author: FERNANDEZ, J.

text:
    MARINE RESOURCE DEVELOPMENT FOUNDATION, INC., a nonprofit corporation, Appellant, v. Michael MOORE, Esq., Erin Ackor, and Moore & Company, P.A., Appellees.
    No. 3D11-1218.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Rehearing Denied Sept. 30, 2013.

      David Stone, Weston, for appellant.
    Schwed Kahle, & Jenks, P.A. (Palm Beach Gardens), Hubert S. McGinley and Douglas J. Kress, for appellees.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

Marine Resources Development Foundation, Inc., etc. (“Foundation”), appeals the trial court’s entry of final summary judgment in favor of appellees Moore & Company, P.A. (“Firm”), Michael Moore, Esq. (“Moore”), and Erin Ackor, Esq. (“Ackor”) (collectively, “defendants”) involving claims for professional negligence. We reverse the final summary judgment because genuine issues of material fact exist regarding the sufficiency and clarity of the Firm’s legal advice to the Foundation, and whether its advice affected the Foundation’s decision to continue construction of the subject vessel.

This case arises out of the Firm’s representation of the Foundation, a non-profit entity engaged in marine education and research. Under its “donated boats program,” the Foundation raises funds by acquiring boats for below market-value, and then restores/repairs them and resells them for a profit. At the center of this dispute is a 120-foot, 1988 model aluminum yacht, the “Cajun Princess,” which the Foundation purchased in May of 2004. The Foundation received an initial loan for $4.5 million to cover the costs of purchase, restoration, and other fees from David Bo-gle, a private investor. The Foundation initially planned to refurbish the yacht so it could be sold for an estimated $7-9 million on the open market.

Plans for the project changed when, during the course of refurbishment, the marine architect employed by the Foundation discovered extensive corrosion on the boat’s superstructure. The Foundation then decided to rebuild the yacht to a more modern tri-deck configuration, which resulted in higher projected costs.

Another change in plans occurred after the yacht lost its coastwise privileges in the United States because it was flagged as a foreign vessel. Consequently, the architect advised the Foundation that it would be more prudent to deconstruct and re-build the boat instead, and then pursue a new build determination (“NBD”) from the Naval Vessel Documentation Center (“NVDC”). This would nearly double the Foundation’s projected costs, but would substantially increase its value, which would allow the vessel to potentially be sold for up to $18 million.

Acting on this recommendation, the Foundation retained the Firm to obtain coastwise privileges for the yacht. Ackor, who was an associate at the Firm, worked with Moore, the Firm’s managing partner, on the file. The Firm, at the Foundation’s request, pursued a NBD to obtain the coastwise privileges. Ackor e-mailed the governing statute, 46 C.F.R. § 67.3 (2005), which states the standard for obtaining a NBD, to Rick Pineiro, the Vice President of the Foundation. Under the standard followed by NVDC when it grants “new vessel” status — which is notoriously difficult to meet — a “new vessel” is one which:

1) The hull and superstructure of which are constructed entirely of new materials; or
2) Which is constructed using structural parts of an existing vessel, which parts have been torn down so that they are no longer advanced to a degree which would commit them to use in the building of a vessel.

See 46 C.F.R. § 67.3 (2005) (emphasis added).

In her e-mail, Ackor also informed Pi-neiro that the Coast Guard’s “primary concern and critical factor when reviewing the applications [for NBD] is the extent to which the vessel was torn down to mere parts and then rebuilt.” Finally, it listed the documentation required to prove compliance with the statute and to be submitted with the NBD application.

Ackor sent the NBD application and documents to the NVDC. The Foundation included in its application a written statement and inboard profile that described the extent to which materials from the existing vessel were used in the construction, along with a sketch that identified, where practicable, the components of the old vessel. In other words, the Foundation’s written statement and inboard profile listed certain parts of the vessel that had not been completely torn down but rather re-used with extensive local repair.

The NVDC thereafter informed the Firm that the submission would not meet the definition of “new vessel” under 46 C.F.R. § 67.3. Ackor discussed the problems with the NBD application with Pinei-ro. Ackor also sent an email in which she requested more detailed reports and photos of the yacht so that further action could be taken on the NBD application. Pineiro testified that the Firm had a “very positive approach to the whole thing” with regard to whether a NBD would ultimately be obtained.

The Foundation held a board meeting in January of 2006 to decide whether to end the rebuilding of the yacht or continue with the project. Pineiro, based on his belief that a NBD certification would be forthcoming, told the Board that the vessel was going to be “newly titled” and would, therefore, be more valuable if the Foundation completed the rebuild. Nevertheless, the Foundation requested that Pineiro cease work on the boat. Thereafter, Pinei-ro and Ron Hertel, a private investor, entered into a contract for Hertel to buy the yacht. Pineiro also secured an investment from Hertel in order to continue the yacht rebuild according to the new contract’s specifications. However, Hertel ultimately decided not to close on the contract, partly because he learned that the Cajun Princess was not a new vessel.

On November 20, 2006, Ackor sent a formal application for a NBD to the NVDC. However, the application was rejected in December of 2006. The NVDC noted that while the vessel did undergo substantial modifications, some parts of the boat’s hull were still intact and never torn down, and was therefore not “new” under § 67.3. The Firm subsequently met with the Foundation to review future options to obtain coastwise privileges. On January 5, 2007, the Firm appealed the NVDC’s denial of the NBD. The Foundation thereafter terminated the Firm.

Rear Admiral James A. Watson denied the appeal for the NBD on behalf of the NVDC in March of 2009. After the NBD denial, Bogle foreclosed the mortgage he held on the yacht and obtained a judgment against the Foundation. Bogle subsequently became the successful bidder and took possession of the yacht.

The Foundation subsequently filed a lawsuit against defendants for professional negligence, seeking economic damages in the form of profits it would have earned from the sale of the yacht had the NBD been obtained. Defendants moved for final summary judgment. The trial court denied defendants’ motion, stating that factual issues remained. Defendants then filed a motion for rehearing and reconsideration. The court ultimately reversed its prior ruling and entered final summary judgment in favor of defendants.

We agree with the Foundation that the trial court erred when it granted final summary judgment in favor of defendants, as there were genuine issues of material fact as to whether defendants were negligent in their representation of the Foundation. Summary judgment is proper only if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The standard of review for summary judgment is de novo. Id. In reviewing a summary judgment, this Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Daneri v. BCRE Brickell, LLC, 79-So.3d 91, 93-94 (Fla. 3d DCA 2012).

