author: SALTER, J.

text:
    WEST KENDALL HOLDINGS, LLC, etc., Appellant, v. DOWNRITE ENGINEERING CORPORATION, etc., Appellee.
    No. 3D12-781.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    GPG Law, and Alan G. Geffin, Miami, and Christopher Perez-Gurri, Fort Laud-erdale, for appellant.
    Groves & Verona, and Russell M. Verona, Miami, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

The plaintiff, West Kendall Holdings, LLC, appeals an order dismissing its complaint with prejudice. We reverse the order, finding that none of the grounds argued in the motion merit dismissal with prejudice.

The test on a motion to dismiss is not whether the plaintiff can prevail at trial, but whether the complaint states a cause of action. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103 (Fla. 3d DCA 2010). A dismissal order is reviewed de novo, and the “allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.” Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla.1985); accord United Auto. Ins. Co., 46 So.3d at 1103-04. Applying these principles to West Kendall’s complaint, it does state a cause of action against the appellee, Down-rite Engineering.

In its motion to dismiss, Downrite Engineering attacked the complaint on three grounds. It argued that a New York bankruptcy court had exclusive jurisdiction over the parties’ dispute; that a settlement agreement between the parties released Downrite Engineering from any liability; and that the economic loss rule barred West Kendall’s negligence claim. However, these grounds do not support dismissal with prejudice.

The first ground for dismissal lacks merit because the bankruptcy court had entered a final decree under 11 U.S.C. § 350 closing the jointly administered case of West Kendall (and 127 other related entities) two months before the filing of West Kendall’s circuit court complaint in Miami. The bankruptcy court’s retention of jurisdiction for certain limited purposes did not bar, as a matter of law, West Kendall’s prosecution of its claims.

Second, although the bankruptcy court approved a settlement agreement between West Kendall and Downrite Engineering in 2009, that agreement did not conclusively bar the action below. The agreement addressed claims (and payment) related to work Downrite Engineering had performed under a partially-completed construction contract. The agreement expressly contemplated that work under the contract would continue and that any such future work was not subject to the release. The agreement released Downrite Engineering from liability through the January 2010 date of approval by the bankruptcy court, but specifically excluded the later claims asserted by West Kendall in its 2011 complaint. The settlement agreement and release did not bar the action, and the bankruptcy court order approving the settlement provided that when that court no longer had jurisdiction over the matter (as here, when the Chapter 11 cases were closed), “any dispute shall be brought in a court of competent jurisdiction in and for Miami-Dade County, Florida.”

The third and final asserted basis for dismissal is the economic loss rule. It would appear that this might limit damages on West Kendall’s negligence count (count III). However, a plaintiff is entitled to amend a complaint once as of right before a responsive pleading is filed. Boca Burger, Inc. v. Forum, 912 So.2d 561, 566-67 (Fla.2005). The dismissal motion in this case is not a responsive pleading. Id. Therefore, West Kendall should have been given an opportunity to amend before facing the dismissal of count III.

Based on this analysis, we reverse and remand the case for further proceedings.

      . The New York bankruptcy court retained jurisdiction (1) to enforce the terms of the confirmed plans of reorganization for the 128 related entities, (2) to consider the motion of "any party” to re-open any of the bankruptcy cases "for cause,” and (3) to interpret or implement the order closing the cases. The record discloses no motion by Downrite Engineering after that order to re-open West Kendall's bankruptcy or to seek other relief in the New York case.

      . Downrite Engineering may raise release as an affirmative defense upon remand, but that issue is inappropriate for summary disposition at this stage and on this record. Fla. R. Civ. P. 1.110(d); Pontier v. Wolfson, 637 So.2d 39 (Fla. 2d DCA 1994).

      . But see Tiara Condo. Ass’n v. Marsh & McLennan Cos., 110 So.3d 399 (Fla.2013).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Tavarus LIGHTSEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1981.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, Miami, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

After the defendant, Tavarus Lightsey, who was represented by counsel in the trial court and who is represented by counsel in this appeal, failed to avail himself of the opportunities he had to seek correction of his illegal sentence, he now seeks relief from this Court. Were the error not so obvious, we would deny him his relief at this juncture and require him to comply with his legal obligations, which undoubtedly would obviate the need for any judicial labor by this Court.

In this appeal, Lightsey challenges his life sentence for an armed robbery he committed when he was sixteen years old, which the trial court imposed after Light-sey violated his probation. In challenging his life sentence, Lightsey relies on the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which was decided prior to the imposition of Light-se/s life sentence. In Graham, the Court held that unqualified life sentences for non-homicide offenders categorically constitute cruel and unusual punishment when imposed on persons who were minors when they committed the crime. As Lightsey was sixteen years old when he committed the armed robbery, his unqualified life sentence was an illegal sentence.

We note that although Graham was decided in 2010, defense counsel failed to object to the life sentence on this basis either at the time of sentencing on June 30, 2011, or in his objections to the sentence filed in the trial court on July 7, 2011. We also note that while Florida Rule of Criminal Procedure 3.800(a) does not permit a party to “file a motion to correct an illegal sentence during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal,” rule 3.800(b) specifically provides a mechanism for the correction of an illegal sentence that is apparent from the face of the record under the following circumstances. Rule 3.800(b)(1) provides that a motion to correct an illegal sentence may be filed in the trial court “[djuring the time allowed for the filing of a notice of appeal of a sentence.... ” If a motion is filed under subdivision (b)(1), the motion shall stay rendition of the sentencing order. Fla. R. Crim. P. 3.800(b)(1)(A). Further, rule 3.800(b)(2) provides that if an appeal is pending, appellate counsel is permitted to file and serve a motion to correct illegal sentence in the trial court before the party’s first appellate brief is served, and if a motion is filed in the trial court, appellate counsel shall file in the appellate court a notice of pending motion to correct an illegal sentence, which notice extends the time for filing the brief.

Thus, instead of seeking to resolve this clear sentencing error in this Court, the following steps could have been taken by defense counsel or appellate counsel. First, defense counsel should have brought this sentencing error to the trial court’s attention at the sentencing hearing or addressed the error in the motion he filed after sentencing. Second, Lightsey or defense counsel could have filed a motion to correct an illegal sentence under rule 3.800(b)(1) before the notice of appeal was filed. Third, under 3.800(b)(2), prior to filing Lightsey’s initial brief, appellate counsel could have filed a motion to correct illegal sentence in the trial court, and notified this Court of the pending motion to correct illegal sentence. While defense counsel may not have been aware of the United States Supreme Court’s 2010 holding in Graham at the time of sentencing in 2011, it is clear that appellate counsel was aware of that decision prior to the filing of his initial brief on July 19, 2012, as the initial brief raises the decision in Graham as the sole ground for reversal of the sentence. It is therefore incomprehensible why appellate counsel did not seek to correct the error in the trial court, which based on the clear mandate by the United States Supreme Court most certainly would have been successful. Instead, appellate counsel pursued this appeal and requested an oral argument to address the issue.

Equally troubling is the State’s response. Rather than simply confessing error and proceeding to a resentencing, the State is seeking an affirmance without prejudice to the defendant to file a rule 3.800(a) motion to correct an illegal sentence after this Court issues its mandate, based on the defendant’s failure to first raise the issue with the trial court. Although we recognize that the defendant’s argument on appeal was not preserved for appellate review, and a claim that a sentence is unconstitutionally cruel and unusual under the Eighth Amendment must be properly preserved to be raised on appeal, see Gore v. State, 964 So.2d 1257, 1276 (Fla.2007); Perez v. State, 919 So.2d 347, 377 (Fla.2005); Floyd v. State, 913 So.2d 564, 578 (Fla.2005), because the error is clear and defense counsel’s failure to properly preserve the argument clearly constitutes ineffective assistance of counsel, the State should have conceded the error and put an end to the appellate wheel spinning. Accordingly, we reverse and remand for the imposition of a legal sentence.

Reversed and remanded for resentenc-ing.


author: SUAREZ, J.

text:
    Arturo RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-254.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   ON MOTION FOR CLARIFICATION

SUAREZ, J.

Upon consideration of the State’s motion for rehearing or clarification, we withdraw the opinion of February 20, 2013, grant the motion to clarify, and substitute the following in its place. The motion is considered as directed to the clarified opinion and is otherwise denied.

The defendant, Arturo Rodriguez, appeals his conviction and sentence for second-degree murder with a deadly weapon and for aggravated assault with a deadly weapon. We reverse, as the trial court failed to conduct a competency hearing pursuant to Florida Rule of Criminal Procedure 8.210.

The standard of review for a trial court’s determination of whether a defendant is competent to stand trial is abuse of discretion. See Boyd v. State, 910 So.2d 167 (Fla.2005); Carter v. State, 576 So.2d 1291, 1292 (Fla.1989). To determine if a defendant is competent to stand trial, the trial court must decide whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... as well as [a] factual understanding of the proceedings against him.” Hardy v. State, 716 So.2d 761, 763 (Fla.1998) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)); Muhammad v. State, 494 So.2d 969 (Fla.1986); § 916.12(1), Fla. Stat. (2012).

In 2000, Rodriguez was charged with one count of second-degree murder with a deadly weapon and one count of aggravated assault with a deadly weapon. He was diagnosed as a paranoid schizophrenic and was evaluated psychiatrically at least seven times in the following years; some psychiatrists found him competent to stand trial, while others did not. The first trial, in May 2006, was reversed and remanded as the trial court failed to conduct a proper Faretta inquiry after Rodriguez made an unequivocal request to represent himself. See Rodriguez v. State, 982 So.2d 1272 (Fla. 3d DCA 2008). He then was scheduled to be evaluated in August 2009, when he refused to be evaluated, and in January 2010, eleven months before the trial verdict now appealed.

The record before the trial judge reflected that there were no recent reports evaluating Rodriguez’s competency to stand trial, the last having occurred eleven months earlier. Additionally, the doctor from the last evaluation stated he could not render a competency conclusion. The defendant’s court-appointed standby counsel raised concerns about the defendant’s competency to stand trial. The evaluation reports of record, as well as the defendant’s behavior in front of the court both before and after trial, and the fact that there was no recent competency evaluation in the record, were facts sufficient to create reasonable grounds to question whether the defendant was competent to stand trial. See Muhammad, 494 So.2d at 973; Sampson v. State, 88 So.3d 209 (Fla. 3d DCA 2011); see also § 916.12(1), Fla. Stat. (2012); Fla. R. Crim. P. 3.210.

