2) excludes coverage for damage to property leased by the insured’s employees, etc., unless the insured is liable for damage to that property. The two provisions are independent of each other, are entirely consistent with each other, and are not ambiguous.

Turning to whether Auto Owners waived its right to deny coverage, section 627.426, Florida Statutes, provides, in pertinent part:

(2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless:
(a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery[.]

§ 627.426(2)(a), Fla. Stat. (2010). As the Florida Supreme Court explained in AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998 (Fla.1989), the notice requirement only applies where coverage exists under an insurance policy, but the insurer seeks to assert a coverage defense. “[T]he term ‘coverage defense,’ as used in section 627.426(2), means a defense to coverage that otherwise exists. We do not construe the term to include a disclaimer of liability based on a complete lack of coverage for the loss sustained.” Id. at 1000. Thus, “failure to comply with the requirements of the statute will not bar an insurer from disclaiming liability ... where the coverage sought is expressly excluded or otherwise unavailable under the policy[.]” Id. Here, Auto Owners claimed a “complete lack of coverage” based on express policy exclusions. Therefore, under Block Marina, failure to give Danny’s Backhoe written notice of reservation of rights did not preclude Auto Owners from denying coverage for the damaged excavator.

AFFIRMED.

CLARK and SWANSON, JJ., concur.

      . We review the trial court’s interpretation of the policy and statute de novo. See Chandler v. Geico Indem. Co., 78 So.3d 1293, 1296 (Fla.2011) (insurance contract interpretation); J.M. v. Gargett, 101 So.3d 352, 356 (Fla.2012) (statutory interpretation).