“In any legal malpractice suit, the plaintiff is required to plead and prove ‘(1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff.’” Riccio v. Stein, 559 So.2d 1207, 1208 (Fla. 3d DCA 1990). The first factor is not in dispute, as defendants conceded at the summary judgment hearing that the Foundation employed them. However, the second and third factors have not been satisfied.

There is a genuine issue of material fact as to whether the attorney neglected a reasonable duty. During the proceedings, the Firm argued that it satisfied its duty-owed to the Foundation when it advised it of problems with the NBD application and made it aware of the problems at all times material. Further, it urged that it was not the proximate cause of the Foundation’s loss because the Foundation suffered no damages. Alternatively, if there were damages, the Firm argues then they were incurred as a result of the Foundation’s own reckless decisions.

However, these actions do not resolve the “genuine issue of material fact as to whether the attorney’s conduct fulfilled the requisite standard of care.” Daytona Dev. Corp. v. McFarland, 505 So.2d 464, 467 (Fla. 2d DCA 1987). In Shear v. Hornsby & Whisenand, P.A., 603 So.2d 129 (Fla. 3d DCA 1992), for example, summary judgment was reversed because genuine issues of material fact remained regarding whether the law firm sufficiently advised a client that he might end up being liable for opposing fees if the client pursued a mechanic’s lien. Here, Ackor admitted at her deposition that she felt no duty to provide advice to the Foundation. The Foundation alleged that it was never made aware of how stringent the NBD standard was, or the extent to which the Cajun Princess would have to be torn down and rebuilt. In addition, it asserted that the Firm’s failure to timely inform the Foundation that it would not receive a NBD caused it to increase its investment, lose its profit, and ultimately lose its entire investment to foreclosure.

Defendants never gave the Foundation any idea of how difficult it was to obtain a NBD. The record, however, reflects that they were confident that a NBD would be granted. However, if the appellees had researched the requirements to obtain a NBD, they would have then been aware of the extremely high standard required for obtaining a NBD and would have been able to advise the Foundation that the work that had been done to the Cajun Princess would not meet this standard. In researching the issue, the appellees would have come across the United States Supreme Court case of New Bedford Dry Dock Company v. Purdy (The Jack-O-Lantern), 258 U.S. 96, 42 S.Ct. 243, 66 L.Ed. 482 (1922). This case was cited by U.S. Coast Guard Rear Admiral James A. Watson, in his letter to Ackor, wherein he denied the appeal. Watson stated in his letter that Ackor referred to the regulatory standard, used for wrecked vessels, which is different from new vessels. New Bedford states:

‘And generally, it may be held as a principle, that, where the keel, stem, and stern posts and ribs of an old vessel, without being broken up and forming an intact frame, are built upon as a skeleton, the case is one of an old vessel rebuilt, and not of a new vessel. Indeed, without regard to the particular parts re-used, if any considerable part of the hull and skeleton of an old vessel in its intact condition, without being broken up, is built upon, the law holds that in such a case it is the old vessel rebuilt, and not a new vessel. But where no piece of the timber of an old vessel is used without being first dislocated and then replaced, where no set of timbers are left together intact in their original positions, but all the timbers are severally taken out, refitted, and then reset, there we have a very different case That is a case of a vessel rebuilt.’

Id. at 100, 42 S.Ct. 243 (citation omitted).

Admiral Watson then pointed out that the United States Supreme Court has not changed the standard for the definition of “new vessel.” Under this standard, the Foundation’s application for a NBD failed to meet the requirements for a new vessel, as 46 C.F.R. § 67.3 requires. The record thus reflects that Ackor’s understanding of the regulatory standard was incorrect. In addition, it is unclear from the record what documents Moore did or did not review. Further, if Moore conducted a review of these documents, it is also unclear at what point in time did he review them. Thus, the advice that Moore and Ackor did or did not communicate to the Foundation created genuine issues of material fact. The facts, therefore, read in the light most favorable to the Foundation do not prove that the Firm’s explanation of the regulation properly conveyed the correct standard for obtaining a NBD.

We take no position on the merits of the Foundation’s case. We only note that when the facts are considered in the light most favorable to the Foundation as the non-moving party, there remain unresolved issues of material fact. Upon a de novo review, we are unable to conclude that defendants are entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Palafrugell Holdings, Inc. v. Cassel, 940 So.2d 492, 495 (Fla. 3d DCA 2006).

Because genuine issues of fact do exist regarding (1) the sufficiency and clarity of the Firm’s legal advice to the Foundation interpreting 46 C.F.R. § 67.3, and (2) the effect of this advice on the Foundation’s decision to continue to rebuild the boat, we reverse the trial court’s final summary judgment entered in favor of defendants and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

      . The "superstructure” includes all of the boat above the main deck.

      .A vessel loses its coastwise privileges if it is sold in whole or in part to a non-citizen of the United States or is registered outside of the United States. Coastwise privileges would permit the Cajun Princess to engage in commercial activity between American ports and its territories. Coastwise privileges would also allow the Cajun Princess to be chartered with a new crew and to operate with passengers for hire in the United States.

      . New build certification is legal certification that a ship is a "new” vessel and not a rebuilt "old” vessel. When a NBD is granted to a vessel, it automatically gives it coastwise privileges as a U.S. vessel, as opposed to restoring coastwise privileges.

      . See 46 C.F.R. § 67.3 (2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Randall Tucker MULLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2885.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Rehearing Denied Oct. 2, 2013.
    Robert Tucker Mullins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Daniel D. STRADER, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-1413.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Rehearing Denied Sept. 26, 2013.

      Daniel D. Strader, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner’s motion for review is treated as a petition for writ of certiorari. The petition for writ of certiorari is dismissed as premature because petitioner is seeking review of an indigency order related to the circuit court filing fee; therefore, review is properly made after the circuit court has issued a final order disposing of the cause pending below. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

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


author: SUAREZ, J.

text:
    Sandy RIVERS, as Personal Representative and on behalf of the Estate of Bennie Christopher Rivers, Jr., deceased and Sandy Rivers and Bennie Rivers, individually, Appellants, v. The HERTZ CORPORATION, a foreign corporation., Appellee.
    No. 3D12-1818.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Rehearing Denied Oct. 4, 2013.
    Ramon Rubio, Fort Lauderdale, for appellants.