The issue raised in this appeal is not whether Rodriguez was competent to stand trial. That is for the trial court to determine upon remand. The question before us is whether the trial court, at the time of trial, had information that created reasonable grounds to believe Rodriguez might be incompetent. The record shows there was such evidence. The past .competency reports, lack of any recent evaluation and report, the defendant’s own conduct, and counsel’s expressed concerns corn-bined to create reasonable grounds to require the trial court to conduct a competency hearing after ordering and receiving a new competency evaluation. See Brockman v. State, 852 So.2d 330 (Fla. 2d DCA 2003); see also § 916.12(1), Fla. Stat. (2012); Fla. R. Crim. P. 3.210(b).

We therefore conclude that the trial court abused its discretion by failing to order a competency hearing pursuant to Florida Rule of Criminal Procedure 3.210(b), where there were reasonable grounds to believe the defendant was not mentally competent to proceed at the time of trial.

Reversed and remanded.

      . Faretta v, California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . If, after a new competency hearing upon remand, the defendant is found competent to stand trial and again requests to represent himself, the trial court shall conduct a Faretta hearing applying the standards of Florida Rule of Criminal Procedure 3.111(3). See Vollmer v. State, 101 So.3d 383 (Fla. 2d DCA 2012).


author: WARNER, J.

text:
    HILLSBORO MANAGEMENT, LLC, d/b/a Living Legends Retirement Center, Appellant, v. Karen PAGONO, as Personal Representative of the Estate of Frances Tremblay, Appellee.
    No. 4D11-2024.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Gerald B. Cope of Akerman Senterfitt, Miami, Kimberly A. Ashby of Akerman Senterfitt, Orlando, and Christopher B. Hopkins of Akerman Senterfitt, West Palm Beach, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and William A. Dean of Ford & Dean, P.A., Aventura, for appellee.
   WARNER, J.

Appellant, Hillsboro Management, LLC, d/b/a Living Legends Retirement Center (“Hillsboro”), appeals a final judgment in favor of appellee Karen Pagono, as personal representative of the Estate of Frances Tremblay, for negligence. The final judgment awarded both compensatory and punitive damages. After trial, the appellant discovered that one of the jurors had a significant history of litigation, which he failed to disclose in voir dire. The court, however, denied the motion for new trial based upon juror misconduct without conducting a juror interview. We reverse for the court to permit a juror interview and then reconsider the motion based upon the total circumstances presented.

Frances Tremblay, a 98-year-old woman, was admitted to Living Legends Retirement Center by her granddaughter. Even though the staff noted on her admission chart that Tremblay did not use or need any walking assistance, on the very first day of residence she fell and she experienced multiple falls thereafter when she was not attended by the staff. In all she experienced nineteen falls in the twenty-six days she was in the facility. She suffered significant injuries, although there was a dispute as to whether these injuries caused her death. After her death, Pagono, Tremblay’s granddaughter, instituted a negligence action against Hills-boro for failing to properly supervise Tremblay and for violating her statutory rights pursuant to sections 429.297 and 429.298, Florida Statutes. The testimony at trial showed many instances of failing to report Tremblay’s condition, failing to supervise her when the staff knew she was at risk of falling, and other even more intentional acts directed at her. For purposes of the issues addressed in this appeal, we need not delve further into the factual predicate for the liability and damage awards.

At trial, the prospective jurors were asked whether they had ever been involved in the trial of a lawsuit, either as a plaintiff, a defendant, or a witness. Juror R.F. disclosed that his daughter had been involved in an accident in the 1980s resulting in litigation, and his wife was also involved. He stated that nothing about that case would affect his ability to serve in this case. Later, in voir dire, Juror R.F. was again questioned about the case, and he again assured the attorneys that the case would not affect his service as a juror in this case.

Hillsboro’s attorney also asked the jury about litigation. He said:

You were asked, folks, about litigation, particularly medical malpractice, claims against nursing homes, automobile accidents. But let me ask that question about your involvement in litigation in a more expansive and broader definition of litigation, which can include problems with your credit card company, bankruptcy, landlord/tenant problems, slip and falls, commercial disputes, contract disputes, probate litigation, maybe a claim where there is no lawsuit or lawyer involved, but just you against somebody else.
Does anybody have ... any other litigation that hasn’t been disclosed already?

Several other potential jurors offered additional litigation experience at that point. Hillsboro’s attorney then specifically addressed Juror R.F., asking, “[Juror R.F.], the only litigation involving your family was the lawsuit involving your youngest daughter; is that correct sir?” Juror R.F. replied, 'Tes.” Eventually Juror R.F. was chosen as part of the jury panel.

After the jury came back with a verdict of $145,828.05 in past medical expenses, $750,000 in non-economic damages, and $1.5 million in punitive damages, Hillsboro filed a motion for new trial based upon several issues and also alleging juror misconduct, because Juror R.F. had made materially false statements in voir dire regarding his litigation history. Hillsboro listed twelve actions filed in Broward County involving a person with the same name, one of which was the automobile accident that Juror R.F. mentioned in voir dire. The list included a domestic violence injunction, several foreclosures, and civil damage suits. Hillsboro also filed an affidavit of its trial attorney. In this sworn statement, he asserted “that in view of [Juror R.F.’s] extensive litigation history and the character of same, I likely would have exercised a peremptory challenge with regard to [Juror R.F.].” He stated that the litigation history was relevant to Juror R.F.’s honesty and impartiality; that Juror R.F.’s participation in negligence and foreclosure cases “may have given him a bias and/or prejudice against litigation proceedings;” that each suit for civil damages involved a corporate entity, “leading to a question of bias against corporate entities like” Hillsboro; that the domestic violence accusations give doubt to Juror R.F.’s “temperament and fitness to serve as a juror;” and, that because one of the issues in the case involved allegations that a Hillsboro worker “slammed” Tremblay’s head into a table, his domestic violence cases suggest that he might be biased. The trial attorney stated that the failure to disclose these statements “deprived me of the fair opportunity to ask questions of him in voir dire regarding same and make an informed judgment, which would have likely resulted in a peremptory challenge.” Hillsboro requested a juror interview of Juror R.F., and, subject to the results of the juror interview, a new trial.

At the hearing, Pagono opposed the motion, suggesting that several of the lawsuits may not have involved the juror, and most were too remote in time to be material. The trial court denied the motion without granting a juror interview. It also denied the motion for new trial as to the substantive issues raised. As well, it denied Hillsboro’s motion for remittitur as to both compensatory and punitive damages. This appeal follows.

De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), established a three-part test for determining whether a juror’s non-disclosure of information during voir dire requires a new trial:

First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure' to disclose the information was not attributable to the complaining party’s lack of diligence.

Id. at 241 (citing Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379, 380 (Fla. 2d DCA 1972)). With respect to the nondisclosure of prior litigation, the court in Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 341 (Fla.2002), which controls this case, explained that “[t]o be material, a prospective juror’s litigation history does not necessarily have to involve an action similar to the one in which he or she may be required to serve,” but also noted that not “all prior litigation history (while relevant) is per se material.” Id. The court further explained materiality:

“No ‘bright line’ test for materiality has been established and materiality must be based on the facts and circumstances of each case. Leavitt v. Krogen, 752 So.2d 730 (Fla. 3d DCA 2000). Nondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily challenge the juror from the jury.”

Id. (quoting Garnett v. McClellan, 767 So.2d 1229, 1230-31 (Fla. 5th DCA 2000)) (emphasis supplied). This is based on the premise that “[l]awyers representing clients in litigation are entitled to ask, and receive truthful and complete responses to, the relevant questions which they pose to prospective jurors.” Id. at 342.

As to the second factor of concealment, “a juror’s nondisclosure need not be intentional to constitute concealment.” Roberts, 814 So.2d at 343. Thus, this is not a “credibility determination because whether or not [the juror’s] concealment was intentional is of no import.... ” Pereda v. Parajon, 957 So.2d 1194, 1197 (Fla. 3d DCA 2007). In order to establish this element, the party seeking a juror interview must “ ‘demonstrate (among other things) that the voir dire question was straightforward and not reasonably susceptible to misinterpretation.’ ” Rodgers v. After School Programs, Inc., 78 So.3d 42, 45 (Fla. 4th DCA 2012) (quoting Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011)). A response cannot constitute concealment when “ ‘the juror’s response ... about litigation history is ambiguous, and counsel does not inquire further to clarify that ambiguity.’ ” Id. (quoting Gamsen). Finally, “[i]f the concealment by a juror occurred during voir dire questioning about the juror’s prior experiences with litigation, the identity of the juror as a litigant in a prior legal proceeding must be shown.” Sterling v. Feldbaum, 980 So.2d 596, 599 (Fla. 4th DCA 2008) (citing Beyel Bros., Inc. v. Lemenze, 720 So.2d 556, 557 (Fla. 4th DCA 1998)).

Finally, “[t]he ‘due diligence’ test requires that counsel provide a sufficient explanation of the type of information which potential jurors are being asked to disclose, particularly if it pertains to an area about which an average lay juror might not otherwise have a working understanding.” Roberts, 814 So.2d at 343. “Thus, resolution of this ‘diligence’ issue requires a factual determination regarding whether the explanations provided by the judge and counsel regarding the kinds of responses which were sought would reasonably have been understood by the subject jurors to encompass the undisclosed information.” Id.

Although generally post-verdict juror interviews are disfavored, where there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror. See Sterling, 980 So.2d at 599. In Sterling, this court reversed the denial of a new trial without a juror interview. This court held:

[W]here the information submitted by appellant was sufficient to show reasonable grounds that the jurors identified in the motion concealed material information during voir dire, the trial court should have granted appellant’s request to interview them. Then, depending upon the outcome of the juror interviews and appellant’s ability to establish that a juror’s nondisclosure of prior litigation history during voir dire is relevant and material to jury service in this case, and not attributable to appellant’s lack of diligence, the court could determine whether appellant is entitled to a new trial. See De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995); Roberts, 814 So.2d at 339-40.

Consistent with Sterling, we hold that the information submitted regarding Juror R.F., as well as a review of the transcript of voir dire and the affidavit of the trial attorney, collectively provided a reasonable ground for a juror interview, particularly in this case where Pagono disputes the connection between the litigation uncovered and the juror. Moreover, the court’s analysis of the De La Rosa factors of materiality, concealment, and due diligence requires the court to weigh all the facts in the case. The court cannot properly assess the requirements when the parties dispute the juror’s involvement in the litigation uncovered in the records search. We thus reverse the denial of new trial and remand for a juror interview and for the court to conduct a hearing on the motion for new trial in compliance with the principles announced in Roberts.

We also distinguish this court’s recent opinion in Duong v. Ziadie, — So.3d -, 2013 WL 614212, 38 Fla. L. Weekly D406 (Fla. 4th DCA Feb. 20, 2013). In that medical malpractice action, two jurors erroneously answered, “No,” to the juror question: “Have you or any members of your immediate family ever been a party to a lawsuit, where you brought suit or suit was brought against you, either civil or criminal?” Id. at-, *1. The two jurors had histories including a criminal welfare fraud conviction, several collection actions, an eviction, and two paternity and child support actions. After the verdict, the appellant’s counsel discovered the litigation history of the two jurors, moved to interview the jurors, and subsequently moved for a new trial. We affirmed the court’s order denying the motion for new trial on the basis that the appellant failed to prove the first prong — materiality—of the De La Rosa test, reasoning that based upon the challenges that were made, together with the lack of questioning of the jurors on the litigation that was disclosed, appellant’s counsel did not demonstrate that his knowledge of their histories would have in all likelihood resulted in the use of a peremptory challenge. In other words, the court could conclude in light of the questioning and peremptory challenges that were exercised, the attorney’s post-verdict insistence that he would have challenged these two jurors was not genuine. This contrasts with the facts here, which showed that Hillsboro’s attorney placed five reasons as to why he would have peremptorily struck Juror R.F. had he been forthcoming. Regardless of these distinctions, Duong highlights the need for an analysis of the totality of the circumstances to determine whether a juror interview or new trial is warranted.

We have seen a growth of post-trial juror interview requests based upon juror non-disclosure of prior litigation information. In Roberts, the court specifically disapproved of the Third District’s holding that public records must be consulted at the time of jury selection or the issue of juror non-disclosure of litigation history would be waived. Roberts, 814 So.2d at 344 (citing the supreme court’s approval in De La Rosa of Judge Baskin’s dissent in Zequeira v. De La Rosa, 627 So.2d 531, 534 (Fla. 3d DCA 1993)). The supreme court did so, because the technology was not present in 2002 to search the public records and pull the files. However, it did suggest that “[wjhere possible, trial judges should allow counsel to check records, if such a request is made, and it can be done without unwarranted delay. Certainly a small delay at the beginning of a trial would be better than having to do a retrial of a case after it has been concluded.” Roberts, 814 So.2d at 345.

Our technology has come a long way in the past ten years since Roberts was decided. All counties now have their official public records online, and court files are also online. A paralegal in the courtroom can most likely search the public records of each juror as the juror is called during voir dire. While such searches are not perfect and would be able to pull records only in the county in which the case is being tried, it could result in catching obvious non-disclosures, such as the case here. The time may have come to rethink how the courts handle juror non-disclosure so as to prevent so much litigation over the issue and so many retrials of cases to the detriment of the entire judicial system.

As we are reversing for reconsideration of the motion for new trial based upon juror interview, which may result in the trial court granting a new trial, for us to address the remaining issues is premature. Thus, our reversal is without prejudice to re-raising these residual issues should the trial court deny a new trial.

CIKLIN and LEVINE, JJ., concur.


author: TAYLOR, J.

text:
    ALAMO FINANCING, L.P., Appellant, v. Matthew MAZOFF, Appellee.
    No. 4D11-3097.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Douglas De Almeida and Daniel J. San-taniello, B.C.S. of Luks, Santaniello, Petril-lo & Jones, Fort Lauderdale, for appellant.
    Roy D. Wasson of Wasson & Associates Chartered, Miami, and Andrew J. Wein-stein of Weinstein & Associates, P.A., Coral Springs, for appellee.
   TAYLOR, J.

Alamo Financing, L.P., appeals a final order denying its motion for attorney’s fees pursuant to a proposal for settlement. Because we conclude that the proposal was valid, we reverse.

On April 22, 2007, the plaintiff, Matthew Mazoff, exited his vehicle to assist the occupants of an overturned vehicle. While he was helping them, a vehicle owned by Alamo Financing and operated by renter Paola Alvarado-Fernandez struck the overturned vehicle, which in turn struck the plaintiff and injured him. A separate entity, Alamo Rental (US) Inc., rented the vehicle to Alvarado-Fernandez.

In 2009, the plaintiff filed a lawsuit seeking damages from Alamo Financing and Alvarado-Fernandez. In the first amended complaint, the plaintiff alleged that Alamo Financing was vicariously liable for the negligence of Alvarado-Fernandez. The plaintiff did not plead any other theory of liability against Alamo Financing.

In March 2010, Alamo Financing served a proposal for settlement on the plaintiff, offering the plaintiff $13,335.00 to resolve “[a]ll Claims made in the present action by the party to whom this proposal is made including any claims that could be made against Defendant ALAMO FINANCING, L.P., which arise out of the same occurrence or event set forth in this action.” One of the conditions of the proposal was that the plaintiff would execute a stipulation for dismissal with prejudice as to Alamo Financing. Another condition of the proposal was that the plaintiff would execute a release in favor of Alamo Financing. Specifically, that condition stated:

(4) Plaintiff shall execute a general release of the Defendant, ALAMO FINANCING, L.P., in the form general release attached as Exhibit “A”. If no release is attached or Plaintiff objects to the form of the release in Exhibit “A”, then a general release to effectuate a settlement as contemplated by Erhardt v. Duff, 729 So.2d 529 (Fla. 4th DCA 1999).

The general release attached to the proposal for settlement provided that the plaintiff would release Alamo Financing and “their parent corporations, subsidiaries, officers, directors, and employees” from any and all claims. The plaintiff did not respond to the proposal for settlement within 30 days and therefore it was deemed rejected. Fla. R. Civ. P. 1.442(f)(1).

Alamo Financing moved for summary judgment, arguing that it was entitled to judgment in its favor as a matter of law under 49 U.S.C. § 30106 (the “Graves Amendment”), which generally precludes states from imposing vicarious liability on a lessor of a motor vehicle for the negligence of the lessee.

In September 2010, shortly before the summary judgment hearing, the plaintiff moved for leave to file a second amended complaint, in part to add Alamo Rental as a defendant in the lawsuit. In his proposed second amended complaint, the plaintiff alleged that Alamo Rental was negligent for failing to properly inspect the driver’s license of Alvarado-Fernandez, a resident of Columbia, before renting the vehicle to her.

The trial court granted Alamo Financing’s motion for summary judgment, but also granted the plaintiff leave to file a second amended complaint. The trial court ultimately entered final judgment in favor of Alamo Financing and later denied the plaintiffs motion to vacate the final judgment. Our court affirmed the final judgment in favor of Alamo Financing without written opinion. See Mazoff v. Alvarado-Fernandez, 98 So.3d 581 (Fla. 4th DCA 2012) (table decision).

After the final judgment was entered in its favor, Alamo Financing moved for attorney’s fees and costs based upon the proposal for settlement that the plaintiff had rejected. At the hearing on the motion, the plaintiffs counsel argued to the court that he learned in a September 2010 deposition that Alamo Financing was not the entity that rented the vehicle to Alvarado-Fernandez. Instead, a separate entity called “Alamo Rental” had rented the vehicle to the driver. The plaintiffs counsel suggested that “had we accepted this proposal, we would have released Alamo Rental....” Defense counsel disputed this argument, claiming that the release would not have applied to Alamo Rental. Defense counsel stated that Alamo Rental was an “affiliate” of Alamo Financing, but was not a subsidiary. The trial court took the matter under advisement.

The trial court later entered a written order denying Alamo Financing’s motion for attorney’s fees, finding that the proposed release, which included language releasing parent corporations and subsidiaries, “may have extinguished” the plaintiffs current claim against Alamo Rental.

On appeal, Alamo Financing contends that the trial court erred in denying the motion for attorney’s fees, arguing that the reference to “subsidiaries” in the general release attached to the proposal for settlement did not render the proposal ambiguous. We agree.

The standard of review in determining whether a proposal for settlement is ambiguous is de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 891 (Fla. 4th DCA 2010). The requirements for a valid proposal for settlement are set forth in section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. The offer of judgment statute and rule must be strictly construed, as they are in derogation of the common law rule that each party pay its own attorney’s fees. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003).

“Because the offer of judgment statute and related rule must be strictly construed, virtually any proposal that is ambiguous is not enforceable.” Hibbard ex rel. Carr v. McGraw, 918 So.2d 967, 971 (Fla. 5th DCA 2005). However, “given the nature of language, it may be impossible to eliminate all ambiguity” in a proposal for settlement. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006). “The rale does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id. “Therefore, parties should not ‘nit-pick’ the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could ‘reasonably affect the offeree’s decision’ on whether to accept the proposal for settlement.” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) (quoting Nichols, 982 So.2d at 1079).

Rule 1.442 makes it clear that proposals for settlement must state with particularity any relevant conditions and all non-monetary terms. Fla. R. Civ. P. 1.442(c)(2)(C)-(D). A release is a condition or non-monetary term that must be described with particularity in a proposal for settlement. Nichols, 932 So.2d at 1078. A proposal for settlement must include either 1) the language of the proposed release; or 2) a summary of the proposed release, as long as the summary “eliminates any reasonable ambiguity about its scope.” Id. at 1079. “Traditionally, general releases have included expansive language designed to protect the offeror from unforeseen developments or creative maneuvering by the other party. Such language can be sufficiently particular to satisfy rule 1.442.” Id. “The rule aims to prevent ambiguity, not breadth.” Id.