      Cooney Trybus Kwavnick Peets and Warren B. Kwavnick, Fort Lauderdale, for appellee.
    Before WELLS, SUAREZ and LAGOA, JJ.
   SUAREZ, J.

The Appellant, Sandy Rivers, as Personal Representative and on behalf of the Estate of Bennie C. Rivers, Jr., appeals from an Order denying her motion to vacate the order granting Hertz Corporation’s (“Hertz”) Motion to Dismiss Second Amended Complaint with Prejudice as to Hertz only, and denying her leave to file a third amended complaint. We affirm.

Background

Bennie C. Rivers was killed in a car accident while a passenger in a 2008 Corvette Chevrolet rented and driven by Ap-pellee, William A. Walker, IV (“Walker”). According to the police report, a witness stated Walker collided with another vehicle after traveling fast and swerving through traffic. Unbeknownst to Hertz, the lessor of the vehicle, Walker’s driver’s license had been suspended from a speeding ticket he received in another state. The Appellant filed a wrongful death action against Hertz and sought recovery on the basis of negligence.

In her second amended complaint, the Appellant claimed Hertz had the affirmative duty to investigate and discover Walker’s suspended driver’s license. The trial court dismissed this complaint with prejudice based on the conclusion that section 822.38, Florida Statutes (2009), only required that Hertz inspect the license to verify the signature. In Appellant’s proposed third amended complaint, she alleged only a general negligence claim and abandoned her statutory negligence claim as to duty, but maintained the statutory violation was evidence of proximate causation under common law negligence. The trial court rejected this argument and stated Appellant’s general negligence claim “bootstraps” onto section 322.38.

Duty

The threshold issue in this case is whether Hertz had a duty to perform a background check into the status of Walker’s driver’s license.

Under the Graves Amendment, 49 U.S.C. § 30106, if there is no negligence or criminal wrongdoing on the part of the owner of rental vehicles, the owner shall not be liable by reason of being the titleholder of the vehicle. See Vargas v. Enter. Leasing Co., 60 So.3d 1037, 1041-1042 (Fla.2011), cert. denied, — U.S. -, 132 S.Ct. 769, 181 L.Ed.2d 486 (2011). Duty is a question of law that “focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain v. Fla. Power Corp., 593 So.2d 500, 502 n. 2 (Fla.1992). Hertz was negligent if it failed to perform its duty under section 322.38. However, Hertz owed a duty of care beyond that imposed by section 322.38 if it “knew or should have known some reason why entrusting the [vehicle] to [Walker] was foolish or negligent.” Mullins v. Harrell, 490 So.2d 1338, 1340 (Fla. 5th DCA 1986). “If no legal duty exists, there can be no cause of action for negligence.” Rishel v. E. Airlines, Inc., 466 So.2d 1136, 1138 (Fla. 3d DCA 1985).

Because there is no claim that Hertz failed to perform its statutory duty under section 322.38 to compare signatures, our analysis will focus on whether Hertz knew or should have known that Walker’s driver’s license was deficient.

The Appellant relies on Tellez v. Saban, 188 Ariz. 165, 933 P.2d 1233 (1996). Tellez is distinguishable from the present case because the lessor in that case had actual knowledge at the time of the rental that the driver did not possess a valid driver’s license. Id. at 1238-39. However, in this case, the Appellant failed to allege any facts that Hertz knew or should have known Walker was an unfit driver when he presented a facially valid driver’s license. Absent any facts to demonstrate Hertz had some knowledge of the deficient driver’s license, there can be no duty imposed upon Hertz to investigate and discover Walker’s suspended driver’s license. See Noris v. Silver, 701 So.2d 1238, 1241 (Fla. 3d DCA 1997) (affirming a dismissal for negligent referral because the plaintiff failed to allege that the defendant had knowledge of any facts that would indicate the lawyer would commit malpractice)., Therefore, because the proposed third amended complaint failed to allege sufficient facts to show that Hertz had a duty under general common law negligence to investigate and discover Walker’s suspended driver’s license, the second amended complaint was properly dismissed with prejudice.

Proximate Cause

As to the issue of whether Hertz proximately caused the injury, the court in Jackson v. Hertz Corp., 590 So.2d 929, 931 n. 3 (Fla. 3d DCA 1990), explained that “[e]ven if Hertz had violated the terms of section 322.38(2), its failure to comply with this penal statute was not the proximate cause of the plaintiffs injury” because the lack of license did not make a driver unfit or incompetent to drive. The accident would have occurred whether or not Walker had a valid license in his possession at the time of the rental.

Conclusion

The trial court properly denied the Appellant’s motion to vacate the dismissal of her second amended complaint with prejudice, as to Hertz only. The proposed third amended complaint will not save the Appellant’s failure to state a cause of action in her second amended complaint. The third amended complaint continues to claim Hertz had a duty beyond that stated in section 322.38 without pleading facts to justify the imposition of a further duty to investigate and discover the suspended license. “Denial of a request to amend an amended complaint is not error when the complaint will not state a cause of action even if it includes the proffered amendment.” Wolfson v. Moye, 214 So.2d 629, 630 (Fla. 3d DCA 1968). The trial court’s denial of leave to file a third amended complaint was not an abuse of discretion and we affirm.

      . Section 322.38, Florida Statutes (2009), states in pertinent part:
      (1) No person shall rent a motor vehicle to any other person unless the latter person is then duly licensed, or if a nonresident he or she shall be licensed under the laws of the state or country of his or her residence, except a nonresident whose home state or country does not require that an operator be licensed.
      (2) No person shall rent a motor vehicle to another until he or she has inspected the driver’s license of the person to whom the vehicle is to be rented, and compared and verified the signature thereon with the signature of such person written in his or her presence.

      . See also Orlando v. FEI Hollywood, Inc., 898 So.2d 167, 169 (Fla. 4th DCA 2005) (concluding that because the plaintiff failed to establish that the defendant knew or should have known a third party posed a risk, defendant was not liable); Stander v. Dispoz-O-Products, Inc., 973 So.2d 603, 605 (Fla. 4th DCA 2008) ("In the absence of factual allegations as to why someone who hires an independent contractor to transport goods should conduct an investigation into the background, qualifications, or experience of the driver, there is no duty to third parties."); Dubose v. Transp. Enter. Leasing, LLC, 2009 WL 210724, at *5 (M.D.Fla. Jan.27, 2009) ("[T]here is no duty to investigate or determine an individual's competency to operate an automobile before making a sale or entering into a lease.”).