In Board of Trustees of Florida Atlantic University v. Bowman, 853 So.2d 507, 509 (Fla. 4th DCA 2003), we found the defendant’s proposal for settlement to be unambiguous even though the defendant attached a general release containing language which, similar to the release in this case, defined the released party very broadly to include the defendant’s heirs, legal representatives, agents, employees, attorneys, subsidiaries, affiliates, and parent corporations, among others. We explained that such language “is simply standard language in a general release that should be considered unambiguous and should not invalidate the proposal.” Id. at 510.

Similarly, in Jessla Construction Corp. v. Miami-Dade County School Board, 48 So.3d 127 (Fla. 3d DCA 2010), the Third District found Bowman instructive and concluded that a general release — which defined the plaintiff as including past, present and future affiliates, subsidiaries, and parent companies — did not invalidate the defendant’s proposal for settlement. The court concluded that such language was not too broad and was typical of the language contained in many general releases. Id. at 131.

Here, the proposal for settlement was sufficiently clear and definite to allow the plaintiff to make an informed decision without needing clarification. The plaintiffs allegations of ambiguity are unpersuasive.

The plaintiff first suggests that the proposal was ambiguous because it could be read to extinguish his claims against Alvarado-Fernandez. Although this was not the basis for the trial court’s ruling, the plaintiff argues that the proposal was an improper undifferentiated joint offer or was at least ambiguous on this point. As noted above, the proposal for settlement sought to resolve “[a]ll Claims made in the present action by the party to whom this proposal is made including any claims that could be made against Defendant ALAMO FINANCING, L.P., which arise out of the same occurrence or event set forth in this action.”

The plaintiff contends that the proposal did not merely seek to resolve all claims against Alamo Financing, but rather sought to resolve “all claims made in the present action” by the plaintiff. To be sure, the plaintiffs argument is mildly seductive at first glance. The complained-of sentence is poorly drafted because it does not include any commas to clarify which claims the phrase “against Defendant ALAMO FINANCING” refers to. Therefore, at least when read in isolation, the complained-of sentence could be plausibly interpreted as resolving “all claims made in the present action” by the plaintiff.

Nonetheless, while the plaintiffs reading of the complained-of sentence is grammatically possible, it is substantively unreasonable. A contract is not ambiguous unless a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). The plaintiffs interpretation of the proposal for settlement ignores the well-established principle that “the intention of the parties must be determined from an examination of the entire contract and not from separate phrases or paragraphs.” Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 875 (Fla. 2d DCA 2005).

Here, any potential ambiguity in the complained-of sentence is clarified by ref-erenee to the proposal for settlement as a whole. Notably, the proposal for settlement named only Alamo Financing as the party making the proposal. Further, the proposal stated that the only party to be dismissed from the lawsuit was Alamo Financing. Finally, the proposed release would not have released Alvarado-Fernandez, but rather would have released only Alamo Financing and its “parent corporations, subsidiaries, officers, directors, and employees.” Therefore, when the proposal for settlement is read as a whole, giving effect to all provisions therein without reading any one provision in isolation, it is clear that the proposal was not an undifferentiated joint offer and it would not have extinguished the plaintiffs claims against Alvarado-Fernandez.

The plaintiff also argues that the proposal is ambiguous because it could have been construed to constitute a release of his claims against Alamo Rental. However, the expansive language in the proposed release did not render it ambiguous. “The rule aims to prevent ambiguity, not breadth.” Nichols, 932 So.2d at 1079. Under the reasoning of Bowman, the language in the general release providing that the plaintiff would release the “parent corporations, subsidiaries, officers, directors, and employees” of Alamo Financing was unambiguous standard release language that did not render the proposal invalid. The release clearly provided that the plaintiff would release Alamo Financing and “their parent corporations, subsidiaries, officers, directors, and employees” from any and all claims. While broad, the release is not ambiguous.

Notably, at the time the proposal for settlement was made in this case, the proposal did not require the release of any defendant other than Alamo Financing. At that time, there were no claims pending against Alamo Rental. Indeed, plaintiffs counsel acknowledged that he first learned of Alamo Rental’s involvement in this matter at a September 2010 deposition, which was five months after the proposal for settlement had expired. Thus, the release did not contain any ambiguity which would have reasonably affected the plaintiffs decision at the time the proposal for settlement was made.

We acknowledge that, when presented with the proposal for settlement, the plaintiff may have wished to conduct discovery to find out whether there were any viable causes of action (other than those barred by the Graves Amendment) against Alamo Financing or any related entity. This strategic decision does not, however, change the fact that the language of the release was unambiguous. A proposal for settlement cannot be deemed retroactively ambiguous on the theory that the proposal might have extinguished a hypothetical claim against an entity that was unknown to the plaintiff at the time the proposal was made and that was not added to the lawsuit until well after the proposal expired.

In sum-, we hold that the proposal for settlement was not an undifferentiated joint offer and that it would not have extinguished the plaintiffs claims against Alvarado-Fernandez. We also hold that the language in the general release providing that the plaintiff would release the “parent corporations, subsidiaries, officers, directors, and employees” of Alamo Financing was unambiguous standard release language that did not render the proposal invalid. Because the proposal for settlement was unambiguous, the trial court erred in denying Alamo Financing’s motion for attorney’s fees and costs based upon the proposal. We reverse and remand for the trial court to award reasonable attorney’s fees and costs to Alamo Financing.

Reversed and Remanded for proceedings consistent with this opinion.

MAY, C.J., and CONNER, J., concur.

      . The proposal could be read to resolve “[a]ll Claims made in the present action by the party to whom this proposal is made[,] including any claims that could be made[J against Defendant ALAMO FINANCING, L.P.” Under such a reading, the proposal would resolve only the claims made in the present action (including any claims that could be made) against Alamo Financing. However, the proposal could also be read to resolve "[a]ll Claims made in the present action by the party to whom this proposal is made[,] including any claims that could be made against Defendant ALAMO FINANCING, L.P.” Under such a reading, the proposal would resolve all claims in the present action, of which the claims that could be made against Alamo Financing would be a sub-set.

      . Although not argued by the parties, there is yet another reason why the proposal should not be read as extinguishing the plaintiff’s claims against Alvarado-Fernandez, or even as being ambiguous on this point. Under the maxim "expressio unius est exclusio alterius,” the mention of "any claims ... against Defendant ALAMO FINANCING, L.P.” in the proposal for settlement implied the exclusion of any claims against any other defendants. Cf. United States v. First Nat’l Bank of Crestview, 513 So.2d 179, 181 (Fla. 1st DCA 1987) ("the maxim ‘expressio unius est exclusio alterius' applies to contracts as well as statutes”).

      . For this reason, the plaintiff's reliance upon Duplantis v. Brock Specialty Services, Ltd., 85 So.3d 1206 (Fla. 5th DCA 2012), is misplaced.

      . In any event, there is no evidence in the record that Alamo Rental was in fact a subsidiary or parent corporation of Alamo Financing, such that the release would have actually foreclosed the plaintiff's claim against Alamo Rental.


author: GROSS, J.

text:
    Ira MARCUS, Appellant, v. FLORIDA BAGELS, LLC, Arsenal Holdings, LLC and Egg Ventures, LLC, Appellees.
    No. 4D12-2971.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Glenn J. Waldman and Craig J. Trigo-boff of Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., Weston, for appellant.
    Robert Zarco, Himanshu M. Patel and Kaari Gagnon of Zarco Einhorn Salkowski & Brito, P.A., Miami, for appellees.
   GROSS, J.

We affirm the circuit court’s order denying Ira Marcus’s motion to stay and compel arbitration. As a non-party to the arbitration agreement, Marcus cannot rely on equitable estoppel to compel a party to arbitrate where the parties to the arbitration agreement have repudiated it.

The plaintiffs below sued, inter alia, Brooklyn Water Enterprises, Inc. f/k/a The Original Brooklyn Water Bagel Co., Inc. (“Original”), the Brooklyn Water Bagel Franchise, Inc. (“BWB”), and Marcus. The essence of the complaint was that the defendants made fraudulent representations that induced the plaintiffs to purchase franchise rights for restaurants in South Florida. The complaint identified Marcus as a former officer and founder of Original and a former officer and director of BWB.

Prior to the suit’s initiation, the plaintiffs and BWB entered into development agreements, at which time an individual other than Marcus signed the agreements on behalf of BWB. Each agreement contained an arbitration provision which covered “all disputes, claims and controversies between the parties arising under or in connection with” the agreement, “including claims of fraud in the inducement and other claims of fraud.” The arbitration agreement vested BWB with the sole discretion to pursue a remedy in court, requiring arbitration:

[e]xcept to the extent [BWB] elects to enforce the provisions of this Agreement by judicial process and injunction in [BWB’s] sole discretion.

After the suit was filed in June 2011, BWB, consistent with its right under the contract, elected not to demand arbitration, deciding instead to actively litigate the case in the circuit court. Likewise, the plaintiffs opted not to demand arbitration, choosing alternatively to bring suit against Marcus via an amended complaint filed in February 2012. In response, Marcus timely moved to stay the circuit court proceedings and compel arbitration. The circuit court denied his motion.

Although Marcus was not a party to the development agreements, he argues that the doctrine of equitable estoppel allows him to enforce the arbitration clause against the plaintiffs, who were signatories to the agreements.

This is a case where a non-party to an arbitration agreement, also known as a non-signatory, seeks to compel a party to an agreement to arbitrate. An obligation to arbitrate is based on consent, “and for this reason ‘a non-signatory to a contract containing an arbitration agreement ordinarily cannot compel a signatory to submit to arbitration.’ ” Roman v. Atl. Coast Constr. & Dev., Inc., 44 So.3d 222, 224 (Fla. 4th DCA 2010) (quoting Koechli v. BIP Int’l, Inc., 870 So.2d 940, 943 (Fla. 1st DCA 2004)). However, courts “have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.” Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir.1995) (alteration in original).