      . Similarly, other jurisdictions reach the same conclusion. For example, Louisiana prescribes that "there is no duty on the part of a rental company to conduct a background check on a prospective renter who presents the rental company with an unexpired driver's license.” Cowan v. Jack, 922 So.2d 559, 565 (La.Ct.App.2005). In the California case of Osborn v. Hertz Corp., 205 Cal.App.3d 703, 252 Cal.Rptr. 613 (1988), the court held that a car rental company was not liable for injuries caused by a drunk driver who had rented a car while sober by presenting a valid driver’s license. It was undisputed the driver showed the rental company a valid driver's license and had not been drinking before renting the car. The court concluded "defendant [demonstrated] no clue that he was then unfit to drive,” and thus, the claim of negligent entrustment could not survive motion to dismiss and leave to amend was properly denied. Id.

      Hertz has also cited to other jurisdictions that have made similar determinations: Cousin v. Enterprise Leasing Company-South Central, Inc., 948 So.2d 1287 (Miss.2007); Henderson v. Your Kar Express Rentals, Inc., 2009 WL 1900395, *3 (Del.Super.Ct.2009); Young v. U-Haul Co. of D.C., 11 A.3d 247, 248 (D.C.2011); and, DeRosa v. Evans, 2011 WL 5531045, *2 n. 2 (Conn.Super.Ct.2011).


text:
    Diori BARNARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2854.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Rehearing Denied Sept. 26, 2013.
    Andrew F. Rier and Daniel Tibbit, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Dunbar v. State, 89 So.3d 901 (Fla.2012); U.S. v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); see also Fla. R.Crim. P. 3.800(c); State v. Stewart, 98 So.3d 656 (Fla. 2d DCA 2012).


author: LOGUE, J.

text:
    HSBC BANK USA, N.A., etc., Appellant, v. Gayle WILLIAMS, et al., Appellees.
    No. 3D12-1784.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Rehearing Denied Sept. 26, 2013.

      Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Richard C. Swank, Orlando, for appellant.
    Roberta G. Mandel, P.A., and Roberta G. Mandel and Dennis R. Haber, P.A., Miami, for appellees.
    Before WELLS, LAGOA and LOGUE, JJ.
   LOGUE, J.

This appeal stems from a foreclosure case filed by the lender, HSBC Bank USA, N.A., as Trustee for the Registered Holders of Renaissance Equity Loan Asset-Backed Certificates, Series 2007-3 (“the Bank”), against Gayle Williams (“the Homeowner”). The underlying foreclosure case was dismissed by the trial court based upon the Bank’s failure to comply with various discovery orders. The trial court’s dismissal in that regard was not appealed. In the matter before us, the Bank challenges the trial court’s order awarding the Homeowner $74,429 in costs and attorney’s fees.

Given the Bank’s history in this case of disobeying court orders, we reject the Bank’s assertion that the trial court abused its discretion in sanctioning the Bank for failing to comply with the court’s scheduling order regarding attorney’s fees. Turning to the issue of the amount of the fees, the record contains the following evidence: (1) the time sheets and billing records of the Homeowner’s attorney; (2) the testimony of the Homeowner’s attorney; and (3) the testimony of two attorneys who offered expert opinions in support of the amount of fees. Contrary to the contention of the Bank, the record reflects that the Bank had prior written notice of the names of the expert witnesses who testified for the Homeowner on the issue of the amount of the attorney’s fees.

In light of the substantial competent evidence in the record that supports the trial court’s findings, we conclude that the trial court did not abuse its discretion in awarding the costs and fees in the amount at issue. See Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204, 213 (Fla.2012) (“The standard of review for an award of prevailing party attorney fees is abuse of discretion.”); United Auto. Ins. Co. v. Ricardo, 916 So.2d 44 (Fla. 3d DCA 2005) (same).

Affirmed.


text:
    Martin L. McCRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1761.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Rehearing Denied Oct. 4, 2013.

      Martin L. McCray, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The issue raised in this appeal is identical to that raised by the appellant in his direct appeal of his conviction and sentence in McCray v. State, 838 So.2d 1213 (Fla. 3d DCA 2003), review denied, McCray v. State, 857 So.2d 196 (Fla.2003). We affirm the trial judge’s denial of relief for the same reasons stated previously.

Affirmed.


author: DAMOORGIAN, C.J.

text:
    STATE of Florida, Appellant, v. Robert MANNING, Appellee.
    No. 4D12-2538.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Oct. 17, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

The State of Florida appeals the trial court’s order vacating Robert Manning’s convictions for false imprisonment and felony battery on the grounds of ineffective assistance of counsel. We reverse.

In 2006, Manning was tried and found guilty by a jury of one count of false imprisonment and one count of felony battery relating to a domestic violence incident. At the time of the trial, Manning had a prior record consisting of a 2004 misdemeanor battery conviction. Manning stipulated to his prior conviction at trial which was the predicate crime for the felony battery count. Manning’s public defender filed a notice of appeal but then filed an Anders motion to withdraw, which we granted while affirming Manning’s judgment and sentence. Manning v. State, 993 So.2d 974 (Fla. 4th DCA 2008) (table). Manning’s conviction became final in December 2008.

In 2009, Manning filed his first Rule 3.850motion for post-conviction relief, which was denied by the trial court. In 2010, Manning appealed the order denying his first Rule 3.850 motion. In 2011, while his first post-conviction appeal was pending, Manning filed in the trial court a pro se “Petition for Emergency Writ of Habe-as Corpus 3.800(a) Illegal Sentence or 3.850(b) Postconviction Motion” (“Petition”). In his Petition, Manning alleged that he was coerced by defense counsel and the court into stipulating to his prior battery conviction at trial under the false pretense that the State would be able to bring out evidence of the conviction no matter what. Manning did not raise this issue in his first Rule 3.850 motion. The trial court stayed the Petition pending our resolution of Manning’s first Rule 3.850 appeal. Manning then filed a writ of mandamus before this Court seeking review of his Petition. After redesignating Manning’s mandamus petition as a petition for writ of habeas corpus, we denied his claim, concluding that Manning’s post-conviction claims of ineffective assistance of counsel were untimely and successive.

Despite our order denying Manning’s claims, the trial court held an evidentiary hearing on Manning’s Petition after which it entered an order granting the Petition and granting Manning a new trial. It is from this order that the State appeals.

The State argues that the trial court erroneously granted Manning’s Petition because it was time barred under Rule 3.850and successive. Manning counters that the motion was not time barred for two reasons: 1) it was also filed under Rule 3.800 which does not have a time limit, and 2) there is an exception to the 3.850time bar when required to prevent manifest injustice and denial of due process.

We begin our analysis by noting that before the trial court held its eviden-tiary hearing on Manning’s Petition, we considered the merits of his ineffective assistance of counsel claims when presented with Manning’s Petition for Writ of Mandamus (“Habeas Petition”). We denied his Habeas Petition concluding that Manning’s claims were filed outside the two-year time limitation and were successive as they could have been raised in his first Rule 3.850 motion. Fla. R. Crim. P. 3.850(b) (noting that a motion for post-conviction relief under Rule 3.850 must be brought within two years of the challenged judgment and sentence unless there is excusable neglect or newly discovered evidence). Accordingly, this Court’s ruling on the Habeas Petition became law of the case with regard to Manning’s underlying claims, and the trial court was without authority to reconsider and grant Manning’s Petition. See Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 275 (Fla. 1st DCA 2012) (“The doctrine of the law of the case requires that questions of law decided in an appeal must govern the case through all subsequent stages of the proceeding. When an appellate court decides a point of law, that point is no longer open for debate on remand to the trial court and, with limited exceptions, it is no longer open for debate in a subsequent appeal.”) (citations omitted).

Further, even assuming the trial court had the authority to consider Manning’s Petition, it should have denied the claim on the basis that it was time barred. We reject Manning’s attempt to circumvent the time constraints of Rule 3.850 by relying on Rule 3.800. Rule 3.800 is not applicable to the instant case as it solely deals with the correction of illegal sentences and sentencing errors. Manning’s claim was based on ineffective assistance of counsel and erroneous trial court instructions. These bases for relief cannot be argued via Rule 3.800. See Jackson v. State, 983 So.2d 562, 573 (Fla.2008) (emphasizing that the purpose of Rule 3.800 is to allow a defendant to challenge a sentencing error, not to “circumvent rules requiring contemporaneous objections or to substitute for ineffective assistance of counsel claims”).

Likewise, Manning’s argument that the time constraints of Rule 3.850(b) do not apply here because of the nature of the allegations made in his motion are not persuasive. Florida appellate courts have continuously enforced the two-year Rule 3.850 statute of limitations against claims of erroneous court instructions and ineffective assistance of counsel. See, e.g., Conionilli v. State, 58 So.3d 380 (Fla. 2d DCA 2011) (holding that appellant’s claim based on misadvice of counsel was time barred under 3.850); Sampedro v. State, 10 So.3d 1131 (Fla. 3d DCA 2009) (time limitations of 3.850 apply to claims that trial court failed to give proper instructions regarding possibility of deportation). Manning’s case is no different. Hall v. State, 94 So.3d 655, 657 (Fla. 1st DCA 2012) (“[S]imply construing an alleged error as ‘manifest injustice’ does not relieve [an appellant] of the time bar contained in rule 3.850.”) (internal quotations omitted).

Simply put, Manning could not circumvent the time limits of Rule 3.850 by seeking habeas relief. Johnson v. State, 44 So.3d 198, 200 (Fla. 4th DCA 2010). This Court correctly pointed this out when it denied Manning’s Habeas Petition. Accordingly, Manning’s pending Petition in the trial court became moot, and the trial court had no authority to rule on Manning’s claims.

Reversed.

CIKLIN and CONNER, JJ„ concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Aaron WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-294.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Aaron Washington, Milton, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238 (Fla.2007).

DAMOORGIAN, C.J., GROSS and CIKLIN, JJ., concur.


text:
    Aracely M. DIAZ-LLERENA, as Limited Guardian of the Person and Property of Octavio P. Llerena, Appellants, v. SPILLIS, CANDELA & PARTNERS, INC. and Onebeacon Insurance Group, Appellees.
    No. 1D12-5556.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2013.
    Rehearing Denied Sept. 27, 2013.
    James A. Walker of the Law Offices of James A. Walker, P.A., Miami, for Appellants.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s (E/C’s) motion to dismiss his petitions for benefits (PFBs), and dismissing those PFBs with prejudice. The premise of the motion to dismiss is that the parties entered into a “global” settlement agreement — one for which the JCC had already approved the attorney’s fees as required by section 440.20(1l)(c), Florida Statutes — and thus that the E/C’s liability under the Workers’ Compensation Law had been released. Claimant readily admitted the existence of an agreement— the PFBs specified the claims therein were “according to the terms of the stipulation for lump sum settlement,” and incorporated by attachment the agreement — but argued that the benefits claimed were due under the particular terms of this agreement, and the agreement had not yet released the E/C because the E/C had not satisfied all sums due under the agreement.

By all appearances, the JCC concluded that, as a matter of law, the agreement released the E/C from all liability under chapter 440 because (as the parties concede) the agreement was entered into pursuant to section 440.20(ll)(a), Florida Statutes. We conclude that the JCC should have held an evidentiary hearing and considered the terms of the parties’ settlement agreement to determine if the terms of the agreement, in fact, released all of the E/C’s liability for the benefits now at issue. See McCallum v. Palm Beach County Sch. Dist., 969 So.2d 562 (Fla. 1st DCA 2007). On remand, the JCC shall review the terms of the agreement, and hold an evidentiary hearing to determine whether Claimant has waived or released the claims now at issue and whether the E/C has complied with the terms of the agreement.

REVERSED and REMANDED for further proceedings.

ROWE, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Eric A. WELCH, Petitioner, v. A. COLEMAN, et al., Respondent.
    No. 1D13-1150.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    Rehearing Denied Oct. 2, 2013.
    Eric A. Welch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed as untimely filed. See Fla. R.App. P. 9.100(c)(1).

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    OCEAN BANK, Appellant, v. CARIBBEAN TOWERS CONDOMINIUM ASSOCIATION, INC., Appellee.
    Nos. 3D12-1096, 3D12-1889.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2013.
    Rehearing Denied Oct. 16, 2013.

      Weissman & Dervishi, P.A., and Brian S.Dervishi, John Borgo, Peter A. Tappert, and Beshoy Rizk; Louis K. Nicholas II; Bounds Law Offices, and Bruce M. Bounds, Miami, for appellant.

      Seipp & Flick LLP, and Douglas H. Stein, Miami; Association Law Group, P.L., and Ramon C. Palacio, Miami Beach, for appellee.
    Before SUAREZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LOGUE, J.