We have written that the equitable estoppel exception to the general rule is “ ‘warranted when the signatory to the contract containing the arbitration clause raises allegations of concerted conduct by both the non-signatory and one or more of the signatories to the contract.’ ” Shetty v. Palm Beach Radiation Oncology Associates-Sunderam K. Shetty, M.D., P.A., 915 So.2d 1233, 1235 (Fla. 4th DCA 2005) (quoting Armas v. Prudential Sec., Inc., 842 So.2d 210, 212 (Fla. 3d DCA 2003)). In such circumstances, as Shetty suggests, equitable estoppel will apply since there exists “a relationship among the parties of a nature that justifies a conclusion that the party which agreed to arbitrate with another entity should be estopped from denying an obligation to arbitrate a similar dispute with the adversary which is not a party to the arbitration agreement.” Sokol Holdings, Inc. v. BMB Munai, Inc., 542 F.3d 354, 359 (2d Cir.2008).

“The doctrine of equitable estop-pel ‘precludes a party from asserting rights he otherwise would have had against another when his own conduct renders assertion of those rights contrary to equity.’ ” R.J. Griffin & Co. v. Beach Club II Homeowners Ass’n, 384 F.3d 157, 160 (4th Cir.2004) (quoting Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 417-18 (4th Cir.2000)). The rationale behind allowing a non-party to an arbitration agreement to use equitable estoppel to compel a party to arbitrate is that otherwise “ ‘the arbitration proceedings [between the two signatories] would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.’ ” MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999) (alteration in original) (quoting Sam Reisfeld & Son Import Co. v. S.A. Eteco, 530 F.2d 679, 681 (5th Cir.1976)). Consequently, in applying this doctrine, courts have also focused upon the “fairness” of the party’s conduct. See Hill v. GE Power Sys., Inc., 282 F.3d 343, 349 (5th Cir.2002) (“ ‘[T]he lynchpin for equitable estoppel is equity’ and the point of applying it to compel arbitration is to prevent a situation that ‘would fly in the face of fairness.’ ” (quoting Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir.2000))).

Applying these principles, the equitable estoppel doctrine has been found to apply “when one party attempts ‘to hold [another party] to the terms of [an] agreement’ while simultaneously trying to avoid the agreement’s arbitration clause.” R.J. Griffin, 384 F.3d at 161 (alterations in original) (quoting Hughes Masonry Co. v. Greater Clark Cnty. Sch. Bldg. Corp., 659 F.2d 836, 838 (7th Cir.1981)). In such circumstances, fairness dictates that the party “cannot have it both ways” by relying on the arbitration clause when it works to its advantage and repudiating it when it works to its disadvantage. Hughes Masonry, 659 F.2d at 839 (quoting Tepper Realty Co. v. Mosaic Tile Co., 259 F.Supp. 688, 692 (S.D.N.Y.1966)) (internal quotations omitted).

Similarly, Florida courts have applied equitable estoppel to allow a non-signatory to compel a signatory to arbitrate where the signatories were already involved in arbitration. See Shetty, 915 So.2d at 1234-35; Armas, 842 So.2d at 211-12; see also Lash & Goldberg LLP v. Clarke, 88 So.3d 426, 427-28 (Fla. 4th DCA 2012); MS Dealer Serv. Corp., 177 F.3d at 945 n. 1. Under the facts of those cases, ruling otherwise would have frustrated the policy in favor of arbitration by allowing parties to take inconsistent positions regarding the arbitrability of related, intertwined claims.

This case is different because the signatories to the arbitration agreement frustrated the agreement’s performance by repudiating arbitration and electing to pursue judicial process. Moreover, the arbitration agreement gives one of the parties (BWB) the unilateral right to bypass arbitration, meaning that the application of equitable estoppel to this case would effectively provide Marcus the ability to nullify the choice BWB was allowed to make under the contract. Under these circumstances, Marcus, as a non-signatory to the arbitration agreement, may not avail himself “of [the] arbitration provision” to which he is “not a party by seizing upon an exception that has the primary purpose of preventing the frustration of rights that has already occurred.” Ben-Yishay v. Mastercraft Dev., LLC, No. 08-14046-CIV, 2009 WL 6887928, at *6 (S.D.Fla. Dec. 14, 2009). For these reasons, since the plaintiffs have not taken inconsistent positions — they want no part of arbitration for any aspect of their claim and BWB has elected to proceed in court — Marcus may not rely on equitable estoppel to compel arbitration.

Affirmed.

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


author: STEVENSON, J.

text:
    Arthur HELLER, Appellant, v. BLUE AEROSPACE, LLC d/b/a Team Blue, Appellee.
    No. 4D12-992.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Charles Lichtman and Samuel Cozzo of Berger Singerman LLP, Fort Lauderdale, and Berger Singerman LLP, Miami, for appellant.
    Nancy A. Copperthwaite and Michael C. Marsh of Akerman Senterfitt, Miami, for appellee.
   STEVENSON, J.

Appellant Arthur Heller, defendant below, appeals a non-final order denying his motion to compel arbitration in favor of Appellee Blue Aerospace, LLC (“Team Blue”), plaintiff below. We reverse, finding that Team Blue is equitably estopped from refusing to arbitrate the fraud claims against Heller which are at issue in this case.

Heller is the sole member and only employee of non-party Zell Global, LLC (“Zell”). Zell entered into a contract with Team Blue to render financial consulting services in connection with the potential sale of Team Blue’s assets or equity. Team Blue ultimately sold the majority of its assets but refused to pay Zell fees under the contract.

The contract contained a narrow arbitration provision where the parties agreed to “submit all disputes, controversies and claims arising under this Agreement to binding arbitration.” See Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013) (“An arbitration provision that is considered to be narrow in scope typically requires arbitration for claims or controversies ‘arising out of the subject contract.”). Accordingly, Zell commenced an arbitration seeking damages against Team Blue. Team Blue defended the arbitration by alleging that Heller “wrongfully induced Team Blue to enter into the [contract] by misrepresenting, among other things, himself and his company as licensed business brokers.” In addition, Team Blue counterclaimed against Zell in arbitration for fraud in the inducement, negligent misrepresentation, unjust enrichment, and declaratory relief based on allegations that Zell misrepresented itself as a business broker. The counterclaim further alleged that Heller’s fraudulent misrepresentations induced Team Blue to engage Zell as a broker for the sale of Team Blue’s business.

Subsequently, Team Blue filed this underlying action in the circuit court against Heller individually. In its sole count for fraud, Team Blue alleged Heller willfully and knowingly misrepresented his contacts with potential investors “to induce Team Blue to retain Heller and his company, Zell Global, as a licensed business broker.” Heller moved to compel arbitration of the fraudulent inducement claim based on the arbitration provision in the contract between Zell and Team Blue. The trial court denied the motion, stating that the fraudulent inducement claim was not an arbitra-ble issue because “the express language of the arbitration clause clearly indicates that arbitration is limited to contractual claims.” We reverse.

A trial court’s construction of an arbitration provision and denial of a motion to compel arbitration are reviewed de novo. See BDO Seidman, LLP v. Bee, 970 So.2d 869, 874 (Fla. 4th DCA 2007). “[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 683, 636 (Fla.1999) (citing Terminix Int’l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). As in Seifert, the issue boils down to whether Team Blue’s sole count for fraud is subject to arbitration. See id. at 636 n. 2.

Generally, the courts have recognized that a non-signatory may compel a signatory to arbitration under the theory of equitable estoppel or upon principles of agency. See Shetty v. Palm Beach Radiation Oncology Assocs.-Sunderam K. Shetty, M.D., P.A., 915 So.2d 1233, 1235 (Fla. 4th DCA 2005) (holding that non-signatories may compel arbitration based on principles of equitable estoppel); Armas v. Prudential Sec., Inc., 842 So.2d 210, 212 (Fla. 3d DCA 2003) (compelling arbitration with non-signatory based on equitable estoppel); see also Koechli v. BIP Int’l, Inc., 870 So.2d 940, 945-46 (Fla. 1st DCA 2004) (compelling arbitration with non-signatories on agency principles); Tenet Healthcare Corp. v. Maharaj, 787 So.2d 241, 243 (Fla. 4th DCA 2001) (holding that non-signatories may compel arbitration based on agency principles). A non-signatory such as Heller may compel arbitration under the doctrine of equitable estoppel “ ‘when the signatory to the contract containing the arbitration clause raises allegations of concerted conduct by both the non-signatory and one or more of the signatories to the contract.’ ” Shetty, 915 So.2d at 1235 (quoting Armas, 842 So.2d at 212).

Here, we find that Team Blue’s conduct in arbitration renders its fraud claim against Heller subject to arbitration by both equitable estoppel and principles of agency. Team Blue alleges the same core facts in its fraud claim and fraudulent inducement arbitration counterclaim that it does in its complaint: that Heller, acting on behalf of Zell, wrongfully induced Team Blue to enter the contract with Zell. “It is apparent, here, that the claims in the new complaint essentially arose out of the same operative facts as many of the claims currently in arbitration. Both are predicated upon the same allegations and necessarily involve factual determinations” as to whether Heller misrepresented Zell as a licensed business broker. Id. We need not reach Team Blue’s argument that the fraudulent inducement claim is not arbitra-ble under the “narrow” arbitration clause at issue in the instant case. At Team Blue’s own insistence, Team Blue’s counterclaim against Zell, which is virtually identical to its fraud claim against Heller, is already pending in the arbitration proceeding. Here, Team Blue is equitably estopped by its own conduct from denying Heller the opportunity to have the fraud cause of action against him individually considered in the arbitration proceeding involving Zell. Team Blue inconsistently seeks to arbitrate its claims against the arbitration agreement signatory principal, and litigate in court its claims against the non-signatory agent, on essentially the same allegations and operative facts. The trial court’s order denying Heller’s motion to compel arbitration is reversed.

Reversed.

CIKLIN and GERBER, JJ., concur.


author: GERBER, J.

text:
    Jonah TROUTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2024.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   GERBER, J.

The patient appeals from the circuit court’s final order granting a treatment center’s petition for involuntary psychiatric medication and treatment. The patient argues there was no competent, substantial evidence to establish: (1) that he was provided with a written treatment plan and an opportunity to assist in preparing that plan; or (2) that his multidisciplinary treatment team discussed and approved his recommended treatment. We affirm on the first ground without discussion. We reverse on the second ground.

Section 916.107(3)(a), Florida Statutes (2012), provides, in pertinent part:

A forensic client shall be asked to give express and informed written consent for treatment. If a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client, such treatment may be provided under the following circumstances. ...

§ 916.107(3)(a), Fla. Stat. (2012) (emphasis added). Our case law interpreting section 916.107(3)(a) “ ‘requires that at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment be presented.’ ” Martin v. State, 94 So.3d 700, 701 (Fla. 4th DCA 2012) (quoting Louisma v. State, 78 So.3d 50, 52 (Fla. 4th DCA 2012)). We also have held that “‘[o]n appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, the record must contain competent, substantial evidence to support the trial court’s findings and to substantiate compliance with section 916.107.’ ” Morgan v. State, 94 So.3d 677, 679 (Fla. 4th DCA 2012) (quoting Louisma, 78 So.3d at 52).

Here, the treatment center did not present competent, substantial evidence that the patient’s multidisciplinary treatment team discussed and approved the treatment plan. The treatment center’s psychiatrist’s testimony described being part of the patient’s treatment team, the team’s composition, the team’s diagnosis regarding the patient’s mental health problem, that a plan was devised to restore the patient’s competency, and that the psychiatrist “diseuss[ed] the need for medications and testings as part of that plan.” Notably, the psychiatrist did not testify with whom he discussed the plan. Even assuming this testimony referenced a discussion with the treatment team’s other members, the psychiatrist did not testify that the other team members approved of the necessity of the recommended treatment.

Given the above, we conclude the treatment center did not present competent, substantial evidence that the patient’s multidisciplinary treatment team discussed and approved the treatment plan. Thus, the circuit court’s order must be reversed for a further hearing at which the treatment center may present evidence of the treatment team’s discussion and approval of the treatment plan. See Martin, 94 So.3d at 701 (reversing an involuntary medical treatment order where there was a “lack of evidentiary support showing that the proposed treatment was discussed with and approved by [the patient’s] multidisciplinary treatment team”); Morgan, 94 So.3d at 680 (reversing an involuntary medical treatment order where “[t]he record on appeal does not contain any evidence that [the patient’s] multidisciplinary team discussed or approved the necessity for this treatment”); Louisma, 78 So.3d at 53 (reversing an involuntary treatment order where the record was “devoid of evidence complying with the statutory requirement that the [patient’s] multidisciplinary team deemed the treatment requested to be necessary”). Cf. Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998) (affirming an involuntary treatment order where the patient’s attending psychiatrist, who also was a member of the patient’s treatment team, testified that the patient’s treatment “had been discussed with and found necessary by [the patient’s] treatment team”).

Reversed and remanded for further proceedings.

STEVENSON and CIKLIN, JJ., concur.


author: DAMOORGIAN, J.

text:
    AMERICA ATLANTIC TRANSMISSION d/b/a Atlantic Transmission & Auto Repair and Mark Hinkofer, Appellants, v. NICE CAR, INC., Appellee.
    No. 4D12-2132.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Richard W. Glenn of the Law Office of Richard W. Glenn, Palm Beach Gardens, for appellants.
    Alexis K. Logan of the Law Office of Alexis Logan, PLLC, and Joseph P. Kla-pholz of Joseph P. Klapholz, P.A., Hollywood, for appellee.
    Robert E. Sickles and John P. Gaset of Hinshaw & Culbertson, LLP, Tampa, for Amicus Curiae, The Florida Independent Automobile Dealers Association, Inc.
   DAMOORGIAN, J.

American Atlantic Transmission (“AAT”) appeals the trial court’s non-final order holding it in contempt of court for failure to release a motor vehicle to Nice Car, Inc. (“Nice Car”). AAT raises a number of issues on appeal. We find merit to AAT’s argument that Nice Car, as a lien holder, was not entitled to invoke the right of possession upon posting a bond under section 559.917, Florida Statutes (2012), and reverse. We find no merit to the remaining issues raised on appeal.

The following facts are gleaned from the record. AAT is a motor vehicle repair shop which performed repairs on the subject motor vehicle. At the time of the repairs, Nice Car held a lien on the vehicle. When the owner of the vehicle failed to pay for the repairs, AAT issued a Notice of Claim of Lien and Proposed Sale of Motor Vehicle, pursuant to section 713.585, Florida Statutes (2012). AAT served the Notice on the owner of the vehicle and Nice Car, as lien holder. Under the head-mg “STATEMENT OF OWNERS RIGHTS,” the notice provided in part:

NOTICE THAT THE OWNER OF THE MOTOR VEHICLE OR ANY PERSON CLAIMING INTEREST IN OR LIEN THEREON HAS A RIGHT TO A HEARING AT ANY TIME PRIOR TO THE SCHEDULED DATE OF SALE BY FILING A DEMAND FOR A HEARING WITH THE CLERK OF THE CIRCUIT COURT IN THE COUNTY IN WHICH THE MOTOR VEHICLE IS HELD BY THE LIEN-OR AND BY MAILING COPIES OF THE DEMAND FOR HEARING TO ALL OTHER OWNERS AND LIEN-ORS AS REFLECTED IN THE NOTICE.
NOTICE THAT THE OWNER OF THE MOTOR VEHICLE HAS A RIGHT TO RECOVER POSSESSION OF THE MOTOR VEHICLE WITHOUT INSTITUTING JUDICIAL PROCEEDINGS BY POSTING A BOND IN ACCORDANCE WITH THE PROVISIONS OF FLORIDA STATUTE 559.917.

After receiving the notice, Nice Car posted a cash bond to cover the repair work done on the vehicle and accrued storage charges in accordance with the Motor Vehicle Repair Act. § 559.917(l)(a), Fla. Stat. Nice Car was issued a Clerk’s Certificate directing AAT to release the vehicle to Nice Car. Despite having been served with the Clerk’s Certifícate, AAT refused to comply with the directive and went forward with the sale. Nice Car filed a motion in the circuit court seeking to have AAT held in contempt for failing to release the vehicle pursuant to the directive in the Clerk’s Certifícate. Although there is no record of what transpired at the hearing, it is undisputed that AAT refused to release the vehicle because Nice Car was not the customer. Ultimately, the trial court found AAT in contempt and ordered AAT to release the vehicle. This appeal follows.

The case before us requires us to engage in statutory interpretation. Accordingly, our standard of review is de novo. Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011). It is axiomatic that courts will give plain meaning to the words and construe them so as to carry out express legislative intent. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005); Brown, 64 So.3d at 174. “Florida courts are ‘without power to construe an unambiguous statute in a way which would extend, modify or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ ” Id. (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)) (emphasis omitted). Further, courts will avoid interpreting statutes in a manner that will lead to absurd results. Holly, 450 So.2d at 219. We apply these common sense rules to the two statutory provisions implicated in this case. The first is section 713.585, found in Part II of Florida’s miscellaneous lien law. The second is section 559.917, found Part IX of Florida’s Regulations of Trade, Commerce and Investments.

Section 713.585, “Enforcement of lien by sale of motor vehicle,” provides in pertinent part:

A person claiming a lien under s. 713.58 for performing labor or services on a motor vehicle may enforce such lien by sale of the vehicle in accordance with the following procedures:
(1) The lienor must give notice ... to the registered owner of the vehicle, to the customer as indicated on the order for repair, and to all other persons claiming an interest in or lien thereon.... Such notice must contain:
(g) Notice that the owner of the vehicle or any person claiming an interest in or lien thereon has a right to a hearing at any time prior to the scheduled date of sale by filing a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held....
(h) Notice that the owner of the vehicle has a right to recover possession of the vehicle without instituting judicial proceedings by posting bond in accordance with the provisions of s. 559.917.

§ 713.585(l)(g) & (h), Fla. Stat. (2012) (emphasis added).

Further, section 713.585(5) provides that:

(5) At any time prior to the proposed or scheduled date of sale of a vehicle, the owner of the vehicle, or any person claiming an interest in the vehicle or a lien thereon, may file a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held to determine whether the vehicle has been wrongfully taken or withheld from her or him.

Id. (emphasis added).

It is patently obvious from a plain reading of subsections (l)(g), (l)(h) and (5) of section 713.585, that the legislature never intended to give “any person claiming an interest in or lien” on the vehicle the right to post a bond in order to obtain possession. Had it intended to do so, we presume that the legislature would have identified such party in subsection (l)(h), along with the owner of the vehicle. Bound by rules of statutory construction, we will not write into the statute that which is expressly omitted, see Lowe v. Broward County, 766 So.2d 1199, 1208 (Fla. 4th DCA 2000), particularly where, as here, not doing so will not lead to any absurd result or underminé the purpose of the statute. Holly, 450 So.2d at 219.

We find further support for our holding in section 559.917, “Bond to release posses-sory lien claimed by motor vehicle repair shop,” which provides in part:

(l)(a) Any customer may obtain the release of her or his motor vehicle from any lien claimed under part II of chapter 713 by a motor vehicle repair shop for repair work performed under a written repair estimate by filing with the clerk of the court in the circuit in which the disputed transaction occurred a cash or surety bond....

§ 559.917(l)(a), Fla. Stat. (2012). Further, section 559.903 defines “customer” as:

[T]he person who signs the written repair estimate or any other person whom the person who signs the written repair estimate designates on the written repair estimate as a person who may authorize repair work.

§ 559.903(1), Fla. Stat. (2012). Again we are compelled to reach but one conclusion. Had the legislature intended to define “customer” to include “any person claiming an interest in or lien,” it would have done so.

In its amicus brief, the Florida Independent Automobile Dealers Association (“Dealers Association”) argues that our interpretation would undermine the purposes of Chapters 559 and 713 by allowing “motor vehicle repair shops to benefit from mechanic’s liens without having to comply with the consumer protection requirements of the Repair Act.” We find no merit to this argument because section 713.585(1) specifically requires that a repair shop give notice to lien holders, such as Nice Car, that the vehicle is being sold to satisfy the repair shop’s lien for services rendered to the vehicle. Moreover, section 713.585 requires that Nice Car be informed of its right to a hearing in order to determine whether the vehicle has been wrongfully taken or withheld, the validity of the repair lien, and the priority of the repair lien against existing security interests. §§ 713.585(l)(g), (5), & (7)(a)-(b), Fla. Stat. (2012). Finally, we see nothing in the statute that would diminish or affect the viability of Nice Car’s lien. To the contrary, the trial court has full authority to address the very concerns that Nice Car and the Dealers Association raise on appeal. “Generally, courts of equity have wide discretion in fashioning remedies to satisfy the exigencies of the circumstances.” Schroeder v. Gebhart, 825 So.2d 442, 446 (Fla. 5th DCA 2002) (citing Singer v. Tobin, 201 So.2d 799, 800-01 (Fla. 3d DCA 1967)).