In these consolidated cases, Ocean Bank appeals orders that denied its requests for attorney’s fees against Caribbean Towers Condominium Association. The Bank claims attorney’s fees as the prevailing party in disputes over unpaid assessments. The Association responds that the trial courts lacked subject matter jurisdiction to grant attorney’s fees. In the alternative, the Association argues that the Bank was barred from recovering awards of attorney’s fees by the “no pleading, no fees” rule announced in Stockman v. Downs, 573 So.2d 835 (Fla.1991). We are not persuaded by the Association’s arguments and reverse because the Bank was entitled to prevailing party attorney’s fees under section 718.303(1), Florida Statutes (2012).

The Bank brought foreclosure actions against two condominium unit owners. The Bank named the Association as a defendant in the foreclosure actions because the Association had liens for unpaid assessments. The Bank ultimately obtained foreclosure judgments and subsequently purchased the condominium units at foreclosure sales.

The dispute underlying the Bank’s claims for attorney’s fees concerned the extent of its liability to the Association for unpaid assessments after purchasing the condominium units at the foreclosure sales. Section 718.116(l)(b), Florida Statutes (2012), capped the Bank’s liability for condominium assessments at no more than one percent of the original mortgage debt. Notwithstanding this statutory cap, on one unit in this consolidated appeal, the Association issued a certificate for unpaid assessments totaling $8,835.93, an amount almost nine times the statutory maximum. On the other unit, the Association issued a certificate claiming a hen of $20,233.14, an amount more than thirteen times the statutory maximum. The Association’s repeated demands for payment of liens in excess of the statutory maximum forced the Bank to delay closings on the units.

Seeking a speedy and inexpensive resolution of the dispute, the Bank filed post-judgment motions against the Association in the foreclosure actions requesting the application of the statutory cap to the Association’s liens and an award of attorney’s fees pursuant to section 718.303(1), which provides that the prevailing party is entitled to attorney’s fees in disputes between unit owners and condominium associations. Both trial judges ruled for the Bank on the merits, with one judge referring to the Association’s position as “frivolous.” Both trial judges, however, refused to grant attorney’s fees, apparently finding that the post-judgment procedure was a proper forum to litigate the merits, but not a proper forum to litigate the requests for fees.

The Association did not appeal or cross-appeal the trial courts’ rulings for the Bank on the merits of the disputes over unpaid assessments. Nevertheless, it argues that the denials of the requests for attorney’s fees should be upheld on the basis that the trial courts lacked subject matter jurisdiction to entertain the Bank’s motions in post-judgment proceedings, because the substantive motions raised issues not strictly within the four corners of the foreclosure pleadings.

The trial courts clearly had subject matter jurisdiction of the foreclosure actions and personal jurisdiction of the parties. Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 n. 3 (Fla.2003) (“Subject matter jurisdiction means no more than the power lawfully existing to hear and determine a cause. It concerns the power of the trial court to deal with a class of cases to which a particular case belongs.”) (citations and quotations omitted). The principle that relief is limited to the matters pled, embedded in Florida Rule of Civil Procedure 1.110, serves as a procedural bar to a party requesting relief outside the pleadings in almost all circumstances, but it does not implicate a court’s subject matter jurisdiction. Not being jurisdictional, this argument can be waived. Cuartas v. Cuartas, 951 So.2d 980, 983 (Fla. 3d DCA 2007) (“As with most rules, a litigant can waive the benefit of the rule.”).

We decline to rule on the issue of whether the Bank was procedurally barred from requesting post-judgment relief because we hold that the Association waived the issue in the unusual posture of this appeal. Having accepted the post-judgment process as a proper forum to decide the merits of the disputes over unpaid assessments (by not appealing or cross-appealing the decision on the merits), the Association cannot now argue that the post-judgment proceedings were an improper forum to award prevailing party attorney’s fees. See generally Breakstone v. Baron’s of Surfside, Inc., 528 So.2d 437, 439 (Fla. 3d DCA 1988) (“The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appellee, does not completely accord the relief to which the appellee believes itself entitled.”) (citation omitted). To allow the Association to have it both ways would require us to accept a process that blocks the clear statutory intent of the Legislature.

In enacting section 718.303(1), the Legislature clearly intended the prevailing party in disputes between unit owners and condominium associations to be awarded attorney’s fees. The Legislature’s purpose in enacting a statute providing for attorney’s fees to the prevailing party would be frustrated by allowing the merits to be litigated in a forum in which fees cannot be awarded. The Bank in this case was therefore entitled to have its claim litigated in a forum that could both rule on the merits of its claim and award the prevailing party its attorney’s fees.

Turning to the next issue, we hold that the Bank was not barred from recovering an award of attorney’s fees by the “no pleading, no fees” rule announced in Stockman. The rule applies “in situations where the entitlement to fees and costs existed from the outset based upon a contract or statute which was the subject of the underlying claim or defense.” Cooper v. Marriott Int’l, Inc., 16 So.3d 156, 159 (Fla. 4th DCA 2009), review denied, 31 So.3d 782 (Fla.2010). Stockman’s rule, however, does not apply “where the entitlement to fees and costs arose during the suit based upon some event which is supplemental to the underlying action.” Id.; see also Ganz v. HZJ, Inc., 605 So.2d 871, 872 (Fla.1992) (“It is extremely difficult, if not impossible, for a party to plead in good faith its entitlement to attorney’s fees under section 57.105 before the case is ended.”).

In this case, the entitlement to fees did not exist from the outset of the Bank’s foreclosure actions against condominium unit owners. Cf. Stockman, 573 So.2d at 837-38 (holding a prevailing party was precluded from obtaining attorney’s fees by failing to plead fees in an action to enforce a contract that entitled it to fees). Instead, the dispute over unpaid assessments arose when the Association issued certificates in excess of the statutory cap after the Bank purchased the units at foreclosure sales. Simply put, the Bank could not have sought fees as a unit owner under section 718.308(1) before the Bank purchased the units. Thus, the Bank properly raised the issue of attorney’s fees only after it arose; and the Association was provided notice and adequate time to decide whether to pursue its claim for a lien in excess of the statutory maximum, drop it, or settle it. See Ganz, 605 So.2d at 872; Cooper, 16 So.3d at 159.

Accordingly, the Bank was entitled to its attorney’s fees incurred in successfully prosecuting its claim that the Association’s assessments were capped at the statutory máximums mandated by section 718.116(l)(b).