Nice Car and the Dealers Association also argue that our holding in 1616 Sunrise Motors, Inc. v. A-Leet Leasing of Florida, 547 So.2d 267 (Fla. 4th DCA 1989), supports the very interpretation they would have us give to the definition of the term “customer” in interpreting section 559.917. We find Sunrise Motors to be of no precedential value. In that case, A-Leet was the owner of the vehicle. In contrast, Nice Car is neither the owner, nor the customer as that term defined in section 559.917.

For all of the foregoing reasons, we conclude that the trial court erred in its conclusion that Nice Car was authorized to post a bond pursuant to section 559.917(l)(a), and was, therefore, entitled to possession of the vehicle as a lien holder. Accordingly, we reverse and remand this matter for the trial court to determine whether the motion filed by Nice Car, which precipitated the order on appeal, constitutes a request for hearing as contemplated by subsection 713.585(5), and for further proceedings in accordance with that section.

Reversed and Remanded.

GROSS, and STONE, BARRY J„ Senior Judge, concur.

      . The Dealers Association points out that section 679.609 of the Uniform Commercial Code allows a secured party to retake possession of its collateral after default without resorting to judicial process, if it can be done without a breach of the peace. Certainly, the trial court at the hearing contemplated by subsection (5) can afford the lien holder the option of posting a bond in order to obtain possession of the vehicle. § 713.585(l)(g), Fla. Stat. (2012).


author: PER CURIAM.

text:
    PUBLIX SUPER MARKETS, INC., etc., Appellant, v. Vanessa CUERVOS, Appellee.
    No. 3D12-15.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Edward G. Guedes; Litch-field Cavo and Andrew S. Connell, Coral Gables, for appellant.
    Anidjar & Levine and Glen B. Levine and Elie Anidjar (Ft.Lauderdale); Burlington & Rockenbach and Andrew A. Harris, West Palm Beach, for appellee.
    Before LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Debra A. MARTINEZ, as Personal Representative of the Estate of Alexander Martinez, Appellant, v. SOUTH MIAMI HOSPITAL, INC., etc., Carlos Larocca, M.D., P.A., etc., James Vincent Millerick, LMHC, and Baptist Health South Florida, Inc., etc., Appellees.
    No. 3D12-381.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Rehearing Denied May 24, 2013.
    David A. Bushell, Fort Lauderdale; Spencer Marc Aronfeld, Coral Gables, for appellant.
    Falk, Waas, Hernandez, Cortina, Solomon & Bonner and Scott L. Mendlestein and Glenn P. Falk; Richard A. Warren, Miami, for appellees.
    Before SUAREZ and LOGUE, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001); Garcia v. Lifemark Hosps. of Fla., 754 So.2d 48, 50 (Fla. 3d DCA 1999); Rafferman v. Carnival Cruise Lines, Inc., 659 So.2d 1271, 1273 (Fla. 3d DCA 1995); Paddock v. Chacho, 522 So.2d 410 (Fla. 5th DCA 1988).


text:
    DLJ MORTGAGE CAPITAL, INC., Petitioner, v. Neil B. FOX, Respondent.
    No. 4D12-2264.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Jonathan Rosen and N. Alejandra Ar-royave of Lapin & Leichtling, LLP, Coral Gables, for petitioner.
    James A. Bonfiglio of Law Office of James A. Bonfiglio, P.A., Boynton Beach, for respondent.
   PER CURIAM.

In this residential mortgage foreclosure action, Petitioner seeks review of an order finding that it waived the right to raise work product and attorney client privilege objections to a discovery request because it failed to file a privilege log. We grant the petition.

To support its position, Petitioner makes three arguments. First, it contends that the failure to file a privilege log did not justify finding a waiver because some of the objections were category-based. Second, it claims that a privilege log was not due for several of the items, because the court had not yet ruled on other grounds for objection that were simultaneously raised along with the work product or attorney client privilege. Finally, Petitioner argues that the court could not implicitly waive the privilege as a sanction for a serious discovery violation. Respondent argues that the court properly found a waiver because the crime-fraud exception applied. We agree with Petitioner that this argument has no merit because it does not appear that the trial court relied on this exception in rendering its decision. We do, however, find that Petitioner’s first two arguments have merit.

A trial court has discretion to find a waiver of privilege from the failure to file a privilege log. See Century Business Credit Corp. v. Fitness Innovations & Tech., Inc., 906 So.2d 1156 (Fla. 4th DCA 2005). However, the failure to file a log should not be applied to categorical assertions of privilege. See Nevin v. Palm Beach Co. Sch. Bd., 958 So.2d 1003, 1008 (Fla. 1st DCA 2007). Here, some of the requests appear to include items which would be categorically protected by the work product privilege, specifically, Items 13, 15, 16, 18, 19, and 20. These items seek the disclosure of materials from counsel which were made in the course of litigation or that patently reflect the attorney’s mental impressions. See Grinnell Corp. v. Palms 2100 Ocean Blvd., Ltd., 924 So.2d 887 (Fla. 4th DCA 2006). Florida disfavors the waiver of work-product protections. See Nevin, 958 So.2d at 1008. Thus, as to these items, we find that the trial court’s finding of a waiver was a departure from the essential requirements of the law.

To the extent that Petitioner claims that it had no obligation to file a privilege log on claims which included non-privilege objections, we agree. See Gosman v. Luzinski, 937 So.2d 293 (Fla. 4th DCA 2006) (holding that the time for filing a privilege log was tolled until the court had ruled on the party’s objections that the discovery requests were burdensome); Morton Plant Hosp. Ass’n. v. Shahbas ex rel. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007) (noting that until a trial court rules on a party’s other objections to discovery the party asserting the privilege need not file a privilege log). Here, Petitioner raised privilege and non-privilege objections as to Items 10, 13, 15, 16, 19, 20, 28, and 33. The court deferred ruling as to the non-privilege objections. Thus, Petitioner did not have a duty to file a privilege log for those items on which other objections were raised until the court had determined that those items were otherwise discoverable. Accordingly, Petitioner did not waive its right to assert privilege on the items described by failing to file a privilege log, because the time for filing the log was tolled until the court ruled on the other objections.

Finally, we agree that under the facts and circumstances of this case the court could not find a waiver as a sanction for a discovery violation. Although the objections were raised four months after the request was due, Respondent never moved to compel, nor did it request a privilege log. Cf. Kaye Scholer LLP v. Zalis, 878 So.2d 447 (Fla. 3d DCA 2004); see also Bankers Sec. Ins. Co. v. Symons, 889 So.2d 93 (Fla. 5th DCA 2004). In any event, it does not appear that the trial court found the waiver as a sanction; rather, its decision was based solely on the fact that Petitioner did not file a privilege log.

For these reasons, we find that the trial court departed from the essential requirements of the law by finding that Petitioner’s failure to file a privilege log constituted a waiver of privilege as to Items 10, 13, 15, 16, 18, 19, and 20, 28, and 33. See Nevin, 958 So.2d at 1008; Gasman, 937 So.2d at 296. We therefore grant the petition for certiorari as to the items challenged in the petition. The trial court should allow Petitioner to file a privilege log within a reasonable time after it rules on the non-privilege objections, so that an in camera inspection may be conducted.

Petition Granted.

POLEN, TAYLOR and LEVINE, JJ., concur.


text:
    Manuel CANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2757.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Manuel Cano, Miami, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice the trial court’s summary denial of appellant’s motion for postconviction relief.

In a timely postconviction motion, appellant sought to withdraw his June 18, 2010 negotiated plea to attempted robbery and assault on a person 65 years of age or older. Appellant claimed that, under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), he was entitled to withdraw his plea because his attorney failed to advise him about potential immigration consequences. He alleged that he has a final order of deportation that is “based in large part on these convictions.” He has not provided a copy of the alleged deportation order.

The trial court denied the motion because appellant was advised during the plea colloquy and in the plea form that his plea “could” result in his deportation. The Florida Supreme Court has held that an “equivocal” warning such as this is not on its own sufficient to refute a claim that counsel was ineffective in failing to advise a defendant about “truly clear” deportation consequences. Hernandez v. State, — So.3d -, -, 2012 WL 5869660, 37 Fla. L. Weekly S730,. S731-32 (Fla. Nov. 21, 2012). The standard “could” or “may” warning of rule 3.172(c)(8), however, can refute a claim where the deportation consequences are not “truly clear” from the face of the immigration statute. See id.

Appellant filed his motion, and the court denied it, before the Florida Supreme Court’s decision in Hernandez. The trial court denied the motion based on this court’s holding in Flores v. State, UJ So.3d 218 (Fla. 4th DCA 2010), which held that the “may” warning of rule 3.172(c)(8) cured the prejudice in all circumstances. The Florida Supreme Court has now abrogated that aspect of Flores. Hernandez, — So.3d at -, 37 Fla. L. Weekly at S732. We conclude that, under the circumstances, appellant should be afforded an opportunity to refile his claim if he can do so in good faith.

Padilla, and the cases applying it in Florida, require a movant to show a number of things in order to be entitled to relief. Appellant’s motion was insufficient for a number of reasons. Because the standard warning will have been given in most cases, we write to clarify what a movant must establish to be entitled to relief in this situation and what appellant must establish should he choose to refile.

Where a movant has received the standard “may” or “could” deportation warning required by rule 3.172(c)(8), to state a claim for relief under Padilla, a movant must establish the following: (1) that the movant was present in the country lawfully at the time of the plea; (2) that the plea at issue is the sole basis for the movant’s deportation; (3) that the law, as it existed at the time of the plea, subjected the movant to “virtually automatic” deportation; (4) that the “presumptively mandatory” consequence of deportation is clear from the face of the immigration statute; (5) that counsel failed to accurately advise the movant about the deportation consequences of the plea; and (6) that, if the movant had been accurately advised, he or she would not have entered the plea. See Ioselli v. State, 4D12-1449, 2013 WL 611781 (Fla. 4th DCA Feb.20, 2013) (citing Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008)); Joseph v. State, 107 So.3d 492 (Fla. 4th DCA 2013); Hernandez, — So.3d at -, 37 Fla. L. Weekly at S731-32; Padilla, 130 S.Ct. at 1483.