Reversed and remanded for a determination of the amount of the fees.


author: BERGER, J.

text:
    Marco PIERCE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-440.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Rehearing Denied Sept. 26, 2013.
    Marco Pierce, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   BERGER, J.

Petitioner, Marco Pierce, seeks another appeal, alleging ineffective assistance of appellate counsel. See generally Fla. R.App. P. 9.141(d). He asserts, inter alia, that his appellate counsel was ineffective for failing to argue that the jury instructions for attempted manslaughter were fundamentally flawed. We agree and grant the petition.

Pierce was charged with attempted first-degree premeditated murder with a firearm and a number of additional charges. As to the attempted murder charge, the jury was instructed on attempted first-degree murder, attempted second-degree murder, and attempted voluntary manslaughter by act. With respect to the lesser offense of attempted manslaughter, the jury was instructed that attempted manslaughter by act required an intent to kill. At the time, the instruction given was the standard jury instruction for attempted voluntary manslaughter by act. Pierce did not object to the instruction. The jury found Petitioner guilty of attempted second-degree murder with a firearm, a crime one step removed from the necessarily lesser-included offense of attempted manslaughter. See State v. Montgomery, 89 So.3d 252, 259 (Fla.2010) (“The lesser included offense of manslaughter is just one step removed from second-degree murder.”).

Pierce’s jury trial was conducted in November 2009. The appeal in his case was perfected on September 17, 2010. On April 8, 2010, the Florida Supreme Court held that the standard jury instruction for voluntary manslaughter by act was incorrect and that giving it constituted fundamental error. Id. at 259. That holding was recently extended to the attempted manslaughter by act instruction. See Williams v. State, 123 So.3d 23, 2013 WL 535449 (Fla. Feb. 14, 2013). Although Williams had not yet been decided at the time of Pierce’s appeal, eight months before his initial brief was filed, the First District held it was fundamental error to give the standard jury instruction for attempted manslaughter by act because, like Montgomery, it contained the erroneous element that the defendant committed an act with the intent to cause the death of the victim. See Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). Although Montgomery and Lamb were favorable to Pierce, and both had been decided prior to the filing of the initial brief, no issue concerning the attempted manslaughter instruction was raised in his appeal. This court later affirmed Pierce’s judgment and sentence. Pierce v. State, 53 So.3d 237 (Fla. 5th DCA 2011).

In reviewing Pierce’s claim of ineffective assistance of appellate counsel, we must determine whether counsel’s performance was deficient and, if so, whether “the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Lopez v. State, 68 So.3d 332, 333 (Fla. 5th DCA 2011) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla.1985)). “An appellate court must apply the law at the time of the appeal in determining whether appellate counsel’s performance was deficient.” Id. at 333-34.

Although appellate counsel is not necessarily required to anticipate changes in the law, as we previously noted in Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006), numerous cases have held appellate counsel ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal that could result in reversal. See, e.g., Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011) (holding appellate counsel ineffective for failing to argue trial court committed fundamental error in giving the then-standard jury instruction for manslaughter by act, even though controlling precedent in the district had approved the instruction, when the instruction had been found fundamentally erroneous in another district and conflict between the two districts would have allowed defendant to seek relief in the supreme court); Shahazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007) (holding appellate counsel ineffective for failing to raise favorable cases from other districts in Florida even though controlling law in district in which appeal was heard was unfavorable); Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005) (determining that appellant’s counsel’s failure to request supplemental briefing on favorable appellate decision from other district court constituted ineffective assistance of counsel); McCann v. Moore, 763 So.2d 556 (Fla. 4th DCA 2000) (finding that counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so, so belated appeal granted); Ford v. Singletary, 689 So.2d 392 (Fla. 3d DCA 1997) (holding that counsel was ineffective for failing to bring new supreme court decision to court’s attention when it expressly applied to pipeline cases); Whatley v. State, 679 So.2d 1269 (Fla. 2d DCA 1996) (determining that although issue was not completely settled, counsel was ineffective for failing to cite favorable binding case law from another district in effect at time of pending appeal).

Inasmuch as the opinions in both Montgomery and Lamb were issued prior to the initial appeal in this case, appellate counsel should have raised the jury instruction issue and cited Montgomery and Lamb for support. Had the issue been raised in the initial brief, it is likely the outcome of the appeal would have been different. Indeed, less than a year later, this court issued its opinion in Burton v. State, — So.3d -, 2011 WL 1326258, 36 Fla. L. Weekly D738 (Fla. 5th DCA Apr.8, 2011), aligning itself with Lamb. In Burton, we held that giving the standard jury instruction on attempted manslaughter by act was fundamental error and required reversal of the defendant’s conviction for attempted second-degree murder. Id.

For the foregoing reasons, we conclude Pierce is entitled to relief. Because a new appeal would be redundant, we vacate Pierce’s conviction for attempted second-degree murder with a firearm and remand for new trial on that charge. See Lopez, 68 So.3d at 335.

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . We find no merit to the other issues raised by Petitioner.

      . In addition to attempted first-degree murder, Pierce was charged with robbery with a deadly weapon/firearm, burglary of a structure with an assault and with a firearm, burglary of a structure with a firearm, and resisting an officer with violence and with a weapon.

      . Pierce was found guilty of all the other counts as charged. He was sentenced to life imprisonment for the armed robbery and the two armed burglary convictions, thirty years for the reclassified attempted second-degree murder conviction, and fifteen years for the reclassified resisting an officer with violence conviction. This opinion only addresses the conviction for attempted second-degree murder with a firearm.

      . During the pendency of the appeal, the Fourth District, on July 7, 2010, issued an opinion certifying conflict with Lamb. See Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), quashed by Williams v. State, 123 So.3d 23, 2013 WL 535449 (Fla. Feb. 14, 2013).

      . The sole issue raised by Pierce on appeal was the denial of his motion to dismiss, wherein he argued that convictions for robbery and burglary with an assault constituted a double jeopardy violation.

      . As the Florida Supreme Court has explained:
      [a] jury must be given a fair opportunity to exercise its inherent "pardon” power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.

        Pena v. State, 901 So.2d 781, 787 (Fla.2005).


text:
    Barbara J. HERRIN, et al., Appellants, v. CITY OF DELTONA, Appellee.
    No. 5D12-1887.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Rehearing Denied Sept. 20, 2013.
    Tanner Andrews of Tanner Andrews, P.A., DeLand, for Appellant.
    Gretchen R.H. Vose of Vose Law Firm LLP, Winter Park, for Appellee.
   PER CURIAM.

Barbara J. Herrin (“Herrin”) and Edgewater Citizens Alliance for Responsible Development, Inc. (“the Alliance”), (collectively, “ECARD”) seek review of the final summary judgment entered in favor of the City of Deltona (“the City”). We affirm.

This case stems from a Deltona City Commission meeting at which there was to be a discussion of the Farmton Local Plan (“the Plan”), a development project spanning approximately 57,000 acres in southeast Volusia County and 12,-000 acres in northern Brevard County. Herrin, a property owner in Volusia County and representative of the Alliance, attended the meeting and sought to be heard when it became time to discuss the Plan. However, the Deltona City Commission refused public input and, pursuant to its staff’s recommendation, adopted a memorandum of understanding (“MOU”) that expressed the City’s intent to enter into an agreement with Volusia County and the Plan’s developer to address the City’s transportation and water concerns stemming from the project.

ECARD filed a complaint for declaratory and injunctive relief, alleging that the City violated section 286.011, Florida Statutes (2010) — Florida’s Sunshine Law — by not allowing Herrin to speak at the Delto-na City Commission meeting. The complaint sought to nullify the MOU and to enjoin the City from entering into further agreements based on the MOU. Both ECARD and the City filed motions for summary judgment. Following a hearing, the trial court granted the City’s summary judgment motion, ruling that the public had no right to participate in the City’s decisionmaking process.

On appeal, ECARD argues that under the Sunshine Law, the public has the right to be heard at public meetings. The Sunshine Law provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

§ 286.011, Fla. Stat. (2010); accord Art. 1, § 24(b), Fla. Const.

ECARD relies upon some of the early cases examining the Sunshine Law. For instance, ECARD cites Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969), where the supreme court stated in dicta:

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. ... One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

Id. at 699. ECARD also cites Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), to support its position. In Gradison, the supreme court discussed the policy reasons for the Sunshine Law, stating:

Every meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality.... Government, more so now than ever before, should be responsive to the wishes of the public. These wishes could never be known in nonpublic meetings, and the governmental agencies would be deprived of the benefit of suggestions and ideas which may be advanced by the knowledgeable public.
Also, such open meetings instill confidence in government. The taxpayer deserves an opportunity to express his views and have them considered in the decisionmaking process.
Those who do not attend public meetings are given ample opportunity to participate in government by seeming information of governmental activities from the news media. Responsible reporting of governmental activities results in letters or telephone calls from interested citizens so that governmental officials are given the benefit of both sides of the question. No governmental board is infallible and it is foolish to assume that those who are elected or appointed to office have any superior knowledge concerning any governmental problem. Every person charged with the administration of any governmental activity must rely upon suggestions and ideas advanced by other knowledgeable and interested persons. As more people participate in governmental activities, the decisionmaking process will be improved.

Id. at 475-76. ECARD submits that both Doran and Gradison confirm that the Sunshine Law gives the public the right to be heard at city commission meetings.

However, as noted by the City (and recognized by ECARD), there is contrasting language from a subsequent supreme court case, Wood v. Marston, 442 So.2d 934 (Fla.1983), that strongly suggests there is less to the public’s purported right to be heard under the Sunshine Law than Doran and Gradison imply. At issue in Wood was a “search-and-screen” committee’s closed-door attempt to find a replacement dean for the University of Florida’s law school. The supreme court held that the committee’s meetings were subject to the Sunshine Law and thus were required to be open to the public. At the same time, the court emphasized, “[w]e hasten to reassure respondents that nothing in this decision gives the pubiie the right to be more than spectators. The public has no authority to participate in or interfere with the decision-making process.” Id. at 941; see also Grapski v. City of Alachua, 31 So.3d 193, 199 (Fla. 1st DCA 2010) (holding city’s procedure to approve canvassing board’s minutes, pursuant to properly noticed public meeting, did not violate Sunshine Law because public had no right to participate or interfere with decision-making process (citing Wood, 442 So.2d at 941)).

Guided by Wood, the First District recently addressed, in Keesler v. Community Maritime Park Associates, Inc., 32 So.3d 659 (Fla. 1st DCA 2010), the precise issue raised in this case. There, the City of Pensacola charged Community Maritime Park Associates with overseeing the development of a parcel of public waterfront property. The issue on appeal was whether, under the Sunshine Law, members of the pubiie had the right to speak at Community Maritime Park Associate’s meetings. The appellants, Escambia County residents, made the same argument as ECARD did in this case with respect to Doran. However, relying on Wood, the First District found that no such right existed under the Sunshine Law. The court explained:

Appellants have failed to point to any case construing the phrase “open to the public” to grant the public the right to speak, and in light of the clear and unambiguous language in [Wood v.]Marston (albeit dicta), we are not inclined to broadly construe the phrase as granting such a right here. Rather, we agree with the trial court that the remedy Appellants are seeking in this case is more appropriately left to the legislative process or the local public officials to whom the [Community Maritime Park Associates] board members are accountable.

32 So.3d at 660-61. We agree with that analysis.

In our view, the issue is one of statutory interpretation. The starting point of statutory interpretation is the language of the statute itself. GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). If statutory language is clear and unambiguous, “there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931). However, if a statutory provision is ambiguous, courts may employ rules of construction and extrinsic aids to discern legislative intent. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

Here, the statute does not mention the right to be heard or participate. The phrase “open to the public” most reasonably means that meetings must be properly noticed and reasonably accessible to the public, not that the public has the right to be heard at such meetings.

We view the recent passage of section 286.0114, Florida Statutes (2013), as consistent with and support for our interpretation of the Sunshine Law. Section 286.0114, which takes effect October 1, 2013, specifically provides, with limited exceptions, that the public be allowed a reasonable opportunity to be heard on a proposition before a board or commission. See Ch. 2013-227, §§ 1, 3, Laws of Fla. Under ECARD’s interpretation of the Sunshine Law, section 286.0114 would be superfluous. We do not believe that to be the case.

AFFIRMED.

SAWAYA, ORFINGER and COHEN, JJ., concur.

      . Volusia County subsequently approved the MOU.

      . The City did not dispute that the meeting was public and that there was no opportunity for public comment before it agreed to the MOU.

      . We recognize that the Sunshine Law must be interpreted "most favorably to the public,” see Doran, 224 So.2d at 699, or, stated differently, "broadly construed to effect its remedial and protective purpose.” Wood, 442 So.2d at 938.