We affirm the summary denial of appellant’s motion without prejudice for him to file a legally sufficient motion, if he can do so in good faith, within sixty (60) days of our mandate in this case.

Affirmed without prejudice to file a sufficient claim within sixty (60) days.

STEVENSON, TAYLOR and CONNER, JJ., concur.


text:
    The ESTATE OF Ruby Eva JENNER, by and through Brian Bernard JENNER, Personal Representative, Appellant, v. MANOR PINES CONVALESCENT CENTER, LLC, Marrinson Group, Inc.; Ralph A. Marrinson; 1601 Management, LLC; Michael James DeSalvo; Lawrence Militello; and Phyillis E. Stafford Fivey (as to Manor Pines Convalescent Center), Appellees.
    No. 4D10-1001.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Isaac R. Ruiz-Carcus of Wilkes & McHugh, P.A., Tampa, for appellant.
    Richard T. Woulfe and Jennifer S. Mulligan of Bunnell & Woulfe, P.A., Fort Laud-erdale, for appellees.
   DAMOORGIAN, J.

The Estate of Ruby Eva Jenner (“the Estate”) appeals the trial court’s non-final order granting Manor Pines Convalescent Center, L.L.C.’s (“Manor Pines”), motion to compel arbitration. We reverse and remand for an evidentiary hearing.

In 2007, Mrs. Jenner was admitted to Manor Pines’ home. As part of the admission process, Brian Jenner, her husband, executed an “Agreement for Care” in his capacity as “Resident’s Spouse or Representative.” The Agreement for Care contained a provision to arbitrate any “controversy or claim arising out of or relating to the Agreement, ... including ... claims under Chapters 400 and 415, FS....”

Several years after her admission and discharge from the home, the Estate sued Manor Pines for alleged negligence and intentional conduct resulting in injuries to Mrs. Jenner. In response to the complaint, Manor Pines moved to compel arbitration under the terms of the Agreement for Care. In its motion, Manor Pines argued that in 2001, Mrs. Jenner executed a “Designation of Health Care Surrogate” naming her husband as her alternate health care surrogate (the “Designation”). The Designation expressly authorized Brian Jenner to “make health care decisions” for his wife. Manor Pines argued that one such decision was admitting Mrs. Jenner to Manor Pines under the terms of the Agreement for Care. Therefore, Manor Pines maintained that the Estate was contractually bound to arbitrate its claims. The trial court agreed, finding that Brian Jenner had the authority to enter into the Agreement for Care on Mrs. Jenner’s behalf pursuant to the Designation. It further found that Mrs. Jenner was competent at the time she executed the Designation and that the Designation “was completed in conformance with § 765.202 Fla. Stat.” Accordingly, the court granted Manor Pine’s motion to compel arbitration. This appeal follows.

“‘An order granting or denying a motion to compel arbitration is reviewed de novo.’ Best v. Educ. Affiliates, Inc., 82 So.3d 143, 145-46 (Fla. 4th DCA 2012) (quoting DFC Homes of Fla. v. Lawence, 8 So.3d 1281, 1282-83 (Fla. 4th DCA 2009)). “However, ‘the trial court’s factual findings are reviewed under a competent, substantial evidence standard.’ ” Id. at 146 (quoting BDO Seidman, LLP v. Bee, 970 So.2d 869, 873-74 (Fla. 4th DCA 2007)).

Section 765.202, Florida Statutes (2001), provides the means by which an individual may designate a health care surrogate. The statute requires a writing signed by the principal in the presence of two witnesses. § 765.202(1), Fla. Stat. “A principal unable to sign the instrument may, in the presence of witnesses, direct that another person sign the principal’s name.” § 765.202(1), Fla. Stat. (2001). “A written designation of a health care surrogate executed pursuant to this section establishes a rebuttable presumption of clear and convincing evidence of the principal’s designation of the surrogate.” § 765.202(7), Fla. Stat. (2001).

The parties spend a significant amount of time examining whether Brian Jenner could bind his wife to the arbitration provision contained in the Agreement for Care by virtue of his power under the Designation. We need not address this issue, as we hold that the trial court’s factual finding that the Designation was “completed in conformance with § 765.202 Fla. Stat.” is not supported by substantial, competent evidence.

Contrary to the trial court’s findings, in his deposition, Mr. Jenner testified that he signed the Designation for his wife. He did not indicate that he did so in front of witnesses at Mrs. Jenner’s direction as required by section 765.202(1), Florida Statutes. Indeed, Mr. Jenner seemed to indicate that Mrs. Jenner did not have the cognitive capacity at the time to make any decisions, much less the decision to appoint a health care surrogate. There was no evidence presented to the trial court otherwise regarding the circumstances under which the Designation was created. Accordingly, we reverse the trial court’s order compelling arbitration, and remand for an evidentiary hearing regarding the validity of the Designation.

Reversed and Remanded.

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

      . The record reflects that, during her time at Manor Pines, Mrs. Jenner lost her ability to communicate verbally or in writing. This statement is supported by her physician’s statement that Mrs. Jenner was incapable of making her health decisions as of 2008.


text:
    Olga Maria AGUIRRE, Petitioner, v. In re The ESTATE OF Efrain AGUIRRE, Respondent.
    No. 3D12-1954.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.

      Olga Aguirre, in proper person.
    Peter A. Cohen, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ.
   PER CURIAM.

In Aguirre v. In re Estate of Efrain Aguirre, 108 So.3d 1099 (Fla. 3d DCA 2013), this court dismissed Olga M. Aguirre’s appeal and simultaneously ordered her to show cause why she should not be precluded from filing further pro se appeals in this court, arising out of lower tribunal number 09-2280. Ms. Aguirre has failed to file a response as directed.

Our high court has said that “[a]buse of the legal system is a serious matter, one that requires this Court to exercise its inherent authority to prevent.” Lussy v. Fourth Dist. Ct.App., 828 So.2d 1026, 1027 (Fla.2002). This authority extends to the “sanction[ing][of] petitioners who abuse the legal process by requiring them to be represented by counsel in future actions.” Id.; see also Sibley v. Sibley, 885 So.2d 980, 988 (Fla. 3d DCA 2004). The Florida Supreme Court held in Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998): “This Court has a responsibility to ensure every citizen’s access to courts. To further that end, this Court has prevented abusive litigants from continuously filing frivolous petitions, thus enabling the Court to devote its finite resources to those who have not abused the system.”

Based upon the copious meritless filings in this court, Aguirre is barred from filing further pro se proceedings in this court arising out of lower tribunal number 09-2280. See Jenkins v. Motorola, Inc., 62 So.3d 1210 (Fla. 3d DCA 2011); Sibley v. Sibley, 885 So.2d at 985 (Fla. 3d DCA 2004). We direct the clerk of this court to reject any further filings from Aguirre, arising out of lower tribunal number 09-2280, unless signed by a member of the Florida Bar. Any other cases pending in this court in which Aguirre is proceeding pro se will be dismissed unless a notice of appearance signed by a member in good standing of the Florida Bar is filed in each case within thirty days of this opinion becoming final. See Lussy v. Fourth Dist. Court of Appeal, 828 So.2d at 1028 (Fla.2002).

So ordered.

      . The following is a list of the meritless filings by Aguirre in this court: 3D 11-786 (consolidated with 3D 11-1942 and appeal dismissed for failure to file initial brief), 3D 11-1942 (consolidated with 3D11-786 and appeal dismissed for failure to file initial brief), 3D 11-2552 (appeal dismissed sua sponte for failure to comply with court order), 3D 11-2553 (appeal dismissed sua sponte for failure to comply with court order), 3D 11-2617 (appeal dismissed sua sponte as untimely), 3D 11-3245 (appeal dismissed sua sponte for failure to comply with court order), 3D 12-319 (appeal dismissed sua sponte for failure to comply with court order), 3D 12-745 (appeal dismissed sua sponte for failure to comply with court order), 3D12-1177 (appeal dismissed sua sponte as untimely), 3D12-1953 (appeal dismissed sua sponte for failure to comply with court order), 3D12-1954 (appeal dismissed for failure to file initial brief), 3D12-2262 (appeal dismissed sua sponte for failure to comply with court order), 3D 12-2827 (appeal dismissed sua sponte for failure to comply with court order), 3D 12-2867 (appeal dismissed sua sponte for failure to comply with court order), 3D 12-2868 (appeal dismissed sua sponte for failure to comply with court order), 3D12-3294 (appeal dismissed sua sponte for failure to comply with court order), 3D 13-48 (appeal dismissed sua sponte for failure to comply with court order), 3D 13-539 (appeal dismissed), 3D 13-542 (appeal dismissed), 3D 13-544 (appeal dismissed), 3D 13-545 (appeal dismissed).


text:
    In re ESTATE OF Mattie Pearl SHEFFIELD, Appellant, v. In re ESTATE OF Willie James SHEFFIELD, Appellee.
    No. 3D12-714.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Rehearing Denied May 22, 2013.
    Ferdie and Lones, Chartered, and Ain-slee R. Ferdie, Miami, for appellant.
    Appellate Law Office of Mark Miller, P.A. (Stuart), and Mark Miller; Gary, Williams, et. al., and Thomas E. Weiksnar, Stuart, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

The Estate of Mattie Pearl Sheffield appeals the trial court’s order sustaining the appellee, Estate of Willie James Sheffield’s, objection to the claim. Because the probate court entered the order on appeal, a non-final order which does not fall under any provision of Florida Rule of Appellate Procedure 9.170, we dismiss the case without prejudice to appellant’s ability to raise its arguments after the trial court resolves the claims and objections in the independent civil action below.

Dismissed.


text:
    Carlos COLOMA, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-932.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Carlos Coloma, in proper person.
    Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for appellees.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because the Reemployment Assistance Appeals Commission properly ruled that the appellant’s appeal from the denial of unemployment compensation benefits was untimely, the order under review is affirmed.

Affirmed.